Re Caydon MP No 1 Development Pty Ltd (in liq) (recs and mgrs apptd) [2025] VSC 803 (19 December 2025)

(a) the first and second interested parties who are the receivers and managers ('Receivers') of the second plaintiff, Caydon Property Group Pty Ltd (ACN 156 166 040) ('CPG') and the Caydon Companies;

(b) the third interested party which holds various security interests granted by the Caydon Companies on trust for the fourth, fifth and sixth interested parties ('Security Trustee').

(c) the fourth, fifth and sixth interested parties who are secured financiers of the Caydon Companies ('OCP Financiers'); and

(d) the eight, ninth, tenth and eleventh interested parties who are related entities of the Caydon Companies that are not in liquidation (collectively, the 'Interested Parties').[1]

1. The Interested Parties relied on the affidavit of one of the Receivers, Mr Matthew Russell Hutton filed 3 September 2025 ('Hutton Affidavit'), the affidavit of Mr Colin Smith, who is an officer of the OCP Financiers, filed 2 September 2025 ('Smith Affidavit') and a written outline of submissions filed 1 October 2025.
2. Mr Joseph Russo, the sole director and secretary of each of the Caydon Companies was served with the application but did not appear.

1. Section 588FF(3) of the Act operates to delineate a point beyond which proceedings brought pursuant to s 588FF(1) cannot be commenced. It provides that:

(3) An application under subsection (1) may only be made:

(a) during the period beginning on the relation‑back day and ending:

(i) 3 years after the relation‑back day; or

(ii) 12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

1. Additionally, the Court has power to make a shelf order extending time pursuant to s 588FF(3)(b) without specifying the particular transaction or transactions to which the shelf order would apply.[2] Such power is discretionary.
2. Although there were significant differences in emphasis, in broad terms, the principles concerning the operation of s 588FF(3) were not in dispute between the parties and are otherwise well known.
3. Section 588FF(3)(b) of the Act does not prescribe specific criteria for the exercise of the Court's discretion. Rather, the Court is tasked with determining what is fair and just to all the parties involved.
4. In so doing, and in exercising the discretion,[3] the Court should consider the following factors:

(a) the adequacy of the liquidator's explanation for the delay in commencing proceedings;

(b) a preliminary view of the merits of the proposed proceedings; and

(c) a balancing of the case for granting the extension against any actual prejudice to the respondents that is likely to arise from granting the extension.[4]

1. In Fortress Credit Corporation (Australia) Pty Ltd v Fletcher ('Fortress'),[5] the High Court considered that the discretion entailed:

... a balancing of the requirement of commercial certainty on the part of those who had past dealings with the corporation against the conflicting interest of the creditors of the company.[6]

1. With regard to the question of competing interests and of delay, and its relevance to assessing what is fair and reasonable in all the circumstances, Sifris J in Re Cohalan & Mitchell Roofing (in liq) ('Re Cohalan'),[7] reiterated the principles emerging from Re Clarecastle Pty Ltd (in liq) ('Clarecastle'),[8] stating:

(a) in assessing what is fair and just in all the circumstances, in the context of an extension application under s588FF(3)(b), regard must be had to first, the public policy underlying the imposition of limitation periods generally; and secondly, in relation to s588FF(3)(b) in particular;

(b) as to limitations generally, four broad rationales for the enactment of limitation periods can be identified: first, as time goes by, relevant evidence is likely to be lost; secondly, it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed; thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; fourthly, it is in the public interest requires that disputes be settled as quickly as possible;

(c) as to the particular context of s 588FF(3)(b):

(i) a broader public interest is served by allowing persons who have had dealings with companies which become insolvent to conduct their commercial affairs with a degree of certainty about their exposure to having past transactions unravelled and, to quote Spigelman CJ in BP Australia v Brown:

...(c)ommercial life must at some stage rule off the past and focus energy on the future... the commercial and economic life of the community is sometimes better served by allowing the loss to lie where it falls, so that all concerned may proceed with a high degree of certainty as to their financial position. The passage of time, even the passage of three years, can be seen to legitimately alter the balance of conflicting interests in this regard.

(ii) where conflicting interests have to be balanced, the eventual loss of the ability to make a relevant claim for a voidable transaction may be less important in favour of providing certainty to others who have had dealings with the company, including other creditors, so that they can proceed with their business affairs with an assurance that they are no longer at risk;

(iii) importantly, in Arthur Andersen Corporate Finance Pty Limited v Buzzle Operations (In Liq) Ipp JA expressed the view, that the deliberate decision to allow a writ to become stale after a limitation period had expired would be a powerful factor against extending time for service, noting that any prejudice suffered in such circumstances would be self- inflicted. Consistently with this notion, a seemingly deliberate decision on the part of a liquidator not to pursue, in a timely fashion, the investigations for which an extension is sought, is a decision of a similar kind, such that any prejudice occasioned might also be said to be self-inflicted.

1. The legislative policy upon which such provisions are based is to bring about reasonable and responsible conduct in liquidators and to require liquidators with good causes of action to pursue them with reasonable diligence. It does not imply that the Court should place any special barriers in the path of the liquidator who seeks an extension of time. It is not incompatible with the policy to allow the Court to extend the time for the liquidator to make an application to challenge a voidable transaction subject to the circumstances.[9]
2. In exercising its discretion, the Court is to balance the prejudice suffered by the defendants, or in this case, the Interested Parties, if the extension is granted against the prejudice to the creditors' interests if an extension is not granted.[10]
3. As to prejudice, it is accepted that prejudice to defendants, or in this case, the Interested Parties, does not lie merely in the actions which may be taken against them, but includes the absence of certainty in their affairs whilst the liquidator takes further time to decide whether or not to commence proceedings. McHugh J held in Brisbane South Regional Health Authority v Taylor ('Brisbane South Regional Health'):[11]

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.

1. Further, in the context of applications under s 588FF(3)(b), prejudice should be presumed and does not depend on evidence demonstrating specific prejudice. This 'presumptive prejudice' must be accorded specific weight to the expedition required in an application under s 588FF(1) of the Act.[12]

1. The evidence before me revealed the following uncontested factual matters.
2. The Caydon Companies formed part of a broader property development business that traded as the 'Caydon Property Group', under the ultimate control of Mr Russo ('Caydon Group').[13]
3. On 25 July 2022, the Liquidator was appointed as voluntary administrator of the second plaintiff, CPG and as liquidator of the remaining 28 companies which make up the Caydon Companies. On the same day, the Receivers were appointed as receivers and managers of CPG by the Security Trustee.
4. Between 27 July 2022 and 4 August 2022, the Liquidator issued notices to produce books under s 530B of the Act to Mr Russo. No books were produced in response to those notices.
5. On 29 July 2022, the Receivers were appointed as receivers and managers of the remaining 28 companies which make up the Caydon Companies, again by the Security Trustee. Following their appointment, the Receivers sought to complete various projects of the Caydon Companies on a 'business-as-usual' basis and to realise property that is subject to the securities granted to the OCP Financiers.
6. On 29 August 2022, the Liquidator was appointed as liquidator of CPG.
7. In July and August 2022, the Liquidator issued various requests to the Security Trustee under s 275 of the Personal Property Securities Act 2009 (Cth) in respect of the Caydon Companies ('PPSR Requests').
8. On 31 August 2022, the Security Trustee sent a letter to the Liquidator in response to the PPSR Requests.
9. On 21, 22 and 24 October 2022 and on 28 November 2022, the Liquidator issued various reports to creditors in accordance with s 70-40 of the Insolvency Practice Rules (Corporations) 2016 (Cth) ('Insolvency Practice Rules').
10. Between late 2022 and 2024, the Liquidator was contacted by Ms Michaloudakis, the solicitor for LU Simon Builders Pty Ltd ('LU Simon'), a putative creditor, who advised that 'there may be a number of causes of action available to the Liquidator in respect of antecedent transactions of the companies in the Caydon [Companies]'.[14]
11. On 6 April 2023, the Liquidator issued a notice to the Security Trustee pursuant to s 530B of the Act. The notice required delivery of certain books and records relating, in particular, to the Caydon Companies associated with a development in Moonee Ponds, Victoria, being one of various residential and commercial development projects in which the Caydon Companies were involved.
12. On 18 May 2023, the Security Trustee's solicitors responded to the Liquidator's s 530B notice providing the Liquidator with 33 documents ('s 530B documents').
13. On 4 May 2023, the Liquidator issued a second notice pursuant to s 530B of the Act to the Security Trustee seeking books and records. The Liquidator did not press production of documents pursuant to this notice.
14. In October 2023, limited funding was offered by LU Simon to the Liquidator. The Liquidator did not regard the proposal as satisfactory or likely to be met with the approval of the Court. No explanation was proffered by the Liquidator as to the quantum or terms on which the proposed funding was offered or the scope of the investigations sought by LU Simon.
15. On 31 January 2024, LU Simon applied to the Australian Securities and Investments Commission ('ASIC') for authority to undertake public examinations under Part 5.9 of the Act. On 3 July 2024, ASIC authorised LU Simon to do so.
16. On 10 September 2024, LU Simon applied to this Court in proceeding S ECI 2024 04760 ('Examination Proceeding') for orders under Part 5.9 of the Act for the public examinations of Mr Russo and Mr Hutton and for the production of books. Subsequently, on 30 October 2024, this Court made orders in the Examination Proceeding for the examination of Mr Russo and Mr Hutton and production of documents by them.
17. Between 20 December 2024 and 15 April 2025, Mr Hutton produced a substantial number of documents to LU Simon in the Examination Proceeding, with tranches produced on 20 December 2024, 24 January 2025, 28 February 2025, 6 March 2025, 11 March 2025, 4 April 2025, and 15 April 2025. Additionally, on 10 February 2025 and 11 March 2025, Mr Hutton was examined. At around the same time, Mr Russo was examined.
18. On 18 June 2025, LU Simon provided the Liquidator with approximately 2,100 files, being documents produced to it by the Receivers as part of the Examination Proceeding.
19. On 20 June 2025, the solicitors for the Liquidator and LU Simon exchanged correspondence regarding the possibility of making an application for an extension of time under s 588FF(3)(b) of the Act. Approximately one week after that correspondence was exchanged, Ms Michaloudakis, the solicitor for LU Simon, sent a letter to the Liquidator's solicitors setting out the views of LU Simon on the potential causes of action which may be available to the Liquidator ('LU Simon Letter').
20. On 26 July 2025, the originating process was filed, following which timetabling orders were made by me including orders directing that the Liquidator file any affidavit material in reply by 16 September 2025. While my orders permitted the filing of any reply affidavit, no further affidavit material was filed by the Liquidator beyond his affidavit filed 24 July 2025, being the only affidavit relied upon in support of this application.

