Woori International Pty Ltd, in the matter of TJM Holdings Group Pty Ltd (In Liquidation) [2025] FCA 1276 (21 October 2025)

CBA Corporate Services (NSW) Pty Limited v Walker and Moloney, in the matter of ZYX Learning Centres Limited (receivers and managers appointed) (in liq) [2013] FCAFC 74

Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12

Deputy Commissioner of Taxation v Club Culture Pty Ltd [2017] FCA 338

Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988

Deputy Commissioner of Taxation v PAD & Sons Pty Ltd [2025] FCA 1131

Deputy Commissioner of Taxation v Soiland Pty Ltd (In Liq) [2010] FCA 168

Dunstan v Orr [2025] FCA 858

HVAC Constructions (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd [2002] FCA 1638

In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796

In the matter of TJM Holdings Group Pty Ltd [2024] NSWSC 1376

Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304

Land Enviro Corp Pty Ltd (In Liq) v Hickie [2015] FCA 766; (2015) 238 FCR 491

Metledge v Woori International Pty Ltd, in the matter of TJM Holdings Group Pty Ltd [2025] FCA 1130

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

IN THE MATTER OF TJM HOLDINGS GROUP PTY LTD (IN LIQUIDATION)

1. The interlocutory process filed 17 October 2025 is dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. On 12 February 2025 a Registrar of this Court ordered that the defendant be wound up in insolvency. The order for the winding up was made on the application of the plaintiff under s 459P of the Corporations Act 2001 (Cth), with the insolvency of the company being presumed, in accordance with s 459C(2)(a), by reason of its failure to comply with a statutory demand.
2. The demand was for payment of an amount owing pursuant to determinations of the New South Wales Civil and Administrative Tribunal, registered as judgments of the Local Court of New South Wales. (It may be noted, however, that the amount of the demand was less than the sum of those judgments, having been reduced on account of the existence of an offsetting claim: In the matter of TJM Holdings Group Pty Ltd [2024] NSWSC 1376.)
3. At the hearing before the Registrar, the primary position advanced on behalf of the company was that the hearing should be adjourned so that the Tribunal decisions giving rise to the debts underlying the statutory demand could be challenged as having been procured by fraud (in particular, by the giving of deliberately false evidence in support of the claim). The company's contention was, in effect, that unless and until the validity of the underlying Tribunal decision had been determined, the statutory presumption of insolvency did not arise.
4. A more straightforward basis upon which the application for a winding up order might have been resisted was demonstration of the apparently uncontroversial fact that the company was comfortably solvent (see s 459C(3)). For whatever reason, however, the company had not come prepared to prove its solvency. Upon the significance of that issue being drawn to its attention, the company applied for an adjournment, which was refused.
5. The result was that a clearly solvent company was wound up.
6. From that point onwards the sole shareholder and director of the company, Mr Metledge, aided by his solicitor mother, engaged in a persistent but haphazard, no doubt costly, and ultimately fruitless, series of attempts to retrieve the situation.
7. The present application, which came before me as Duty Judge, is the latest of those attempts. It comes some eight months after the company was placed into liquidation. A property has been sold. The debt the payment of which was demanded by the plaintiff has been paid. The liquidators have incurred substantial costs. All necessary works in the liquidation are complete. The liquidators are on the cusp of filing an application pursuant to s 482 of the Corporations Act to terminate the winding up, and return the management and control of the company to Mr Metledge.
8. Mr Metledge, however, does not want the winding up to be terminated. Rather, he wants the winding up orders to be set aside. He does not submit that the choice between those two options would result in any difference to the legal rights or obligations of the company, or himself. His concern is to remove the "blot" on the company's reputation, and his own as its director, consequent upon it having once been wound up in insolvency.
9. It has certainly been held that, at least in some circumstances, where a company ought not to have been wound up in the first place, the "more appropriate course" is to set aside the winding up orders, rather than terminate the liquidation: see, e.g., In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796 at [8] (Gleeson JA). Such statements, though, are inevitably accompanied by the qualification that the company "has moved promptly to set aside the winding-up order".
10. As will be seen, ultimately I regard the passage of time, and the stage that the winding up has reached, as an important consideration in the resolution of this application.

