Funded $7 Million Preference Claim Against Australian Tax Office Fails on Insolvency Proof
The Supreme Court of Western Australia has dismissed a A$7 million unfair preference claim brought by LCM Recoveries against the Commissioner of Taxation, finding that the company behind the claim had not been shown to be insolvent when the disputed payments were made.
As reported by Murrays Legal, the proceeding — *LCM Recoveries Pty Ltd v Commissioner of Taxation [No 2]* [2026] WASC 327 — concerned $7,005,329.27 paid to the Australian Taxation Office across 86 transactions between December 2012 and June 2013. LCM Recoveries pursued the claim as assignee of the liquidators' causes of action rather than as a funder standing behind the liquidators.
The court was not satisfied that the company was insolvent on the date relied on to trigger the statutory presumption of insolvency, or during the preference period that followed. It found the company faced liquidity problems but that the evidence did not establish an endemic shortage of working capital, noting that its books and records were incomplete and that internal reports relied on by the applicant's expert were too unreliable to establish insolvency. The Commissioner also succeeded on a good faith defence.
The judgment is likely to draw attention for its observations on the economics of assigned claims. On the figures before the court, even a full recovery would have returned roughly $206,916 to unsecured creditors after liquidator remuneration and costs, while the assignee retained the substantial balance. The court described as serious the question of whether an award in favour of an assignee that produces no benefit to the general body of creditors is consistent with the purpose of the preference regime.










