Cussen, in the matter of Monarch Tower Pty Ltd (in liquidation)

This appeal came out of the liquidation of Monarch Tower Pty Ltd, a property development company whose only project was a Southbank development site in Victoria. After his appointment, the liquidator investigated the company’s books and records, including a very large volume of electronic material obtained from a former IT provider. He formed the view that there were grounds to pursue voidable transaction claims under Division 2 of Part 5.7B of the Corporations Act.

The timing was tight. The liquidator applied on 21 July 2022, one day before the three-year period in s 588FF(3) expired, for an order extending time to bring claims against identified putative defendants. On 9 March 2023, the Court made that extension order and extended time to 22 January 2024.

On the last day of that extended period, the liquidator caused separate proceedings to be filed against several respondents, including Sinoace BVI, Zuccubarr, Payton, Timswee and Rill Trading. That preserved the filing date, but it did not solve the next procedural step. The proceedings were not served within the time required by the Federal Court (Corporations) Rules.

That failure drove the appeal. The respondents argued that the liquidator had not served promptly, that some later attempts at service were ineffective without an extension order, and that the proceedings should not be rescued after the event. The liquidator sought nunc pro tunc orders extending time for service. The primary judge refused and summarily dismissed the proceedings. The Full Court then had to decide whether that approach involved appealable error.

The background matters because it explains why the liquidator was working under pressure. The company had ceased trading in January 2018, the land had been sold in June 2018, and the winding up order was made on 28 August 2019. The liquidator said the company’s records were incomplete and that he had to obtain material from directors, financial institutions, government bodies, former advisers and other third parties. In May 2020 he received about 900 gigabytes of documents from the former IT services provider, which required external funding to review commercially.

By June 2021, the liquidator had identified potential claims of more than $27 million. Those potential claims included amounts said to involve Rill Trading Resources Inc, Sinoace Holdings Limited, Zuccubarr Pty Ltd and Zeninvest Pty Ltd, Timswee Pty Ltd, Payton Capital Ltd, and claims against directors. A second funding agreement was entered into in May 2022 to support public examinations and proceedings.

The Full Court’s synopsis also records an important practical detail. Between October and December 2023, the appellants’ solicitors and counsel prepared initiating documents for public examinations. The originating process for those examinations was filed on 6 December 2023, and the examinations were listed for June 2024. Then, on 2 February 2024, counsel for the liquidator informed the Corporations List Duty Judge that, subject to any contrary direction, the liquidator intended to proceed with public examinations before prosecuting the 2024 proceedings.

That sequence mattered because the respondents argued, and the primary judge accepted as an overarching submission, that the liquidator had deliberately and strategically chosen not to serve the proceedings promptly. The complaint was not simply that service was late by accident. It was that service had been knowingly delayed while the liquidator pursued a different forensic course.

The Full Court identified several issues. First, it had to decide whether leave to appeal was required and whether extensions of time to appeal should be granted. That issue arose because there was uncertainty about whether the primary judge’s orders were interlocutory or final, and whether the dismissals effectively amounted to summary judgment.

Secondly, the Court had to decide whether the appellants should be allowed to run arguments that had not been put to the primary judge. The Full Court concluded that leave was required to advance those new arguments and refused that leave.

Thirdly, and most importantly for the five service appeals, the Court had to decide whether the primary judge had erred in refusing to extend time for service of the 2024 proceedings and in summarily dismissing them. The catchwords show the Court was considering whether service outside the time required by r 2.7 could stand without an order extending time, whether later service was merely service in fact that respondents had to set aside, and whether the primary judge had fallen into discretionary error.

There was also a separate issue for Sinoace BVI. It was accepted before the primary judge that Sinoace BVI had not been served with, and did not otherwise have notice of, the earlier extension application under s 588FF(3). The primary judge set aside the extension order as against Sinoace BVI on procedural fairness grounds. The further question was whether, once that had happened, the extension application was spent and incapable of being re-heard as against Sinoace BVI, or whether the Court still had power to determine it afresh.

That separate issue is important because it was the only part of the appeal in which the appellants obtained substantive appellate relief. Even there, the relief was not a final determination in their favour on the extension question. It was a remittal for fresh determination by another judge.

