Most cases settle before trial, but Chris has received several hundred final judgments over the years, and continuing. A small selection of those judgments, with insights and comments from Chris, appear below. A recurring theme, sadly, is of lawyers and other professionals behaving appallingly.

Batrouney v Forster - [2016] VSC 393 - 16 June, 14 July 2016

Mrs F's share in a superfund became the subject of a restraining order obtained ex parte by a receiver at the behest of the Legal Services Board during a long running solicitor's conduct dispute with Mr F, a sole practitioner, who was Mrs F's husband and had been her employer.

Mrs F applied to set aside the freezing of her share in the super fund.

Justice Keogh did not make findings critical of the receiver regarding whether he had made proper and adequate disclosure on his ex parte aplication or whether there was justification for the applcication being brought ex parte against Mrs F in the first place, but he did release most of Mrs F's share of the super fund and awarded her costs, to be taxed immediately.

Mrs F's application was not entirely successful as the court found that some of her contributions to the superfund arguably represented "tainted funds", notwithstanding her innocence. The order over those "tainted funds" was later discharged.

BH Apartments Pty Ltd v Sutherland Nominees Pty Ltd (subject to a deed of company arrangment) - [2015] VSC 381

Chris acted for deed administrators in a case where a meeting of creditors was called at the request of a high value creditor (BH Apartments). The Magistrate held, correctly, that BH Apartments had to pay the "costs of convening the meeting" in Corporations Regulation 5.6.15(1)(b) and that that expression was not confined to the costs of calling the meeting but included the costs of holding the meeting. BH Apartments appealed unsucessfully to Justice Bell of the Supreme Court of Victoria and had to pay Chris' clients' costs of the appeal and of the court below. This was a case of incompetent drafting by the legislature.

Since the enactment of the Insolvency Law Reform Act 2016 Corporations Regulation 5.6.15 has been repealed and replaced by Insolvency Practice Rules (Corporations) but it would appear, notwithstanding, that the law stated in the BH Apartments case still applies in cases where the external administrator is not under an obligation under Insolvency Practice Schedule (Corporations) section 75-15 to convene the meeting but may do so.

In the course of the Callover to the appeal, BH Apartments' solicitor, David Porter, disclosed the substance of Chris' without prejudice communications in correspondence to the Court and did so misleadingly, in order to gain an advantage for his client. Chris' displeasure at discovering this conduct increased when told the solicitor "had form" and Chris was referred to the judgment in Sitzler Savage Pty Ltd v Northern Mining Holdings Pty Ltd [2012] VSC 104 where Associate Justice Zammit concluded "that Vincent Savage and Norton Rose (Mr Porter's firm) commenced this proceeding knowing that there was no authority to do so. This must amount to a wilful disregard by both parties of the law. If justice is to be done, the circumstances require that these costs be paid on an indemnity basis."

Chapcon Building Services Pty Ltd v Spectrum Homes Qld Pty Ltd [2023] FCA 873

(added 18/03/2025)

This case highlights the importance of properly pleaded allegations in copyright infringement proceedings. The Federal Court summarily dismissed the claim against Johan Wiggett due to deficiencies in the statement of claim.

Chris acted for Mr Wiggett in persuading the Federal Court to summarily dismiss an infringement of copyright action against him without the need for a trial. While rare, such an outcome highlights the importance of well-prepared summary judgment applications.

Mr Wiggett was the third of four respondents. The Applicant, Chapcon, is a company which is primarily involved in the construction industry. Chapcon alleged that it acquired certain assets from liquidators of Newstart Homes (SE Qld) Pty Ltd (NHSQ), including "copyright in the NHSQ Plans". The First Respondent (Spectrum Homes) is a competitor of Chapcon.

Chapcon alleged that Mr Wiggett and two other respondents, namely Mr Reeves and Mr Melo "caused, authorised, directed or procured [Spectrum Homes] to produce the Spectrum Plans which reproduce or substantially reproduce the NHSQ Plans and to build or cause to be built residential homes which substantially reproduce the NHSQ Plans in a material form" and that Mr Reeves and/or Mr Wiggett and/or Mr Melo "has infringed the copyright of the Applicant in the NHSQ Plans or authorised or directed or procured or participated in the said infringements".

Mr Wiggett filed a lengthy Affidavit in support of his application for summary judgment dismissing Chapcon's infringement of copyright claim, asserting, among other things, that Chapcon's statement of claim did not plead "material facts" to support the allegation that he authorised Spectrum Homes to infringe copyright in the NHSQ plans. Nor did the statement of claim even establish that Chapcon was the owner of copyright in those plans.

Crucially, Chapcon did not file any Affidavit evidence in reply to Mr Wiggett's Affidavit which led Justice Downes to conclude: "that it elected not to do so is a deficiency in its defence of the summary judgment application as it tends to indicate that no other evidence is available or would be able to be adduced at trial."

Her Honour therefore entered summary judgment for Mr Wiggett on the basis that Chapcon had no reasonable prospect of success in its claims against Mr Wiggett. Further, "to commence the proceeding against Mr Wiggett in these circumstances is both vexatious and an abuse of process, and provides another reason in and of itself to summarily dismiss the claims against Mr Wiggett."

