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Latest decision of interest in this post-Amerind world dropped today

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Just a note to alert readers that the latest decision of interest in this post-Amerind world dropped today in the Federal Court in Queensland. The liquidators of an insolvent corporate trustee successfully obtained orders appointing them receivers of the assets of two trusts to enforce the rights of exoneration and liens of the former trustee. The application was contested by the new trustee of the property trust, who sought to sell the key asset itself (a hotel – freehold title to the land). Note the orders made (order 6) as to recourse to the assets of the trusts for the receivers’ remuneration, costs and expenses regarding each trust and the winding up of the company generally.

The case was the decision of Derrington J in Connelly, in the matter of Gregorski Investments Pty Ltd (in liq) v 320 Nominees Pty Ltd as trustee of the Gregorski Property Trust [2019] FCA 1400. 

 

When a payment of trust money is recovered as an unfair preference, does it become trust money once again?

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Last Friday Derrington J in the Federal Court in Queensland tackled this question which remains unresolved in Australia, in  Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation (No 3) [2018] FCA 1572. That is, when a payment is recovered as an unfair preference, and the original payment out was of trust moneys applied in payment of trust debt/s, does the recovered money become impressed with the trusts once again, or does it form part of the bankrupt’s general estate? (Or, on a liquidation, the company’s?) As a fungible, of course the funds recovered are not the same funds as those paid to discharge the debt.

Facts

Mr Lee was the sole trustee of the Warwick Lee Family Trust. Prior to his bankruptcy, Mr Lee operated the business of a Subway franchise in the suburb of Brassall in Queensland on behalf of the trust. In his capacity as trustee he employed a  number of staff and incurred a number of significant liabilities. In the course of the administration of Mr Lee’s bankrupt estate, the Bankruptcy Trustees recovered an unfair preference payment of $322,447.58 from the ATO, which had been paid by Mr Lee in discharge of tax liabilities arising from the operation of the Subway franchise. Of this sum, $171,659 had been paid using Mr Lee’s own money to pay this tax debt, and the balance of $150,778.58 had been paid from funds of the trust. The Bankruptcy Trustees had apportioned the unfair preference recovery accordingly between Mr Lee’s personal estate on the one hand and the trust on the other.

The question was whether they were right to do so. The debate centred on the recovery of payment of trust money, and whether the Bankruptcy Trustees were correct in their treatment of the $150,778.58 as becoming trust money “once again” upon its recovery.

Submissions

In broad terms, the Bankruptcy Trustees submitted that the funds recovered by them were impressed with the terms of the trust such that they (in the shoes of Mr Lee) would only be entitled to use them to discharge liabilities owing to trust creditors. His Honour noted the Trustees also seemed to submit that the trust creditors would be entitled to be subrogated to the equitable lien which attached to those funds in support of the trustee’s right of exoneration (at [7]).

The Commissioner generally submitted that the monies repaid by him were not subject to the terms of the trust and was available to be used by the Bankruptcy Trustees to meet the claims of all creditors (at [7]). The Commissioner submitted that although the trust funds were paid to him by Mr Lee as trustee utilising the right of exoneration, when an equivalent amount was repaid, the money was held free of all trust obligations and could be used to discharge the debts of non-trust creditors (at [20]).

Decision

As Derrington J observed at [25] that to date there is no sufficiently authoritative statement on this topic.

His Honour’s key reasoning is at [19]. He observes that attention needs to be focused on the entitlement to recover the sum paid from trust funds pursuant to Mr Lee’s entitlement to exonerate himself in respect of debts incurred in his capacity as trustee. Mr Lee’s entitlement to use trust funds only arose by reason of his position as trustee and because the debt arose from the administration of the trust. He concludes that the right to recover the payments of trust money from a transaction which was avoided was a right which was held for the benefit of the trust. Hence that right of recovery would be trust property vested in the trustee in that capacity and not in his / her /its personal capacity. “Rights which accrue from the performance of trust obligations tend to be trust property”, he adds.

At [24] his Honour concludes: “It would appear to be axiomatic that the right to receive repayment from the Commissioner consequent upon the avoidance of the preference payment was a right which vested in Mr Lee qua trustee such that the right is property of the trust, albeit one in which Mr Lee also had a beneficial interest.” He takes the view that at the very least, the right to receive the funds would be subject to the fiduciary duty that Mr Lee is not to profit from his position as trustee (at [28]).

Derrington J’s conclusion meant that the Trustee’s of Mr Lee’s bankrupt estate were correct to apportion the unfair preference recovery between the trust and Mr Lee’s general estate, in accordance with the source of the original payments that had been avoided. That is, the impugned payments of trust monies recovered as unfair preferences were to be treated as held for the benefit of trust creditors only (see [32]).