1. The immediate precursor to the present application was an application made by Mr Metledge to another judge of this Court sitting as Duty Judge. Mr Metledge commenced separate proceedings, in which he sought review of the Registrar's winding up orders pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth). That application was dismissed because Mr Metledge was not himself a "party" to the winding up proceedings, and thus lacked standing to seek review pursuant to s 35A: Metledge v Woori International Pty Ltd, in the matter of TJM Holdings Group Pty Ltd [2025] FCA 1130 (Halley J).
2. That obstacle could have been overcome if Mr Metledge had made, or had been treated as having made (see, e.g., Land Enviro Corp Pty Ltd (In Liq) v Hickie (2015) 238 FCR 491; [2015] FCA 766 at [17] (Foster J); Deputy Commissioner of Taxation v Club Culture Pty Ltd [2017] FCA 338 at [8] (White J); Deputy Commissioner of Taxation v PAD & Sons Pty Ltd [2025] FCA 1131 at [6] (Owens J)), an application for leave pursuant to s 198G(3)(b) of the Corporations Act to cause the company to seek review of the Registrar's orders.
3. By the present application, Mr Metledge now seeks such an order. (He then goes on to claim a series of consequential orders directed to obtaining the substantive relief sought, commencing with an application for the grant of an extension of time within which to seek review pursuant to s 35A.)
4. In the alternative, Mr Metledge makes an application pursuant to rr 39.05(b) and (c) of the Federal Court Rules 2011 (Cth), seeking to set aside the Registrar's orders on the ground that they were obtained by fraud, or on the basis that they were interlocutory.
5. The application was served on both the plaintiff and the liquidators. Only the latter appeared.
6. The evidence relied upon by Mr Metledge was:

(a) His own affidavit (styled "Summary of Affidavit of Tony Joseph Metledge") sworn 16 October 2025.

(b) Various other affidavits and documents that were originally tendered as exhibits, but were subsequently annexed to a second affidavit of Mr Metledge sworn on 16 October 2025.

SHOULD LEAVE BE GRANTED PURSUANT TO SECTION 198G(3)?

1. The principles relevant to a grant of leave are helpfully summarised in Deputy Commissioner of Taxation v Soiland Pty Ltd (In Liq) [2010] FCA 168 at [16]- [26] (Barker J). Although that case concerned the former s 471A(1A) of the Corporations Act, for the reasons given by Colvin J in Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988 at [8]- [9], they remain applicable to the grant of leave pursuant to s 198G(3).
2. Those factors include, in the context of an application to review a decision of a registrar under s 35A of the Federal Court Act:

(a) the strength of the case to be argued on review;

(b) the protection of the assets of the company; and

(c) the "constitutional imperative" of the right to review.

1. The third of those factors (as to which see, e.g., HVAC Constructions (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd [2002] FCA 1638 at [40]- [41] (French J)) will almost always weigh in favour of a grant of leave.
2. In relation to the second, in circumstances where it appears to be common ground that the company is and always has been solvent, that criterion would also support a grant of leave: see Soiland at [19], [26].
3. The real issue in the present application, it seems to me, is the strength of the case that Mr Metledge seeks to bring. The relevance of that consideration is obvious: if the application sought to be brought on behalf of the company is doomed to fail, then it is difficult to envisage circumstances where leave to cause the company to bring it should be granted.
4. Here, the uncontroversial fact that the company was solvent when wound up might, at first blush, appear to suggest a strong prima facie case to be argued on review. But this consideration necessarily encompasses all of the matters required to be established by the company on the prospective application: see Land Enviro Corp at [36]. In the present case, that includes the company's ability to obtain an extension of time.
5. Ultimately, I am not satisfied that the company has a reasonably arguable case for the grant of an extension.
6. The decision of the Registrar was given on 12 February 2025. Rule 3.11(2) of the Federal Court Rules requires an application for review of a decision of a registrar to be made within 21 days. It follows that an application for review was, in this case, required to be filed by 5 March 2025. An extension of more than seven months is thus required.
7. In that period, the winding up of the company has not just progressed; it has all but concluded. The only remaining task for the liquidators is to make an application pursuant to s 482 of the Corporations Act to terminate the winding up, and restore the company to Mr Metledge's control. There is no practical difference in outcome capable of being achieved by setting aside the winding up orders, as opposed to terminating the winding up. That is:

(a) To the extent that the company's property has been dealt with by the liquidators, including by way of sale to third parties, setting aside the winding up orders would not undo, invalidate, or vary those transactions.

(b) Setting aside the winding up orders would not cancel the debt that underlay the statutory demand. The decisions of the Tribunal, and the Local Court judgments giving effect to them, and thus creating the debts, have never been set aside. Whatever rights the company may have to challenge those decisions, and the debts to which they gave rise, they will be unaffected by the choice between the termination of the winding up, and the setting aside of the winding up orders.

