Kelly (Liquidator), in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Loo [2021] FCA 531

FEDERAL COURT OF AUSTRALIA

Kelly (Liquidator), in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Loo [2021] FCA 531 File number: NSD 2191 of 2018

Judgment of: MARKOVIC J

Date of judgment: 19 May 2021

Catchwords: CORPORATIONS – application for directions under s 90-‍15 of the Insolvency Practice Schedule (Corporations) and judicial advice under s 63 of the Trustee Act 1925 (NSW) regarding pooling and appropriate method of distribution of funds to creditors – whether liquidators justified in pooling funds held by third plaintiff and its New‍ Zealand subsidiary (Halifax NZ) – appropriate date of calculation of value of investments for purposes of distribution – whether pari passu distribution of funds justified – whether conversion of funds held in foreign currency to Australian dollars and New Zealand dollars justified – whether liquidators justified in setting off positive and negative net account balances for the same creditor – whether exclusion of clients with low account credit balances justified – where funds held by third plaintiff and Halifax NZ insufficient to satisfy all creditors' entitlements – where funds of third plaintiff and Halifax NZ commingled – where tracing of individual creditors' entitlements not practically feasible – where foreign currency value fluctuations may cause difficulty with valuation – where set-off of positive and negative net account balances required to avoid unnecessary expense – where costs of distribution to low account credit balance clients will considerably exceed those account balances – application granted PRACTICE AND PROCEDURE – concurrent case management and determination of proceedings in this Court and High Court of New Zealand – whether conferral between courts appropriate – where proceedings concern same deficient fund – where parties consent to deliberation between courts – conferral appropriate COSTS – application for indemnity costs – where eighth and ninth respondents were joined to the proceeding to advance arguments in their own interest – where arguments propounded by eighth and ninth defendants prior to the hearing were without merit – where no appearance by or on behalf of eighth and ninth defendants at the hearing – where work already undertaken by plaintiffs in response to arguments advanced by eighth and ninth defendants – application granted