Court Update

Supreme Court of Victoria

Week of 3 August 2026

6 civil decisions

Table of cases

Administration and Probate 1 of 6

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Stagliano v Lyttleton

Ginnane J  ·  3 August 2026

Administration and probate · Application to remove administrator · Explanation for lengthy administration · Application dismissed · Administration and Probate Act 1958 s 34

The facts

The deceased died intestate in September 2019, leaving a blended family: four children of a first marriage, his widow and her daughter. The widow was granted letters of administration but was removed by consent in July 2022 and replaced by an experienced estates solicitor.

In June 2025 one of the six beneficiaries applied under s 34 of the Administration and Probate Act 1958 (Vic) to remove that administrator and be appointed in her place. His complaints: four years of her administration had elapsed, some $2.46 million in rent was allegedly owed to the estate by a company operating from its principal property, the property had been sold without consulting him and the accounts remained in draft.
A man dies in 2019 without a will, leaving two sides of a family: four children from his first marriage, plus his wife and her daughter.

Six years on the estate still is not finished. One of the six children has had enough. He goes to court to sack the professional managing it and take the job himself. His complaints are real: a company using the family property may owe the estate $2.46 million in rent and it still has not been chased.

Was the administrator removed?Does he get the job?

Held

No. The application was dismissed and the administrator remains in office.

Ginnane J applied the principle stated by Dixon J: the jurisdiction is exercised with a view to the interests of the beneficiaries, the security of the estate property and the efficient execution of the trusts and the question is whether the considerations combine to show that the welfare of the beneficiaries is opposed to the officeholder's continued occupation of the office.

The delay had legitimate explanations. The administrator inherited the estate from a removed predecessor, spent the first eighteen months obtaining files and litigating a threshold question about the characterisation of estate assets decided by Harris J in February 2025, then sold the principal property for $4.7 million on supporting valuations. Of five proceedings concerning this estate, three were brought by the plaintiff himself: he lodged a caveat that blocked the sale and was ordered to pay indemnity costs when it was removed and his injunction application was dismissed with costs.

His Honour accepted there was "some justification" for thinking more decisive action could have been taken on the rent question, but found no breach of duty established. No other beneficiary sought removal and one sister wrote opposing the plaintiff's appointment on the basis it would add further time.
No. He loses. She stays.

Here is the twist. Of the five court cases fought over this estate, he brought three of them. He lodged a caveat that stopped the property sale and was ordered to pay costs when it was thrown out. He tried to block the money being distributed and lost that too. Then he argued the estate had taken too long.

His own sister emailed the court to say she did not support him taking over, because it would only add more time. The judge agreed: a new manager would have to learn the whole estate from scratch, at the estate's expense.

Delay alone is rarely enough. Removal needs breach of duty, misconduct or a disqualifying conflict.

Practice note: Where the applicant for removal has generated a substantial part of the delay complained of, the application is unlikely to succeed. Delay alone will rarely found relief under s 34 - the evidence must show breach of duty, misconduct or that continuance is opposed to the welfare of the beneficiaries as a whole. Note the evidentiary gap: the plaintiff asserted he acted for four beneficiaries but produced no written authority and the Court heard from no other beneficiary.
The lesson: You cannot sue an estate repeatedly and then complain it is slow. Courts rarely swap the person in charge halfway through, because a replacement has to learn everything from the beginning and the estate pays for that.
Practice and Procedure 2 of 6

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5 Boroughs v Victoria

Watson J  ·  3 August 2026

Practice and procedure · Group proceeding · Leave to amend group definition · Whether amendment one of form or substance · Amendment not to apply retrospectively · Supreme Court Act 1986 ss 33K, 33ZE

The facts

This COVID business-losses group proceeding was commenced by writ in August 2020, with a group definition indorsed on the writ. A statement of claim filed in February 2021 described the group in materially different terms. Leave under s 33K of the Supreme Court Act 1986 (Vic) is required to alter the description of the group in the writ. It was never sought.