(c) The same observation applies in relation to the payment of the plaintiff's debt. The setting aside of the winding up orders would not reverse that payment, or entitle the company to claw it back. Once again, the company's rights against the plaintiff, or the liquidators, in relation to the payment, or the debt to which it related, will be the same whether the winding up is set aside or terminated.

(d) Indeed, as a general matter, whatever rights the company, or Mr Metledge, may have against the liquidators in respect of the conduct of the winding up will not differ depending on whether the winding up is set aside, or whether it is terminated.

1. I thus do not think that it can be said that there is a substantial injustice that would be avoided by setting aside, as opposed to terminating, the winding up. Expressed differently, I do not consider that the company would suffer any real prejudice if an extension of time were not granted. Equally, of course, there would be little or no prejudice suffered by the plaintiff, the liquidators, or anyone else if an extension of time were granted. But the real point is that there is nothing of practical utility to be gained from the grant of an extension of time. There is thus scant justification for incurring the inevitable cost and delay that would be occasioned by proceeding to a review hearing. While it might be thought that those impacts would be visited primarily upon the company and Mr Metledge (in that the costs of the process will likely ultimately be borne by the company), the implications for the resources of the Court should not be overlooked. To the extent that the costs of the process would be borne by the liquidators themselves, then that would be likely to provide a further reason not to grant an extension of time.
2. Those considerations are reinforced by the failure of the company to have taken reasonable steps to seek to have the winding up orders set aside before now. I do not think it is necessary to traverse in detail the course of these proceedings since the winding up order was made. It is sufficient to observe the following:

(a) On 24 February 2025 (and so within the period within which an application to set aside the Registrar's orders could have been made), Mr Metledge filed an application to terminate the winding up under s 482. That application was called on for hearing on 27 February 2025 before Markovic J (as the Corporations List Judge). Her Honour was told that the parties sought an adjournment until 4 April 2025, because it was hoped or anticipated that the parties could reach a consent position for the termination of the winding up. Her Honour expressed some disquiet with the length of the proposed adjournment, but was assured by the parties that they would move as quickly as possible, and relist the matter sooner if they were in a position to do so. Mr Metledge was represented by counsel on this occasion.

(b) The matter came back before Markovic J on 10 April 2025. Mr Metledge was once again represented by counsel, albeit different counsel to that appearing on the previous occasion. Her Honour was informed that an unsuccessful attempt had been made to file an application to review the Registrar's decision, and for an extension of time within which to bring that application. Her Honour expressed some surprise that such a course was in contemplation, in circumstances where she had previously been told that there was all but concluded agreement to bring the winding up to an end. In any event, her Honour was also told that the Registry had advised of the changes required for the application to be accepted, and she was asked to adjourn the matter for a short period to enable the parties to have discussions.

(c) The matter was next before Markovic J on 1 May 2025. Once again, Mr Metledge was represented by counsel. Her Honour was told that Mr Metledge had changed lawyers, and wanted advice on "whether there is a basis for a section 35A application for review of the registrar's decision", but that he also wanted to keep the existing s 482 termination application "on foot". Her Honour was concerned to progress the s 482 application, and made orders for the filing of evidence in relation to it. She then listed the proceedings for further case management on 12 June 2025 (by which point a decision as to whether an application under s 35A was anticipated to have been made).

(d) On 16 May 2025, the matter came before Lee J as Duty Judge. Mr Metledge was represented for part of the hearing by his mother (who is a solicitor). At least two issues were raised. The first was an attempt to restrain the payment by the liquidators of the debt claimed by the plaintiff. That issue was resolved by the liquidators giving an undertaking that they would not distribute any of the company's assets before 12 June 2025 (i.e., when the matter was due to return to Markovic J in the corporations list). The second was Mr Metledge's desire to seek a review of the Registrar's decision, and set aside the winding up order. Mr Metledge sought orders granting him leave to file an application for an extension of time and for a review of the Registrar's orders pursuant to s 35A of the Federal Court Act, to which Lee J said:

Well, I don't think I need to give you leave to do anything. I think if you wish to make an application for an extension of time, you can file it in these proceedings and ask that it be listed in front of Markovic J at the same time.

...

If you want to bring an application to seek other relief, which it appears to me that you do, get legal advice, and you can file an application and ask it be returnable before her Honour when the matter is before the court on 12 [June] and it can be dealt with by her Honour at the same time...

