Federal Court of Australia Cooper (Receiver), in the matter of Green Grain Processing Technologies Pty Ltd (Receivers Appointed) (No 2) [2024] FCA 683 File number(s): SAD 144 of 2023 Judgment of: O'SULLIVAN J Date of judgment: 18 June 2024 Catchwords: PRACTICE AND PROCEDURE — orders made for disclosure of documents evidencing the transfer of funds —orders not complied with — reference to ss 37P(5) and (6) and rr 5.23, 41.03 and 41.04 — order for compliance extended Legislation: Federal Court of Australia Act 1976 (Cth), s 37P(5), (6) Federal Court Rules 2011 (Cth), rr 5.23, 41.03, 41.04 Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 17 Date of hearing: 18 June 2024 Counsel for the First, Fourth and Fifth Interested Parties: Ms L Wood Solicitor for the First, Fourth and Fifth Interested Parties: DW Fox Tucker Lawyers Counsel for the Second Interested Party: The second interested party appeared in person ORDERS SAD 144 of 2023 IN THE MATTER OF GREEN GRAIN PROCESSING TECHNOLOGIES PTY LTD (RECEIVERS APPOINTED) ACN: 074 224 623 BETWEEN: NICHOLAS DAVID COOPER AS JOINT AND SEVERAL RECEIVER OF GREEN GRAIN PROCESSING TECHNOLOGIES PTY LTD (RECEIVERS APPOINTED) First Plaintiff DOMINIC CHARLES CANTONE AS JOINT AND SEVERAL RECEIVER OF GREEN GRAIN PROCESSING TECHNOLOGIES PTY LTD (RECEIVERS APPOINTED) Second Plaintiff AND: GREEN GRAIN PROCESSING TECHNOLOGIES PTY LTD (RECEIVERS APPOINTED) (IN LIQ) Defendant DAVID JOHN TUCKER First Interested Party IHAB ANTHONY ROCKWELL LUTFI (and another named in the Schedule) Second Interested Party order made by: O'SULLIVAN J DATE OF ORDER: 18 JUNE 2024 THE COURT ORDERS THAT: 1. The date by which the second and third interested parties are to comply with order 5 of the orders made on 4 June 2024 is extended to 5.00pm (ACST) on 21 June 2024. 2. The second interested party's interlocutory application filed 11 June 2024 is dismissed. 3. The second interested party's interlocutory application filed 18 June 2024 is dismissed. 4. Liberty to apply to the first, fourth and fifth interested parties. 5. The second interested party is to pay the first, fourth and fifth interested parties' costs of and incidental to today. 6. The matter is listed for case management hearing at 11.00am (ACST) on Tuesday 25 June 2024. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'SULLIVAN J: 1 On 11 April 2024, the Court ordered that by on or before the close of business on 19 April 2024, the second and third interested parties (Ihab Anthony Rockwell Lutfi and Lutfi-Proctor Holdings Pty Ltd, respectively) are to file and serve an affidavit explaining: (a) the current whereabouts of the sums of $34,013.46 and $250,000 referred to in the affidavit of Ihab Anthony Rockwell Lutfi, sworn and filed on 28 March 2024; (b) when those respective sums were transferred to their current whereabouts; and (c) annexing documents evidencing the transfers in question. 2 At a hearing in this matter on 4 June 2024, the solicitors for the first, and what became the fourth and fifth interested parties, submitted that the affidavit filed by Mr Lutfi on 19 April 2024 in accordance with the orders made on 11 April 2024 was not satisfactory. It is evident, at a cursory level, that although in his affidavit sworn 19 April 2024, at annexures TL18, TL19 and TL20, Mr Lutfi purports to identify the whereabouts of $250,000, in the sense that it was transferred from a National Australia Bank account to American Express, there are at least two payments in annexures TL19 and TL20 to that affidavit, being for the sum of $59,440.40 and $15,000, which are not accounted for. 3 On 4 June 2024, I also refused permission for Mr Lutfi to represent the third interested party, Lutfi-Proctor Holdings Pty Ltd. It is not represented today. 4 Order 5 of the orders made on 4 June 2024 required Mr Lutfi to file and serve an affidavit exhibiting the documents listed in Schedule A to the orders by 5.00pm (ACST) on 11 June 2024. I then listed those documents. I do not list them again because they have account numbers, and an order was made as to confidentiality. Mr Lutfi did not comply with order 5. 