Conclusion

This should provide some guidance to bankruptcy trustees where the bankrupt had been a trustee who made preferential payments prior to bankruptcy.

However the question is more likely to arise in the corporate context, and will be particularly acute where a company was trustee of more than one trust, or also acted at times in its own capacity. The difficulty here is that some of his Honour’s reasoning was particular to the bankruptcy context (see [12]-[15]), and it is unclear if it would apply in the same way in the corporate context. Once again, because the Corporations Act fails to grapple explicitly with the liquidation of trustee companies and the issues which arise where trusts are involved, we are left with the question unresolved. Directions may need to be sought.

His Honour observes at [15] that the Bankruptcy Act confers no right of recovery or cause of action on the Bankruptcy Trustee (s 122 simply operates to avoid the preferential payments). It follows from this, his Honour says, that the Bankruptcy Trustee’s claim to recover the money is derivative upon a general law right acquired from the bankrupt. His Honour goes on to conclude that this right of the bankrupt is trust property which vests in the Bankruptcy Trustee by virtue of s 58 of the Bankruptcy Act (at [24]).

However unlike the Bankruptcy Act, s 588FF of the Corporations Act does provide a right of recovery and to seek other orders. For unrelated reasons , pursuant to s 588FF the right to bring the application is that of the liquidator, but the Court’s power is inter alia to order payment to the company . It is unclear whether the Courts would take the view where the impugned payment out had been a payment of trust money, that the rights of recovery under s 588FF are themselves trust property. And whether it would follow that any unfair preference recoveries received by a liquidator which had originally been payments out of trust moneys, were themselves subject to the obligation to use them in the manner required of the original funds, being for the purposes of discharging trust debts only, rather than available to the company in liquidation’s creditors generally.

Derrington J’s view expressed more than once was that neither a trustee, nor anyone claiming through it, has an entitlement to profit from their position as trustee and recover funds that had been a payment of trust moneys for their personal use (see eg at [31]). Perhaps this will inform the approach the Courts take to this difficult question.

Current state of uncertainty in the liquidation of trustee companies and the bankruptcy of individual trustees

Given that this case decides a question which leads to a conclusion as to whether unfair preference recoveries are available to all creditors or only trust creditors, one more point should be  noted. This is a Federal Court bankruptcy decision (in Queensland). For most of Australia, on the liquidation of a trustee company, proceeds of the trustee’s right of exoneration and supporting lien are not generally available for distribution to non-trust creditors. They may only be used to pay trust creditors. This was confirmed by the Full Federal Court in March of this year in Killarnee – Jones (Liquidator) v Matrix Partners Pty Ltd; Re Killarnee Civil and Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 354 ALR 436 (Killarnee). See my distillation of the propositions for which Killarnee stands as authority here, and my article reviewing the judgment and considering each of those propositions in more detail here.

In Victoria, however, a five member bench of the Court of Appeal in February of this year in Amerind concluded on this issue that until a subsequent appellate decision decides otherwise, Re Enhill continues to apply in Victoria and should continue to be followed by trial judges here, and the proceeds of the trustee’s lien on a bankruptcy or liquidation are available for division amongst the company’s creditors generally, not only among trust creditors –  Commonwealth of Australia v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers apptd)(in liq) [2018] VSCA 41; (2018) 354 ALR 789 (Amerind). See my article reviewing that judgment here. Derrington J’s disapproval of this position can perhaps be seen in his observation at [9] that:  “In general terms, the decision in Amerind concluded that a corporate trustee’s right of exoneration, being the entitlement to use trust funds to pay trust debts, transmogrifies on insolvency into a right to use trust funds for the [trustee company’s] non-trust debts.”

Of course Amerind dealt with other issues as well, principally whether a trustee’s right of indemnity is property of the company, and whether upon the liquidation of a trustee company the distribution of property is governed by the statutory priority regime. Special leave to appeal to the High Court in Amerind has been sought and in August 2018 was granted, although the appeal has not yet been heard.  **Update: The High Court appeal was heard on 5 February 2019. As at the date of writing this update (15 Feb 19) the HCA decision is pending.

I note too that Derrington J’s earlier decision in the bankruptcy of Mr Lee dealing with whether trust assets can be used to pay all creditors or only trust creditors, and whether the scheme of priority in s 109 of the Bankruptcy Act applies to trust assets / proceeds of the trustee’s right of indemnity and lien –  Lane v Deputy Commissioner of Taxation [2017] FCA 953; (2017) 253 FCR 46 – has been appealed by the Commissioner. However given the granting of leave to appeal to the High Court in Amerind the Lane appeal it is not presently being progressed (see [9]).

