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  4. Re LM Investment Management Ltd (in liq) - [2022] QSC 132

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Re LM Investment Management Ltd (in liq)[2022] QSC 132

Re LM Investment Management Ltd (in liq)[2022] QSC 132

SUPREME COURT OF QUEENSLAND

CITATION:

Re LM Investment Management Ltd (in liq) [2022] QSC 132

PARTIES:

RAYMOND EDWARD BRUCE

(first applicant)

AND

VICKI PATRICIA BRUCE

(second applicant)

v

LM INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) ACN 077 208 461 IN ITS CAPACITY AS RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND

(first respondent)

AND

THE MEMBERS OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288

(second respondent)

AND

ROGER SHOTTON

(third respondent)

AND

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

(intervener)

FILE NO:

BS 3383 of 2013

DIVISION:

Trial Division

PROCEEDING:

Interlocutory Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 June 2022

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

10 June 2022

JUDGE:

Kelly J

ORDER:

  1. David Whyte, as the person appointed under section 601NF(1) of the Corporations Act 2001 (Cth) to ensure that the LM First Mortgage Income Fund (‘FMIF’) is wound up in accordance with its constitution and any orders of the Court, and as the receiver of the property of the FMIF, is justified in settling Supreme Court proceeding 2166 of 2015 on the terms set out in the Terms of Settlement (‘the Terms of Settlement’) exhibited to Mr Whyte’s affidavit filed in Court on 10 June 2022, and in causing LM Investment Management Limited (in liquidation) (‘LMIM’) as the responsible entity of the FMIF (receiver appointed) to enter into and perform the Terms of Settlement.
  2. Mr Whyte’s costs of and incidental to this application be costs in the winding up of the FMIF, to be paid out of the assets of the FMIF.
  3. The following documents be placed in a sealed envelope to be held on the Court’s file and not opened without an order of the Court, with the envelope to be so endorsed, and not be placed on the Court’s electronic file:
    1. the Affidavit of David Whyte filed 10 June 2022;
    2. the Affidavit of Tegan Jade Harris filed 10 June 2022; and
    3. the written submissions filed on behalf of Mr Whyte dated 9 June 2022.

CATCHWORDS:

CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – POWERS – TO APPLY TO COURT FOR DIRECTIONS – where the applicant was appointed by orders of this Court of 21 August 2013 to take responsibility for winding up a registered managed investment scheme and act as the receiver of the property of that scheme  –  where the scheme sought investment via the purchase of units in a fund from the public to make loans to property developers secured by registered mortgages over real property  –  where the fund was adversely affected by the Global Financial Crisis, and the loans went into default  –  where the responsible entity of the scheme was placed into liquidation on 1 August 2013  –  where the fund and the responsible entity were required to engage, and did engage a registered auditor perform compliance plan audits and financial statement audits  –  where the responsible entity engaged in related party transactions which breached its duties under the Corporations Act 2001 (Cth)  –  where the applicant brought proceedings against the auditor  in the name of the responsible entity of that scheme  on 2 March 2015  –  where those proceedings involve allegations that the auditor was negligent, engaged in misleading and deceptive conduct, breached certain provisions of the Corporations Act 2001 (Cth), did not perform duties to the standard of a reasonably competent auditor, and failed to comply with Australian Accounting Standards in relation to compliance plan audits, and had those compliance plan audits and financial statement audits  been conducted properly, the related party transactions would not have occurred or would not have been permitted to occur without adverse comment from the auditors  –  where the loss claimed in those proceedings totals around $255 million  –  where the claims in those proceedings is premised on a counterfactual that the fund would have been wound up from around June 2009, or alternatively that the related-party transactions would not have occurred had the audits been conducted properly  –  where those proceedings have advanced to the point where extensive expert and lay evidence in chief has been prepared and the defendants are preparing their evidence  –  where the trial in those proceedings is currently estimated to take 23 weeks  –  where the parties to those proceedings entered into terms of settlement on 31 May 2022  –  where the applicant applied for directions in the inherent jurisdiction of the Court that he is justified in settling those proceedings according to the terms of settlement of 31 May 2022  –  whether the application ought be heard ex parte and in closed court  –  whether the applicant is justified in settling those proceedings on the terms agreed on 31 May 2022.

Corporations Act 2001 (Cth) s 601NF.

Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240, cited

Bruce v LM Investment Management Limited (in liq) [2019] QSC 126, cited

Coronar (Australia) Pty Ltd v Lake Vermont Marketing Pty Ltd [2017] QSC 120, cited

David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, cited

Gardner v London Chatham and Dover Railway Co (No 1) (1867) LR 2 Ch App 201, cited

Hodges v Waters (No 7) (2015) 232 FCR 97, cited

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, cited

Re GB Nathan & Co Pty Ltd (In Liq) (1991) 24 NSWLR 674, cited

Re Great Southern Managers Australia Ltd (in liq) [2014] WASC 312, cited

Re McDermott and Potts (in their capacities as joint and several liquidators of Lonnex Pty Ltd (in liq)) [2019] VSCA 23, cited

Re Octaviar [2020] QSC 353, cited

Re One.Tel Ltd (2014) 99 ACSR 247, cited

Rosanove v O'Rourke [1988] 1 Qd R 171, cited

COUNSEL:

S Doyle QC, D Ananian-Cooper and N Derrington for the applicant.

SOLICITORS:

Gadens for the applicant.

Introduction

  1. [1]
    By orders of this Court made on 21 August 2013, Mr David Whyte (“the applicant”) was relevantly appointed:
    1. (a)
      pursuant to s 601NF(1) of the Corporations Act 2001 (Cth) (“the Act”) to take responsibility for the winding up of the registered managed investment scheme known as LM First Mortgage Income Fund (“the Fund”); and
    2. (b)
      pursuant to s 601NF(2) of the Act as the receiver of the property of the Fund.
  2. [2]
    LM Investment Management Ltd (in liquidation) (“LMIM”) is the responsible entity of the Fund. Pursuant to the terms of the orders appointing him, the applicant was relevantly authorised to bring any proceedings on behalf of the Fund in the name of LMIM as was necessary for the winding up of the Fund including, if appropriate, to provide instructions in relation to the settlement of any such proceedings.
  3. [3]
    On 2 March 2015, the applicant commenced proceedings in this Court in the name of LMIM being Supreme Court proceedings 2166 of 2015 (“the Supreme Court proceedings”).
  4. [4]
    On 6 June 2022, the applicant filed an interlocutory application by which he relevantly seeks directions in the inherent jurisdiction of this Court as to whether he is justified in settling the Supreme Court proceedings on the terms set out in a document entitled Terms of Settlement dated 31 May 2022 (“the Terms of Settlement”) and in causing LMIM as the responsible entity of the Fund to enter into and perform the Terms of Settlement.

LMIM, the Fund and the applicant’s appointment

  1. [5]
    LMIM sought investment from the public and investors subscribed for units in the Fund. LMIM invested the money raised by making loans to borrowers in property development which were secured by registered mortgages over real property. The net income of the Fund was regularly distributed to investors, with the object of distributing all income while preserving the capital of the Fund.
  2. [6]
    The Fund has over 4,500 ordinary unitholders.
  3. [7]
    The Fund was adversely affected by the global financial crisis (“the GFC”). Many of the loans went into default in circumstances where it became no longer economically viable to develop property and borrowers were unable to refinance at the end of their terms with other lenders. The real property securities securing the loans of the Fund declined in value. LMIM closed the Fund to further investments from new members from 3 March 2009, suspended redemptions from 11 May 2009 and suspended income distributions from 1 January 2011.
  4. [8]
    On 19 March 2013, John Park and Ginette Muller of FTI Consulting were appointed voluntary administrators of LMIM. On 11 July 2013, Joseph Hayes and Anthony Connelly of McGrath Nicol were appointed by a secured creditor as receivers and managers of the Fund’s property.[1] On 1 August 2013, LMIM’s creditors passed resolutions that LMIM be placed into liquidation and that Mr Park and Ms Muller be appointed liquidators.
  5. [9]
    On 21 August 2013, this Court made orders appointing the applicant, materially in the terms I have already outlined.

