In the matter of Aus Streaming (In Liq)
[2020] VSC 313
•27 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2020 01581
IN THE MATTER OF AUS STREAMING (IN LIQUIDATION) ACN 600 577 348
| PETRUS CASPARDUS STEPHANUS HELBERG | Plaintiff |
| v | |
| RONALD JOHN DEAN-WILLCOCKS and others in the attached schedule | Defendants |
---
JUDGE: | Connock J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2020 |
DATE OF JUDGMENT: | 27 May 2020 |
CASE MAY BE CITED AS: | In the matter of Aus Streaming (In Liq) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 313 |
---
CORPORATIONS – Corporations Act 2001 (Cth) – Schedule 2, Division 90, ss 90-15, 90-20 – Insolvency – Voluntary winding up – Costs and expenses of special purpose liquidators – Appointment of special purpose liquidators – General principles – Funding agreement – Standing.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr A Trichardt | JWS Lawyers |
| For the Defendants | Mr A Oakes | BWS Lawyers |
HIS HONOUR:
Introduction and summary
The plaintiff is a creditor and former director and employee of the third defendant, Aus Streaming Limited (In Liquidation) (Company).[1] The first defendant and second defendant (Primary Liquidators) are the Company’s liquidators, having previously been its administrators from 3 February 2018 and then deed administrators of a deed of company arrangement dated 5 June 2018 (DOCA). The DOCA was terminated by a creditors’ resolution passed on 4 March 2020, at which time the creditors also resolved to appoint the Primary Liquidators.
[1]The plaintiff is also the director of Helberg Holdings Pty Ltd, which is a shareholder of the Company and holds 5,000,000 shares, with their value said to total $4,300,000.
By its originating process the plaintiff sought a broad range of relief and alternative relief in connection with the Company’s administration, the DOCA, the appointment of the Primary Liquidators, and the liquidation of the Company. This included relief pursuant to ss 75-41(3) and 90-15(1) of Schedule 2 (Insolvency Practice Schedule) (Schedule 2) of the Corporations Act 2001 (Cth) (Act) comprising: orders setting aside the creditors resolution made on 4 March 2020; orders removing the Primary Liquidators; and orders winding up the Company and appointing Mr Craig Crosbie and Mr Daniel Walley of PricewaterhouseCoopers Australia (PwC) as replacement liquidators. The relief sought in the alternative included orders appointing Messrs Crosbie and Walley as special purpose liquidators of the Company.
The issues have narrowed and the question for determination is whether Messrs Crosbie and Walley should be appointed as special purpose liquidators for the purpose of investigating the existence and value of shareholdings in five foreign unlisted resource companies that are said to be the Company’s only assets and addressing and attending to related matters (SPL Purposes).
The answer to that question is yes.
I elaborate as to why below and then address some matters associated with the terms of the appointment, and the orders proposed.
Evidence and submissions
The application was supported by affidavits of: the plaintiff; the plaintiff’s solicitor, Mr Buitendag (two); Mr Crosbie; and of directors of two supporting creditors, being Mr Sestan of Salamander Business Services Pty Ltd and Mr Van Zyl of RKZL Pty Ltd.
The defendants filed an affidavit of the first defendant Mr Dean-Willcocks, one of the Primary Liquidators, although this largely related to the defendants’ cross-vesting application which was ultimately not pursued.
The plaintiff relied upon his written submissions filed on 19 May 2020 and the defendants relied upon their written submissions filed on 22 May 2020. These written submissions were addressed and supplemented orally at the hearing on 27 May 2020.
Background
The background is set out at some length in the affidavit material — and particularly the affidavits of the plaintiff, Mr Buitendag, and Mr Crosbie — to which I have had regard but is not necessary to set out in detail here. Briefly, the relevant background includes the following.
The Company was incorporated as a special purpose vehicle focused on critical metals to facilitate the entry of its parent company ASAF Critical Metals Ltd (ASAF) into the metal streaming business.
The Company made investments by taking shares in foreign unlisted energy and resource companies, namely: AGB Resource Capital Limited; Frontier Mining Value Ltd; Indus Infrastructure Partners Ltd; OTH Mineral Streaming Limited; TOR Mining Capital Limited (collectively, Investments).
The Investments were said to have been made in connection with what was planned to be a global metal streaming enterprise involving, among other things, ASAF spinning out and listing a number of its subsidiaries in different countries, including the Company, which was to be listed in Australia.
On 3 February 2018 the administrators were appointed pursuant to a resolution of the Company’s directors.
The DOCA was executed on 5 June 2018 pursuant to a resolution of creditors made at a meeting of creditors held on 15 May 2018.
The debts the subject of the DOCA were recorded in the DOCA as totalling a little over $1.2 million, including administration costs, priority creditors, and ordinary unsecured creditors but excluding deferred creditors and secured creditors, each of which executed deeds of deferral and agreed to the sale of the Investments pursuant to the terms of the DOCA.
The list of creditors exhibited to the affidavit of Mr Dean-Willcocks recorded debts owed to priority creditors as totalling $269,703.75 and debts owed to unsecured creditors as $1,389,851.05, with the only secured creditor recorded as being ASAF in respect of a debt of $449,000.
The administrators’ report stated that the Investments were recorded as having a book value in excess of $145 million.
The DOCA contemplated payments being made to participating creditors that would have seen the priority and unsecured creditors recovering 100 cents in the dollar plus interest from 3 February 2018 at the rate of 9% per annum. This was to be achieved by control of the Company reverting to its directors at the date of the DOCA and the Company engaging in a sale process in respect of the Investments, with the proceeds of sale being paid into a deed fund to be administered by the deed administrators (Deed Fund).
Payments into the Deed Fund were to be made over time, with a minimum payment of $100,000 to be made within six months and the balance in full within 12 months of the date of the DOCA. This did not occur.
On 21 March 2019 the creditors resolved to vary the DOCA by, among other things, extending the dates upon which payments from the sale proceeds of the Investments were required to be made into the Deed Fund.
On 17 June 2019 the creditors resolved to vary the DOCA again by, among other things, further extending the dates upon which payments were required to be made into the Deed Fund from the sale proceeds of the Investments.
On 3 February 2020 the deed administrators issued a report to creditors and a proposed additional variation to the DOCA which contemplated further extensions of time for the Company to pay the sale proceeds into the Deed Fund. This variation did not proceed and at the meeting of creditors held on 4 March 2020 the creditors resolved that the DOCA be terminated and that the Primary Liquidators be appointed.
Throughout the administration, the term of the DOCA, and the liquidation of the Company, the plaintiff has communicated extensively with the Primary Liquidators expressing concern regarding the apparent mystery and uncertainty surrounding the existence and value of the Investments, the failure of the Company to sell the Investments and pay the sale proceeds into the Deed Fund, and what the plaintiff considers are or may be shortcomings in the manner in which the Primary Liquidators have carried out their various roles in connection with the Investments.
