Sheahan and Lock (Liquidators); In the Matter of B.C.I. Finances Pty Limited (In Liq) [2015] FCA 1487

Federal Court of Australia|2015-12-22|Before: Mr J, Foster J

Number of paragraphs: 53

Solicitor for the Plaintiffs: Mr J Cudmore of Cosoff Cudmore Knox

Counsel for the Applicant in the Interlocutory Application (Ligon 158 Pty Limited): Mr DL Cook

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION SAD 143 of 2014

IN THE MATTER OF B.C.I. FINANCES PTY LIMITED (ACN 055 988 531) (IN LIQUIDATION) JOHN SHEAHAN AND IAN RUSSELL LOCK AS JOINT AND SEVERAL LIQUIDATORS OF B.C.I. FINANCES PTY LIMITED (ACN 055 988 531) (IN LIQUIDATION)

JUDGE: FOSTER J DATE OF ORDER: 22 DECEMBER 2015 WHERE MADE: SYDNEY

The Interlocutory Process filed by Ligon 158 Pty Limited (ACN 003 464 015) on 17 September 2014 be dismissed.
Ligon 158 Pty Limited pay the plaintiffs' costs of and incidental to that Interlocutory Process as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION SAD 143 of 2014

JUDGE: FOSTER J DATE: 22 DECEMBER 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Ligon 158 Pty Limited (ACN 003 464 015) (Ligon 158), a corporation which is part of a group of corporations known as "the Binetter Group of Companies", claims to be a creditor of B.C.I. Finances Pty Limited (ACN 055 988 531) (In Liquidation) (BCI), which is also a member of the Binetter Group of Companies. 2 Ligon 158 has applied to the Court pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth) (FCAA) for a review of orders made by a Registrar of the Court on 27 August 2014. On that day, the Registrar ordered that BCI be wound up in insolvency pursuant to s 459A of the Corporations Act 2001 (Cth) (the Act) even though it had already been placed into liquidation by its creditors. The Registrar also ordered that John Sheahan and Ian Russell Lock be appointed as the joint and several official liquidators of BCI. 3 A review under s 35A(5) or under s 35A(6) of the FCAA is a hearing de novo. 4 The liquidators of BCI contend that Ligon 158 has no standing to bring the present application because it was not a party to the proceeding before the Registrar and is thus not within the relevant empowering provision (s 35A(5) of the FCAA). They also argue that there is no reason for the Court to review the Registrar's orders "… of its own motion …" pursuant to s 35A(6) of the FCAA or otherwise. 5 Ligon 158 argues that the liquidators made their winding up application "… by stealth …", that they misled the Registrar and that the application should never have been made on an ex parte basis. 6 The substance of the relief sought by Ligon 158 is an order setting aside the s 459A winding up order made by the Registrar and the order appointing Messrs Sheahan and Lock as liquidators in the Court ordered winding up of BCI. Were the Court to grant the relief claimed by Ligon 158, the voluntary liquidation previously in place would be restored and Messrs Sheahan and Lock would resume their roles as liquidators appointed by BCI's creditors and not by the Court. 7 It was common ground before me that BCI is insolvent and was insolvent as at 27 August 2014. There was no suggestion that BCI should not remain in liquidation.