Ordinarily, costs are payable to a successful party on a standard basis (which means at a substantial discount to that party's actual costs). However, due to the "special or unusual feature" of this case, a departure from the ordinary course was justified whereby the Court ordered Chapcon to pay Mr Wiggett's costs on a full indemnity basis. An additional reason for ordering indemnity costs was that Chris wrote to Chapcon's solicitors as soon as they commenced the proceeding, inviting them to withdraw it, with no order as to costs, as the statement of claim was hopelessly deficient. The invitation was unreasonably rejected. The costs were taxed and allowed at $82,000.

As the authors of "Copyright Law Update - Chapcon Building Services Pty Ltd v Spectrum Homes Qld Pty Ltd [2023] FCA 873" by Tom Cordiner KC, Melissa Marcus, Clare Cunliffe, Marcus Fleming & Amy Surkis, state:

"This judgment highlights the need to plead material facts supporting an allegation that an alleged authoriser of copyright infringement was aware of the conduct which is said to constitute the infringement (over and above the fact that the authoriser was a director of the alleged infringer, particularly where that fact changed over the relevant period). If those facts are not known to a potential applicant and cannot be obtained by corresponding with the other side, the appropriate course is to seek preliminary discovery, not to commence litigation and hope to obtain evidence in the course of proceedings."

Charles Fice Solicitors (a firm) v XL Brockbank Ltd - [2002] VSC 77

This was a successful application by Charles Fice for further and better discovery by Lloyd's of London in an action for breach of agreement to provide litigation funding for insolvency practitioners in Australia, in place of GIO Insurance Ltd. The case later settled at mediation with Lloyd's paying substantial damages for breach of contract and for misleading or deceptive conduct. Lloyd's had neglected to honour the funding agreement because (among other reasons) it was the insurer of the World Trade Centre at the time of the terrorist attacks on the US on 11 September 2001.

CHFT PTY LTD v Paul Gidley (Federal Court of Australia VID873/2023); and Simon Nelson v CHFT Pty Ltd (Federal Circuit Court MLG1627/2024)

(added 18/03/2025)

These two cases concern abortive demands, made 6 months apart, by two bankruptcy trustees, Paul Gidley and Simon Nelson. Mr Gidley is the trustee of Mr H, a bankrupt. Mr Nelson is the trustee of Mr S.

Before petitioning for their own bankruptcies in 2023, H and S were directors of one of the first major building companies that collapsed in late 2022, caused in part by Covid lockdowns in Victoria.

H and S are also partners of the "SHS Partnership," the third partner of which is a solvent girlfriend of S.

Nearly a year before H declared bankruptcy, the SHS Partnership orally made a loan of $167,000 ('long term loan') to CHFT Pty Ltd, for whom Chris also acts. CHFT was controlled by H before his bankruptcy. The loan with interest at 5% per annum only becomes payable in April 2027.

In October 2023 Mr Gidley served a demand under section 129(4A) of the Bankruptcy Act (Cth) to try to take possession of half of the long term loan, representing H's 50% share in the SHS Partnership. However, his demand was baseless for reasons including:

1. The draconian Section 129(4A) was inapposite as it did not represent half of any moneys lawfully payable to the bankrupt H;
2. Mr Gidley had no standing to make the demand;
3. Until the SHS Partnership was wound up by the solvent partner or the court, it was not possible to determine the surplus assets of the SHS Partnership as contemplated in section 43 of the Partnership Act 1958 (Vic) and what assets of the SHS Partnership, if any, vested in Mr Gidley;
4. In any event under the $167,000 long term loan, no money was due and repayable by CHFT to the SHS Partnership or even to its partners respectively, until 20 April 2027.

Before the first directions hearing, and after sighting 82 pages of affidavit material from CHFT, Mr Gidley withdrew his notice of demand under s 129(4A). He also agreed to release CHFT "from all claims whatsoever and howsoever arising which he currently has or may have against" CHFT. A considerable victory for CHFT.

Some 6 months later, in early June 2024, Mr Nelson initiated proceedings against CHFT in the Federal Circuit Court to try to recover S's Partnership share of the SHS Partnerships' long term loan. The facts giving rise to Mr Nelson's claim were to all intents and purposes the same as those that had been raised in support of Mr Gidley's case. However, Mr Nelson made his claim in the alternative under sections 120 or 121 of the Bankruptcy Act. This was misconceived because both sections are predicated upon there being "a transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee)…" However, the lending of $167,000 under the long-term loan was by the SHS Partnership and not by S or any of the other partners, thereby rendering sections 120 and 121 otiose. Those sections had no application for the further reason that CHFT gave full market value consideration for the partnership loan.

Finally, Mr Nelson sought to rely on section 61 of the Bankruptcy Act 1966 (Cth). By this section, where S, a member of the SHS Partnership becomes a bankrupt, the Court may, upon Mr Nelson's application, authorise him to commence and prosecute any action in the names of the trustee and of the two other partners. If those partners did not show cause against the application, the court could direct that S shall receive the share of the proceeds of the action to which he was entitled as a partner.

Unfortunately for Mr Nelson, an application under section 61 was bound to fail because:

1. Mr S's share of the proceeds of the action to which he might be entitled, was completely unknown because no surplus assets of the SHS Partnership as contemplated in section 43 of the Partnership Act 1958 (Vic), had been determined; and
2. In any event SHS's entitlement to the long-term loan would not arise for another 2 and half years, at least.

Ultimately, Mr Nelson recognised the weaknesses in his case and agreed to a dismissal with no order as to costs. CHFT, in a side agreement, paid a nominal sum as a settlement to avoid further litigation.

