Liquidators found liable to pay the EPA's costs of cleaning up contaminated land, despite disclaimer

• When the liquidators were appointed and assumed control of TASCO's affairs, they became "occupiers" of the Land under section 4(1) of the EP Act.  They were therefore potentially liable for the EPA's remediation costs. 
• A person is an "occupier" if they are in control of  land.  There is no requirement that an "occupier" own or be in possession of the land. 
• The liquidators held physical and legal control over the Land pursuant to their powers under the Corporations Act as external administrators.  This is despite the fact that legal ownership of the Land remained with TASCO, and the liquidators exercised their control over the Land as TASCO's agents. 
• It would be contrary to the objectives of the EP Act if companies occupying or controlling contaminated land could be placed into liquidation to avoid environmental liabilities. 

• The liquidators continued to be "occupiers" of the Land, because the EPA's remediation actions did not end the liquidators' control over the Land.
• Nor did the EPA become an "occupier" to the exclusion of the liquidators.  If that were the case, the EPA's power to recover remediation costs would be pointless, because it would only be entitled to recover from itself.
• In any case, there can be multiple "occupiers" of land.   

• The Indemnity constituted "sufficient available property" to meet the EPA's remediation costs.
• Where there is sufficient available property, section 545(1) puts a cap on the liquidators' liability.  It does not give the liquidators immunity from specific liabilities such as statutory debts. 
• The Court also considered whether the EPA's right to recover remediation costs as a statutory debt was inconsistent with the liquidators' right to not incur post-liquidation expenses unless there is sufficient available property.  It found that there was no inconsistency. Post-liquidation statutory debts (e.g. rates, charges, taxes etc.) have always operated concurrently with section 545(1).  This case was no different, because the EPA's right to recover remediation costs is consistent with corporate insolvency laws relating to debt recovery, priority of debts, and liquidation procedures.  

• Both the EPA and the State had an interest in the Land, and therefore standing to apply to the Court to set aside the disclaimer.
• The EPA had an interest in the Land as a prospective chargee, because remediation costs incurred by the EPA can form a charge over land. 
• The State had an interest in the Land pursuant to a claim to radical title, and to be the fee simple owner if the Land vested back in the Crown by the operation of the disclaimer. 

• The Court was satisfied that the EPA and the State would be so prejudiced.  
• TASCO only had four known creditors: Dongwha Australia, Dongwha Holdings (TASCO's sole shareholder and a related entity), the State (for land tax) and the ATO (for PAYG payments).
• It was clear that TASCO's creditors would not receive a dividend whether or not the disclaimer was set aside.
• TASCO's creditors would suffer no prejudice if the disclaimer was set aside, other than a delay in finalising the liquidation.     
• If the Indemnity was called on, Dongwha Australia would incur costs as TASCO's indemnifier.  However, it would not be prejudiced in its capacity as TASCO's creditor. 
• By contrast, if the disclaimer was not set aside, the EPA and the State would be heavily prejudiced, because they would have to bear the remediation costs. 

The Court exercised its discretion to set aside the  disclaimer, taking into account the following factors: 

• Voluntary liquidation (and a liquidator's power to disclaim property) should not be used to avoid environmental responsibilities, or to impose the cost of remediation on tax payers or the State.
• The Indemnity was available to satisfy the EPA's remediation costs. 
• The creditors would not be materially prejudiced if the Indemnity was called on.  
• The liquidators were unlikely to be prejudiced.  They were protected by the Indemnity (which extended to their costs and remuneration) and sheltered from personal liability by section 545(1) of the Corporations Act and the Undertaking. 
• Setting aside the disclaimer is consistent with the purpose of the EP Act (e.g. minimising harm to the environment and holding polluters accountable).