 

Newsflash – Special leave granted in Amerind

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Earlier this morning special leave to appeal to the High Court was granted from the Victorian Court of Appeal’s decision in Amerind.  The bench comprised their Honours Gageler, Edelman and Nettle JJ. The transcript is not yet available on Austlii. Their Honours did not need to hear from counsel for Carter Holt Harvey Wood Products Pty Ltd, the creditor who had applied for special leave to appeal.

The five-member Victorian Court of Appeal decision from which special leave to appeal was granted can be read here: Commonwealth of Australia v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers apptd)(in liq) [2018] VSCA 41 (Amerind).

My review and analysis of that decision can be read here. For my article considering the Full Federal Court decision in Killarnee and the landscape for liquidating corporate trustees of trading trusts in light of both decisions see here.

New article on Sino Iron v Worldwide Wagering – Fraud and liability in restitution for online sports betting companies and their operators

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I have added a new article to my website – Fraud and liability in restitution for online sports betting companies and their operators. The article can be accessed here.

Abstract: With the proliferation of online sports betting enterprises, the decision in Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd [2017] VSC 101 provides a salient warning to those who stand behind them. The case usefully illustrates the legal ramifications where the sports betting company receives a questionable payment and not enough is done by those involved to verify its legitimacy.

Issues of law raised by the fraud and addressed in the judgment include claims for money had and received, Black v Freedman trusts of stolen money, and Barnes v Addy knowing assistance and knowing receipt claims against third parties. It is useful for practitioners to be across the five Baden categories of knowledge, to assess when on a particular set of facts a claim may be established or a defence to such a claim made out.

*** Note that the article was written at the request of and was first published by LexisNexis in the September 2017 issue of the LexisNexis Internet Law Bulletin, volume 20, issue 6, pp 107-110. 

 

Remuneration of liquidators – Sakr Nominees – 5 member NSWCA panel rights the ship

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Today a 5-member panel of the NSW Court of Appeal overturned last year’s liquidator’s remuneration decision of Brereton J in the Sakr case. In an anticipated decision which will be welcomed by insolvency practitioners, their Honours held that in assessing the reasonableness of liquidators’ remuneration, the Court must have regard to the factors in s 473(10) and must have regard to the evidence. Fixing remuneration on an ad valorem basis by simply applying a percentage of realised assets considered appropriate to all liquidations, or to a particular size or class of liquidation without regard to the particular work done or required to be done, is not appropriate. To do so would pay no regard to the requirements of s 473(10) of the Corporations Act all of which, with the possible exception of s 473(10)(l), are directed to the particular liquidation under consideration by the Court. The judgment in full can be read at: Sanderson as liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38.

Facts

The liquidation commenced in September 2012. The only significant assets were three adjacent properties in North Sylvania which the liquidator realised for $3.72million. Subsequently the secured creditors were paid out, the unsecured creditors were paid out, and there remained a surplus of about half a million dollars. The creditors of the company had approved the liquidator’s remuneration up to 3 November 2014, but no further creditor approval could be sought as the creditors had been fully paid. Following paying out the creditors, an issue had arisen as to determining the identity of the contributories entitled to the surplus, and this had occasioned further work. There was a balance of $35,413 owing for work done, and approval of a further $22,385 for future work to compete the liquidation. The total remuneration claimed was $63,577 including GST. Upon hearing the application, Brereton J had approved only $20,000.

First Instance Approach

At first instance, Brereton J had stated that liquidators would not necessarily be allowed remuneration at their firm’s standard hourly rates, particularly in smaller liquidations. He stated that in smaller liquidations, questions of proportionality, value and risk loomed large, and that liquidators could not be expected to be rewarded for their time at the same hourly rate as would be justifiable if more property was available. He further stated that ad valorem or “commission based” assessment of remuneration is inherently proportionate and incentivises the creation of value rather than the disportioncate expenditure of time. See In the matter of Sakr Nominees [2016] NSWSC 709 at [15]-[16].

The Brereton J Series of Decisions – ad valorem assessment

This is far from the first time Brereton J has taken this position on the fixing of remuneration of insolvency practitioners in NSW. Last year in David Lewis Clout in his capacity as Liquidator of Mainz Developments Pty Ltd (in liquidation) [2016] NSWSC 1146, Robb J at [132] surveyed the following judgments of Brereton J over the previous 2 years, noting that the influence of a percentage-based, proportional approach suggested a level of inconsistency –

However the NSW Court of Appeal has now made it clear it does not agree with the approach taken by Brereton J.