The Procedural Context 8 On 5 March 2014, the directors of BCI resolved that BCI was insolvent, or was likely to become insolvent, and that administrators be appointed to BCI pursuant to s 436A of the Act. At the same time, Messrs Brian Silvia and Antony Reswick of BRI Ferrier NSW were appointed as administrators of BCI. 9 On 23 April 2014, Messrs Sheahan and Lock were appointed as joint and several liquidators of BCI pursuant to a resolution passed by the creditors of BCI at the second meeting of creditors convened by the administrators pursuant to s 439A of the Act (see s 439C(c) of the Act). By reason of the operation of s 446A(1)(a) and s 446A(2), BCI was taken to have passed on 23 April 2014 a special resolution under s 491 of the Act that it be wound up voluntarily and to have done so without a declaration having been made and lodged under s 494. For this reason, after the passing of the resolution to wind up BCI by its creditors on 23 April 2014, until 27 August 2014, the winding up of BCI was proceeding as a creditors' voluntary winding up. 10 By s 446A(5) the liquidators were obliged to lodge notice of the creditors' resolution passed on 23 April 2014 with the Australian Securities and Investments Commission (ASIC) and to publish that notice as required by the Corporations Regulations 2001 (Regulations) (see reg 5.3A.06A of the Regulations). These steps were taken as required. 11 The present proceeding was commenced on 19 June 2014. As at that date, the only parties to the proceeding were the liquidators, Messrs Sheahan and Lock. In their Originating Process, the liquidators claimed orders and directions pursuant to s 479(3) of the Act, an order for the issue of an examination summons against Andrew John Binetter, one of the directors of BCI, and orders for production against certain other corporations in the Binetter Group, including Ligon 158. 12 On 30 July 2014, the liquidators filed an Interlocutory Process in which they sought an order for production against Mr Douglass of Signet Lawyers Pty Limited (Signet), an order that BCI be wound up in insolvency pursuant to s 459A of the Act and ancillary relief. That Interlocutory Process was not served upon any person or entity. 13 The claims for relief made by the liquidators in their Interlocutory Process filed on 30 July 2014 were ultimately supported by (inter alia): (a) The affidavit of John Sheahan affirmed on 29 July 2014; and (b) The affidavit of John Sheahan affirmed on 13 August 2014. 14 The liquidators also relied upon a Written Submission dated 27 August 2014. 15 On 31 July 2014, the liquidators lodged with ASIC a completed Form 519 (Notification of Court Action relating to Winding Up) in respect of BCI. That form disclosed that, on 29 July 2014, the liquidators had filed an application to wind up BCI in insolvency pursuant to s 459P of the Act. 16 On 27 August 2014, the liquidators applied ex parte for several orders. On that day, Registrar Grant made the following orders: THE COURT ORDERS THAT: 1. B.C.I Finances Pty Limited (in liquidation) be wound up in insolvency pursuant to section 459A of the Corporations Act 2001 (Cth) ('the Act'). 2. John Sheahan and Ian Russell Lock be appointed as the joint and several liquidators of the B.C.I Finances Pty Limited (in liquidation). 3. The Court dispense with the requirements of section 465A of the Act, Rule 5.6(1) of the Corporations Rules and sections 470(2)(b) and 470(2)(c) of the Act pursuant to section 467(3)(b) of the Act. 4. Liberty to apply. 17 By an Interlocutory Process filed electronically on 17 September 2014, Ligon 158 sought the following orders, namely that: 1. The Creditor [Ligon 158] be joined as a defendant to the proceeding. 2. The proceeding be transferred to the New South Wales District Registry of the Federal Court of Australia. 3. The decision of Registrar Grant on 27 August 2014 to order that: (a) B.C.I. Finances Pty Limited (in liquidation) be wound up in insolvency pursuant to section 459A of the Corporations Act 2001 (Cth) ('the Act'); (b) John Sheahan and Ian Russell Lock be appointed as the joint and several liquidators of the B.C.I. Finances Pty Limited (in liquidation); and (c) The Court dispense with the requirements of section 465A of the Act, Rule 5.6(1) of the Corporation Rules and sections 470(2)(b) and 470(2)(c) of the Act pursuant to section 467(3)(b) of the Act, be reviewed by a judge of this Court. 4. The Applicants pay the Creditor's costs of this interlocutory application. 18 Order 2 in that Interlocutory Process has already been made. 19 As I have already mentioned, Ligon 158 seeks to set aside the orders made by Registrar Grant on 27 August 2014 thereby leaving BCI to be wound up by way of a creditors' voluntary winding up.

