IMO Atlas Gaming Holdings Pty Ltd
[2023] VSC 91
•2 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2022 05134
IN THE MATTER of ATLAS GAMING HOLDINGS PTY LTD (ACN 159 323 949)
(IN LIQUIDATION) AND OTHERS
BETWEEN:
| NICHOLAS JOHN MARTIN and ANDREW FIELDING in their capacity as joint and several liquidators of ATLAS GAMING HOLDINGS PTY LTD (ACN 159 323 949) (IN LIQUIDATION) and others according to the schedule | Plaintiffs |
| and | |
| ATLAS GAMING HOLDINGS PTY LTD (ACN 159 323 949) (IN LIQUIDATION) and others according to the schedule | Defendants |
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JUDGE: | M Osborne J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 February 2023 |
DATE OF JUDGMENT: | 2 March 2023 |
CASE MAY BE CITED AS: | IMO Atlas Gaming Holdings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 91 |
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CORPORATIONS — Liquidation — Pooling order — Whether just and equitable that pooling order be made — Whether pooling order would materially disadvantage any unsecured creditor —Corporations Act 2001 (Cth) ss 579E, 579G, 579Q — Insolvency Practice Schedule (Corporations) ss 65-5, 65-10, 65-15, 65-25, 65-45, 70-5, 70-6, 90-15.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | M McKillop | Gadens |
HIS HONOUR:
On 24 February 2023, I made a pooling order under s 579E(1) of the Corporations Act 2001 (Cth) (the Act), in respect of four companies, which together constituted the Atlas Trading Group (the Group), on the application of the plaintiffs who are the liquidators of the four companies, along with ancillary orders. These are my reasons for making the orders.
The Group manufactured and sold gaming machines to the Australian market over a period of approximately nine years.
On 7 October 2021 the plaintiffs were appointed as joint and several voluntary administrators of the four companies. Unsuccessful attempts were made by the directors and the plaintiffs (as administrators) to sell the business as a going concern.
On 17 December 2021 and 24 December 2021 the members of Group went into liquidation.
On 24 December 2021 the major assets of the Group were sold for $4.115m in value.
On 18 February 2022 various older gaming machines and the associated licences and intellectual property were sold for $1.965m in value.
The unsecured creditors of the Group amount to approximately $4.4 million.
Relief sought
The plaintiffs sought the following relief:
(a) a pooling order under s 579E of the Act regarding the four Group companies;
(b) orders giving relief under s 579G(1)(d) of the Act and ss 90-15 and 65-45 of the Insolvency Practice Schedule (Corporations) (IPSC) from requirements to establish and operate bank accounts for each company, or to lodge separate annual returns;
(c) an order to maintain the confidentiality of the exhibited business sale documents; and
(d) an order that costs of the application be costs in the winding up of the defendants.
The evidence was that the Group carried on business largely without respect to the corporate form over a period of years, commonly utilising their collective property, staff and capital in the business.
The state of the records of the Group is somewhat poor, so much so that in the opinion of the liquidators, the task of reconstructing the accounting records of group members on a standalone basis is unlikely to be accurate and will be costly. For that reason, in addition to seeking a pooling order to obviate the need for standalone records to be reconstructed, relief from the bank account provisions of the IPSC was sought to allow a group bank account to be used.
Materials
I relied upon the following material:
(a) affidavits of Nicholas John Martin and annexures sworn:
(i) 13 December 2022 (Martin Affidavit), being the principal supporting affidavit; and
(ii) 16 February 2023 (Second Martin Affidavit), regarding service of the application and the response of creditors to it,
and
(b) the Originating Process filed 14 December 2022.
Relevant Legal Principles
Legislation
‘Pooling’ is a decision to treat the affairs of a group of companies as if it were a single external administration.
Part 5.6 Division 8 of the Act contains the pooling provisions. They were introduced in 2007 by the Corporations Amendment (Insolvency) Act 2007 (Cth) Sch 1 items 133ff, operative from 31 December 2007.
