Department of Employment and Workplace Relations v Rathner as liquidator of Mentor Education Pty Ltd (in liq) [2025] FCA 1291

Link to decision

Overview

In this decision, Neskovcin J confirmed that a liquidator is required to make available documents and information, including those that pre-date their appointment upon a creditor's request under sections 70-45 and/or 70-55 of the Insolvency Practice Schedule (Corporations) (IPS).¹ Importantly, this obligation arises without any requirement for a court order under section 486 of the Corporations Act 2001 (Cth) (the Act).²

Key facts

• Mentor Education Pty Ltd (Company) entered voluntary administration on 20 March 2023 and was subsequently wound up on 23 June 2023, with Gideon Rathner appointed as liquidator (Liquidator).³ 
• The Department of Employment and Workplace Relations (Department) had paid out $516,978.19 to the Company's former employees under the Fair Entitlements Guarantee Scheme (FEG), in respect of unpaid employee entitlements. The Department lodged a proof of debt in the liquidation for that amount.⁴ 
• During the liquidation, the Department applied for access to several company documents under sections 70-45 and/or 70-55 of the IPS.⁵ While the Liquidator provided some documents, he refused to produce a number of ‘pre-administration’ documents, taking the position that the relevant IPS provisions only applied to documents available from the date of the administrator's appointment. He argued that access to earlier documents could only be compelled by way of an inspection order under section 486 of the Act.⁶
• The central question for the Court was how to interpret and reconcile the two sets of legislative provisions relied upon by the Department and the Liquidator respectively.⁷ 
• The Court found in favour of the Department on all key points.

The scope of the IPS provisions

The Court found that the object of the reforms introduced by the IPS was to ‘expand the rights of creditors to obtain information from external administrators and remove the regulatory barriers to creditors obtaining information.’⁸ The Court further noted that sections 70-45 and 70-55 ‘do not distinguish between pre or post administration documents’ and that ‘there is nothing in the text of these sections which purport to limit the external administrator's disclosure obligations.⁹’

The role of section 486 of the Act

Her Honour agreed with the Department's submissions that requiring a creditor to seek a court order under section 486 ‘would entrench the regulatory barriers to information access that the legislature intended to remove through the reforms that were introduced by the Insolvency Practice Schedule.’¹⁰

Her Honour also clarified that section 486 of the Act continues to have a role to play where the requirements of sections 70-45 and/or 70-55 are not met. In those circumstances, section 486 allows the Court to make orders for inspection of the company's books ‘as the Court thinks just’, and subject to conditions.¹¹

Orders made

Orders were ultimately made under section 70-90 of the IPS for production of the documents and information sought by the Department.¹²

What this means for Liquidators

This decision provides important guidance on the statutory framework, confirming that Division 70 of the IPS is the primary mechanism through which creditors may access relevant documents and information, with section 486 of the Act playing a supplementary role, consistent with the broader policy objective of prioritising transparency over procedural formality.

Most significantly, liquidators cannot refuse to disclose documents simply because they were created before the liquidator's appointment. Where documents are ‘in relation to’ the external administration, liquidators should carefully review all documents in their possession, including those inherited from directors or a prior administrator, on the basis that such documents are likely to be disclosable upon a creditor's request.

A liquidator's disclosure obligations under the IPS are broad. The timing of a document's creation is not a valid basis for withholding it from a creditor. Liquidators should approach pre-appointment documents with a presumption of disclosure, not refusal.

This article was co authored by Arran Merlino.

¹ Corporations Act 2001 – Schedule 2 (Cth) s 70-45,70-55.
² Ibid, s 486.
³ Department of Employment and Workplace Relations v Rathner as liquidator of Mentor Education Pty Ltd (in liq) [2025] FCA 1291, 2.
⁴ Ibid, 7.
⁵ Ibid, 8; Corporations Act 2001 – Schedule 2 (Cth) s 70-45,70-55.
⁶ Ibid 9; Corporations Act 2001 (Cth) s 486.
⁷ Department of Employment and Workplace Relations v Rathner as liquidator of Mentor Education Pty Ltd (in liq) [2025] FCA 1291, 1.
⁸ Department of Employment and Workplace Relations v Rathner as liquidator of Mentor Education Pty Ltd (in liq) [2025] FCA 1291, 48.
⁹ Ibid.
¹⁰ Ibid.
¹¹ Ibid, 50.
¹² Department of Employment and Workplace Relations v Rathner as liquidator of Mentor Education Pty Ltd (in liq) [2025] FCA 1291, 50; Corporations Act 2001 – Schedule 2 (Cth) s 70-90.