1. The primary position of the Liquidator was that he was seeking a shelf order because he had been unable to review the material provided to him by LU Simon to determine what - if any - claims were in fact available to him. The Liquidator's evidence was that he had conducted the liquidation without adequate funding. He contended that the Court should make the orders sought because the prejudice to unsecured creditors of the Caydon Companies, specifically LU Simon who had incurred significant cost and effort in conducting the Examination Proceeding, outweighed any general prejudice that would flow from the orders sought.
2. More specifically, it was submitted on behalf of the Liquidator that, first, the delay in investigating whether to bring claims under Part 5.7B of the Act had been adequately explained, having regard to the following matters:

(a) the size and complexity of the external administration of the Caydon Companies. In making this submission, the Liquidator relied on the evidence of Mr Hutton which the Liquidator contended disclosed the following:

(i) that the Caydon Companies comprise many corporate entities that were involved in various medium to large scale residential and commercial development projects in Victoria, New South Wales and overseas;

(ii) that the Caydon Companies acted as trustees of various trusts;

(iii) at the time of the appointment of the external administrators, many projects were incomplete or partially unsold;

(iv) the Receivers continued to trade the business conducted by the Caydon Companies. The Liquidator's evidence was that he executed deed polls to facilitate the continued trade by the Receivers;

(v) as at 9 August 2022, the amount owed by the Caydon Companies to the OCP Financiers, was the aggregate of USD $106,822,781.68 and AUD $253,258,778.35; and

(vi) to date, the OCP Financiers have incurred over $10 million in the receivership of the Caydon Companies, which is ongoing;

(b) the Liquidator has the statutory protection under s 545 of the Act and is not liable to incur an expense in the winding up of the Caydon Companies unless there is sufficient available property. The Liquidator's evidence was that he had been hampered in the liquidation by a lack of funds; and

(c) it was not until June 2025 that the Liquidator was provided with the documents produced in the Examination Proceeding conducted by LU Simon. The Liquidator was not, it was submitted, able to review those documents, consider the merits of any claims and commence such claims before the statutory period in s 588FF(3)(a) of the Act was to expire.

1. Second, the Liquidator submitted that while delay is regrettable, neither LU Simon or the Liquidator should be criticised for the time taken to complete the public examinations. Some emphasis was placed on the timing of LU Simon applying for authorisation from ASIC, where it was submitted that this was done promptly once it was clear that no satisfactory funding arrangement could be reached between LU Simon and the Liquidator. The Liquidator further emphasised that LU Simon had sought authority from ASIC to make the application in January 2024, around 18 months before the relation back period was to expire. The Liquidator placed particular emphasis on the 5-month period it took for ASIC to authorise LU Simon to make its application as being explicable of any delay.
2. Relying on the decision of Lee J in Parker v Worldwide Specialty Property Services Pty Limited (in liq) ('Re Parker')[15], counsel for the Liquidator submitted that the existence of the delay is only part of the picture, and an overall evaluative assessment of what is fair and just in all the circumstances must take into account, amongst other things, the effect of the delay and the particular circumstances of the case, and it must be considered contextually. When considered contextually, in light of the chronological events, counsel for the Liquidator submitted that in the first 18 months of the administration, the Liquidator was without funds. Counsel conceded that the Court may form the view that the Liquidator's explanation as to the delay in the first 18 months was inadequate but that this would not be fatal to the application.[16] As to the second 18-month period, counsel reiterated the steps taken by LU Simon, including the 5-month delay by ASIC in issuing authorisation to LU Simon to conduct the examinations, as being an adequate explanation for any suggestion of delay.[17]
3. Third, counsel for the Liquidator submitted that as a shelf order was sought, it is not necessary for the Court to conduct a preliminary inquiry into the merits of any proceedings that may be commenced. The Liquidator conceded that he had not yet formed a view on the strengths or weaknesses of the potential claims identified in the LU Simon Letter. His application was made on the basis that he sought time to consider the material provided by LU Simon and make that assessment.[18] In relation to the content of the LU Simon Letter, the Liquidator's counsel, surprisingly conceded, that he was 'not sure that [he] fully understood the claims as they [were] articulated in the letter...',[19] and that some of the purported claims identified in the LU Simon Letter were not claims 'which one would expect would fall under Part 5.7B of the Act'.[20]
4. Relying on BP Australia Limited v Brown ('BP Australia'),[21] counsel for the Liquidator submitted that there was no need to identify potential claims in order for the Court to grant a shelf order.[22] In BP Australia, Spigelman CJ held that:

The power to extend the time limit for commencing proceedings is intended to provide for the circumstance in which a liquidator is not in a position to commence proceedings within three years of the relation-back day, for whatever reason, subject to the assessment of the court of all relevant circumstances, including the liquidator's conduct. It is not difficult to envisage a circumstance in which a liquidator is still ascertaining the identity of the recipients of benefits under possible voidable transactions and cannot give the court an indication of the creditors to be targeted. The power should be broad enough to allow, in those circumstances, for an order granting an extension of time in general terms.

The requirement of commercial certainty on the part of those who have had past dealings with the corporation is to be balanced against the conflicting interest of the creditors of the company. The court, through the discretions it exercises under s 588FF(3) and s 588FF(1), is in a position to control unwarranted delay by liquidators. Subject to reasonable expedition on the part of a liquidator, and to adopt the reasoning of Doyle CJ in Pegulan Floor Coverings Pty Ltd v Carter (1997) 24 ACSR 651 at 659; 15 ACLC 1293 at 1300, the creditors are entitled to: "... the benefit of having the affairs of an insolvent company properly investigated and administered in an orderly fashion in terms of the provisions of the law".[23]

1. Also relying on the decision of Lee J in Re Parker, counsel for the Liquidator submitted that a preliminary inquiry into the merits is not always necessary, particularly where a liquidator's purpose in seeking an extension was to simply put the liquidator in a position to decide whether or not to bring a proceeding.[24] Counsel for the Liquidator further submitted that s 588FF(3)(b) did not detail any specific criteria for the exercise of the discretion and that the task for the Court was essentially a balancing exercise of what is 'fair and just in all of the circumstances'.[25]
2. Fourth_,_ as to prejudice and the balancing exercise to be undertaken by the Court:

(a) the Liquidator's counsel properly acknowledged that if an order were made under s 588FF(3)(b) of the Act, the Interested Parties would suffer the ordinary prejudice caused by delay.[26] However, it was submitted that that the affidavits filed by the Interested Parties did not identify any special or specific prejudice that would be suffered if the Court were to make the orders sought;[27]

(b) in response to an observation from the Court that there was no agreed funding in place for the Liquidator going forward, the Liquidator's counsel submitted that if the shelf order was made and it then transpired that the Liquidator was without funds to pursue any claims, no prejudice would be suffered by the Interested Parties as no claims would be commenced against them;[28]

(c) counsel for the Liquidator further submitted that the general body of unsecured creditors - and particularly LU Simon - would suffer real prejudice if the orders sought by the Liquidator are not made. It was contended that LU Simon had incurred significant costs in running the Examination Proceeding and gathering material in support of claims that it believes are available to the Liquidator to pursue and it did so with an expectation that, at the very least, they would be considered by the Liquidator. If the Court does not make the orders sought, it was submitted that the efforts taken by LU Simon would be wasted (at least insofar as they support claims under Part 5.7B).