The Court of Appeal’s Judgment

Section 473(10) provides –

In exercising its power under subsection (3), (5) or (6), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters –

(a) the extent to which the work performed by the liquidator was reasonably necessary;

(b) the extent to which the work likely to be performed by the liquidator is likely to be reasonably necessary;

(c) the period during which the work was, or is likely to be, performed by the liquidator;

(d) the quality of the work performed, or likely to be performed, by the liquidator;

(e) the complexity (or otherwise) of the work performed, or likely to be performed, by the liquidator;

(f) the extent (if any) to which the liquidator was, or is likely to be, required to deal with extraordinary issues;

(g) the extent (if any) to which the liquidator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;

(h) the value and nature of any property dealt with, or likely to be dealt with, by the liquidator;

(i) whether the liquidator was, or is likely to be, required to deal with:

(i) one or more receivers; or

(ii) one or more receivers and managers;

(j) the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;

(k) if the remuneration is ascertained, in whole or in part, on a time basis:

(i) the time properly taken, or likely to be properly taken, by the liquidator in performing the work; and

(ii) whether the total remuneration payable to the liquidator is capped;

(l) any other relevant matters.

The NSW Court of Appeal made the following observations, in considering whether Brereton J had erred in his determination of reasonable remuneration –

  1. Whilst not all of the factors in s 473(10) may be relevant in a particular case, for a court not to take any of them into account would constitute error. (See [53])
  2. The onus is on the liquidator to establish that the remuneration claimed is reasonable and it is the function of the Court to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues. (See [54])
  3. That is not to say that the question of proportionality has no bearing on the task to be undertaken by the Court. It is a well-recognised factor in considering the question of reasonableness and the factors in s 473(10)(d)-(e) and (g)-(h), which have as their unifying theme the concept of proportionality. (See [55])
  4. The question of proportionality in terms of work done as compared with the size of the property the subject of the insolvency administration or the benefit to be obtained from the work, is an important consideration in determining reasonableness, as was recognised by the Full Federal Court in Templeton v ASIC [2015] FCAFC 137 at [32]. (See [55])
  5. The work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed; that is what is encompassed in assessing the value of the services rendered: also stated in Templeton v ASIC at [33]. (See [55])
  6. Evidence as to the percentage that remuneration constitutes of realisation, will at least provide a measure of objective testing of the reasonableness of the remuneration claimed and will identify those cases in which there ought to be a real concern in that respect, as pointed out by Black J in Idylic Solutions Pty Ltd (in liq) [2016] NSWSC 1292 at [50]. (See [56])
  7. The mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean the liquidator is not entitled to be remunerated for it. The most obvious example is the work done by a liquidator in complying with his or her statutory obligations. As Farrell J pointed out in Warner, Re GTL Tradeup Pty Ltd (in liq) [2015] FCA 323 at [71], it is relevant to consider whether the work was necessary to be done. If it was, there is no reason the liquidator should not be remunerated for it. (See [57])
  8.  There are commonly cases where work is undertaken in an unsuccessful attempt to recover assets whether at the request of creditors or otherwise. Provided it was reasonable to carry out the work and the amount charged for it was reasonable, there is no reason a liquidator should not recover remuneration for undertaking the work. Indeed, there is a public interest in liquidators bringing recovery proceedings. However, the liquidator is obliged to make any decision to bring such proceedings with care, and negligence in the exercise of the power may lead to a liquidator being deprived of costs. (See [58])
  9. There is force in the criticisms of time based charging. However, it remains the responsibility of the Court to fix reasonable remuneration on the evidence before it, taking into account the matters referred to in s 473(10). That must include considering the work done by the liquidator, whether it was reasonable to carry it out and the appropriateness of the amount charged for it. Such an evaluative process, whilst difficult in some circumstances, does not seem to be beyond the competence of the Court. (See [59])
  10. It should not be concluded that a time based calculation will always be appropriate. The task of the Court is to fix reasonable remuneration having regard to the evidence before it and taking into account the matters in s 473(10). Thus for example the “Lodestar” approach explained by Finkelstein J in Re Korda, in the matter of Stockyard Limited (subject to DOCA) [2004] FCA 1682 at [47] may, in some circumstances, be an appropriate method of undertaking the task. (See [60])

The Court of Appeal concluded inter alia that Brereton J did not appear to have taken the evidence presented by the liquidator into account or considered any of the factors in s 473(10) relevant to the assessment of remuneration, and erred in failing to do so. (See [63]) Moreover his Honour had erred in his consideration of the question of proportionality. Proportionality is a relevant factor, but Brereton J focused solely on this issue, failing to give consideration to the work actually done and whether the amount charged was proportionate to the difficulty and complexity of the tasks to be performed. (See [64])

The decision was unanimous, with Bathurst CJ writing the judgment and Beazley P, Gleeson JA, Barrett and Beach AJA agreeing. Barrett AJA added the observation that in his view, it was impossible to say, as a general proposition, that any given basis – whether according to time, value, extent of recoveries, size of company, nature of company or any other factor – merits any claim to precedence over any other in the matter of determination of liquidators’ remuneration. (See [71]) The appeal was allowed and the application for approval of remuneration was remitted to a judge of the Equity Division for rehearing.

