Re Gunns Plantations Ltd (No 1)
[2012] VSC 655
•19 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST
No. S CI 5485 of 2012
| IN THE MATTER OF GUNNS PLANTATIONS LIMITED (ADMINISTRATORS APPOINTED) (RECEIVER AND MANAGERS APPOINTED) | |
| DANIEL MATHEW BRYANT, IAN MENZIES CARSON and GREG DAVID CROSBIE (in their capacities as the joint and several administrators of GUNNS PLANTATIONS LIMITED (ADMINISTRATORS APPOINTED) (RECEIVER AND MANAGERS APPOINTED) and GUNNS PLANTATIONS LIMITED (ADMINISTRATORS APPOINTED) (RECEIVER AND MANAGERS APPOINTED in its capacity as responsible entity of the managed investment schemes listed in the schedule hereto | Plaintiffs |
| v | |
| AUSTRALIAN EXECUTOR TRUSTEES LIMITED as trustee for the AUSTRALIAN FORESTRY PLANTATIONS (RECEIVERS AND MANAGERS APPOINTED) and WESLEY VALE ENGINEERING PTY LTE (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) as trustee for the AUSTRALIAN FORESTRY PLANTATIONS TRUST NO 2 (RECEIVERS AND MANAGERS APPOINTED) | First and second defendants |
| THE TRUST COMPANY (AUSTRALIA) LIMITED as trustee of the FORESTRY INVESTMENT TRUST | Third defendant |
| VP PASTORAL PTY LTD, ALISON FAIRLIE NAPIER as trustee of the ESTATE OF ALAN NAPIER and BROCKLANDS PTY LTD | Fourth, fifth and sixth defendants |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November, 10, 11 and 12 December 2012 | |
DATE OF JUDGMENT: | 19 December 2012 | |
CASE MAY BE CITED AS: | Re Gunns Plantations Limited (No 1) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 655 | |
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CORPORATIONS – Forestry Managed Investment Scheme – Application by administrators for extension of rent-free grace period under s 443B of Corporations Act 2001 (Cth) – Extension opposed by landlords – Balance of convenience favours creditors over landlords – Extension granted – Court’s power to order landlords be given priority by order under s 477A of Corporations Act 2001 (Cth) – Landlords unlikely to rent property during extended grace period and so inappropriate for s 477A order – Directions s 477D of Corporations Act 2001 (Cth) that administrators acting reasonably and properly and within power – Corporations Act 2001 (Cth), s 443B, s 477A, s 477D.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiffs | Mr JG Santamaria QC with Dr O Bigos | Arnold Bloch Leibler |
| For the First and Second Defendants | E Woodward SC with MP Costello | Minter Ellison |
| For the Third Defendant | JAC Potts | Clayton Utz |
| For the Fourth, Fifth and Sixth Defendants | HNG Austin | Rae and Partners |
HIS HONOUR:
Introduction
Mr Bryant, Mr Menzies and Mr Crosbie are the administrators of the Gunns Group of Companies. They were appointed on 25 September 2012. They control Gunns Plantations Limited (GPL), in its capacity as responsible entity of several managed investment schemes. The receivers and managers of the Gunns Group of Companies, who were also appointed on 25 September 2012, control the other companies in the Gunns Group.
By an interlocutory process dated 26 November 2012, the administrators apply for:
(a) an extension of the ‘grace period’ given to administrators under s 443B of the Corporations Act 2001 (Cth) (Corporations Act, or, the Act) before they become personally liable for rent and other amounts owed under leases of property used in managed investment schemes operated by GPL;
(b) directions in relation to lessors being indemnified out of scheme property for the rent and other amounts (to be secured by an equitable lien) for the rent and other amounts for which the administrators would otherwise have been personally liable; and
(c) directions in relation to the administrators carrying out of functions in respect of scheme property, and their ability to be indemnified out of the scheme property for their reasonable expenditure and remuneration in doing so, secured by an equitable lien.
The managed investment schemes and the leases
GPL is the responsible entity of 21 registered managed investment schemes. The purpose of 18 of the schemes is the commercial cultivation and harvest of trees for the commercial sale of timber (Forestry Schemes); the remaining three are wine grape schemes that are not relevant to this application. The members of the schemes are described as Growers. The schemes are regulated under Chapter 5C of the Corporations Act.
The Forestry Schemes can be classified into two groups:
(a) the nine Gunns Woodlot Schemes, of which there was one established in each year from 2000 to 2009 (except 2007) – these were established by GPL and have terms of up to 25 years;
(b) the nine Great Southern Schemes, of which there was one established in each year from 1998 to 2006 – these were established by Great Southern Managers Australia Limited and have terms of approximately 12 years - when Great Southern went into liquidation and receivership in 2009, GPL agreed to become the replacement responsible entity thereby ‘taking over’ those schemes through a process supervised by the Court).
Each Forestry Scheme is governed by a constitution, and other scheme documents such as (in the case of the Gunns Woodlot Schemes) a forestry rights deed and a management agreement between the responsible entity and each Grower, or (in the case of the Great Southern Schemes) a lease and management agreement and land interest between the responsible entity and each Grower. There are approximately 35,000 Growers who hold approximately 49,000 investments.
The Forestry Schemes are conducted on a total of about 226,000 hectares of hardwood and softwood forestry plantations in locations spread over every state of Australia. The land is owned either by other companies in the Gunns Group (which are controlled by the receivers and managers) or by external parties. GPL does not own the land. GPL leases or sub-leases the land from the relevant landlord, and in turn sub-leases or sub-sub-leases parcels of land (known as woodlots) to Growers.
There are about a thousand leases which relate to the land on which the Gunns Woodlot Schemes are conducted. The major landlords are Gunns Ltd (controlled by the receivers), Associated Forest Holdings Pty Ltd (a company in the Gunns Group, also controlled by the receivers) and Forestry Tasmania (a government entity). There are about 550 leases which relate to the land on which the Great Southern Schemes are conducted. The major landlord is New Forests Trust.
Extension of the s 443B grace period
Section 443B of the Corporations Act imposes liability on a company’s administrator, in certain circumstances, for rent owing under a lease entered into by the company prior to the administration commencing. The administrator has a five business day grace period before that liability arises, and may avoid liability altogether by giving notice to the lessor during the grace period that the company will not exercise rights in relation to the leased property.[1]
[1]Silvia v FEA Carbon Pty Ltd (2010) 185 FCR 301, [1].
On 2 October 2012, this Court granted the administrators an extension of the grace period until 30 November 2012. On 29 November 2012, the Court granted a further extension of the grace period until 10 December 2012 or until the hearing and determination of the interlocutory application (whichever is the later).
The rent for which the administrators would have been personally liable during the initial extension period is approximately $3.7 million. The extension was effected by an order under s 447A. Similar orders have been made in other cases.[2] The administrators contend that if the grace period ends, the administrators will face a dilemma.
[2]Silvia v FEA Carbon Pty Ltd (2010) 185 FCR 301 and Silvia v FEA Carbon (No 2) [2010] FCA 572; Rewards Projects Ltd v The Ark Fund Ltd [2010] WASC 125 and Rewards Projects Ltd v The Ark Fund Ltd (No 2) [2010] WASC 136; Carson; Re Hastie Group Limited [2012] FCA 626 and Carson; Re Hastie Group Limited (No 2) [2012] FCA 717.
They wish to avoid personal liability under s 443B, as they have very limited funds available to them to maintain the Forestry Schemes pending completion of the ongoing lease review and any restructure or orderly asset realisation program, and to meet ongoing rental obligations. If it were not for the grace period, their personal liability for rent for the extension sought from 1 December 2012 to 31 January 2013 would be in the order of $3.5 million.
The administrators claim that as officers of GPL they owe statutory duties to the Growers under s 601FD of the Corporations Act, including the duty to act in the best interests of Growers. AFP Trusts (the first and second defendants) dispute that the administrators are officers and owe statutory duties to the growers.
If the administrators give notices that the company will not exercise rights in relation to the leased property, the leases will be in default, which may enable the landlords to terminate them. Termination of the leases may result in termination of the Grower sub-leases (a termination of a head lease terminates interests derived from it).[3] That may adversely affect the Growers. In particular, following termination, there may be a claim by the landlords to the Growers’ trees, countered by claims on behalf of Growers seeking relief against forfeiture and declarations about their rights to the land and trees.
[3]Barrett v Morgan [2000] 2 AC 264, 268.
Accordingly, the administrators wish to extend the grace period by a further two months, until 31 January 2013. That coincides with the date on which the administration is scheduled to end (the convening period having been extended by the Court on 22 October 2012). This extension will allow the administrators to progress an expression of interest campaign. Four parties expressed an interest in taking over the schemes. Discussions are currently taking place with Macquarie Bank Ltd and the administrators have been provided with a confidential proposal from WA Blue Gum Ltd.
An extension of the grace period will also allow the administrators to continue their as yet incomplete investigations of the numerous leases of land used in the Schemes, as well as their viability assessment of the Schemes.
Opposition to the application to extend
Trust Company (Australia) Ltd and Australian Executor Trustees Limited oppose the application and seek orders enabling them to take possession of certain properties. Three other land owners appeared and were granted leave pursuant to r 2.12(1)(c) of the Supreme Court (Corporations) Rules 2003 to be heard in the proceeding. They are VP Pastoral Pty Ltd, Alison Fairlie Napier as trustee of the estate of Alan Napier, and Brocklands Pty Ltd.
The opposition of Trust Company (Australia) Ltd
The Trust Company (Australia) Limited (‘Trust Co’) is the trustee of the Forestry Investment Trust (‘FIT’). In that capacity it owns various real properties throughout Australia which are leased by Trust Co as lessor to GPL a lessee. GPL is lessee of the properties in the Great Southern Plantations schemes 1998-2006 (the Great Southern Schemes). The leases relate to the following managed investment schemes:
(a)Great Southern Plantations 1998 (1 of the Expired Leases);
(b)Great Southern Plantations 1999 (3 of the Expired Leases);
(c)Great Southern Plantations 2000 (55 of the Expired Leases); and
(d)Great Southern Plantations 2001 (1 of the Expired Leases).