1. The Interested Parties opposed the relief sought on the following three bases:

(a) first, the Liquidator has not, himself, identified or adduced evidence of facts, matters or circumstances that warrant the granting of the relief, where the application is premised upon untested 'contentions' made by a single potential creditor, LU Simon, that did not provide the Liquidator with funding or sufficient time such as may have equipped him to assess, in an informed way, whether there was a proper basis to seek the relief;

(b) second, the relief seeks a shelf order which, in the circumstances, is not justified; and

(c) third, the delay in making the application has been extreme and has not been adequately explained, which delay exacerbates the prejudice to the Interested Parties.

1. As to the application generally, the Interested Parties' counsel acknowledged that, more often than not, a liquidator seeking an extension of time, secures that relief. However, in this instance, it was submitted that this application was an outlier such that the relief should not be granted.
2. Addressing the first ground, the Interested Parties' counsel submitted that there was no proper evidentiary foundation to the application. The onus is on the liquidator to show why the time limitation prescribed by the statute should not apply. A necessary premise is that the Liquidator has identified potential claims that warrant the Court extending the time limit in s 588FF(3) of the Act. It was contended that the Liquidator had not done so.
3. Rather than stating that he had identified potential claims that ought to be the subject of the relief sought, the Liquidator, it was submitted, did no more than refer to 'contentions' made by another party. In his affidavit,[29] the Liquidator adopted the careful formulation of the phrase 'LU Simon contends', and did not endorse any of LU Simon's contentions when referring to potential claims that may be available to the Liquidator. Those contentions have apparently not been critically assessed by the Liquidator, nor has evidence been adduced from LU Simon regarding the cogency of those contentions. Moreover, the Liquidator did not, in his evidence, actually state that the claims identified by LU Simon have sufficient cogency to warrant further investigation. Accordingly, the Interested Parties' primary point was that the onus had not been discharged as the Court did not have before it, evidence from the Liquidator about potential claims that warrant being litigated or being further investigated.
4. Counsel for the Interested Parties noted that the Liquidator's counsel had relied on the remarks of Finn J in Taylor v Woden Constructions Pty Ltd[30] where his Honour held that 'a merits inquiry, even of a preliminary character, may not always be necessary'. However, counsel for the Interested Parties submitted that the additional remarks of Finn J were particularly apposite in this case:

Where the liquidator is not in the position to consider the merits but has proper grounds for inquiring into the matter because of suspicion it invites (or that is cast on it) or of the explanation it requires, then provided he can satisfactorily explain his delay in inquiring sufficiently into the matter, he should not be closed out from an extension because he is unable to say he has a meritorious claim. In some instances, as here, it will be sufficient if he can say "I do not know if I do, but there is reason to inquire".[31]

1. In his evidence, the Liquidator did not depose to there being a proper reason to inquire. Rather, his affidavit is cast, carefully, on the basis that someone else, namely LU Simon, contended that there are numerous claims that may be available to the Liquidator.[32] Furthermore, counsel for the Interested Parties noted that approximately eleven weeks had passed between the filing of the Liquidator's application and the hearing date. During that time, the Liquidator could have made an assessment of the content of the LU Simon Letter so as to be in a position to inform the Court that there is reason to inquire, as distinct from the current state of the evidence, which it was submitted, rose no higher than the Liquidator deposing that 'LU Simon contends'.[33]
2. The Interested Parties' counsel further submitted that the facts of this application were analogous to those in Re Australian Hotel Acquisition (in Liquidation) ('Re Australian Hotel')[34] where the Court observed that:

The evidence of Mr Lombe is that no particular transaction has been identified which could be an insolvent transaction. However, if an extension order is made, investigation of dealings between the companies may identify some such transaction and now that the receivers have retired and some of their material handed over, this material may provide evidence to indicate some voidable transaction. The purpose of this evidence is to make it clear that an extension of time is not sought with a particular claim or possible defendant in mind, but rather a general extension is sought because no relevant investigation has been carried out up to the present time. The more important reasons for this are said to be a lack of funds and the presence of the receivers.[35]

1. In Re Australian Hotel, the liquidator's evidence was recorded as being to the following effect:

[83] I have received a number of volumes of material relating to the circumstances and events leading up to the appointment of the CBA Receivers. Although Deloitte and Sparke Helmore have reviewed those volumes for the purpose of the liquidation of the Companies (in particular, for the purpose of preparing reports to creditors), I have not yet undertaken a detailed consideration of those matters or sought legal advice in relation to them. Accordingly, I have not yet formed a view as to whether those events may give rise to a claim against any person or entity involved in those circumstances and events, whether the Companies have suffered loss or damage as a consequence, the further evidence required, the prospects of success and the like.[36]

1. In assessing the liquidator's evidence, and ultimately refusing the extension of time sought, the Court observed in Re Australian Hotel that:

This seems to be rather equivocal and it should be borne in mind that the originating process was filed on 26 August 2011. If the liquidator wished to strengthen his case he has had two months to consider the material to which he refers to in paragraph 83...

The question to ask is whether it is fair and just in all the circumstances to grant an extension of time. The applicant must establish that it is. Sufficient reason must be shown for failure to investigate up to the present time...[37]

1. Counsel for the Interested Parties submitted that the Liquidator had effectively outsourced the analysis to LU Simon and committed to a particular course prior to having the benefit of the LU Simon Letter. On 20 June 2025, the solicitors for the Liquidator and LU Simon exchanged correspondence regarding the possibility of making an application for an extension of time under s 588FF(3)(b) of the Act. One week later, the LU Simon Letter was provided. Accordingly, at the time the application for an extension was being contemplated by the Liquidator, he was doing so 'blind' - he had outsourced the analysis to LU Simon and had committed to a particular course, namely seeking an extension, when there was no premise for such an application as the LU Simon Letter followed one week later.[38]
2. It was submitted that the absence, in the three-year period between the Liquidator being appointed and the making of this application, of meaningful identification or assessment of the potential claims was a product of the manner in which the Liquidator and LU Simon had conducted themselves. It was contended that the Liquidator was a 'do little liquidator'[39] who had, in effect, 'outsourced'[40] his statutory function at the behest of a single potential creditor. That party, LU Simon, was apparently unwilling to fund the Liquidator on acceptable terms to conduct investigations, preferring to conduct its own investigations and then to make contentions about the product of those investigations at a time and in a manner that did not afford the Liquidator an opportunity to undertake any meaningful assessment of their merit. To that end, it was submitted that any prejudice was self-inflicted.
3. As to the Liquidator's position that he had been 'hampered by a lack of funds', the Interested Parties submitted that the Liquidator's efforts to secure funding to overcome that position appeared to have been tokenistic, comprising no more than formulaic statements in reports to creditors. The Interested Parties noted that whilst the Liquidator referred to receipt of a funding proposal in October 2023 from LU Simon, he provided no details of that proposal, nor why he did not regard it as 'satisfactory or likely to be approved by the Court'. In any event, it was submitted that s 588FF(3)(b) of the Act did not distinguish been funded and unfunded liquidations. As Martin J observed in Baskerville v Baskerville,[41] a lack of funding 'cannot be other than a factor to consider'[42].
4. Rather than fund the Liquidator on mutually acceptable terms, LU Simon elected to conduct its own investigations (including by conducting public examinations), in a manner that apparently excluded the Liquidator and left him with an information deficit where he was apparently not even told about the Examination Proceeding until November 2024.
5. Counsel for the Interested Parties drew the Court's attention to the Liquidator's affidavit sworn in this proceeding together with an earlier affidavit sworn by the Liquidator in the Examination Proceeding. In his affidavit before me, the Liquidator deposed that:

[20] On 31 January 2024, LU Simon Builders applied to ASIC for authority to undertake public examinations under Division 1 of Part 5.9 of the Act in connection with the Caydon group of companies as an eligible applicant.

[21] On 3 July 2024, ASIC authorised LU Simon Builders to apply to Court to conduct public examinations under Division 1 of Part 5.9 of the Act in connection with the Caydon group of companies. I supported this process on the basis that LU Simon agreed that I would receive the benefit of the outcome of the investigations (my emphasis added)

[22] On 10 September 2024, LU Simon Builders applied to the Supreme Court of Victoria for orders under Division 1 of Part 5.9 for the public examination of Mr Russo and Mr Hutton and for the production of books.

1. Conversely, in his affidavit sworn on 4 February 2025 in the Examination Proceeding,[43] the Liquidator deposed that:

[5] On or about 8 November 2024 I became aware of the Originating Process ("OP") which had been issued by LU. Simon Builders Pty Ltd (ACN 006 137 220) ("LU Simon").

