The attritional slog that has been the pursuit of the directors and advisors of Titan Interactive Pty Ltd by its liquidator Jennifer Low may have reached an inflexion point this week after a court on Monday agreed to a one day hearing of an aspect of Low’s claims as a separate question.
“The Pitcher Parties, in effect, deny that they were knowingly concerned in any of the Titan directors’ contraventions of s 588G or s 180 of the Corporations Act, and deny that they breached any contractual or tortious duties owed to Titan.” Justice Sam Vandongen.
In Low (Liquidator) v Hughes [2025] FCA 861 Federal Court justice Sam Vandongen on Monday agreed that the question of whether Low could be granted the relief she’s seeking against Pitcher Partners WA Pty Ltd (PPWA) and Pitcher Partners Accountants & Advisors WA Pty Ltd (PPAAWA) should be determined separately to her application for relief against Titan’s directors, who include former Pitcher’s WA executive chairman Bryan Hughes.
Hughes, who is the brother of Titan’s founder Wayne Hughes, was a director of Titan between 2014 and 2018 and referred the job to Low as a voluntary administration (VA).
Can there be a more concrete illustration of one’s independence than suing your referrer?
The Pitcher parties as his honour usefully describes them brought the separate question application by interlocutory process in April of this year, two months after Low filed and served a further amended statement of claim.
Low commenced her pursuit of insolvent trading claims and claims of breach of directors duties against Hughes and the company’s three other directors in 2023, following public examinations she undertook in 2022 with funding from FEG.
As advisors to the directors Low alleges that the Pitchers parties knew or should have known from at least 2013 that the directors were trading whilst insolvent and in breach of duties, hence the Pitcher parties’ joinder.
The insolvent trading claims are based on what Low alleges was Titan’s practice of using payment arrangements with the Commissioner of Taxation (CoT) to meet its tax liabilities, with the expectation that tax refunds would be sufficient to discharge any outstanding liabilities.
Low also alleges that Titan relied on research and development offsets under the Income Tax Assessment Act 1997 (Cth) and employee share scheme loans to meet its overdue superannuation and tax liabilities and to complete the arrangements it had entered into with the CoT.
According to Justice Vandongen “The Pitcher Parties deny that they were knowingly concerned in any of the Titan directors’ contraventions of s 588G or s 180 of the Corporations Act, and deny that they breached any contractual or tortious duties owed to Titan.”
No dates for the hearing of Low’s substantive claims have been set and the parties were directed to provide short minutes in respect of a date for the hearing of the separate question case by Friday, August 1, 2025.
Nor was the judge convinced that if the answer to the separate question is no, there was more likely to be a settlement of this part part of the case but he didn’t discount it either so the possibility that this litigation’s trajectory may be about to deviate from its trend curve is still on foot, and if nothing else it’s an opportunity for the lawyers to cream more fees.
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