Newsflash: Great Southern settlement deed approved

Yesterday in Melbourne Justice Croft approved the deed of settlement ending the Great Southern class action proceedings – Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers & Managers Appointed)(in liquidation) & Ors [2014] VSC 516. I will not make comment on this case, but instead will refer to a few key parts of the judgment –

The principal terms of the Deed of Setlement are set out at [57] and are usefully summarised at [64], which summary is reproduced here –

  1. “The insurers of GSMAL will pay $23.8 million, to be disbursed as follows:
    1. $20 million to M+K Clients, to be disbursed pro rata based upon amounts paid by each M+K Client to M+K for legal fees and disbursements;
    2. $250,000 to Javelin Asset Management Pty Ltd; and
    3. $3.55 million to be disbursed pro rata to investors who invested pursuant to a Product Disclosure Statement issued in relation to a scheme managed by GSMAL, such disbursement to take place in accordance with the terms of a proposed Scheme of Arrangement.
  2. Group Members’ loans entered into to fund the investments and now held by Bendigo and Adelaide Bank Limited (or its related entities) will be admitted as valid and enforceable, and the BEN Parties will waive interest relating to overdue amounts accrued and unpaid as at the Approval Date.
  3. Group Members’ loans entered into to fund the investments and now held by Javelin Asset Management Pty Ltd will be admitted as valid and enforceable, and borrowers with Javelin loans will have 28 days from the Approval Date to make an election to either:
    1. make payment of the outstanding loan balance in full within 14 days of making the election and receive a 20% discount on the loan balance (being the balance as at 1 May 2014); or
    2. agree to a deferred settlement with the loan balance discounted by 17% if the balance is met by way of 12 equal monthly payments; or
    3. agree to an extended term where the terms are varied so that the first 12 months after the Approval Date are interest free and then 5% per annum for the remainder of the Revised Term.
  4. The Lead Plaintiffs, on behalf of themselves and on behalf of Group Members, will release the other parties (and their related entities or persons) from all Claims arising out of the contents of each Product Disclosure Statement, the Loan Agreements and or the allegations made in or the facts giving rise to all the relevant proceedings.
  5. The Group Proceedings will be dismissed with the parties bearing their own costs.”

His Honour took the unusual step of annexing the mammoth 2012 page unpublished judgment he had written but had never been delivered (calling them the “Great Southern Reasons”) to this judgment approving the settlement deed. His Honour notes at [2] that the trial of the Great Southern proceedings had extended over 90 sitting days from October 2012 to October 2013. Judgment was reserved. On Wednesday 23 July 2014 the parties were informed that the judgment was ready and listed for delivery on Friday 25 July. Within hours, the Court was notified that the proceedings had settled.

At [3] Croft J notes that the Great Southern Reasons are not published as reasons for judgment, simply annexed to this one, which suggests that as a precedent to future cases their status may be uncertain, and perhaps something less than obiter. Nevertheless his Honour explains why he has had regard to his Great Southern Reasons in considering whether to approve the Deed at [50]-[56], in particular at [56].

7.3% of the 21000 group members notified the Court of their objections to the settlement. These are considered by his Honour from [83].

As Croft J’s approval judgment at [6] makes clear, if the proceeding had not settled and the Great Southern Reasons had been handed down as his Honour’s judgment in the case, the plaintiffs’ claims would have been wholly unsuccessful. Moreover, given the length and expense of the proceedings and the trial, costly adverse costs consequencse for the plaintiffs are likely to have followed. This settlement avoids that outcome and achieves finality in the litigation.

Newsflash: High Court denies Timbercorp investors special leave to appeal

On Thursday (10 April 2014) the High Court of Australia refused special leave to appeal to the Timbercorp investors from last October’s Victorian Court of Appeal decision.

For those who would like a more detailed understanding of the case, I wrote a detailed review last October discussing the first instance judgment of his Honour Justice Judd and the appeal judgment of the Victorian Court of Appeal – link.