The plaintiff, an experienced chartered accountant, says that he has carried out extensive work and believes there are hundreds of millions of dollars sourced from investors which are unaccounted for. He is concerned that this investment money sourced from the public may never have made its way into the intended investment vehicles and is concerned that the Investments may not exist.
To date it appears that the Primary Liquidators have not met with material success in relation to such investigations as they have been able to undertake with respect to the Investments. As things stand they are unfunded and therefore unable to carry out any material further investigations in relation to the existence and value of the Investments and related matters, but would wish to do so if funds were available.
In the communications between the Primary Liquidators and the plaintiff, the Primary Liquidators sought information from the plaintiff regarding funding arrangements and said that they had done so because the terms are relevant to their consideration of, among other things, the possible appointment of a special purpose liquidators to investigate the Investments.
On 30 March 2020 the plaintiff commenced this proceeding seeking, among other things, the removal of the Primary Liquidators and the appointment of Messrs Crosbie and Walley in their place, alternatively their appointment as special purpose liquidators to investigate the existence and value of the Investments.
In early April 2020 the plaintiff entered into a confidential funding agreement with a funder (First Funding Agreement) in connection with this proceeding and the proposed investigations to be carried out by Messrs Crosbie and Walley in relation to the Investments. Partially redacted copies of the First Funding Agreement have since been provided to the Primary Liquidators.
It is apparent that the funder is willing to provide funding to the plaintiff to facilitate investigations to be undertaken by Messrs Crosbie and Walley as special purpose liquidators but is not willing to provide funding for such investigations to be undertaken by the Primary Liquidators. The work involved in the investigations will include work to be carried out in a number of different countries and it is said that Messrs Crosbie and Walley are well placed to carry out such work because they are partners in PwC which has a global network enabling assistance to be obtained from PwC’s affiliated overseas offices in various countries.
Subsequent to being provided with information regarding the First Funding Agreement, the Primary Liquidators informed the court that they do not oppose the appointment of Messrs Crosbie and Walley as special purpose liquidators for the SPL Purposes. To the extent that the plaintiff claimed that the Primary Liquidators had not carried out their role as administrators, deed administrators or liquidators appropriately, they strongly denied such suggestions and resisted the application to remove them as Primary Liquidators.
Messrs Crosbie and Walley have consented to being appointed special purpose liquidators for the SPL Purposes and have completed a declaration of independence, relevant relationships and indemnities.
At the directions hearing held on 8 May 2020 in this proceeding, issues were narrowed and the plaintiff decided only to pursue its application for the appointment of Messrs Crosbie and Walley as special purpose liquidators and not pursue the other relief claimed, including orders removing the Primary Liquidators and setting aside previous resolutions of creditors. This course was taken on the basis that the Primary Liquidators indicated that they consented to the appointment. Consequently, on 8 May 2020 I ordered, among other things, that the application for the relief sought in paragraphs 1 to 3 of the originating process dated 30 March 2020 be dismissed.
On 8 May 2020 the plaintiff also sought to have orders made appointing the special purpose liquidators that day but did not ultimately pursue that course when it was pointed out to the plaintiff that there was no material before the court in relation to the proposed special purpose liquidators’ position regarding a number of matters, including in relation to funding and some of the orders proposed. The further hearing of the application was adjourned until today to enable various matters to be considered and for additional evidence and submissions to be filed and served, which has occurred.
Relevant matters that emerge from this additional evidence include the following:
(a) Confirmed consent from Messrs Crosbie and Walley to act as special purpose liquidators for the SPL Purposes.
(b) Mr Crosbie stating in his affidavit of 19 May 2020 that he and Mr Walley undertake that they will not seek to recover the fees and expenses of the investigations out of the funds or the property of the Company, and that should they pursue any potential claims as part of their role as special purpose liquidators they will recover the fees and expenses from the terms of a funding agreement to be entered into with a third party or litigation funder, or otherwise from the recoveries obtained from such claims but not from any other funds or property of the Company.
(c) Insight into the nature and extent of the work and investigations proposed to be undertaken in Australia and elsewhere.
(d) The entry into a new funding agreement between the plaintiff and the funder in respect of the proposed investigations regarding the existence and value of the Investments and related matters (Second Funding Agreement), which supersedes and replaces the First Funding Agreement, the terms of which are confidential and need not be detailed here.
(e) Details regarding the manner in which Messrs Crosbie and Walley’s fees and costs are to be met, in circumstances where they are not party to the Second Funding Agreement but will not be looking to the property of the Company to recover such fees and expenses, except to the extent that action taken in respect of their work as special purpose liquidators results in additional funds being obtained by the Company.
(f) The current absence of any agreement proposed to be entered into by Messrs Crosbie and Walley on behalf of the Company if appointed special purpose liquidators.
Principles and observations
In a court-ordered winding up where several liquidators have been appointed, one or more of them might be designated to attend to a particular matter. An additional liquidator may also be appointed by the court to attend to particular tasks in an existing court-ordered liquidation. As Barrett J observed in Lo v Nielsen & Moller (Autoglass) (NSW) Pty Ltd,[2] in Re Obie Pty Ltd (No 4),[3] Thomas J stated:
It has long been held that the court has jurisdiction to give the conduct of any particular matter arising in the course of the liquidation to one of several liquidators: Re Midland Land and Investment Corporation [1887] WN 58. In my own experience courts have made such orders when there is a matter to be dealt with in a liquidation which it would be embarrassing for the liquidators to handle. In such circumstances an additional liquidator is appointed to handle that matter, and the great expense and loss of efficiency involved in resignation and replacement in a partially completed administration is avoided.
[2][2008] NSWSC 407, [26]-[28].
[3](1984) 8 ACLR 967, 971.
It is now also well established that in the case of a voluntary winding up the court has power to appoint an additional or special purpose liquidator.[4] Prior to the introduction of Schedule 2, that power arose under s 511 of the Act which relevantly provided that, in a voluntary winding-up, the court may exercise all or any of the powers that the court might exercise if the company were being wound up by the court, if satisfied that the exercise of the power would be just and beneficial.
[4]See, for example, Lo v Nielsen & Moller (Autoglass) (NSW) Pty Ltd [2008] NSWSC 407, [26]-[30]; Re Spedley Securities Ltd (in liq) (1991) 4 ACSR 555 (Young J); Advance Housing Pty Ltd v Newcastle Classic Development Pty Ltd (1994) 14 ACSR 230 (Santow J); McGrath Re HIH Insurance Ltd [2006] NSWSC 385 (Barrett J); Honest Remark Pty Ltd v Allstate Explorations NL and Others (2006) 234 ALR 765, [50]-[63] (Brereton J); Victoriav Goulburn Administration Services Ltd (in liquidation) and Others [2016] VSC 654, [18]-[25] (Sifris J); Deputy Commissioner of Taxation, in the mater of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444, [60]-[85] (Gleeson J); State of Victoria v CTM Training Solutions Pty Ltd (In liq) [2017] VSC 47, [32]-[37] (Sifris J); Commonwealth of Australia, in the matter of ACN 093 117 232 Pty Ltd (in liquidation) [2018] FCA 1922 (Derrington J); In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002, [15]-[20] (Gleeson JA); Melhelm Pty Ltd v Boka Beverages Pty Ltd (in liq)[2019] FCA 1184, [43]-[58] (Gleeson J); Williams & Kersten Pty Ltd v Walton Construction (Qld) Pty Ltd (in liq) [2019] FCA 1201, [14]-[20] (Reeves J); Glenfyne International Holding Limited v Glenfyne Farms International Au Pty Ltd (in liq) [2019] NSWCA 304, [59]-[61] (Bathurst CJ, Bell P and Macfarlan JA); Reidy as Trustee for the PR Mining superannuation Fund v Contained Gold Pty Ltd (in liq) [2020] FCA 268, [28]-[33] (Jackson J).
