DAVID MARK HODGSON AS JOINT AND SEVERAL RECEIVER AND MANAGER OF BC WEST PERTH PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) -v- THE REGISTRAR OF TITLES FOR WESTERN AUSTRALIA [2026] WASC 241

[2026] WASC 241 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : DAVID MARK HODGSON AS JOINT AND SEVERAL RECEIVER AND MANAGER OF BC WEST PERTH PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) -v- THE REGISTRAR OF TITLES FOR WESTERN AUSTRALIA [No 2] [2026] WASC 241 CORAM : HILL J HEARD : 14 APRIL 2026 DELIVERED : 14 APRIL 2026 PUBLISHED : 16 JUNE 2026 FILE NO/S : COR 18 of 2026 BETWEEN : DAVID MARK HODGSON AS JOINT AND SEVERAL RECEIVER AND MANAGER OF BC WEST PERTH PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) First Plaintiff ANDREW HEWITT AS JOINT AND SEVERAL RECEIVER AND MANAGER OF BC WEST PERTH PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) Second Plaintiff AND THE REGISTRAR OF TITLES FOR WESTERN AUSTRALIA Defendant -- 1 of 11 -- [2026] WASC 241 Page 2 Catchwords: Corporations - Powers of receivers and managers to deal with property - Application for directions that receivers and managers are justified in causing settlement of sale contract to occur - Application for directions that receivers and managers are justified in causing sale of property and cancellation of mortgage - Whether plaintiffs would be justified in commencing proceedings under Property Law Act 1969 (WA) and Transfer of Land Act 1893 (WA) – Whether court has power to make substantive orders under Property Law Act 1969 (WA) and Transfer of Land Act 1893 (WA) on a corporations application - Turns on own facts Legislation: Corporations Act 2001 (Cth) s 424 Property Law Act 1969 (WA) s 55(2) Transfer of Land Act 1893 (WA) s 200 Result: Application granted in part Category: B Representation: Counsel: First Plaintiff : C K Pearce & M Hamid Second Plaintiff : C K Pearce & M Hamid Defendant : No appearance Solicitors: First Plaintiff : Blackwall Legal Second Plaintiff : Blackwall Legal Defendant : No appearance -- 2 of 11 -- [2026] WASC 241 Page 3 Cases referred to in decision: Blatchford as administrator of the estate of the late Voitto Tapio Laine v Laine [2018] WASC 207 David Mark Hodgson as Joint and Several Receiver and Manager of BC West Perth Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v The Registrar of Titles for Western Australia [2026] WASC 71 Faskal v Registrar of Titles [1990] ANZ ConvR 50 Re Leslie Homes (Aust) Pty Ltd (1984) 8 ACLR 1020 Sandgate Corp Pty Ltd (in liq) v Ionnou Nominees Pty Ltd (2000) 22 WAR 172 White, in the matter of Twinza Oil Limited [2025] FCA 1054 -- 3 of 11 -- [2026] WASC 241 HILL J Page 4 HILL J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) 1 On 27 February 2026, I made orders, pursuant to s 424 of the Corporations Act 2001 (Cth) (Act), that the plaintiffs were justified in proceeding on the basis that they remained validly appointed as joint and several receivers and managers of the Property notwithstanding the deregistration of Kaplink and the order for the winding up of BC West on 19 December 2025.1 2 On 24 March 2026, the plaintiffs requested the originating process be relisted to consider the balance of orders sought in the originating process dated 17 February 2026. The plaintiffs say that these orders are required in order for the settlement of the sale of the Property to occur. Specifically, the plaintiffs seek two directions under s 424 of the Act. First, that they are justified in seeking to cause settlement of the Sale Contract to occur in the name of BC West and second, that they are justified in seeking: (a) an order pursuant to s 55(2) of the Property Law Act 1969 (WA) (PLA) for the sale of the property on the terms and conditions set out in the sale contract; and (b) effective on and from settlement of the Sale Contract, a direction pursuant to s 200 of the Transfer of Land Act 1893 (WA) (TLA) that the defendant: i. cancel mortgage number O408496 in the register maintained under s 48 of the TLA (Register); and ii. issue a substituted certificate of title in respect to the property without the mortgage noted as an encumbrance. 3 If these directions were made, the plaintiffs submitted it was appropriate for the substantive orders under the PLA and TLA to also be made in these proceedings, as well as orders as to how the proceeds from the sale of the Property were to be applied. 