Broadly, the Court of Appeal had held that Judd J had not erred in any of his challenged findings. One of those was that the Timbercorp directors did not have actual knowledge of a significant risk to viability until bank support wavered. This was well after publication of the last PDS, and after the collapse of Lehman Brothers in late 2008, which was swiftly followed by the sudden termination of negotiations Timbercorp had been engaged in for the sale and leaseback of certain of its properties and forestry assets. Even then the directors were able to manage those set-backs and address them opening new negotiations with other parties, keeping the banks onside, until their support was withdrawn shortly before Timbercorp’s collapse in mid-April 2009.

The transcript of the special leave application is not yet up on Austlii. However reports are starting to appear in the press – an article appearing in Saturday’s Age is here.

Newsflash: High Court today dismissed Willmott Forests appeal

In a 4:1 judgment the High Court today held that liquidators of landlord companies – not only liquidators of tenant companies – can disclaim leases under s 568(1) of the Corporations Act 2001 (Cth), and that the disclaimer terminates the tenants’ rights arising under the leases. The judgment in Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed)(In Liquidation) [2013] HCA 51 is now on Austlii and can be read in full here.

The majority was French CJ, Hayne, Kiefel and Gageler JJ, with his Honour Gageler J delivering his own judgment. The dissenting judgment was that of Keane J.

Their Honours French CJ, Hayne and Kiefel JJ identified the central question of construction of s 568(1) as being whether a lease granted by a landlord company to a tenant is “a contract” within the meaning of s 568(1)(f). It is, according to their Honours, by virtue of s 568(1A) of the Act which provides that “[a] liquidator cannot disclaim a contract (other than an unprofitable contract or a lease of land) except with the leave of the Court”  (see [4]). The question then became whether the reference to “a lease of land” in s 568(1A) should be read as referring to any lease to which the company is a party, or only to leases of which the company is the tenant? Their Honours concluded the former was correct.

Broadly, the power of disclaimer of liquidators under s 568(1) is expressed as a one to “disclaim property of the company”. What such “property” includes is then set out in sub-paragraphs, (f) of which is “a contract”.

The appellant advanced two principal arguments. The first was that the only relevant property of the landlord company capable of being disclaimed was its unsaleable reversionary interest in the land the subject of the leases; the second, that the tenants’ leasehold estates would survive disclaimer of the lease contracts (see [27]). Their Honours French CJ, Hayne and Kieffel JJ considered and rejected the first of these arguments at [28]-[50] and the second at [51]-[55].

In relation to the second, their Honours held that it follows from the operation of s 568D(1) that, from the effective date of the disclaimer, the company’s liability to provide the tenant with quiet enjoyment of the lease property and the tenant’s rights to quiet enjoyment of the property are terminated. If the tenant suffers loss thereby, the tenant may prove for that loss in the winding up (see [8]). At [57], to make the point clear, their Honours expressly held that from the day on which the disclaimer takes effect, each tenant’s estate or interest in the land would be terminated.

Strikingly, though, their Honours added their own observation, under the sub-heading of “Questions not considered”, demonstrating a consciousness of at least some of the ramifications of their judgment, a matter to which I will later return:

Obviously, a tenant whose lease has been disclaimed by the liquidator of a landlord may consider that being left to proof as an unsecured creditor in the winding up gives little effective compensation for what has been taken away. Whether that is so in this case was not examined in argument and is not considered. Nor has there been any occasion to consider in this case whether the liquidators require the leave of the “Court” before disclaiming the investors’ leases or, if they do require leave, what considerations would inform the decision to grant or refuse leave. It may be noted that the Act does provide expressly, in s 568B(3) that the “Court”, on application, may set aside a disclaimer “only if satisfied that the disclaimer would cause, to persons who have, or claim to have, interests in the property, prejudice that is grossly out of proportion to the prejudice that setting aside the disclaimer would cause to the company’s creditors” (emphasis added). Again, however, whather or how that provision would apply in this case was not explored in argument.”

Heads Up – Willmott Forests High Court Appeal – Judgment imminent

The High Court of Australia is to hand down judgment in the Willmott Forests High Court appeal this Wednesday 4 December. I will be interstate for a mediation, but will provide an update as soon as I am able.