The consequence went unnoticed for over five years. Pleadings were filed, struck out and refiled, Court-approved notices went to group members and an in-principle settlement was reached, all on a group description that had never been validly amended. The defect surfaced only in April 2026, at a case management hearing about settlement notices. The plaintiff then applied for leave to amend. The defendants consented. As His Honour observed, in ordinary litigation the application would be a "no brainer".
A giant lawsuit over Melbourne's COVID lockdowns, running since 2020 for around 18,000 Victorian businesses.

In 2021 the lawyers changed the wording of who counts as a member of the group. They put the new wording in their court documents. But changing it legally required the judge's permission and nobody asked for it.

So for five years, through every document, every notice sent to businesses and a settlement deal, the class was legally never what everyone thought it was. It only came to light this April.

Was the amendment allowed?Can they just fix it now?

Held

Yes, but not on the footing the parties advanced and only after 18,227 group members were notified.

Watson J declined to accept the amendment was one of form only. Supplying services "from" premises is at least arguably broader than supplying services to persons who attend those premises: a plumbing business supplies from its premises while the work occurs at the client's. At the very least, His Honour found, the original definition was ambiguous.

Leave was granted on the discretionary balance: ambiguity in a group definition must be resolved, given the importance of clarity and ascertainability; the proceeding had been conducted this way for five years; and of the 11 objections received, it was not clear that any objector was in fact affected. Those who might be excluded suffered no prejudice, since no claim had been advanced on their behalf since February 2021 and each retains the right to sue individually. Notably, His Honour refused retrospective effect to 12 February 2021, despite both parties consenting, because it would strip any excluded member of five years of limitation suspension under s 33ZE.
Yes, but only after every affected business was told. 18,227 notices went out. Eleven objected.

And the judge would not accept the lawyers' line that this was just tidying up wording. He gave an example: a plumber runs the business "from" an office but does the actual work at your house. Under the old wording that plumber might be in. Under the new wording, maybe not. That is a real change, not a typo fix.

He allowed it anyway, because five years of the case had run this way and none of the eleven objectors was clearly affected. But he refused to backdate it, since backdating would have quietly wiped out five years of legal protection for anyone pushed out of the group.

Party consent does not displace the Court's protective role over absent group members.

Practice note: Section 33K leave is not a formality that pleading can supply. Amending the group definition in a statement of claim does not alter the description in the writ and the defect can survive years of conduct, court-approved notices and settlement negotiation before anyone notices. Audit the writ against the current pleading in any group proceeding you inherit. And treat retrospectivity on a narrowing amendment as substantive: it can extinguish accrued limitation protection under s 33ZE and party consent will not carry the point where absent group members bear the cost.
The lesson: In a case this size, the paperwork is not just paperwork. A step everyone assumed had happened simply had not and five years of work was built on top of it. Check the foundations, especially when you take over a matter mid-flight.
Corporations: Insolvency 3 of 6

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Crispino v Lightowler

Matthews J  ·  5 August 2026

Corporations · Insolvency · Insolvent trading · Presumption of insolvency due to failure to keep financial records · Presumption not rebutted · Corporations Act 2001 ss 286, 588E, 588G(2), 588M(2)

The facts

The liquidators of a container transport company pursued its sole director under s 588G. The company changed accounting platforms in January 2019 and retained nothing from before that date. What survived afterwards was arguably worse than nothing: negative liabilities recorded so as to operate as assets, $767,972 attributed to credit cards the company never held, a cash drawer showing $202,600 that did not exist and a cheque account recorded at minus $1,835,085.92 against an actual balance of $4,888.66. No financial statements were prepared for FY2019 to FY2023.

The director filed a defence through solicitors, then filed no lay evidence despite self-executing orders, did not appear at trial and emailed chambers to say the proceeding was a waste of the Court's time.
A container transport company collapses. When the liquidators go looking for the books, there is nothing at all from before 2019.