While the tortuous intricacies of the Bankruptcy Act often work to give bankruptcy trustees advantages over their opponents in litigation, the trustees in these two cases failed to look adequately before they leapt and were sorely exposed.

Commissioner of Australian Federal Police v Mah Meng Ling - [2014] VSC 262 - 17 June 2014

The AFP sought an examination order under section 180 of the Proceeds of Crime Act 2002 (Cth) against an overseas respondent being a buddist reverend for whom Chris acted. The AFP's application was based on the AFP having previously obtained restraining orders against the respondent in respect of money in various bank accounts owned by her. The orders were obtained ex parte. The respondent wished to revoke the restraining orders on the basis that the AFP at the ex parte hearing failed to bring to the Court's attention all material facts and failed to correct errors in the information that it placed before the court.

Justice Dixon declined to make examination orders against the respondent while an application for revocation of the ex parte restraining orders were still on foot. This was because Justice Dixon formed the view that there were serious questions to be tried on that application. If those questions were decided in favour of the respondent and the restraining orders were revoked, the basis for an examination order would fall away. Accordingly, the AFP failed to receive an examination order. In fact, the restraining orders were never challenged in court as the matter settled.

Commonwealth Bank of Australia v Friedrich & Ors - [1991] 5 ACSR 115 - 3 July 1991

This is a leading case on director's duty to prevent insolvent trading by the company. The director, Eise, was held liable to the CBA for $97 million. No defences were established; nor was there available power to grant relief under section 1318 of the Corporations Act.

The trial lasted more than 50 days. Mid trial the Victorian State Government caused the CBA to abandon the case against 11 honorary directors, a number of whom were on the State Government payroll. Those directors were therefore offered a walk away deal, mid trial, which all bar Eise accepted with alacrity. Eise wanted payment of his costs but this was a bridge too far for the CBA and the trial continued against him only to judgment.

Tape recordings existed of all board meetings at which the the directors had been duped by the Chief Executive, John Freidrich. Eise had instructed the company secretary to destroy the tapes after 3 months, but she forgot to do so. A receiver appointed over the National Safety Council's assets delivered the tapes to Chris and they were played in Court to the detriment of Eise and (while they remained in the case) the other directors.

Eise appealed against the CBA's judgment. However, the Appeal Court ordered him to put up security for costs of $50,000, which he declined to do, resulting in the appeal being struck out. Eise (a former Mayor of Brighton) was reportedly wealthy and owned real property and a Rolls Royce motor vehicle, but to Chris' chagrin he was never required to pay any of the judgment debt and neither was the estate of Friedrich.

Prior to Tadgell J's judgment, the CBA had obtained a default judgment against Friedrich for $97 million. On 27 July 1991 Friedrich was found dead in a muddy field on his farm near Sale with a single gunshot wound to the head. His death was alleged to be suicide.

Convector Grain Pty Ltd (in liquidation) v Laureville Pty Ltd - [2018] VSC 33

The liquidator of Convector Grain sued Chris' client, Laureville, on an unfair preference claim. The liquidator's originating process seeking relief was amended prior to the return date but after expiry of the time for service. The court at first instance refused the liquidator's application to amend the return date to validate service, thereby stymieing the liquidator's proceeding.

The cause of the problem for the liquidator was a sub-par performance from his solicitors

The liquidator's appeal to Justice Robson was successful, allowing his claim to proceed. Usually a successful appellant is awarded his costs of the appeal and of the hearing in the court below. However, Justice Robson, perhaps as a mark of disapproval of the liquidator's lawyer's conduct, awarded the liquidator only his appeal costs, with Laureville being indemnified by the Appeals Costs Board for the payment of those costs. Unusually the Judge also ordered that Laureville be indemnified by the Appeal's Costs Board for its own costs of the appeal. Laureville had previously been paid its costs in the court below and Robson J allowed that costs order to stand. In all a shellacking for the liquidator and his solicitors.

The case was thereafter ripe for a settlement which is what occurred - on confidential terms, of course.

Duckitt v Mackie Group Pty Ltd - [2012] VSC 656 - 4 December 2012

Mr Duckitt successfully wound up the defendant on the just and equitable ground consequent upon a management deadlock. There were two directors and equal shareholders, Mr Duckitt and Ralph Mackie. A clause in the company's articles of association set out an arbitration mechanism following a deadlock at a meeting of directors and a deadlock at a meeting of members.

Associate Justice Randall stayed the winding up to allow the management deadlock to be resolved by arbitration.

Mr Duckitt appealed successfully to Justice Robson who found, on the facts, that the arbitration mechanism had not been enlivened. His Honour quoted with approval Mr Duckitt's written views on the merits (which Chris authored) and which his Honour reproduced in paragraphs 9 and 10 of the judgment.

Mr Mackie appealed against Justice Robson's decision to the Court of Appeal but his appeal was dismissed with costs.

Elfic Ltd v Macks - [2003] 2 Qd R 125

This was a David versus Goliath battle where in the Queensland Court of Appeal, Patrick Keane QC as he then was and now a judge of the High Court, sought to challenge my litigation funding arrangements involving a liquidator's sale of prospective recoveries. David won 3-0 in the Queensland Court of Appeal as well as in the court below (before Williams J) and subsequently in the High Court where Gauldron J refused special leave to appeal.

The reasons why Mr Keane's client, Fosters Brewing lost are best encapsulated in the judgment of Davies JA in paragraphs 148-258.