To refresh your memories as to developments to this point –

  • February 2012 – The first instance decision of Davies J of the Victorian Supreme Court as to whether the disclaimer of a lease by the liquidator of the landlord’s company extinguishes the tenant’s proprietary interest in the land is handed down. Her Honour held that it did not – see my post here;
  •  September 2012 – The Victorian Court of Appeal overturns the judgment of Davies J and holds that a leasehold interest in land is extinguished by the disclaimer of the lease agreement by the liquidator of the lessor, pursuant to s 568(1) of the Corporations Act 2001 (Cth) – see my post here;
  • May 2013 – The High Court grants special leave to appeal that decision – see my post here;
  • August 2013 – The High Court hears the appeal – see my post here.

No doubt many of us are awaiting the High Court’s decision with interest.

Snapshot updates on Willmott Forests, phoenixing and new offers of compromise rules

Willmott Forests

Earlier this month the High Court heard the appeal against the Victorian Court of Appeal’s decision in Re Willmott Forests Ltd (Receivers and Managers appointed)(in liquidation) v Willmott Growers Group Inc and Willmott Action Group Inc [2012] VSCA 202.

I wrote on the Victorian Court of Appeal’s decision last year here. (My reviews of earlier Willmott Forests decisions are here and here.) In short, the Court of Appeal held that a tenant’s leasehold interest could be extinguished by disclaimer of the lease agreement by the liquidator of the lessor, pursuant to s 568(1) of the Corporations Act 2001 (Cth). The transcript of the High Court hearing of the appeal from that decision may be read here, and the parties’ written summaries of argument are available online here (under the heading for proceeding M99 of 2012).

The Victorian Court of Appeal’s decision has excited some controversy. In their summary of argument for special leave to appeal from that decision, Willmott Growers Group Inc noted that disclaimer of a lease by a liquidator of a corporate tenant is common (at [42]). However, they argued that disclaimer of a lease by a liquidator of a corporate lessor is a novel use of the liquidator’s disclaimer power, and that the implications of the Court of Appeal’s decision are far reaching. Tenants, particularly retail shop tenants, typically invest substantial sums into the goodwill and fit-out of their leased premises. Much of this expenditure is lost of the tenant is forced to relocate. Also, as the Court of Appeal’s decision erodes the security of tenure under a lease, it may impact upon the willingness of banks and financiers to grant finance on the security of a lease. They noted that the consequences for lessees, in particular retail tenants, are significant. The Victorian Court of Appeal had indicated at [51] that the implications of its decision extended to “shopping centre leases”. (See [36]-[41] of the applicant’s summary of argument.)

We await the High Court’s judgment with interest.

Update on draft legislation targeting phoenix companies

Early last year I wrote about a set of two draft bills that had been released by the Gillard government directed at cracking down on phoenix companies. These were the Corporations Amendment (Phoenixing and other measures) Bill 2012 (the Phoenixing Bill), and the Corporations Amendment (Similar Names) Bill 2012 (the Similar Names Bill). You can read my detailed discussion of those two draft Bills here.

Briefly, the Phoenixing Bill comprised two measures. One was to give ASIC administrative powers to order the winding up of abandoned companies. The primary aim of this measure was said to be the protection of workers’ entitlements, and their ability to access GEERS, with the additional benefit of enabling a liquidator to investigate the affairs of an abandoned company, including suspected phoenix activity or other misconduct. The second set of measures in that Bill was to facilitate the online publication of corporate insolvency notices. As many of you will know, this Bill was enacted last year and ASIC’s insolvency notices website went live in July 2012.

The draft Similar Names Bill proved to be more controversial. Broadly, it proposed amendments to the Corporations Act which would impose personal joint and individual liability on a director for debts of a company that has a similar name to a pre-liquidation name of a failed company (or its business) of which that person was also director for at least 12 months prior to winding up.  The debts for which a director could were to become personally liable were debts incurred by the new (phoenix) company within five years of the commencement of the winding up of the failed company. There was to be scope for directors to obtain exemptions from liability.