What exists after that is arguably worse. The accounts show $202,600 sitting in a cash drawer that was empty. They show $767,972 tied to credit cards the company never had. They show the bank account $1.8 million overdrawn when it actually held $4,888.

The director filed a defence through lawyers, then stopped engaging. She did not turn up to the trial.

Was the director personally liable?Does she have to pay?

Held

Yes. Judgment for $2,504,836.99.

Matthews J held the s 588E(4) presumption arose for both periods: for the pre-2019 period because no records were retained contrary to s 286(2) and for the post-2019 period because what was kept did not correctly record or explain the company's transactions and position under s 286(1). The presumption was unrebutted. Actual insolvency was separately established from at least 2 August 2023 on the Plymin indicia, which in turn engaged the s 588E(3) presumption back to 2 November 2022. No s 588H defence was ever pleaded.

Notably, the Court did not simply accept the claimed total. A $19,429.78 default fee and $42,400 in recourse fees charged by a financier were disallowed as liabilities incurred after the administration date, applying the substance-and-commercial-reality test from ASIC v Plymin.
Yes. $2,504,836.99, out of her own pocket.

The rule is blunt: if a company does not keep proper books, the law assumes it was broke the entire time. The burden then flips and the director has to prove otherwise. With records like these, there was nothing to prove it with.

One detail worth noting: the judge did not just rubber-stamp the liquidators' number. She struck out roughly $62,000 of fees that were charged after the company collapsed.

The Court checks every debt was incurred before the appointment, even in an undefended trial.

Practice note: Keeping records is not the test. Keeping records that correctly explain the company's transactions and position is. Accounts riddled with negative liabilities and phantom assets attract the s 588E(4) presumption just as surely as keeping nothing at all and the presumption alone can supply reasonable grounds to suspect insolvency under s 588G(1)(c). For liquidators, the disallowed fees are the discipline: interrogate whether each claimed debt was incurred before the appointment, because the Court will, even in an undefended trial.
The lesson: Messy books are treated the same as no books. Your records are not admin, they are the only defence you have. And if you do end up in court, not turning up does not make it go away.
Corporations: Insolvency 4 of 6

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Re Perrydotcom Pty Ltd

Gobbo AsJ  ·  7 August 2026

Corporations · Insolvency · Insolvent trading · Former director held to be de facto director · Statutory defences · Claim in debt against director · Corporations Act 2001 ss 9AC, 588G, 588H, 1305

The facts

The company operated Campari House, a rooftop bar and restaurant in Hardware Lane, Melbourne. The respondent was its sole director and shareholder until August 2015, when the ASIC register recorded that he ceased to be a director. His brother-in-law was recorded as director from that date.

The conduct continued regardless. Over the following eight years he instructed the company's solicitors on the acquisition of the business, executed an employment contract in which he was named as the director to whom the employee would report, gave personal guarantees of the lease and of settlement terms, negotiated payment arrangements with the ATO, the SRO and Greater Western Water, changed the company's registered office to a Queensland address he used for his own businesses and recorded his personal Gold Coast post office box as the company's mailing address for ATO and SRO correspondence. The company was wound up in October 2023 with unsecured debts of $2,115,967, overwhelmingly taxation liabilities.
A well-known Melbourne rooftop bar collapses owing more than $2.1 million, almost all of it tax.

The man behind it has a simple answer: I resigned as director back in 2015. Check the register, my name is not on it.

But for the eight years after "resigning" he instructed the lawyers, signed an employment contract naming himself as director, personally guaranteed the rent, negotiated with the tax office and had the company's tax mail redirected to his own PO box in Queensland.

Was he liable as a de facto director?Does the resignation save him?

Held

Yes. Gobbo AsJ found he acted in the position of a director throughout and was a de facto director within limb (b)(i) of the s 9AC definition.