The division permits the decision to pool to be made by the liquidator of the relevant companies under s 571 (known as a pooling determination) or by the Court under s 579E (known as a pooling order).
Section 579E(1) provides as follows:
579E Pooling orders
Making of pooling order
(1)If it appears to the Court that the following conditions are satisfied in relation to a group of 2 or more companies:
(a) each company in the group is being wound up;
(b) any of the following subparagraphs applies:
(i)each company in the group is a related body corporate of each other company in the group;
(ii)apart from this section, the companies in the group are jointly liable for one or more debts or claims;
(iii)the companies in the group jointly own or operate particular property that is or was used, or for use, in connection with a business, a scheme, or an undertaking, carried on jointly by the companies in the group;
(iv)one or more companies in the group own particular property that is or was used, or for use, by any or all of the companies in the group in connection with a business, a scheme, or an undertaking, carried on jointly by the companies in the group;
the Court may, if the Court is satisfied that it is just and equitable to do so, by order, determine that the group is a pooled group for the purposes of this section.
Section 579E permits a pooling order to be made if the companies in the proposed group are in liquidation and are associated in one of the four ways set out in s 579E(1)(b)(i) to (iv). Provided one of those requirements is satisfied, the Court then has a discretion as to whether to make the pooling order. The discretion is subject to an overarching threshold requirement that it is ‘just and equitable’ for the court to make a pooling order and to an additional matter explained in paragraph 18 below.
Section 579E(12) specifies criteria that must be taken into account in the exercise of the discretion:
Just and equitable criteria
(12)In determining whether it is just and equitable to make a pooling order, the Court must have regard to all of the following matters:
(a) the extent to which:
(i) a company in the group; and
(ii) the officers or employees of a company in the group;
were involved in the management or operations of any of the other companies in the group;
(b) the conduct of:
(i) a company in the group; and
(ii) the officers or employees of a company in the group;
towards the creditors of any of the other companies in the group;
(c)the extent to which the circumstances that gave rise to the winding up of any of the companies in the group are directly or indirectly attributable to the acts or omissions of:
(i) any of the other companies in the group; or
(ii)the officers or employees of any of the other companies in the group;
(d)the extent to which the activities and business of the companies in the group have been intermingled;
(e)the extent to which creditors of any of the companies in the group may be advantaged or disadvantaged by the making of the order;
(f) any other relevant matters.
Further, there is a negative condition that can prevent a court from making the order as follows in s 579E(10):
(10)The Court must not make a pooling order in relation to a group of 2 or more companies if:
(a) both:
(i)the Court is satisfied the order would materially disadvantage an eligible unsecured creditor of a company in the group; and
(ii)the eligible unsecured creditor has not consented to the making of the order; …
The key issues are accordingly:
(a) is there ‘a group of 2 or more companies’ (s 579E(1), introductory words)?;
(b) is each company in the group being wound up (s 579E(1)(a))?;
(c) is at least one of the conditions in s 579E(1)(b) satisfied?;
(d) what does the evidence show with respect to the matters in s 579E(12) as they may affect the exercise of the discretion?;
(e) is it just and equitable that the order sought be made (s 579E(1)(b), concluding words)?; and
(f) does s 579E(10) preclude the making of a pooling order?
Issues (a) to (c) are satisfied since the defendants are in liquidation and the first defendant is the parent of the remainder. Accordingly, the Court has the power to make a pooling order, in its discretion.
The Court’s Discretion: Just and Equitable to Make the Order
Once the Court is satisfied it has power to make a pooling order, it must also be satisfied that it ought to exercise its discretion to make one. The threshold for the exercise of the discretion is that ‘the Court is satisfied that it is just and equitable to do so’.
The authorities are not particularly helpful on understanding the criteria, mainly because the section itself is prescriptive:
(a) In Kirby Street, Barrett J said,[1] after considering the meaning of the phrase ‘just and equitable’ when applied to the exercise of a judicial discretion:
[1] In the matter of Kirby Street Holding Pty Limited [2011] NSWSC 1536, [78].