1 David Mark Hodgson as Joint and Several Receiver and Manager of BC West Perth Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v The Registrar of Titles for Western Australia [2026] WASC 71 (First Decision). In these reasons, I have adopted the same definitions as used in the First Decision. -- 4 of 11 -- [2026] WASC 241 HILL J Page 5 4 In addition to the affidavits relied upon at the hearing on 27 February 2026, the plaintiffs relied on two affidavits of Ashlyn Kaur, a legal practitioner employed by the plaintiffs' solicitors, filed on 7 and 13 April 2026. 5 I have had the benefit of a written outline of submissions as well as oral submissions from counsel who appeared before me this morning. Should the directions sought by the plaintiffs under s 424 of the Act be made? 6 In the First Decision, I summarised both the factual background to the application, which I do not repeat, as well as the relevant legal principles that govern an application under s 424 of the Act.2 I adopt these principles in considering this part of the application. Consistent with my reasons in the First Decision, I accept that the plaintiffs, as receivers and managers of the Property, have standing under s 424(1) of the Act to bring this application. 7 In this case, for the following reasons, I am satisfied it is appropriate for the first direction sought by the plaintiffs to be given. 8 First, I am satisfied that in causing BC West to enter into the Sale Contract on 20 August 2025, the plaintiffs were acting within the terms of the Mortgage. In particular, under cl 4.5, the plaintiffs have broad powers in respect to the Property and can do anything BC West can do, including take possession of the Property, sell the Property, and enter into and execute documents or agreements on behalf of itself or BC West for the purpose of the Mortgage.3 These powers are also supported by the statutory powers granted to the plaintiffs under s 420 of the Act. 9 Second, neither the plaintiffs' appointment nor their powers as receivers and managers were terminated by the winding up of BC West on 19 December 2025. 10 Third, I am satisfied the plaintiffs complied with their statutory duty under s 420A of the Act in exercising the power of sale. They obtained an independent valuation of the Property, engaged Colliers 2 David Mark Hodgson as Joint and Several Receiver and Manager of BC West Perth Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v The Registrar of Titles for Western Australia [2026] WASC 71 [15] - [18]. 3 Affidavit of David Mark Hodgson filed 17 February 2026, 'DMH7.' -- 5 of 11 -- [2026] WASC 241 HILL J Page 6 Perth as agent throughout the sale process, and conducted a marketing campaign which resulted in four offers to purchase the Property. 11 Fourth, in Re Leslie Homes (Aust) Pty Ltd,4 the court held that after a winding up order is made, the receivers do not have the power to create liabilities that may be provable against the company in the winding up, but retain the power to enforce a chose in action that forms part of the relevant security. In that case, the court gave directions that the receiver was justified in executing a contract for the sale of land as agent of the company and proceeding to completion provided that the contract excluded the company from any pecuniary liability. In this case, in proceeding to sell the Property, the plaintiffs are enforcing the rights granted under the relevant security interest. Importantly, the plaintiffs have not, in seeking to sell the Property, created any liability against BC West as cl 9.4 of the Sales Contract expressly excludes any pecuniary liability on behalf of BC West.5 12 Fifth, the plaintiffs sought approval from the liquidator under s 420C of the Act to carry on the business of BC West as its agent insofar as it was necessary to complete the Sale Contract.6 13 I also accept that this direction does not concern a commercial matter but concerns an issue of the plaintiffs' power. 14 The second of the directions sought by the plaintiff is, in effect, a direction that they would be justified in commencing legal proceedings to seek relief under the PLA and the TLA. 15 Where a direction of this nature is sought, the principles which govern the decision are analogous to those that govern an application by a trustee for directions under s 92 of the Trustees Act 1962 (WA). These principles were summarised by Vaughan J (as his Honour then was) in Blatchford as administrator of the estate of the late Voitto Tapio Laine v Laine as follows:7 Otherwise, in the context of an application for directions as to the position a trustee should take in relation to litigation, the relevant principles may be summarised as follows: 4 Re Leslie Homes (Aust) Pty Ltd (1984) 8 ACLR 1020. 