In the matter of Absolute Vision Technologies Pty Ltd

1. [1]

   The second plaintiff, Mr Shute, was purportedly appointed as administrator of the first plaintiff, Absolute Vision Technologies Pty Ltd (subject to deed of company arrangement) (Absolute Vision) on 31 May 2024. He was also purportedly appointed as the administrator of a deed of company arrangement of Absolute Vision by a majority of creditors on 22 July 2024.

2. [2]

   An issue arose about the validity of Mr Shute’s appointments. His appointment as administrator was made purportedly by the sole director and shareholder, Mr Srivastava. The issue that has arisen is whether, as at 31 May 2024, Mr Srivastava was the sole director, or whether Ms Kruppa-Srivastava was also a director.

3. [3]

   Mr Srivastava and Ms Kruppa-Srivastava were formerly married. There is litigation on foot between them in the Federal Circuit and Family Court of Australia.

4. [4]

   The principal relief that Mr Shute seeks is an order under s 447C of the Corporations Act 2001 (Cth). That section provides:

5. [5]

   If I conclude that the resolution was made after the appointment of Mr Shute, the appointment was invalid. In that event, Mr Shute seeks relief under s 1322(4)(a) of the Corporations Act. That section provides:

6. [6]

   It was also submitted by Mr Shute, again in the alternative, that if I concluded that the document recording the resolution (and hence the resolution) was backdated, I could grant relief under s 447A, validating the appointment of Mr Shute. That section relevantly provides:

7. [7]

   It was also submitted by Mr Shute, in the further alternative, that if I cannot make a finding one way or the other about whether the resolution was backdated, then relief should be granted under s 447A.

Ms Kruppa-Srivastava’s position

1. [8]

   Ms Kruppa-Srivastava has not taken a consistent position. The final position that she took at the hearing was that the resolution was backdated and she was never removed as a director. However, she does not wish to challenge the validity of anything done by Mr Shute in his capacity as administrator or his appointments. She wishes to preserve her position in the proceedings on foot in the Federal Circuit and Family Court of Australia, including to contend that she was not removed as a director of Absolute Vision. She also wishes to be able to advance a proof of debt in the administration of Absolute Vision in respect of what she contends to be unpaid director’s salary and other remuneration. She does not oppose relief under s 447A.

Was the resolution backdated?

1. [9]

   There is evidence that on 16 May 2022, Mr Srivastava sent an email to Absolute Vision’s accountant, Mr Kirk Davis, copied to Ms Kruppa-Srivastava, asking him to “process the retirement of Melanie Kruppa as the director of Absolute Vision Technologies”. Mr Davis responded (again copying Ms Kruppa-Srivastava) that Ms Kruppa-Srivastava had been removed from the ASIC register. A company extract confirms that the register kept by ASIC records that she ceased to be a director on that day.

2. [10]

   On 8 June 2024, Ms Kruppa-Srivastava told Mr Shute that she had been removed as a director without her knowledge or consent. That prompted Mr Shute to ask Mr Srivastava for documents in relation to the cessation of Ms Kruppa-Srivastava’s directorship. On 11 June 2024, Mr Shute specifically asked Mr Srivastava about whether there was a signed shareholder’s resolution recording the decision to terminate Ms Kruppa-Srivastava’s directorship. Mr Srivastava responded on the same day, attaching a PDF of the shareholder’s resolution which bears the date 16 May 2022.

3. [11]

   A solicitor acting for Mr Shute, Ms Harris, noticed that the metadata of the PDF that had been sent to Mr Shute suggested that the document was created on 11 June 2024. On the same day, Ms Harris informed Mr Srivastava by email that the metadata of the PDF supplied by him suggested it was created on 11 June 2024 and asked him to confirm when the document was executed. Mr Srivastava responded on the same day. He did not squarely answer Ms Harris’s question. He replied that Ms Kruppa-Srivastava had emailed Mr Shute “about this to close the Issue out”.

4. [12]

   Ms Kruppa-Srivastava sent two emails to Mr Shute in quick succession on 11 June 2024. She informed Mr Shute that she understood her directorship was retired in May 2022 and that she had no concerns with it. Mr Shute relied on this communication and proceeded to undertake considerable work in his role as administrator (including seeking judicial advice, see In the matter of Absolute Vision Technologies (subject to deed of company arrangement) [2024] NSWSC 1010) without taking any further steps to confirm the validity of his appointment as administrator.