The Supreme Court proceedings

  1. [10]
    The Act imposed various requirements upon the Fund and LMIM. The Fund was required to have a constitution and a compliance plan.  LMIM was required to prepare a financial report and financial statements for the Fund on a yearly and half yearly basis. The annual financial reports were required to be audited as was the compliance plan. The half yearly financial report was required to be reviewed or audited. LMIM was required to engage a registered auditor to review or audit the financial reports and to engage a registered auditor to audit compliance with the compliance plan.
  2. [11]
    For the financial years from 2008 to 2012, EY (also known as Ernst & Young) was the auditor of the Fund. During those years, EY was engaged to review and provide a report on the half-yearly financial report, to audit and provide a report on the annual financial report and to audit and provide a report on compliance with the Fund’s compliance plan. Ms Paula McLuskie was the registered auditor who led the reviews and audits of the financial reports for each half-yearly and annual period. Mr Michael Reid was the registered auditor who led the audits of compliance with the compliance plan for each year.   
  3. [12]
    The Supreme Court proceedings have been brought in the name of LMIM, but the applicant has their conduct. The defendants are EY, Ms McLuskie and Mr Reid. The Supreme Court proceedings have a long and difficult procedural history and are, in my respectful view, properly described as exceedingly complex.
  4. [13]
    Some matters can be conveniently set out by way of a general, albeit simplified, overview of the Supreme Court proceedings:
    1. (a)
      LMIM relies upon claims in negligence (both in tort and arising from a breach of an implied duty of skill and care), for misleading or deceptive conduct and breaches of certain statutory provisions;
    2. (b)
      LMIM fundamentally contends that EY, in conducting the financial statements audits and reviews and the compliance plan audits, did not perform duties to the standard of a reasonably competent auditor;
    3. (c)
      In respect of the financial statements audits, LMIM’s broad contention is that the Fund’s financial statements did not recognise any (or, from 31 December 2010, sufficient) impairment, when they should have done so in accordance with Australian Accounting Standard AASB 139 (“AASB 139”). It is alleged that:
      1. a number of loans were in fact impaired, in the period from June 2008 to June 2010;
      2. the assessments of impairment were not based on an adequate determination of fair value of the collateral at each balance date;
      3. a reasonably competent auditor would have recognised these failures and would not have signed off on the accuracy of the financial statements.
    4. (d)
      In respect of the compliance plan audits, LMIM alleges that EY negligently:
      1. failed to identify that the compliance plans did not satisfy the requirements of the Act in relation to valuations and compliance with AASB139;
      2. failed to identify that LMIM was using a discretion to defer valuations otherwise required by the compliance plans, in circumstances where it was obviously inappropriate to do so;
      3. failed to identify that the impairment calculations were not in accordance with AASB 139.
    5. (e)
      LMIM further alleges that:
      1. it engaged in four categories of related party transactions, each of which was a breach of its duties under the Act;
      2. had the financial statements audits and compliance plan audits been performed properly, these transactions would not have occurred or been permitted to occur without adverse comment from the auditors.
    6. (f)
      LMIM’s primary claim for loss is then based on the contention that the incorrect calculation of the unit price had the effect of distorting decision making by LMIM and its directors during and after the GFC. That contention informs a counterfactual to the effect that:
      1. LMIM would have had to have prepared accurate Financial Statements which recognised substantial impairment in the unit price of the Fund, the Fund would have then reported a net loss in each relevant period, LMIM would not have continued to pay adviser commissions or income distributions, and ultimately more investors would have sought to redeem their units;
      2. separately, LMIM would not have engaged in the related party transactions;
      3. in order to meet redemptions, properties securing loans of the Fund could have been sold, and LMIM would have done so because the sale of properties would not have impacted the unit price (as the unit price would have been correctly calculated based upon up to date valuations of what the properties could be sold for);
      4. all of this together would have caused LMIM to wind up the Fund around the middle of 2009.
    7. (g)
      LMIM’s pleaded case is that had this occurred, the Fund’s cashflows would have altered in the following ways, namely:
      1. the net realisations from the Fund’s loans (taking into account different holding costs and sale prices in the counterfactual) would have been greater;
      2. management fees charged by LMIM to the Fund would have been lower as funds under management decreased, and would have effectively ceased once it was wound up;
      3. adviser commissions would not have been paid;
      4. interest and costs paid to banks would have been avoided and/or reduced;
      5. the related party transactions, which resulted in the payment of funds out of the Fund, would not have occurred.
    8. (h)
      These losses are claimed to be in around the sum of $255 million (inclusive of statutory interest);
    9. (i)
      As will be apparent, the counterfactual claim is premised on a contention that a winding up of the Fund would have started in around June 2009.  The precise timing of the hypothetical winding up has important implications for the quantum of the claim;
    10. (j)
      LMIM’s alternative claim for loss does not depend upon an allegation that the Fund would have been wound up. The alternative case is to the effect that had the audits been conducted properly, the unit price correctly identified along with the impermissible related party transactions, the payment of management fees by the Fund would have been reduced, the related party transactions avoided, and additional funds would have been available earlier to repay the Fund’s bank debt thereby reducing or avoiding interest;
    11. (k)
      The alternative quantum is $115 million.
  5. [14]
    The Supreme Court proceedings have advanced to a stage where LMIM’s expert and lay evidence in chief has been prepared and the defendants are preparing their evidence.
  6. [15]
    LIMIM’s evidence is extensive.  Notably:
    1. (a)
      there are 52 reports from 13 property valuers regarding the value of 27 distinct real property assets that secured loans made by the Fund over the five year relevant period;
    2. (b)
      there are reports from an expert accountant and auditor which, in addition to providing opinions on the quality of the financial statement audits and reviews conducted by EY, reconstruct the accounts to demonstrate what the unit price would have been had the assets been properly impaired; and
    3. (c)
      there are reports from a compliance plan audit expert.
  7. [16]
    The extent and timing of the defendants’ evidence is difficult to predict. The second and third defendants have presently invoked the privilege against self-incrimination, so as to excuse themselves from pleading to, and serving evidence in relation to, the claim.
  8. [17]
    The current estimate for the trial is 23 weeks. The Supreme Court proceedings have been managed on this Court’s commercial list and at a recent review it was indicated that the trial may be set down to commence in June 2023.
  9. [18]
    At a second mediation on 31 May 2022, the parties agreed to the Terms of Settlement.