5 There are two applications brought by Mr Lutfi today. The first application, filed 11 June 2024, seeks a stay of orders 5 to 8 made on 4 June 2024, pursuant to r 41.03 of the Federal Court Rules 2011 (Cth) until either the Court takes into account the matter set out an affidavit of Mr Lutfi filed 3 June or otherwise orders. I considered the matters in Mr Lutfi's affidavit filed 3 June 2024 when it was filed and prior to the 4 June 2024 hearing. 6 In essence, Mr Lutfi seeks to re-argue matters which I had previously heard prior to making the orders. 7 As to each of the orders made 4 June 2014, order 5 was made because on previous occasions Mr Lutfi had represented, either by himself or through his solicitors, that the sum of approximately $284,000 was "available", and apparently now is not available. In effect, Mr Lutfi disagrees with the orders made by the Court on 4 June 2024. That is not a ground for a stay and the application for a stay of that order is dismissed. 8 Order 6 of the orders made on 4 June 2024 deals with costs. No basis is established for a stay and the application for a stay of that order is dismissed. 9 Order 7 of the orders made on 4 June 2024 also deals with costs, in the sense that it reserves costs of the first interested party's application filed 4 April 2024. No basis is established for a stay and the application for a stay of that order is dismissed. 10 Order 8 of the orders made on 4 June 2024 adjourns further consideration of the first interested party's interlocutory application, filed 4 April 2024, seeking payment of the sum of $284,013.46 into Court. It is adjourned to mention only at 9.30am on Tuesday 18 June 2024, being today. That time was subsequently changed to 2.15pm today. Self-evidently, no basis is established for a stay of that order and the application for a stay of that order is dismissed. 11 By a separate interlocutory application filed on 18 June 2024, Mr Lutfi also sought orders that order 5 of the orders made on 4 June 2024 be deleted and be replaced by what, in effect, is a referral of the dispute to a chartered accountant. Whether or not that step should be undertaken is a matter which warrants further consideration at a later time. 12 At the moment, the key point is compliance with order 5 of the orders made on 4 June 2024. The application for that order to be deleted is refused. 13 As a result of Mr Lutfi's failure to comply with the Court's orders, I drew Mr Lutfi's attention to the following provisions of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules (FCR): (a) Section 37P(5) and (6); (b) FCR 41.04; and (c) FCR 5.23. 14 In my view, there has been wilful non-compliance by Mr Lutfi with the Court's orders based on what is, in effect, his disagreement with the orders made on 4 June 2024. That is an unacceptable position. 15 Mr Lutfi has been made aware of the consequences of non-compliance with the Court's orders. 16 Nonetheless, I will extend the time in order 5 of the orders made on 4 June 2024, by which the order is to be complied with, to the close of business at 5.00pm (ACST) on Friday 21 June 2024. 17 The orders will be: (1) The date by which the second and third interested parties are to comply with order 5 of the orders made on 4 June 2024 is extended to 5.00pm (ACST) on 21 June 2024. (2) The second interested party's interlocutory application filed 11 June 2024 is dismissed. (3) The second interested party's interlocutory application filed 18 June 2024 is dismissed. (4) Liberty to apply to the first, fourth and fifth interested parties. (5) The second interested party is to pay the first, fourth and fifth interested parties' costs of and incidental to today. (6) The matter is listed for case management hearing at 11.00am (ACST) on Tuesday 25 June 2024. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate: Dated: 25 June 2024 SCHEDULE OF PARTIES SAD 144 of 2023 Respondents Third Interested Party: LUTFI-PROCTOR HOLDINGS PTY LTD Fourth Interested Party: JT NOMINEES PTY LTD Fifth Interested Party: JT INVESTMENTS PTY LTD