In February I posted about the decision of Davies J of the Victorian Supreme Court of 9 February 2012 on a preliminary question raised by the liquidators of Willmott Forests Ltd (WFL). The preliminary question was as to whether the liquidators could disclaim the Growers’ leases under s 568 of the Corporations Act 2001 (Cth) (the Act) with the effect of extinguishing the Growers’ leasehold estate or interest in the subject land. Her Honour’s answer was “no”. You can read that post here.
This month, on 3 April 2012, Davies J of the Victorian Supreme Court handed down her decision on the balance of the questions she had been asked to decide under s 511 of the Corporations Act 2001 (Cth). You can read the judgment in full here. There have been further developments in between, according to the website of one of the two grower groups, the Willmott Action Group Inc, including –
- The Willmott Action Group Inc has issued an application in the Supreme Court to have receivers appointed to some of the schemes; and
- The liquidators have appealed the decision of Davies J of 9 February 2012, discussed in my earlier post.
In addition, last week there was a further development –
- The Willmott Action Group Inc has appealed this decision of Davies J of 3 April 2012.
The Willmott Action Group’s website reporting these developments can be viewed here.
Background Overview
As many of you will know, Willmott Forests is one of the more recent large agribusiness managed investment schemes to collapse, following in the steps of Great Southern, Timbercorp and Environinvest. Receivers and managers (KordaMentha) were appointed by the Willmott Group’s banking syndicate in September 2010, on the same day the Group was placed into administration. Since March 2011 the Group has been in liquidation with the former administrators, of PPB Advisory, appointed as liquidators.
WFL was the responsible entity (RE) and/or manager of 8 registered managed investment schemes (MIS), 6 unregistered “professional investor” MIS, 11 unregistered contractual MIS, and 5 unregistered partnership MIS. These MIS were forestry operations conducted on land either owned by WFL or leased by WFL from third parties. Across the schemes there were 6,329 members or “Growers”. Broadly, the Growers in each scheme held a lease (or sub-lease) from WFL with respect to the land. Growers had a right to grow, maintain and harvest trees on the parcels of land allotted to them, although the actual planting, maintaining and harvesting was the responsibility of WFL. WFL would perform these tasks under forestry management agreements, and in return Growers paid fees to WFL.
After their appointment, WFL’s liquidators were engaged in realising the assets of WFL in the course of winding up the company. After failing to attract interest from any party in acquiring the land subject to the schemes and taking over as RE and manager of the schemes, the liquidators entered into sale contracts for the sale of part of the freehold land, unencumbered by Growers’ rights, including Growers’ rights under leases and licences. A transfer of clear title to the land could not be effected unless Growers’ rights were terminated or extinguished.
On 29 June 2011, the liquidators of WFL had sought and obtained directions from Dodds-Streeton J of the Federal Court that they were justified in –
(a) amending the constitutions of the registered MIS and certain investment deeds to confer on WFL a power to terminate Growers’ rights, on condition that Court approval is obtained before doing so; and
(b) disclaiming the project documents of other MIS as onerous pursuant to s 568(1) of the Corporations Act 2001 (Cth), on condition that the Court’s consent is obtained before doing so.
Application under s 511 of the Act for Judicial Advice – Questions to be Decided
The liquidators applied to the Court to obtain those orders and sought a range of directions under s 511 of the Act, including as to a proposed distribution of the proceeds of sale. The receivers of WFL and Growers were not joined as parties. However the receivers and two groups representing the interests of Growers – Willmott Growers Group Inc (WGG) and the Willmott Action Group Inc (WAG) – were given leave to intervene. The receivers supported the application; the Grower groups opposed it.
There were 10 questions identified for the Court’s consideration in order to determine the applications before the Court (see [34] and [129]). Those questions – together with the answers given – were –
1. Are the questions that arise for determination in the applications suitable for determination pursuant to s 511 of the Act? Answer: Yes.
2. Are the liquidators able to disclaim the Growers’ leases with the effect of extinguishing the Growers’ leasehold estate or interest in the subject land? Answer: No.