5. [13]

   In July 2025, Ms Kruppa-Srivastava again contended that she had been removed as a director without her knowledge or consent. Mr Shute sought further information from Ms Kruppa-Srivastava and her solicitors.

6. [14]

   On 16 December 2025, Ms Kruppa-Srivastava’s solicitors alleged that the cessation of Ms Kruppa-Srivastava as a director came about in circumstances of duress and was procured by a shareholder’s resolution that was backdated and false.

7. [15]

   On 18 December 2025, Mr Shute’s solicitors advised Mr Srivastava’s solicitors of Ms Kruppa-Srivastava’s allegations and asked for documents relevant to her removal. Once again, it was suggested that the metadata indicated that the document was created on 11 June 2024 (not 16 May 2022).

8. [16]

   After being chased for documents, Mr Srivastava’s solicitor, Mr Nevell, advised Mr Shute’s solicitors on 30 January 2026 that: “I believe my client provided all contemporaneous records directly to your client”. It is telling that this letter again failed to assert that the resolution dated 16 May 2022 was made and recorded on that day and that the metadata did not establish the contrary. It would have been an obvious time to make that assertion if it was true.

9. [17]

   Another factor that suggests that the document recording the resolution may have been backdated arises from the terms of Absolute Vision’s constitution. The constitution requires that resolutions of the company will be made by the sole shareholder recording the passage of each resolution in the company’s record-keeping system. Mr Shute has had control of those records and was unable to produce the resolution from those records.

10. [18]

    Against this, I recognise that the evidence concerning the metadata cannot be taken too far without evidence, possibly expert evidence, about precisely what is established by the metadata, and the possibility, for example, that a PDF was created on 11 June 2024 by making a PDF version of another document. There is also no question on the evidence that Mr Srivastava intended to have Ms Kruppa-Srivastava removed as a director on 16 May 2022 and took steps to achieve that end. The fact that he took those steps and that there is a resolution dated 16 May 2022 is some basis in itself to conclude that the resolution was made on the date that the documents bears.

11. [19]

    Weighing these matters, I am not able to conclude that Mr Shute has established to my satisfaction that the resolution purportedly made on 16 May 2022 was made on that date. I am reluctant, however, to come to a positive conclusion that the document was backdated. I am conscious that Mr Srivastava is not a party to this application. For reasons given below, I do not need to make a finding, other than that I have not been persuaded on this application that the document was made on 16 May 2022.

Section 447C relief

1. [20]

   Mr Shute accepted that if the document recording the resolution was backdated, he was not validly appointed as administrator (or as administrator of the deed of company arrangement). Given that I am not satisfied that the resolution dated 16 May 2022 was made on that day, it follows (subject to what is addressed below) that I am not able to make an order under s 447C declaring that the purported appointment of Mr Shute was valid. Relief under s 447C is declaratory and not curative: HPI Australia Pty Ltd [2008] NSWSC 1106 at [8]; In the matter of Cyprus Community of NSW Ltd [2024] NSWSC 1629 at [115]. I cannot declare the appointment of Mr Shute to be valid when the evidence has not established that his appointment as administrator was valid.

Section 1322 relief

1. [21]

   The next issue is whether I should grant relief under s 1322(4)(a). That section has been set out above. As I have noted, the relief claimed is that the appointment of Mr Shute (first as administrator and then as administrator of the deed of company arrangement) is not invalid by reason of any failure to remove Ms Kruppa-Srivastava as a director of Absolute Vision in conformity with s 249B of the Corporations Act and clause 11 of the company’s constitution.

2. [22]

   Section 249B of the Corporations Act provides:

3. [23]

   Clause 11 of the constitution provides:

4. [24]

   If no resolution was passed by Mr Srivastava on 16 May 2022, then no resolution was passed in conformity with s 249B of the Corporations Act, or clause 11 of the constitution.