Section 579E(12) must therefore be seen as conferring a discretion that, while wide, can only be exercised judicially in the light of the whole of the circumstances surrounding the relevant subject matter.
(b) In re Aboriginal Connections, Barrett JA held:[2]
[2]In the matter of Aboriginal Connections Aboriginal Corporation (In Liquidation) and Guri Wa Ngundagar Aboriginal Corporation (In Liquidation) [2012] NSWSC 491 (‘Aboriginal Connections’), [28].
… In deciding whether, according to the concluding words of s 579E(1)(b), it is “just and equitable” that a pooling order be made, the court must, in obedience to s 579E(12), “have regard to” all of the matters specified in s 579E(12). The direction to “have regard to” the specified matters requires that the court “give weight to” those matters “as a fundamental element” in coming to a conclusion: R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333 per Gibbs CJ. The inquiry in the course of which the specified matters must be given that weight is as to what is “just and equitable”.
(c) In Lofthouse, Ferguson J (as she then was) said:[3]
Section 579E(12) confers a wide discretion on the Court. However, the discretion must be exercised judicially having regard to the specific factors listed in paragraphs (a) - (e) of the legislation and, under paragraph (f), “any other relevant matters”. This requires the Court to consider the whole of the circumstances of the group of companies and their creditors.
[3] Lofthouse v Environmental Consultants International Pty Ltd & Ors [2012] VSC 416 (‘Lofthouse’), [18].
The No Material Disadvantage Test – Unsecured Creditors – s 579E(10)
By s 579E(10)(a) the Court must not make a pooling order if:
(a) the Court is satisfied that the order would materially disadvantage an eligible unsecured creditor of a company in the group; and
(b) the eligible unsecured creditor has not consented to the making of the order.
The just and equitable factors to be considered by s 579E(12) includes a like matter, namely s 579E(12)(e). It has been held that if the Court is satisfied that a material disadvantage to unsecured creditors will result from the making of a pooling order, then the pooling order could not be made as a matter of discretion.[4]
[4]Ibid [30].
The term ‘eligible unsecured creditor’ is defined in s 579Q as follows:
(1)Subject to subsection (2), for the purposes of the application of this Division to a group of 2 or more companies, a creditor of a company in the group is an eligible unsecured creditor of that company if:
(a) both:
(i) the creditor’s debt or claim is unsecured; and
(ii) the creditor is not a company in the group; or
(b) the creditor is specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2)The regulations may provide that, for the purposes of the application of this Division to a group of 2 or more companies, a specified creditor of a company in the group is not an eligible unsecured creditor of that company.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
No regulations have been made under sub-sections (1)(b) or (2).
This requirement was considered at some length in Re Watch Works Australia Pty Ltd (In Liq) & Anor; Ex Parte Francis & Ors.[5] From that case the following principles are apparent:
[5][2020] WASC 6.
(a) non-material disadvantages do not require the consent of the affected creditors;
(b) the focus of the court is on advantages and detriment to an eligible unsecured creditor of a company, rather than the overall benefit of pooling to all creditors taken as a whole; and
(c) a small reduction of a possible dividend to a particular group is not likely to be considered a material disadvantage, for example, a loss of a dividend to one company of 1.47c in the dollar was not considered material.
In Walker, in the matter of ZYX Learning Centres Limited (formerly A.B.C. Learning Centres Limited) (Receivers and Managers Appointed) (in Liq),[6] Jagot J made the following points, in summary, that:[7]
(a) a loss of a return of 0.23c in the dollar to a non-priority unsecured creditor is not a material loss; and
(b) significance will be placed on a failure by an unsecured creditor to appear and object to the order, having been given notice, as to whether the alleged disadvantage is significant.
[6][2015] FCA 146.
[7]Ibid [40].
In Lofthouse the absence of objection by any unsecured creditor was also considered in a finding of a lack of detriment that was material.[8]
[8]Lofthouse, [31]. The same reasoning was used in Aboriginal Connections at [42]; see also Hutson (liquidator), in the matter of WDS Limited (in liq) (Receivers and Managers Appointed) [2020] FCA 299 ('Hutson’), [59].