The Ship is Righted

The past few years have been somewhat alarming for insolvency practitioners in NSW, particularly those taking appointments to smaller liquidations which later turn out to involve some unheralded complexities. This decision of the NSW Court of Appeal gives useful guidance and should provide greater certainty to insolvency practitioners as to the approach to be taken henceforth in NSW on court applications for approval of liquidators’ remuneration. Of course evidence on such applications should always be marshalled paying careful regard to the factors set out in s 473(10) and the aim of demonstrating to the Court the reasonableness of the remuneration incurred, including for certain items why a more senior staff member was required to undertake a particular task, or why a particular task took as much time as it did.

Merry Christmas & a note for my own amusement

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Before I wish you all a Merry Christmas, I thought I would close out the year by sharing with you something that amuses me every time I notice it. (Law can be a dry field in which to practice. We find mirth where we may.)

It is this: the number of companies with the word “phoenix” in their name. Often, they seem to be construction companies, though the field is wide. And they keep popping up in the daily Rodgers Reidy Risk Watch insolvency reports, suggesting that a remarkable number don’t seem to travel too well. Or perhaps I just notice them because I find it funny. Never fails to amuse me. Every single time. Why would you do that, use such a name for your company? Is it not inviting trouble? Unwelcome attention from corporate regulators? Cracks me up.

Let’s look at some stats, shall we? –

*Note I do not suggest any such company has engaged in phoenix activity. It is simply the use of the name, that I enjoy.

  • A search on ASIC’s website shows that there are 2570 entries found containing the word “phoneix”
  • A search on ASIC’s insolvency notices database (including deregistartion notices) brings up multiple pages of current entries, including Phoenix Motor Brokers Pty Ltd (in liquidation), PAJ King Pty Ltd trading as Phoenix Air Systems (in liquidation), Phoenix Refractories Australia Pty Ltd (in liquidation) and Phoenix Hazmat Services Pty Ltd (in liquidation),
  •  A search on Austlii shows a healthy amount of litigation involving companies with the word “phoenix” in their name, including Phoenix Constructions (Queensland) Pty Ltd, Phoenix International Group Pty Ltd and Phoenix Commercial Enterprises Pty Ltd.

Anyway, perhaps I amuse only myself, but there it is. If anyone is unclear on what a phoenixing company is or does, I have written on this before here.

It has been a busy year for many of us. I have at least one part-written post not yet polished enough to post, but it can wait until the New year. It further discusses the Full Federal Court’s decision on the CGT obligations of “trustees” (including liquidators) in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133. My earlier posts on this case are here (first instance) and here (appeal).

Merry Christmas to you all, and my wishes to you and your families for a safe, happy and healthy 2015. May you enjoy a restful break, and return fighting fit for 2015.

On a serious note, thoughts turn to our fallen colleague in Sydney, Katrina Dawson. May she rest in peace. My heart breaks for her little children. For once, words fail me.

Newsflash: AFSA announces Debtor’s Petition lodgement fee to cease

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For those of you who have been concerned at the introduction of the $120 fee on lodgment of a Debtor’s Petition under the Bankruptcy Act 1966 (Cth), AFSA has announced its cessation, following a notion passed by the Senate yesterday (link). AFSA’s announcement states that the fee is no longer payable after the close of business on 23 June 2014.

For anyone interested in reading a transcript of the questioning of AFSA by Senator Penny Wright during an Estimates hearing in February on this issue, here’s the link. 

When will a DOCA be terminated on the grounds of commercial morality?

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Happy New Year, and welcome to my first post for 2014. At the end of last year, the Queensland Court of Appeal handed down judgement in a notable case, in favour of termination of a deed of company arrangement on public interest grounds. The DOCA had been approved by related party creditors, but their Honours took the view that it was detrimental to commercial morality by precluding public investigation into questionable related-party dealings of a company in administration – in Promoseven Pty Ltd v Prime Project Development (Cairns) Pty Ltd (Subject to a Deed of Company Arrangement) [2013] QCA 405.

Background

In 2005 Prime Project Development (Cairns) Pty Ltd (Prime) and Promoseven Pty Ltd (Promoseven) entered into a joint venture agreement to carry out a property development in Cairns. The joint venture vehicle was a company named Bluechip Development Corporation (Cairns) Pty Ltd (Bluechip). HSBC provided $21 million to fund the development, secured by a first registered mortgage. Both Prime and Promoseven advanced millions of dollars in funds to Bluechip to progress the development, some of which was secured by a second registered mortgage given by Bluechip over the development.