5. [25]

   A question could possibly have arisen about whether there was a “contravention” of s 249B of the Corporations Act or clause 11 of the constitution simply because there was no resolution to remove Ms Kruppa-Srivastava as a director. It might have been suggested that there was a failure to comply with s 249B and clause 11, which meant that there was no valid removal of Ms Kruppa-Srivastava as a director, but that this did not mean that there was a “contravention”, of either s 249B or clause 11, within the meaning of s 1322(4)(a), by reason of the absence of a resolution. Section 249B and clause 11 are permissive rather than proscriptive. A distinction between a “contravention” and a “failure to comply” is drawn, for example, in s 103 of the Corporations Act.

6. [26]

   However, the decision in Weinstock v Beck (2013) 251 CLR 396; [2013] HCA 14 makes it clear that any failure by Mr Srivastava to make a resolution on 16 May 2022 to remove Ms Kruppa-Srivastava as a director can properly be considered to be a “contravention” of s 249B or clause 11. In that case, the Court rejected any distinction between “what cannot be done at all under the Act or under the constitution of a company and what can be done but has not been done validly”: per Hayne, Crennan and Kiefel JJ at [52]; see also French CJ at [42] and Gageler J at [62]-[63].

7. [27]

   It follows from this decision that s 1322(4)(a) confers power to declare that Mr Shute’s appointments were not invalid by reason of any failure on the part of Mr Srivastava to remove Ms Kruppa-Srivastava as a director validly; that is, in the manner required by s 249B of the Corporations Act and clause 11 of the constitution. This is also consistent with the decision in Sheahan v Londish [2010] NSWCA 270; 80 ACSR 337 at [161]-[163] and [178] (per Young JA).

8. [28]

   Section 1322(6) qualifies the Court’s power to grant relief under s 1322(4)(a). That section relevantly provides:

9. [29]

   Section 1322(6)(a) identifies three matters. The Court has to be satisfied about at least one of them - they are not cumulative.

10. [30]

    Section 1322(6)(a)(i) in this case directs attention to the relevant “act, matter or thing” that is the subject of the application under s 1322(4)(a). This directs attention to the act, matter or thing that is to be declared to be “not invalid”. The acts that are the subject of the application in this case are the appointments of Mr Shute as administrator and as administrator of the deed of company arrangement. It is not, for the purposes of s 1322(6)(a)(i), the act of failing to execute a resolution. I am not satisfied that the appointments of Mr Shute as administrator are “essentially of a procedural nature”.

11. [31]

    Section 1322(6)(a)(ii) requires that I am satisfied that in any contravention of s 249B of the Corporations Act or the company’s constitution, Mr Srivastava “acted honestly”. The so-called “honesty limb” was considered in detail by Banks-Smith J in In the matter of ICandy Interactive Ltd [2018] FCA 533; 125 ACSR 369 at [54]–[108]. The difficulty in this case is that there is no specific evidence to explain, if it be the case, why no formal resolution was made on 16 May 2022 by Mr Srivastava. I cannot conclude that any failure was occasioned by dishonesty, but nor am I able to come to a positive conclusion that Mr Srivastava relevantly acted honestly. There is no satisfactory basis to draw a conclusion one way or the other. I am not satisfied that s 1322(6)(a)(ii) is engaged.

12. [32]

    Section 1322(6)(a)(iii) requires me to be satisfied that it is just and equitable that the order be made. Section 1322(6)(c) also requires me to be satisfied that no substantial injustice has been or is likely to be caused to any person. These are separate requirements, but the same underlying factual matters may inform the conclusion about each requirement.

13. [33]

    There are various matters in this case that lead me to the conclusion that it is just and equitable that the order be made and that no substantial injustice has been or is likely to be caused to any person. They may be summarised as follows:

    1. (1)

       upon his (purported) appointment as administrator, Mr Shute undertook appropriate inquiries to confirm the validity of his appointment and formed the belief, on reasonable grounds, that his appointment was valid;

    2. (2)

       while Ms Kruppa-Srivastava initially raised an issue about whether she had been properly removed as a director, and hence indirectly challenged Mr Shute’s appointment as administrator, she specifically informed Mr Shute that she had ceased to be a director in May 2022 and she had no issue with that, and for some 12 months afterwards made no objection to any steps being taken by Mr Shute as administrator or as administrator of the deed of company arrangement;