[6] I only became aware of the application after reviewing an email which was sent to me by LU Simon's solicitors dated 1 November 2024 which came to my attention on 8 November 2024.

[7] When I became aware I instructed my lawyers to request a copy of the OP and any supporting affidavit material so I could ascertain what the application was and on what basis it had been issued given my role as liquidator.

1. Counsel for the Interested Parties submitted that the Liquidator's evidence of his awareness of the Examination Proceeding was inconsistent.
2. Counsel for the Interested Parties, acknowledging that the Liquidator has the protection afforded by s 545 of the Act, observed that the Liquidator had candidly accepted that he did not have 'sufficient time or funding to review the material provided to me by LU Simon so as to form [his] own view on the potential claims identified by LU Simon to date'. However, that acknowledgment, it was submitted, was made in the context where the evidence disclosed that the Liquidator had made requests of the Receivers for documents in April and May 2023, which requests were answered. Additional documents were then produced by the Receivers to the Court as part of the examination process. Counsel for the Interested Parties noted that in his Affidavit in the Examination Proceeding, the Liquidator also deposed that:

[10] I refer to paragraphs 10 to 12 of Mr Whittle's affidavit and the correspondence at pages 26 to 30 in the exhibit which refer to requests for documents made by me as liquidator of Mr Caddy and Mr Hutton in or about May 2023. I confirm I made requests for documents of Mr Caddy and Mr Hutton after I was requested by LU. Simon's lawyers to do so and provided the necessary funding to make that request. A copy of the first notice I issued dated 6 April 2023 is at pages 1 to 7 of MKH-1.

[11] In relation to the second notice referred to in the Affidavit of Mr Whittle I did issue a second notice to the Receivers of One Corporate Trust Services Limited dated 4 May 2023 seeking books and records. A copy of that second notice dated 4 May 2023 is at pages 8 to 10 of MKH-1.

[12] I refer to paragraph 17 of Mr Whittle's Affidavit and in particular to the exhibit at page 18 to 23 of MCW-1. That is a letter which has been written by Ms Michaloudakis to Mr Whittle. At paragraph (c) of the letter Ms Michaloudakis states:

We asked the liquidator to undertake examinations to investigate concerns about the validity of securities and other matters. The liquidator's reluctance to undertake examinations is what led our client to apply to ASIC for eligible applicant status to undertake the examinations itself

[13] I am conscious that in my role as liquidator I have a duty to ensure that I investigate any antecedent transactions which may be able to be prosecuted in order to both report any conduct which is in breach of the Corporations Act (Cth) 2001 or any other legislation and to ensure that creditors recover whatever assets are available to them to satisfy the debt owing to them.

[14] I also am aware that I have an over-riding obligation to ensure that I do not pursue any claim or antecedent transactions which may not provide a return to creditors.

[15] I am conscious that I don't wish to interfere or intervene or interfere in the examination process which is being conducted.

1. Despite his prior affidavit sworn in the Examination Proceeding, counsel for the Interested Parties submitted that in this application the Liquidator had not identified what documents he was provided with by the Receivers in 2023 (whether by the PPSR Request, the s 530B document production or otherwise) or whether he had made any assessment of their content and that the onus was with the Liquidator to explain what he had done.
2. Additionally, despite LU Simon being in receipt of a tranche of documents from the Receivers in the Examination Proceeding in late January 2025 and a further tranche in early April 2025, LU Simon waited until 18 June 2025 (approximately one month prior to the expiration of the limitation period in s 588FF(3)(a) of the Act) before it produced to the Liquidator around 2,100 files and, on 27 June 2025, sent the LU Simon Letter setting out LU Simon's 'views...on the potential causes of action which may be available'. Counsel for the Interested Parties submitted that LU Simon elected to go it alone and then belatedly engaged in a data dump on the Liquidator when it knew or ought to have known that the Liquidator had neither the time nor the funding available to critically assess the documents provided.
3. It was further submitted that the Liquidator's evidence as to how the proposed extension period would be utilised was unpersuasive, where the Liquidator deposed to his belief that an extension of one year would allow 'an opportunity to negotiate further funding to review the material gathered by LU Simon...provided to [him] and to obtain legal advice on the proposed claims'. Given the conduct of the liquidation of the Caydon Companies to date, counsel for the Interested Parties submitted that the Liquidator's evidence was speculation that ought be regarded with scepticism.
4. As to the second ground, the Interested Parties submitted, relying on Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher[44] and BP Australia that one of the matters that ordinarily informs the Court's consideration of an application such as this is the liquidator's explanation for the delay resulting in the proposed proceedings not having been commenced within the three-year period provided for by the statute.
5. In Clarecastle, Ward J (as her Honour then was) said the following:

Of relevance, therefore, in considering the discretion under s 588FF(3)(b), is whether the liquidators, who seek the exercise of the discretion in their favour, have "diligently pursued the object of disposing of the proceedings in a timely way"; "used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay"; and "reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination"...[45]

1. When considering the delay in this case, the Interested Parties submitted that the lateness of the application, relative to the expiration of the period under s 588FF(3)(a) of the Act, is notable. Without an extension, the Liquidator was required to make any applications for relief under s 588FF(1) by 25 July 2025. The application for the extension was not filed until 24 July 2025.
2. In Re Cohalan, Sifris J stated as follows:

...in my opinion, it is generally not acceptable or desirable for applications of this kind to be made a day before the limitation period ends. Liquidators are required to be mindful of limitation periods and adequately monitor the pace of investigations and the requirements of any claim. They should accordingly come to court at the earliest possible opportunity.[46]

1. In the present case, the Liquidator has held office for the entirety of the three-year period that expired the day after he filed this application. The conduct of the liquidation to date, it was submitted, suggested that the Liquidator took no steps whatsoever in 2023 in connection with investigating the type of claims that are now sought to be explored by securing the extension sought.
2. As in Clarecastle, it was contended there was a seemingly deliberate decision on the part of the Liquidator not to pursue the investigations (for which an extension was now belatedly sought) in a timely fashion, such that any resulting prejudice might be regarded as 'self-inflicted'. The Security Trustee provided documents to the Liquidator in August 2022 and July 2023 in response to requests made by the Liquidator, including several documents that appear to be addressed in the LU Simon Letter. The Liquidator gave no evidence of what, if anything, he did upon receipt of those documents. Counsel for the Interested Parties submitted that such has been the delay that the Liquidator seeks the extension in circumstances where, three years after being appointed, he is not able to offer even a preliminary view about the claims that would be the subject of the extension period. Consistently with the observation in Re Cohalan, an extension in those circumstances should be refused.
3. As to whether a shelf order ought to be made, the Interested Parties submitted that the order sought by the Liquidator did not identify the particular claims or transactions in respect of which the extension was to be granted, with the proposed relief being 'any application under s 588FF(1) in respect of the liquidation of the second to thirtieth plaintiffs'. The Interested Parties recognised that the Court has power to make what is commonly known as a 'shelf order', extending time without specifying the particular transaction or transactions to which it would apply.[47] However, in exercising its discretion as to whether such an order should be made, the Interested Parties submitted that the Court must consider what is fair and just to all parties involved.35 They contended that the Liquidator's' evidence and submissions did not address why a shelf order was necessary or appropriate in this instance.
4. Prior to making the application for an extension, the Liquidator had almost the entirety of the three-year statutory period in which to investigate the prospect of claims under s 588FF(1) of the Act. The Interested Parties submitted that the position in the present case is analogous to that described by Lee J in Re Parker in the following terms, as a basis for refusing a shelf order under s 588FF(3)(b):

In my view, there has been more than adequate time to identify, even in a very preliminary way, those transactions which may be subject to investigation and potential action. Given the delay in this case and the current state of investigations, if an order is to be made it is just and fair that it be calibrated to the particular transactions that have been identified by Mr Parker [the liquidator] and in respect of which Mr Parker has indicated, in his evidence, that his investigations are ongoing.[48]

1. As to the third ground, namely prejudice, the Interested Parties submitted that delay in the commencement of proceedings, consequent upon an extension, will be prejudicial to the defendants to those proceedings.
2. In Re Parker, Lee J made the following observation regarding the potential prejudicial effect of delay:

...speaking generally, the question of delay primarily has importance in these applications by reason of: first, considering whether it is fair and just to visit upon a possible defendant a case where there may be some prejudice caused by the passage of time and; secondly, the desirability of allowing persons who have had dealings with companies which become insolvent to conduct their commercial affairs with a degree of certainty about their exposure without past transactions being stirred up and possibly being disturbed when they otherwise could legitimately be regarded as being settled.[49]

1. The Interested Parties also relied on the decision of Lundberg J in Mohen as liquidator of MBP (WA) Pty Ltd,[50] where his Honour held:

As to the question of prejudice, I am conscious that an extension of time may, inferentially at least, cause prejudice to the Interested Persons and to others in the sense that they remain exposed to suit for a further period. The principle of general or presumptive prejudice reflects the adverse effect of the effluxion of time on a putative defendant's ability to prepare their defences. The Interested Persons are facing potential legal proceedings that would require an examination of their conduct and various transactions that allegedly took place from about 2019 through to around May 2020.