(e) On 12 June 2025, the matter came back before Markovic J. Mr Metledge was again represented by his mother. Mrs Metledge informed her Honour that the s 482 application "was filed against our express instructions to our previous solicitor". Although Lee J had indicated that, if an application to set aside the Registrar's orders was sought to be made, it should be filed in advance of 12 June 2025, that had not happened. Mrs Metledge was told by Markovic J that such an application, if it were to be made, should be filed. Justice Markovic then dismissed the s 482 application.

(f) On 27 June 2025, Mrs Metledge appeared before Younan J as Duty Judge on behalf of her son. It appears that the primary focus of the application was to obtain an injunction to prevent the settlement of the sale of one of the company's properties (or to restrain the distribution of the proceeds). That application failed, it would seem, because there was not evidence sufficient to satisfy her Honour that Mr Metledge was the shareholder of the company and thus that he had any interest in obtaining the relief sought. In any event, there was also discussion of the fact that Mrs Metledge had tried, and failed, four times to file an application for review of the Registrar's orders. That issue was not dealt with in Court, and was left on the basis that Mrs Metledge should continue to engage with the registry.

(g) On 9 September 2025, Mr Metledge came before Halley J as Duty Judge. Mr Metledge was represented by a solicitor (other than his mother). I have already referred to that application, and the fact that it was unsuccessful.

1. Whatever else that brief history shows, it is that Mr Metledge has repeatedly raised the possibility of making an application to review the Registrar's decision to wind up the company since at least 10 April 2025. It was a course of action about which the Court was told he was taking advice from solicitors and counsel. He has been told repeatedly by different judges of this Court that if such an application was to be made it should be brought. While, from time to time, efforts to file such an application have been made (without success), I do not consider that that assists Mr Metledge greatly. He has had the benefit of legal representation for much of the period, and it is difficult to conceive of a reason why a proper application could not have been formulated and filed sooner than it was. Overall, I am not persuaded that a satisfactory explanation has been provided for why this application was not brought significantly earlier than it has been.
2. The submissions made on behalf of Mr Metledge, of course, emphasised the reputational blight that would be suffered by the company (and Mr Metledge as its controller) if the fact of winding up was not expunged from its record. I do not discount the significance of that factor, but it needs to be assessed in light of all the circumstances. Those circumstances include the passage of a substantial period of time, the absence of any practical advantage to be obtained, and the company's failure to take appropriate steps to bring the issue to a head. Moreover, the company will be able to demonstrate to any person who may have an interest in the topic the reasons why it was wound up, and the fact that it was solvent at the time. In those circumstances, the reputational impact might be thought to be less than it otherwise would be.
3. It follows that I consider that the strength of the case to be argued on review is very weak, and for that reason I would not grant leave to Mr Metledge under s 198G(3).
4. Alternatively, even if I had been persuaded that there was a sufficiently arguable case for an extension of time to be granted such as to warrant a grant of leave, I would then have refused the extension of time. The end result would thus be the same.

1. Rule 39.05 of the Federal Court Rules provides that:

The Court may vary or set aside a judgment or order after it has been entered if:

...

(b) it was obtained by fraud; or

(c) it is interlocutory ...

1. I am prepared to proceed on the basis that Mr Metledge, as the sole shareholder and director of the company, has standing to seek an order under that rule even though he is not a party to the proceedings (see, e.g., r 1.40(b); Campaign Master (UK) Limited v Forty Two International Pty Ltd (No 4) [2010] FCA 398).
2. Insofar as the application is brought under r 39.05(c), the fundamental problem is that an order winding up a company in insolvency is not interlocutory. Winding up orders have, to my researches, always been treated as final: see, e.g., Binetter v Deputy Commissioner of Taxation [2011] FCA 184 at [5] (Perram J); CBA Corporate Services (NSW) Pty Limited v Walker and Moloney, in the matter of ZYX Learning Centres Limited (receivers and managers appointed) (in liq) [2013] FCAFC 74.
3. Even if the orders sought to be set aside were interlocutory, I am not persuaded that it would be appropriate to set aside the winding up order on that basis. As was observed in AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [104] (Raper J, Wigney and Lee JJ agreeing):

The scope of r 39.05 (which applies after entry) is narrower than provided for by r 39.04; in that it is a power only enlivened by the existence of one of the matters specified in paragraphs (a)-(g), and once enlivened, it is discretionary power, to be exercised judicially, with caution, in "exceptional circumstances": Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; 295 ALR 52 at [53]; Australian Securities and Investments Commission (ASIC) v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6] per Gordon J. The underlying principle of the finality of litigation has particular force in circumstances involving interlocutory orders (r 39.05(c)) where the subject of the order has already been the subject of unsuccessful appellate or review processes. The rule cannot be used as an alternative to the appellate procedure available with respect to interlocutory judgments: Dudzinski v Centrelink [2003] FCA 308 at [11]; Professional Administration at [53]; ActiveSuper at [15]; Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179; 263 ALR 384 at [22] -[23] and [25] per Finn and Dowsett JJ; see also Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 at [37].