Some of the factors that favour pooling even though some asset rich companies may be impacted vis-a-vis asset poor companies include:
(a) small or non-existent recoveries in asset rich companies without the litigation funding available from pooling of assets in liquidation;
(b) comparative cost of alternative funding models, including external funders or assignment of choses in action;
(c) savings generated by avoiding separate liquidations of the pooled entities;
(d) difficulty in identifying the company in a group which is entitled to recovery of a pooled asset (one or more companies in the group has competing claims); and
(e) negligible impacts on recoveries, for example, it seems, as noted, that a few cents in the dollar impact is not significant.
It is also the case that priority creditors would retain their priority against the pooled assets (s 579E(5)).
In Hutson, after surveying the above authorities, the Court concluded:[9]
The determination of whether an eligible unsecured creditor would be materially disadvantaged by the making of a pooling order is a question to be determined in all of the circumstances of the case: Re Walker at [42], [50]. Relevant matters to take into account in determining that issue include the dividend payable to creditors in a pooled scenario versus a non-pooled scenario and whether any creditor has appeared to object to the making of the proposed pooling order: Re Walker at [40]; Re Aboriginal Connections at [42].
[9] Hutson, [62].
A difficult issue in considering s 579E(10)(a) is identifying whether the liquidator applicant bears an onus of disproving a negative: i.e. proving to the Court that no eligible creditor will suffer material disadvantage. In Hutson, Markovic J expressed the view, in obiter remarks, that the liquidator does not bear such an onus, holding as follows:[10]
In light of that it is not necessary for me to resolve the issue of onus as raised by the Liquidators, an issue which was not considered in any of the authorities to which I was taken and which, as noted at [101] above, I was invited by senior counsel for the plaintiffs ultimately not to resolve. However, in passing I observe that a court can of course only consider and form a view about the presence or otherwise of material disadvantage based on the evidence before it which will be led by a liquidator seeking such an order and, in the event of objection by an eligible unsecured creditor, evidence relied on by the objector. It may be that the issue of onus only arises in that scenario where, in the face of opposition, it would fall to the liquidator to satisfy the court that there is no material disadvantage.
[10]Hutson, [112].
Written notice of the application has been provided to the eligible unsecured creditors of the companies in the proposed group in accordance with s 579J of the Act. No creditor opposed the orders sought.
IPSC Bank Account Relief, Consolidated Return Relief
Orders were sought under the IPSC to permit the Group to operate a single treasury bank account in the name of the first defendant, Atlas Gaming Holdings Pty Ltd ACN 159 323 949 (‘AGH’), and to file consolidated annual returns with ASIC.
The relevant provisions of the IPSC are set out in an annexure to these submissions. They are:
(a) Division 65 - Funds Handling: s 60-2, s 65-1, s 65-5, s 65-10, s 65-15, s 65-25 and s 65-45;
(b) Division 70 – Information: s 70-1, s 70-5, s 70-6; and
(c) Division 90 - Review of the External Administration of a Company: s 90-15, sub-ss (1), (2)(b), (3)(a),(d) and (4).
The IPSC includes:
(a) a requirement to maintain a bank account in respect of each insolvent corporate entity, called an ‘administration account’. See in particular IPS Division 65, which contains requirements to keep an account in s 65-5, to pay all moneys received by an insolvent company into such an account in s 65-5(1), and not to mix moneys unrelated to the company in that account in s 65-15;
(b) a requirement restricting payment of money out of the account for purposes not in relation to the company, or not permitted by the Act or Court direction in s 65-25; and
(c) a requirement to prepare and lodge annual returns and an end of administration return for each insolvent company in s 70-5 and s 70-6.
