Dixon (Liquidator), in the matter of Victoria Project Pty Ltd v Austhome Group Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 01 February 2023
• Neutral Citation: [2023] FCA 42
• Date: 01 February 2023

Federal Court of Australia

Dixon (Liquidator), in the matter of Victoria Project Pty Ltd v Austhome Group Pty Ltd [2023] FCA 42

File number(s):	VID 105 of 2021
Judgment of:	MCELWAINE J
Date of judgment:	1 February 2023
Catchwords:	CORPORATIONS – application by liquidator pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) – liquidator remuneration – interpretation of deed of settlement and release - meaning of the phrase “costs of the liquidation” ; CONSUMER LAW – claim for misleading or deceptive or unconscionable conduct pursuant to the Australian Consumer Law – where liquidator made representations as to the remuneration for his appointment as liquidator – whether liquidator had reasonable grounds for making the remuneration representations
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 4, 18, 21 Corporations Act 2001 (Cth) ss 232, 233, 491, 494, 495, Sch 2 (Insolvency Practice Schedule (Corporations)) ss 60-10, 90-15 Federal Court Rules 2011 (Cth) rr 28.62-28.67
	Australian Restructuring Insolvency and Turnaround Association (ARITA) Code of Professional Practice, 3rd edition from 1 January 2014
Cases cited:	Australia Pacific LNG Pty Ltd v Sooner Insurance Company [2021] QSC 43 Australian Competition and Consumer Commission v ACM Group Ltd (No 2) [2018] FCA 1115 Australian Competition and Consumer Commission v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 Australian Competition and Consumer Commission v Woolworths Group Ltd (formerly called Woolworths Limited) (2020) 281 FCR 108; [2020] FCAFC 162 Australian Competition and Consumer Commission v Woolworths Ltd [2019] FCA 1039 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (2019) 140 ACSR 561; [2019] FCA 1932 Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 Brown v Gould [1972] 1 Ch 53 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 Good Living Company Pty Ltd v Kingsmede Pty Ltd (2021) 284 FCR 424; [2021] FCAFC 33 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 In the matter of RMGA Pty Ltd [2012] NSWSC 678 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631; [2018] FCAFC 155 Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	163
Date of hearing:	24-26 October 2022, 7 November 2022
Counsel for the Plaintiffs:	Mr CR Brown
Solicitor for the Plaintiffs:	CLH Lawyers
Counsel for the First and Second Defendants:	Mr L Currie
Solicitor for the First and Second Defendants:	Aitken Partners
Counsel for the Third, Fourth, Fifth, Sixth and Seventh Defendants:	Mr AA Segal
Solicitor for the Third, Fourth, Fifth, Sixth and Seventh Defendants:	Hunt & Hunt Lawyers
Counsel for the Cross-Defendants:	Ms CM Pierce
Solicitor for the Cross-Defendants:	Moray & Agnew

ORDERS

		VID 105 of 2021
IN THE MATTER OF VICTORIA PROJECT PTY LTD (IN LIQUIDATION)
BETWEEN:	STEPHEN ROBERT DIXON AS LIQUIDATOR OF VICTORIA PROJECT PTY LTD (IN LIQUIDATION) (ACN 142 329 155) First Plaintiff ; VICTORIA PROJECT PTY LTD (ACN 142 329 155) (IN LIQUIDATION) Second Plaintiff
AND:	AUSTHOME GROUP PTY LTD (ACN 091 589 089) First Defendant ; DAVID WU Second Defendant ; LING & YU PTY LTD (ACN 126 062 833) (and others named in the Schedule) Third Defendant
AND BETWEEN:	XUE BIN (DAVID) WU (and another named in the Schedule) First Cross-Claimant
AND:	STEPHEN ROBERT DIXON (and another named in the Schedule) First Cross-Defendant

order made by:	MCELWAINE J
DATE OF ORDER:	1 February 2023

THE COURT ORDERS AND DECLARES THAT:

1. Upon a proper construction of the deed of settlement and release dated 29 August 2019 made between:

   1. Victoria Project Pty Ltd (ACN 142 329 155);

   2. Xin Zhang;

   3. Xue Bin Wu;

   4. Wei Jing Lin;

   5. Fei Wen;

   6. Yu Zheng;

   7. Austhome Group Pty Ltd (ACN 091 589 089);

   8. Rising Fortune Pty Ltd (ACN 141 982 738);

   9. Jia Wen Su;

   10. Ling & Yu Pty Ltd (ACN 126 062 833);

   11. Australia Morning Pty Ltd (ACN 126 644 086));

   12. Winston & Glen Zheng Pty Ltd (ACN 141 136 656); and

   13. Jia Feng Pty Ltd (ACN 148 196 196);

the costs of the liquidation of Victoria Project Pty Ltd (the company) at clauses 2(j), (k) and (l) is limited to the remuneration, costs and expenses of the liquidator and the costs of any third party engaged by the liquidator whether for or on behalf of the company or in his capacity as liquidator incurred in consequence of the appointment of Mr Stephen Robert Dixon as liquidator of the company on 23 October 2019 and does not include expenses, costs or other liabilities that the company would have incurred in any event in the conduct of its business as a property developer and landlord if a liquidator not been appointed, even where such expenses are incurred during the period of the liquidation.

2. The cross-claim is dismissed.

3. The matter is adjourned for further submissions or hearing, if necessary, of all questions of consequential orders and relief, including costs.

4. The parties have leave to file submissions limited to 3 pages as to consequential orders and relief, including costs, by 4pm on 15 February 2023.

5. Subject to any further order of the Court, the determination of all consequential orders will proceed on the papers.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1. This proceeding began life on 9 March 2021 as an orthodox application for judicial advice and for determination of remuneration by Stephen Dixon as liquidator of Victoria Project Pty Ltd (in liquidation) (VPPL) pursuant to ss 90-15 and 60-10 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act 2001...