Owen, in the matter of Rivercity Motorway Management Limited (in Liquidation) (No 2)
[2016] FCA 708
•6 June 2016
FEDERAL COURT OF AUSTRALIA
Owen, in the matter of Rivercity Motorway Management Limited (in Liquidation) (No 2) [2016] FCA 708
File number: QUD 481 of 2014 Judge: GREENWOOD J Date of judgment: 6 June 2016 Catchwords: CORPORATIONS – consideration of an application under ss 477(2B) and 511 of the Corporations Act 2001 (Cth) giving directions to liquidators to enter into a Settlement Deed of substantial litigation and carry out the terms of the Deed – consideration of an application for approval to enter into and carry out the terms of the Settlement Deed Legislation: Corporations Act 2001 (Cth), ss 477(2B), 506 and 511 Date of hearing: 6 June 2016 Date of last submissions: 6 June 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 13 Counsel for the Applicants: M Hoffmann QC and J Green Solicitor for the Applicants: Johnson Winter Slattery Counsel for Stephen Hopkins: M Pesman SC Solicitor for Stephen Hopkins: Maurice Blackburn Solicitor for Rivercity Motorway Asset Nominee Pty Ltd: Gilbert and Tobin Solicitor for Rivercity Motorway Pty Ltd: Gilbert and Tobin Counsel for AECOM Australia Pty Ltd: M Steele SC Solicitor for AECOM Australia Pty Ltd: Baker & McKenzie
Table of Corrections 15 June 2016 In the Appearances on the cover page in the field Counsel for the Applicants the words "and J Green" after "M Hoffmann QC" have been added. ORDERS
QUD 481 of 2014 IN THE MATTER OF RIVERCITY MOTORWAY MANAGEMENT LIMITED (IN LIQUIDATION) ACN 117 343 361
MICHAEL ANDREW OWEN, STEPHEN JAMES PARBERY AND CHRISTOPHER CLARKE HILL IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF RIVERCITY MOTORWAY MANAGEMENT LIMITED (IN LIQUIDATION) ACN 117 343 361 (and others named in the Schedule)
First Applicant
JUDGE:
GREENWOOD J
DATE OF ORDER:
6 JUNE 2016
THE COURT ORDERS THAT:
1.Confidentiality orders be made in terms of proposed amended draft orders to be submitted by the solicitors for the applicants to the Chambers of the Honourable Justice Greenwood for considering and initialling should those orders be in the form as discussed in the course of the hearing of the application on 6 June 2016.
2.Orders be made in accordance with the orders sought by paras 1, 2 and 3 of the application filed on 3 June 2016 in the terms of draft orders to be submitted to the Chambers of the Honourable Justice Greenwood for considering and initialling on the footing of the form of orders discussed in the course of the hearing of the application on 6 June 2016.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
GREENWOOD J:
This is an application by Michael Andrew Owen, Stephen James Parbery and Christopher Clarke Hill in their capacities as joint and several liquidators of Rivercity Motorway Management Limited (In Liquidation) ACN 117 343 361, (“RCMML”) and the other entities described in the Schedule. The application is made under ss 477(2B) and 511 of the Corporations Act 2001 (Cth) (the “Act”) and other grounds of jurisdiction in relation to the substantive questions in issue.
The applicants seek a direction pursuant to, put simply, s 511 of the Act that it is a proper exercise of the applicants’ powers and functions as liquidators of RCMML (both in its own capacity and as responsible entity of the Rivercity Motorway Holding Trust (“RCMHT”) and the Rivercity Motorway Investment Trust (“RCMIT”) (together called the “Trusts”), first, to enter into a Settlement Deed dated 31 May 2016 exhibited to the affidavit of Michael Andrew Owen sworn 3 June 2016, and cause and permit RCMML to enter into the Settlement Deed; and second, to carry out and cause RCMML to carry out obligations under the Settlement Deed.
The applicants also seek an order pursuant to s 477(2B) of the Act approving the applicants’ entry into the Settlement Deed on RCMML’s behalf (both in its own capacity and as responsible entity for the Trusts.)
The applicants also seek confidentiality orders in relation to particular documents.
Leave has been given to a number of parties to appear in support of the orders sought by the applicants. Those parties are Mr Stephen Hopkins, the applicant in the “Hopkins Proceedings” (NSD 757 of 2012) commenced in the Federal Court of Australia; the Receivers and Managers appointed to Rivercity Motorway Asset Nominee Pty Ltd and Rivercity Motorway Pty Ltd; and AECOM Australia Pty Ltd.