However, IPS Division 65 does permit a liquidator to depart from these requirements in some circumstances:
(a) first, if the company is part of a pooled group, then the group can have a single account for all group companies which becomes the ‘administration account’ for all group companies (s 65-10(2));
(b) second, in a pooled group, the returns can be filed in the same document (s 70-5(7) and s 70-6(6));
(c) third, if a direction is made by the Court contrary to the requirements of the ISPC, those requirements no longer apply (ss 65-5(2), 65-15(2), 65-25(1)(c) and 65-45(2)). Those provisions permit the Court to either dispense with compliance with the bank account rules, or to make orders permitting moneys to be paid in and out of an account otherwise than in accordance with the rules; and
(d) fourth, the Court has a broad power to make such orders as it thinks fit in relation to the external administration of a company (s 90-15(1)).
The authorities applying these provisions of the IPSC were considered and summarised in Re Grocon Pty Ltd (admins apptd) (No 1).[11] The issues favouring relief under the IPSC to enable a treasury account to be used include:
[11][2020] VSC 833.
(a) the relief avoids the costs and complexity of each group company having a separate account;
(b) that some of the companies do not trade and have no transactions of significance requiring a bank account; and
(c) where pooling is present, avoids the need for intra company transfers and accounting.
General Background Facts
The background facts of the matter are set out in detail in the Martin Affidavit.
Group Structure and Organisation
The four defendant companies are:
(a) AGH;
(b) Atlas Gaming Technologies Pty Ltd ACN 150 554 411 (‘AGT’);
(c) Atlas Gaming Pty Ltd ACN 158 799 618 (‘AG’); and
(d) Atlas Gaming Digital Pty Ltd ACN 647 074 226 (‘AGD’),
AGH was the founding entity and incorporated each of the other defendants over time. AGT, AG and AGD are each wholly owned subsidiaries of AGH . The Group was established in 2012.
Group Operations
The business of the Group comprises the design, development, assembly testing, sales and servicing for gaming machines and associated software. The role of each of the Defendants was:
(a) AGH is the parent company, with no substantive assets apart from its shares in the subsidiaries;
(b) AG is the main trading entity and owns the majority of the physical assets;
(c) AGT owns intellectual property assets, is entitled to a research and development incentive payment for the financial year ended 30 June 2021 and is the employing entity; and
(d) AGD was incorporated on 12 January 2021, but did not trade and has no assets or liabilities.
The operations of the Group were intertwined:
(a) AGH received loans from its shareholders which were then deployed throughout the Group;
(b) AG and AGT were incorporated on tax advice to separately house day to day operations and intellectual property respectively, with the purpose of allowing AGT to focus on the development, sale and licensing of IP;
(c) AGD was formed by the Group with the intention of housing online content, but did not do so before the insolvent administration of the Group; and
(d) operationally, the four companies operated as a single financial group and conducted a single business. They utilised the same 17 staff, had common management, prepared accounts at a Group level and presented to their customers as one body.
Investigations – Cause of Group failure, sale of assets
The background regarding the failure of the Group is set out in the Martin Affidavit which details, in summary, that:
(a) the COVID-19 mandated lockdowns restricted the gambling activity of the Group’s customers, and restricted its cashflow;
(b) the shareholders were not prepared to fund the resulting deficits;
(c) since the defendants’ operations were interdependent, they were each affected; and
(d) the directors placed the Group into administration when they were unable to sell the business.
After the appointment of the liquidators:
(a) the liquidators continued to trade to get a sale away;
(b) a marketing campaign was conducted and a sale negotiated;
(c) the assets were sold:
(iii) on 24 December 2021, principally to Everi Technology Pty Ltd, a customer, for $4.115 m. Part of the consideration was the forgiveness of a pre-appointment debt of $600,000 which had been loaned by Everi Games Inc. (Everi USA) to deal with cash flow difficulties;
(iv) on 18 February 2022, various older gaming products, were sold together with associated IP to DR Gaming Technology Europe NV and drStudio Ltd for $1.965 m;
and
(d) the only other asset of the Group is a refundable tax offset owing to AGT, which in net terms is worth some $153,000 in benefits to the Group.