*This was the preliminary question decided on 9 February 2012, with the answer given being “no” (see my previous post here). In view of that decision – now on appeal – the liquidators and purchaser GFP renegotiated the main sale contracts to exclude the land on which the contractual and partnership schemes are operated and hence did not seek a direction that they would be justified in disclaiming the leases relating to the contractual and partnership schemes. However they continued to seek orders that they would be justified in disclaiming the forestry management agreements relating to those schemes. (See [37])
3. Have the liquidators demonstrated on the material that they have acted reasonably and prudently in conducting the sale process and in entering into the main sale contracts and the HVP contract? Answer: Yes.
4. Is the allocation between land and trees justified having regard to the parties’ legal rights; specifically is any of the land owned by WFL “scheme property” in respect of the schemes? Answer: Yes and no; yes, the allocation is justified and it is correctly predicated on the basis that no, WFL does not hold its interest in the freehold and leasehold on which the schemes were conducted on trust for the members of the schemes, it is not “scheme property”.
5. Is the allocation of the sale proceeds from GFP (the main purchaser) between land and trees as proposed by the liquidators reasonable in the circumstances? Answer: Yes.
6. Having regard to the insolvency of the Willmott Group, the viaibility of the schemes and the existence of alternatives to the proposed sale, is the extinguishment of the Growers’ interests pursuant to the Liquidators’ powers under the relevant constitutions and their statutory power under s 568(1) of the Act, as the case may be, justified? Answer: Yes.
7. Is the apportionment between Growers of the sale proceeds from GFP and HVP (the purchasers), in respect of their interests in trees, as proposed by the liquidators, reasonable and justified having regard to the constituent documents of the various schemes? Answer: Yes.
8. Is the allocation of the sale proceeds of the HVP land between the liquidators’ portion (in respect of trees) and the receivers’ position (in respect of the surrender of the head lease) justified in the circumstances? Answer: Yes.
9. Is WFL’s leasehold interest in HVP land “scheme property” in respect of any of the schemes conducted upon the HVP land? Answer: No.
10. Are the liquidators justified in recovering their costs from the assets in the manner they propose? Not answered. This question was stood over for further argument.
Amongst the orders sought by the liquidators under s 511 of the Act were –
(a) a direction that the liquidators are justified in procuring WFL to enter into and perform the sale contracts;
(b) a direction that the liquidators are justified and otherwise are acting properly and reasonably in procuring WFL to terminate or surrender the project documents of the schemes, and to surrender, relinquish or release the rights of the Growers in the trees, the subject of the amended sale contracts, on the basis that the net proceeds of sale under those contracts are distributed in the manner proposed by the liquidators; and
(c) the Court’s consent to the disclaimer of the forestry management agreements of the contractual and partnership schemes (see [38]).
Her Honour observed that the effect of making these orders and taking the steps foreshadowed by them, would be to bring the schemes to an end and bring an end to all the rights of the Growers by and under the schemes, specifically their rights in relation to the trees, which are their assets (see [39]). To do that, her Honour noted the Court would need to be satisfied that the proposed allocation of sale proceeds to the Growers was appropriate (amongst other things).
I now turn to discuss several arguments advanced in the course of the application, and her Honour’s decision on those issues –
1. Section 511 – Does it empower the Court to make orders directly affecting the rights and liabilities of third parties?
The short answer given was yes, even if those third parties are not joined, although they must have been given a property opportunity to be heard (see [56]).
Section 511 of the Act provides as follows –
“(1) The liquidator, or any contributory or creditor, may apply to the Court:
(a) to determine any question arising in the winding up of a company; or
(b) to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court….
(2) The Court, if satisfied that the determination of the question or the exercise of power will be just and beneficial, may accede wholly or partially to any such application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.”
WAG submitted that the declarations and orders sought by the liquidators were not within the scope of the Court’s power under s 511. It argued that the Court was not empowered by s 511 to make orders directly affecting the rights and liabilities of third parties. However here, so WAG argued, the Court was being asked –
(a) to determine the rights of third parties (the Growers) to the land which is the subject of the sale contracts; and
(b) to sanction the end of the proprietary and personal rights of the Growers in these schemes (see [41]).
Her Honour considered that submission, reviewing the authorities (some concerning s 479(3) and sought to be applied by analogical reasoning), and rejected it (see [42-58]). Her Honour held (at [45]) that there was little doubt on the authorities on s 479(3) that the Court has power under that provision to make orders of a substantive nature affecting third parties. The question of whether it should exercise that power is a separate one, and is an issue of discretion, not of power. Her Honour observed that any doubt as to the Court’s power under s 511 to make orders affecting the substantive rights of third parties has been put to rest by the High Court in 2008 in Macedonian Orthodox Community Church of St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and the New South Sales Court of Appeal in 2009 in Hall v Poolman (see [48-53]).
