Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 2:
1. Before turning to the background to the proceedings and the affidavit evidence, I should address procedural aspects of this application. The application was commenced by Mr Lindholm in his capacity as special purpose receiver ("SPR") of Banksia Securities Ltd (recs and mgrs apptd) (in liq) ("BSL") by Interlocutory Process filed on 24 October 2024 and, on 27 May 2025, I made orders setting down specified paragraphs of that application for a substantive hearing on 26 June 2025. I will deal sequentially below with the matters then set down for hearing today. Additional relief was sought by the SPR's Further Amended Interlocutory Process filed, by leave, on 26 June 2025 but has not proceeded to hearing today.
2. Before turning to the background to the proceedings and the affidavit evidence, I should address other procedural aspects of this application. First, the Court appointed a contradictor ("Contradictor") in the application, Mr Izzo SC with who Ms Trahanas appeared. Mr Izzo and Ms Trahanas made helpful submissions as to relevant issues, outlining the Contradictor's reasoning process, although the Contradictor was largely supportive of the position taken by the SPR. I address those submissions below.
3. Second, Mr Christopher Botsman, who is the son of a debenture holder, Mrs Botsman, has informed the SPR that he and certain debenture holders of Banksia intend to commence proceedings ("Section 29 Application") in the Supreme Court of Victoria against the SPR and many other persons under s 29 of the Civil Procedure Act 2010 (Vic), which allows a court to make orders if a person has contravened an overarching obligation. It appears that Mr Botsman has since retained solicitors and may be in the process of obtaining Counsel's advice as to the Section 29 Application. Relevant documents in this application have been served on Mr Botsman. In previous correspondence with the SPR's solicitors, Mr Botsman has also advised them of the reasons why he considers that matters relating to BSL should be determined in the Supreme Court of Victoria rather than in this Court, and the SPR's solicitors have responded to that correspondence, pointing out, inter alia, that the SPR was appointed by this Court. On 25 June 2025, a solicitor acting for Mr Botsman advised the solicitors acting for the SPR that the hearing listed in this matter was "for the purpose of timetabling orders only" and that "substantive issues will not be decided"; that proposition was plainly contrary to the orders made by the Court on 27 May 2025, to which I referred above. She also advised that Mr Botsman would not be appearing at the hearing and that Mr Botsman was formulating his position in respect of orders other than in respect of the SPL's remuneration and wished to be heard as to whether Court was the appropriate forum for this application. The solicitors for the SPL fairly provided this communication to the Court. In order to avoid any misunderstanding on Mr Botsman's (or Mrs Botsman's) part, my Associate, at my request, then drew Mr Botsman's solicitor's attention to the fact that she could not make any assumption as to what the Court would or would not determine at the hearing today, and provided information as to how she could join the hearing virtually if she wished to be heard as to the scope of the matters to be addressed or as to the substance of those matters. Mr Botsman (and Mrs Botsman) did not appear or seek to be heard at the hearing.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c9c1e007e088ccf8d1188)
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