Justice Keane has since commented critically on litigation funding and funders in extra judicial opinions.

IN THE MATTER OF YITRIKAS PTY LTD (IN LIQUIDATION) (ACN 600 483 314) - S ECI 2023

(added 21/03/2025)

In this case, Chris Charles acted for the plaintiff, Matthew Kucianski, who was appointed liquidator to Yitrikas Pty Ltd ('the Company') on 22 November 2023 when the Company resolved to wind up voluntarily. On the day of his appointment Mr Kucianski conducted a search of the records maintained by ASIC and that search did not reveal that any application had been filed for the Company to be wound up in insolvency. Mr Kucianski became aware on 24 November 2023 that a creditor, Alesci Distribuzione Pty Ltd had, on 20 November 2023, filed an application to wind up the Company in insolvency and that the application was fixed for hearing on 20 December 2023.

On these facts and in light of section 490 of the Corporations Act 2001 (Cth), Mr Kucianski was concerned about the validity of his appointment and the legality of actions taken since his appointment.

Section 490(1) relevantly states that except with the leave of the court, a company cannot resolve that it be wound up voluntarily if an application for the company to be wound up in insolvency has been filed.

Mr Kucianski made an application to the court for leave to be granted retrospectively under section 490 seeking urgent court validation of his appointment or a determination excusing his actions.

According to earlier decided cases the onus is on the plaintiff who must establish that granting leave is preferable to a compulsory winding up, and that special circumstances exist. Leave may be granted retrospectively, nunc pro tunc. The power to grant leave is to be used sparingly, and only where the court is satisfied that the assent of the creditors or at least the principal creditor is given. A key factor in Mr Kucianski's favour was the 'special circumstances' arising from ASIC's failure to update its records in a timely manner. Further, the principal creditor, Alesci, assented to leave being granted following Mr Kucianski's consent to an order that the Company pay Alesci's costs in the winding up in the amount of $4,000.

Justice Efthim accordingly made orders granting Mr Kucianski leave under s 490(1)(a) of the Corporations Act, allowing the Company to voluntarily wind up on 22 November 2023 and appoint Mr Kucianski as the liquidator from that date. The orders were based on the orders made by Greenwood ACJ in Baskerville v Tow.com.au Pty Ltd (In liquidation) [2018] FCA 1069.

The overriding factor in Justice Efthim granting Mr Kucianski leave under s 490(1)(a), was that Mr Kucianski negotiated with Alesci and obtained its consent to the orders made, even though the orders do not so record.

International Sales and Agencies Ltd v Marcus - [1982] 3 All ER 551 - 15 April 1981

Chris acted for the plaintiff company in this English case. A director drew cheques on the company's account to settle personal debt incurred by a deceased director in circumstances where the creditor knew that the payment was in breach of trust. The creditor was found to be a constructive trustee for the company of money received and had to repay the money.

All lawyers on the case received generous praise from the Judge for their assistance. Chris' counsel, Mark Potter QC went on to have a stellar career as a judge in the Queen's Bench Division, as a Lord Justice of Appeal and President of the High Court Family Division. In 2006 he denied a lesbian couple married in Canada the title and status of marriage. How times have changed.

K S McConnell v Bak Ling Enterprises Ltd - [1983] KHEC 357 - 23 December 1983

This was a multi-faceted landlord and tenant dispute concerning a luxurious Hong Kong apartment which the plaintiff, a senior partner in the international law firm, Baker & McKenzie, had rented. The judge was not particularly impressed with the conduct of tenant or landlord although the plaintiff ended up saving considerably more face in the litigation than the defendant.

Years later the plaintiff and at least seven of his Australian based partners lost an encounter with the financier of a horse racing syndicate: Davis v Mortgage Acceptance Nominees Ltd (Baker McKenzie/ Horse Leasing case) (unreported) NSWSC, Rolfe J, judgment delivered 20 April 1994. Chris had years earlier resisted the overtures of some senior B&M Partners to join one of their syndicates. A good decision.

Lamb v Ariss - [2006] FCA 582 - 18 May 2006

This was an appeal by a trustee in bankruptcy, Wayne Lamb, against a Federal Magistrates' decision to discharge a mandatory injunction obtained ex parte against Chris' client, Stephen Ariss. The injunction was discharged for non-disclosure. Mr Lamb appealed and the Federal Court dismissed the appeal, confirming that the trustee's solicitor had failed to act with the requisite candour when seeking an order ex parte. The solicitor's evidence was incomplete, inadequate and misleading as it failed to bring forward all material facts.

Not only did the trustee lose his injunction as a consequence, but he was also ordered to pay Mr Ariss' costs.

Years later Chris attended a CPD seminar at which the trustee's solicitor was a presenter on a legal ethics topic. Chris was very pleasantly surprised when he told the audience he had not done himself justice in the Ariss case and had deservedly been taught a lesson. What remarkable candour.

McDermott v Richmond Sales Pty Ltd (In Liquidation) - [2006] FCA 248

In this Federal Court Case the applicants, including one Maxwell Latimer, were represented by Peter Hayes QC.