Davies J held it was in the interests of the winding up of WFL to give judicial advice on –
- the question of whether WFL’s freehold and leasehold interests are “scheme property” of the schemes,
- the question of whether the liquidators are jusitifed in terminating and disclaiming the project documents of the schemes, and
- the question of whether the proposed allocation of sale proceeds is justified.
Her Honour observed that the orders, if made, would enable the liquidators to complete the sale contracts in the process of realising WFL’s assets and to disclaim onerous contracts which WFL does not have the funds to perform. Obtaining the judicial advice would assist the liquidators to get on with the winding up of the company. And it was “well apparent” from the evidence that there was a need for urgency in dealing with the assets the subject of the sale contracts, because the plantations could not be maintained and the Growers could not presently exercise their rights to grow, maintain and harvest the trees on the plantations (see [57]).
2. Was the Land on which the schemes were conducted “Scheme Property”?
The short answer was “no”. On one view, her Honour’s finding on this issue was a significant one, in terms of opening the door to permitting the sale contracts to proceed, with the proposed terms as to the distribution of sale proceeds.
The liquidators’ proposed allocation of sale proceeds was based on the premise that the land owned by or leased to WFL was not property of the various schemes, and hence was land covered by the charges under which the receivers were appointed. This question was left open in the reasons for decision given by Dodds-Streeton J in 2011, but now fell to be determined (see [59]).
Under Pt 5C.2 of the Act, property that is “scheme property” of a registered scheme is declared by
s 601FC(2) to be held on trust by the RE of that registered scheme for the scheme members (Growers). For unregistered schemes, it is necessary to have regard to the terms of the schemes to ascertain the property interests held by the Growers.
Her Honour reviewed the authorities and then considered the position for each category of scheme.
For the registered schemes, Davies J considered the Product Disclosure Statements, the terms of the application forms and the nature of the Woodlots allocated and “Forestry Rights” accorded to each Grower. She concluded that while WFL contributed the use of its land for scheme purposes, it did not contribute its interest in the land. Instead, it made the land available to the Growers by way of lease and by granting “forestry rights” entitling Growers to establish, maintain and harvest a crop of trees on the land. This conclusion was supported by provisions in the constitution, which identified the land separately from the scheme property. (See [67-71])
For the professional investor schemes the conclusion was similar, the primary difference being that participants in those schemes were allocated “Hectares” on WFL’s land instead of “Woodlots” (see [72]).
For partnership schemes, again participants were required to enter into a lease agreement with WFL, and to engage WFL to undertake the actual forestry operations. The amount payable per Partnership Unit was for the rent payable under the lease and the fees due to WFL for its services. The partnership agreements defined the assets of the partnership to expressly exclude WFL’s interest in the land used by the schemes. (See [73-74]).
For contractual schemes, the contractual documents provided for what the Growers’ rights were to be, and none indicated that any rights with respect to the land were other than those conferred under the lease (see [75]).
In light of these, her Honour concluded that WFL did not contribute its interest in the land to the schemes, but simply the use of its land in accordance with the scheme documents (see [76]). Accordingly, the land did not constitute “scheme property”.
WAG submitted otherwise, arguing that the substance and effect of the scheme documents in all of the circumstances, make it demonstrably clear that WFL acquired the freehold land as scheme property, and held it beneficially as RE for the growers. Her Honour rejected this submissions (see [77-82]). This is likely to be a key point on appeal.
Her Honour also rejected an argument by WAG that the land was scheme property based on a tracing exercise (see [83-88]).
3. (a) Allocation of sale proceeds and (b) The position of liquidators of Responsible Entities – the primacy or otherwise of the best interests of Growers/investors as one of the considerations of liquidators of RE’s
(a) Allocation of Sale Proceeds
To follow the reasoning on this issue of the allocation of sale proceeds, it can be helpful to understand the practical circumstances of the scheme plantations. Liquidator Mr Crosbie gave evidence as to how they influenced why the liquidators, without available funding to continue to operate the plantations, concluded that absent a party willing to take over management and maintenance of the scheme plantations, the only available remedy was to sell the trees immediately.