5 Affidavit of David Mark Hodgson filed 17 February 2026, 'DMH13.' 6 Affidavit of Monica Hamid filed 25 February 2026, 'MH1'. 7 Blatchford as administrator of the estate of the late Voitto Tapio Laine v Laine [2018] WASC 207 [57]; adopted by Feutrill J in White, in the matter of Twinza Oil Limited [2025] FCA 1054 in the context of receivers. -- 6 of 11 -- [2026] WASC 241 HILL J Page 7 (a) There is a 'jurisdictional bar' under s 92(1). However, that is simply that the applicant must point to a question respecting the management or administration of trust property or a question respecting the interpretation of a trust instrument. The jurisdiction is enlivened when the question raised for directions is whether the trustee is justified in prosecuting or defending a particular claim. (b) The court has a discretion as to whether to provide a direction under s 92(1). Advice does not have to be provided. (c) The key question is to determine whether, on the material available, it would be proper for the trustee to prosecute or defend the proceedings. That in turn involves two issues. First, whether the legal issues are properly arguable. Second, whether there are sufficient prospects of success to warrant the trustee proceeding with the litigation. These enquiries necessitate 'sufficient investigation' of the underlying issues. (d) The judicial advice proceedings are not to be treated as a trial of the issues that are to be agitated in the principal proceedings. The process is meant to be a summary one. (e) The court is not bound to investigate the evidence and make a finding as to whether the proposed proceedings would be successful. The question is whether the litigation is justified. The court is not finally resolving the merits of the underlying proceedings. (f) Relevant overlapping considerations include: (a) the prospects of success; (b) the means of the other party to satisfy any judgment; (c) the potential for the litigation to deplete the trust estate; (d) the likely adverse costs if the litigation is unsuccessful and whether those costs are likely to be proportionate; (e) the likely irrecoverable costs; and (f) the nature of the case and issues raised and what will be gained if the trustee succeeds in the action. It is important to emphasise that examination of the trustee's likely prospects in the litigation at an 'exhaustive level' is neither necessary nor appropriate. The assessment is made at a 'preliminary level'. The court's role is not to try the issues themselves. The court's function is limited to being satisfied that the material before it is sufficient to determine the general range of the prospects of success; and determining whether it is appropriate to pursue the proceedings having regard to the prospects of success, the benefits of the litigation and the resources available. But there must be sufficient information before the court for it to be satisfied that the proposed action would be for the benefit of the beneficiaries as a whole and otherwise would be prudent to pursue. -- 7 of 11 -- [2026] WASC 241 HILL J Page 8 16 Section 55(2) of the PLA provides that: In an action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that a. any other person dissents; or b. the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms, subject to subsection (3), as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms. 17 Given the plaintiffs are the receivers and managers of the Property appointed by Kaplink the mortgagee, I accept they are persons interested in the mortgage money and that they would have standing to bring an application under s 55 (2) of the PLA. 18 In Sandgate Corp Pty Ltd (in liq) v Ionnou Nominees Pty Ltd, Steytler J held that whilst the original provision of s 55(2) of the PLA only allowed for sale within foreclosure proceedings, subsequent amendments conferred a broader jurisdiction on the court to order a sale at any time.8 19 I accept that in order for any settlement of the sale of the Property to occur, it will be necessary for the Mortgage to be removed. At present, this cannot occur because Kaplink has been deregistered. The evidence before the court is that the process to reinstate the registration of Kaplink is in its preliminary stages and could take up to six months. On this basis, I accept there are reasonable prospects of success for the plaintiffs obtaining relief under s 55 of the PLA and that it is appropriate to give the direction sought. 