A judge who was a highly regarded commercial barrister might be thought to have sympathy for liquidators caught short arranging funding before a claim deadline expires. Negative.
“In cases such as the present, where the quality of the explanation for delay is a consideration relevant to whether or not the relief claimed should be granted, self-interest might have been thought to be a sufficient motivation for alacrity.” Justice Nick Owens.
As iNO has already reported, Federal Court justice Nick Owens last week expressed some dissatisfaction while hearing an application for retrospective entry into retainer and funding agreements brought by PKF partners Mark Roufeil and Brad Tonks in their capacities as liquidators of Vaucluse 29 Pty Ltd, One Lake Macquarie Pty Ltd and Bayview 66 Pty Ltd.
With his own docket disturbed by the liquidators’ plea for an urgent hearing Justice Owens, who as a senior counsel successfully defended publisher Fairfax in the Ben Roberts-Smith defamation proceedings, several times queried delays in the liquidators’ decision making processes as they applied to first seeking funding and then apply for for retrospective approval to enter into a retainer agreement with Piper Alderman and a funding agreement with Kovi Paneth’s Pretium Funding.
Judging by his comments in Tonks (Liquidator), in the matter of Vaucluse 29 Pty Ltd (in liq) [2025] FCA 1306, not all the explanations provided at the hearing by Roufeil and Tonks’ counsel Andrew Fernon SC were persuasive.
“In cases such as the present, where the quality of the explanation for delay is a consideration relevant to whether or not the relief claimed should be granted, self-interest might have been thought to be a sufficient motivation for alacrity,” the judge said.
“If nothing else, the fact that the plaintiffs here requested an adjournment of over a week when the matter was first called for hearing demonstrates that leaving things to the last minute carries with it significant risk that the required relief will not be obtained in time. Applications of this kind should be prepared and made at the earliest realistic opportunity.”
Justice Owens did concede that the liquidators could hardly be blamed for the late decision to enter into a retainer with Piper Alderman, which had been acting for them on spec since Roufeil and Tonks were appointed provisional liquidators in December 2022.
“The plaintiffs’ explanation for why they had not earlier sought approval for entry into the retainer agreement was simple: they did not think that it was required,” the judge said.
“It is certainly the case that the question whether liquidators require approval to enter into an agreement in their own names to retain solicitors under which work would be performed on behalf of the company (as opposed to for the liquidators) had not, until quite recently, been definitively settled.
“The plaintiffs gave evidence, which I accept, that they believed that the effect of s 477(2)(a) and (b) was that they did not require approval.
“The possibility that that belief may have been wrong only occurred to them as a result of exchanges between myself and counsel on 14 October 2025 in connection with their application for approval of the funding agreement.
“They then moved promptly to seek approval. In those circumstances, the failure to seek approval before entry into the agreement was honest, and has been explained.”
Despite the huffing and puffing, the judge ultimately made the orders sought so Roufeil and Tonks can now proceed to issue summonses for examination and can continue to litigate proceedings brought in the NSW Supreme Court on behalf of One Lake Macquarie.
Further reading:
PKF pair’s tense wait for funding approval
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