Mr Crosbie gave evidence that it was in practical terms impossible for individual Growers themselves to undertake the ongoing maintenance and harvest on their own individual lots. The land owned or leased by WFL and used in the schemes had been divided into individual allocated lots, which appeared to have been done by overlaying a grid onto plantation maps. However trees were planted on a plantation-wide basis, rather than by individual lots. The lots were not delineated on the ground by access roads or other dividers or buffer zones. There were no markers to identify individual Growers’ lots or trees. GPS could not reliably assist due to the remote location of plantations and thick plantation canopies. Employing surveyors to peg out individual woodlots would be prohibitively expensive and might still not be accurate. Even if identified, a Grower whose lot was surrounding on all sides by other Growers’ lots could not access his/her/its own lot to commence harvesting individually without obtaining access across the surrounding lots for the necessary vehicles and equipment. Felling of an individual Growers’ lot would likely result in damage to trees on adjacent lots as trees fell. Outside of either thinning or harvesting, the trees needed to be maintained both to preserve the value of the trees and to prevent the risk of fire. Fire maintenance was a statutory requirement involving demanding obligations and significant expense. (See [18])
In the view of the liquidators, the Growers’ right to maintain and harvest their own trees was a theoretical right only, and could not be exercised in practice.
In terms of the allocation of sale proceeds here proposed by the liquidators, one approach was taken for the main sale contracts, another for the HVP sale contract. For the main sale contracts, the liquidators’ proposed allocation of sale proceeds to Growers was determined on the basis that the freehold and leasehold was not property of any of the schemes.
Whilst the Growers’ leases conferred proprietary rights on them as lessees, those rights were not practically capable of being exercised by individual Growers. Accordingly, the Growers’ leases did not have an independent commercial value, and the Growers should receive an amount out of the proceeds referable to the value of the trees (that are sold with the land) (see [93]).
The liquidators considered that the fairest method of apportionment amongst the Growers was to pool the proceeds and distribute them on a scheme by scheme basis. Davies J agreed that the liquidators were justified in taking this approach. (See [95])
(b) Duties owed by Liquidators of Responsible Entities (RE’s)
WAG argued that the liquidators were not acting in the Grower’s best interests in accepting the revised bid made by the purchaser GFP. They argued the trees have been sold at under market value. Her Honour noted the liquidators acknowledged the revised bid amounted to approximately 45-96% of the value set out in the Poyry trees valuation, however no party had been willing to take over the schemes, and the economic value of the trees could not be realised except as part of the land sales.
Her Honour remarked that WAG’s contention was premised on a fundamental misconception – that the liquidator of an RE owes fiduciary duties
only to Growers as members of the schemes. (See [96]). On this issue, her Honour quoted a passage from the judgment of Finkelstein J in
Timbercorp Securities Ltd v WA Chip & Pulp Co Pty Ltd [2009] FCA 901 and observed that the interests of Growers are
a consideration of the liquidators; however they are not the
only or primary consideration.
In
Timbercorp at [8] Finkelstein J had observed that a liquidator of an RE which is being wound up is a fiduciary, and the principal beneficiaries of that liquidator’s fiduciary duties are those interested in the liquidation, namely the creditors and members. Sections
601FC and
601FD impose duties on an RE and its officers (which would include a liquidator of an RE) to act in the best interests of members of a managed investment scheme. At [11], his Honour remarked that ss
601FC and
601FD do not override a liquidator of an RE’s duty to those interested in the winding up, so as to require him or her to look after the interests of investors even if that be at the expense of other creditors, and that it would be quite extraordinary were that to be the case.
Davies J quoted those passages by Finkelstein J and observed that the liquidators have imposed on them the duty to act at all times with complete impartiality between the various persons interested in the property and liabilities of the company, and that the interests of the Growers were not the only or primary consideration of the liquidators (see [96]).
For the HVP Sale contract, the receivers were a party because WFL’s rights and claims under the HVP leases fall within the scope of the charge and the receivers’ appointment, and releases from the receivers and secured creditors were a condition precedent of the sale contract. The receivers and secured creditors would not give their consent to the sale without upfront agreement with the liquidators as to the amount they would receive out of the sale proceeds. Negotiations resulted in a term of the HVP sale contract that 70% be allocated to the secured creditors, and the Growers would be entitled to 30% of the consideration referable to the trees grown on the HVP land (see [108]). Davies J reviewed the various bases upon which the liquidators concluded this was in the best interests of Growers, the receivers’ contentions, and the arguments advanced for WAG. Her Honour was satisfied there was a legal foundation supporting the proposed apportionment, and that the liquidators had acted reasonably in reaching the commercial compromise with the receivers as to the proposed allocation of sale proceeds. Her Honour also held that the liquidators were justified and acted reasonably in holding the proceeds on trust until they could be pooled and distributed to Growers with the other proceeds. (See [107-117]).