Creditors
The major pre-appointment secured creditors were the National Australia Bank and Everi USA, who were each paid out from the sale of the business. Unsecured debts in the Group, after assessing proofs of debt and making adjustments following investigations are approximate. They consist of:
(a) approx. $1,867,113 in AGH;
(b) approx. $2,064,341 in AG;
(c) approx. $193,183 in AGT;
(d) approx. $166,704 in AGD.
According to Mr Martin, whose evidence I accept, and notwithstanding the proofs of debt, it is unclear which defendant is liable for which debt for various reasons including:
(a) confusion in shareholder loan claims between, and against, all four entities;
(b) incomplete intercompany debts;
(c) utilisation of staff across the group without accounting for the cost;
(d) lack of a cross deed;
(e) lack of records to adequately identify the owner of the assets sold to Everi and to DRGT;
(f) lack of allocation of leasing costs;
(g) common operation of the business; and
(h) common utilisation of funds sourced from NAB and Everi USA despite security being offered by AGH and AG.
Bank Account Arrangements
All the defendant companies are obliged to maintain separate bank accounts by the IPSC.
The liquidators wish to establish a single account for the whole group for the purposes of administrative and cost efficiencies.
The use of a single ‘treasury’ account (intended to be an account held by AGH) is expected to achieve the following benefits:
(a) avoid the administrative costs of distributing recoveries to separate accounts, including costs of arranging payments and recording them;
(b) avoid the cost of maintaining accounts for the remaining defendants; and
(c) avoid the cost of bank charges accruing from four separate accounts.
Creditors opinion and Notice
The Second Martin Affidavit deposes to the giving of notice to creditors of the application, and that there has not been any response to that notice.
Discussion
Satisfying section 579E(1)(b)(i)
Since AGH is the parent of the other defendants s 579E(1)(b)(i) is satisfied.
Exercise of the Discretion
The factors in favour of exercising the discretion to make an order are very strong given the ‘whole of the circumstances’ of the Group. The following matters are compelling:
(a) the four companies in the Group worked with each other;
(b) the difficulty in identifying the true owner of the business assets which have given rise to the bulk of the proceeds to be distributed from the Group in liquidation;
(c) in respect of AGD, the company was incorporated by the Group for the purposes of pursuing the common business in the online space;
(d) intermingling of the business is strong, given the common operation of the business, common utilisation of staff, management, shareholder funding and external funding;
(e) the intermingling is also reflected in the liquidators’ difficulty in identifying the true defendant liable for some debts or owner of some assets, including the proceeds of the sale of the business post appointment;
(f) the collapse of the Group as a whole has been caused by the intercompany indebtedness and interoperation of the companies in the Group;
(g) the management team was common, including the directors; and
(h) that pooling will permit co-ordination of distribution of proceeds of asset sales across the Group for the benefit of unsecured creditors;
No Disadvantage to Unsecured Creditors
I am satisfied that there is no disadvantage to the unsecured creditors.
I accept Mr Martin’s evidence to the effect that:
(a) there is no fair way to distribute the asset sale proceeds given the lack of an allocation basis in the Group’s records, and the absence of any allocation in the sale documents themselves. It follows that an analysis demonstrating the marginal benefit for unsecured creditors of each defendant is not feasible;
(b) the liquidators have considered various arbitrary distributions and analysed them. The exercise shows a variety of outcomes for the defendants without any satisfactory underlying basis to favour one over another;
(c) pooling will not affect priority employee claims since they have, or will be, fully paid out;
(d) no unsecured creditor has come forward to raise issues;
(e) the cost of the liquidation of the defendant companies will be significantly higher if a pooling order was not made, because the liquidators will need to reconstruct the accounts of each company for the purposes of ascertaining and accounting for intragroup claims;
(f) there is some question as to which company is entitled to assets in the Group, which would cost a significant amount to determine. The cost can be avoided in the event of pooling;
(g) significant costs savings will be generated by avoiding separate liquidations including reconstruction of individual company financial positions, avoiding ongoing separate analyses of the position of each company in liquidation, streamlining reporting requirements and apportionment of fees and expenses between companies; and
(h) any further priority claims which might emerge within the Group are preserved by s 579E(5).