This general prejudice to the Interested Persons cannot be ignored by the court. Delay leads to prejudice and that prejudice will be heightened where the matter involves complicated transactions which require examination many years later. There is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion. Provisions such as s 588FF(3)(a) of the Act, as with statutory limitation periods generally, represent a judgment by the legislature that a right of a party to pursue a cause of action is not unlimited.[51]

1. In the present case, the Interested Parties submitted that they will be prejudiced by the granting of the extension sought to the extent that it relates to potential claims against them. That, it was submitted, is a further consideration that weighs in favour of the application being refused.

1. The Liquidator was appointed voluntary administrator of CPG and liquidator of the Caydon Companies on 25 July 2022. The Liquidator was required to commence any proceedings under 588FF(1) of the Act by 25 July 2025, that is, three years after the relation back day. The originating process was filed on 24 July 2025, that is, three years less one day later.
2. On an application such as this, the role of the Court is to assess what is fair and just in all the circumstances, mindful of the public policy underlying the imposition of limitation periods. What is fair and reasonable in the circumstances, such as to justify an extension of the time period, requires a broader consideration of what transpired during the entire limitation period.[52] As to the question of delay, it is accepted that delay covers the whole of the liquidation.[53]
3. For the reasons that follow, in my view the delay is too long, unreasonable in the circumstances and not sufficiently explained.
4. In submissions, counsel for the Liquidator suggested that there were two relevant time periods that the Court should consider in relation to delay - the first 18-month period in relation to which it was submitted the Liquidator should not be criticised as he was hampered by a lack of funds and the second 18-month period in respect of which the Liquidator, still hampered by a lack of funds, sought to attribute any delay to the time taken by ASIC to approve LU Simon as an eligible applicant and for the examinations to take place.[54] Respectfully, I reject that submission. The evidence does not establish a sufficient basis for justifiable delay. In fact, it does the opposite.
5. The Liquidator has had substantial time to bring voidable transaction claims against the Interested Parties despite what is said in his affidavit. The Liquidator was first notified about potential causes of action available in respect of antecedent transactions of the Caydon Group between late 2022 and 2024. Leaving aside the deliberately vague phraseology and generalised time period expressed in the Liquidator's Affidavit, it must be the case that the first notification occurred by late 2022. That contact was from Ms Michaloudakis, LU Simon's solicitor. No evidence was led before me as to what potential antecedent claims were identified by Ms Michaloudakis or what the Liquidator did upon being so informed.

1. The chronology of events reveals that on 3 August 2022, the Liquidator issued notices to creditors in respect of various entities within the Caydon Group.
2. On 18 August 2022, the Liquidator (at the time, in his capacity as administrator) issued his report to the creditors of CPG in accordance with s 75-225 of the Insolvency Practice Rules ('CPG Report to Creditors'). Section 8.17 of the CPG Report to Creditors addressed funding requirements. The Liquidator (at that time, the administrator) wrote that 'creditors interested in funding any action(s) should forward their written funding proposals or request for further information to [his] office as soon as possible'.
3. On 21, 22 and 24 October 2022, the Liquidator issued various reports to creditors in accordance with s 70-40 of the Insolvency Practice Rules. Section 7 of the report to creditors in respect of the fifteenth plaintiff, MP Commercial No 3 Pty Ltd (ACN 605 707 800) (In Liquidation) (Receivers and Managers Appointed) ('MP Commercial No 3 Report to Creditors'), addressed funding and assignment options. The Liquidator wrote in the MP Commercial No 3 Report to Creditors that 'creditors are requested to put in writing, their litigation or investigative funding proposals to pursue any of the below-mentioned actions/matters...'. The evidence before me disclosed that there were various other reports to creditors of the Caydon Group issued by the Liquidator which included similar statements.
4. On 28 November 2022, the Liquidator issued another report to creditors in respect of CPG in accordance with s 70-40 of the Insolvency Practice Rules. It included a similar statement regarding funding and assignment options as the MP Commercial No 3 Report to Creditors (and the Liquidator's various other reports to creditors).
5. The Liquidator otherwise said that following his contact with Ms Michaloudakis between late 2022 and 2024, he undertook investigations to ascertain whether there were any creditors willing to fund him to carry out further investigations. No evidence was led before me as to what investigations were undertaken or whether those investigations constituted anything other than the requests contained in the various reports to creditors to which I have referred. The Liquidator's evidence went no further than a proposal was received from LU Simon in October 2023 which the Liquidator considered was unsatisfactory or unlikely to be approved by the Court. Having regard to the Liquidator's evidence, I accept the submission from counsel for the Interested Parties that it seems that the Liquidator did not seek any external litigation funding nor did he take any further steps to obtain funding after October 2023.
6. The Liquidator's evidence before me was that, due to a lack of funding, he was unable to compel the production of books and records, conduct examinations, or investigate the potential claims identified to him beyond the preliminary steps taken in 2022.[55] However, that evidence must be considered in light of the unchallenged evidence of Mr Hutton who deposes that the Liquidator issued notices pursuant to s 530B of the Act on 6 April 2023 and 4 May 2023 and that in response, on 18 May 2023, the Security Trustee's solicitors provided the s 530B documents which included:

(a) a loan note subscription agreement (being the document pursuant to which the OCP Financiers advanced funds to the Caydon Group) and every subsequent iteration of that agreement ('LNSA');

(b) a security trust deed, pursuant to which the Security Trustee was appointed to act as trustee of a trust, namely, the Caydon security trust;

(c) various securities granted by entities associated with a property development in Moonee Ponds ('Moonee Ponds Development'); and

(d) various other documents relevant to the finance arrangements in respect of the Moonee Ponds Development.

1. The s 530B documents provided by the Security Trustee to the Liquidator in May 2023 were in addition to those provided to the Liquidator in August 2022 in response to the PPSR Request. As deposed to by Mr Hutton, in August 2022, the Security Trustee provided the Liquidator with a copy of each of the security agreements or related documents to which it referred (comprising 17 documents, in total) including:

(a) a general security deed dated 1 July 2019;

(b) a general security deed dated 30 June 2022;

(c) in relation to the mortgage granted to the Security Trustee by the Caydon Companies which owned the land subject to the Moonee Ponds Development:

(i) the memorandum of common provisions relating to the mortgage over the Moonee Ponds Development; and

(ii) an electronic instrument statement relating to the mortgage, as it had been registered on 26 May 2022.

1. Before me, there was no attempt by the Liquidator to identify the documents provided to him in answer to the PPSR Request or the s 530B notice, nor any evidence as to what, if anything, he did with the information provided. Further, it is unclear whether any of the records provided by the Security Trustee in response to the PPSR Request or the s 530B notice were the same as those that were produced in the Examination Proceeding. Indeed, before me, there was no index as to the composition of the 2100 files provided to the Liquidator by LU Simon. Each of these is a relevant matter when the Liquidator asks the Court to accept that he has recently been provided with 2100 files and he uses the late provision of material as a basis for seeking the extension. Moreover, it is a relevant matter when a number of the security documents previously provided by the Security Trustee are referenced in the LU Simon Letter,[56] and the Liquidator says that he has not had sufficient time to review the LU Simon Letter and form his own opinion. The LU Simon Letter asserts that entry into various 'securities' was 'uncommercial within the meaning of s 588FB' of the Act or that loans and/or mortgages given under the LSNA are 'liable to be set aside under Part 5.7B of the Act'. Those are the same securities for which the Liquidator has previously been provided with documents by the Security Trustee.
2. The Hutton Affidavit also disclosed that on 29 June 2023 the Receivers, together with various Caydon Group entities to which they were appointed, made an application in the Federal Court of Australia pursuant to s 588FM of the Act, seeking orders fixing a later time for the purpose of s 588FL(2)(b)(iv) of the Act in respect of any security interests created in connection with certain entities entering into a general security deed dated 19 June 2023. The Interested Parties' evidence before me was that the s 588FM application was made to ensure that certain Caydon Group entities in receivership could grant security to support a refinance of an existing facility provided to certain entities within the Caydon Group by Qualitas and secured by unsold lots, or 'residual stock' ('Qualitas Residual Stock Facility') on better commercial terms such as more favourable interest rates. The affidavit sworn by Mr Hutton in the Federal Court proceeding contained an explanation of the finance and security arrangements relating to a sub-set of the Caydon Group entities.
3. The s 588FM application proceeded on 11 July 2023. The Liquidator, having been served with the application and Mr Hutton's affidavit, did not seek to be heard. Anderson J made orders substantially in the form sought by the Receivers on 11 July 2023 and published reasons on 14 July 2023 in Hutton, in the matter of Caydon Flemington Pty Ltd (Receivers and Managers appointed) (In Liq).[57]
4. Anderson J's orders included an order in the following terms:

The First Plaintiffs inform the creditors of the Second to Seventh Plaintiffs of the making of these orders by taking all reasonable steps to procure that the liquidator appointed to the Second to Seventh Plaintiffs, Malcolm Kimbal Howell (Liquidator), provide such notice in a form acceptable to the First Plaintiffs and the Liquidator, such notice to be provided within seven days after the making of these orders.