The sixty leases are all located in either Victoria or Western Australia.
Trust Co‘s property interests are managed by New Forests Assets Management Pty Ltd (New Forests).
Trust Co has applied for leave pursuant to s 440B(2)(b) of the Corporations Act to take possession of the properties of the 60 leases. Trust Co contends that all the lease terms have expired for one or other of two reasons.
First, Trust Co says that the terms of the original lease were varied to remove any option to extend the original fixed term. Secondly, even if options were not removed, the options were required to be exercised at least six months before the commencement of the first further period. Trust Co says that it has found no evidence that any option was ever validly exercised by the giving of the required notice at least 6 months prior to expiry of the initial term to extend the term. Trust Co says that it has no record of any such notice being given. The administrators have not adduced any evidence that any such notice was given.
Trust Co says that the relevant leases therefore all expired 12 years after their commencement, with the last of them expiring on 31 May 2012.
Trust Co says that GPL (as lessee of the expired leases) therefore has no ongoing right to occupy those properties. Trust Co says that GPL continues to occupy only because the moratorium imposed by s 440B of the Act precludes Trust Co from re-taking possession.
Trust Co concedes that certain holdover arrangements were agreed to prior to GPL entering administration, permitting GPL to continue to occupy the then expired lease properties in return for payment of a commercial rent. Rent was paid until the end of January 2012, but not thereafter.
Trust Co says that as at 11 October 2012, demands were made of GPL by New Forests for payment of unpaid rent in an amount of $3,477,653.14.
Trust Co says that the holdover arrangements, and any further right to occupy 53 of the 60 leases, was terminated on 26 October 2012. Trust Co says that GPL’s right to occupy those expired lease properties was terminated on that date and a demand for delivery up within 7 days was made.
As for seven other leases, they are leases that were subsequently identified by Trust Co as having expired, but were not included on a list of expired leases earlier provided to Trust Co by GPL. Notices to quit were issued to GPL on 9 November 2012, requiring delivery up by 28 February 2013 of those properties.
Trust Co says that it has no interest in having any ongoing dealings with either GPL or any replacement responsible entity in relation to the alleged expired lease properties. Trust Co says that it wants to either sell these properties, or retain them for its own use.
In summary, Trust Co says that the expired lease properties are all properties which were the subject of fixed term leases held by GPL, which Trust Co alleges have expired. Trust Co says that theses leases were held by GPL under arrangements for the holding over after the expiry of the terms of the leases, but those holdover arrangements have now been terminated by Trust Co.
The opposition of the AFP Trusts
Australian Executor Trustees Limited is trustee for the Australian Forest Plantations Trust (Receivers and Managers Appointed) (AFPT) and Wesley Vale Engineering Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) as trustee for the Australian Forest Plantations Trust Number 2 (Receivers and Managers Appointed) (AFPT2) (together, the AFP Trusts).
The AFP Trusts oppose the extension of the grace period and seek leave to take possession of the leased land.
Lien
The administrators also seek an order under s 447A of the Act to the effect that the owner or lessor of the land (for which the administrators are relieved from the obligation to pay rent) be indemnified out of the scheme property for the forgone rent for the period from 1 December 2012 to 31 January 2013.
Compromise
The administrators have also negotiated a compromise relating to guarantees given to GPL by the ANZ Bank. The administrators and receivers and managers of GPL were in dispute as to who was entitled to the benefit of the guarantees. That matter has been compromised, subject to the Court’s direction that the administrator is justified in entering into the compromise.
Directions as to lien by the administrators
The administrators seek a direction that they are justified in incurring expenditure in protecting, preserving and realising scheme property and are justified in proceeding on the basis that they will be entitled to a Universal Distributing lien in respect of their expenses for doing so.[4]
[4]See Re Universal Distributing Company Ltd (in Liq) (1933) 48 CLR 171 (Universal Distributing).
The questions to be resolved
(a) Should there be an extension of the grace period for the non-payment of rent until the end of 31 January 2013?
(b) Should Trust Co and the AFP Trusts be given leave to take possession of their land that is encumbered under the schemes?
(c) Should the owners or lessor of the land encumbered under the schemes be given a lien over the scheme property for the rent due during the periods from 1 December 2012 to the end of 31 January 2013?
(d) Are the administrators justified in entering into the compromise?
(e) Should a direction be given that the administrators are justified as claimed?
Should there be an extension of the grace period for the non-payment of rent until the end of 31 January 2013?
It is first convenient to address the scheme of the Act relating to extending the grace period and to consider relevant sections of the Act.
Part 5.3A is entitled “Administration of a company’s affairs with a view to executing a deed of company arrangement.” Section 435A provides
The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:
(a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or
(b) if it is not possible for the company or its business to continue in existence--results in a better return for the company’s creditors and members than would result from an immediate winding up of the company.
A company may appoint an administrator if the board has resolved that the company is insolvent or is likely to become insolvent at some future time and an administrator should be appointed (s 436A).
Voluntary administration ends upon a relevant decision[5] being made by the company’s creditors at the second creditors meeting. The ordinary period by which the meeting must be held is fixed by ss 439A(2) and (5) of the Act. The effect of those provisions is that the meeting must be held within five days before or after the end of the “convening period”. The convening period is the period of 20 business days beginning on the day after the administration commenced.
[5]Namely the execution of a deed of company arrangement (s 439C(a)), the ending the administration and return the company to the control of its directors (s 439C(b)), or placing the company in liquidation (s 439C(c)). Alternatively, the creditors may resolve to adjourn the meeting for a period of up to 45 business days (s 439B(2)).
On 22 October 2012, Gardiner AsJ made orders for the administration of GPL, extending the convening period defined in s 439A(5)(b) of the Act such that it begins on 31 January 2013.
The role of the administrator
Section 437A provides:
(1) While a company is under administration, the administrator:
(a) has control of the company’s business, property and affairs; and
(b) may carry on that business and manage that property and those affairs; and
(c) may terminate or dispose of all or part of that business, and may dispose of any of that property; and
(d) may perform any function, and exercise any power, that the company or any of its officers could perform or exercise if the company were not under administration.
(2) Nothing in subsection (1) limits the generality of anything else in it.
Speaking broadly, the administrator must investigate whether it would be in the interests of the company’s creditors for the company to execute a deed of company arrangement, or for the administration to end, or for the company to be wound up and report this to the creditors along with his opinion and reasons and with such other information as will enable the creditors to make an informed decision (ss 438A, 439A(4)).
The scheme of the Act envisages that while information is being obtained so that creditors may make an informed decision, the company cannot be wound up and there are limitations on the rights of secured creditors in exercising their rights. I have explained previously the limitation on landlords and lessors.
An administrator is liable for debts incurred in the administration, but has a right of indemnity out of the company’s assets (ss 443A and 443D).
There are, however, special provisions about rent and landlord’s repossessing their land.
Section 443B provides:
(1) This section applies if, under an agreement made before the administration of a company began, the company continues to use or occupy, or to be in possession of, property of which someone else is the owner or lessor, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods.
General rule
(2) Subject to this section, the administrator is liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period:
(a) that begins more than 5 business days after the administration began; and
(b) throughout which:
(i) the company continues to use or occupy, or to be in possession of, the property; and
(ii) the administration continues.
(3) Within 5 business days after the beginning of the administration, the administrator may give to the owner or lessor a notice that specifies the property and states that the company does not propose to exercise rights in relation to the property.
(4) Despite subsection (2), the administrator is not liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period during which a notice under subsection (3) is in force, but such a notice does not affect a liability of the company.
(5) A notice under subsection (3) ceases to have effect if:
(a) the administrator revokes it by writing given to the owner or lessor; or
(b) the company exercises, or purports to exercise, a right in relation to the property.
(6) For the purposes of subsection (5), the company does not exercise, or purport to exercise, a right in relation to the property merely because the company continues to occupy, or to be in possession of, the property, unless the company:
(a) also uses the property; or
(b) asserts a right, as against the owner or lessor, so to continue.
Restrictions on general rule
(7) Subsection (2) does not apply in relation to so much of a period as elapses after:
(a) a receiver of the property is appointed; or
(b) under an agreement or instrument under which a security interest in the property is created or arises:
(i) the secured party appoints an agent to enter into possession, or to assume control, of the property; or
(ii) the secured party takes possession, or assumes control, of the property;
but this subsection does not affect a liability of the company.
(8) Subsection (2) does not apply in so far as a court, by order, excuses the administrator from liability, but an order does not affect a liability of the company.
(9) The administrator is not taken because of subsection (2):
(a) to have adopted the agreement; or
(b) to be liable under the agreement otherwise than as mentioned in subsection (2).
Section 440B(2)(b) provides:
(1) During the administration of a company, the restrictions set out in the table at the end of this section apply in relation to the exercise of the rights of a person (the third party ) in property of the company, or other property used or occupied by, or in the possession of, the company, as set out in the table.
Note: The property of the company includes any PPSA retention of title property of the company (see section 435B).
Exception – consent of administrator or leave of court
(2) The restrictions set out in the table at the end of this section do not apply in relation to the exercise of a third party’s rights in property if the rights are exercised:(a) with the administrator’s written consent; or
(b) with the leave of the Court.
