Ford v Commissioner of Taxation, in the matter of Careers Australia Group Limited (in liq) (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 28 September 2022
• Neutral Citation: [2022] FCA 1151
• Date: 28 September 2022
• Court: Federal Court

Federal Court of Australia

Ford v Commissioner of Taxation, in the matter of Careers Australia Group Limited (in liq) (No 2) [2022] FCA 1151

File numbers:	VID 238 of 2020VID 749 of 2021
Judgment of:	O'BRYAN J
Date of judgment:	28 September 2022
Catchwords:	PRACTICE AND PROCEDURE – case management –whether issue of insolvency should be referred to a referee for inquiry and report in accordance with s 54A of the Federal Court of Australia Act 1976 (Cth) – alternatively, whether issue of insolvency to be determined at trial on the basis of lay and expert evidence – whether discovery to be given on the issue of insolvency
Legislation:	Corporations Act 2001 (Cth) s 588G(1) Federal Court of Australia Act 1976 (Cth) ss 37M, 54A Federal Court Rules 2011 (Cth) Div 28.6
Cases cited:	Jahani (liquidator) v Alfabs Mining Equipment Pty Ltd, in the matter of Delta Coal Mining Pty Ltd (in liq) (No 2) [2021] FCA 927 Jahani (liquidator) v Commissioner of Taxation, in the matter of Delta Coal Mining Pty Ltd (in liq) [2020] FCA 1642 Kadam v MiiResorts Group 1 Pty Ltd (No 4) (2017) 252 FCR 298 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2012) 203 FCR 520 Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340 Stone in his capacity as liquidator of Cardinal Group Pty Ltd (In Liq) v Ebeid [2020] FCA 343 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Weston in his capacity as liquidator of Starcom Group Pty Ltd (In Liq) v Rajan [2019] FCA 1455
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	47
Date of hearing:	21 September 2022
Counsel for the Plaintiffs (VID 238/2020 and VID 749/2021):	Mr M Borsky KC with Mr D Krochmalik
Solicitor for the Plaintiffs (VID 238/2020 and VID 749/2021):	Gilbert + Tobin
Counsel for the Commissioner of Taxation (Defendant in VID238/2020):	Mr H Austin KC with Ms C Mavroudis
Solicitor for the Commissioner of Taxation (Defendant in VID 238/2020):	Craddock Murray Neumann
Counsel for Patrick McKendry (Respondent in VID 238/2020, Second Defendant in VID 749/2021):	Mr A Broadfoot KC with Ms S Brenker
Solicitor for Patrick McKendry (Respondent in VID 238/2020, Second Defendant in VID 749/2021):	Barry.Nilsson Lawyers
Counsel for the First Defendant (VID 749/2021):	Mr B Gibson
Solicitor for the First Defendant (VID 749/2021):	Johnson Winter & Slattery
Counsel for the Third, Fourth, Fifth, Eighth and Eleventh Defendants (VID 749/2021):	Mr N Hopkins KC
Solicitor for the Third, Fourth, Fifth, Eighth and Eleventh Defendants (VID 749/2021):	MinterEllison
Counsel for the Sixth, Seventh and Twelfth Defendants (VID 749/2021):	Mr R Dick KC
Solicitor for the Sixth, Seventh and Twelfth Defendants (VID 749/2021):	Arnold Bloch Leibler
Solicitor for the Ninth Defendant (VID 749/2021):	Sparke Helmore Lawyers
Solicitor for the Tenth Defendant (VID 749/2021):	Lander & Rogers

ORDERS

		VID 238 of 2020
IN THE MATTER OF CAREERS AUSTRALIA GROUP LIMITED (IN LIQUIDATION) ACN 122 171 840
BETWEEN:	MARTIN FRANCIS FORD AS LIQUIDATOR FOR CAREERS AUSTRALIA GROUP LIMITED (IN LIQUIDATION) ACN 122 171 840 First Plaintiff ; CAREERS AUSTRALIA GROUP LIMITED (IN LIQUIDATION) ACN 122 171 840 (and others named in the Schedule) Second Plaintiff
AND:	COMMONWEALTH COMMISSIONER OF TAXATION Defendant
	PATRICK MCKENDRY Respondent

order made by:	O'BRYAN J
DATE OF ORDER:	28 September 2022

THE COURT NOTES THAT:

1. Directions in the same terms have been made in proceeding VID 749 of 2021, with the intention that the parties will confer in both proceedings and the same orders will be made in both proceedings.

THE COURT DIRECTS THAT:

1. The parties are to confer with respect to orders for the completion of discovery by all parties on the issue of insolvency as contemplated by the Court’s reasons dated today and, by 28 October 2022, file and serve:

(a) agreed or, failing agreement, competing orders with respect to such discovery; and

(b) in the case of competing orders, accompanying outline submissions of no more than 2 pages.

2. The parties are to confer with respect to the following matters concerning a referral of the question of the insolvency of the plaintiff companies to a referee as contemplated by the Court’s reasons dated today:

(a) the selection of a referee;

(b) the questions to be answered; and

(c) the date on which the reference is to commence and the date by which the referee is to report,

and, by 28 October 2022, file and serve:

(d) agreed or, failing agreement, competing orders with respect to the referral; and

(e) in the case of competing orders, accompanying outline submissions of no more than 3 pages.

3. The parties are to confer with respect to orders for the completion of discovery by all parties on issues arising in the proceeding (other than the issue of insolvency) as contemplated by the Court’s reasons dated today and, by 25 November 2022, file and serve:

   1. agreed or, failing agreement, competing orders with respect to such discovery; and

   2. in the case of competing orders, accompanying outline submissions of no more than 6 pages.

4. Subject to further order, any dispute with respect to the further orders contemplated by directions 1, 2 and 3 above will be determined on the papers.

5. There be liberty to apply.

6. Costs be reserved.

7. The proceeding be listed for further case management on a date to be fixed.

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

ORDERS

		VID 749 of 2021
IN THE MATTER OF CAREERS AUSTRALIA GROUP LIMITED (IN LIQUIDATION)
BETWEEN:	MARTIN FRANCIS FORD AS LIQUIDATOR FOR CAREERS AUSTRALIA GROUP LIMITED (IN LIQUIDATION) ACN 122 171 840 First Plaintiff ; CAREERS AUSTRALIA GROUP LIMITED (IN LIQUIDATION) ACN 122 171 840 (and others named in the Schedule) Second Plaintiff
AND:	MR ROBERT MANSFIELD First Defendant ; MR PATRICK MCKENDRY (and others named in the Schedule) Second Defendant

order made by:	O'BRYAN J
DATE OF ORDER:	28 September 2022

THE COURT NOTES THAT:

1. Directions in the same terms have been...