1. On 17 July 2023, the Liquidator issued a notice to creditors which summarised Anderson J's orders.
2. Before me, the Liquidator's evidence made no mention of the existence of the s 588FM application nor did the Liquidator make any attempt to deal with or explain what he had done with the information and documents provided to him having been served with that application. This is relevant in circumstances where the Liquidator says he requires a shelf order for one year as he has not had sufficient time to review the material provided by LU Simon so as to form his own view on the potential claims identified by LU Simon. One of the potential claims identified in the LU Simon Letter concerns the Qualitas Residual Stock Facility which was the subject of the Federal Court application before Anderson J.
3. Having regard to the evidence, by the end of the first 18-month period, it is clear that the Liquidator:

(a) had been notified of the potential for antecedent claims by LU Simon's solicitors;

(b) had been provided with substantial documents from the Interested Parties either in response to the PPSR Requests, notices under s 530B of the Act and/or through the s 588FM application;

(c) had done no investigation in the financial affairs of the Caydon Companies beyond the preliminary statutory obligations imposed on him as is recorded in the reports to creditors exhibited to the affidavits of the Interested Parties;

(d) reported to creditors in November 2022, based on the directors' Report on Company Activities ('ROCAP') for CPG that an amount of $444,040,830.92 was outstanding to the unsecured creditors of CPG as at the date of appointment and that it was estimated creditor claims totalled $455,024,289.70; and

(e) had made no attempt to obtain external litigation funding other than as set out in the reports to creditors or via the one unsatisfactory proposal from LU Simon that the Liquidator did not pursue.

1. In the circumstances, I regard the Liquidator's evidence as unconvincing and I do not consider that he has sufficiently explained the delay in the first 18-month period.

1. Turning then to the second 18 month-period in the liquidation, counsel for the Liquidator submitted that in January 2024, LU Simon took carriage of the examinations and information gathering and that the Liquidator supported this process. Having regard to the inconsistent evidence set out in paragraphs 58, 59 and 61 above, I reject both the Liquidator's submission and his evidence. The Liquidator's affidavit sworn in the Examination Proceeding makes plain that he did not know what steps (if any) LU Simon had taken in respect of any examinations until 8 November 2024. That leaves the Liquidator's conduct between January 2024 and November 2024 entirely without explanation.
2. In further considering the second 18-month period, in his evidence, the Liquidator candidly acknowledged that he did not have 'sufficient time or funding to review the material provided to me by LU Simon so as to form [his] own view on the potential claims identified by LU Simon to date'. However, before me there was no explanation as to why, when the examinations were conducted in April 2025, the Liquidator was not furnished with material arising from the examinations until June 2025. The evidence clearly demonstrated that there had been multiple tranches of documents provided by the Receivers to LU Simon from December 2024 to April 2025. Yet there was no explanation as to whether:

(a) these documents comprised part of the 2100 files and, if they did, why they were provided effectively on the eve of the expiration of the limitation period; and/or

(b) whether the Liquidator, having become aware of the Examination Proceeding in late 2024, asked LU Simon to provide him with a copy of any documents produced and, if so, when he made that request.

1. Further, the evidence also disclosed that it was not until 13 June 2025 that LU Simon sought the Receivers' consent to provide a copy of the documents produced in the Examination Proceeding to the Liquidator. I note that the Receivers' consent was forthcoming and provided promptly on 16 June 2025.
2. Additionally, of the 2100 files the Liquidator says he received from LU Simon, there was no index to those documents in evidence before the Court nor was there any explanation as to their content or size - whether each file comprised a single document and whether each document was a single page or hundreds of pages long. Accordingly, the Court was not in any position to assess whether the Liquidator might have been able, for example, to review a component of the files prior to making this application. Further, and as noted, there was no basis upon which the Court could form any view as to whether the 2100 files included those documents previously furnished in answer to the PPSR Requests or s 530B notice.
3. I otherwise also reject the submission by the Liquidator's counsel that any delay by the Liquidator is also attributable to the complexity of administration. Whilst, having regard to the evidence of the Interested Parties, it is undoubtedly the case that the receiverships are complex, I do not accept that this applies to the liquidations. The submission by counsel for the Liquidator is not supported by any evidence from the Liquidator. Moreover, the Liquidator does not depose that the apparent complexity of the liquidations has hindered him from undertaking investigations such that it explains his inactivity or delay. In fact, his sworn evidence is to the effect that he has not conducted investigations or a detailed assessment of the financial position of the Caydon Companies.[58]
4. A lack of funds in the liquidation is a practical consideration that has some weight. However, it is well accepted that an inability or difficulty in obtaining litigation funding is not in and of itself a good reason or excuse for delay in commencing proceedings.[59] The fact that the steps that the Liquidator now wishes to take could have been undertaken before the expiry of the limitation period is a relevant factor, although it is not a determinative reason in and of itself not to extend the limitation period - it depends on the balancing exercise of the Court. The real issue for the Court is whether the conduct of the liquidator, as to matters of timing, reflects sound judgment.[60] Ultimately, the decision in each case must depend on the facts and circumstances of the case involving a consideration, assessment and weighting of the relevant factors.
5. The significance of the delay in the present case and of the Liquidator's explanations for his inaction must be assessed and weighed in the balance with the other relevant factors - namely, the prospects of the Liquidator's claims and prejudice to the affected parties (if any).
6. I consider that the delay is too long. There is simply no adequate explanation as to why the Examination Proceeding was not commenced earlier particularly when antecedent transactions were apparently identified by LU Simon's solicitor by late 2022, within the first sixth-month period of the external administration. Moreover, the Liquidator's explanation as to what he did with the various tranches of information he received over the three years of the administration (either in response to the PPSR Requests, the s 530B notices, the s 588FM application in the Federal Court of Australia or the Examination Proceeding) is entirely lacking. The evidence does not establish a sufficient basis for justifiable delay. Further, the failure to obtain funding is not a sufficient reason for delay.

1. This is not a case in which a detailed review of the merits of any proposed proceeding is required. This is because the basis of the Liquidator's application is that he has not yet even considered the content of the LU Simon Letter which identifies a myriad of factual and legal assertions. Critically, the Liquidator expresses no view whatsoever as to the accuracy or validity of the matters identified by LU Simon. His evidence, deliberately and carefully drafted, is in the following terms:

On 27 June 2025, Arch Construction Lawyers sent a letter to Indigo Associates setting out the views of LU Simon on the potential causes of action which may be available to me in my capacity as liquidator of the Caydon group of companies...

Having regard to the investigations it has undertaken, LU Simon contends that there are numerous claims that may be available to me in respect of the Caydon group of companies

1. What then followed in the Liquidator's affidavit was:

(a) a summary table of intercompany loans and a statement that 'LU Simon contends that these amounts may be recoverable';

(b) a statement that 'LU Simon contends that certain securities granted by the MP entities in favour of OCTS may be voidable as uncommercial transactions within the meaning of part 5.7B of the Act' together with a eight short sub-paragraph sentences as to why LU held that belief; and

(c) a statement that 'LU Simon contend, that in light of the materials obtained during the examinations, there may be claims against Mr Russo, including possible claims under Part 5.7B of the Act' which claims were said to be explained in the LU Simon Letter.

1. The Liquidator's evidence concluded with a statement in the following terms:

As at the date of this affidavit, I have not had sufficient time or funding to review the material provided to me by LU Simon so as to form my own view on the potential claims identified by LU Simon to date. Based on my experience, I believe that in addition to the claims identified by LU Simon there may be other claims available to me.

I consider that an extension of one year would allow me an opportunity to negotiate further funding to review the material gathered by LU Simon and provided to me and to obtain legal advice on the proposed claims.