1. Furthermore, as McLelland J said in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 47 (quoted with approval by Besanko J in Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 at [32]):

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris [1981] HCA 39; (1981) 148 CLR 170 at 177-8; [1981] HCA 39; 35 ALR 625 at 629-30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894.

1. I am not satisfied that the circumstances of the present case can fairly be described as "exceptional". The basis upon which Mr Metledge would seek to set aside the Registrar's orders under this power (critically, the solvency of the company at the time the order was made) was always available as a ground of opposition to the orders sought. It is not suggested that, with reasonable diligence, evidence could not have been obtained and presented before the Registrar at the hearing (indeed, the basis upon which an adjournment of the hearing was sought was that such material was readily available). This is thus not a case where new material has been discovered which could not reasonably have been put before the Court on the hearing of the original application. Rather, it is simply a case where Mr Metledge contends that the wrong decision was made (in significant part, because of the way that the company chose to defend the application). In circumstances where there exists a defined process by which a review of the impugned decision could have been obtained, I do not consider the requirement of "exceptional circumstances" to have been established.
2. What then of the argument that the winding up order was procured by fraud?
3. The principles in accordance with which an application of that kind is to be assessed were helpfully summarised by Thawley J in Dunstan v Orr [2025] FCA 858 at [69]- [76], which I rely upon without repeating. Furthermore, as has been observed many times,

"[f]raud needs to be clearly pleaded and proved": Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12 at [62] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). 4. Mr Metledge's application did not involve any pleading, or other formal articulation, of the basis upon which he alleged fraud. Nor did the submissions advanced on his behalf supply the necessary level of detail or precision. Indeed, I was not even provided with a copy of the Tribunal's decisions, so that I could identify with any confidence the conclusion that had been reached, the reasons for it, and the relevance of the fraudulent conduct alleged by Mr Metledge. All of that would have been a sufficient basis upon which to reject the case. Nevertheless, I think it is appropriate that I deal with the arguments that were put, and explain why I do not accept them. 5. Mr Metledge alleged that the decisions of the Tribunal, which in turn founded the Local Court judgments, and thus the debts the subject of the plaintiff's statutory demand, were procured by fraud. The fraud was said to be constituted by the giving of perjured evidence by the sole director of the plaintiff, Mr Yi. 6. The plaintiff's claim in the Tribunal was for repayment of money alleged to be key-money, contrary to s 14 of the Retail Leases Act 1994 (NSW). The fundamental thrust of the plaintiff's case appears to have been as follows:

(a) The company owned a property in Strathfield, which in 2016 was leased to the owner of a restaurant. The restaurant had, however, ceased to trade.

(b) The director of the plaintiff, Mr Yi, was interested in starting his own restaurant. Because Mr Yi understood that the business had ceased to trade, he was not interested in purchasing the business. He was only interested in the site.

(c) Mr Yi engaged a Mr Bruce Pak as his agent to negotiate with the company to acquire the lease over the Strathfield restaurant site.

(d) Mr Yi gave evidence that he was told by Mr Pak that the company would lease the premises to him if he paid a premium of $140,000.

(e) Mr Yi said that he agreed to pay the requested premium ($40,000 up front, and with the remaining $100,000 payable on the signing of the lease agreement).

(f) Mr Yi said that it was further agreed that in return for the $40,000 upfront payment, he would be provided with access to the premises in advance of the lease being signed. This was important to him because he wanted to get the restaurant up and running as soon as possible.

(g) Mr Yi said that he met with Mr Metledge and Mr Pak "on or around" 14 November 2016 at the Strathfield RSL Club. He said that Mr Pak asked him to bring the $40,000 for the first payment, and said that at the meeting "I paid Tony $40,000 in cash as a first payment of the premium and received a key to the premises".

