BDO duo and tax boss fall out over miserly DoCA

Crossing the Deputy Commissioner of Taxation (DCoT) can be a fraught and perilous undertaking, to be sure.

No creditor in the country has deeper pockets or broader powers and none exercises their rights through a more byzantine and impenetrable decision making process.

Nevertheless, when making recommendations to creditors ahead of crucial votes, practitioners must be insensate to the inequalities prevailing in the creditor pool. Antagonising the ogre of the Australian insolvency hellscape is an inescapable reality.

One pair of practitioners who had this familiar fact reiterated recently is BDO duo Duncan Clubb and Jeff Marsden, who knew when they recommended that creditors of Shafston Avenue Construction Pty Ltd (Shafston) vote in favour of a deed of company arrangement (DoCA) proposal back in 2023 that the DCoT was implacably opposed to the deed’s acceptance.

And why not? Shafston and the four related entities which comprised the pooled DoCA Clubb and Marsden endorsed owed taxpayers $16 million. Yet the DoCA offered three cents in the dollar in exchange for the proponent directors being let off the hook.

Despite the miserly dividend a majority of creditors in number and value voted in favour, prompting the DCoT to shortly afterwards commence proceedings to have the DoCA set aside.

As it turned out those proceedings were unnecessary after the DoCA was terminated when certain conditions precedent failed to be met. Clubb and Marsden were appointed liquidators in March 2024.

Whatever happened between then and September last year when the DCoT commenced proceedings seeking the appointment of special purpose liquidators (SPLs) hasn’t been disclosed in Deputy Commissioner of Taxation, in the matter of Shafston Avenue Construction Pty Ltd (In Liq) v Shafston Avenue Construction Pty Ltd [2025] FCA 1673, a judgment of the Federal Court delivered on December 17, 2025 but only made public this week.

What’s clear is that relations between the DCoT and the BDO duo did not improve, perhaps unsurprisingly given the only recovery of note Clubb and Marsden have managed as liquidators is a $280,000 unfair preference they clawed back from the Commissioner of Taxation (CoT), also in September 2025.

By that time 12 months had passed since the DCoT first advised Clubb and Marsden that it was willing to fund investigations of claims they’d identified, as long as the recipients of that funding weren’t Clubb and Marsden.

The judgment makes no reference as to why the DCoT refused to countenance funding the BDO duo so we can only speculate as to the emergence or otherwise of any trust issues.

Meanwhile, the more satisfying role of undertaking investigations fully funded has fallen to McGrathNicol partners Anthony Connelly and Mark Holland.