Confidentiality

  1. [19]
    There are matters which have justified the hearing and determination of the interlocutory application ex parte, in a manner which preserves confidential and privileged material.
  2. [20]
    I heard the interlocutory application in closed court and the applicant read and relied upon affidavits which were read subject to confidentiality orders. The confidential material comprised, inter alia, the Terms of Settlement, a description of privileged communications at the mediation and privileged advice from Senior and Junior Counsel who are instructed by the solicitors with the conduct of the Supreme Court proceedings on behalf of the applicant. I have read the affidavit material.
  3. [21]
    I considered that it was appropriate to hear the application ex parte, to close the court and seal the affidavits because:
    1. (a)
      The role of the Court when giving “judicial advice” is properly characterised as the Court exercising its supervisory responsibility for the conduct of the winding up, rather than as resolving a dispute between parties or giving advice to an external party.[2]
    2. (b)
      Judicial advice is hence properly described as “private advice”.[3]
    3. (c)
      In Yuill v Spedley Securities (in liq),[4] the Court (Gleeson CJ, Mahoney and Priestley JJA) relevantly said of applications for judicial advice as to whether to commence proceedings that “Applications of that kind are … ordinarily heard in camera”.
    4. (d)
      In the present case, by this Court’s orders dated 21 August 2013, the applicant was conferred with, inter alia, power and authority to commence, maintain and, if appropriate, settle, proceedings on behalf of the Fund brought in the name of LMIM as were necessary for the winding up of the Fund. The subject matter of the interlocutory application was private advice about the exercise of the power and authority conferred upon the applicant by this Court. The applicant sought that private advice in circumstances where, in order to obtain the advice, he needed to place before the Court confidential material including the Terms of Settlement themselves, legal advice and reference to without prejudice communications.
    5. (e)
      The other parties to the Terms of Settlement have an obvious interest in protecting the confidential nature of the Terms of Settlement. I consider that it is important to protect that interest at this stage, when the Supreme Court proceedings are still on foot and judicial advice is being sought. I do not consider it appropriate to expose the Terms of Settlement to actual scrutiny or the prospect of scrutiny by any person who is not a party to that document at this critical stage.
    6. (f)
      The affidavits include the Terms of Settlement which are confidential and negotiated in the context of a mediation.
    7. (g)
      The affidavits also include confidential material which is protected by without prejudice privilege and, in respect of which, the applicant has a limited permission to place the material before the Court alone for the sole purpose of obtaining advice.
    8. (h)
      There is also no reason for the Court to withhold judicial advice merely because the terms of settlement are confidential. Advice can be given in these circumstances by the Court.[5]

