In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 556

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 556 Hearing dates: 24-25 March 2021 and 25, 26 and 28 May 2021 Date of orders: 9 May 2022 Decision date: 09 May 2022 Jurisdiction: Equity Before: Williams J Decision: Proceedings dismissed. Catchwords: CORPORATIONS – winding up – liquidator's fiduciary and statutory duties – liquidator's obligation of independence and impartiality – whether liquidator breached duties or acted to favour the interests of one group of creditors to the detriment of the company and creditors as a whole by conducting examinations under Part 5.9 of the Corporations Act 2001 (Cth) and by engaging solicitors to act for the liquidator in those examination proceedings who had acted for the groups of creditors whose interests were said to be served by the examinations – whether examinations included questions about topics that were "not legitimate" or "improper" – whether conduct of liquidator biased or gave rise to reasonable apprehension of bias – application for order removing liquidator dismissed Legislation Cited: Corporations Act 2001 (Cth), ss 180-183, Part 5.9 Insolvency Practice Schedule, s 90-15 Cases Cited: Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd atf The Albans Unit Trust (1994) 14 ACSR 230 Australian Securities and Investments Commission v Edge (2007) 211 FLR 137; [2007] VSC 170 Australian Securities Commission v Franklin (2014) 223 FCR 204; [2014] FCAFC 85 Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 689 Commissioner for Corporate Affairs v Harvey [1980] VR 669 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 In the matter of FW Projects Pty Ltd (in liq) [2019] NSWSC 892 In the matter of Kala Capital Pty Ltd (in liq) [2012] NSWSC 1073 In the matter of 77738930144 Pty Ltd (in liq) (formerly Commercial Indemnity Pty Ltd) [2017] NSWSC 452 In the matter of Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93 In the matter of Kala Capital Pty Ltd (in liq) [2012] NSWSC 1073 In the matter of St Gregory's Armenian School (in liq) [2012] NSWSC 892 Sands Contracting Pty Ltd v Foodcorp (Vic) Pty Ltd [2020] FCA 1274 Smarter Way (Aust) Pty Ltd v D'Aloia (2000) 35 ACSR 595; [2000] VSC 408 Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liq) [2022] HCA 3 Category: Principal judgment Parties: Fogo Brazilia Holdings Pty Ltd (First Plaintiff) Ian David Dresner (Second Plaintiff) Gavin Moss in his capacity as liquidator of Fogo Brazilia Franchise Holdings Pty Ltd (in Liquidation) (ACN 156 541 025) (First Defendant) Representation: Counsel: Mr J Lazarus SC with Mr A Vial (First and Second Plaintiffs) Mr R Marshall SC with Mr D F Elliott (First Defendant)