In the matter of ACN 152 546 453 Pty Ltd (Formerly Hemisphere Technologies Pty Ltd (In Liq)) [2020] NSWSC 270

Supreme Court New South Wales

Medium Neutral Citation: In the matter of ACN 152 546 453 Pty Ltd (Formerly Hemisphere Technologies Pty Ltd (In Liq)) [2020] NSWSC 270 Hearing dates: 16 March 2020 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Equity Before: Emmett AJA Decision: 1. Order nunc pro tunc with effect from 16 January 2020, pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) of the Corporations Act 2001 (Cth) (the Act), that the purposes for which Mr Giles Woodgate (Special Purpose Liquidator) was appointed as an additional liquidator of ACN 152 546 453 Pty Ltd (formerly known as Hemisphere Technologies Pty Ltd) (in liquidation) (the Company) on 29 June 2018 also include the following: (a) conducting investigations in relation to: (i) whether the receipt of funds by Zon No.1 Pty Ltd (ACN 604 836 259) and Spaki Properties No.1 Pty Ltd (ACN 604 836 393) in relation to the purchase of real property located at 2 Ada Avenue, Brookvale, NSW, 2100, gives rise to any claim by the Company in law or in equity or under statute; (ii) whether any transactions between the Company and Alpha Nu Accountants Pty Ltd (ACN 168 996 978) in about December 2016 give rise to any claim in law or in equity or under statute, including whether any such transaction was a voidable transaction within the meaning of s 588FE of the Act; (iii) whether any transactions between the Company and Portfolio IT Pty Ltd (ACN 157 931 569) between about April 2013 and June 2017 give rise to any claim in law or in equity or under statute, including whether any such transaction was a voidable transaction within the meaning of s 588FE of the Act; (iv) whether any transactions between the Company and ACG Building Pty Ltd (ACN 144 650 411) (in liquidation) between about January 2013 and November 2016 give rise to any claim in law or in equity or under statute, including whether any such transaction was a voidable transaction within the meaning of s 588FE of the Act; (v) whether the valuation undertaken by dVT Consulting Pty Ltd (ACN 129 494 006) for the Company on about 15 December 2016 gives rise to a claim on behalf of the Company in contract, tort or under statute, (together, the Further Matters) including, if thought by him to be appropriate, by: (vi) inspecting the books and records of the Company; (vii) conducting examinations pursuant to ss 596A and 596B of the Act or obtaining orders for production pursuant to s 597(9) of the Act; and (viii) requiring statements to be provided pursuant to s 475(2) of the Act; (b) commencing and pursuing any claim, including by commencing legal proceedings, that may be available to the Company or the Special Purpose Liquidator in relation to any of the Further Matters, including obtaining and considering legal advice in respect of any such claim; (c) taking any steps as Special Purpose Liquidator in relation to any of the Further Matters, including by commencing legal proceedings to preserve or protect the assets of the Company, or the assets to which the Company or the Special Purpose Liquidator claims to be entitled, and whether or not those assets are in the possession of the Company; and (d) exercising any powers conferred on the liquidator by ss 477 and 506(1)(b) of the Act, including the power to seek relief under section 588FF of the Act, for the purposes set out in Orders 1(a) to (c) above, except for the powers contained in ss 477(1)(a) – (c) and 477(2)(f) and (g) of the Act. 2. Order that Order 2 of the orders made by Gleeson JA on 29 June 2018 be varied such that pursuant to section 90-15 of the Insolvency Practice Schedule (Corporations) of the Act, the defendants must: (a) refrain from exercising any of the powers of the Special Purpose Liquidator (as extended in these orders), except with the prior written consent of the Special Purpose Liquidator (such consent not to be unreasonably withheld) or by leave of the Court; (b) use their reasonable endeavours to assist the Special Purpose Liquidator to exercise the powers given to him (as extended in these orders), including by providing any documents or information previously prepared or obtained by him in investigating or pursuing any claim in relation to any of the Matters or the Further Matters. 3. Pursuant to s 588FF(3)(b) of the Act, extend the time for commencing any legal proceedings pursuant to s 588FF of the Act to 17 January 2021. 4. Approve, pursuant to s 477(2B) of the Act, the entry by the Special Purpose Liquidator into a Funding Deed in substantially the same terms as the draft Funding Deed marked as Exhibit 1 on 16 March 2020. 5. Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that, except by order of the Court, with the Plaintiff being provided 3 days' notice of any such order being sought, disclosure of the documents contained in Confidential Exhibit "GGW-2" of the Affidavit of Giles Woodgate sworn 13 February 2020 and Exhibit 1 (the Confidential Documents) is prohibited on the grounds that they contain commercially confidential or privileged information arising out of the conduct of the investigations of the Special Purpose Liquidator. 6. Note that the undertaking given to the Court by Mr Shane Anderton of Deutsch Miller that the solicitors for the Special Purpose Liquidator will retain the Confidential Documents for production, if required, on further order of the Court. 7. Note the undertaking given by the Special Purpose Liquidator that he will not seek to recover his fees and expenses out of the funds or the property of the Company other than in accordance with the terms of the funding arrangement to be entered into with the plaintiff or otherwise out of the assets of or for the benefit of the Company that he recovers or obtains during the course of his appointment as additional liquidator of the Company. Catchwords: CORPORATIONS — Winding up — Liquidators — Powers — Application for powers to enter litigation funding agreement and conduct investigations Legislation Cited: Corporations Act 2001 (Cth), ss 475, 477, 506, 588FE, 588FF, 596A, 596B, 597, 1322 Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7 Insolvency Practice Schedule (Corporations), s 90-15 Cases Cited: In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002 In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1224 Category: Principal judgment Parties: Kaspersky Lab UK Ltd (Plaintiff) Riad Tayeh (First Defendant) Suelen McCallum (Second Defendant) Giles Geoffrey Woodgate in his capacity as Special Purpose Liquidator of ACN 152 546 453 Pty Ltd (Formerly Hemisphere Technologies Pty Ltd (In Liq) (Applicant) Representation: Counsel: P F Santucci (Applicant) ( Special Purpose Liquidator)