I have examined the very extensive material in support of the application and discussed the various issues with Mr Hoffman QC. In relation to the confidentiality orders sought by the applicants, orders will be made preserving the confidentiality of the affidavit of Michael Andrew Owen of 3 June 2016 and the exhibit to that affidavit, MAO-3, which has many tabs within it. So, that order represents a confidentiality order in respect of the entirety of the material exhibited to the affidavit. The draft confidentiality orders will be amended and submitted to my Associate to take account of appropriate cross-references as some of the paragraphs of Mr Owen’s affidavit will be available for public inspection and the order will necessarily need to take account of that in a proper form.
There will also be redacted written submissions which will be available for persons to examine. However, unredacted submissions have been put before me containing material which is plainly sensitive, confidential, arises out of the mediation and reflects other disclosures in relation to the insurer’s position and other matters. Some redactions to those submissions are necessary at least until the settlement is effected and perhaps for a longer period as well. As to those matters, an amended order will be sent to my Associate.
As to the substantive orders, I am satisfied that it is appropriate to make orders in the terms that have been foreshadowed to the parties to whom leave has been given and as sought by the applicants. Thus the court will make orders which provide for the relevant directions and the necessary approval under s 477(2B) of the Act and s 511 taking account of other relevant provisions of the Act.
In a matter like this, it is very difficult to give exposed reasons, ex tempore or otherwise, in support of the making of the orders having regard to the confidentiality of the information necessarily material to the exercise of the Court’s discretion. What is contemplated is that the matter will be brought back to the court at an appropriate time to examine the scope of the confidentiality orders once the settlement has taken effect. It will be likely then that there will be aspects of the matter which would not necessarily need to be the subject of continuing confidentiality orders and thus a revision to those orders will be considered at that time. However, for present purposes, at this particular strategic moment, it is necessary to retain the confidentiality orders in their expansive form at least until settlement has been effected.
It is sufficient enough for me, for present purposes, to say that in relation to the application before me, I have had the benefit of reading all the material and particularly the most recent affidavit of Mr Owen sworn 3 June 2016 which is contextually related to other affidavits for definitional matters and other things. I have had regard to the earlier affidavits which I examined quite carefully and closely on the previous occasion. It is sufficient enough for me to say, for present purposes, that having regard to Mr Owen’s most recent affidavit, and in particular paragraphs 13 to 19 of that affidavit; the relevant financial matters, and those parts of the affidavit beginning at paragraph 50 and following, support the exercise of the court’s discretion in making orders today.
Of course, I have had regard to all of the factual matters put on in relation to the mediation which was conducted over some time to try and resolve what are plainly highly integrated difficult and complex matters. The parties are to be congratulated in reaching a settlement of all of the various matters.
Accordingly, Mr Hoffman, if your side submits the substantive orders to my Associate, I will initial them. I will also initial the amended confidentiality orders taking up the changes discussed earlier.
At the relevant moment in time, the matter will be relisted before me to reconsider, in an overview sense, whether or not these confidentiality orders are to be sustained in the long term.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 6 June 2016
SCHEDULE OF PARTIES
QUD 481 of 2014 Applicants
Second Applicant: RIVERCITY MOTORWAY PTY LTD ACN 116 665 304 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
Third Applicant: RIVERCITY MOTORWAY ASSET NOMINEE 2 PTY LIMITED (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 117 406 158
Fourth Applicant: RIVERCITY MOTORWAY ASSET NOMINEE PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 117 139 714
Fifth Applicant:
RIVERCITY MOTORWAY FINANCE PTY LIMITED (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 117 139 303
Sixth Applicant:
RIVERCITY MOTORWAY HOLDINGS PTY LIMITED (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 117 279 188
Seventh Applicant:
RIVERCITY MOTORWAY CONSTRUCTION PTY LIMITED (IN LQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 117 139 554
Eighth Applicant:
FLOW TOLLING PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 134 967 356
Ninth Applicant:
RIVERCITY MOTORWAY SERVICES PTY LIMITED (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 117 139 992
Tenth Applicant:
RIVERCITY MOTORWAY RE HOLDINGS PTY LTD (IN LIQUIDATION) ACN 133 419 637
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