Since 1 September 2017, the power for the court to appoint a special purpose liquidator arises under s 90-15(1) of Schedule 2, which provides that ‘[t]he court may make such orders as it thinks fit in relation to the external administration of a company.’ Under s 5-15(c) of Schedule 2, a company is taken to be in external administration if (relevantly) a liquidator has been appointed in relation to the company.
The court may make orders under s 90-15(1) on its own initiative or on an application under s 90-20 of Schedule 2. Section 90-20(1)(a) allows for such an application to be made by a person with a financial interest in the external administration of the company. Under s 5-30(a)(ii), a creditor of a company is a person with a financial interest in the external administration of a company.
Section 90-15(3)(c) of Schedule 2 provides that the orders which can be made under s 9-15(1) include ‘an order that another registered liquidator be appointed as the external administrator of the company’.[5]
[5]Emphasis added.
Although the language of s 90-15(1) of Schedule 2 is unconstrained, s 90-15(3) provides non-exhaustive examples of the kinds of orders that can be made and s 90-15(4) sets out a non-exhaustive list of the matters the court may take into account, as follows:
Without limiting the matters which the Court may take into account when making orders, the Court may take into account:
(a)whether the liquidator has faithfully performed, or is faithfully performing, the liquidator’s duties; and
(b)whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and
(c)whether an action or failure to act by the liquidator is in compliance with an order of the Court; and
(d)whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and
(e)the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.
In GDK Projects Pty Ltd v Umberto Pty Ltd (in liq) (GDK Projects),[6] Farrell J said:
The power to make orders conferred by s 90-15(1) contains no equivalent of s 511(2) which permitted the Court to accede to an application “if satisfied that … the exercise of power will be just and beneficial” The power is, in its terms, unconstrained. Section 90-15(4) lists some matters the Court is entitled to take into account but that list is expressed to be “[w]ithout limiting the matters which the Court may take into account when making orders”. In Re Walley (as administrators of Poles & Underground Pty Ltd (admins apptd) and Icon Plant Pty Ltd (admins apptd)) [2017] FCA 486, Gleeson J observed at [41] that the question of whether to exercise the power under s 90-15 of Sch 2 can be answered by reference to principles that applied to the exercise of the discretion under the provisions previously contained in ss 479(3) and 511. I agree that those cases can be a useful guide. Despite the breadth of the power conferred by s 90-15(1), it is difficult to envisage circumstances where the power would be exercised if the Court could not be satisfied that it would be just and unless the applicant had demonstrated sufficient utility to the external administration.
[6][2018] FCA 541, [33].
In Melhelm Pty Ltd v Boka Beverages Pty Ltd (in liq) (Melhelm),[7] Gleeson J observed that
[7](2019) 135 ACSR 95, 104–5 [57]–[59] (footnotes omitted).
It is appropriate to appoint [a special purpose liquidator (‘SPL’)] if:
(1)there are matters that require investigation by a liquidator with a view to possible recovery for creditors;
(2)the current liquidators have insufficient funds and insufficient prospects of obtaining funding to pursue an investigation;
(3)a creditor is prepared to fund investigations and recovery actions but only on the condition that another liquidator be appointed; and
(4)such an appointment would be beneficial to the winding up and the creditors as a whole: Deputy Commissioner of Taxation v Italian Prestige Jewellery Pty Ltd (in liq) (2018) 129 ACSR 115; [2018] FCA 983 (Italian Prestige Jewellery) at [34].
As to the first matter, it is necessary to identify with specificity the “special purposes” (or powers) for which the appointment of the special purpose liquidator is sought: Fitz v Fraser at [90] citing, inter alia, GDK Projects at [2] and Hemisphere Technologies at [22]. Examples of purposes that have been identified as matters for investigation by an SPL include whether any of the directors or officers of a company breached their statutory and or fiduciary duties to the company; whether transactions between the company and a specified third party were voidable transactions within the meaning of s 588FE of the Act; any dealing with an asset owned legally or beneficially by the company to a specified third party; and any claim that the company may have or may have had against a specified third party.
It is not necessary or appropriate to make findings on the potential claims in determining the application for the appointment of the SPLs: GDK Projects at [36]; Italian Prestige Jewellery at [37].
Although it may be appropriate to appoint a special purpose liquidator in the circumstances helpfully described by Gleeson J in Melhelm, it is to be remembered that, as the New South Wales Court of Appeal recently observed in Glenfyne International Holding Limited v Glenfyne Farms International AU Pty Ltd (in liq); Glenfyne International Limited v GI Commercial Pty Ltd (in liq) (Glenfyne International),[8] the language of the section is not so constrained,[9] and regard is to be had to the broad terms of the section and the particular circumstances before the court. In the case of In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) (Hemisphere),[10] Gleeson JA made similar observations,[11] but noting as Farrell J did in GDK Projects,[12] that it is difficult to envisage in the abstract circumstances in which the power would be exercised if the court could not be satisfied that it would be just and of sufficient utility to the external administration to make the appointment.
[8][2019] NSWCA 304.
[9]See also, for example: Manband Pty Ltd (In Liq) (subject to Deed of Company Arrangement) [54]-[56]; and In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002, [20].
[10][2018] NSWSC 1002, [15]-[20] (Gleeson JA).
[11]As have others. See for example: Williams & Kersten Pty Ltd v Walton Construction (Qld) Pty Ltd (in liq) [2019] FCA 1201, [14]-[20] (Reeves J); Melhelm (2019) 135 ACSR 95, 104 [52] (Gleeson J); Weston (Liquidator), in the matter of Leetong Pty Limited (in liquidation) [2020] FCA 372, [62] (Gleeson J).
[12][2018] FCA 541, [33].
Whilst the circumstances in which a special purpose liquidator will be appointed will vary from case to case, a review of the authorities reveals that two common examples are where the liquidator is prevented from investigating or pursuing causes of action which will benefit creditors because of an actual or perceived conflict of interest,[13] or where it has been demonstrated that there are matters that require investigation with a view to possible recovery for creditors in circumstances where it is of utility and just for such matters to be investigated by a different liquidator.