This was a grudge match between Chris (representing the liquidator of Richmond Sales) and Mr Hayes and followed Chris' complaint against him for unprofessional conduct made to the Bar Council in 1996/7. Mr Hayes was found to have acted unprofessionally and fined. Mr Latimer, then a solicitor, assisted Mr Hayes in the conduct complained of but no complaint was levelled against him. However, in 2002 Mr Latimer was barred for 2 years by the Legal Profession Tribunal after he diverted $200,000 intended for a trust account to pay off his credit card, buy jewellery and repair a Rolls Royce.

The Richmond Sales case was also a grudge match between Chris and Mr Latimer because in February 2005, after Mr Latimer had failed to appear as an examinee at a public examination in Melbourne held by Mr Burness, Chris and Mr Burness caused the Federal police in Queensland to apprehend Mr Latimer pursuant to a warrant and bring him to Melbourne where he was examined before a registrar on 11 February 2005 (see Burness v Latimer [2005] FCA 343). Mr Latimer was not a picture of sartorial elegance on the day.

In the Richmond Sales case the applicants sought to vary court orders made in favour of the liquidator, but Justice Kenny dismissed the application with costs, after hearing lacklustre arguments on the day from Mr Hayes. The application mainly turned on the Court finding the orders were final orders and Justice Kenny declared that they were.

About a year after Justice Kenny delivered her judgment Mr Hayes died in the Royal Adelaide Hospital room, apparently of a lethal drug overdose.

Menzies v Paccar Financial Pty Ltd - [2011] FCA 1161 - 21 October 2011

This is a judgment of Tracey J in the Federal Court. It concerned the making of a raft of costs orders in favour of bankruptcy trustees against the bankrupts and their solicitor, Trevor Hall. Some of the orders were payable on a standard basis and others on an indemnity basis. Various unsuccessful applications by the bankrupts and appeals therefrom had given rise to the costs orders. Those applications and appeals themselves stemmed from a somewhat unintelligible order made by Ryan J purporting to stay the bankruptcies on a condition which, literally, could not be fulfilled.

At the time Mr Hall sought the order from Justice Ryan, Chris was sitting in the back of the Court as an observer for the trustees. As soon as the Court adjourned, Chris asked Mr Hall to recall the judge to make the order meaningful. Mr Hall refused and things thereafter spiraled out of control. In particular, one of the applications made by the bankrupts, at the instance of Mr Hall, was to lay contempt charges against the trustees for not obeying the (deficient) stay order. Justice Tracey found that the application should never have been made as it was hopeless and made for an ulterior purpose, namely as a means of procuring the trustees' resignations. Mr Hall thereby engaged in misconduct according to his Honour and was obliged to pay costs to the trustees on an indemnity basis. Costs orders against solicitors are rare and orders against a solicitor to pay adverse costs on an indemnity basis are rarer still.

On 23 May 2016 the Legal Service Commissioner (NSW) made a finding of unsatisfactory professional conduct against Mr Hall for "innapropriate communication".

On 16 May 2019 the Council of the Law Society of New South Wales found Mr Hall guilty of unsatisfactory professional conduct in that he made representations to other legal practitioners that he would hold the net proceeds of a sale in his trust account pending the establishment of a controlled monies account in both the names of the parties, and then without prior notice, acted contrary to those representations. He was reprimanded and was required to undertake further enducation in legal ethics.

Mibor Investments Pty Ltd v Commonwealth Bank of Australia - [1994] 2 VR 290 - 14 September 1993

(added 18/03/2025)

This case established key precedents regarding the requirements for setting aside statutory demands under section 459G of the Corporations Law.

Chris acted for the Commonwealth Bank in the Supreme Court against 3 companies - Mibor Investments Pty Ltd, Mideb Nominees Pty Ltd and Elli Nominees Pty Ltd - for moneys payable under guarantees given by the companies to the bank. 11 days later, the bank served statutory demands for the same moneys. The companies applied pursuant to section 459G of the Corporations Law to have the statutory demands set aside on the grounds that there were genuine disputes as to the existence or amount of the debts. Each company filed an affidavit verifying the truth of certain allegations in its defence.

The applications were allowed because the court found there were genuine or real disputes as to the debt. However, the companies' respite was short lived because immediately following the decision in Mibor Investments, the Commonwealth bank defeated an application by Texel Pty Ltd to set aside the bank's statutory demand (see below commentary on Texel Pty Ltd v Commonwealth Bank of Australia - [1994] 2 VR 298. The bank was then able to wind-up Texel before Texel's liquidator subsequently wound up Mibor Investments, Mideb Nominees Pty Ltd and Elli Nominees, all of whom were unarguably substantial debtors of Texel.

Phosphate Co-Operative Co of Australia Ltd v Shears - [1989] VR 665 - 19 August 1988

The application by the Plaintiff company (Pivot) for approval of a scheme of arrangement to act as a defence against a takeover by Chris' client, Doug Shears, was dismissed by Justice Brooking. Pivot had earlier engaged Arthur Andersen & Co to provide an independent expert's report as to whether the scheme was fair and reasonable to members. However, there were communications between the expert, on the one hand, and Pivot and its lawyers, on the other, that his Honour found undermined, or appeared to undermine, the independence of the expert, Keith Alfredson. The report was produced under the supervision of Pivot and its advisors and owed much to their exertions. It did not represent the genuine independent opinion of its authors. In short, the report was neither independent nor expert.

This is an important case on the duties of experts purporting to be independent, particularly in the context of schemes of arrangement. Conversely, if you are a lawyer, better not change the expert's draft (at least not if the change can be traced back to you!)

