Thyge Trafford-Jones has had some success in his capacity as liquidator of Special Gold Pty Ltd but last week the Federal Court dealt him the costs equivalent of a fat lip after he refused a settlement offer from Rami Ayoub, the $22,000 per month restructuring advisor of bankrupt Dyldam founder Sam Fayad.
“As I have found that Special Gold has not discharged its onus of proving Sam’s breaches of fiduciary and statutory duty from November 2022 onwards, the claims against the Ayoub Companies must fail.” Justice Ian Jackman.
Trafford-Jones had sued three Ayoub-controlled entities as part of proceedings he brought against Sam Fayad, his sons Fayad and Remon and various related entities in respect of dissipation of assets which had left Special Gold unable to satisfy its liabilities.
On July 22 Federal Court judge Ian Jackman delivered judgment in the matter of Special Gold Pty Ltd (in liq) v Dyldam Developments Pty Limited (subject to a Deed of Company Arrangement) (No 2) [2025] FCA 825, finding against Sam and Fayad in the sum on $44,282,453.79 plus interest, against Remon in the sum of $7,221,192.49, plus interest, against Parklea Markets Corporation Pty Ltd in the sum of of $14,450,000 plus interest and against Rainbow North Rocks One Pty Ltd in the sum $816,235.79 plus interest.
In those proceedings Trafford-Jones had also sued Ayoub’s ABS Agri Pty Ltd (ABS Agri), I Properties Pty Ltd (I Properties) and ACN 616 965 390 Pty Ltd (ACN 360) on the ground of accessorial liability and while Justice Jackman did found Fayad and his sons and related entities were involved in breaches of fiduciary duty owed to Special Gold there was a hitch.
“Special Gold alleges that ABS Agri, ACN 390 and I Properties (together the Ayoub Companies) are liable as accessories to Sam’s breaches of fiduciary duty under both limbs of Barnes v Addy, and as having been knowingly involved in his alleged contraventions of ss 181 and 182 of the Act,” Justice Jackman said in his July 22 judgment.
“The transactions in question all occurred after 25 November 2022, and thus Fayad-Lee was no longer a director of Special Gold at the relevant time.
“As I have found that Special Gold has not discharged its onus of proving Sam’s breaches of fiduciary and statutory duty from November 2022 onwards, the claims against the Ayoub Companies must fail.”
In the orders made to give effect to the judgment his honour invited Ayoub to make submissions as to costs.
He did so and on Wednesday the judge ordered that Special Gold pay the Ayoub parties’ costs on the ordinary party-party basis up to and including 22 June 2025, and on the indemnity basis on and from 23 June 2025, explaining in Special Gold Pty Ltd (in liq) v Dyldam Developments Pty Ltd (subject to a Deed of Company Arrangement) (No 3) [2025] FCA 1031 that indemnity costs were warranted from 23 June onwards because on June 22 Ayoub’s lawyers “sent an offer to the solicitors for Special Gold, marked “without prejudice save as to costs”, to the effect that the Ayoub Companies were prepared to forgo their entitlement to a costs order on the basis that Special Gold consents to orders dismissing the proceedings against the Ayoub Companies with no order as to costs”.
We asked Trafford-Jones if he declined Ayoub’s offer on the advice of his lawyers at ERA Legal or chose to so either in defiance or absence of advice but no response was forthcoming by iNO’s deadline.
Maybe he was too busy plotting his next move, given that while the court has made substantial monetary awards in Special Gold’s favour Sam Fayad declared bankruptcy on September 14, 2023, and his sons took the same option last month, a week before the hearing.
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