[13]Commonwealth of Australia, in the matter of ACN 093 117 232 Pty Ltd (in liq) v ACN 093 117 232 (in liq) [2018] FCA 1922, [3] (Derrington J); Honest Remark Pty Ltd v Allstate Explorations NL (2006) 234 ALR 765, 779 [58] (Brereton J).
In such cases it has been said that ‘[t]he Court is not called upon to make any final determination about the rights and wrongs of the matter or the allegations made.’[14] Instead, what needs to be demonstrated is ‘that there is a good reason for the appointment of a special purpose liquidator … [which] usually involves the assertion of some suspicion as to the inability of the general purpose liquidator to fully administer the winding up.’[15]
[14]Commonwealth of Australia, in the matter of ACN 093 117 232 Pty Ltd (in liq) v ACN 093 117 232 (in liq) [2018] FCA 1922, [4] (Derrington J).
[15]Ibid.
Matters to be taken into account in relation to whether a special purpose liquidator should be appointed typically include how the special purpose liquidator will be funded, whether the appointment of a special purpose liquidator will burden the company with added costs,[16] and how else the appointment might impact upon the liquidation and potential return to creditors.
[16]See, eg, Commonwealth of Australia, in the matter of ACN 093 117 232 Pty Ltd (in liq) v ACN 093 117 232 (in liq) [2018] FCA 1922, [27] (Derrington J); Onefone Australia Pty Ltd v One.Tel Ltd (in liq) (2003) 48 ACSR 562, 566 [13] (Windeyer J).
For example, in Reidy as Trustee for the PR Mining Superannuation Fund v Contained Gold Pty Ltd,[17] Jackson J stated:[18]
It is fair to say that the matters to be investigated do not yet raise any compelling case of misconduct or strong prospect of recovery. So the Court would be reluctant to authorise that expenditure if there was any prospect that the costs of the investigations and any proceedings would diminish the return to unsecured creditors.
But here, there is no realistic chance of that. Under the proposed deed of indemnity, Mr Reidy will be liable to pay the special purpose liquidators' fees and disbursements. It is true that the deed does not contain any limitation on the ability of the special purpose liquidators to claim their fees and disbursements from the company. But in circumstances where the company has no assets, that is not going to leave unsecured creditors worse off. There is no evidence of any creditor responding to [the present liquidator’s] call for expressions of interest in funding him to investigate. So there will only be any recoveries at all if the special purpose liquidators are appointed. And if the investigations do not result in any recoveries, then the special purpose liquidators will recover their fees from Mr Reidy, or not at all. I have already mentioned how the deed does not disturb the statutory order of priorities or seek to give Mr Reidy any advantage.
So the reality is that there will be no dividend to creditors if the special purpose liquidators are not appointed, and at least the possibility of a dividend if they are appointed. I also take into account that the Court ordered all unsecured creditors to be notified of the application and hearing date, and that has been done. No creditor has come forward to oppose (or support) the application.
The investigation of transactions warranting investigation, and the recovery of funds for the benefit of creditors, are important aims of the statutory winding up regime: see New Cap Reinsurance Holdings Ltd (ARBN 076 137 249) [2001] NSWSC 835 at [15] (Santow J). I am satisfied that the appointment of the special purpose liquidators will help achieve the first of those aims and holds out at least some prospect of achieving the second. Neither aim will be achieved if they are not appointed. The appointment will not expose unsecured creditors to any additional risk or liability. I am satisfied that it is just, and that Mr Reidy has demonstrated sufficient utility to the winding up, so that it will be beneficial to the winding up and to the creditors as a whole.
[17][2020] FCA 268.
[18]Ibid, [43]–[46].
In Re Glenfyne Farms International AU Pty Ltd (in liquidation); Re GI Commercial Pty Ltd (Glenfyne),[19] Rees J observed in reference to the considerations set out in s 90-15(4) of Schedule 2 that ‘[t]hese considerations, albeit not exclusive, suggest that there should be some failure on the part of the liquidator to attend to their duties before an order is made under s 90-15’.[20] However on one view this, with respect, sits in tension with the unconstrained language of s 90-15(1) and the non-exhaustive and permissive terms of s 90-15(4), which was a point made in Glenfyne International by Bell P.[21] It should in my view be taken as being accepted that a failure on the part of the liquidators is not a pre-requisite for the making of an order under s 90-15(1) of Schedule 2, whether in connection with appointing a special purpose liquidator or otherwise.[22] This also sits comfortably with the approach that was taken prior to the introduction of Schedule 2 to the question of whether a special purpose liquidator should be appointed.[23]
[19][2019] NSWSC 161.
[20]Ibid, [52].
[21][2019] NSWCA 304, (Bathurst CJ and Macfarlan JA agreeing). This aspect is elaborated on later in these reasons when addressing one aspect of the plaintiff’s submissions.
[22]See Melhelm (2019) 135 ACSR 95, 112 [105]–[106] (Gleeson J).
[23]See, eg, Re Obie Pty Ltd (in liq) (no 4) (1984) 8 ACLR 967 (Thomas J); Re Spedley Securities Ltd (in liq) (1991) 4 ACSR 555 (Young J); State of Victoria v CTM Training Solutions Pty Ltd (in liq) [2017] VSC 47 [43] (Sifris J).
There is also authority suggesting that a special purpose liquidator cannot be appointed for the purpose of investigating the conduct of a primary liquidator acting in that capacity.[24] Brereton J addressed the topic at some length in Honest Remark Pty Ltd v Allstate Explorations NL and Others (Honest Remark),[25] referring as follows to ‘… the very good reasons why this is so …’:
The investigation of the conduct of a liquidator qua liquidator is not part of the matters entrusted to a liquidator; it is a supervisory function of the court. The court does not readily embark on or permit inquiries into the conduct of liquidators, in the absence of conduct liable to attract sanctions or control for my broadly be described as disciplinary reasons: … As the cases referred to by Mullins J in McDonald show, courts protecting liquidators by refusing to allow them to be the subject of proceedings without leave….
A special purpose liquidator is appointed to coexist with the existing liquidators to fulfil a specific purpose which would otherwise form part of the responsibilities of the original liquidator, but which is carved out from those usual responsibilities because of difficulties in the original liquidator performing it. Because the investigation of the conduct of a liquidator is not part of the matters entrusted to a liquidator, but a supervisory function of the court, an investigation by one of several liquidators into the conduct of another in the liquidation does not involve coming out of the liquidation of part of the ordinary responsibilities of the liquidator. To the contrary, it involves circumventing the ordinary improper procedures for supervision of liquidators, and the protections that attend them.
In my opinion there is no power to appoint a special purpose liquidator for the purpose of investigating the conduct of the original liquidator as such. As has been seen, it is not the duty of the liquidator (or one of several liquidators) to investigate allegations against themselves or some of them… Such an investigation is not part of the administration, and it cannot therefore be carved out of the administration and given to a special purpose liquidator. In the terms used by Chitty J, it is not a matter arising in the course of the liquidation, conduct of which can be allocated to one of several liquidators. In the terms of section 473 (8) of the Corporations Act, it is not a thing required or authorised by the act to be done by liquidator.
