Ironbark
22 October 2026
Suing the financier – lessons from the Big Review TV judgment – “Quick Take”
Title: Suing the financier – lessons from the Big Review TV judgment – “Quick Take”
Suggested category: Insolvency
Ironbark Litigation Funding’s “Quick Takes” are for time poor people – we do the work distilling the subject matter so you don’t have to.
What happened
On 22 September 2026 the Federal Court dismissed a claim brought by Big Review TV Ltd (in liquidation) (BRTV) and its liquidators against the company’s former financiers and one of their directors: Big Review TV Ltd (in liq) v FC Securities Pty Ltd (No 2) [2026] FCA 1392 (Moore J).
BRTV made promotional videos for small businesses. It was the sole operating subsidiary of ASX-listed BIG UN Ltd (BIG). It went into administration in May 2018 and into liquidation in November 2018. Before it collapsed, BRTV was financed by FC Securities Pty Ltd, Finstro Payments Pty Ltd and Finstro Holdings Pty Ltd (the FCC Entities) under a sponsorship arrangement backed by a $20 million funding pool.
The liquidators alleged that four BRTV officers breached their duties under ss 181 and 182 of the Corporations Act 2001 (Cth). The claim was that the officers committed BRTV to financing that was commercially harmful to it, for the improper purpose of recording the financier’s money as revenue and lifting BIG’s share price. The officers themselves were not sued. The targets were the FCC Entities and their director, who were said to be knowingly concerned in the breaches (s 79) and liable to pay compensation under s 1317H. The liquidators claimed about $27.2 million or, in the alternative, an account of profits or knowing receipt of up to about $72.7 million.
After a ten-day trial on a court book of more than 60,000 pages, his Honour found the applicants had “failed to establish their case at multiple levels”. The application was dismissed and the applicants were ordered to pay the respondents’ costs.
Why the claim failed
- Purpose. The officers had sought and followed accounting advice on how to treat the funding as revenue, and the auditors had not queried it. The Court found that the officers did not set out to give a false picture and did not put their own interests ahead of BRTV’s.
- Commerciality was judged at the wrong time and on too narrow a basis. The Court found the agreement was not finalised until 9 August 2017, not November 2016 as the liquidators argued. Commerciality is assessed when the transaction is entered into. For a growth-stage business it also cannot be measured by short-term cash flow alone. The expert’s cost-per-video assumption did not sit well with what BIG had told the market about its automated production technology. The Court also found no evidence that materially better finance had been available.
- Loss. On published reports of the judgment, the liquidators did not show that BRTV would have been better off without the financing. The claim effectively sought the benefit of the money without its cost. It also ignored that BRTV’s video library and other IP, which the financing helped build, were later sold for $42 million.
Why it matters
A solvent financier, adviser or related party is often the only “deep pocket” left after a collapse, so accessorial claims are an attractive route to a recovery. But accessorial liability stands or falls on the primary breach. If the liquidator cannot prove that the officers breached their duties, the claim against the third party fails with it, however solvent that third party is.
People often ask me why funders spend so long on the counterfactual and the expert brief before committing. This case is a good answer.
What it means for liquidators, lawyers and creditors
- Test the primary breach first, against the contemporaneous documents. Evidence that directors sought and acted on professional advice is a strong answer to an improper purpose case.
- Fix the transaction date early. If the date is wrong, the commerciality analysis built on it is wrong too.
- Brief the expert on the business model, not just the cash flow. Check that the expert’s key assumptions match the company’s own documents and market statements.
- Build the counterfactual. Ask what finance was realistically available, and where the company would have been without the transaction.
- Give credit for value created. If the transaction helped build assets that were later sold, the loss case has to account for that.
- Size the downside. This was a long trial with three sets of senior counsel and an adverse costs order. Funding approval under s 477(2B), the adverse costs position and security for costs all need to be addressed before proceedings are issued, not part way through.
Summary
Big Review TV is a reminder that pursuing a solvent financier or other third party as an accessory is only as strong as the case against the company’s officers. Liquidators should get the transaction date right, make sure the expert analysis reflects the real business, and prove the company would have been better off without the transaction. Funding these claims can work well, but only when the evidence is tested before the costs are incurred.
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