Kogan, in the matter of Rogulj Enterprises Pty Ltd (in liq) (No 3) [2023] FCA 977

Kogan, in the matter of Rogulj Enterprises Pty Ltd (in liq) (No 3) [2023] FCA 977

Approval under s 477(2B) was appropriate because the experienced liquidator considered the 2023 amending agreement to be in the Company's interests, taking into account creditors' interests; the increased funding would assist the preparation and prosecution of claims that may produce recoveries for creditors; the amended commission structure was commensurate with the increased risk borne by the funder; and there was no suggestion that entry into the amending agreement was an improper exercise of the liquidators' powers or otherwise ill-advised. Confidentiality orders were warranted because they were necessary to prevent prejudice to the proper administration of justice.

Jurisdiction
Australia
Judgment Date
17 August 2023
Procedural Posture
Interlocutory Application by Liquidators for Approval Under S 477(2 B) of the Corporations Act 2001 (cth) to Enter Into a 2023 Amending Agreement to a Funding Agreement, and for Confidentiality Orders / Application Heard and Determined; Approval and Confidentiality Orders Granted
Outcome
Application granted; approval nunc pro tunc and confidentiality orders made.
Legal Topics
["liquidators' Powers" 'approval of Funding Agreement' 'litigation Funding' 'confidentiality Orders' 'suppression Orders']
['corporations' 'insolvency' 'practice and Procedure'] ["liquidators' Powers" 'approval of Funding Agreement' 'litigation Funding' 'confidentiality Orders' 'suppression Orders']

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Procedural Posture

Interlocutory Application by Liquidators for Approval Under S 477(2 B) of the Corporations Act 2001 (cth) to Enter Into a 2023 Amending Agreement to a Funding Agreement, and for Confidentiality Orders / Application Heard and Determined; Approval and Confidentiality Orders Granted

Legal Issues

  1. 1 ['Whether the liquidators should be granted approval nunc pro tunc under s 477(2B) of the Corporations Act 2001 (Cth) to enter into the 2023 amending agreement to the funding agreement.' 'Whether confidentiality orders should be made under ss 37AF, 37AG and 37AI of the Federal Court of Australia Act 1976 (Cth) in respect of evidence and submissions relied on in support of the application.']

Ratio Decidendi

Approval under s 477(2B) was appropriate because the experienced liquidator considered the 2023 amending agreement to be in the Company's interests, taking into account creditors' interests; the increased funding would assist the preparation and prosecution of claims that may produce recoveries for creditors; the amended commission structure was commensurate with the increased risk borne by the funder; and there was no suggestion that entry into the amending agreement was an improper exercise of the liquidators' powers or otherwise ill-advised. Confidentiality orders were warranted because they were necessary to prevent prejudice to the proper administration of justice.

Court Disposition

Application granted; approval nunc pro tunc and confidentiality orders made.

Orders

  • ['Pursuant to section 477(2B) of the Corporations Act 2001 (Cth), the first plaintiffs were granted approval nunc pro tunc to enter into the amending agreement in the form located at pages 217 to 223 of the confidential Exhibit BFK-4 of the affidavit of Barry Frederic Kogan sworn on 26 July 2023.' 'Pursuant to...