1. At a threshold level, I accept counsel for the Interested Parties' submission there is a fundamental issue with the Liquidator's evidence. The essence of the Liquidator's position is that he is not presently able to articulate the nature of the claims that might be brought. He does not go so far as to say that there are grounds for inquiring into the matter because of suspicion it invites. He does not even say that he considers there is reason to inquire.[61] Rather, his evidence was that someone, other than him, here LU Simon, had made contentions and he required time to determine whether to inquire.
2. The Liquidator's evidence is further problematic when a careful examination of the chronology of events is undertaken.
3. On 20 June 2025, the solicitors for the Liquidator and LU Simon exchanged correspondence regarding the possibility of making an application under s 588FF(3)(b) of the Act. It was the Liquidator's evidence that in the correspondence, his solicitor proposed, amongst other things, LU Simon paying for counsel to be retained to prepare an application for an extension of time. In response, LU Simon's solicitor responded indicating she would recommend that course and that she would revert back in the next week, and that she expected to receive instructions by that time to provide a detailed analysis of the issues for the Liquidator. I accept the submission from the Interested Parties' counsel that this was a remarkable course of events. Here, with no information whatsoever as to any matters warranting inquiry, the Liquidator proposed making an application under s 588FF(1) of the Act. One week later, the LU Simon Letter was furnished. In those circumstances, I reject the submission from the Liquidator's counsel that the Court can infer from the LU Simon letter that the Liquidator's position is that there is reason to inquire. He had the opportunity to depose to that position. He did not. Further, I accept the submission of counsel for the Interested Parties that the LU Simon Letter can provide no reliable footing for the application - the Liquidator had not even received the LU Simon Letter at the time when he committed to the course of making this application. In the circumstances, I regard the Liquidator's evidence as unsatisfactory.
4. Even if that were not the case, there are three other matters which militate against the exercise of the Court's discretion when considering the proposed merits of the proceeding.
5. First, the LU Simon letter is, at best, unhelpful and at worst largely incomprehensible. It does not identify with any clarity what the proposed claims available to the Liquidator might be, pursuant to what section or sections of the Act those claims might arise and/or against whom those claims might be brought. Similarly, the LU Simon Letter lacks precision in identifying which, of the myriad of matters it canvasses, might give rise to a claim for which an extension order is actually necessary. In a remarkable concession, the Liquidator's counsel stated that he did not understand much of the content of the LU Simon Letter.[62]
6. A cursory consideration of some of the purported claims that LU Simon would urge the Liquidator to bring reveals that those claims (if they be good in law) are in any event already statute barred. For example, the LU Simon Letter contains the following:
   1. On 1 July 2019, the MP entities entered into a General Security Deed under which they guaranteed and secured the liability of other Caydon companies to OCTS under the LNSA (as varied and amended). At around the same time, the MP landowners gave OCTS a real property mortgage over the Moonee Ponds land (registered mortgage no. AS321912L).
   2. Whilst the MP entities acquired some benefit from the facilities and securities provided for in the 29 March 2019 iteration of the LNSA, the benefit was disproportionate to the burden. By providing the July 2019 security, the MP entities became liable for, and charged the Moonee Ponds lots with, the debts owed by other Caydon companies, then or in the future, to OCTS under the LNSA, including in relation to future projects of the group, not just in Victoria, but also in New South Wales, Queensland and the United States. At the time of release of the MP entities' securities in October 2017, the amounts owed and secured under the LNSA were $116 million and US$7 million. At the time of the execution by the MP entities of the July 2019 securities, we estimate that the Caydon group debt had increased to A$277 million and US$7 million. In our view, the MP entities' entry into the July 2019 securities in these circumstances was uncommercial within the meaning of s588FB of the Corporations Act 2001 (Cth) (Act).
   3. Further, the transactions were insolvent transactions of the MP entities within the meaning of s 588FC of the Act in that, as a result of the contingent liability which they incurred as sureties under those securities, the MP entities became insolvent. In his examination, Mr Hutton stated that he expects his appointor ultimately to suffer a shortfall of between $150 million and $200 million after the realisation of its securities and that there is no prospect of a return to unsecured creditors of the Caydon group. According to our investigations, the group was certainly insolvent by no later than mid-2019 and probably much earlier.
7. Assuming that the position being agitated is that entry into the general security deed by certain entities in July 2019 was an uncommercial transaction, that assertion, untested by the Liquidator, ignores the applicable time period for the avoidance of an uncommercial transaction. The relation back day is 25 July 2022. The general security deed was entered into on 1 July 2019. Accordingly, the transaction that is apparently sought to be impugned (assuming it was not entered between a related entity) was not entered into during the two years ending on the relation back day and for that reason, by reason of s 588FE(3) of the Act, it cannot be voidable as an uncommercial transaction. Whether or not the purported transaction was between related entities, was not addressed in the LU Simon Letter.
8. Second, there are a number of factual errors and inaccuracies contained in the LU Simon Letter that have been addressed by the Smith Affidavit[63] and the Hutton Affidavit[64] in respect of which the Court has not be informed of the Liquidator's position - the Court has not been assisted at all as to whether the Liquidator has considered the Interested Parties' evidence and sought clarity from LU Simon or otherwise.
9. What the LU Simon Letter fails to do is to identify a narrative of circumstances which call for inquiry by the Liquidator to assess whether the powers afforded to the Liquidator under the Act should be exercised, to claw back or restore funds to the Caydon Companies (or some of them) for the benefit of creditors.
10. Third, and relatedly, LU Simon asserts that it is a creditor of the Caydon Companies to the extent of $9,132,283.24. Without any assessment as to LU Simon's true creditor position, based on the director's ROCAP for CPG, the Liquidator noted in a report to the creditors of CPG dated 28 November 2022, that an amount of $444,040,830.92 was outstanding to the unsecured creditors of CPG as at 25 July 2022 (being the date that the Liquidator was appointed voluntary administrator of CPG) and that it was estimated creditor claims totalled $455,024,289.70. In addition, as at 9 August 2022, the amount owed by the Caydon Companies to the secured creditors, OCP Financiers, was the aggregate of USD106,822,781.68 and AUD253,258,778.35.
11. Whilst it was submitted by counsel for the Liquidator that the general body of unsecured creditors - and particularly LU Simon - would suffer real prejudice if the orders sought by the Liquidator are not made, it is difficult, having regard to the quantum of secured and unsecured creditors identified by the Liquidator so far, to understand what return might actually be available were proceedings to be issued - a difficulty amplified by the lack of cogency in the LU Simon Letter or forensic endeavour by the Liquidator.
12. Fourth, and also relatedly, despite approximately six weeks elapsing between the Liquidator filing his application and him receiving the Interested Parties' evidence, and a further four weeks elapsing before the Interested Parties' submissions were filed, and a further two weeks passing before the hearing before me, there was no attempt by the Liquidator to address the matters raised by the Interested Parties or to further engage with the content of the LU Simon Letter. The Liquidator purported to answer this point by submitting that he requires the shelf order in order to consider obtaining funding to then consider the LU Simon Letter. I do not regard that answer as adequate. The Liquidator has come before the Court one day prior to the expiration of the limitation period seeking a wide ranging shelf order against parties whom the law presumes will be prejudiced by the granting of any extension. It is not sufficient in those circumstances for a Liquidator to take an entirely passive role and fail to use the time period he has been afforded to at least commence a cursory analysis such that he might be better placed by the date of the hearing to identify for the Court what the issues are that allegedly warrant inquiry.
13. It is unnecessary for me to further deal with the merits of any proposed application as contemplated under the relevant voidable transactions provisions. Suffice it to say that on the present material it cannot be said that there is a sufficiently strong case that ought to proceed.

1. As to prejudice generally, the principles summarised by McHugh J in Brisbane South Regional Health, and which I respectfully adopt, are set out at paragraph 15 of these reasons.
2. In assessing prejudice, the Court must consider whether the likely actual prejudice resulting from the grant of an extension is sufficiently substantial to outweigh the case for granting an extension.[65]
3. The absence of prejudice is not itself decisive but rather a factor that is to be taken into account in the exercise of the general discretion. However, the absence of identified prejudice is of paramount importance.[66]
4. As was submitted in the Interested Parties' outline of submissions, the prejudice to the Interested Parties does not lie solely in the actions that may be taken against them, but also in the absence of certainty in their affairs whilst the Liquidator takes further time to decide whether or not to inquire further and/or to commence proceedings.
5. That uncertainty is more pronounced when the Receivers, who are putative defendants, continue taking various steps on behalf of the Security Trustee, to recover amounts owed to the OCP Financiers. The tenor of the LU Simon Letter appears to invite the Liquidator to bring proceedings to seek to impugn securities that have been enforced by means of the receiverships. The evidence before me is that in excess of $10 million has been incurred in the conduct of the receiverships. As against that commercial context where there is a secured creditor, enforcing rights, pursuant to securities that it understands to be effective and capable of enforcement, a putative creditor, LU Simon, now seeks to have the Liquidator seek one year in which to then seek funding to review the LU Simon Letter and then to form his own view on the potential claims identified by LU Simon. In those circumstances, I reject counsel for the Liquidator's submission that there was no actual prejudice raised by the Interested Parties.
6. Further, I am conscious that an extension of time may, inferentially at least, cause prejudice to the Interested Parties and to others in the sense that they remain exposed to litigation for a further period. The principle of general or presumptive prejudice reflects the adverse effect of the effluxion of time on a putative defendant's ability to prepare their defences. The Interested Persons are facing potential legal proceedings that would require an examination of their conduct and various transactions that allegedly took place from May 2017.
7. This general prejudice to the Interested Parties cannot be ignored by the Court. Delay leads to prejudice and that prejudice will be heightened where the matter involves complicated transactions which require examination many years later. Here, those complicated transactions are subject to ongoing enforcement steps by the Receivers who continue to operate in the expectation that the securities are valid and enforceable.
8. The Interested Parties have been facing the threat of legal proceedings since, at least, the Examination Proceeding. They have been required to engage lawyers and expend resources to address that threat. The evidence before me is that the OCP Financiers who are funding the receiverships, incurred costs of approximately $428,000.00 having to respond to the various information and document requests that LU Simon made through the Examination Proceeding. Further, the Interested Parties face uncertainty in their affairs including whether they are required to expend additional resources including time and money while the Liquidator seeks time to obtain 'funding to review the material provided by LU Simon so as to form [his] own view on the potential claims identified by LU Simon' and then, presumably, to decide whether or not to commence proceedings. They are, in the case of the Receivers, professionals and court officers who are performing a statutory function. They have their own obligations and commitments to their clients. They ought not be subject to further uncertainty, particularly given the delay by the Liquidator (such that any prejudiced occasioned might be said to have been self-inflicted) and the paucity of cogent evidence before the Court as to what claims might, in fact, exist. Contrary to the submission of counsel for the Liquidator, it is no answer to an allegation of prejudice to assert that if future funding does not materialise, there will be no claim and accordingly no prejudice.[67] I reject that submission. The prolongation of uncertainty is prejudicial in and of itself.
9. Finally, it is also relevant to the assessment of prejudice to note that although there is little evidence as to the position of creditors, no creditor had offered to provide the Liquidator with funds and it is only LU Simon who is suggesting that the Liquidator proceed in circumstances where it is yet to reach any agreement with the Liquidator as to the terms of any funding it might be prepared to provide.