Possessory security interests – continued possession
(3) If a company’s property is subject to a possessory security interest, and the property is in the lawful possession of the secured party, the secured party may continue to possess the property during the administration of the company.
| Restrictions on exercise of third party rights | ||
| Item | If the third party is ... | then ... |
| 1 | a secured party in relation to property of the company, and is not otherwise covered by this table | the third party cannot enforce the security interest. |
| 2 | a secured party in relation to a possessory security interest in the property of the company | the third party cannot sell the property, or otherwise enforce the security interest. |
| 3 | a lessor of property used or occupied by, or in the possession of, the company, including a secured party (a PPSA secured party ) in relation to a PPSA security interest in goods arising out of a lease of the goods | the following restrictions apply: (a) distress for rent must not be carried out against the property; (b) the third party cannot take possession of the property or otherwise recover it; (c) if the third party is a PPSA secured party--the third party cannot otherwise enforce the security interest. |
| 4 | an owner (other than a lessor) of property used or occupied by, or in the possession of, the company, including a secured party (a PPSA secured party ) in relation to a PPSA security interest in the property | the following restrictions apply: (a) the third party cannot take possession of the property or otherwise recover it; (b) if the third party is a PPSA secured party--the third party cannot otherwise enforce the security interest. |
Justice Finkelstein considered these provisions, or their predecessors, in Silvia v FEA Carbon Pty Ltd,[6] where his Honour said:
The reason for the section [443B] is clear enough. The administrator of a company under administration is the company’s agent: s 437B. Under the general law, an agent would not be liable for rent due under a lease entered into by his (or her) principal, whether or not the rent fell due before or after his appointment, unless, by his conduct, the agent has adopted the lease. This was thought to be unacceptable in respect of property which the administrator used during the administration in circumstances where s 440C places a bar on an owner or lessor taking possession of his property without the administrator’s consent or the court’s leave. So, if the administrator allows the company in administration to continue to use leased property for the purposes of the administration, it was thought only fair that the administrator be personally liable for the rent.
However, as the legislation makes plain, the administrator is given a period of grace. He has 5 business days within which to investigate the affairs of the company and decide whether or not he wishes to avoid liability to pay rent. If he does wish to avoid that liability then he must give a notice under subsection (3).
Often 5 business days will not be enough time in which to conduct the necessary investigation to decide whether the administrator thinks it best to retain or give up possession of leased property. Indeed, 5 business days may be too short a period to discover what are the outstanding leases into which the company has entered.
Principally for this reason, subsection (8) allows the court to excuse the administrator from liability to pay rent after the 5 business day period has passed. At least that is the explanation for the subsection given in the Harmer Committee Report which recommended the enactment of Part 5.3A: Australian Law Reform Commission, General Insolvency Inquiry, Report No 45 (1988) [91]
Subsection (8) allows the court ex post to excuse an administrator from the liability imposed by s 443B. Perhaps that subsection may also apply ex ante. If not, s 447A can be employed to avoid liability before it is imposed. That is, if the short period an administrator is given to conduct an investigation is not sufficient to uncover all leases, an order could be made under s 447A to extend the time for the investigation. Curiously, subsection (8) does not provide for an extension of time for the service of a notice under subsection (3). For that purpose, it is necessary to go to s 447A.[7]
[6][2010] FCA 515.
[7]Ibid, [10]-[14].
The AFP Trusts and the Gunns Group
On 28 September 2012, ANZ Fiduciary Services Pty Ltd appointed receivers and managers to the AFP Trusts. Administrators have also been appointed to AFPT2, but not to AFPT. Mr Peter Anderson and Mr Shaun Fraser are the joint and several receivers and managers of the AFP Trusts.
The AFP Trusts are landowning entities that have leased land to Gunns Limited, which in turn subleased some of the land to GPL.
The land the subject of leases to GPL is particularised in Schedule 2 to the AFP Trusts’ amended interlocutory process. In summary:
(a) AFPT has entered into 8 head leases with Gunns Limited (AFPT Head Leases) in respect of 16,963 hectares of land; and
(b) AFPT2 has entered into 5 head leases with the Gunns Limited (AFPT2 Head Leases) in respect of 4,814 hectares of land.
All but 2,231 hectares of AFPT land is sub-leased by Gunns Limited to GPL. Of the 14,732 hectares of AFPT land sub-leased to GPL, 7,330.8 hectares has been planted with timber relating to managed investment schemes. The remaining land is either unencumbered by forestry plantations or is encumbered with plantations owned by Gunns Limited, or an entity within the Gunns Group, or the Tamar Tree Farms Joint Venture.
The whole of the AFPT2 land has been subleased to GPL. Of that, only 2,792 hectares is encumbered by plantations in managed investment schemes. The remaining land is either unencumbered by forestry plantations or is encumbered with plantations owned by Gunns Limited, or an entity within the Gunns Group, or the Tamar Tree Farms Joint Venture.
Weighing up the prejudice to both parties
The administrators wish to extend the grace period by a further two months, until 31 January 2013. That coincides with the date on which the administration is scheduled to end (the convening period having been extended by the Court on 22 October 2012). This extension will allow the administrators to progress an expression of interest campaign, in respect of which there were four parties which expressed an interest in taking over the schemes, and of which two have recently provided confidential binding proposals: Macquarie Bank Ltd and WA Blue Gum Ltd. It will also allow the administrators to continue their (as yet incomplete) investigations of the numerous leases of land used in the schemes, as well as their viability assessment of the Schemes.
In deciding whether or not to extend the grace period, it is necessary to weigh up the prejudice to the creditors of GPL of not granting the extra period of grace as against the prejudice that would be suffered by the landowners if the extra period of grace was granted. In my opinion, the creditors of GPL would be prejudiced if they were not able to take advantage of the administration provisions of the Act to properly assess and decide upon a deed of company arrangement. On the other hand, if an extra period of grace was granted, the landowners would be prejudiced if they were kept out of enjoying their rights as land owners.
The administrators assert that under the Act they have statutory duties to the growers under s 601FD, which sets out duties of an officer of a responsible entity. These duties include the duty to act in the best interests of the members, and, if there is a conflict between the members’ interests and the interests of the responsible entity, give priority to the members’ interests (s 601FD(1)(c)). The administrators say that they are officers for the purpose of s 601FD. The AFP Trusts contend that the administrators are not officers for the purposes of s 601FD.
The administrators contend that a relevant factor that the Court should consider in deciding whether to extend the grace period is the adverse impact on the growers’ interests that would flow from the of the failure of the Court to extend the grace period.In particular, the administrators contend that if the administrators give notices that GPL will not exercise rights in relation to the leased property, the leases will be in default, which may enable the landlords to terminate them. The administrators say that termination of the leases may result in termination of the growers’ sub-leases (a termination of a head lease terminates interests derived from it).[8] The administrators say that this may adversely affect the growers. In particular, following termination there may be a claim by the landlords to the growers’ trees, countered by claims on behalf of growers seeking relief against forfeiture and declarations about their rights to the land and trees.
[8]Barrett v Morgan [2000] 2 AC 264, 268.
The administrators also assert that GPL is a trustee of the scheme property and holds the scheme property for the benefit of the growers (s 601FC(2)). The administrators contend that they must act in the best interests of the beneficiaries, which in this case are the growers.
What is the prejudice to the creditors of GPL?
If a new responsible entity can be found for the schemes, then the rights, obligations and liabilities of the GPL in relation to the schemes become the obligations and liabilities of the new responsible entity, save for some limited exceptions (s 601FS(1) and (2)). Accordingly, it may well be in the interests of the creditors of GPL to have a new responsible entity appointed to the schemes.
Mr Bryant, one of the administrators, gave evidence of the benefits of an extension period as follows:
The administration of the Gunns Group is large and complex. Notably there are:
(a) 36 companies comprising the Gunns Group;
(b) GPL is for the responsibility of the 21 schemes;
(c) there are some 35,000 growers with investments in the 21 schemes;
(d) the Gunns Group companies had in excess of 500 employees;
(e) the forest is subject to the schemes as spread across Tasmania, South Australia, Western Australia, Victoria, Queensland and New South Wales;
(f) in total there are approximately 1,100 leases between GPL and third party lessors and from our review of those leases to date, the terms of the leases vary from lease to lease; and
(g) the affairs of the companies are intertwined.
There are several matters that we need to further investigate and consider before we can properly report to creditors of the Gunns Group companies and growers in respect of GPL, assuming they are creditors, in the s 439A report in respect of the consolidated group, GPL and GHPL and before creditors can make an informed choice as regards the future of the Gunns Group of companies including:
(a) Assessing the position of the various leases;
(b) Assessing the solvency of the Gunns Group and the reasons for its failure;
(c) Ongoing negotiation with insurance brokers to offer growers an opportunity to maintain insurance on the various scheme plantations;
(d) Organising and implementing an expression of interest campaign for a replacement responsible entity in respect of the schemes managed by GPL;
(e) As required by regulation 5.3A02 of the Corporations Regulations Investigating whether there are any transactions in respect of any of the companies in the Gunns Group that appear to us to be avoidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator of any of the Gunns Group companies under Part 5.7B of the Act.
(f) Investigating the possibility of a restructure and/or recapitalisation of the scheme and any other Gunns Group companies.
(g) Forming our opinion in respect of each of the companies in the Gunns Group as required by s 439A(4)(b) of the Act as to:
(1) Whether it would be in the creditor’s interest for any of the Gunns Group companies to execute a deed of company arrangement;
(2) Whether it would be in the creditor’s interest for the administrations in respect of any of the Gunns Group companies to end; or
(3) Whether it would be in the creditor’s interests for any of the Gunns Group companies to be wound up.
Further, I anticipate that it will take significant time to compile and analyse the results of these various investigations into the 439A report.
…
Expressions of interest campaign for a replacement responsible entity
We also wish to extend the convenient period in order to preserve the possibility of restructuring the schemes or any of them. We are currently conducting urgent viability analyses of the schemes and have recently acknowledged the expressions of the interest campaign as discussed below. On 15 October 2012 we commenced a campaign seeking expression of interest for the role of responsibility to replace GPL in respect of the 18 Woodlot managed investment schemes.