Re Ex Parte Application under Corporations Act 2001 (Cth) s 530C; re Global SDR Technologies Pty Ltd (provisional liquidator appointed); Pattison v May & Anor - [2005] 224 ALR 464

Chris appeared as solicitor and counsel for Paul Pattison, the liquidator of Global SDR Technologies, on a successful ex parte application for a warrant to search for and seize company property relating to mobile phone techonology (with civil and military applications). The property was in the possession of former directors of Global SDR Technologies, Roger and Jason May, both of whom were bankrupts and, in 2007, were sentenced to one year imprisonment (suspended) for dishonestly using their positions as directors of another company.

As Justice Whelan observed, "such applications are a last resort to be made after all other reasonable steps have been taken." And they were.

Chris may have been underqualified to make the application and assist in the (successful) execution of the warrant as he has never had a mobile phone.

Chris also acted for Mr Pattison in the public examinations of the Mays and in other related cases before coming to an agreement with him in April 2006 about the balance of fees - in excess of $40,000 - he, as liquidator, owed Chris. Chris and Mr Pattison agreed that Mr Pattison would pay Chris "from 50% of any further funds he received". In fact, as Chris discovered in 2010, Mr Pattison did recover substantial further funds from the ATO but neglected to pay 50% to him, improperly paying the whole amount to his own benefit. He became a bankrupt in late 2012 and so Chris never did recover his fees from him.

Mr Pattison thereafter studied law and qualified to be admitted as a solicitor in 2016. At Chris' instance, Mr Pattison's application to be admitted to practice as a solicitor in Victoria was successfully opposed by the Legal Admissions Board.

Re Kornucopia Pty Ltd [2020] VSC 7

(updated 18/03/2025)

An application to wind up Kornucopia Pty Ltd for failure to comply with statutory demands occupied five full days of court time. Chris acted for five supporting creditors. The company made four applications to Justice Sifris to recuse himself. All failed. The company's lawyer, Raghavan, and its de facto director Kuksal engaged in almost unprecedented shenanigans, which resulted in Justice Sifris referring Raghavan to the Legal Services Commissioner and Kuksal to the Office of Public Prosecutions for perjury.

In fact, Raghavan and Kuksal had engaged in similar misconduct months earlier - on 7 and 8 August 2019 - in another Kornucopia case before Judicial Registrar Clayton and in which Chris acted for a number of respondent landlords. The transcript of the second day of the hearing before JR Clayton is instructive. Chris made a formal complaint to the Victorian Legal Services Commissioner about Raghavan's conduct on 30 August 2019. As of February 2025 - 5 ½ years later - the Commissioner has still not decided on whether to prosecute Chris's complaint notwithstanding that the Legal Services Board has concluded its investigation, recommended disciplinary action in VCAT, drafted proposed decision letters and a draft Application for Orders.

Re National Safety Council of Australia [1990] VR 29 - 8 May 1989

Michael Humphris was appointed liquidator on the making of an order winding up the National Safety Council of Australia Victorian Division following the uncovering of fraud committed by its Chief Executive Officer, John Friedrich.

Chris acted for the State Bank of Victoria in having an appeal against the appointment heard before the full court of the Supreme Court of Victoria in record time, that is 8 days after the order appealed from was made. Six future Supreme and Federal Court judges appeared as barristers on the appeal. Mr Humphris was terminated as liquidator because of a perceived conflict of duty and interest arising from the relationship with Mr Humphris' firm with the company which Mr Humphris would be bound to investigate.

The Court could have ordered the appointment of a second liquidator for the limited purpose of conducting the investigation, but it did not do so. A harsh decision, perhaps, but in keeping with times when judges more readily punished individuals who failed strictly to observe their fiduciary duties.

Romano v Chapple - [1991] QSC 371

In 1987 Chris acted for Bap Romano in a Swiss Franc loan case against Australian Bank. Mr Romano had taken out a low interest loan, repayable in Australian dollars, with Australian Bank. With currency fluctuations his loan debt increased dramatically and the bank closed down the facility. He sued the bank for not properly advising him of the risks associated with such a loan in what was then a test case. After the commencement of the trial, but before judgment, Mr Romano and his Queensland solicitor, Greg Chapple instructed his Melbourne lawyers (being Chris and Peter Hayes of counsel) to accept a generous offer from Australian Bank.

In 1988 Mr Romano and companies controlled by him brought five actions against Chapple and his partners to recover his money lost as a consequence of Chapple's fraudulent misappropriation. The five actions were heard together by Justice Moynihan in the captioned case. Mr Romano's Queensland solicitors subpoenaed me to give evidence at the trial about Mr Romano's case against Australian Bank and its aftermath. Unbeknown to Chris before he received the subpoena, Mr Chapple had misappropriated around $1,500,000 of Mr Romano's money, including $73,000 from Australian Bank in Mr Chapple's trust account, held to the credit of Romano. Mr Chapple was later sentenced to a long term of imprisonment and struck off the roll of Queensland solicitors.

Rotten Scoundrel Pty Ltd v The Gambler and Snow White - County Court 2024

(added 21/03/2025)

(Parties' names anonymised)

This case bore striking similarities to the Wiggett case, both in factual background and legal principles.

In this case, Chris represented the second defendant (D2) in proceedings initiated by a private lender against D2 and her husband (D1), an accountant, for approximately $1 million. The dispute arose from a series of loan agreements entered into by D1, who borrowed funds from the plaintiff to repay substantial gambling debts totalling millions of dollars. The agreements included guarantees allegedly signed by D2, securing the repayment of the loans and granting the lender rights to lodge a caveat over the matrimonial home jointly owned by D1 and D2.