1. There are two further matters to address on this application. The first is the length of the extension sought. The second is whether a shelf order should be made, or some other, more tailored order, is appropriate.
2. There is not a sufficient explanation as to what steps are intended to be taken if a shelf order, or any extension, is granted. Funding for the Liquidator to consider the LU Simon Letter may never eventuate. There is no evidence as to whether that funding will be forthcoming. There is no certainty that, if the funding is provided, the Liquidator will be satisfied that proceedings ought to be commenced. Moreover, there is no evidence as to whether further funding for the commencement of proceedings will be provided. The upshot is that the explanation provided by the Liquidator does not support the extension of time.
3. As to whether a shelf order should be made, or some other, more tailored order, is appropriate, for the reasons I have identified, I do not consider any order is appropriate.

1. Notwithstanding applications of this kind are often granted, the ultimate test remains what is fair and reasonable in all the circumstances. Applications of this nature demand a strict level of candour and care from those seeking relief. Neither was evident in this case. It is regrettable that the Liquidator did little to advance his investigations during the three-year period afforded to him under the Act and, having made this application, that he did not exhaust the time he had prior to the hearing to engage in a meaningful way with the LU Simon Letter.
2. In the circumstances, the application must be refused.
3. The parties are directed to confer as to an appropriate form of order to give effect to these reasons. In the event the parties are unable to reach agreement, the matter will be listed for a brief further hearing and the parties will be required to set out their respective positions in short written submissions.

MALCOLM KIMBAL HOWELL IN HIS CAPACITY AS LIQUIDATOR OF THE SECOND TO THIRTIETH PLAINTIFFS

CP IP HOLDINGS PTY LTD (ACN 622 221 729) (IN LIQUIDATION)

MP COMMERCIAL NO 1 PTY LTD (ACN 605 707 784) (IN LIQUIDATION)

MP COMMERCIAL NO 2 PTY LTD (ACN 605 707 793) (IN LIQUIDATION)

MP COMMERCIAL NO 3 PTY LTD (ACN 605 707 800) (IN LIQUIDATION)

CAYDON FLEMINGTON PTY LTD (ACN 168 896 580) (IN LIQUIDATION)

CAYDON CREMORNE NO 1 DEVELOPMENT PTY LTD (ACN 605 088 104) (IN LIQUIDATION)

CAYDON FLEMINGTON DEVELOPMENT PTY LTD (ACN 601 544 085) (IN LIQUIDATION)

CAYDON CREMORNE NO 2 DEVELOPMENT PTY LTD (ACN 605 707 702) (IN LIQUIDATION)

CAYDON CREMORNE NO 3 DEVELOPMENT PTY LTD (ACN 605 707 711) (IN LIQUIDATION)

CAYDON RICHMOND PTY LTD (ACN 156 446 043) (IN LIQUIDATION)

CAYDON HIGH STREET DEVELOPMENT PTY LTD (ACN 614 666 581) (IN LIQUIDATION)

MATTHEW RUSSELL HUTTON IN HIS CAPACITY AS RECEIVER AND MANAGER OF THE CAYDON GROUP OF COMPANIES

MATTHEW WAYNE CADDY IN HIS CAPACITY AS RECEIVER AND MANAGER OF THE CAYDON GROUP OF COMPANIES

CAYDON PARRAMATTA DEVELOPMENT PTY LTD (ACN 650 366 635)

CAYDON USA PROPERTY GROUP HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 630 356 795)

CAYDON NORTH BURLEIGH DEVELOPMENT PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 651 134 002)

CP ALPHINGTON DEVELOPMENT PTY LTD (ACN 620 673 396)

CP ALPHINGTON NOMINEES PTY LTD (ACN 616 048 143) IN ITS CAPACITY AS TRUSTEE OF THE CP ALPHINGTON TRUST

[1] The Interested Parties are contained in the Schedule to this judgment.

[2] Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489, 496 [3] (citations omitted) ('Fortress').

[4] Green v Chiswell Furniture [1999] NSWSC 608, [15] (Austin J) ('Chiswell') citing Taylor v Woden Constructions Pty Ltd [1998] FCA 1228 (Finn J) ('Taylor v Woden'). See also Re Cohalan & Mitchell Roofing (in liq) [2020] VSC 222, [30]-[33] (Sifris J) ('Cohalan') (citations omitted).

[6] Ibid, quoting BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322, [172] ('BP Australia') (Spigelman CJ).

[7] Cohalan (n 4), [45] (citations omitted).

[8] [2011] NSWSC 857; (2011) 255 FLR 435 [129]-[142].

[9] Sutherland v Dexion Pty Ltd [2003] NSWSC 24, [24] (citations omitted) ('Sutherland').

[11] (1996) 186 CLR 541, 552 (citations omitted).

[13] Where I refer to the 'Caydon Group', this may include entities that are not among the Caydon Companies.

[14] Affidavit of Malcolm Kimbal Howell filed 24 July 2025 ('Howell Affidavit'), [16].

[15] [2017] FCA 687 ('Re Parker').

[16] Transcript of Proceedings (9 October 2025) 20.16-2031, 21.1-21.25.

[22] Transcript of Proceedings (9 October 2025) 15.1-15.13.

[23] BP Australia (n 6), [170]-[171].

[24] Transcript of Proceedings (9 October 2025) 18.19-18.31.

[25] Re Parker (n 15_)_, [15]; Ibid, 19.1-19.2.

[26] Transcript of Proceedings (9 October 2025) 17.3-17.4.

[29] Howell Affidavit, [29], [32], [32] and [33].

[32] Howell Affidavit, [29], [31], [33] and [35].

[33] Transcript of Proceedings (9 October 2025) 29.29-29.31, 30.1-30.8.

[34] [2011] NSWSC 1374.

[38] Transcript of Proceedings (9 October 2025) 33.1-33.31.

[41] [2021] QSC 292.

[43] Affidavit of Matthew Russell Hutton filed 3 September 2025, Exhibit MRH-1 ('Hutton Affidavit').

[44] (2015) 254 CLR 489, [24].

[50] [2023] WASC 81.

[53] Pentridge Village Pty Ltd (in liq) (receivers and managers appointed) (controller appointed) [2018] FCA 102 [67] (Gleeson J); Cohalan (n 4), [46]-[47] (Sifris J) (citations omitted).

[54] Transcript of Proceedings (9 October 2025) 5.7-5.31; 6.1-6.17.

[56] See for example paragraphs 22, 31 to 34 of the LU Simon Letter which refer to documents provided as part of the s 530B documents.

[57] [2023] FCA 796.

[58] Howell Affidavit, [10(7)] and [19].

[59] Cohalan (n 4) [52]. See also Horne v Retirement Guide Management Pty Ltd [2015] VSC 327.

[61] Taylor v Woden (n 4); see also Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322, [47].

[62] Transcript of Proceedings (9 October 2025) 12.4-12.7.

[64] Affidavit of Colin Smith filed 2 September 2025, [74]-[82].

[65] Sutherland (n 9) [49] citing Chiswell (n 4).

[67] Transcript of Proceedings (9 October 2025) 16.6-16.19.