Consideration of the Interlocutory Application

  1. [22]
    After having read the material, I am positively persuaded that it would be proper and appropriate for the applicant to settle the Supreme Court proceedings on the terms set out in the Terms of Settlement and to cause LMIM as the responsible entity of the Fund to enter into and perform the Terms of Settlement. As the material before me is confidential, there is a constraint placed upon me as to the way I formulate and express my reasons for being so persuaded. What I now provide is intended to be an adequate account of the reasons underlying my orders, expressed in terms which ensure the protection of confidentiality but which at the same time give effect to the public’s right to know what orders are being made by this Court.[6] 
  2. [23]
    This Court has an inherent jurisdiction to give advice to the applicant in his capacity as a Court appointed receiver.[7]
  3. [24]
    The principles applicable to the giving of judicial advice to a receiver “are not necessarily in all respects the same as those which apply in the more commonly encountered cases of judicial advice to trustees and directions to liquidators”.[8] However guidance is provided from the approach that is taken in cases concerning advice sought by trustees, liquidators and privately appointed receivers.[9]
  4. [25]
    The legal principles applicable to the exercise of the Court’s discretion in those applications were summarised by White J in Re Lewis (2020) 145 ACSR 459 at [31]:

“The established principles indicate:

  1. (a)
    the power to give directions is intended to facilitate the performance of the liquidator’s functions and should be interpreted widely to give effect to that intention: Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 … at [9];
  1. (b)
    the power is available to give a liquidator advice as to the proper course of action to be taken in the liquidation: … ;
  1. (c)
    the Court may give directions that provide guidance on matters of law and the reasonableness of a contemplated exercise of discretion but will usually not do so when the subject of the directions sought relates to the making and implementation of a business or commercial decision and when there is no particular legal issue raised and no attack on the [propriety] or reasonableness of the decision: … ;
  1. (d)
    the Court does not interfere with or seek to second guess the liquidator’s judgment unless there is evidence of a lack of good faith, an error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator’s conduct or when the Court considers that the liquidator’s decision is not a proper and reasonable one …;
  1. (e)
    the effect of a direction is to sanction a course of conduct on the part of the liquidators so that, providing full disclosure has been made to the Court, the liquidator may adopt the course free from the risk of personal liability for breach of duty: …”
  1. [26]
    As to these established principles, in Re Octaviar,[10] Bond J added a caveat in that his Honour considered that the Court was required to be positively persuaded of the propriety of the course for the which the liquidators seeks the court’s sanction.
  2. [27]
    It is appropriate to give directions as to whether a liquidator is justified in settling litigation.[11]
  3. [28]
    In Re One.Tel Ltd, Brereton J explained the nature of the exercise as follows:[12]

“While the court’s function under s 511 does not involve it in reconsidering every factor that has informed the liquidator’s decision, let alone developing alternatives or deciding whether the court would have made the same decision, the court needs to be satisfied, before making a direction, that the decision is proper and reasonable; at least usually, this will necessitate consideration of the liquidator’s reasons, and the process by which the decision has been reached. …”