We published an advertisement in respect of the expression of interest campaign in the Australian Financial Review and on the PPB Advisory website on 15 October 2012. Due to the status of the three wine grape schemes at the time of our appointment we have not included those schemes in the expressions of interest campaign.
Also on 5 October 2012, we established an online data room which contains documents and information regarding the 18 Woodlot Schemes as subject of the expression of interest campaign. As of the close of business on 18 October 2012, a number of interested parties had contacted PPB Advisory and executed confidentiality agreements to gain access to the online data room. The parties entered the data room on a confidential basis and therefore we cannot disclose the number of parties or their identities.
Additional documents and information are being added to the data room as they become available. The expressions of interest campaign that we are currently conducting for a replacement responsible entity for GPL in respect of the 18 Woodlot schemes is expected to finish in mid to late November 2012.
Assuming a viable alternative is found to replace GPL as the responsible entity of any of the Woodlot schemes, we then intend to give growers 21 days notice of a meeting to put forward a resolution to remove GPL as responsible entity and appoint that viable alternative as the new responsible entity. It is also our intention that if a viable alternative is found to replace GPL as the responsible entity of one or more of the 18 Woodlot schemes, the subjects of the expression of interest campaign, representatives of that company would meet with the relevant lessors under the leases in respect of the relevant schemes to discuss appropriate arrangements which would enable the schemes or any of them to continue.
In the circumstances, an extension of the convening period will provide the necessary time to determine whether a new responsible entity is likely to be appointed in respect of any of the 18 Woodlot schemes as subject to the expression of interest campaign and permit us to have regard to the outcome of the campaign in forming our opinion in respect to the future of GPL pursuant to s 439A(4)(b) of the Act.
Mr Bryant further deposed that:
Negotiation with interested parties
Since 12 November 2012, together with our advisors, we have been carrying on extensive confidential discussions and negotiation with the interested parties. I set out below summary details of the proposals as submitted by the interested parties. We have received confidential binding proposals from Macquarie Bank Ltd and WA Blue Gum Ltd.
…
On 30 October 2012 and 12 November 2012, WA Blue Gum submitted correspondence to us outlining a proposal to take over the role of responsible entity from GPL in respect of the schemes. […] Our discussion with both of the parties is continuing.
…
The issues are raised by the Macquarie (discussions) and the WA Blue Gum proposal are complex and will necessarily involve extensive further negotiation with Macquarie, WA Blue Gum, landlords of property used in the schemes, growers and other stakeholders of GPL before we can make a decision whether to pursue one or other of those proposals.
In order to preserve the possibility of the Macquarie proposal and WA Blue Gum proposal proceeding, we will not be in a position to make a decision whether or not to issue the appropriate s 443B(3) notices until the lease analysis is complete and the associated discussion with interested parties and landlords are exhausted. In order to preserve the possibility that Gunns Woodlot Schemes and the Great Southern Schemes continuing in existence and maximising the possible benefits and return to creditors of GPL growers and other stakeholders, we have formed the view that it is appropriate and necessary to seek a further extension of the period under s 443B(2)of the Act to enable us to decide whether to issue notices under s 443B(3) of the Act.
…
There is considerable uncertainty as to the consequences upon termination of the exploration of the leases in respect to the unharvested trees in the Gunns Woodlot Schemes and the Great Southern Schemes. If GPL is required to relinquish those leases before our negotiation with the interested parties and our viability analysis and lease reviews are concluded, we anticipate that complex disputes between the growers, landlords and other stakeholders in respect of the unharvested trees situated in the land used in the Gunns Woodlot schemes and the Great Southern schemes will ensue.
This could result in costly and protracted litigation and may jeopardise the possibility that the restructure of the Gunns Woodlot schemes and the Great Southern schemes, or the orderly, efficient and equitable realisation of the assets including the unharvested trees of those schemes.
…
Having regard to the incomplete status of the negotiations with the interested parties in relation to the possible restructure of the Gunns Woodlot schemes and the Great Southern schemes:
(b) The size and complexity of the leasehold arrangements under which the Gunns Woodlot schemes and the Great Southern schemes and the Great Southern schemes were operated.
(c) The uncertainty and legal complexity and the issues surrounding ownership of the unharvested trees upon the termination expiry of the Gunns Woodlot scheme leases and the Great Southern scheme leases.
(d) The necessity of the Gunns Woodlot schemes leases and the Great Southern scheme leases to be to the viability of the scheme and any restructure of those schemes.
(e) The substantial body of grower investors in the Gunns Woodlot schemes and the Great Southern schemes owe 35,000 whose rights are dependent upon the Gunns Woodlot scheme leases and the Great Southern scheme leases.
Having regard to the incomplete status of our lease review and analysis in respect of the Gunns Woodlot schemes and the Great Southern schemes, if we are required to make decisions to issue notices under s 443B(3) of the Act by 30 November 2012, the possibility of restructuring the Gunns Woodlot Scheme leases and the Great Southern Scheme leases, or otherwise realising unharvested trees in those schemes is likely to be materially prejudiced. Furthermore, any premature decision to issue those notices before we can complete the EIO campaign and our review and analysis of the schemes and leases is likely to result in prejudice to the growers and investors in those schemes.
The administrators contend that where:
(a)the leases are central, not peripheral, to the business carried on by the company;
(b)the lease position is complex and involves voluminous lease documentation; and
(c)the leases are necessarily part of any potential restructure of the company’s business, property and affairs;
so that the administrator reasonably requires time to ascertain the company’s position in respect of the leases, it is appropriate that the administrators be afforded extensions of the ‘grace period’ under ss 443B(2) and 443B(3) of the Act. The administrators say that this is consistent with the objects of Part 5.3A of the Act, as set out in s 435A.
The administrators contend that the present case is in this respect very similar to the circumstances in Rewards Projects v The Ark Fund [No 2],[9] where the Supreme Court of Western Australia granted a second extension of the time periods under s 443B of the Act to allow administrators of a company (which was the responsible entity of various agribusiness managed investment schemes) additional time to assess the position of leases, including the impact of negotiations being conducted by the administrators to locate a replacement responsible entity. In granting the second extension in Rewards Projects, Master Sanderson said:
I accept the affidavit material does show the dominant interest of the administrators is to find funders for the various projects. But I also accept as part of this process the administrators are still considering the position with the leases. In my view, there is nothing in s 443B which requires consideration of the leases to be the sole or dominant purpose before an extension of time can be granted. Of course, it may be the case, in certain administrations, the lease position is simple and administrators within a very limited time would have a clear idea of the company’s position in relation to those leases. Then it would be inappropriate to grant an extension of time under s 443B when all that was being done was to provide the administrators with time for purposes not associated with understanding the position with respect to leases. But that is not this case. I am satisfied that the evidence establishes the administrators have not fully ascertained the company’s position with respect to the leases and a further extension should be granted.[10]
[9][2010] WASC 136 (Rewards Projects).
[10]Rewards Projects [2010] WASC 136, [8].
Notably, the application in Rewards Projects was opposed by receivers and managers.[11] Despite that opposition and the likely prejudice to landowners in that case, the Court granted the further extension. The administrators submit that the approach taken by the Court in Rewards Projects was appropriate and not relevantly distinguishable from the circumstances before the Court in this case.
[11]Ibid [2].
What is the prejudice to the AFP Trust?
Mr Peter Anderson has given evidence of the prejudice that will be suffered by the AFP Trusts if the administrators are extended a further period of grace and remain in possession of the land belonging to the AFP Trusts encumbered by plantations of the schemes.
Mr Anderson says:
AFPT and AFPT2 are land trusts which were established by Gunns in 2007 and 2008 respectively for the purpose of ensuring that the Gunns Group had access to approximately 10,000 net plantable hectares of land per annum in 2007 and 2008 to develop as timber or pulpwood plantations.
The trustee of AFPT is an independent corporate trustee entity, Australian Executor Trustees Ltd and the beneficial owners of AFPT are:
(a) Gunns (approximately 30%);
(b) Plantation Tropical Timbers Ltd (approximately 50%); and
(c) PF Olsen TISA Pty Ltd (approximately 20%).
Plantations Tropical Timbers Ltd and PF Olsen TISA Pty Ltd are entities unrelated to the Gunns Group.
AFPT owns 16,963 hectares of land situated in Tasmania. All of the land owned by AFPT is mortgaged in favour of ANZ Fiduciary Services Ltd as security trustee of the Australian Forestry Plantations Security Trust.
The trustee of AFPT2, Wesley Vale, is an entity within the Gunns Group and the beneficial owner of AFPT2 is Gunns.
AFPT2 owns 4,814 hectares of land situated in Tasmania. All of the land owned by AFPT2 is either mortgaged in favour of ANZ Fiduciary Services Ltd as security trustee of the Australian Forestry Plantations Trust Number 2 Security Trust (ANZFS atf AFPT2ST), or is the subject of a general security agreement executed by Wesley Vale in favour of ANZFS atf AFPT2ST.
The rent that is payable under the AFPT Head Leases totals approximately $4,827,716 per annum, and is payable quarterly in arrears on 31 March, 30 June, 30 September and 31 December.
Save for the 2,231 hectares of land the subject of the leases referred to in paragraph 18 (a) and (b) above, Gunns then sub-leased the land to Gunns Plantations Ltd (Receivers and Managers Appointed)(Administrators Appointed) (GPL). Of the 14,732 hectares of AFPT land sub-leased to GPL, only 7,330.8 hectares has been planted with timber relating to managed investment schemes. The remaining land is either unencumbered by forestry plantations or is encumbered with plantations owned by Gunns, or an entity within the Gunns Group, or the Tamar Tree Farms Joint Venture.