20 In relation to the proposed direction and application under s 200 of the TLA, this section provides that: Upon the recovery of any land estate or interest by any proceeding at law or in equity from the person registered as proprietor thereof it shall be lawful for the court or a judge in any case in which such proceeding is not herein expressly barred to direct the Registrar to cancel any 8 Sandgate Corp Pty Ltd (in liq) v Ionnou Nominees Pty Ltd (2000) 22 WAR 172 [40]. -- 8 of 11 -- [2026] WASC 241 HILL J Page 9 certificate of title or instrument or any entry or memorandum in the Register relating to such land estate or interest and to substitute such certificate of title or entry as the circumstances of the case may require; and the registrar shall give effect to such order. 21 As counsel for the plaintiffs submitted, to date there has been little judicial consideration of the meaning of the phrase 'recovery of land' in the context of this section. In Faskal v Registrar of Titles, Commissioner Hasluck (as he then was) considered that 'recovery' should read in the context in which the provision occurs and the language used.9 Where this occurs, the commissioner expressed the view that it was not recovering the land in resuming title, but establishing a prevailing right to the land which he considered to be a recovery. 22 Counsel for the plaintiffs submitted that consistent with this reasoning, the plaintiffs' appointment as receivers and managers and the exercise of their powers as receivers and managers of the Property qualified as a 'recovery' of land in the sense of establishing a prevailing right to land. 23 Without deciding the matter, I accept this submission is open and that, given the following matters, the plaintiffs have sufficient prospects of success that it is appropriate to give the direction sought. 24 First, it is an express term of the Sale Contract that the Property be sold free of any encumbrances.10 At present, because it is deregistered, Kaplink is unable to lodge a discharge of the Mortgage or request the removal of the Mortgage from the register. As already noted, the application to reinstate Kaplink is at a preliminary stage and could take up to six months. A delay of this length would prevent the completion of the Sale Contract on the date currently fixed for settlement.11 25 Second, the sale of the Property is required to enable there to be a repayment of the debt owed to Kaplink which is secured by the Mortgage. Should the court grant substantive relief under s 55 of the PLA or s 200 of the TLA? 26 As I have already outlined in my discussions with counsel this morning, in relation to the question as to whether the court has power to 9 Faskal v Registrar of Titles [1990] ANZ ConvR 50 [20]. 10 Affidavit of David Mark Hodgson filed 17 February 2026, 'DMH13' cl 4.2.1. 11 Affidavit of David Mark Hodgson filed 17 February 2026, 'DMH25'. -- 9 of 11 -- [2026] WASC 241 HILL J Page 10 grant substantive relief under s 55 of the PLA or s 200 of the TLA in these proceedings, it is my view that it does not have that power. 27 The originating process in these proceedings is not an application that falls within the terms of the chapeau to s 55(2) of the PLA. Instead, it is an originating process that is filed in accordance with the Supreme Court (Corporations) (WA) Rules 2004. I am not persuaded that the substantive relief sought by the plaintiffs in order 5 of the originating summons is ancillary or that the court has power to make the substantive orders sought. In my view, it is necessary for the plaintiffs to commence fresh proceedings, the court now having given directions that it is appropriate to do so. 28 In these circumstances, it is neither necessary nor appropriate to consider the remaining orders sought by the plaintiffs. These orders will only fall to be considered in the event the plaintiffs obtain the orders sought under the PLA and the TLA, and settlement of the Property occurs. Conclusion and orders 29 The plaintiffs sought an order for their costs to be paid out of the receivership on an indemnity basis. I accept this is the appropriate order as to costs. 30 Finally, the plaintiffs propose that interested parties have liberty to apply within 21 days to modify or discharge these orders. In my view, this order appropriately protects the interests of all relevant interested parties, including the BVI Minister, the liquidator and creditors of BC West. 31 For these reasons, I consider it appropriate to made orders in terms of orders 1, 2, and 6 - 8 of the minute of proposed orders filed on 7 April 2026. -- 10 of 11 -- [2026] WASC 241 HILL J Page 11 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VA Associate to the Hon Justice Hill 16 JUNE 2026 -- 11 of 11 --