Presented by Jones Partners

Re Intellicomms Pty Ltd (in liq) [2022] VSC 228.


This case concerned the sale of assets belonging to Intellicomms Pty Ltd (facilitated by sole director Ms Haynes) to Technologie Fluenti Pty Ltd (“TF”), a company created only two weeks prior. Ms Haynes’ sister was both the director and a major shareholder of TF. Shortly after the sale, Haynes placed the company into a creditor voluntary liquidation. A major shareholder and creditor of Intellicomms was not made aware of the shareholder meeting to appoint a liquidator. This case was the first time anti phoenixing legislation would be tested in court, in particular s588FDB (1) and s588FE(6B) of the Corporation Act.


S588FDB (1) of the Corporation Act outlines the two-limb test for a creditor defeating disposition:

The consideration provided must be less than either the market value of the property or less than the best price reasonably obtainable for the property; and

  • the disposition has the effect of preventing the property from being available to the creditors in the winding up of the company; or
  • it has the effect of hindering or significantly delaying the process of making the property available for the benefit of creditors in the winding up of the company.


The key issue was whether the transaction fell within the criteria of a creditor defeating disposition as outlined in s588FDB (1).


On the balance of probabilities, the liquidator successfully established both limbs, and the sale of the company’s assets was rendered voidable. Evidence showed the director had strategically intervened in the reports and future cash flow projections used in the valuation of the assets, to intentionally forecast a lesser figure. There was also evidence that QPC, a major creditor of Intellicomms, was willing to pay well over $500,000 for its assets. The disposition was found to be a voidable transaction and was described as a “brazen and audacious” example of phoenixing by the Court.


  • Accurate valuations are crucial in legitimising asset sales during times of financial difficulty.
  • Proper maintenance of books and records to substantiate financial performance and cashflow forecasts are crucial.
  • Seeking appropriate professional advice when in financial distress at the earliest possible time will provide the company with the best outcomes.