Mr Anderson does not suggest that the AFP Trusts have a tenant ready and willing to take possession of any of the plantation encumbered land between now and 31 January 2013.
What is the prejudice to Trust Co?
As indicated above, Trust Co claims that GPL (and thus the growers) have lost their interest in Trust Co’s land and the plantations grown by the growers on its land.
Mr Keith Lamb is the director of operations of New Forests. Mr Lamb deposes that:
My position as director of operations at New Forests, I formulate the strategy for the assets of trust including those belonging to the Forestry Fund. I propose the strategies I develop to the New Forests management committee and the Forestry Fund’s advisory board for approval.
In respect to the Forestry Fund, the strategy is:
(a) An assessment of the land which is the subject of each of the GS lease, the Gunn land. We undertake to determine whether the date of expiry, the rate of return for investors will meet the threshold of eight per cent. If the combined land and tree crop is likely to meet that threshold, the land will be kept. If it is not likely to meet that threshold, the land will be sold.
(b) It is intended the Gunns land in higher rainfall areas close to port where viable tree crops can be grown will be retained and the balance will be sold.
The land which is subject to the expired leases is a mixture of land which is intended to be retained by trust and land which its debtors sell. On the land which is the subject of the 60 expires leases, the land which is the subject of 27 of the expired leases is to be sold and the land that is subject to the remaining 33 leases is to be retained. In respect of the land that is subject to the expired leases, the business strategy proposed by me and approved by the management committee is to issue termination notices to Gunns unencumbering it and not entering into further dealings with Gunns as lessor and responsible entity of the relevant managed investment schemes or any replacement responsible entity.
I am aware of two unsolicited offers not as a result of marketing or advertising which have been made by a prospective purchaser in relation to the Webb and Eccho Downs properties and those are unable to proceed having regard to the status of the administration of Gunns and the extension of the moratorium period until 31 January 2013. Furthermore, prior to the appointment of the administrators, New Forests have commenced to market a large tranche of properties subject to GS leases (that is Great Southern leases) in Western Australia and the GT which has also been placed on hold.
Forestry Funds is adversely affected by the rent free period and will be further adversely impacted by any extension of the rent free period by reasons of the matters referred to above. Namely:
(a) its inability to take possession of the land which is the subject of expired leases which, but for the administration of Gunns, it would have the right to do;
(b) its inability to sell the land which is the subject of the expired leases which for the purpose of selling it or engaging with interested parties for the purpose of new leasing arrangements;
(c) it suffers significant financial loss by reason of the unpaid rent which I believe there is no prospect of recovering; and
(d) its inability to generate income for the purpose of a distribution to the investors in the Forestry Fund.
Again, there is no evidence of any prospective tenant for the land and the opportunity to gain rent in the period between now and 31 January 2013.
Weighing up the prejudice
The administration provisions are designed to facilitate the reconstruction of a company experiencing solvency issues for the benefit of creditors and members. In my opinion, in deciding whether to extend the grace period it would be relevant to take into account other obligations that the administrators have at law, such as acting in the best interests of the growers and the beneficiaries of the property which GPL holds on trust.
Prima facie, on the one hand there is no evidence that Trust Co, or the AFP Trusts, or the other landlords, would be able to obtain any rental between now and 31 January 2013, and it is less than likely that a purchaser will be prepared to buy any of the land encumbered by the scheme plantations between now and 31 January 2013 (in circumstances where the rights of the growers to the plantations on the land are yet to be resolved). On the other hand, there is a distinct possibility that the administrators surrendering possession of scheme lands would prejudice the chances of a new responsible entity taking over the schemes or otherwise effecting a deed of company arrangement.
In those circumstances, prima facie and all other things being equal, the balance of prejudice favours the grace period being extended as requested by the administrators.
AFP Trusts and Trust Co put up several specific arguments in support of their opposition that need to be considered before a decision can be made.
The five day period
Mr Woodward SC for the AFP Trusts contrasts the five day grace period from payment of rent allowed under s 443B(2) with the twenty odd day period for the convening of the second meeting of creditors. The AFP Trusts contend that the different treatment under the Act between the rental grace period and the period for the convening of the second meeting of creditors (where the future of the company is decided) shows a statutory intention to confine the grace period to a much shorter period than the convening period.
The administrators respond that the discretion of the Court under s 447A is wide and should not be read down.[12] They contend that the circumstances of this case (where the administrators are faced with 991 leases and some 46,000 grower leases) should govern the discretion rather than the difference between the two time periods.
[12]Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270, 279 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).
In my opinion, the matters mentioned by the AFP Trusts are relevant for me to consider in exercising my discretion under s 447A but not determinative.
Do the administrators owe statutory duties to the growers?
Mr Woodward SC for the AFP Trusts argues that the administrators are not officers for the purposes of s 601FD. The AFP Trusts argue that the administrators have misconceived their duty. The AFP Trusts say that the administrators’ position proceeds from an unstated assumption that the interests of growers are paramount, or are to be preferred, to those of other creditors. The AFP Trusts contend that this assumption is misconceived. The AFP Trusts say that the administrators are not “officers” of GPL within the meaning of Chapter 5C of the Act and do not owe any specific duties to the growers, as opposed to creditors generally, as a result of the Act, and rely on the authority of Owen v Madden (No 3).[13]
[13](2012) 201 FCR 360 (Owen v Madden), [31], [36], [38], [40].
The AFP Trusts contend that the growers derive their interest in the administration from their position as contingent creditors of GPL.[14] They sat that Growers are merely a category of unsecured creditor of GPL and that there is no justification for preferring their interests to that of other creditors of GPL, let alone the interests of creditors of Gunns Limited.
[14]Re Gunns Plantations Limited (Administrators Appointed)(Receivers and Managers Appointed) [2012] VSC 513, [32].
For their part, the administrators submit that I should find that Owen v Madden,[15] a decision of Logan J of the Federal Court of Australia, is plainly wrong. In my opinion, it is not necessary for me to decide that issue. I consider that it matters little whether the growers are contingent creditors, or whether the administrators are officers, in weighing up the relative prejudice to growers and landlords in granting or not granting the extension of the grace period.
[15](2012) 201 FCR 360.
Under the AFP Trusts, the growers have a proprietary interest in the trees the subject of the schemes. The growers are not in possession of their proprietary rights in the trees. GPL as the responsible entity is in possession of the proprietary rights that the growers have in the trees. Arguably, GPL as the responsible entity is the trustee of the growers’ interests. That view is supported by s 601FC(2) that provides that the responsible entity holds scheme property on behalf of scheme members. The definition of “scheme property” would appear to include the propriety interest growers have in the trees as scheme property. In my opinion, GPL has a duty as a fiduciary to preserve, maintain and protect the proprietary interests of the growers in the trees.
In the case of the AFP Trust, the proprietary interest of the growers can be traced from the head lease to Gunns Limited, then the sublease from Gunns Limited to GPL, then from GPL to the grower in the Sub-Forestry Right Deed.
In the case of Trust Co , the proprietary interest of the growers can be traced from the head lease from Trust Co‘s predecessor to GPL’s predecessor (clauses 3(a) and 8(p), and in the Schedule at clause 3(ii) there is a reference to payments to the grower under the lease and management agreement), and finally the lease management agreement between the responsible entity and the grower (clause 11.3 – grower’s right to forest produce).
Even if the administrators only had a duty to creditors (as the AFP Trusts contend), in my opinion the administrators would be obliged to avoid incurring further liabilities to contingent creditors if that were reasonably possible and thus prejudicing the position of the existing creditors of GPL. In my opinion, if the administrators did not have regard to the fiduciary obligations of GPL to growers, GPL could be exposed to further liabilities to growers to the detriment of existing creditors.
AFP Trusts raises a further argument that, if the interest of any category of creditor is to be preferred, it is that of creditors who own property. AFP Trusts referred me to the judgment of Lord Justice Nicholls (for the Court of Appeal including Neill and Staughton LJJ) in Re Atlantic Computer Systems PLC,[16] where his Lordship was considering similar administration proceedings in England, and said:
[S]o far as possible, the administration procedure should not be used to prejudice those who were secured creditors when the administration order was made in lieu of a winding up order. The same is true regarding the proprietary interests of a lessor. The underlying principle here is that an administration for the benefit of unsecured creditors should not be conducted at the expense of those who have proprietary rights which they are seeking to exercise, save to the extent that this may be unavoidable and even this will usually be acceptable only to a strictly limited extent. [17]
[16][1992] Ch 505.
[17]Ibid, 542.
These principles have been applied in Australia and are not disputed by the administrators.[18] However, as discussed above, the growers do have a proprietary interest in the trees that was granted and recognised by the land owners. Accordingly, the growers’ proprietary rights have to be balanced with the proprietary rights of the land owners.
[18] Re Java (1999) 32 ACSR 507, 517; Rewards Land Pty Ltd v Jones [2010] WASC 233, [28]-[29].
Section 443B(3) notices
On 29 November 2012 and 5 December 2012, the administrators gave notice to the AFP Trusts under s 443B(3) of the Act that they did not intend to exercise property rights in relation to land leased from AFP Trusts that is not encumbered by any of the Gunns Woodlot Schemes. Further, on 7 December 2012, the administrators sent letters to the AFP Trusts consenting under s 440B(2) to the AFP Trusts taking possession of the non-scheme AFP Trusts land. By doing so, the administrators were seeking to ensure that only the land encumbered by the Gunns Woodlot Schemes would be the subject of the grace period being sought under s 443B(2).
The AFP Trusts contend that the Act does not permit that to be done where a lease is of land in part encumbered by Woodlot schemes and in part not so encumbered. AFP says that such a division would entail dividing up the rent for the leased property as between portions of the leased property. The AFP Trusts suggest that such an apportionment would be fraught with practical difficulties and is not envisaged or authorised under the Act.