The development was completed in 2009, and was then progressively being sold down by Bluechip. HCBC’s indebtedness was discharged, save for the claim of one subcontractor. However by 2010 Prime and Promoseven were in dispute. Promoseven succcessfully applied to have Bluechip wound up in insolvency, and Prime was ordered to pay Promoseven’s costs (relevantly, making Promoseven a creditor of Prime).

At the heart of the case, was this:  In August 2011, Prime transferred all of its interest in the Bluechip mortgage – alleged to have been valued at some $9 million – to a related company Refund. This dealing is discussed in more detail below.

Prime went into administration in May 2013. It had eleven creditors on administration. One was Promoseven. Of the other ten creditors, nine were related parties. The related parties voted to adopt a DOCA which would give the unrelated creditors a return of 4.3 to 7.4 cents on the dollar. Without a liquidation, there would be no investigation into the affairs of Prime and no public examination of its directors.

Promoseven applied inter alia under s 445D of the Corporations Act 2001 (Cth) for an order terminating the DOCA on the basis that it produced an injustice, by precluding an investigation into Prime’s pre-administration related-party dealings.

Promoseven also relied upon s 600A of the Act, which deals with the powers of the court where the outcome of voting at a creditors’ meeting has been determined by related entities. Broadly, it empowers the Court to make certain orders, including an order setting aside the resolution, if it is satisfied inter alia that the resolution would not have passed without the related party votes, and that the voting outcome was contrary to the interests of creditors or a class of creditors as a whole, or is unreasonably prejudicial to the interests of the non-related creditors.

(It should be noted that under reg 5.3A.07(1)(a) of the Corporations Regulations (2001) (Cth), a company that has executed a DOCA that is later terminated under s 445D by the court, “is taken to have passed a special resolution under s 491 that the company be wound up voluntarily“.)

First Instance

As the Court of Appeal noted at [42], under s 445D there are effectively four grounds upon which a DOCA can be terminated. These are –

(a) if effect cannot be given to the deed without injustice or undue delay – s445D(1)(e);

(b) if the deed, or something done under it, would be oppressive, unfairly prejudicial to, or unfairly discriminatory against, one or more of the creditors – s 445D(1)(f)(i);

(c if the deed, or something done under it, is contrary to the interests of the creditors of the company as a whole – s 445(1)(f)(ii); and

(d) if the deed should be terminated for some other reason – s 445D(1)(g).

At first instance, Martin J of the Queensland Supreme Court noted that under sub-section 445D(1)(e) it is the “effect” of the deed rather than its purpose which is to be considered. The question, his Honour said, is whether the effect of the deed is unfair or inequitable in the impact it has upon one or more of the creditors bound by it (at [15]).

In considering s 445D(1)(f), his Honour said a court does not proceed “upon mere possibility or speculation, it makes a determination on the characteristics of the deed as they are seen to be at the date of the hearing“. One looks, his Honour said, to the effect of the deed as a whole and assesses its unfairness, if any, to the applicant being in mind the scheme of Pt 5.3A and the interests of other creditors, the company, and the public generally (at [16]).

The applicant Promoseven made two allegations –

(1) That the vast majority of creditors were related entities of Prime. The inference ought be drawn that the creditors who voted for the DOCA were either controlled by or friendly to Prime. This does not of itself require that anything be done, but it detracts from the arguments for the DOCA that a majority of creditors has made a commercial decision as to what is in the interest of creditors as creditors (at [23]);

(2) The DOCA would have the effect of precluding investigation into the transfer by Mr Knell of a chose in action (a second registered mortgage) valued at $9 million to a related company called Refund (at [24]).

In relation to this last point, his Honour remarked pointedly that Promoseven did not allege that it was inevitable that this transaction would be unwound; rather it argued that the transaction “might be voidable” and “there is a prospect” that proper enquiries into Prime’s affairs would result in a greater return to creditors than that offered under the DOCA (at [25]).

He noted that even if the transfer were set aside, Promoseven had failed to demonstrate the unfairness or prejudice required to engage the various sections on which it relied – (at [31]). Martin J also observed that the administrators had recommended the DOCA, and there was unchallenged expert evidence that whilst the DOCA would result in a small dividend to creditors, under a winding up the likely return to creditors would be nil (at [27]).

Martin J cited the object of Pt 5.3A of the Act, set out in s 435A which provides –

“The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:

(a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or

(b) if it is not possible for the company or its business to continue in existence – results in a better return for the company’s creditors and members than would result from an immediate winding up of the company.”