My comments on that draft Bill may be read here. There were numerous other fairly significant criticisms made of the draft legislation, set out in submissions lodged by a number of bodies concerned with the proposals, including the Australian Institute of Company Directors and the Law Council of Australia. Their criticisms included that the exposure draft drew no distinction between failed companies, and those abandoned or placed into liquidation for the purpose of engaging in phoenix activity; it did not define “fraudulent phoenix activity” or require a dishonest intention on the part of directors to defraud or deceive creditors before it imposed personal liability; and that it effectively reversed the presumption of honesty or “innocence”, unless the contrary were proven.

It appears that those submissions and the draft reforms were under consideration, as that Bill was not then introduced to Parliament. Indeed it had still not been introduced by the time of the dissolution of Parliament and the onset of the caretaker conventions ahead of the upcoming federal election. Thus the future of the draft Bill, or any other legislative measures to be taken to address phoenix activity, will be a matter for a future federal government to consider.

New Victorian Supreme Court Rules on Offers of Compromise

These are to come into effect on 1 September 2013 and can be read here.

The amendments include a new rule 26.02(4) which requires the issue of costs to be expressly addressed in an offer of compromise. Offers of compromise may be expressed to be inclusive of costs, if preferred by the offeror. New rule 26.02(4) requires that:

“An offer of compromise must state either – 

(a) that the offer is inclusive of costs; or

(b) that costs are to be paid or received, as the case may be, in addition to the offer.”

Note that the minimum time for which an offer of compromise must remain open to be accepted remains 14 days (r 26.03(3)), although there has been an adjustment to the timeframe for payment to be made post acceptance, where the offer does not provide otherwise (increases to 28 days – see the amendment to rule 26.03.01.)

New rule 26.08(4) provides for a defendant whose offer of compromise is unreasonably refused to be awarded standard costs up to the time of the offer and indemnity costs thereafter, unless the Court otherwise orders.

New rule 26.08.01 provides for Courts to take into account pre-litigation offers when making a determination as to costs. Thus offers made even when no litigation is yet on foot ought be given careful consideration. Potentially, the unreasonable refusal of a pre-litigation offer could leave a party exposed to an increased costs order.

Newsflash – High Court grants special leave to appeal in Willmott Forests – disclaimer of leases

Yesterday the High Court granted special leave to appeal the Victorian Court of Appeal’s decision in Willmott Forests Ltd (Receivers and Managers appointed)(in liquidation) v Willmott Growers Group Inc and Willmott Action Group Inc [2012] VSCA 202.

The transcript of the special leave application is not yet up on Austlii. However my friend and colleague Sam Hopper has posted a very useful update on his blog here. Also the parties’ summaries of argument are available online here (scroll down to the table for proceeding M99 of 2012).

I wrote on the Victorian Court of Appeal’s decision last year here. In short, the Court of Appeal held that a tenant’s leasehold interest could be extinguished by disclaimer of the lease agreement by the liquidator of the lessor, pursuant to s 568(1) of the Corporations Act 2001 (Cth).

In their summary of argument for special leave, Willmott Growers Group Inc noted that disclaimer of a lease by a liquidator of a corporate tenant is common (at [42]). However, they argued that disclaimer of a lease by a liquidator of a corporate lessor is a novel use of the liquidator’s disclaimer power, and that the implications of the Court of Appeal’s decision are far reaching. Tenants, particularly retail shop tenants, typically invest substantial sums into the goodwill and fit-out of their leased premises. Much of this expenditure is lost of the tenant is forced to relocate. Also, as the Court of Appeal’s decision erodes the security of tenure under a lease, it may impact upon the willingness of banks and financiers to grant finance on the security of a lease. They noted that the consequences for lessees, in particular retail tenants, are significant. The Court of Appeal had indicated at [51] that the implications of its decision extended to “shopping centre leases”. (See [36]-[41] of the applicant’s summary of argument.)

We await the High Court’s decision with interest. It is expected the appeal hearing will take place later this year, potentially August 2013, with the judgment to follow sometime thereafter.

Newsflash: Great Southern Class Actions to start tomorrow (Monday 29 Oct)

One of the largest set of group proceedings yet commenced in the Supreme Court of Victoria is set to start tomorrow (Monday 29 October 2012). The trial will be heard by his Honour Justice Croft and at this stage is estimated to run for 4-5 months. Interestingly, the Supreme Court is providing a live streaming facility on its website, for the viewing of the opening addresses. The webcast portal may be found here.