    3. (3)

       in reliance on the belief that he had been validly appointed, Mr Shute performed substantial work and incurred costs as administrator and as administrator of the deed of company arrangement, including things such as obtaining judicial advice, paying outstanding employee superannuation entitlements, paying costs to a petitioning creditor, collecting cash at bank, a director’s loan and cash contributions under the deed of company arrangement, recovering debts, recovering settlement proceeds from the sale of properties and negotiating a further sale of property;

    4. (4)

       there would be a substantial disruption to the administration and steps taken to give effect to the deed of company arrangement if the validity of Mr Shute’s appointments remained in question;

    5. (5)

       no creditor or other person (save, indirectly, Ms Kruppa-Srivastava) challenges Mr Shute’s appointments; and

    6. (6)

       Ms Kruppa-Srivastava has made it clear that she is content for Mr Shute to continue to perform his duties as administrator and she is content for his appointments to be validated, but wishes to preserve her right to contend that she was not lawfully removed as a director in May 2022 (particularly in the proceedings underway in the Federal Circuit and Family Court of Australia).

14. [34]

    If I were to make orders under s 1322(4)(a), the effect of the orders would be that the appointments of Mr Shute as administrator and as administrator of the deed of company arrangement are not invalid by reason of any failure to remove Ms Kruppa-Srivastava as a director of Absolute Vision in conformity with s 249B of the Corporations Act and any failure to comply with clause 11 of the company’s constitution. The relief validates the appointments of Mr Shute. It does not validate any invalidity in the removal of Ms Kruppa-Srivastava as a director. I am not asked to make an order declaring that removal of Ms Kruppa-Srivastava as a director of Absolute Vision is not invalid and do not do so. That eliminates the risk of prejudice that Ms Kruppa-Srivastava is concerned about.

15. [35]

    I do not consider that I have to make a positive finding that the resolution was backdated before granting relief under s 1322(4)(a). The power is to make orders where there has been “any” contravention. The words are broad enough to capture the possibility of a contravention. That is consistent with the remedial nature of s 1322(4) and the broad reading of the section that was accepted in Weinstock v Beck.

16. [36]

    These matters lead me to conclude that it is just and equitable, and no substantial injustice has been or is likely to be caused to any person by the grant of relief under s 1322(4)(a). Nor do I consider that there are any residual discretionary reasons to decline to grant relief.

17. [37]

    It was submitted for Mr Shute that if relief is granted under s 1322(4)(a), then the Court can and should proceed to grant relief under s 447C. I do not think that is necessary. Once a declaration is made under s 1322(4)(a), any order under s 447C is superfluous.

Section 447A relief

1. [38]

   It also follows that there is no need to resort to s 447A of the Corporations Act. That is consistent with Sheahan v Londish at [169].

Costs

1. [39]

   It was submitted for Mr Shute that costs should follow the event. Mr Shute has failed to seek the primary relief that he sought but nonetheless will obtain relief. The relief he will obtain will essentially accommodate the position advanced by Ms Kruppa-Srivastava. She submitted that each party should bear its own costs, with the consequence that Mr Shute would recover his costs in the administration. That is the appropriate outcome.

Orders

1. [40]

   I make the following orders:

   1. (1)

      An order pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) declaring that the appointment of the second plaintiff as administrator of the first plaintiff on 31 May 2024 is not invalid by reason of any contravention of s 249B of the Corporations Act or clause 11 of the first plaintiff’s constitution, occasioned by any failure by Mr Srivastava to make a resolution to remove Ms Kruppa-Srivastava as a director of the first plaintiff on 16 May 2022.

   2. (2)

      An order pursuant to s 1322(4)(a) of the Corporations Act declaring that the appointment of the second plaintiff as administrator of the deed of company arrangement in relation to the first plaintiff on 22 July 2024 is not invalid by reason of any contravention of s 249B of the Corporations Act or clause 11 of the first plaintiff’s constitution, occasioned by any failure by Mr Srivastava to make a resolution to remove Ms Kruppa-Srivastava as a director of the first plaintiff on 16 May 2022.

   3. (3)

      Each party is to bear its own costs, with the intention that the second plaintiff will claim his costs in the administration of the first plaintiff.