The Standing of Ligon 158 20 Ligon 158 claims to be a creditor of BCI. This is disputed by the liquidators who argue that there is no proper basis upon which the Court could conclude that Ligon 158 is a creditor of BCI. Ligon 158 argues that, as a result of several MYOB journal entries, BCI became liable to reimburse to it a proportion of certain legal fees and disbursements incurred by the Binetter Group with Signet. It says that it was justified in passing through to BCI half of the total amount rendered by Signet to Ligon 159 Pty Ltd in the period from 15 January 2013 to 27 June 2013 (viz $792,009) as legal fees and disbursements which half (viz $396,005) was originally passed on to Ligon 158 by Ligon 159 Pty Ltd. 21 The only evidence of these transactions among Signet, Ligon 158, Ligon 159 Pty Ltd and BCI tendered before me comprised computer-generated extracts from MYOB ledgers and journals. The Signet invoices were not tendered. There was no evidence of the work that was done by Signet nor was there satisfactory evidence establishing for whom that work was done. The relevant costs disclosure or costs agreement was not tendered. The particular loan transactions relied upon were put into effect by general journal entries effected as year-end adjustments in June 2013. 22 It was also said by Ligon 158 that the correct amount owed by BCI to Ligon 158 was $115,945.41, not $396,005. This was said to be because of some internal set-off arrangement agreed between the two corporations and others. This internal arrangement was not proved. 23 It was accepted that Andrew Binetter directed that the above entries be put into effect. However, he did not give evidence before me and therefore did not explain any of the relevant entries. No primary documentary evidence supporting the transactions reflected in the book entries to which I have referred was tendered. There was, in truth, no probative evidence provided to the Court to support the entries. The evidence of Ms McCaw, who is an in-house accountant with the Binetter Group, did no more than place before the Court the particular book entries relied upon by Ligon 158 and confirmation that they had been made upon the instructions of Andrew Binetter. 24 In the absence of evidence from Andrew Binetter and the tender of supporting documents or an explanation as to why no such documents are available, I am not satisfied that Ligon 158 is a creditor of BCI. 25 Ligon 158 relies upon s 35A(6) of the FCAA and r 2.13 of the Federal Court (Corporations) Rules 2000 (Corporations Rules). It accepts that, because it is not yet a party to this proceeding nor was it a party to the liquidators' application made before the Registrar on 27 August 2014, it cannot presently rely upon s 35A(5) of the FCAA (as to which, see Complete Constructions (Aust) Pty Ltd v Jeff Manny Pty Ltd (In Liq) [2014] FCA 293 at [26]). 26 Nonetheless, in the circumstances, it relies upon the Court's power to review a Registrar's decision "of its own motion" found in s 35A(6) of the FCAA. If the Court decides to review a Registrar's decision of its own motion, there need not be before it any specific application filed by a litigant. Subsection (6) of s 35A is in the following terms: (6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised. 27 In my judgment, before the Court decides to review an exercise of power by a Registrar of its own motion under s 35A(6) of the FCAA, it should be persuaded or satisfied to an appropriate degree that there is reason for it to conduct such a review. In this respect, the power to act of its own motion under s 35A(6) is in a different category from the power to act upon the application of a party under s 35A(5) and s 35A(6). In the latter case, once the party has made its application for review within time, the Court's jurisdiction is engaged and the Court must then conduct the review. In the former case, more is required. The Court would