  1. [29]
    The persuasion of the Court that the decision is reasonable is assisted by the existence of legal advice concerning the proposed compromise.[13]
  2. [30]
    I am prepared to observe that litigation of this complexity, and involving multi-layered counterfactual scenarios, is inevitably attended by significant risks and uncertainty for all parties on a multitude of issues. My brief overview of the issues raised in the Supreme Court proceedings should sufficiently demonstrate that on important issues, causation and quantum in particular, the trial is likely to involve serious and substantial disputes which will fall to be resolved by competing expert opinion evidence. 
  3. [31]
    Further, the reality of this type of commercial litigation is that prospects of success are continually clarified as the case is prepared.  Presently, there is some necessary uncertainty attending any assessment of the applicant’s prospects because the defendants have not yet provided their evidence. I do not regard this uncertainty as being an impediment to the provision of useful and meaningful advice from Counsel. The litigation is at an advanced stage of preparation and there has been a productive and successful mediation. I consider that the applicant has acted reasonably in obtaining detailed advice on prospects from Senior and Junior Counsel at this stage of the litigation. 
  4. [32]
    The complexity of this litigation and the applicant’s special position as a person appointed by the Court to wind up the Fund, inevitably means that there will be a range of possible compromises that might be regarded as reasonable. A reasonable compromise must necessarily carry with it concessions and will make due allowance for not just legal analysis of issues but also commercial and practical considerations. In this regard, it may be observed that, because of the stage of the litigation there are substantial legal costs (involving professional fees and outlays) yet to be incurred to finally prepare for and run the trial, let alone any appeals. The applicant has taken advice about those likely costs. He is entitled to have regard to those costs, and their funding, in considering whether to settle the litigation. There is also the issue of time and delay. It is realistic to expect that a judgment in the Supreme Court proceedings may not be obtained until late 2024. There would then be the spectre of an appeal or appeals. A final resolution may not emerge from the court process for some years. The applicant was appointed to wind up the Fund on 21 August 2013. He is entitled to have regard to likely further delays in the winding up caused by litigation and the benefits of a timely settlement in considering whether to settle the litigation. He is also entitled to have regard to the interests of investors in the Fund in obtaining a timely and beneficial resolution of the litigation.
  5. [33]
    Importantly, I am satisfied that the advice which has been obtained from Senior and Junior Counsel is, with respect, thorough, detailed and persuasive advice as to prospects and comprehensively identifies all of the presently relevant considerations underpinning a reasonable commercial settlement of the Supreme Court proceedings.   I am also satisfied that the applicant has paid proper and due regard to the content of Counsel’s advice in deciding to agree to the Terms of Settlement. Put another way, the Terms of Settlement reflect a compromise of the litigation on terms which are countenanced by Counsel’s advice.
  6. [34]
    Having read and given careful consideration to the confidential material, particularly, Counsel’s advice, the Terms of Settlement and the affidavit of the applicant, I advise that the applicant is justified in settling the Supreme Court proceedings on the terms set out in the Terms of Settlement and in causing LMIM as the responsible entity of the Fund to enter into and perform the Terms of Settlement.
  7. [35]
    The orders I make are as follows:
  1. David Whyte, as the person appointed under section 601NF(1) of the Act to ensure that the Fund is wound up in accordance with its constitution and any orders of the Court, and as the receiver of the property of the Fund, is justified in settling Supreme Court proceeding 2166 of 2015 on the terms set out in the Terms of Settlement exhibited to Mr Whyte’s affidavit filed in Court on 10 June 2022, and in causing LMIM as the responsible entity of the Fund to enter into and perform the Terms of Settlement.
  2. Mr Whyte’s costs of and incidental to this application be costs in the winding up of the Fund, to be paid out of the assets of the Fund.
  3. The following documents be placed in a sealed envelope to be held on the Court’s file and not opened without an order of the Court, with the envelope to be so endorsed, and not be placed on the Court’s electronic file:
    1. the Affidavit of David Whyte filed 10 June 2022;
    2. the Affidavit of Tegan Jade Harris filed 10 June 2022; and
    3. the written submissions filed on behalf of Mr Whyte dated 9 June 2022.

Footnotes

[1] Mr Hayes and Mr Connolly retired as receivers and managers on 11 December 2018.

[2] Gardner v London Chatham and Dover Railway Co (No 1) (1867) LR 2 Ch App 201, 211; Rosanove v O'Rourke [1988] 1 Qd R 171, 173 (Connolly, Carter and de Jersey JJ); Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 677.

[3] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 91-2 [64]-[65].

[4]  Unreported, NSWCA, 8 May 1992.

[5] Hodges v Waters (No 7) (2015) 232 FCR 97 [65]-[68] (Perram J).

[6] David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, 299G, 300E, 301D, 307D-G, 308C; Coronar (Australia) Pty Ltd v Lake Vermont Marketing Pty Ltd [2017] QSC 120 [3].

[7] Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240 [11] (Barrett J); Bruce v LM Investment Management Limited (in liq) [2019] QSC 126 [13] (Mullins J).

[8] Commercial Nominees of Australia Ltd (2002) 42 ACSR 240 [11].

[9] Bruce v LM Investment Management Ltd (in liq) & Ors [2019] QSC 126 [16]-[17].

[10]  [2020] QSC 353 [18].

[11] Re Great Southern Managers Australia Ltd (in liq) [2014] WASC 312 [61] (Pritchard J); Re One.Tel Ltd (2014) 99 ACSR 247 [34]–[36]; Re Octaviar Administration Pty Ltd (in liq) (2015) 107 ACSR 1 [13] (Stevenson J). Those cases concerned applications under section 511 in the context of a creditors winding up, but they are of the same nature as applications in a court ordered winding up under s 479(3): Re One.Tel Ltd (2014) 99 ACSR 247 [32] (Brereton J).