[24]See Honest Remark Pty Ltd v Allstate Explorations NL (2006) 234 ALR 765, 777–81 [53]–[68] (Brereton J). See also Commonwealth of Australia, in the matter of ACN 093 117 232 Pty Ltd (in liquidation) [2018] FCA 1922, [33] (Derrington J).
[25](2006) 234 ALR 765, 779–781, [59]–[63].
Although these observations were made prior to the introduction of Schedule 2 and s 90-15, their underlying force appears to continue to resonate in the context of applications for the appointment of special purpose liquidators made pursuant to s 90-15 — at least so far as the exercise of discretion is concerned. Whether or not the same force remains in relation to the question of the court’s power under s 90-15 to make such an order need not be explored given the facts of the present application and the confined nature of the SPL Purposes. If the occasion arises for this issue to be considered in the future, no doubt one of the relevant matters will be the extent to which, if any, the specific review powers set out in subdivision C of Schedule 2 impact upon the proper construction of s 90-15(1) in this regard.
Submissions
Plaintiff’s submissions
The plaintiff submitted that he had standing to bring the application because he was a creditor and therefore a person with a financial interest in the external administration of the Company.
The plaintiff contended that it was both just and of real utility to appoint Messrs Crosbie and Walley as special purpose liquidators. In support of this contention it was submitted, in substance, that:
(a) The evidence of the plaintiff, Mr Sistan and Mr Van Zyl demonstrated genuine and legitimate concern regarding the existence, whereabouts and value of the Investments.
(b) The evidence shows that there are matters that require investigation in relation to the Investments with a view to possible recovery for the creditors.
(c) Messrs Crosbie and Walley are well placed to undertake the task, having provided a scope of works, being experienced practitioners and registered liquidators, and having access to PwC’s international network of offices and colleagues to assist them with the investigations that are required to be undertaken overseas.
(d) The Primary Liquidators have insufficient funds and insufficient prospects of obtaining funding to pursue investigations of the kind that are required. As things stand they are effectively unfunded and therefore the course proposed is the only way that such investigations will be undertaken.
(e) The funding available through the Second Funding Agreement is not funding that is available to the Primary Liquidators.
(f) The appointment is in the interests of the creditors as a whole because it is the only prospect through which the creditors might receive a return.
(g) Proceeding in the way proposed does not carry material risk for unsecured creditors or diminish the possible return to them. This is because, so it was said, the Company has no assets other than the Investments and therefore the unsecured creditors could not be left worse off. Further, Messrs Crosbie and Walley have given undertakings not to seek to obtain their fees, costs and expenses from the property of the Company except to the extent that additional funds or property of the Company are recovered by them in their role as special purpose liquidators.
(h) Because the Primary Liquidators lacked funds to carry out the investigations there was no reasonable likelihood or risk of duplication of work.
(i) The purpose of the appointment has been identified and articulated with sufficient specificity.
(j) In all the circumstances, the appointment is both just and of sufficient utility to the external administration to justify it being made.
With respect to the terms of the appointment, the plaintiff submitted, among other things: that broad orders should be made requiring the Primary Liquidators to cooperate with and assist the special purpose liquidators; that the special purpose liquidators should report to creditors every three months; that the plaintiff’s costs of this proceeding should be costs in the liquidation of the Company; that leave should be granted to allow the special purpose liquidators to apply in this proceeding to extend the purposes of their powers and to apply for approval of any litigation funding agreement pursuant to s 477(2B) of the Act, and otherwise more generally; and that leave should be granted to the plaintiff in the event of him applying to the court for an order pursuant to s 564 of the Act for his costs and expenses incurred in connection with making available money to the special purpose liquidators for them to perform the tasks.
Defendants’ submissions
By their written submissions the defendants confirmed that they did not oppose orders to the substantive effect sought appointing Messrs Crosbie and Walley as special purpose liquidators for the SPL Purposes. In so doing, they made further submissions on a number of matters as follows.
They submitted that it was appropriate to appoint special purpose liquidators because the four criteria referred to by Gleeson J in Melhelm[26] were satisfied and that such a course was open in this case. They further submitted that, contrary to what they understood the plaintiff’s position to be, it was not necessary for the court to make a finding of the failure on the part of the Primary Liquidators as a prerequisite to the appointment of special purpose liquidators. In so doing they relied upon the observations of Gleeson J in Melhelm,[27] and on Glenfyne International.[28]
[26](2019) 135 ACSR 95.
[27]Ibid.
[28][2019] NSWCA 304, [59].
With respect to funding, the defendant agreed that the proposed arrangements do not require the court’s approval pursuant to s 477(2B) of the Act because the agreement is not one that is made or to be made by Messrs Crosbie and Walley, by the special purpose liquidators, or on behalf the Company. With respect to any future funding agreement that may be considered by the special purpose liquidators, the Primary Liquidators submitted that this will be required to be considered by the special purpose liquidators in good faith in the light of the then relevant circumstances.
With respect to the plaintiff’s costs being costs in the liquidation of the Company, the Primary Liquidators observed that the primary orders sought in the proceeding and a significant portion of the plaintiff’s evidence and correspondence between the parties was directed at other relief, including the removal of the Primary Liquidators, and that this part of the proceeding had been dismissed following agreement between the parties. They also made reference to their willingness to consider consenting to or not opposing the appointment subject to understanding the funding arrangements. In these circumstances the Primary Liquidators submitted that the appropriate course was to make no order as to costs of the proceeding and they said that they would not seek to obtain their costs from the plaintiff.
In the alternative, the Primary Liquidators submitted in their written submissions that if the court was minded to make costs orders then it would be appropriate for the plaintiff’s costs to be paid from the special purpose liquidation and not the general purpose liquidation, and that the Primary Liquidators’ costs of the proceeding should be paid by the plaintiff because the evidence supports the conclusion that they acted reasonably at all times in respect of the plaintiff’s application.
Insofar as the plaintiff proposed that orders be made granting leave in connection with the possible future application under s 564 of the Act, the Primary Liquidators initially submitted that no such order was necessary or appropriate, although ultimately they did not oppose it. They also submitted that rather than just acknowledging the undertaking from the proposed special purpose liquidators regarding recovery of their fees, it would be preferable for the court to make an order to the effect of the undertaking.
Consideration and disposition
Having regard to the evidence, the submissions, the relevant provisions, and the principles and observations earlier referred to, I am satisfied that an order should be made appointing Messrs Crosbie and Walley as special purpose liquidators of the Company (SP Liquidators) for the SPL Purposes. There is material utility in making the appointment and it is just to do so in the circumstances. I elaborate below, after which I address some specific matters regarding the terms of the appointment and the orders proposed.
There is no doubt that the plaintiff has standing to bring this application. He is a creditor and therefore a person with a financial interest in the external administration of the Company within the meaning of s 5-30 of Schedule 2.
