In the matter of Bluemine Pty Ltd (in liq) [2019] NSWSC 1474

In the matter of Bluemine Pty Ltd (in liq) [2019] NSWSC 1474

The Applicants were granted a limited release from the implied undertaking to use specific documents in settlement discussions with the Commissioner of Taxation, as there was good reason and no opposition. However, their application to appoint special purpose liquidators was dismissed due to their reliance on hypothetical scenarios lacking sufficient factual basis, insufficient articulation of a reasonably arguable case for objection, and inadequate provision for funding and investigation regarding whether an objection should be pursued.

Parties
First Plaintiff/respondent: Mitchell Warren Ball in his capacity as Liquidator of Bluemine Pty Limited (in liq); Second Plaintiff/respondent: Bluemine Pty Limited (in liq); Third Defendant/applicant: LAM Haulage Pty Ltd; Fourth Defendant/applicant: MAL Land Group Pty Ltd; Fifth Defendant/applicant: The Great Brothers Pty Ltd; Twentieth Defendant/applicant: Andre Abou-Antoun; Twenty First Defendant/applicant: Michael Abou-Antoun; Twenty Third Defendant/applicant: AKA (NSW) Pty Ltd; Twenty Fourth Defendant/applicant: AKA (Civil) Australia Pty Ltd; Eleventh Defendant: Gino Cassaniti
Jurisdiction
Australia
Judgment Date
22 October 2019
Procedural Posture
Notice of Motion in Liquidation Proceedings / Interlocutory Application Ruling on Notice of Motion
Outcome
Application partly granted, partly dismissed
Legal Topics
Implied Undertaking – Release From Implied Undertaking, Liquidators – Special Purpose Liquidator – Appointment and Funding, Settlement Discussions – Use of Court Documents, Taxation Objections – Conduct of Liquidation
Civil Procedure Corporations Law Implied Undertaking – Release From Implied Undertaking Liquidators – Special Purpose Liquidator – Appointment and Funding Settlement Discussions – Use of Court Documents Taxation Objections – Conduct of Liquidation

Case Brief

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Parties

Mitchell Warren Ball in his capacity as Liquidator of Bluemine Pty Limited (in liq)

First Plaintiff/respondent

Bluemine Pty Limited (in liq)

Second Plaintiff/respondent

LAM Haulage Pty Ltd

Third Defendant/applicant

MAL Land Group Pty Ltd

Fourth Defendant/applicant

The Great Brothers Pty Ltd

Fifth Defendant/applicant

Andre Abou-Antoun

Twentieth Defendant/applicant

Michael Abou-Antoun

Twenty First Defendant/applicant

AKA (NSW) Pty Ltd

Twenty Third Defendant/applicant

AKA (Civil) Australia Pty Ltd

Twenty Fourth Defendant/applicant

Gino Cassaniti

Eleventh Defendant

Procedural Posture

Notice of Motion in Liquidation Proceedings / Interlocutory Application Ruling on Notice of Motion

Legal Issues

  1. 1 Whether Applicants should be released from the implied undertaking in Hearne v Street to permit use of documents in settlement discussions with Commissioner of Taxation
  2. 2 Whether special purpose liquidators should be appointed to lodge a taxation objection on Bluemine’s behalf under Pt IVC Taxation Administration Act 1953 (Cth)

Ratio Decidendi

The Applicants were granted a limited release from the implied undertaking to use specific documents in settlement discussions with the Commissioner of Taxation, as there was good reason and no opposition. However, their application to appoint special purpose liquidators was dismissed due to their reliance on hypothetical scenarios lacking sufficient factual basis, insufficient articulation of a reasonably arguable case for objection, and inadequate provision for funding and investigation regarding whether an objection should be pursued.

Court Disposition

Application partly granted, partly dismissed

Orders

  • Release Applicants and their legal representatives from the implied undertaking referred to in Hearne v Street (2008) 235 CLR 125 for use of specified documents in settlement discussions with the Commissioner of Taxation, in proceedings 2016/256135 and 2016/194955.
  • Otherwise, the Notice of Motion filed 20 September 2019 is dismissed.