Kogan, in the matter of Rogulj Enterprises Pty Ltd (in liq) (No 2) [2021] FCA 1504

Kogan, in the matter of Rogulj Enterprises Pty Ltd (in liq) (No 2) [2021] FCA 1504

Approval under s 477(2B) was granted because the amending agreement fell within s 477(2B), Court approval was necessary, Mr Kogan's evidence supported that entry into the amending agreement was in the Company's interests and directed to advancing creditors' interests, the change to distribution priorities was neutral as to potential creditor distributions, 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 disclosure of the funding arrangements may prejudice the proper administration of justice by giving proposed defendants an unfair advantage.

Jurisdiction
Australia
Judgment Date
24 November 2021
Procedural Posture
Corporations Application by Liquidators for Approval Under S 477(2 B) of the Corporations Act 2001 (cth) to Enter Into an Amending Funding Agreement, With Confidentiality Orders Sought / Interlocutory Application Dated 4 November 2021 Heard and Determined on 24 November 2021
Outcome
Application successful; approval and confidentiality orders made.
Legal Topics
["liquidators' Powers" 'approval of Funding Agreement Under S 477(2 B)' 'litigation Funding' 'confidentiality Orders' 'proper Administration of Justice']
['corporations' 'corporate Insolvency' 'practice and Procedure'] ["liquidators' Powers" 'approval of Funding Agreement Under S 477(2 B)' 'litigation Funding' 'confidentiality Orders' 'proper Administration of Justice']

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Procedural Posture

Corporations Application by Liquidators for Approval Under S 477(2 B) of the Corporations Act 2001 (cth) to Enter Into an Amending Funding Agreement, With Confidentiality Orders Sought / Interlocutory Application Dated 4 November 2021 Heard and Determined on 24 November 2021

Legal Issues

  1. 1 ['Whether the liquidators should be granted approval under s 477(2B) of the Corporations Act 2001 (Cth) to enter into the amending agreement where the term or obligations may exceed three months.' "Whether the proposed entry into the amending agreement was a proper exercise of the liquidators' powers and in the interests of the Company and creditors." 'Whether confidentiality orders should be made in respect of the Second Kogan Affidavit and Annexure BFK-3 to prevent prejudice to the proper administration of justice.']

Ratio Decidendi

Approval under s 477(2B) was granted because the amending agreement fell within s 477(2B), Court approval was necessary, Mr Kogan's evidence supported that entry into the amending agreement was in the Company's interests and directed to advancing creditors' interests, the change to distribution priorities was neutral as to potential creditor distributions, 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 disclosure of the funding arrangements may prejudice the proper administration of justice by giving proposed defendants an unfair advantage.

Court Disposition

Application successful; approval and confidentiality orders made.

Orders

  • ['Pursuant to s. 477(2B) of the Corporations Act 2001 (Cth), the first plaintiffs be granted approval nunc pro tunc to enter into the amending agreement in the form located at Annexure BFK-3 to the Affidavit of Barry Frederic Kogan sworn 4 November 2021.' 'Pursuant to ss. 37AI, 37AF and 37AG of the Federal Court of...