IPSC Bank Account Relief, Consolidated Return Relief
In this case, if a pooling order is made, then AGH will be:
(a) entitled to maintain a single administration account for the four defendant companies, and the liquidators will be entitled to pay moneys into that account that relates to all companies in the Group; and
(b) entitled to lodge a return for all four companies in a single document.
However, it is not clear from s 65-10(2) that because the AGH account will be an administration account for all pooled companies, that moneys can be paid out of the account for purposes otherwise unrelated to AGH: see the language of s 65-25(1) which refers to ‘a company’ and does not expressly make provision for other pooled companies.
The proper construction of s 65-10(2) read with s 65-25 should be, as a matter of the practical operation of Division 65 in relation to pooled groups, that the phrase ‘a company’ where used in s 65-25(1)(a) must mean any company in a pooled group for which the relevant account is an administration account. However, out of an abundance of caution, the liquidators sought a direction permitting them to make payments from the account to be established by AGH for purposes relating to other companies in the pooled group.
Further, it is not clear whether the return ‘set out in the same document’ means a consolidated return, on a single document containing four different returns. Again, the practical construction of the section would require a consolidated return, otherwise the utility of a pooling order would be largely lost by the need to maintain separate accounts for each pool member.
The direction sought is as follows:
Pursuant to section 65-45 of the IPSC, that section 65-25 of the IPSC is to operate in relation to the second to fourth defendants such that the plaintiffs must not pay any money out of the administration account of the first defendant otherwise than:
(a)for purposes related to the external administration of any one or more of the second to fourth defendants;
(b) for purposes related to the operation of the Group; or
(c) in accordance with the Act.
I note that a similar direction was obtained for the same reason by the liquidators in respect of the pooling orders in Blakeley v Ausmart Services Pty Ltd (in liq), in the matter of Ausmart Services Pty Ltd (in liq).[12]
[12][2021] FCA 1470, [45]-[46].
I was satisfied that the relief sought in this proceeding is necessary to enable the liquidators the best possible chance to distribute the proceeds of asset sales for the benefit of creditors, without incurring costs of maintaining separate liquidations including, in particular, the arbitrary allocation of the sale proceeds between the defendants. Accordingly, I made orders to that effect on 24 February 2023.
SCHEDULE OF PARTIES
| S ECI 2022 05134 | |
| BETWEEN: | |
| NICHOLAS JOHN MARTIN AND ANDREW FIELDING IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF ATLAS GAMING HOLDINGS PTY LTD (ACN 159 323 949) (IN LIQUIDATION) | First Plaintiff |
| NICHOLAS JOHN MARTIN AND ANDREW FIELDING IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF ATLAS GAMING TECHNOLOGIES PTY LTD (ACN 150 554 411) (IN LIQUIDATION) | Second Plaintiff |
| NICHOLAS JOHN MARTIN AND ANDREW FIELDING IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF ATLAS GAMING PTY LTD (ACN 158 799 618) (IN LIQUIDATION) | Third Plaintiff |
| NICHOLAS JOHN MARTIN AND ANDREW FIELDING IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF ATLAS GAMING DIGITAL PTY LTD (ACN 647 074 226) (IN LIQUIDATION) | Fourth Plaintiff |
| - and - | |
| ATLAS GAMING HOLDINGS PTY LTD (ACN 159 323 949) (IN LIQUIDATION) | First Defendant |
| ATLAS GAMING TECHNOLOGIES PTY LTD (ACN 150 554 411) (IN LIQUIDATION) | Second Defendant |
| ATLAS GAMING PTY LTD (ACN 158 799 618) (IN LIQUIDATION) | Third Defendant |
| ATLAS GAMING DIGITAL PTY LTD (ACN 647 074 226) (IN LIQUIDATION) | Fourth Defendant |
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