The evidence relied upon, and particularly that of the plaintiff, established that the existence and value of the Investments is something that warrants investigation. The concerns expressed by the plaintiff regarding the need for investigation are shared by other creditors, as is apparent from the affidavits of Mr Van Zyl and Mr Sestan.
That there is a basis for seeking to investigate such matters is also underscored by: the substantial value of the Investments as recorded in the books of the Company; the failure of the Company to make payments into the Deed Fund on the dates contemplated by the terms of the DOCA (or at all) prior to its termination; the limited information available to the plaintiff and the Primary Liquidators regarding the existence and value of the Investments; the creditors not having recovered any amounts to date notwithstanding the stated book value of the Investments and the terms of the DOCA that provided for relevant creditors to receive 100 cents in the dollar plus interest; the absent or limited information regarding what appears may have been a stalled or failed sale process in relation to the Investments; and the proposed scope of work addressed by Mr Crosbie in his affidavit.[29]
[29]It is neither necessary nor desirable to elaborate further regarding the evidence relating to such matters this application.
This is forcefully reinforced by the position of the Primary Liquidators. They do not speak against the need or desirability for further investigation and do not oppose the appointment of the SP Liquidators. It is also common ground that the Primary Liquidators have not been in a position to carry out investigations of the character now proposed, noting in this regard that they are in substance unfunded and that such funding as is to be available to the SP Liquidators is not available to the Primary Liquidators.
That said, establishing a basis for investigating the Investments is to say nothing as to that which may or may not be found upon investigation. This is a matter for another day and is not something that it is appropriate or necessary for the parties or the court to explore or speculate further about on this application.
As originally framed, the Originating Process and proposed orders appeared to include within the proposed appointment of the SP Liquidators a broader purpose that included the SP Liquidators investigating the conduct of the Primary Liquidators and the existence or otherwise of possible claims against them or against the Company itself, in respect of the Investments, the administration, the DOCA or the liquidation and other matters. Ultimately the application narrowed so as to exclude such matters and it is therefore not necessary to say anything further on the topic, although attention will need to be given to aspects of the orders proposed to ensure that such broader purposes are not inadvertently captured.[30]
[30]In this context and for completeness I also refer to the observations of Brereton J in Honest Remark previously mentioned and draw attention to the specific and tailored provisions and powers in Subdivision C of Schedule 2 that address the appointment of a reviewing liquidator by ASIC or the court.
The SP Liquidators are registered liquidators. They have been dealing with the plaintiff’s solicitors in connection with the application and consent to the appointment in circumstances where they have already considered the nature and scope of works required. Because part of the investigations are to take place in a number of countries it is apparent, and I accept, that the SP Liquidators are well placed to undertake that which is involved because they are each partners of PwC and have access to PwC’s global network of offices in various relevant countries. The Primary Liquidators properly recognised as much.
With respect to funding it was common ground that the Primary Liquidators do not have the funds to pursue the investigations and that there is no suggestion that such funds may or will become available. Further, such funding as is available through the Second Funding Agreement to meet the costs and expenses of the SP Liquidators,[31] appears on the evidence to be sufficient to undertake the proposed investigation. As the plaintiff submitted, if the appointment is not made the Primary Liquidators will not be in a position to carry out investigations of the kind contemplated, which is to the disadvantage of the creditors as a whole.
[31]It is not necessary for present purposes to address the terms of this confidential funding agreement.
Although the SP Liquidators are not party to the funding agreement with the plaintiff, they have satisfied themselves that the payment of their costs and expenses can be met through these funds and in a way so as not to draw upon the funds or assets of the Company.[32] Mr Crosbie also stated in his affidavit that he was authorised to make the affidavit on behalf of Mr Walley and that they each ‘… [u]ndertake that we will not seek to recover our fees and expenses of the investigations out of the funds or the property of [the Company …’]. He further stated that if any potential claims were uncovered and pursued he and Mr Walley would recover their fees and expenses from the terms of a funding agreement to be entered into with a litigation funder or third party in the future, or otherwise from the recovery that is obtained from any such claims, but not out of any other funds or property of the Company.
[32]Subject to additional funds being recovered as a result of the investigations.
Given that the undertakings have been given in what are currently unsworn affidavits due to the COVID 19 social distancing restrictions and only in the affidavit of Mr Crosbie, I accept the defendants’ submission that it is also appropriate to make orders to substantially the same effect as the undertakings, which I note is a course not resisted by the Plaintiff.
There is no suggestion of materially relevant duplication with work carried out or to be carried out by the Primary Liquidators. Further, it is not intended that the work to be undertaken by the SPL Liquidators also be undertaken by the Primary Liquidators.
In these circumstances the plaintiff submitted, and I accept, that there is no sound basis for concern that the costs and expenses involved in the appointment of the SP Liquidators will diminish the return to unsecured creditors. This is underscored by the fact that the Investments are the Company’s only real assets and the evidence that, as things stand, it appears that the unsecured creditors may receive nothing. The carrying out of the investigations by the SP Liquidators through the funding arrangements proposed can be seen to be beneficial to the winding up and the creditors as a whole. As the plaintiff submitted, on the evidence before the court it is difficult to see how the creditors could be worse off by appointing the SP Liquidators in the circumstances proposed, or how they might otherwise receive a return in the liquidation.
Plainly there is utility in the appointment.
Because at this stage the SP Liquidators have not entered into and do not propose to enter into a funding (or other) agreement on behalf the Company, no issue of approval pursuant to section 477(2B) of the Act arises. Consequently, it is not necessary to address the procedural and timing issues that sometimes arise when the entry into such agreements are contemplated but the appointment of the special purpose liquidator has not yet occurred so that s 477(2B) is incapable of being engaged. The practical ways in which these matters can sometimes be legitimately addressed can be put to one side.
If, as the SP Liquidators appear to contemplate, circumstances may arise where it is appropriate for the SP Liquidators to consider seeking funding to pursue claims or other steps in that capacity in the future, then as the parties acknowledged, that will be a matter for the SP Liquidators properly to consider in accordance with their obligations and duties as and when that arises and in the light of the then prevailing circumstances. How they may or may not act cannot and ought not to be determined in advance or in the abstract, noting that the circumstances that may come to pass cannot now be foreseen or predicted. No doubt, as registered liquidators, the SP Liquidators will remain conscious of these important matters. Should it become necessary or appropriate for the SP Liquidators to make applications to the court pursuant to s 477(2B) of the Act or otherwise in the future then such applications will be dealt with appropriately by the court at that time, but in the meantime there is little utility in speculating or exploring with the parties that which may or may not come to pass in the weeks and months to follow.
Insofar as the plaintiff pressed its submission that ‘… there should be some failure on the part of the liquidator to attend to his or her duties before an order is made’,[33] I do not accept that submission. The terms of s 90-15(1) of Schedule 2 do not contain or import such a requirement and the language of s 90-15(4) is non-exhaustive and permissive. I also refer in this regard to the New South Wales Court of Appeal’s observations on this topic in Glenfyne International earlier referred to,[34] and to the prior decision of Black J in Re Manband Pty Ltd (In Liq) (subject to Deed of Company Arrangement).[35]
[33]Plaintiff’s written submission [27].