The Great Southern class actions comprise in excess of 22,000 group members and individual plaintiffs. According to the Supreme Court website, there are 16 group proceedings and 12 individual proceedings which were commenced in the Supreme Court with respect to various agribusiness projects (managed investment schemes) undertaken by Great Southern on behalf of investors. The various agribusiness projects included forestry, horticulture, viticulture and cattle schemes. There are also a large number of County Court proceedings which were uplifted to the Supreme Court (though a large number of these were stayed pending the outcome of the trial).

In broad terms, the Great Southern class actions involve various claims against the Great Southern entities and their directors, including whether certain product disclosure statements for the various agribusiness projects complied with the Corporations Act 2001 (Cth), and whether the Great Southern entities breached their statutory duties as responsible entities variously of the managed investment schemes. There are also allegations of misleading and deceptive conduct.

Each of the 16 separate group proceedings, brought pursuant to Part IVA of the Supreme Court Act 1986 (Vic) relates to a distinct product disclosure statement issued in respect of one or more Great Southern managed investment schemes. The plaintiffs were investors in these schemes.

In the months leading up to the commencement of trial, there have been a multitude of pre-trial issues to be addressed, and disputes to be resolved. One of these has been a contest between the parties as to whether a claim for privilege could be maintained by Great Southern Managers Australia Limited (GSMAL) in a board paper that contained some legal advice. The plaintiffs/investors wanted to tender the so-called “2005 Board Paper” at trial. The issue was whether or not  s 124 of the Evidence Act 2008 (Vic) permitted them to do so.

Last month, on 5 September 2012, the Court of Appeal handed down its judgment on the issue. Aside from a minor point as to the breadth of the declaration to be made, their Honours agreed with his Honour Sifris J, who had held at first instance that  s 124 of the Act permitted the plaintiffs/investors to tender the document.

Various arguments were advanced, but in essence, the issue turned on the proper construction and operation of s 124 of the Act; the section governing the loss of client legal privilege where the privilege is that of joint clients. Section 124 provides as follows –

“124. Loss of client legal privilege – joint clients

(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.

(2) This Division does not prevent one of those parties from adducing evidence of – 

(a) a communication made by any one of them to the lawyer; or

(b) the contents of a confidential document prepared by or at the direction or request of any one of them – 

in connection with that matter.”

The legal advice said to be contained in the June 2005 Board Paper consisted of emails which contained legal advice provided to GSMAL as principal client, which had been sought by GSMAL for the benefit also of scheme members (investors).

The Court of Appeal agreed with Sifris J’s conclusion that the requirement of a lawyer having been ‘jointly retained’ in s 124(1) was met in circumstances where the advice as sought for the benefit of the scheme members (investors). The section does not require all of the joint privilege holders to expressly retain the lawyer. It is directed to the substance of the transaction, not the agency through which it is effected. (See [21]-[30]).

For this and other reasons, the Court of Appeal held the plaintiffs/investors entitled to adduce evidence of the 2005 Board Paper at the trial. The judgment may be read in full here.

It will be interesting to see how this proceeding unfolds, including how significant this particular evidence proves to be.

Newflash – Willmott Forests investors mount High Court appeal

In a much anticipated move, Willmott Forests investors have lodged an application for special leave to appeal to the High Court of Australia, from the Victorian Court of Appeal’s recent decision on a question of disclaimer of leases by a liquidator, according to a report in today’s Australian Financial Review.

My review of the Court of Appeal’s decision – from which the Willmott Forests investors seek to appeal – is here. My reviews of earlier Willmott Forests decisions are here and here.

The Australian Financial Review article is here, and credit must go to my friend and colleague Sam Hopper for noting this development; his post is here.

Little is yet known publicly of the detail of the special leave application. I will monitor developments and seek to keep readers informed. In the meantime, I note that the website of one of the two investor groups involved in the litigation – Willmott Action Group Inc – appears to have been dismantled. It is unclear as to what, if anything, this signifies.

Re Willmott Forests Ltd (No 2) – s 511 power to affect third party rights, scheme land not “scheme property” and liquidators of REs

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.