D2 was not involved in negotiating the loans or signing the agreements under independent advice. Evidence revealed that her purported signatures on some agreements had been forged by D1, and the plaintiff failed to take appropriate steps to confirm her understanding or consent, in breach of established principles governing guarantees.

D2 applied for summary judgment, relying on several robust defences, including:

• The Rule in Holmes v Brunskill (1878): Variations to the loan agreements, which prejudiced D2, discharged her from liability as guarantor.
• Non est factum (This is not my deed): Forged signatures on key documents rendered them unenforceable.
• Unjust Transactions under the National Credit Code (NCC): The loan agreements and guarantees were unjust due to procedural and substantive unfairness, including D2's lack of understanding, absence of independent advice, and vulnerability at the time of execution.
• Unconscionable Conduct: The plaintiff's actions in procuring the guarantees were unconscionable, given D2's circumstances and the reliance on D1, who had an interest in securing the funds.

The plaintiff did not submit affidavit evidence to respond to D2's affidavits (although its lawyers initially informed Chris and his counsel that this was the worst summary judgment application for defendant they had ever seen). However, facing a comprehensive submission emphasizing these defences the plaintiff and its lawyers finally saw the light, and having ignored an early offer of compromise which would have allowed the plaintiff to avoid paying D2' costs, the plaintiff consented to:

1. The withdrawal of the caveat over the matrimonial home.
2. The dismissal of the claim against D2.
3. Payment of D2's costs, totalling $40,000.

This outcome demonstrates the strength of the principles protecting guarantors from undue influence, unjust transactions, and improper variations. It also highlights the importance of thorough preparation and strategic advocacy in securing a favourable result for clients.

Schlesinger v McPhail - English Court of Appeal 1980

This was an appeal against an award of damages to Chris' client Paul Schlesinger. This judgment was the first that Chris received in England. The case is only about rubbish, but the judgment is enhanced by the quality and manner of expression of the three Lord Justices of Appeal. Chris' barrister, William Blackburne was also elevated to the Court of Appeal on which he still serves, part-time. The judgment looks like it was typed on a Remington Royal manual typewriter. Schlesinger was so pleased to beat McPhail that he sent Chris a framed sketch of his house drawn by his wife. Chris has it today.

Texel Pty Ltd v Commonwealth Bank of Australia - [1994] 2 VR 298 - 14 September 1993

This is a leading case on the limitation of the right of a company to set aside a statutory demand after the expiration of 21 days after service. Ordinarily parties who have failed to do any act required under the Corporations Act can apply to extend the period for doing such act and the court may come to their assistance - but not where the 21 days is up for applying to set aside a statutory demand.

The decision of Justice Hayne in Texel was confirmed in 1995 in the High Court case of David Grant & Co Pty Ltd v Westpac Banking Corp. (1995) 184 CLR 265.

Texel did not set aside the demand before the expiration of 21 days after service of the demand upon it because of the "oversight of its solicitor". That oversight allowed the CBA to wind up Texel which in turn facilitated the recovery of monies owing to it by associated companies.

Chris acted for the CBA in Texel. His firm (then called Phillips Fox) later employed a young solicitor who claimed to have been the fall guy in the Texel statutory demand mishap. The entire fault, he said, was that of a partner seeking to deflect blame.

Traditional Values Management Limited (in liq) (receiver appointed) v WHO Investments Pty Ltd - [2015] VSC 518

(updated 21/03/2025)

In this case Chris' client, the defendant, successfully sought to further amend its defence and counterclaim. This was one of a suite of cases commenced by or against the liquidators of Traditional Values Management Limited (TVM), against or by the defendant or its associates.

Chris' clients were secured creditors (comprising nearly a third of all creditors) of TVM , which is the responsible entity of the Blue Diamond Deposits trust (BDT), a registered managed investment scheme. The only business of TVM was the operation of BDT which was a mortgage fund that raised money from investors to write loans to commercial and individual borrowers to fund interests in time share schemes. Chris' clients were also substantial unit holders in BDT, owning nearly a third of the units.

The liquidators pursued Chris' clients relentlessly in the courts, principally about the calculation of the value of the units and distributions made to unit holders. His clients counterclaimed.

In July 2014 Chris' clients called upon the liquidators to resign due to serious conflicts of interest described in Chris' letter of 4 July 2014 to the liquidator's solicitors, Mills Oakley. As a consequence the Court ordered the appointment of Andrew Hewitt as special purpose liquidator to investigate and respond to the matters Chris had raised.

The appointment of Mr Hewitt might be considered fortuitous as he was the liquidators' nominee and Matthew Jess of Worrells was the complainant's nominee. However, Justice Ferguson, after declaring that both were well known liquidators, appointed Mr Hewitt on the ground that "H" preceeded "J" in the alphabet. Perhaps if Mr Jess had known "alphabetical order" would be the basis for selection, he would have changed his name temporarily by deed poll to "Mr Aardvark" or similar.

Mr Hewitt published his report dated 20 November 2014. In paragraph 15.20 of his report Mr Hewitt observed: "in reviewing the conduct of the administrators/liquidators with respect to their conduct in managing the timeshare loan portfolio, there are many issues to consider in determining whether their conduct was negligent. Whilst I have identified a number of areas where the liquidators could/should have conducted further enquiries or activities, on balance I do not believe they acted negligently in their conduct."