[34][2019] NSWCA 304.
[35][2018] NSWSC 1282 [19].
For completeness I add that it is not at all clear to me that the observations of Rees J at first instance in Glenfyne were intended to convey a firm view that the existence of some failure on the part of the liquidator was a necessary precondition to the exercise of the power under s 90-15.[36] So much also appears to have been considered by Bell P when addressing the appeal in Glenfyne International, noting that his Honour’s observations in this context were introduced by a qualified premise as follows:
… insofar as the primary judge held at [52] of her judgment that s 90-15 requires some failure on the part of an external administrator to attend to his or her duties in order for the power contained in that sub-section to be engaged, I disagree (although it is no doubt the case that where there has been such a fault or failing, there may be a stronger case for the exercise of the power which s 90‑15 vests in the court).[37]
[36]And as referred to in Melhelm at [54].
[37]Glenfyne International [59], Bathurst CJ and Macfarlan JA agreeing (emphasis added).
In any event, and for the avoidance of doubt, for the purposes of this application I have proceeded on the assumption that the Primary Liquidators have carried out their duties in the way that the law requires and I have not considered or determined whether or not there has or may have been ‘… some failure on the part of the [L]iquidator[s] to attend to [their] duties ...’. Understandably no issue of this kind was ultimately pressed before the court on this application, and even if it had been, given the conclusion reached it would not have been necessary to determine it for present purposes.[38]
[38]Noting also that the plaintiff’s application to have the Liquidators removed was dismissed by orders agreed between the parties and made on 8 May 2020.
Having determined that it is appropriate to appoint the SP Liquidators, I turn to the proposed terms and orders. The precise terms of the orders will be further addressed with the parties, but in the light of submissions made on various matters, I make the following observations.
I accept that in substance the SPL Purposes proposed are sufficiently specific, noting also that it is not a matter with which the Primary Liquidators take issue. As addressed during the hearing with counsel, the final form of the orders will need to be tailored to ensure that they are not broader than intended and do not inadvertently capture investigating the conduct of or the making of possible claims against the Primary Liquidators in their current or previous capacities, or the making of possible claims against the Company itself.
Notwithstanding the able submissions of counsel for the plaintiff, I am not persuaded that it is necessary or desirable to make in the abstract a specific order expressly requiring the Primary Liquidators to cooperate, assist generally, provide documents and other things, and take certain steps. The Primary Liquidators and the SP Liquidators are aware of their general obligations as registered liquidators and each are looking to benefit the winding up and the creditors as a whole. Each can be expected to act reasonably and appropriately and I do not regard it as necessary or desirable to impose by court order at this stage broad open-ended obligations upon the Primary Liquidators that are indeterminate in duration, content, and context. The fact that similar orders have been made in other circumstances in other cases is neither persuasive nor to the point in the present circumstances. As the parties acknowledged, there is no evidence to suggest that the Primary Liquidators will not act reasonably or cooperate where appropriate. As things stand such broad-based orders are not necessary, noting also that at least the Primary Liquidators accepted as much. If a particular issue arises in the future that cannot be resolved directly between the SP Liquidators and the Primary Liquidators, there are mechanisms available to the SP Liquidators and the Primary Liquidators to assist in resolving such matters.
Similarly, it is apparent that the Primary Liquidators are not carrying out the investigations into the Investments and other steps for the SPL Purposes and that this now falls to the SP Liquidators. At least at this stage it is not in my view necessary to include an order specifically prohibiting the Primary Liquidators from taking any step in relation to the SPL Purposes. So to do may have unforeseen consequences and may also cut across the co-operation and assistance that the plaintiff submitted should be provided by the Primary Liquidators in any event. Again I note that the Primary Liquidators do not regard such an order to be necessary and I observe that the plaintiff submitted in the alternative that such an order should not be made if the court was not minded to make a ‘cooperation and assistance order’ of the kind discussed in the preceding paragraph.
Initially the plaintiff proposed that the SP Liquidators report to creditors every six months, which following exchanges with counsel for the plaintiff, has been reduced to every three months. For present purposes that appears satisfactory.
If the SP Liquidators propose to consider reporting to others, including any third party funder who has a funding agreement with the plaintiff, they will need to be conscious of their role and responsibilities. I say nothing in the abstract at this point as to the appropriateness or otherwise of such a course, it being a matter to which the SP Liquidators will need to give proper and informed consideration and take advice as appropriate. I also say nothing as to the character or status of any communications that might emanate from or be received by the SP Liquidators in such circumstances. Again, this appears to be a further matter that the SP Liquidators will need to consider carefully should such a course be contemplated in the future.[39]
[39]As aspects of Mr Crosbie’s evidence suggested might occur.
I do not propose to grant leave to the SP Liquidators to make applications of any kind in this proceeding in respect of matters that may arise in the special purpose liquidation in the future, whatever they may be. If the SP Liquidators consider it necessary or appropriate to make applications in the future they can do so in the ordinary way through well-established Commercial Court processes. If they inform the Commercial Court Registry that the proceeding is connected with this proceeding it will likely find its way to the same List. The risk of feared inefficiencies is low and as things stand the SP Liquidators are not parties to this or any connected proceeding and do not currently seek any orders from the court.
I also do not propose to grant the plaintiff leave in respect of any future application that may or may not be made by him in unknown circumstances at an unknown time pursuant to s 564 of the Act in respect of what were described as the plaintiff’s ‘… costs and expenses in respect of his making available money to the SPLs for them to perform their tasks…’.[40] It is not altogether clear what is intended to be contemplated by this description or what the grant of leave is said to result in. If proceedings or applications of this character are to be made in future they can be addressed in the ordinary way. I do propose to reserve liberty to the plaintiff to apply so that it will not be necessary, at least in the first instance, to file any new originating process. In practical terms this should address the costs concern raised by the plaintiff.
[40]Paragraph 6 in the plaintiff’s proposed orders, Attachment A to the outline of submissions filed on 19 May 2020.
Although the parties made substantive submissions regarding costs in their written submissions in the way referred to above, at the hearing the parties suggested that costs could be reserved for another day so that they can be determined at a future date if funds are recovered through the special purpose liquidation. This position was taken notwithstanding that both parties accepted that the future recovery of funds was not germane to the costs determination — as was consistent with the position taken in their respective written submissions regarding costs. Noting that the court might favour determining the question of costs as the parties had originally submitted should occur, submissions were addressed in the alternative.
It is cost effective and efficient to address the costs issues now rather than to put them off to an indeterminate date in the future pending the possible occurrence of events not considered to be germane to the costs issues.