The administrators argue that the Act does permit a portion of a leased property to be subject of a notice that the administrator does not propose to exercise rights over it. The administrators contends that “property” as referred to in s 443B(1) does not need to be defined by a certificate of title or a separate lease or some such instrument that matches an agreed rental with an agreed area.
I am unable to decide this issue in this matter due the difficult issues involved and the time constraints that I face in delivering judgment. If the notices that the administrator has given are bad at law, then they have no effect. The AFP Trusts contends that they are bad. In those circumstances, I consider that the appropriate course is to proceed on the assumption that they are bad and that if the extension sought is given, then it should be given in respect of the whole or part of any lease or sublease that is used for the purposes of one of the Woodlot schemes as referred to in the interlocutory process.
Are the orders sought futile?
The AFP Trusts say that the administrators do not need any more time as they know which leases they want and those that they do not want. In other words, the administrators do not need more time to examine the leases.
It is true that the administrators have given notice that they do not want to retain possession of the leases that are not encumbered by the schemes. Mr Bryant has deposed, however, that viability analysis is still being carried out on the leases encumbered by the schemes to determine their suitability for a restructuring proposal.
Further, the AFP Trusts contend that in order for any replacement responsible entity to have use of the AFP Trusts’ land, the responsible entity would have to come to a commercial arrangement with the AFP Trusts for replacement leases or apply as to relief from forfeiture. The AFP Trusts contend that relief against forfeiture cannot be obtained by a tenant in respect of part of the leased land. The administrators agree, but argue that this proposition does not hold true to a sub-tenant. The administrators argue that a sub-tenant may get relief against forfeiture in respect of the portion of the head lease land that the sub-tenant sub-leases. The administrators rely on Chatham Empire Theatre v Ultrans, where just such relief was given.[19]
[19][1961] 1 WLR 817 (Chatham).
The AFP Trusts contend that the under the Conveyancing Law of Property Act 1994 (Tas), sub-tenants are not referred to (as they are in the legislation in England that was applied in Chatham) and that accordingly, the sub-tenants could not get relief in respect of part of a property that was subject to the head lease.
I do not consider that it is appropriate in this matter to resolve the thorny issue of whether or not the grower sub-tenants could achieve statutory relief against forfeiture. The issues at play in this case are commercial. If the administrators are able to procure somebody to take over as responsible entity, then it likely that the consent and co-operation of the AFP Trusts and the other landlords will be required, as they were in the Great Southern reconstruction.
Experience tells us that that the administrators are more likely to be able to procure a restructuring for the benefit of all creditors if the schemes are kept under their control than if the schemes assets are divided up between separate landlords and the administrators. In my view, the Court must keep to the fore the commercial realities in exercising its discretion under s 447A of the Act.
The AFP Trusts rely on the decision of Gardiner AsJ in Ventana Pty Ltd v Colorado Group Ltd,[20] where his Honour granted leave to the owner of Westfield Southland to retake possession of a leased premises under s 440C of the Act. His Honour relied on the principles laid down in Re Atlantic Computer Systems,[21] which I have mentioned earlier. I take no issue with His Honour’s decision. In the Colorado case, however, the landlord had available another tenant willing to take up the tenancy of the company under administration. No such prospective tenant has been pointed to by the AFP Trust or Trust Co.
[20][2011] VSC 552 (Colorado).
[21][1992] Ch 505.
The AFP Trusts rely on the question of fire prevention. This issue does give me cause for concern. The administrators and the receivers of GPL have entered into agreement with Gunns Forest Products Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed), a company in the Gunns Group, that has the scale, facilities and expertise available to it to carry out necessary maintenance works in respect of the plantations. The administrators have entered into agreements with Gunns Forest Products to provide fire maintenance and suppression services and other forestry maintenance tasks.
Despite the arguments of the AFP Trusts, I am satisfied that adequate provision has been make to maintain, preserve and protect the plantations during the bush fire period from bush fires.
Finally on the issue of prejudice, the AFP Trusts contend that the receivers of the AFP Trusts take the risk of potentially catastrophic personal liabilities if fire or pests spread to neighbouring properties as a result of appropriate works not being undertaking on the AFPT land. The administrators dispute this and referred me to the Fire Services Act 1979 (Tas). It is inappropriate that I rule on the extent of the receivers’ liability under this Act. It is sufficient for me to say that I am satisfied that the administrators have offered sufficient cooperation with the AFP Trusts in relation to coordinating plantation management and fire maintenance services in respect of forestry plantations situated on AFP Trust land that is adjacent to property used for the purposes of the Gunns Woodlot Schemes.
Prejudice to Trust Co
Mr Potts for Trust Co argued that the 60 leases have expired. Thus, according to Trust Co, both GPL or the growers no longer have any interest in Trust Co land. On the other hand, the administrators contend that there is an arguable case the 60 leases have not expired. Trust Co says that there is no arguable case. Both parties are agreed that I do not have to decided whether or not the 60 leases have expired. Rather, I should decide whether or not there is an arguable case they have not.
For the purposes of the Great Southern Schemes, GPL is the lessee of approximately 118,000 hectares of leasehold land situated across Western Australia, Victoria, Queensland, South Australia, Tasmania and New South Wales. This land is held by GPL pursuant to approximately 548 separate leases.
New Forests is the major landlord in respect of the leasehold land held by GPL for the purposes of the Great Southern Schemes.
New Forests acquired the freehold land the subject of the Great Southern Schemes and leased to GPL from various Great Southern entities pursuant to an Asset Sale Deed dated 10 January 2011 (Asset Sale Deed).
Prior to New Forests’ acquisition of the land, pursuant to Gunns’ taking over as responsible entity of the Great Southern Schemes, Gunns and the Great Southern entities varied the head leases so that:
(a) the rent in respect of the “Internal Leases” (the head leases) (GS Leases) was deleted and replaced with “$1.00 per annum (if demanded)”; and
(b) GPL’s right to any further term or terms under the GS Leases was removed.
Those variations to the GS Leases were entered into pursuant to an Implementation Deed dated 20 November 2012 (as amended) (Implementation Deed) which sets out the terms on which GPL would take over the Great Southern Schemes.
Clause 6.6 of the Implementation Deed provides, amongst other things, that:
(a) GPL would “surrender” any remaining option for further term or terms under the GS Leases (clause 6.6(b)); and
(b) in consideration for GPL surrendering its right for a further option term or terms under the GS Leases, the landowning entities agreed to amend the GS Leases by reducing the rental payable by GPL to $1.00 per annum (if demanded) and “... making any similar or consequential amendments that may be required to ensure that the relevant LMAs are not inconsistent with the 1998 to 2004 Internal Leases (as amended)” (clause 6.6(c)).
The reference in clause 6.6(c) to an LMA is a reference to a Grower Lease between GPL and the particular grower.
Prior to the variation envisaged in the Implementation Deed, the GS leases originally had a twelve year term with an eight year option followed by a five year option. The Implementation Deed cut the leases to a twelve year lease and as indicated above, the commercial rent was cut to a peppercorn rent of $1.
The administrators argue that under the restructuring that took place, when GPL took over from Great Southern as the responsible entity, the growers had their right to have the benefit of the options cancelled but had the term of the initial term extended from 10 years to 13½ years to allow the first crop of trees to be harvested.
The nub of the dispute between Trust Co and the administrators is the construction of clause 6.6(c). The administrators contend that the head lease of each relevant lease should have been amended, and should now be amended, so that the term corresponds to the term of the underlying sub-leases to the growers which was extended from 10 years to 13½ years.
The proposal for Gunns to take over as the responsible entity was put to growers to approve. The booklet of 29 November 2009 put to the growers by the receivers and managers of the responsible entity informed the growers of the changes to their rights. In particular, the booklet informed them that although growers would lose the renewal options, the grower agreements would be amended to permit the trees from the first crop to be harvested at the most advantageous time (but not more than 13 years and 6 months after growers were granted their woodlots).
The growers met on 23 December 2009 to consider the proposal. The growers resolved to appoint GPL the responsible entity of the relevant schemes. Subsequently, on 29 December 209, the constitutions of the Great Southern schemes were amended to give the responsible entity a power of attorney to sign new sub-leases on behalf of the growers. Further, the constitutions of the Great Southern schemes were amended to allow, at the discretion of the responsible entity, harvesting not later than 13 years and 6 months from the beginning of the growers’ lease and management agreement.
Further, on 31 December 2009, GPL, on its own behalf and as attorney for the growers, by deed varied the lease and management agreements between GPL and the growers. Each lease and management agreement was amended to provide that harvesting would take place at the time the responsible entity determines, but no later than 13 years and 6 months.
The next step in the argument takes us to the Implementation Deed between the Great Southern companies and the Gunn companies under which GPL was to take over as responsible entity. The Great Southern companies included the land owning companies from which Trust Co subsequently acquired the land. The initial Implementation Deed, dated 20 November 2009, contained provisions about amending the leases to GPL (the internal leases). The deed was varied. The final version was dated 19 November 2010. Clause 6.6 provided:
…
(b) If the LMA amended resolutions are passed and Gunns RE becomes the responsible entity of the 1998 to 2005 projects, subject to the landowning entities complying with their obligations at clause 6.6(e), on the First Replacement Date [which was 31 December 2009], Gunns RE will surrender any remaining option for a further term or terms, as the case may be under the 1998 to 2004 Internal Leases and the 2005 Internal Leases that has not been exercised by GSMAL before the First Replacement Date.
(c) In consideration of Gunns RE surrendering the right for a further option term or terms (as the case may be) under the 1998 to 2004 Internal Leases, the Land Owning Entities agrees to amend the 1998 to 2004 Internal Leases by reducing the rent payable by Gunns RE to $1.00 per annum (if demanded) and making any similar or consequential amendments that may be required to ensure that the relevant LMAs are not inconsistent with the 1998 to 2004 Internal Leases (as amended).