[12] Re One.Tel Ltd (2014) 99 ACSR 247 [36].

[13] Re Great Southern Managers Australia Ltd (in liq) [2014] WASC 312 [64] (Pritchard J); Re McDermott and Potts (in their capacities as joint and several liquidators of Lonnex Pty Ltd (in liq)) [2019] VSCA 23 [92]-[93] (Whelan AP, McLeish and Hargrave JJA).

Close

Editorial Notes

  • Published Case Name:

    Re LM Investment Management Ltd (in liq)

  • Shortened Case Name:

    Re LM Investment Management Ltd (in liq)

  • MNC:

    [2022] QSC 132

  • Court:

    QSC

  • Judge(s):

    Kelly J

  • Date:

    24 Jun 2022

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240
3 citations
Jump To
Cite 1 - (2002) 42 ACSR 240
Cite 2 - (2002) 42 ACSR 240
Cite 3 - (2002) 42 ACSR 240
Bruce v LM Investment Management Ltd (in liq) [2019] QSC 126
3 citations
Jump To
Cite 1 - [2019] QSC 126
Cite 2 - [2019] QSC 126
Cite 3 - [2019] QSC 126
Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 N.S.W.L.R. 674
2 citations
Jump To
Cite 1 - (1991) 24 N.S.W.L.R. 674
Cite 2 - (1991) 24 N.S.W.L.R. 674
Coronar (Australia) Pty Ltd v Lake Vermont Marketing Pty Ltd [2017] QSC 120
2 citations
Jump To
Cite 1 - [2017] QSC 120
Cite 2 - [2017] QSC 120
David Syme & Co. Ltd v General Motors-Holdens Ltd (1984) 2 NSWLR 294
2 citations
Jump To
Cite 1 - (1984) 2 NSWLR 294
Cite 2 - (1984) 2 NSWLR 294
Gardner v London Chatham and Dover Railway Co (No 1) (1867) LR 2 Ch App 201
2 citations
Jump To
Cite 1 - (1867) LR 2 Ch App 201
Cite 2 - (1867) LR 2 Ch App 201
Hodges v Waters (No 7) (2015) 232 FCR 97
2 citations
Jump To
Cite 1 - (2015) 232 FCR 97
Cite 2 - (2015) 232 FCR 97
Macedonian Orthodox Community Church St Petka Inc v Petar (2008) 237 CLR 66
2 citations
Jump To
Cite 1 - (2008) 237 CLR 66
Cite 2 - (2008) 237 CLR 66
Re Great Southern Managers Australia Ltd (in liq) [2014] WASC 312
3 citations
Jump To
Cite 1 - [2014] WASC 312
Cite 2 - [2014] WASC 312
Cite 3 - [2014] WASC 312
Re Lewis (2020) 145 ACSR 459
1 citation
Jump To
Cite 1 - (2020) 145 ACSR 459
Re McDermott and Potts (in their capacities as joint and several liquidators of Lonnex Pty Ltd (in liq)) (ACN 097 786 751) [2019] VSCA 23
2 citations
Jump To
Cite 1 - [2019] VSCA 23
Cite 2 - [2019] VSCA 23
Re Octaviar Administration Pty Ltd [2017] NSWSC 1556
1 citation
Jump To
Cite 1 - [2017] NSWSC 1556
Re Octaviar Administration Pty Ltd (in liq) (2015) 107 ACSR 1
1 citation
Jump To
Cite 1 - (2015) 107 ACSR 1
Re Octaviar Ltd [2020] QSC 353
2 citations
Jump To
Cite 1 - [2020] QSC 353
Cite 2 - [2020] QSC 353
Re One.Tel Ltd (2014) 99 ACSR 247
4 citations
Jump To
Cite 1 - (2014) 99 ACSR 247
Cite 2 - (2014) 99 ACSR 247
Cite 3 - (2014) 99 ACSR 247
Cite 4 - (2014) 99 ACSR 247
Rosanove v O'Rourke [1988] 1 Qd R 171
2 citations
Jump To
Cite 1 - [1988] 1 Qd R 171
Cite 2 - [1988] 1 Qd R 171

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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