I do not accept that an order should be made that all of the plaintiff’s costs of the proceeding be costs in the liquidation of the Company. As the defendants submitted, it is apparent from the filed documents and the affidavit material that the proceeding as originally brought and pursued was a much broader action, with a large part of its focus being on the conduct of the Primary Liquidators during the liquidation and in their previous capacities. That is not a criticism of the course adopted but it is relevant to costs. Noting that a dismissal order was put forward by the parties and made in relation to other aspects of the relief without adjudication on the merits on the basis that the SP Liquidators would be appointed, there is in my view no principled basis upon which such costs should be ordered to be costs in the liquidation — noting also that the allegations were denied and were to be strongly contested by the Primary Liquidators.
However, the plaintiff’s claim for his alternative relief has been successful. It is therefore appropriate in the circumstances that part of the costs of the plaintiff should be costs in the liquidation. Contrary to my preliminary observations, I am persuaded by the plaintiff that 50% rather than 30% of the plaintiff’s costs of the proceeding up to and including the day before the first directions hearing should be costs in the liquidation, and that all of the plaintiff’s costs of and incidental to the proceeding from that date should be costs in the liquidation.
It will be apparent from the above that I do not accept the defendants’ submission that the correspondence that passed between the parties in advance of the commencement of the proceedings should deprive the plaintiff of an order regarding costs, or that it be confined to the special purpose liquidation. Seeking to appoint a special purpose liquidator is and was a reasonable course for the plaintiff to take and the run of the correspondence did not clearly convey that consent or non-opposition was likely if funding details were provided — which is not to suggest that the request for funding information was unreasonable or misplaced. Further, even if such a likelihood of consent had been conveyed, the plaintiff would have been required to make the application to the court in any event. In addition, since the first directions hearing the plaintiff has sought to deal with the application and related matters proactively and efficiently and his application has met with success.
With respect to the defendants’ costs, I do not accept the submission that the plaintiff should pay the defendants’ costs of the proceeding. The plaintiff’s other claims were dismissed effectively by consent without adjudication on the merits and on the basis that a special purpose liquidator would be appointed, as is now to occur. As I have said, it was appropriate for the plaintiff to bring the application for a special purpose liquidator before the court and to join the Primary Liquidators. It was not apparent until the first directions hearing that the defendants proposed to take the more benign course that they ultimately did, as is also evidenced by their application to have the entire proceeding transferred to New South Wales and the related affidavit material. That application was dismissed by consent with no order as to costs. Further, and as the plaintiff pointed out, the first defendant’s affidavit made clear that the evidence was addressing the transfer application and not the matters raised in connection with the alleged wrongful or inadequate conduct of the Primary Liquidators.
In all the circumstances it is appropriate that, as between the plaintiff and the defendant, there be no order as to the costs of the proceeding.
That said, it is appropriate that the defendants’ costs of and incidental to the proceeding, other than the defendants’ costs of and incidental to their cross-vesting application, be costs in the liquidation. That course was not opposed by the plaintiff, as was appropriate.
I propose to make orders to the effect referred to below, although I will address the final form of orders with the parties. I will reserve liberty to the parties to apply and also reserve liberty to apply to anyone with a sufficient interest in relation to the confidentiality orders made on 1 and 8 May in respect of the First Funding Agreement and the confidentiality order to be made in respect of the Second Funding Agreement.
The orders proposed to be made are as follows:
1 Pursuant to section 90-15(1) of the Insolvency Practice Schedule, Schedule 2 to the Corporations Act 2001 (Cth) (Act) (Schedule 2), Mr Crosbie and Mr Walley of PricewaterhouseCoopers be appointed as special purpose liquidators (Special Purpose Liquidators) of the third defendant, Aus Streaming Limited (in liquidation) (ACN 600577 348) (Aus Streaming), for the purpose of:
(a) conducting investigations into any of the matters set out in the schedule to these orders (Schedule),[41] including by:
[41]Schedule not included in these reasons.
(i) inspecting the books and records of Aus Streaming;
(ii) if they consider it necessary and appropriate, applying to the court for orders to allow them to conduct public examinations pursuant to ss 596A and 596B of the Act and applying to the court for orders to allow them to obtain production pursuant to s 597(9) of the Act or the relevant provisions of the Rules; and
(iii) requiring statements to provided pursuant to s 475(2) of the Act,
(b) investigating, commencing and prosecuting any claims against any person other than one or more of the defendants in respect of the matters set out in the Schedule, including commencing any legal proceedings, that may be available to Aus Streaming or to them, including obtaining and considering legal advice in respect of pursuing any such claim, that they may determine should be pursued for the benefit of the winding up of Aus Streaming and Aus Streaming’s creditors as a whole;
(c) taking any steps in relation to the matters set out in the Schedule to these Orders, including by commencing legal proceedings against any person other than the defendants, to preserve or to protect the investments of Aus Streaming, or investments to which Aus Streaming or the Special Purpose Liquidators claim to be entitled;
(d) exercising any powers conferred on liquidators by ss 477 and 506(1)(b) of the Act, including the power to seek relief under s 1317H of the Act against any person other than the defendants, in relation to any matters set out in the Schedule.
2 Pursuant to section 90-15 of Schedule 2, the Special Purpose Liquidators shall, in accordance with the provisions of the Act, report to creditors of Aus Streaming and the general purpose liquidators on the terms of their appointment as soon as practicable after their appointment and at least once every three months during the course of their appointment.
3 Any costs or expenses incurred by, or approved remuneration payable to, the Special Purpose Liquidators are not to be paid from any property of Aus Streaming except that which the Special Purpose Liquidators recover as a consequence of the actions they have specifically been appointed to undertake pursuant to these orders.
4 Subject to further order, the funding letter of offer dated 18 May 2020 a copy of which comprises pages 50 to 55 of Exhibit CDC-1 to the affidavit of Craig David Crosbie filed on 19 May 2020 shall be kept confidential and not be disclosed to any other person except for the plaintiff, the defendants and their solicitors and counsel.
5 With respect to the costs of the proceeding:
(a) 50 per cent of the plaintiff’s costs of the proceeding up until and including 30 April 2020 and all of the plaintiff’s costs of and incidental to the proceeding thereafter to date, shall be costs in the liquidation;
(b) the defendants’ costs of and incidental to the proceeding, other than the defendants’ costs of and incidental to their application by summons filed on 29 April 2020 shall be costs in the liquidation; and
(c) otherwise there be no order as to costs.
6 The parties to this proceeding have liberty to apply.
7 Liberty to apply is reserved to persons showing a sufficient interest in relation to the confidentiality order in paragraph 4 of these orders and the confidentiality orders made in this proceeding on 1 and 8 May 2020.
SCHEDULE OF PARTIES
BETWEEN: S ECI 2020 01581
| PETRUS CASPARDUS STEPHANUS HELBERG | Plaintiff |
| - and - | |
| RONALD JOHN DEAN-WILLCOCKS | First Defendant |
| CAMERON HAMISH GRAY | Second Defendant |
| AUS STREAMING LIMITED (IN LIQUIDATION) ACN 600 577 348 | Third Defendant |
Date: 29 May 2020
6
19
0