Applying Grimaldi v Chameleon Mining (No 2) and DCT v Austin, the question is one of fact and characterisation: had the person performed functions one would reasonably expect of a director of that company, given its circumstances? Her Honour noted DCT v Austin, where a submission that a former director was merely helping as a friend was rejected, the length of time he so acted putting the matter beyond that realm.

On the liquidator's unchallenged evidence the company was insolvent from at least 30 June 2019 and the SRO and ATO notices arriving at his own post office box, including an "Urgent Notice Legal Action Pending", established actual awareness of grounds for suspecting it. The s 588H defences failed at the threshold of proof: he filed witness outlines for himself and three others, then called no one, gave no evidence and did not cross-examine the liquidator. Her Honour gave the outlines no weight and drew the Jones v Dunkel inference. Compensation of $2,115,967 was ordered under s 588M, with a further $802,342 on his loan ledger (prima facie proved under s 1305) and $780,582 against his company Garrick.
No. The court ordered him to pay roughly $3.7 million.

The law does not care what the register says if you keep behaving like the director. Running the deals, signing as director, guaranteeing the rent, dealing with the tax office: that is the job, whatever the paperwork says. A court had already rejected the "I was just helping out as a friend" argument in an earlier case and it did not work here either.

And at trial he went quiet. He had listed four people to give evidence, including himself. None of them turned up. He did not ask the liquidator a single question. The court is entitled to read something into that silence and it did.

The definition of director looks at function, not the register.

Practice note: Resignation from the register does not end exposure where the conduct of a director continues. Section 9AC(b)(i) looks to function and the Grimaldi indicia are readily satisfied by instructing advisers, executing as director, guaranteeing obligations and dealing with revenue authorities. Advise departing directors that the exit must be real. Redirecting the company's revenue correspondence to a personal address is close to fatal on the awareness limb of s 588G(2).
The lesson: Quitting on paper means nothing if you keep running the show. If you leave a company, actually leave: stop signing, stop guaranteeing, stop negotiating. And if you end up in court, turn up with evidence. Silence is not neutral.
Corporations: Winding Up 5 of 6

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In the matter of WMU Pty Ltd

Barrett AsJ  ·  7 August 2026

Corporations · Winding up · Presumption of insolvency based on failure to comply with statutory demand · Whether grounds material to solvency · Unaudited accounts · Corporations Act 2001 ss 459C, 459S, 467

The facts

A flooring supplier served a statutory demand for $565,546.90, the unpaid balance under a Deed of Acknowledgment and Repayment the parties had signed after an earlier demand. The company applied to set the demand aside on grounds of duress, disputed deliveries and offsetting claims. Efthim AsJ rejected each ground as bare assertion.

Facing a winding-up application and the s 459C presumption of insolvency, the company sought leave under s 459S to oppose on substantially the same grounds and a stay pending a freshly issued proceeding attacking the Repayment Deed. Its sole director deposed that the company was solvent and had the means to pay the debt; she simply did not believe it was owing. The company even proposed paying the full sum into Court.
A flooring company owes its supplier $565,000 under a signed repayment deal. It stops paying. The supplier moves to have the company shut down.

The company's answer: we have the money, we just do not believe we owe it. The boss swears the company is healthy. They even offer to put the full amount into the court's holding account while a new lawsuit sorts out the dispute. Surely that is enough to stay alive?

Did the company avoid winding up?Does the company survive?

Held

No. Barrett AsJ refused leave, found solvency unproven, declined the stay and wound the company up.

On leave: s 459S(2) is a mandatory precondition, the ground must be material to proving solvency. Applying the narrow approach in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661, a company that contends it is solvent regardless of the disputed debt cannot satisfy the materiality requirement. The director's own affidavit closed that gateway.

On solvency: the accounts were unaudited special-purpose compilations bearing assurance disclaimers and going-concern qualifications; shareholder loans of $612,669 were on unknown terms; and the director's undertaking of continuing financial support was unparticularised. Per Expile v Jabb's Excavations, the fullest and best evidence is required. On the stay: the related proceeding was in its infancy, further unsecured costs would accumulate and a stay would subvert the policy of s 459S itself.
No. Wound up. A liquidator now runs it.