(d) In consideration of Gunns RE surrendering the right for a further option term or terms (as the case may be) under the 2005 Internal Leases by reducing the rent payable by Gunns RE to $1.00 per annum (if demanded).
(e) The parties agree to enter into the necessary deeds of variation (in a form reasonably agreed by all the parties) to effect the surrender of the options and variation of the 1998 to 2004 Internal Leases and the 2005 Internal Leases as provided for in this clause 6.6.
The administrators contend that the clear intent of this agreement is that the landlord and the responsible entity have agreed that the head lease will be amended to bring it into line with the sub-lease to the growers that gives the growers rights over the land up to 13 ½ years. Accordingly, the head leases would correspond with the sub-leases.
Trust Co says, however, that it was not a party to this agreement and is not bound by it. The administrators say that Trust Co is bound and rely on the deed of covenant between Trust Co and GPL of 16 February 2011. The deed acknowledges that the Vendor (the Great Southern Companies) has agreed to sell to Trust Co the property subject to the head leases.
The deed of sale between Trust Co and the relevant Great Southern companies is dated 10 January 2011. The deed of covenant acknowledges that GPL is the lessee from the Vendor of the property under the lease documents referred to in the schedule. The schedule contains the 60 leases that Trust Co says have now expired. Under the deed, Trust Co covenants with GPL to comply with the “Vendor Obligations” arising after the effective date (16 February 2011) as if Trust Co had executed the lease documents as lessor.
Under the Deed of Covenant, the “Vendor Obligations” means each obligation on the part of the Vendor contained or “implied” in the lease documents to be complied with by the Vendor. The administrators argue that there is an implied term in the lease documents that they be varied to bring them into conformity with the amended land management agreements as per clause 6.6 of the Implementation Deed. It will be recalled that the land owning companies, that is the Vendors, had (according to the argument of the administrators) agreed to vary the leases to GPL to bring them into conformity the sub-leases from GPL to the growers, which would have involved extending them to permit the grower to enjoy harvesting rights for up to 13 ½ years.
Following the surrender of the further terms in respect of the GS Leases, GPL has been unable to harvest all of the trees situated on the land the subject of 60 of the GS Leases which New Forests claim have now expired.
By this argument, the administrators contend that 60 leases are not at an end and the growers have proprietary rights as the 13 ½ years harvesting rights have not expired.
Effect of the surrender
The administrators say that under the Implementation Deed the further terms of the Over-holding Leases were expressly surrendered by GPL. The administrators accept that where a head lease has been forfeited for breach, then all the subtenancies are extinguished as well, subject to any statutory rights the subtenants may have for relief against forfeiture. The administrators contend, however, that a surrender of a lease does not prejudice the rights of subleases. The administrators rely on Barrett v Morgan,[22] where Lord Millett said:
Although a person such as a sub-tenant having a derivative interest may benefit by the surrender and consequent extinguishment of the estate out of which his interest is derived, he cannot be prejudiced by it. It is a general and salutary principle of law that a person cannot be adversely affected by an agreement or arrangement to which he is not a party. So far as he is concerned, it is res inter alios acta. It would conflict with this principle if the destruction of a tenancy by surrender carried with it the destruction of the interest of a sub-tenant under a sub-tenancy previously granted. It has been clear from the earliest times that it does not do so.[23]
[22][2000] 2 AC 264, 271 (Barrett v Morgan).
[23]Ibid, 271 (Lord Millett).
Accordingly, the administrators argue that growers’ rights under their subleases from GPL cannot be prejudiced by the surrender of the head lease options, and thus retain their rights.
The administrators say that for these reasons the growers have a perfectly tenable argument that the head leases (internal leases) have not expired and that the growers retain proprietary rights to the plantations.
Trust Co response
I have already covered some of the arguments that Trust Co raises in response. In addition, Trust Co says that there is no evidence that the head leases to GPL were in fact amended to extend the harvesting period to 13½ years. Trust Co also refers to the constitution of the 2000 Great Southern scheme. Trust Co argues that under clause 7 of the constitution, the responsible entity was obliged to satisfy itself that it has the power to grant the sub-leases to the growers. Trust Co contends that GPL had the responsibility to ensure that any adjustment it made to the sub-lease is something it was capable of granting in circumstances where it holds the leasehold pursuant to a head lease.
Temporal limitation
Trust Co contends that under cl 6.6 dealing with the amendment to the internal leases, there is a temporal limitation that the amendments to the internal leases were to be affected on the first replacement date of 31 December 2009. In other words, the amendments that were to be made under cl 6.6(c) were to be made on 31 December 2009.
Construction of cl 6.6
Trust Co argues that on the proper construction of cl 6.6(c) the “similar or consequential amendments” were to be made to the relevant LMAs and not to the Internal Leases. The administrators, on the other hand, argue that the amendments were to be to the Internal Leases. Trust Co says that under the proposal for the appointment of GPL as the new responsible entity, the rent payable by the responsible entity was to be reduced from a commercial rate to a peppercorn rate. On the other hand, the options to renew were being withdrawn. Trust Co says that these amendments required the amendment of the LMAs to bring the sub-leases into line with the head leases. Trust Co says that the clause did not envisage an amendment to the Internal Leases.
Trust Co was not aware of the implementation deed
Trust Co says that there was no implied term of the Deed of Covenant entered into by Trust Co to amend the head leases arising from the terms of cl 6.6(c). Trust Co says that there is no evidence Trust Co had a copy of the Implementation Deed or even knew of its existence when it acquired the land the subject of the leases to GPL from the Great Southern companies.
Surrender
Trust Co says that the “Term” of the head lease to GPL was not defined to include the options for further terms. The options, if exercised, gave rise to the “First Further Term” and the “Second Further Term.” Trust Co says unless and until there was an exercise of the option for a further term, the additional periods are not part of the term of the lease.
Trust Co also say that the principles of surrender referred to in Barrett v Morgan only operate in respect of the surrender of a leasehold estate. Trust Co says that the agreement to forgo options to renew the lease did not constitute the surrender of a leasehold estate.
In conclusion, Trust Co says that any suggestion that the leases are not at an end and that the rights of the growers have terminated is untenable.
Conclusion and discussion
The Court has a discretion whether or not to exercise its power under s 447A to make such order as it thinks fit appropriate about how Part 5.3A is to operate in relation to GPL. In exercising that discretion, it is unnecessary and probably inappropriate for the Court to rule on the various contentions as to whether or not the growers have a proprietary interest in the plantations on the leased land. In my view, it is sufficient for the Court to be satisfied that the growers have an arguable case that they retain an interest in the plantations. In those circumstances, they have a feasible prospect that new responsible entity may be found to take over the managed investment schemes.
As discussed above, it is in the interests of creditors of GPL that such a restructuring can be achieved. Accordingly, in my view, the administrators should be extended all reasonable assistance to achieve that end bearing in mind any prejudice to the landlords.
In my view, the prejudice to the creditors far outweighs any prejudice to the landlords, and I propose to grant the extra period of grace sought by the administrators.
Applications under s 440B(2)
Both Trust Co and the AFP Trusts seek the Court’s leave to exercise their rights to take possession of their properties. For the reasons I have given in relation to the application to extend the grace period, I decline the applications. There would be little point in extending the grace period under s 447A for the reasons I have given, if I were to grant leave as sought by the applicants. On the other hand, if I had not extended the grace period, there would be good reason to consider the application and the effect of granting the application on the administration of the GPL.
Indemnity and lien for the landlords in respect of rent
The administrators concede that if the Court grants the administrators the relief they seek, the landlords will be prejudiced, namely the absence of the administrators’ personal liability for lease payment obligations for two months, in the total sum of about $3.5 million.
The administrators have considered how best to temper the landlords’ prejudice. They say that an extension of the grace period would result in the landlords in effect assisting the administrators in caring for, protecting, preserving and where necessary realising the scheme property of the Schemes. Accordingly, the administrators propose to treat (and seek a direction that they are justified in doing so) the landlords as being entitled to an indemnity secured by an equitable lien, under the Universal Distributing principle and/or the salvage principle, in respect of their rights to recover rent and other amounts under the leases. These principles were the subject of recent exposition by this Court.[24] This way, the landlords will be no worse off.
[24]Thackray v Gunns Plantations Ltd [2011] VSC 380, [38]-[51]; Re S&D International Pty Ltd (No 5) [2011] VSC 30, [224]-[261].
The AFP Trusts initially submitted that a direction by the Court would not be sufficient to give rise to the lien. The final orders tendered by the administrators seek to use s 447A to achieve the lien. The order granting the extension of the grace period is said to be on condition that:
(iii)the owner of lessor is entitled to be indemnified out of the assets and/or property, including the trees, of each of the relevant Forestry Schemes to which the Lease Agreement relates for so much of the rent or other amounts payable by the company under the Lease Agreement as is attributable to a period from 1 December 2012 to 31 January 2013;
(iv)the owner or lessor has a lien on the scheme property of the relevant Forestry Schemes to which the Lease Agreement relates to secure the right of indemnity referred to in (iii) above
Neither the AFP Trusts or the Trust Co suggested that the Court had no power to make such an order, or that the order would be futile. Neither opposed such an order being made.
Section 447A provides as follows:
(1) The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.
(2) For example, if the Court is satisfied that the administration of a company should end:
(a) because the company is solvent; or
(b) because provisions of this Part are being abused; or
(c) for some other reason;
the Court may order under subsection (1) that the administration is to end.
(3) An order may be made subject to conditions.
(4) An order may be made on the application of:
(a) the company; or
(b) a creditor of the company; or
(c) in the case of a company under administration--the administrator of the company; or
(d) in the case of a company that has executed a deed of company arrangement--the deed’s administrator; or
(e) ASIC; or
(f) any other interested person.