need to be satisfied that the exercise of power by the relevant Registrar had miscarried and that the miscarriage had caused or had the potential to cause real injustice. Only after the Court has decided to conduct the relevant review of its own motion, would the exercise of power in question be reconsidered de novo. 28 I have entertained Ligon 158's submissions to the effect that the Court should act of its own motion under s 35A(6) to review the orders made by Registrar Grant on 27 August 2014. I propose to consider those submissions in relation to the question of whether the Court should review those orders at all and, if so, how. 29 Section 35A(1)(h) relevantly provides that a power of the Court prescribed by Rules of Court may, if the Court or a Judge so directs, be exercised by a Registrar. Rule 16.1(1) of the Corporations Rules provides that, for the purposes of s 35A(1)(h) of the FCAA, if the Court or a Judge so directs, a Registrar may exercise a power of the Court under a provision of the Act mentioned in Column 2 of Pt 1 of Sch 2 to those Rules. Section 459A and s 459P of the Act are both mentioned in Column 2, at Item 48. The Court's practice has been for the Chief Justice to direct that specified powers may be exercised by particular identified Registrars. The validity of this practice was upheld in Re Socket Screw & Fastener Distributors (NSW) Pty Ltd (In Prov Liq) (1994) 51 FCR 599 at 603G-605F per Davies, Sheppard and Gummow JJ). 30 Ligon 158 did not suggest or argue that Registrar Grant acted without power when he made the orders which he made on 27 August 2014. It was accepted by both Ligon 158 and the liquidators that the orders were a valid exercise of power by the Registrar pursuant to s 35A(1)(h) of the FCAA and r 16.1(1)(a) of the Corporations Rules Indeed, the argument before me proceeded upon the basis that the Registrar had acted within power. Ligon 158 nevertheless contended that the Court should either review the 27 August 2014 orders under s 35A(6) of the FCAA and r 16.1(2) of the Corporations Rules of its own motion or make an order for the joinder of Ligon 158 as a party/defendant in this proceeding pursuant to r 2.13(3) of the Corporations Rules and then review those orders pursuant to s 35A(5). Subrules (1), (3) and (4) of r 2.13 of the Corporations Rules are in the following terms: 2.13 Leave to creditor, contributory or officer to be heard (1) The Court may grant leave to any person who is, or who claims to be: (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; or (c) any other interested person; to be heard in a proceeding without becoming a party to the proceeding. … (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3): (a) on application by the person or a party to the proceeding; or (b) on the Court's own initiative. 31 A precondition to the exercise of the Court's discretion under r 2.13(1) and r 2.13(3) of the Corporations Rules is that the Court must be satisfied that the person who has applied to intervene or be joined as a party either is, or claims to be, a creditor of the relevant corporation - here BCI. A claim to be a creditor must be made bona fide and have some prima facie strength. A dishonest or patently hopeless claim would not suffice. 32 Here, Ligon 158 has not satisfied me that it is a creditor of BCI. For that reason, I do not consider that its claim to be a creditor of BCI has sufficient demonstrable strength to satisfy the preconditions in r 2.13. 33 However, because I propose to consider whether to act of my own motion under s 35A(6) of the FCAA to review the 27 August 2014 orders, I will assume against the finding which I have made at [32] above that r 2.13 may potentially be engaged in the circumstances of the present case and address the merits of Ligon 158's claims for orders under r 2.13 as well as its claim that the Court should act to review the 27 August 2014 orders under s 35A(5) or under s 35A(6).