The Full Court granted the applications for extension of time and leave to appeal in all six matters. But that was only the gateway issue. On the merits, five of the six appeals were dismissed. Those were the appeals concerning the Sinoace BVI proceeding itself, the Zuccubarr proceeding, the Payton proceeding, the Timswee proceeding and the Rill Trading proceeding.

The Court said that leave was required to advance arguments not put to the primary judge and refused that leave. It also concluded, save for one appeal, that there was no merit in the appeal grounds concerning the refusal to extend time for service of the 2024 proceedings and the consequential entry of summary judgment in each matter.

The one successful appeal was VID 754/2024, the separate appeal concerning Sinoace BVI and the earlier extension application. The Full Court allowed that appeal, set aside the orders made on 4 July 2024 and 13 November 2024 in proceeding VID 31/2024, and set aside part of the orders made on 4 July 2024 in proceeding VID 410/2022. In place of the earlier order, the Court ordered that the application to extend time for making an application under s 588FF(1), in respect of any voidable transactions involving Monarch and Sinoace BVI, be remitted to a judge of the Court other than the primary judge for determination.

That is a precise but important point. Sinoace BVI did not obtain a final merits victory. The liquidator also did not obtain a final extension in his favour. Instead, the Full Court held that the issue should be determined again by a different judge. So the practical result was a re-opening of the extension question as it related to Sinoace BVI, not a final answer to the underlying voidable transaction claim.

For liquidators, insolvency practitioners and funded claimants, the practical message is straightforward. Filing within the limitation period, or within an extended period, is not enough by itself. Service must be planned at the same time. If proceedings are filed on the last available day, there may be almost no room to recover from a service failure. That is especially so where the court sees the delay as a deliberate strategic choice rather than a genuine practical obstacle.

For respondents, this case shows that procedural objections can be decisive. If you receive a liquidator claim, check whether your entity was actually named in the extension order, whether the proceeding was filed within the permitted period, whether service complied with the rules, and whether you had notice of any earlier application that affected your rights. If service was irregular, consider carefully whether to waive the irregularity. In this case, some respondents expressly did not waive it and foreshadowed applications for a permanent stay.

The case also shows the difference between informal notice and formal service. Some respondents or their solicitors received emails notifying them of the first case management date and foreshadowing an intention to seek an extension of time to serve. That did not prevent the service issue from becoming central. Businesses should preserve all correspondence, because the timing and content of those communications may matter later.

There is also a broader governance point. Even though this appeal turned on procedure, the background involved alleged claims worth many millions of dollars. Businesses dealing with distressed counterparties should keep transaction records, board papers, funding documents, payment trails and communications in an organised form. If a liquidator later investigates, those records may be critical both on the merits and on procedural questions such as notice, identification of parties and timing.

Finally, if a court sets aside an earlier order because a party was denied procedural fairness, that does not always end the matter. As the Sinoace BVI appeal shows, the next step may be a re-hearing before another judge. Businesses should therefore distinguish between a procedural reset and a final commercial victory.

In a corporations matter, several trigger points can change the risk profile quickly. The first is the expiry of the ordinary period for bringing a s 588FF claim. The second is any application to extend time under s 588FF(3). The third is the actual filing date of the originating process. The fourth is service. This case shows that each step needs to be tracked separately.

If your business is bringing a claim, make sure the team can answer these questions before filing: who exactly is covered by the extension order, are all intended respondents correctly identified, can service be effected immediately, and if not, what application should be made before the deadline passes? If your business is defending a claim, ask the mirror-image questions and preserve any objection early.

It is also worth noting one point from the primary judge’s summary that was not challenged on appeal. The primary judge concluded that persons and corporations not listed in the extension order were not validly covered by it on its proper construction. That is a reminder to draft and review extension orders carefully. If the order names specific putative defendants, the wording matters.

The Full Court judgment was delivered on 9 October 2025. The available reasons clearly state the orders, the synopsis and substantial background. They also clearly show the overall result: five appeals dismissed, one separate Sinoace BVI appeal allowed and remitted. Because the published text available here is truncated before the end of the reasons, this page focuses on the procedural holdings and practical lessons that are expressly stated.

The case should be read as an appellate decision about service, extension orders, summary dismissal and procedural fairness in insolvency litigation. It should not be read as deciding the substantive recoverability of the alleged transactions.