Further details of the bid to remove Gavin Moss as liquidator of Fogo Brazilia Franchise Holdings Pty Ltd (FBFH) emerged this week when a court ruled on an application to have a subpoena seeking details of communications between Moss, his funder and his funder’s lawyer set aside.
The subpoena was issued to Stewart Levitt of Levitt Robinson Solicitors on February 24, 2021 by Fogo Brazilia Holdings Pty Ltd (FBH). Moss brought the application to have it set aside on March 8.
FBH claims to be a creditor of FBFH. FBH’s director Ian Dresner is Moss’s appointor. But after Moss retained Levitt who then helped arrange funding from Galactic Fogo Litigation Liquidators LLC (FGLL) to conduct public examinations Dresner, who was summonsed as an examinee, decided he’d had enough.
He commenced proceedings to have Moss removed on the basis that he was conflicted by terms of the funding agreement with FGLL.
“On 30 November 2020, Black J made orders requiring the Liquidator to discover certain categories of documents, including copies of all documents evidencing or recording communications between the Liquidator and his firm and the Funder in relation to Franchise (FBFH) during the period from 1 January 2018 to date. The Liquidator did not produce any documents in this discovery category,” Justice Kate Williams.
While the substantive hearing on the conflict and removal application is scheduled to kick off next week Moss in the interim sought to have the subpoena set aside on the basis that some of the categories of documents identified were privileged and that it was unclear how other documents identified in the subpoena were relevant to the plaintiff’s case.
As is revealed by NSW Supreme Court judge Kate Williams In the matter of Fogo Brazilia Holdings Pty Ltd (in liq)  NSWSC 242 FBH probably chose to issue the subpoena only after an earlier order in respect of Moss and his communications with GFLL failed to elicit anything.
“On 30 November 2020, Black J made orders requiring the Liquidator to discover certain categories of documents, including copies of all documents evidencing or recording communications between the Liquidator and his firm and the Funder in relation to Franchise (FBFH) during the period from 1 January 2018 to date. The Liquidator did not produce any documents in this discovery category,” Justice Williams said.
“The plaintiffs’ pleaded case turns on the terms of the Funding Agreement in fact entered into by the Liquidator, and the manner in which the Liquidator conducted the examinations with the benefit of the funding provided under that agreement.”
It should be noted that Moss either doesn’t admit or denies the allegations that he breached his duties by entering into an agreement that would bring him into conflict.
He sought advice from Piper Alderman in respect of the funding agreement and the use of Levitt in respect of the examinations and whilst no details where disclosed in relation to that advice Moss was apparently satisfied he was independent.
In his defence of Dresner’s removal application Moss is also relying on an undertaking Levitt gave to the court in respect of what he would and wouldn’t do with the knowledge he obtained from the examinations, given his relationship with the funder and the funder’s relationship with franchisee creditors who’ve lodged proofs of debt with Moss claiming almost $5 million in damages. Support INO’s continued chronicling of the insolvency sector.