To Review or not to Review 34 Ligon 158 approached its present claims for relief upon the basis that it should be joined as a defendant and then it would be qualified to bring an application for review of the 27 August 2014 orders under s 35A(5) or under s 35A(6) of the FCAA. But that approach assumes in its favour that there is good reason to join it as a defendant. However, the question of whether it should be joined as a defendant raises the same or similar issues as are raised by Ligon 158's claim that the Court should act of its own motion under s 35A(6) of the FCAA to review the 27 August 2014 orders. For these reasons, I propose to consider the matter upon the basis that Ligon 158 must persuade me to act of my own motion under s 35A(6) of the FCAA or to act under r 2.13 of the Corporations Rules. I do not think that s 35A(5) has any independent role to play. That subsection would only need to be considered if I were to join Ligon 158 as a party/defendant pursuant to r 2.13(3). 35 Ligon 158 submitted that the liquidators had not informed Andrew Binetter or it of their intention to apply to wind up BCI in insolvency under s 459A of the Act prior to 27 August 2014. 36 That may be true. 37 However, Andrew Binetter and Ligon 158 knew of the liquidators' application before 27 August 2014 (probably from as early as the first week of August 2014) because they sent a lawyer to observe the hearing conducted by Registrar Grant on 27 August 2014. I infer that they would most likely also have been aware of the application from the Form 519 lodged by the liquidators with ASIC on 31 July 2014. Yet they deliberately chose not to appear before Registrar Grant. Had they been truly concerned about the fact of the liquidators' application or the submissions that might be made to Registrar Grant, they could have sought to intervene on 27 August 2014 or, if they were not ready to argue their case then, they could have sought to have the liquidators' application adjourned so that they could appear in due course to argue their case at a time when they were fully prepared. They did neither of those things. 38 Ligon 158 submitted that the Court should not make an order under s 459A of the Act in respect of a corporation which is already being wound up in a creditors' voluntary winding up unless there are good reasons for the Court to intervene by making a winding up order. It relied upon the observations made by Austin J in Carter v New Tel Ltd (2003) 44 ACSR 661 at 663 [5]. But the "good reason" test was criticised by the Full Court in CBA Corporate Services (NSW) Pty Ltd v Walker (2013) 212 FCR 444 (CBA v Walker) at 456 [40]-[43] and explained by Brereton J in Re Evcorp Grains Pty Ltd (No 2) [2014] NSWSC 155 at [15]-[19] as follows: 15 Accordingly, it seems to me that the position can be stated as follows. 16 First, while an unpaid creditor who establishes insolvency is usually regarded as entitled to a winding up order almost as of course, that is not so where the company is already in liquidation. The existence of a voluntary liquidation is a relevant consideration, so that where a voluntary liquidation is in place, there needs to be some justification for replacing it with a compulsory liquidation. 17 Secondly, such justification will ordinarily be found, if at all, in the interests of the administration and, in particular, the general body of creditors. Typically, the possibility that a court-appointed liquidator will be able to realise additional benefits for the creditors not available to a voluntary liquidator will provide such justification [Re Green (as liq of Australian Resources Ltd); Carter v New Tel; Deputy Cmr of Taxation v Tull Reinforcing]. 18 Thirdly, on the other hand, the mere preferences of the plaintiff - such as a mere desire to replace the liquidator - are insufficient. This is because it would otherwise afford a means of circumventing s 503. Thus, where the sole purpose of proceeding with a winding-up application is to replace a voluntary liquidator with a court-appointed liquidator, the court adopts the same approach as on an application under s 503 to remove a liquidator and appoint another [Citrix Systems v Telesystems Learning; Neha Impex International v Mintz and Co; Commissioner of Taxation v Tull Reinforcing]. Likewise, it is not sufficient justification that making a winding up order will meet the plaintiff's desire to recover its costs [Commissioner of Taxation v Tull Reinforcing [2006] FCA 810; (2006) 153 FCR 394]. 19 Finally, the views of the general body of creditors are also a relevant consideration. It would usually tell against a compulsory winding up if the majority of unrelated creditors supported continuation of a voluntary administration. 39 I do not discern in his Honour's explanation of the relevant principles a fundamental difference in approach from that which the Full Court said in CBA v Walker should be adopted. As the Full Court said (at 456 [42]): While on one view it could reasonably be said that the phrase "for good reason" simply reflects a requirement that the power to order a winding up in insolvency should only be made in an appropriate case, there is a danger that that phrase could displace or distort the otherwise broad discretion conferred by s 459A. As the Full Court stated recently in Hua Wang Bank Berhad v Federal Commissioner of Taxation (2013)] 296 ALR 479 at [13] the substitution of other words for the terms of a statutory discretion is to be discouraged as it is likely to lead to error. That danger is manifest here where the appellants seek to impugn the primary judge's decision by reference to the fact that the particular matters which were accepted as "good reasons" in cases like New Tel and Re Green are not present here. Whether or not the discretion under s 459A should be exercised in any particular case necessarily turns on an assessment all the relevant circumstances. In our opinion, the broad discretion under that provision should not be inhibited by artificially introducing a requirement of "for good reason" as though that is part of the provision itself. 40 Of course, I am bound to follow the Full Court's exposition of the relevant principles. I intend to do so and to keep in mind the Full Court's views when evaluating the submissions made by Ligon 158. 