(h) Mr Yi said that he was subsequently asked to sign the lease and various other documents which he did "because of all the financial commitments that I made to [Mr Metledge] and the business including the fit-out cost". Mr Metledge submitted that Mr Yi gave evidence that he had spent $150,000 on fit-out costs before signing the lease (I confess I was unable to find a reference to this in the evidence before me, however).

(i) Upon signing the lease, Mr Yi paid additional amounts to the company including a cheque of $104,263.66. He said that that amount was comprised of the second instalment of the premium ($100,000) and payment of an amount for outgoings for the period he had been in possession of the property before the lease was signed ($4,263).

1. The company's case in response, so far as is relevant, appears to have been:

(a) Another party, Mr Chang, was interested in buying the restaurant business owned by the company's previous tenant.

(b) If Mr Chang purchased the existing business, then he would take over the existing lease, and would be liable to pay amounts outstanding under it.

(c) Mr Yi approached the previous tenant and asked to buy the existing restaurant business himself. Mr Yi also approached the company and offered that, if it granted a new lease to him, he would pay compensation for the fact that it would then no longer recover amounts outstanding on the existing lease.

(d) There was never any payment of $40,000 cash (whether as key money or for any other reason).

(e) The payment of $104,263 was compensation for the amount owing by the previous tenant.

(f) Mr Yi was not given a key to the premises on 14 November 2016; that did not occur until 22 November 2016.

(g) There is no way that the plaintiff could have spent $150,000 in fit-out costs in the short period that he had access to the property before the lease was signed.

1. Mr Metledge submitted that Mr Yi's evidence was knowingly false.
2. The centrepiece of Mr Metledge's submission concerning fraud was an affidavit sworn by a Mr Robert Pignataro on 20 December 2024. In that affidavit, Mr Pignataro gives evidence about a telephone conversation he had with Mr Pak on 14 November 2024. Mr Metledge relies on that affidavit to prove the truth of the matters attributed to Mr Pak. The evidence is thus hearsay. Mr Metledge informed me that Mr Pak was "willing to come to Australia and give evidence". It follows that I understood Mr Metledge to accept that Mr Pak was available to give evidence (with the result that the evidence would not be admissible at a final hearing to prove the truth of the matters attributed to Mr Pak pursuant to s 63 of the Evidence Act 1995 (Cth); the evidence is admissible on an interlocutory application, however: s 75).
3. In any event, the statements attributed to Mr Pak included, critically, statements that:

(a) The dealings between Mr Metledge and Mr Yi about which he was being asked took place "a long time ago". He said he was "not involved in money negotiations" and that he "[didn't] know what was paid for that transaction".

(b) He said that there "was never any cash payment made to Tony Metledge in front of [him]". He said that there "was no key money involved at all". He denied giving Mr Metledge a receipt for $40,000.

(c) He said that he sold the existing restaurant business to another person for $170,000, but then the plaintiff wanted to buy the business. He said that "[i]nstead of paying for the business, Yi said he would pay the amount [the former lessee] owed [the company], if [the plaintiff] was given a lease directly from the landlord without having to buy the business."

1. Mr Metledge further relied on various documents that he tendered in evidence before me:

(a) First, there was a document entitled "Business Sales Advice" which recorded a sale (or perhaps more likely proposed sale) of the previous restaurant business to Mr Chang for $175,000 on 1 July 2016. Mr Pak is recorded as the agent for the sale. The document refers to various special conditions, which include the renewal of the lease on particular terms. Those terms include a term of five years, with a five year option, and an annual rent increase of 4%.

(b) Secondly, there was an email, which appears to be dated 22 July 2016 (the numbers "7", "22" and "2016" are interspersed amongst various Korean characters), from Keith Kwon (who appears to be a solicitor) to Lee Justin (who I was informed was the owner of the existing restaurant business). The email includes Korean characters amongst which the word "Mary" appears (Mary is the first name of Mrs Metledge). Underneath the Korean characters it says:

Please confirm that you will grant a new lease to Mr Chang's company with following terms and conditions:-

1. Term: 5 years
2. Option: 5 years
3. Rent:
4. Annual increase: 5%
5. Bond: Amount equivalent to 3 months rental.

That email was then, in turn, forwarded by Lee Justin to a person I cannot identify (because the name is written entirely in Korean characters) on 18 October 2016.