Here is the trap they built for themselves. To get permission to re-argue the debt, the law required them to show the dispute mattered to whether they could pay their bills. But their whole story was "we can pay everything, we just refuse to pay this one". So by their own argument, the dispute did not matter. Permission refused.

Then they had to prove the company was healthy, with accounts nobody had audited, mystery loans from shareholders and a promise from the boss to keep supporting the company with no detail at all. Not good enough.

Asserting solvency regardless of the debt closes the s 459S gateway.

Practice note: The statutory demand regime punishes the confident. "We are solvent and simply dispute the debt" is self-defeating under s 459S: Switz makes materiality to solvency the gateway and an unqualified assertion of solvency closes it. Fight the debt at the s 459G stage with real evidence, because a second bite rarely comes. If solvency must be proved, brief early for audited or properly verified material.
The lesson: "We could pay but we will not" is the worst possible defence to a shutdown application. And if you ever need to prove your company is healthy, proper audited accounts are the price of admission. Vague promises do not count.
Practice and Procedure 6 of 6

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A.J. Tuohey v Voloshin

Fary AsJ  ·  7 August 2026

Practice and procedure · Application for security for costs · Whether reason to believe companies unable to pay costs · Delay in seeking costs · Corporations Act 2001 s 1335

The facts

The first defendant, sued by three corporate plaintiffs over a failed wave-energy investment, applied for security for his costs in the sum of $64,789.26, relying on r 62.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) and s 1335 of the Corporations Act 2001 (Cth).

The plaintiffs comprised a superannuation fund trustee with modest trust unit holdings, a Hong Kong company with no disclosed assets in the jurisdiction and a wave-energy company which, it emerged after judgment was reserved, had been deregistered by ASIC. The defendant had foreshadowed security in January but did not file until June, some three months after he had the information needed to move.
A man gets sued by three companies over a failed investment. He worries: if I win, can these companies even pay my legal bills? One is registered overseas. One has almost nothing. One, it turns out, no longer exists.

So he asks the court to make them put up $65,000 as security before the case continues. Fair enough. But he sat on the request for three months and his cost figures were rough.

Was security ordered in the amount sought?Does he get his $65,000?

Held

Security was ordered, but in the substituted sum of $35,820.89, barely half the amount sought.

Fary AsJ applied Livingspring Pty Ltd v Kliger Partners: "reason to believe" a plaintiff cannot pay is a low jurisdictional threshold requiring a rational basis and a practical risk assessment, not proof. Applying Harpur v Ariadne (No 2), where multiple plaintiffs sue in the same interest, capacity in any one defeats the application against all, but here none could demonstrate it.

Quantum was where the applicant lost ground. His three-month delay told against past costs, which were also unitemised; his Honour discounted them by 50 per cent rather than the 18 per cent proposed. His written submissions had also mistakenly applied the discount to actual rather than standard costs. Future costs to mediation were discounted 20 per cent. Result: $8,845.24 past plus $26,975.65 future.
Sort of. The court agreed the companies probably could not pay. But he only got $35,820, barely half.

Why the haircut? He waited three months to file after he had everything he needed. His past legal costs were one lump figure with no breakdown. And his own maths applied the discount to the wrong number.

The court cut his past costs in half and trimmed the future ones too.

Delay and unitemised costs are paid for in the discount.

Practice note: Security for costs applications reward promptness and precision. Delay after the point at which the applicant has sufficient information to demand security will be paid for in the discount on past costs and unitemised lump-sum claims invite a broad-brush reduction. Where multiple plaintiffs sue in the same interest, test each one's capacity before filing: a single solvent plaintiff defeats the whole application.
The lesson: If you are going to ask for financial protection in a lawsuit, ask early and show your working. Sitting on it for months and handing up rough numbers cost this man nearly $29,000 of cover.

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Reported from the judgments · Not legal advice