His Honour took the view that the orders sought by the applicant Promoseven would be inconsistent with the object of Pt 5.3A (at [31]), and that Promoseven could not demonstrate the effect necessary to engage s 445D or the prejudice which s 600A requires to be shown (at [32]). (There was also an issue as to whether the liquidators would be funded properly if the DOCA was set aside and the company was wound up – see [33]).

His Honour was in little doubt of the correct course to take on this application. He held that “the overwhelming weight in the balance of this application” was that even if the company was liquidated and the transfer was unwound, the creditors would suffer. In dismissing the application, he observed:

“While the public interest is an element to be considered, the applicant’s case did not rise high enough to demonstrate that it was sufficient to overcome the other factors to which I have referred.”

The Appeal Decision

The Court of Appeal disagreed, and took an entirely different approach.

The Court examined the dealings between the related companies Prime and Refund in greater detail, and had distinct reservations about the commerciality of the arrangement, in particular –

  • on the face of the Agreement there was no attempt to quantify the value of Prime’s half interest in the second mortgage, making it difficult to conclude that it was sold for value, particularly between related entities (at [53]);
  • the purchase price was difficult to identify. It was defined to mean “$3,710,701.23 plus any lawful adjustments to the loan account as at the date of completion or revision thereafter made hereunder“. The sum stated was acknowledged in Recital B to be simply the state of the loan account between the companies as at a certain date (at [54]);
  • the purchase price was then met not in the form of money, but by the issuing of redeemable preference shares by Refund. The Agreement said nothing about payment being made that way. There was no evidence as to how that came to pass. However 3,710,702 shares were issued to Prime which, on the face of it, suggested that each preference share was worth one dollar. But there was no evidence that this was so (at [55]);
  • the Administrators’ Report was the only source of evidence about the adjustments to the purchase price. It noted that a final accounting was completed on 21 March 2013, resulting in Refund being required to and issuing a further 4,668,658 preference shares to Prime. However there was no evidence to show that this equated to an advance of $4,668,658. And there was nothing to show why Refund was “required” to issue further preference shares (at [56]);
  • the question of the value of the redeemable preference shares in Refund was unanswered. The Administrators’ Report was the only source of information on this, but it was not sworn and the basis for some of the information it set out was not apparent. What information there was, cast doubt on the true worth of the preference shares (at [57]);

The effect of the agreement was that Prime sold its interest in the mortgage – its only substantive asset – to Refund for a consideration, the value of which would be determined by Refund, and dependent on how Refund chose to structure its business affairs (impacting whether any dividends would become payable to redeemable preference shareholders, like Prime). Related though they were, Prime could not control how Refund went about its affairs. Their Honours concluded that the result was that the consideration was uncertain, if not illusory (at [58]).

What made it worse – particularly notable where transparency was a problem – was Recital G, which provided that the purchase price would be left outstanding, by way of loan or similar transaction, so that “the start up business activities of [Refund] may be funded“. Nowhere was it explained why it would be in Prime’s interest to defer receipt of the purchase price to this end. Prime was divesrting its only substantive asset. It was not at all clear why it had any legitimate interest in being Refund’s benefactor, the Court noted (at [59]).

The Court of Appeal remarked twice on the fact that even though the transaction was between companies controlled by “the one set of directors” (a husband and wife Mr and Mrs Knell), no director went on oath to depose as to the rationale of the agreement. It required explanation, and they did not explain it. The Court said it made it very difficult to reach a conclusion that there was commercial justification to the Agreement (at [50]-[51] and [60]).

There were also a series of related transactions, which raised concerns. In summary –

  • Prime subsequently contracted with a company called Bypass to purchase $4.2 million worth of shares in Bypass, in part-payment of which it transferred to Bypass the 3,710,702 preference shares it held in Refund. (These were the shares Refund had issued to Prime, in part satisfaction of the price Refund had to pay to purchase Prime’s interest in the second mortgage over Bluechip.)
  • Then in June 2012, Bypass transferred those 3,710,702 preferential shares in Refund to another related company called Radanco (owned and operated by Mr Knell’s nephew), purportedly for $10 million. The ASIC document detailing that transaction was signed by Mrs Knell.
  • Less than 2 months later, those same shares were purportedly transferred by Radanco to MDA, another company controlled by Mr and Mrs Knell, for only $15,000. Mrs Knell signed the ASIC document for that transaction also. (It was this company – MDA – which had proposed the DOCA in question, proposing to contribute $80,000, most of which was to pay administration costs.)

There was no material put before the Court explaining how it could be commercially justifiable that the same shares which are transferred for $10 million in June 2012 could then be transferred for $15,000 two months later. Nor, in the face of allegations by the Knell family that Prime did not in fact contract to purchase Bypass shares and that there had been a fraud, did they explain why two Knell family companies would then seek to take transfers of shares which had been obtained from Prime in circumstances of fraud. The Court remarked that those unexplained transactions did little to dispel the sense that Prime had been involved in transactions without an apparent commercially justifiable basis.