4. Challenge to sale process
Senior Counsel for WAG challenged the sale process and expression of interest campaign conducted by the liquidators, arguing that “all along” the liquidators wanted to sell the land unencumbered by the Growers’ rights. It was also argued for WAG that there was no real interest in replacing WFL as RE or in selling the land on an encumbered basis, as shown by the “rushed” expression of interest and sales campaign and the “arbitrary rejection” of those who expressed interest to assume the role of RE. However, Davies J noted that there was no evidentiary basis for making that submission, and Mr Crosbie was not cross-examined about it. Her Honour was satisfied on the basis of what was borne out by the evidence that the land was advertised for sale on both an encumbered as well as unencumbered basis, but in the context of the need for urgent funding in order to continue to maintain the plantations to prevent their wastage and the diminishment in value of the trees. Her Honour also took the view that the evidence bore out that the liquidators did not “arbitrarily” reject the expressions of interest to assume the role of RE. (See [119-121])
Her Honour concluded that the liquidators were justified in terminating the project agreements for the following reasons –
1. WFL was hoeplessly insolvent and incapable of continuing to manage the schemes,
2. The schemes themselves would not generate revenue until several years hence,
3. The land and tress were wasting and at risk of fire in the absence of adequate ongoing maintenance arrangements,
4. Davies J was satisfied that the liquidators and receivers had conducted robust sale processes and obtained the best prices reasonable available for the land and trees from financially able purchasers, and
5. No viable restructuring proposal had been advanced in relation to the schemes (other than one). There was no viable alternative that offered the prospect of comparable returns to Growers. (See [122])
For the same reasons the Court held the liquidators were justified in disclaiming the project documents of the contractual and partnership schemes. The forestry management agreements were onerous and unprofitable. (See [123])
5. Further Factors argued to militate against the Court making the directions and orders sought – see [124-128]
WAG raised three other matters it argued were against the Court making the directions and orders sought in these application –
(1) WAG was pursuing with Primary Securities Limited (PSL) the option to have PSL replace WFL as the RE of the unregistered professional investor schemes and the registered schemes. Heads of Agreement had been entered into between WAG and PSL and steps taken towards convening a meeting of Growers. However Davies J noted that PSL’s agreement was conditional, there was no actual restructuring proposal to be put at any meeting and there was no binding commitment on the part of PSL. Davies J held this did not provide justification to refuse the orders and directions sought.
(2) The termination of the project documents would amount to a default under the loan agreements some Growers had with an in-house financier of the schemes. This would bring forward the repayment date of the loans, which would produce a loss and inconvenience to the Growers, at the hand of WFL which as RE was under an obligation to act in the Growers’ best interests. WAG pointed out that the liquidators had failed to bring this matter to the attention of the Court. Again, her Honour held that this matter did not warrant the Court declining to make the orders and directions sought.
(3) WAG also argued that if the Court determined to approve the sale, the Court should direct that the proceeds be held on trust pending a further apportionment hearing, as occurred in the case of Timbercorp. However her Honour noted that (a) it was a term of the main sale contracts and the HVP sale contract that the liquidators allocate and distribute the proceeds of sale as between the Growers, the secured creditors and WFL’s unsecured creditors in the manner proposed and that the Court approve this, and (b) she was satisified that it was just and beneficial that the Court approve the sale and approve the exercise by the liquidators of the power to terminate and disclaim the project agreements on the basis of the proposed allocations.
Conclusion
This judgment of Davies J is a blow for Growers who had invested in the Willmott Forests schemes and, as noted above, has been appealed to the Court of Appeal of the Supreme Court of Victoria (leave was granted to appeal on 20 April 2012). We await with interest further developments in this case, including the hearing of WAG’s application for the appointment of receivers to the schemes, the appeal of Davies J’s decision of 9 February 2012 and in turn that of this judgment of 3 April 2012.
Carrie Rome-Sievers, Barrister 