GPL remains liable for the rent of the relevant properties, even though the administrators are relieved from any personal obligation to pay the accruing rent. The issue before me is: should the landlords be given both security for the rent accruing over the assets of GPL and priority over other creditors of the company in the event GPL is wound up?
Under the Act, provision is made for the administrators to have a right of indemnity from the company for debts or liabilities incurred in the administration (s 443D). An order under s 447A must concern how Part 5.3A is to operate in relation to a company. In my opinion, s 447A might be used to extend a similar right of indemnity to that enjoyed by an administrator to a party other than the administrator which is also incurring debts or liabilities or foregoing income in providing assistance to the company whilst it is under administration. This may have particular relevance where the administrators have sought an extension of the grace period rather than paying the rent themselves and the landlords are foregoing rent.
In my opinion, the Court may have power to make an order as to how the right of indemnity is to operate that may extend the indemnity to others.
In my opinion, the Court could order that the landlords are entitled to be indemnified out of the company’s property for any rent payable by the company as is attributable to the period 1 December 2012 to 31 January 2013 on the same basis that the administrators are entitled to be indemnified under s 443D, subject to the condition that the landlords’ right of indemnity will be subject to the same right of priority as the administrators have under the Act, and, save that the landlords’ right of indemnity will subject to the administrators’ prior right of indemnity. I do not see any need for a lien in those circumstances. The Act itself gives something similar to security in giving priority to the indemnity.
Should such an order be made?
The evidence before me suggests that the landlords would not be able to lease their properties for the period of 1 December 2012 to 31 January 2013 even if the administrators gave notice that they no longer intend to exercise rights in relation to the property.
In my view, insufficient reason has been put forward for the landlords to obtain priority for their unsecured debts over the other unsecured creditors in the event of a liquidation of GPL. Accordingly, I decline to impose the condition about the lien sought by the administrators or make an order of the kind that I find might be made to grant an indemnity on a person other than the administrator.
Should the Court give a direction about indemnity and lien for the administrators functions in respect of the schemes?
The administrators seek directions under s 447D of the Act akin to those given by this Court to the receivers and managers of Great Southern shortly after their appointment,[25] prospectively endorsing the administrators’ performing functions in caring for, protecting, preserving and where necessary realising the scheme property of the Schemes, on the basis that if their expenditure and remuneration are reasonable they will be entitled to an indemnity and lien under the principle in Universal Distributing.
[25]See Re Great Southern Managers (Australia) Ltd (No 1) (2009) 77 ACSR 9.
Section 447D(1) provides:
The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator’s functions and powers
The administrators propose to follow a similar course to that adopted in the Great Southern proceedings, so that after the functions are performed they will apply for a declaration about their entitlement to the indemnity and lien, and seek to satisfy the Court that their expenditure and remuneration were reasonable.[26]
[26]Thackray v Gunns Plantations Ltd [2011] VSC 380 and [2011] VSC 417.
Performing those functions, such as maintenance (which, among other things, reduces the risk of bushfires), benefits both Growers and landlords. The administrators anticipate that they will delegate the work, as has been done under the services agreements with Gunns Forest Products Pty Ltd (‘GFP’) (controlled by the receivers).
I find that a direction would be appropriate under s 447D(1) of the Act, that the Administrators are justified in caring for, protecting, preserving and, where necessary, realising the assets and/or property, including the trees (the ‘Scheme Property’), of each of the Forestry Schemes, including by undertaking necessary management and maintenance in respect of the Scheme Property.
Pursuant to s 447D(1) of the Act, the administrators are justified in carrying out their duties as administrators of GPL and proceeding on the basis that if they incur reasonable expenditure in the care, protection, preservation and/or realisation of the Scheme Property, including by undertaking necessary management and maintenance in respect of the Scheme Property, the Administrators will be entitled to indemnify themselves for that expenditure and reasonable remuneration out of:
(a) the Scheme Property;
(b) the proceeds of sale of any Scheme Property of each of the Forestry Schemes;
(c) the proceeds of any insurance claims in respect of each of the Forestry Schemes;
whether present or future (together, the ‘Lienable Property’), and the Administrators are entitled to an equitable lien over the Lienable Property to secure that indemnity in accordance with the principles in Universal Distributing and/or the “salvage principle”, providing that they be justified in proceeding on that basis.
Pursuant to s 447D(1) of the Act, the administrators seek an order that they are justified in procuring GPL, in its capacity as the responsible entity of the Forestry Schemes, to enter into and perform the Deed of Compromise in relation to the Maintenance Reserve Guarantee and the RE Guarantee.
GPL is the named beneficiary in respect of six bank guarantees given by ANZ Bank, as follows:
(a) Guarantee No. DG141693418 issued on 20 April 2012 for an amount not exceeding $4,000,000;
(b) Guarantee No. DG34293418 issued on 11 July 2011 for an amount not exceeding $113,657;
(c) Guarantee No. DG34333418 issued on 11 July 2011 for an amount not exceeding $495,059;
(d) Guarantee No. DG34303418 issued on 11 July 2011 for an amount not exceeding $319,375;
(e) Guarantee No. DG34313418 issued on 11 July 2011 for an amount not exceeding $363,564; and
(f) Guarantee No. DG34323418 issued on 11 July 2011 for an amount not exceeding $2,233,506.
In October 2012, the administrators sought to call on the Guarantees but the receivers disputed the administrators’ right to do so. A dispute arose between the administrators and the receivers as to whether the Guarantees and any funds advanced under those Guarantees fell within certain securities. Namely: (a) a fixed and floating charge made on 31 January 2007 in favour of ANZ Capel Court Limited in its capacity as security trustee for the Gunns Financing Security Trust; or (b) a fixed and floating charge made on 8 February 2010 in favour of the Secured Party.
On the one hand, the administrators claimed that the Guarantees were each provided to GPL for specific purposes relating to its role as responsible entity of the Forestry Schemes and the maintenance of certain Great Southern Schemes and, in those circumstances, are held on trust by GPL in its capacity as responsible entity. On that basis, the administrators claimed that the Guarantees and any funds paid under them do not fall within the assets covered by the securities.
On the other hand, the receivers claimed that the Guarantees and any funds advanced under them constitute property of GPL in its personal capacity. In support of that argument, the receivers pointed to terms of the relevant Scheme constitutions and Scheme documents to suggest that there is no requirement that the Guarantees are to be held on trust by GPL for the benefit of the relevant Forestry Schemes. On that basis, the receivers claim that the Guarantees and funds advanced under them fall within the secured property under the Securities in favour of the receivers’ appointors.
A commercial settlement has been reached between the administrators and the receivers and is documented in a deed of compromise. The administrators seek directions under s 447D that they are justified in entering into the compromise with the receivers.
The administrators say that the Court may exercise its discretion to give directions under s 447D where a matter is before an administrator giving rise to questions about potential legal liability of the administrator on matters of proprietary and reasonableness and they refer to the decision of Goldberg J in Re Ansett Australia Ltd (No 3),[27] where his Honour stated that when administrators seek directions under s 447D:
When liquidators and administrators seek directions from the Court in relation to any decision they have made, or propose to make, or in relation to any conduct they have undertaken, or propose to undertake, they are not seeking to determine rights and liabilities arising out of particular transactions, but are rather seeking protection against claims that they have acted unreasonably or inappropriately or in breach of their duty in making the decision or undertaking the conduct.[28]
[27](2006) 115 FCR 409 (Re Ansett).
[28]Ibid, [44].
Justice Goldberg went on to say:
There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised.[29]
[29]Ibid, [65].
The principles stated in Goldberg J in Re Ansett were subsequently applied in Rewards Projects Ltd v The Ark Fund Ltd [30] by Le Miere J:
Such issues exist with regards to directions allowing entry into and giving effect to the Crop Deed. Firstly, the contemplated modification to s 442C of the Act concerns a question of empowerment and therefore requires authorisation by the court. The question of empowerment arises as it is not known who at present the relevant owners of the property is. Further, the Administrators are being permitted to dispose of property in the possession of Rewards Projects, but in respect of which other persons are the owners. Secondly, the Administrators are realising the property of another, just who being uncertain, giving rise to issues of reasonableness and propriety.[31]
[30][2010] WASC 394.
[31]Ibid [9].
Similar circumstances are present here in relation to the approval sought by the administrators in relation to their entry into the Compromise Deed, in that the Compromise Deed involves potentially realising property of another party if the bank guarantees are held on a constructive trust for the purposes of maintaining the grower’s plantations. The entry into the Compromise Deed therefore involves issues of propriety and reasonableness in respect of which the administrators seek the Court’s direction.
In my opinion, where there are two claimants to the property (as in this case), the issue goes well beyond an administrator making a commercial decision. It goes to issues of legal liability and exposes the administrators to claims that they exercise rights that they do not have, or alternatively fail to fully enforce rights they did have.
On 4 October 2012, the administrator’s solicitors briefed Philip D Corbett SC to provide a written opinion as to whether the entry by the administrators in the deed of compromise represents a reasonable commercial compromise to the disputes between the administrators and receivers as to whether the Guarantees and the RE Guarantees and their proceeds fall within the Charge in favour of the receiver’s appointers having regard to the legal issues and commercial circumstance pertaining to that dispute.
I have considered the advice which I have accepted into evidence on a confidential basis. Mr Corbett helpfully refers to the decision Finkelstein J made in Re Pasminco Ltd (No 2),[32] where his Honour considered the power of the Court to give directions to trustees, administrators, liquidators and the like.
[32](2004) 49 ACSR 470.
As I said, consistent with those principles, I am not concerned with the commercial prudence of the proposed compromise. After reading the opinion of Mr Corbett, I am satisfied that in entering into the compromise, the administrators are not acting beyond their powers and are acting reasonably and properly in doing so.
Accordingly, I will make the directions sought.
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