The Court of Appeal concluded that the circumstances surrounding Prime’s transfer of its interest in the mortgage to Refund was such that an investigation by a liquidator should not be prevented by the related parties forcing a DOCA on the other creditors. A public examiation of the affairs was warranted, and the institution of claw back litigation may prove to be warranted. It would, in the sense of the terms used by the Full Federal Court in Emanuele v ASC (1995) 63 FCR 54 at 69-70, “be deterimental to commercial morality to dispense with the opportunity which the winding up law provides for the investigation of the affairs of Prime” (at [84]).

The Court of Appeal did not consider that the absence, at that point in time, of a final commitment to fund a liquidator in full to completion of the liquidation weighed against the conclusion.

Comment

This case illustrates how fine a line it can sometimes be between success and failure, on applications to terminate deeds of company arrangement. The Court at first instance took one approach and reached a firm conclusion that the DOCA should stand; the Court of Appeal took an entirely different approach, with a different emphasis and analysis, and unanimously reached the opposite conclusion.

Cases such as these tend to turn on their own facts in the same way that, for example, shareholders oppression actions do. In each case it will be a matter of evaluating and adding together the various aspects and circumstances of the pre-administration dealings in question to test whether, considered together, the balance is tipped in favour of scrutiny of what took place, over letting a decision of creditors to endorse a DOCA stand. If, as was the case here, there is a lack of transparancy or certainty about key aspects of an arrangement where a significant asset is being transferred away from the company, and questions are raised which are not answered or explained by those who could do so, it becomes more likely that a Court may conclude that the interests of the public require investigation into what took place. In Promoseven, the Court was so concerned that it gave precedence to the public interest in commercial morality, without requiring that it be satisfied as to the utility of the investigations and the likelihood of a satisfactory recovery and better return for creditors.

One example of a case where the balance tipped the other way, was the NSW Court of Appeal’s decision in Vero Insurance Ltd v Kassem [2011] NSWCA 381; (2011) 86 ACSR 607. There, although Young JA noted that the transactions had ‘some indicia that they are worthy of investigation‘, all three judges of the Court of Appeal declined to terminate the DOCA, considering that good reason is required to override the choice of a majority of creditors to enter a DOCA. An example of another case where, like in Promoseven, the balance tipped in favour of terminating the DOCA which was described by the Court as “a device by which Mr Triguboff and his associated companies are avoiding scrutiny of a number of highly questionable transactions the net effect of which is to allow TMPL to walk away from a tax debt of $19,551,033.77…” is Deputy Commissioner of Taxation v TMPL Pty Ltd (subject to a Deed of Company Arrangement)(No 3) [2011] FCA 1403.

 

Principles of Proprietary Remedies out now…

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Hot off the press, and being launched today, is the keenly anticipated new book Principles of Proprietary Remedies by Associate Professor Elise Bant and Emeritus Professor Michael Bryan. It is available for sale through Thomson Reuters (here).

Notably, the book presents a synopsis by Elise Bant and Michael Bryan of the conclusions drawn from the four-year Australian Research Council Discovery Grant project they led, to identify and explore the principles that guide the award of proprietary relief. Their analysis and conclusions are spread over a number of chapters, which set out a consideration of the principles of proprietary remedies, another of defences, bars and discretionary factors, and the writers’ conclusions as to a proposed model for proprietary relief.

The book also includes a collection of essays by leading Australian judges and scholars addressing a range of issues arising in the context of proprietary relief including questions of doctrine and taxonomy and the rationales of proprietary relief, and examining the award of proprietary relief in cases including those of breach of fiduciary duty, theft, fraud, accessorial breaches (Barnes v Addy), estoppel and unjust enrichment.

I highly recommend this book to all readers.

Welcome to my blog

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This blog is intended as a tool to assist legal practitioners and insolvency professionals and their staff, to keep up to date with recent cases and developments in insolvency and commercial law, particularly recent Victorian Supreme Court, Federal Court, High Court and some New South Wales Supreme Court decisions. The area is vast, so my focus will be narrowed to key cases and developments of interest and relevance to my practice at the Bar.

This site is also intended to provide a medium to stimulate discussion and debate about insolvency and corporations law and related topics. Speaking of topics of interest, I will also post updates and emerging issues relating to the incoming Personal Property Securities regime, as they arise.

Some updates on this site will simply summarise recent decisions, some will include a critical analysis of them, and some will constitute a “stocktake” of the current state of the law on a particular issue.

I hope you enjoy using the site.