Really? See Chris' letter of 4 July 2014.

Regardless, should not legal conclusions of negligence or conflict, or the absence thereof, be matters for the court alone?

On 3 September 2014 when Justice Ferguson made orders including appointing Mr Hewitt as a special purpose liquidator to investigate and respond to Chris' said letter of 4 July 2014, she agreed to provide written reasons for both the matters that had just been argued before her, being the appointment of Mr Hewitt and the validity of costs agreements entered into by the liquidators with Mills Oakley Lawyers without the liquidators having sought prior approval under section 477(2B) of the Corporations Act 2001. Justice Ferguson neglected to produce her written reasons as promised. Some ten years later, on 18 July 2024, Chris wrote to the president of the Law Institute of Victoria, Matthew Hibbins and asked him to act as an intermediary in his official capacity as president of the Law Institute to try to obtain from Chief Justice Ferguson delivery of a reserved judgment of hers dating back to 3 September 2014 in a winding up case that had already lasted 14 years and was continuing for who knows how much longer. Chris' letter to the president with the enclosed transcript have not received any substantive response from Mr Hibbins as of February 2025. Chris wrote to Mr Hibbins because the Supreme Court website discloses that the Law Institute of Victoria can refer complaints to the Judicial Commission of Victoria, on behalf of their members without disclosing the identity of the complainant.

In the WHO case Justice Sifris allowed amendments to the defendant's defence and counterclaim so as to broaden the ambit of the defendant's defences and claims. This seemed to Chris to somewhat take the wind out of the liquidators' sails such that the unit holder proceedings and counterclaim were withdrawn in May 2016 and the cases settled.

Chris's clients were represented very ably in the litigation by Norman O'Bryan as senior counsel. Sadly, at that time events were unfolding in a class action case in which Mr O'Bryan was also acting, that would ultimately lead to his legal demise. What occurred as a consequence of Mr O'Bryan's involvement in the litigation funding of that class action case is reported in a 2020 newspaper article. It appears a key difference between that funding arrangement and Chris' "Liquidators' Expense Insurance" was that before entering into any funding agreement, Chris made full disclosure to the court of all relevant matters, including potential conflicts and how they would be overcome.

According to accounts filed by the liquidators of TVM with ASIC they earned remuneration in the administration and winding up of TVM in excess of $5 million and paid fees to solicitors and counsel in excess of $7 million. Fees to the special purpose liquidator were $659,000. All remuneration and fees have been court approved.

As at February 2025, the winding up remains unresolved after more than 15 years, leaving unsecured creditors and unit holders without their dividends, This prolonged process raises serious concerns that may warrant parliamentary or ASIC intervention.

Trichardt & Anor v Carmelli & Anor - [2023] VMC 10

(added 21/03/2025, updated 24/03/2024)

In this case, Chris represented the plaintiffs, barristers Anton Trichardt and Monique Hardinge, in recovering their legal fees for services rendered under costs agreements provided to the defendants in connection with a legal matter involving Lifestyle Residences Hobsons Bay Pty Ltd.

Key issues included:

• The existence and enforceability of costs agreements between the plaintiffs and the first defendant, Mirka Carmelli, a solicitor, and the second defendant, Mitch Karafili, an accountant and the domestic partner of Carmelli.
• The interpretation of costs disclosure obligations of the plaintiffs to the defendants under the Legal Profession Uniform Law, specifically sections 174(1), 175 and 176,
• Whether Carmelli, as the principal of MCK Legal, was liable for the plaintiffs' fees under the alleged costs agreements.
• The legal enforceability of an email from Karafili accepting responsibility for payment of the fees which stated, "…I just have authorised the barristers to proceed in removing the caveat. Anton and Monique, please proceed with the writ. I will take responsibility of paying the fees…"

Magistrate T.W. Greenway in the Melbourne Magistrates' Court carefully examined the evidence, including email correspondence, witness testimony, and the obligations regarding costs disclosures and agreements specified in the abovementioned sections of the Legal Profession Uniform Law.

Magistrate Greenway's judgment (order) affirmed the plaintiffs' entitlement to the claimed legal fees in the sum of $57,030.83 and interest of $6,701 and in so doing provided clarity on the obligations of solicitors and third-party payers in such arrangements.

The plaintiffs were also awarded their costs on a standard basis on Scale F in a total amount of $34,796.90.

This case reaffirms the necessity of clear cost agreements, proper disclosures under the Legal Profession Uniform Law and thorough documentation in legal engagements.

Wu Guo Wei v Crown Limited (2001) - Funny Business at Crown Casino (Statement of Claim and Newspaper Article)

Mr Wu was a Chinese high roller who gambled at Crown Casino and had a big winning streak. His winnings of around $800,000 were not paid to him but went instead to a high roller junket operator who then went on a $1 million plus gambling spree using Mr Wu's winnings.

Chris acted for Mr Wu in suing Crown Casino for damages for breach of contract, alternatively damages for negligence and/or breach of statutory duty, alternatively damages for misleading or deceptive conduct.

The case and the trial attracted considerable media attention which Mr Wu did not welcome. All ended well for him, however, when on the third day of the trial Crown Casino capitulated and paid him. Where did Mr Wu collect the settlement money? At Crown Casino, of course, so that he could continue gambling.