(c) Thirdly, there was an email, dated 29 July 2016, from Mr Chang's solicitor to the real estate agent engaged by the company to manage the premises. The email stated that the solicitor acted for "the prospective purchaser" of the restaurant business, and provided certain information about the experience and financial position of Mr Chang. The solicitor then indicated the terms upon which their client wished to enter into a lease of the premises. Those terms included a seven year term (with a seven year option), and annual rent increases of 4%. The real estate agent then forwarded that email to Mrs Metledge on 30 July 2016.

(d) Fourthly, there was an email, dated 20 November 2016, from Mr Pak to Mr Metledge. The email stated that (with errors in the original):

He was screaming yesterday, that he will not do anything unless he gets paid in full amount of purchasing price money from my client.

My client is happy to pay him the money but his understanding of the status of the business at the moment is that mr lee no longer own the business.

He does not have right to sell his business when it was lock up

And its been closed over a month.

I am struggling to secure everyones interest and make sure no one loose out of the deal.

I will have one more meeting with mr lee tomorrow

And let you know by midday.

My client as a tennent they desperately want start quickly as possible, because they already have teams set up and ready to start. and the ream is waiting for an answer.

And if it does'nt work out for mr lee to produce that letter

They are happy to have meeting with you anytime.

I would infer that the "he" in that statement is Mr Lee (presumably, Lee Justin, the owner of the previous restaurant). I would further infer that "my client" is a reference to Mr Yi.

(e) Fifthly, there was an email dated 22 November 2016, from Mrs Metledge to the solicitor acting for Mr Yi. It included the statement:

Please confirm that your clients wish to hand over the cheques in return for the key to the premises. Tony has left to hand over the key so I would appreciate a return email simply confirming the arrangement.

1. It may be readily accepted that the net effect of all of that evidence is that there is a controversy as to various events connected with the plaintiff's entry into a lease with the company. I am not persuaded, however, that it demonstrates, to the requisite very high standard, the existence of fraud on the part of the plaintiff. As Kirby P observed in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539:

In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.

1. It is for the following reasons that I am not satisfied that Mr Metledge has proved fraud:

(a) The hearsay evidence of Mr Pak, given on affidavit by Mr Pignataro, although admissible on an interlocutory application, does not show anything more than that there is a contest of evidence required to be resolved. And even if Mr Pak's evidence were accepted, it would not prove that Mr Yi's evidence to the Tribunal was knowingly false (as opposed to mistaken). Mr Pak began by saying that the events in question were "a long time ago" and that he "was not involved in money negotiations". It follows that it is possible that Mr Pak's own account may be honest but unreliable or incomplete. The fact that Mr Pak does not recall there being any cash payment made "in front of [him]" does not definitively exclude one being made. The evidence about the dealings involving the former lessee and the way in which the deal came to be structured, likewise, does not seem to me to provide a basis upon which I could be satisfied that Mr Yi deliberately lied. The events in question took place more than eight years earlier. They appear to have involved a range of interactions between different people at different times. It is entirely possible that witnesses may have honest but differing recollections of what occurred, and that different protagonists may have had different understandings of the purposes for which certain payments were made. None of this is to express a view as to whether Mr Pak's evidence would be accepted in preference to Mr Yi's or not. It is simply to observe that I do not find Mr Pak's account to be sufficient to establish perjury on the part of Mr Yi.

(b) I am not satisfied that the various emails and documents concerning the sale of the previous restaurant business and related negotiations take matters any further:

(i) Insofar as the Business Sales Advice is concerned, there is no basis upon which it may be inferred that Mr Yi was aware of that document. It records a transaction proposed, if not entered into, some months before his interest in the site arose. Whether that transaction remained on foot in October and, if so, whether Mr Yi was aware of it (and, if he was, what his understanding was) are not matters upon which this document sheds any light.

(ii) I would infer that the 22 July 2016 email was a draft email prepared by the former restaurant owner's solicitor to send to the company seeking its agreement to enter into a lease with Mr Chang on the terms Mr Lee had agreed with Mr Chang. There is no evidence that an email in those terms was in fact sent. The email thus supports the fact that there was an agreement, or proposed agreement, to sell the existing restaurant business to Mr Chang in July 2022, but not much more than that. I am unable to draw any relevant conclusion from the apparent forwarding of that message to an unknown recipient in October 2016.

(iii) The email of 29 July 2016 (and its forwarding to Mrs Metledge the following day) once again supports the fact that there were discussions concerning the proposed sale of the existing restaurant (and associated negotiations regarding the terms upon which the lease would be agreed with Mr Chang) in July 2016. But there was no evidence as to what happened to those discussions by October 2016. And they do not prove that Mr Yi was aware of the discussions, or their terms.