41 Ligon 158 then submitted that the three reasons advanced by the liquidators in support of the orders which they sought did not justify the making of those orders. The liquidators' reasons were: (a) The liquidators needed a Court order confirming their appointment in order to enable them effectively to investigate the affairs of BCI in Israel. Those investigations were likely to benefit the unsecured creditors of BCI as a whole; (b) The liquidators wanted to have additional powers available to them in order to facilitate a rapid response from them should Andrew Binetter seek to flee Australia. The liquidators wanted to be in a position to act quickly to make applications under s 486A and s 486B of the Act which would, if successful, prevent Mr Binetter from leaving Australia; and (c) The major creditor, the Deputy Commissioner of Taxation, did not object to the making of the orders sought in the application. 42 As to [41(a)] above, Ligon 158 submitted that the evidence relied upon by the liquidators did not support their argument. It argued that the evidence amounted to no more than that the liquidators' lawyer in Israel had told them that it would be helpful to have a Court order confirming their appointment. It was submitted that the evidence did not go so far as to suggest that a Court order was required or was necessary. 43 The evidence before the Court on 27 August 2014 on this matter comprised pars 34 to 36 of Mr Sheahan's affidavit of 13 August 2014. Those paragraphs are in the following terms: 34. Mr Lock and I wish to investigate and consider the proceedings that were commenced in a Court of Israel pursuant to the letter of request issued in accordance with the orders of 9 August 2012 in the Tax Proceedings, and to investigate the affairs of BCI Finances in Israel generally. 35. For this purpose, Mr Lock and I have retained a lawyer in Israel, Mr Dan Gross of Dardik Gross & Co of 14 Abba Hillel Silver Road, Ramat Gan, Israel. 36. On Thursday 24 July 2014, Mr Lock and I had a telephone conference with Mr Gross and other members of his firm. Australian lawyers engaged by Mr Lock and me also participated in that telephone conference and we maintain a claim for legal professional privilege in relation to the communications during the telephone conference. During the course of the telephone conference, Mr Gross asked us whether there is an order of a Court of Australia which confirms our appointment as liquidators of BCI Finances. Mr Lock and I understand that Mr Gross wishes for us to provide to him an order of a Court of Australia confirming our appointment as liquidators of BCI Finances so that Mr Gross can proceed to act for BCI Finances pursuant to instructions given to him by Mr Lock and me. 44 That evidence was not challenged by Ligon 158. It has since been supplemented. 45 In his longer affidavit affirmed on 20 October 2014 (at par 27), Mr Sheahan said that he and Mr Lock wish to obtain further documents from Bank Hapoalim in Israel in relation to BCI's affairs. On 14 October 2014, the liquidators' lawyer in Israel sent an email in the following terms to the liquidators and to the liquidators' Australian lawyers: Re: BCI Finances Pty Limited (in liquidation) Following your request we confirm that on 24 July 2014, during our telephone conference, we asked Mr. Sheahan and Mr Lock to provide us with a copy of an order of a Court of Australia appointing them as the legal liquidators of BCI Finances Pty Limited (in liquidation). We require this in order to use it to act on their instructions on behalf of BCI Finances Pty Limited (in liquidation) in Israel. 46 In my view, although the evidence is somewhat scant, the liquidators have established to my satisfaction that their Israeli lawyers required them to be appointed or confirmed as liquidators by Court order if those lawyers were to act effectively in Israel on their behalf in relation to the Court proceedings under way there and generally in relation to the investigations being undertaken there. I am satisfied that the creditors are likely to benefit from the liquidators' investigations in Israel. 47 As to [41(b)] above, Ligon 158 submitted that the 27 August 2014 orders did not improve the liquidators' position in relation to s 486A and s 486B of the Act. It contended that the mere filing of an application for an order to wind up BCI in insolvency would have been a sufficient basis upon which the liquidators could have proceeded under those sections and that actually obtaining such an order was not necessary. It also submitted that Mr Binetter was already constrained by a Departure Prohibition Order (DPO) issued by the Commissioner of Taxation and by freezing orders and other orders made by the Court. Ligon 158 also submitted that, in any event, even after the winding up order was made on 27 August 2014, it would still be necessary for the liquidators to make a separate application for any order under either s 486A or s 486B of the Act. 48 While the substance of Ligon 158's submissions is correct, there is force in the contrary position adopted by the liquidators, namely, that the greater certainty afforded by the circumstance that a winding up order has already been made justified the making of such an order. Further, there was no certainty that the DPO would remain in place indefinitely or that the Court orders would stay in place indefinitely. 49 As to [41(c)] above, the support of the Commissioner of Taxation carries significant weight when compared to the views of Ligon 158 which has a weak claim to be a creditor of BCI and which, on any view of the facts, has a relatively small claim in any event. 50 It should also be remembered that there is no prejudice to BCI or to Ligon 158 occasioned by the 27 August 2014 orders. 51 For all of the above reasons, I am not persuaded that I should undertake a review of the 27 August 2014 orders of my own motion. I do not consider that Ligon 158 has established sufficient reasons for me to do so. In any event, even if I were to undertake a review of those orders, I am not satisfied that the orders should be set aside. 52 For the same reasons, I am not prepared to grant to Ligon 158 any relief pursuant to r 2.13 of the Corporations Rules. Such relief would only be of use by providing the means for Ligon 158 to engage s 35A(5) of the FCAA. Given the views which I have expressed at [35]-[51] above (esp at [51]), there would be no utility in granting such relief.

Conclusions 53 For all of the above reasons, I reject all of the claims for relief made under or by reference to the Interlocutory Process filed by Ligon 158 on 17 September 2014. I shall dismiss that Interlocutory Process with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

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