(c) The email of 20 November 2016 provides some, albeit hearsay, support for the conclusion that Mr Yi was aware in 2016 that the former owner of the restaurant wanted to be paid money. The meaning of the statement that "My client is happy to pay him the money but his understanding of the status of the business at the moment is that mr lee no longer own the business" and that Mr Lee "does not have right to sell his business when it was lock up [a]nd it's been closed over a month" is not entirely clear, however. For one thing, of course, the email is not Mr Yi's, but rather sets out Mr Pak's assessment of Mr Yi's position. At the very least, therefore, it allows for the possibility of a misunderstanding or misconstruction of Mr Yi's state of mind by Mr Pak. For another thing, it is in fact consistent with Mr Yi's evidence that he did not offer to purchase the pre-existing business, and in fact regarded there as being nothing to buy. It thus appears to demonstrate only that Mr Yi understood that a payment of money might be required to get the deal done. To whom it would be required to be paid (i.e., who is the "him" that Mr Yi is said to be happy to pay?), and the precise reasons why, I think are not sufficiently resolved by this email. And, of course, whatever Mr Yi's state of knowledge and state of mind was in 2016, that could not conclusively determine whether the evidence he gave in 2024 was knowingly false (as opposed to wrong).

(d) Finally, the email of 22 November 2016 would appear to be consistent with the proposition that Mr Yi was not given the keys to the premises until 22 November 2016. But it does not prove, for example, that Mr Yi was not simply mistaken (or even, strictly speaking, that he was wrong) when he said he recalled receiving the key "on or about" 14 November 2016. Furthermore, the email does not clearly identify what "the cheques" were in return for which the keys would be provided.

(e) Insofar as it was alleged that Mr Yi's evidence that he had spent $150,000 on fitting out the premises in advance of signing the lease is concerned, I have already mentioned that I have been unable to identify in the evidence before me that he in fact gave such evidence. In any event, in the terms it was described to me, the evidence would not necessarily have required physical access to the property before expenses could be incurred. It goes without saying that a liability for work may be incurred in advance of the work being performed. Furthermore, it is possible that work might have been performed in advance of access to the premises being granted. Once again, I emphasise that I am not making a finding one way or another as to what happened. I am simply making the point that, even taking Mr Metledge's submission at its highest, I do not think that it is capable of proving fraud.

1. Overall, of course, I have not overlooked the fact that evidence should not be considered piecemeal, and must be considered as a whole. Even when all of the evidence upon which Mr Metledge relied is assessed together, and taken at its highest, it is not capable of establishing that Mr Yi engaged in perjury before the Tribunal, and thus obtained the Local Court judgment by fraud. The evidence is not capable of proving that Mr Yi was not giving honest but unreliable evidence in 2024, some eight years after the relevant events. More than that, the combined effect of the evidence is ambiguous or, at the very least, lacking sufficient cogency to prove fraud to the strict standard required.
2. Furthermore, some of the evidence upon which Mr Metledge relied was plainly available to the company at the time of the Tribunal hearing (in particular, the emails sent by or to Mr and Mrs Metledge). Such evidence would thus not, on its own, provide a basis upon which a judgment obtained by fraud may be set aside. I am prepared, however, to proceed on the basis that the use Mr Metledge seeks to make of that evidence is in combination with other, more recently obtained, evidence.
3. In circumstances where I am not persuaded that Mr Metledge has succeeded in proving fraud on the part of the plaintiff before the Tribunal, it is not necessary that I consider whether, if he had, the result would have been that the winding up order made in this Court was also obtained by fraud. There is, of course, no suggestion that any perjured evidence was given in this Court. The plaintiff simply relied on the failure to comply with a statutory demand. It was not in dispute that a statutory demand had been issued and that it had not been complied with. It was no part of the plaintiff's case in this Court to "re-prove" the basis upon which the Tribunal decision had been given. The Tribunal decision (and the Local Court judgment issued in consequence of it) had not been (and still have not been) set aside. In those circumstances there might be thought to be a question as to whether the winding up orders were obtained by fraud.
4. Nor do I need to determine whether it would have been appropriate to attack the orders made in this Court on the basis that they were obtained by fraud in circumstances where the Tribunal decision (and Local Court judgment) have not been set aside and, so far as I am aware, Mr Metledge is making no effort to do so.

1. For all of the above reasons, Mr Metledge's interlocutory application should be dismissed with costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens .