Re Virgin Australia Holdings Ltd (admins apptd) (No 2)
[2020] FCA 717
•20 May 2020
FEDERAL COURT OF AUSTRALIA
Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 2) [2020] FCA 717
File number: NSD 464 of 2020 Judge: MIDDLETON J Date of judgment: 20 May 2020 Date of publication of reasons: 26 May 2020 Catchwords: CORPORATIONS – application under r 9.05 of the Federal Court Rules 2011 (Cth) to join a person to existing proceedings – where common issues have arisen and will arise
CORPORATIONS – application under s 1322(4)(a) of the Corporations Act 2001 (Cth) to cure insufficient notice of first creditors meeting in accordance with s 436E of the Corporations Act 2001 (Cth) – whether notice sent to creditors in accordance with rr 75-225(1) and 75-15 of the Insolvency Practice Rules (Corporations) 2016 is invalidated by reason of insufficient notice – where insufficient notice cured by s 1322(4) of the Corporations Act 2001 (Cth) – where the Court has an unfettered discretion under s 1322(6) to make an order under s 1322 of the Corporations Act 2001 (Cth)
CORPORATIONS – holding creditors meetings by video-link or telephone, rather than in person – reference to ‘place’ in rr 75-15(1)(a), 75-30(1) and 75-35(1)(a) of the Insolvency Practice Rules (Corporations) 2016 (Cth) – electronic notice to creditors
CORPORATIONS – incorporation of entity into existing committee of inspection – whether Divs 75 and 80 of the Insolvency Practice Rules (Corporations) 2016 (Cth) and Div 75 of the Insolvency Practice Rules (Corporations) 2016 (Cth) are to operate as if the requirement in rr 80-10 and 80-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) be dispensed with
CORPORATIONS – extension of convening period for meeting of creditors pursuant to s 439A(6) of the Corporations Act 2001 (Cth) – legal principles – whether appropriate case for extension of convening period
CORPORATIONS – limitation of personal liability of administrators – whether administrators’ personal liability can be limited with respect to certain agreements of the company under administration – whether administrators’ personal liability can be excluded with respect to repayment of monies advanced by the Commonwealth of Australia under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) – whether administrators’ personal liability can be limited for intercompany loans – legal principles concerning ss 443A and 447A of the Corporations Act 2001 (Cth)
CORPORATIONS – issuing of conditional credits to customers of a company in administration – whether liabilities incurred with respect to obligations arising out of, or in connection with, the issuing of conditional credits are in the nature of debts incurred by administrators – personal liability of administrators
CORPORATIONS – company report where there is overlap in the business of related companies under administration – where companies under administration are party to a deed of cross guarantee and prepare financial reports on a consolidated basis – whether one report can be prepared for companies that are party to a deed of cross guarantee
CORPORATIONS – application for leave to members of a committee of inspection to derive a profit or advantage from external administration – where arms-length transactions during administration with creditors who are members of the committee of inspection is in best interests of creditors
CORPORATIONS – common bank accounts – whether separate administration accounts required
Legislation: Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth)
Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 2) 2020 (Cth)
Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth)
Corporations Act 2001 (Cth)
Federal Court (Corporations) Rules 2000 (Cth)
Federal Court Rules 2011 (Cth)
Insolvency Practice Rules (Corporations) 2016 (Cth)
Personal Property Securities Act 2009 (Cth)
Cases cited: ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No 5) [2008] FCA 1947
Australian Liquor, Hospitality & Miscellaneous Workers’ Union v Terranora Lakes Country Club Ltd (1996) 19 ACSR 687
Bumbak (Administrator), in the matter of Duro Felguera Australia Pty Limited (Administrators Appointed) [2020] FCA 422
Commissioner of State Taxation v Pollock (1993) 11 WAR 64
Deputy Commissioner of Taxation v Scottsdale Homes No 3 Pty Ltd (No 2) [2009] FCA 190
Eagle, in the matter of Techfront Australia Pty Limited (administrators appointed) (No 2) [2020] FCA 618
Energy & Resource Conservation Co Ltd (In Liq) v Abigroup Contractors Pty Ltd (1997) 41 NSWLR 169
Ex parte Vouris; in the matter of Marrickville Bowling & Recreation Club Ltd (under Administration) [2008] FCA 622
Farnsworth v About Life Pty Limited (Administrator Appointed), in the matter of About Life Pty Limited [2019] FCA 11
Fitzgerald, In the matter of Primebroker Securities Limited (Administrator Appointed) (Receivers and Managers Appointed) [2008] FCA 1247 Hawkins v Bank of China (1992) 26 NSWLR 562
In the matter of Belmont Sportsmans Club Co-Operative Limited (Administrators Appointed) [2015] NSWSC 543
In the matter of Daisytek Australia Pty Limited [2003] FCA 575
In the matter of DH International Pty Ltd (in liq) (No 2) [2017] NSWSC 871
In the matter of Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426
In the matter of Golden Gate Petroleum Ltd [2010] FCA 40
In the matter of Harrisons Pharmacy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) [2013] FCA 458
In the matter of Kavia Holdings Pty Limited (administrators appointed) (receivers and managers appointed) [2013] NSWSC 737
In the matter of Milgerd Nominees Pty Ltd [2019] NSWSC 311
In the matter of National Roads and Motorists’ Association Ltd [2003] FCAFC 206
In the matter of Nexus Energy Ltd [2014] NSWSC 1041
In the matter of Riviera Group Pty Ltd (admins apptd) (recrs & mgrs. apptd) [2009] NSWSC 585
In the matter of Unlockd Limited (administrators appointed) [2018] VSC 345
Jahani, in the matter of Northern Energy Corporation Ltd (Administrators Appointed) (No 2) [2019] FCA 382
Korda, in the matter of Ten Network Holdings Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2017] FCA 1144
Lombe, in the matter ofBabcock & Brown Limited (Administrators Appointed) [2009] FCA 349
Lombe re Australian Discount Retail Pty Ltd [2009] NSWSC 110
Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
McKinnon, in the matter of Specialised Concrete Pumping Victoria Pty Ltd (Administrators Appointed) [2016] FCA 325
Mentha, in the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933
Mighty River International Ltd v Hughes (as deed administrators of Mesa Minerals Ltd) (2018) 359 ALR 181
Owen and Others in their capacity as joint and several administrators of Rivercity Motorway Pty Ltd (ACN 116 665 304) (admins apptd) (recs and mgrs. Apptd)) v Madden (No 4) (2012) 92 ACSR 255
Park, in the matter of Surfstitch Group Ltd (Administrators Appointed) [2017] FCA 1244
Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia [No 3] (1998) 195 CLR 1
Re Ansett Australia (No 1) (2002) 115 FCR 376
Re Chemeq Ltd 009 135 264 (Administrators Appointed) (Receivers and Managers Appointed), ex parte McMaster [2007] WASC 154
Re Diamond Press Australia Pty Ltd [2001] NSWSC 313
Re F.T. Hawkins & Co., Ltd [1952] 2 All ER 467
Re Insurance Australia Group Ltd (2003) 128 FCR 581
Re Wave Capital Ltd [2003] FCA 969
Re Wood Parsons Pty Ltd (in liq) [2002] NSWSC 1058
Silvia v FEA Carbon Pty Ltd (2010) 185 FCR 301 T
Silvia, in the matter of Austcorp Group Ltd (Administrators Appointed) [2009] FCA 636
Standard Chartered Bank of Australia Ltd v Antico [Nos 1 and 2] (1995) 38 NSWLR 290
Stewart, in the matter of Kleins Franchising Pty Ltd (administrators appointed) (ACN 007 348 236) [2008] FCA 721
Stirling Lindley Horne and Petr Vrsecky (in their capacities as joint and several administrators of Australian Property Custodian Holdings Limited) (ACN 095 474 436) (Administrators appointed) (Receivers and Managers appointed) [2010] VSC 657
Strawbridge (Administrator) v Retail Holdings Pty Ltd (Administrators Appointed), In the Matter of Retail Adventures Holdings Pty Ltd (Administrators Appointed) [2013] FCA 151
Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) [2020] FCA 571
Uni-Aire Security Pty Ltd (Administrators Appointed) ACN 085 430 619, in the matter of Uni-Aire Security Pty Ltd (Administrators Appointed) ACN 085 430 619 [2006] FCA 1423
Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427
Worrell; In the matter of Storm Financial Ltd (Receivers and Managers Appointed) (Administrators Appointed) [2009] FCA 70
Date of hearing: 13, 15 and 20 May 2020 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 200 Counsel for the Plaintiffs: Dr R C A Higgins SC with Mr D Sulan, Mr R Yezerski and Mr D Krochmalik Solicitor for the Plaintiffs: Clayton Utz Counsel for the First Interested Person (Commonwealth of Australia): Mr J P Moore QC Solicitor for the First Interested Person (Commonwealth of Australia): King & Wood Mallesons Counsel for the Second Interested Person (Deputy Commissioner of Taxation): Mr P Hanks QC and Ms C Conway Solicitor for the Second Interested Person (Deputy Commissioner of Taxation): HWL Ebsworth ORDERS
NSD 464 of 2020 IN THE MATTER OF VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED) ACN 100 686 226 & ORS
VAUGHAN STRAWBRIDGE, SALVATORE ALGERI, JOHN GREIG AND RICHARD HUGHES, IN THEIR CAPACITY AS JOINT AND SEVERAL VOLUNTARY ADMINISTRATORS OF EACH OF VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED)
First Plaintiffs
VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED) ACN 100 686 226
Second Plaintiff
VIRGIN AUSTRALIA INTERNATIONAL OPERATIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 155 859 608 (and others named in the Schedule)
Third Plaintiff
JUDGE:
MIDDLETON J
DATE OF ORDER:
13 May 2020
THE COURT ORDERS THAT:
1.The Interlocutory Process filed on 11 May 2020 be made returnable at 10.15am on 13 May 2020.
Tiger International No. 1 Pty Ltd
Joinder
2.Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth) that Tiger International No. 1 Pty Ltd (Administrators Appointed) ACN 606 131 944 (Tiger 1) be added to this proceeding as Fortieth Plaintiff.
First meeting of creditors
3.Pursuant to section 1322(4)(a) of the Corporations Act the convening and holding of the first meeting of creditors of Tiger 1 in accordance with section 436E of the Corporations Act, pursuant to the notice sent to creditors in accordance with sections 75-225(1) and 75-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR), is not invalidated by reason of the notice having been issued on 7 May 2020 (resulting in less than five business days' notice of the meeting being given to the creditors of Tiger 1).
4.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, that Part 5.3A of the Corporations Act is to operate, nunc pro tunc, in relation to Tiger 1, as if any notice (Notice) required to be given pursuant to sections 75-225(1) and 75-15 of the IPR is validly given to creditors of Tiger 1 by taking the following steps in accordance:
(a)where the First Plaintiffs:
(i)have an email address for a creditor, by sending the Notice by email to each such creditor;
(ii)where the First Plaintiffs do not have an email address for a creditor, but have a postal address for the creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), by sending the Notice by posting a copy of it to the postal address for each such creditor;
(b)by publishing the Notice on the Australian Securities and Investments Commission (ASIC) published notices website at and
(c)by publishing the Notice on the website maintained by the First Plaintiffs at notices to creditors to be provided electronically
5.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, that if, pursuant to any provision in any of Part 5.3A of the Corporations Act, Part 5.3A of the Corporations Regulations 2001 (Cth), the IPSC, or the IPR, the First Plaintiffs are required to provide any other notification to creditors during the administration of Tiger 1, the applicable notice requirements will be satisfied if the First Plaintiffs give such notice by taking the following steps:
(a)where the First Plaintiffs:
(i)have an email address for a creditor, by notifying each such creditor of the relevant matter via email;
(ii)do not have an email address for a creditor, but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), by notifying each such creditor in writing of the relevant matter via post;
(b)by publishing notice of the relevant matter on the website maintained by the First Plaintiffs at and
(c)to the extent that the matter relates to a meeting that is the subject of section 75-40(4) of the IPR, by causing notice of the meeting to be published on the ASIC published notices website at meetings of creditors electronically
6.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, that, to the extent not permitted specifically by sections 75-30, 75-35 and 75-75 of the IPR and the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth), the First Plaintiffs be permitted to hold meetings of creditors during the administration of Tiger 1 by telephone or audio-visual conference only at the place of the First Plaintiffs’ offices (without creditors of Tiger 1 being able to attend physically at that place), with such details of the arrangements for using the telephone or audio-visual conference facilities to be specified in each of the notices issued to creditors.
7.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, that, to the extent not permitted specifically by section 75-35(2)(b) of the IPR and the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth), the creditors of Tiger 1 who wish to participate at any meeting of Tiger 1 by telephone or audio-visual conference only at the place of the First Plaintiffs’ offices (without creditors of Tiger 1 being able to attend physically at that place), must lodge with the First Plaintiffs, no later than the second last business day before the day on which the meeting is held, specific proxy forms containing the information in section 75-35(2)(b)(i)-(iii) of the IPR (with liberty to notify the First Plaintiffs of the withdrawal of that specific proxy and amended vote following any discussion at a meeting, in advance of a resolution being passed).
Committee of Inspection
8.Pursuant to section 447A(1) of the Corporations Act and 90-15 of the IPSC, that Divisions 75 and 80 of the IPSC, and Division 75 of the IPR are to operate as if the requirement in sections 80-10 and 80-15 of the IPSC for the creditors of a company to resolve that a committee of inspection be formed and to appoint members of the committee of inspection, be dispensed with.
9.Order 6(b) of the orders made on 24 April 2020 be varied by deleting the words “Thirty-Ninth Plaintiffs” and replacing them with the words “Fortieth Plaintiffs”, such that that order reads:
a single committee of inspection be formed in respect of the Second to Fortieth Plaintiffs.
10.Pursuant to section 447A(1) of the Corporations Act and 90-15 of the IPSC First Plaintiffs are not required to issue any further Proposal (as that term is defined in Order 6(d) of the orders made on 24 April 2020) to the creditors of the Second to Fortieth Plaintiffs.
Extension of Convening Period
11.Pursuant to section 439A(6) of the Corporations Act the convening period defined in section 439A(5)(b) of the Corporations Act in respect of each of the Second to Fortieth Plaintiffs (together, the Virgin Companies and each, a Virgin Company), be extended until 18 August 2020.
12.Pursuant to section 447A(1) of the Corporations Act, that Part 5.3A of the Corporations Act is to operate in relation to each of the Virgin Companies such that, notwithstanding section 439A(2) of the Corporations Act, the second meeting of the creditors of each of the Virgin Companies required under section 439A of the Corporations Act may be convened at any time before, or within, five (5) business days after, the end of the convening period as extended by order 12 above (provided the First Plaintiffs give notice of the meetings to eligible creditors of each of the Virgin Companies (including the persons claiming to be creditors of the Virgin Companies) at least five (5) business days before the meeting).
Limitation of Administrators’ Liability
Current Rio Tinto Agreement
13.Pursuant to sections 447A(1) and 443B(8) of the Corporations Act and section 90-15 of the IPSC, that Part 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if section 443A(1) of the Corporations Act provides that:
(a)the liabilities of the First Plaintiffs (in their capacity as administrators of the Twentieth Plaintiff) incurred with respect to any obligations arising out of, or in connection with, an agreement entered into with Rio Tinto Services Limited in respect of charter flights as described in paragraph 101 of the Strawbridge Affidavit (Rio Tinto Agreement), are in the nature of debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of the Twentieth Plaintiff; and
(b)notwithstanding that the liabilities in suborder (a) are debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of the Twentieth Plaintiff, the First Plaintiffs will not be personally liable to repay such debts or satisfy such liabilities to the extent that the proceeds of any applicable insurance policy held by or for the benefit of the First Plaintiffs or the Twentieth Plaintiff, or assets of the Twentieth Plaintiff are in aggregate insufficient to satisfy the debt and liabilities incurred by the First Plaintiffs arising out of, or in connection with, the Rio Tinto Agreement.
Conditional Credits
14.Pursuant to section 90-15 of the IPSC, the Court directs the First Plaintiffs would be justified in issuing conditional credits to customers of the Virgin Companies in accordance with the proposal set out in Schedule 2 to these orders (Conditional Credits).
15.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, that Part 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if section 443A(1) of the Corporations Act provides that:
(a)the liabilities of the First Plaintiffs incurred with respect to any obligations arising out, of or in connection with, the issuing of Conditional Credits, including but not limited to taxes, airline surcharges and ancillary fees associated to the Conditional Credits Proposal, are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies; and
(b)notwithstanding that the liabilities for the Conditional Credits are debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies, the First Plaintiffs shall not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of the particular Virgin Company or Virgin Companies that are the issuers of the Conditional Credits are insufficient to satisfy the debt and liabilities incurred by the First Plaintiffs arising out of, or in connection with, the issuance of the Conditional Credits.
Other ancillary orders
16.The First Plaintiffs must take all reasonable steps to cause notice of these orders to be given, within one (1) business day after the making of these orders, to:
(a)the creditors (including persons or entities claiming to be creditors) of each of the Virgin Companies, in the following manner:
(i)where the First Plaintiffs have an email address for a creditor, notifying each such creditor, via email, of the making of the orders and providing a link to a website where the creditor may download the orders and the Interlocutory Process;
(ii)where the First Plaintiffs do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), notifying each such creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and the Interlocutory Process; and
(iii)placing scanned, sealed copies of the orders and the Interlocutory Process on the website maintained by the First Plaintiffs at and
(b)ASIC; and
(c)the Australian Competition and Consumer Commission (ACCC).
17.Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge any orders made pursuant to orders 2 to 16 above, on 1 business days' written notice being given to the Plaintiffs and to the Associate to Justice Middleton.
18.The First Plaintiffs have liberty to apply for any further extension of the convening period as extended by order 12 above at any time before 18 August 2020.
19.Order 12 of the orders made on 24 April 2020 be varied by deleting the words “Thirty-Ninth Plaintiffs” and replacing them with the words “Fortieth Plaintiffs” such that that order reads:
The Plaintiffs have liberty to apply on 1 business day’s written notice to the Court in relation to any variation of these orders or any other matter generally arising in the administrations of each of the Second to Fortieth Plaintiffs.
20.The Plaintiffs' costs of this application be costs in the administration of the Virgin Companies, jointly and severally.
21.These orders be entered forthwith.
22.The hearing be stood over until 10.15am on Friday, 15 May 2020 in respect of paragraphs 14, 15, 18, 20, 21, 22 of the Interlocutory Process.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 464 of 2020 IN THE MATTER OF VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED) ACN 100 686 226 & ORS
VAUGHAN STRAWBRIDGE, SALVATORE ALGERI, JOHN GREIG AND RICHARD HUGHES, IN THEIR CAPACITY AS JOINT AND SEVERAL VOLUNTARY ADMINISTRATORS OF EACH OF VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED)
First Plaintiffs
VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED) ACN 100 686 226
Second Plaintiff
VIRGIN AUSTRALIA INTERNATIONAL OPERATIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 155 859 608 (and others named in the Schedule)
Third Plaintiff
JUDGE:
MIDDLETON J
DATE OF ORDER:
15 MAY 2020
THE COURT ORDERS THAT:
JobKeeper
1.By consent of the First Plaintiffs and the Deputy Commissioner of Taxation, the hearing of paragraph 18 of the Interlocutory Process be stood over until 10.15am on 20 May 2020, with liberty to the parties to provide the Associate to Middleton J any orders which are not opposed by the Deputy Commissioner of Taxation with respect to the relief sought in that paragraph.
Limitation of Administrators' Liability
Specified Categories of Future Agreements
2.Pursuant to section 447A(1) of the Corporations Act 2001 (Cth) (Corporations Act) and section 90-15 of the Insolvency Practice Schedule 2016 (Cth), being Schedule 2 to the Corporations Act (IPSC), Part 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if section 443A(1) of the Corporations Act provides that:
(a)the liabilities of the First Plaintiffs (in their capacity as administrators of each of the Virgin Companies) incurred with respect to any obligations arising out of, or in connection with, any future:
(i)agreement on the terms of, or substantially in accordance with, the Aircraft Protocols document in the form exhibited at Tab 12 of Exhibit VNS-2 to the Strawbridge Affidavit;
(ii)alliance agreements, being international arrangements established with various global airlines that provide the Virgin Companies with a long distance international network;
(iii)procurement contracts, including:
A.in-flight services agreements, being agreements entered into for the provision of food and beverages and other retail on-board services, catering, entertainment and internet wifi on flights operated by the Virgin Companies;
B.ground handling agreements, being agreements entered into for the provision of ground handling services for the Virgin Companies' flight arrivals and departures at national and international airports;
C.operational systems agreements, being agreements entered into for the provision of support and maintenance services in relation to licenced software, systems, platforms and network infrastructure;
D.fuel agreements, being agreements entered into for the supply and delivery of fuel to the Virgin Companies at various locations throughout Australia, New Zealand and the United States;
E.maintenance and parts agreements, being agreements entered into for the provision of maintenance, repair and modification services for aircraft operated by the Virgin Companies, including the provision of the relevant component parts;
F.IT agreements, being agreements entered into for the provision of core computer infrastructure and end user computing support services and business services to the Virgin Companies;
(iv)trade mark licence agreements;
(v)airport agreements, being agreements entered into with major airports across Australia, for the use of terminal gates, public spaces and facilities and for sub-leases in relation to each of the Virgin Companies' airport lounges;
(vi)charter agreements, being agreements entered into with various major companies for the supply of scheduled air transport services for personnel and freight to nominated destinations agreed between the parties to the agreement;
(vii)cargo agreements, being agreements entered into for the handling of cargo and the provision of management, administration and support services;
(viii)corporate sales agreements, being agreements entered into with major travel agents and other platforms, including with both government and private counterparties, which set out incentives offered by the Virgin Companies for the sale of Virgin flights by the relevant agents;
(ix)industry/agency agreements, being agreements entered into which provide for the preferred supply by the Virgin Companies of flight services to each of its clients, including with both government and private counterparties;
(x)insurance arrangements, including contracts to support the ongoing operation of the Virgin Companies' self-insurance scheme; and
(xi)training agreements, being agreements entered into to provide ongoing training to crew members.
(together, the Applicable Agreements and each, an Applicable Agreement) are in the nature of debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies; and
(b)notwithstanding that the liabilities in suborder (a) are debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies, the First Plaintiffs will not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of the particular Virgin Company or Virgin Companies that is or are a party to the particular Applicable Agreement are insufficient to satisfy the debt and liabilities incurred by the First Plaintiffs arising out of, or in connection with, the Applicable Agreements.
3.Pursuant to section 447A of the Corporations Act and section 90-15 of the IPSC, the First Plaintiffs are to provide notice, in the Applicable Agreement or otherwise, to any counterparty to an Applicable Agreement of order 2 above, prior to that counterparty entering into an Applicable Agreement.
4.Pursuant to section 447A of the Corporations Act and section 90-15 of the IPSC, the First Plaintiffs are to:
(a)keep a schedule noting each Applicable Agreement entered into by the First Plaintiffs on behalf of any of the Virgin Companies; and
(b)provide an update to the Committee of Inspection formed for the Second to Fortieth Plaintiffs (Committee), at each meeting of the Committee, as to each Applicable Agreement that the First Plaintiffs have entered into or proposed to be entered into together with estimated debts that may be incurred in respect of each Applicable Agreement, on behalf of any of the Virgin Companies.
Virgin Company Loan Monies
5.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, Part 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if section 443A(1) of the Corporations Act provides that:
(a)any liability incurred by the First Plaintiffs arising out, of or in connection with, any loan or monies borrowed by a Virgin Company from another Virgin Company or Virgin Companies are in the nature of debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies; and
(b)notwithstanding that the liabilities in suborder (a) are debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies, the First Plaintiffs will not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of the particular Virgin Company that has borrowed monies from any other Virgin Company or Virgin Companies are insufficient to satisfy the debt and liabilities incurred by the First Plaintiffs.
Report on company activities and property
6.Pursuant to section 447A(1) of the Corporations Act and section 90-15 of the IPSC, Part 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if:
(a)a single report in the prescribed form about the business, property, affairs and financial circumstances of the Second, Third, Seventh to Tenth, Thirteenth, and Ninetieth to Twenty-Fourth Plaintiffs be prepared by each of the directors of the Second Plaintiff;
(b)the requirement in section 438B(2) that the directors of each of the Second, Third, Seventh to Tenth, Thirteenth, and Ninetieth to Twenty-Fourth Plaintiffs prepare a separate report about the business, property, affairs and financial circumstances of each of those companies, be dispensed with; and
(c)the requirement in section 438B(2) that the directors of each of the Fourth to Sixth, Eleventh to Twelfth, Fourteenth to Eighteenth, and Twenty-Fifth to Fortieth Plaintiffs prepare a separate report about the business, property, affairs and financial circumstances of each of those companies, be maintained.
Leave to members of the committee of inspection to derive profit
7.Subject to Orders 8 and 9 below, pursuant to sections 80-55(5)(b) and 90-15 of the IPSC, leave be granted to the members of the Committee to derive a profit or advantage from the external administration of each of the Virgin Companies.
8.No leave be granted for the members of the Committee to receive any gift or remuneration from the external administration of any of the Virgin Companies by reason of their position as a member of the Committee.
9.Pursuant to section 447A of the Corporations Act and section 90-15 of the IPSC, the First Plaintiffs are to:
(a)keep a schedule noting each agreement entered into by the First Plaintiffs on behalf of any of the Virgin Companies with a member of the Committee or any related entity of a member of the Committee (Agreements with Committee Members); and
(b)provide an update to the Committee, at each meeting of the Committee, as to each of the Agreements with Committee Members that the First Plaintiffs have entered into on behalf of any of the Virgin Companies;
(c)include, as a section in a report to creditors of the Virgin Companies pursuant to section 75-225 of the Insolvency Practice Rules (Corporations) 2016 (Cth), a list of the Agreements with Committee Members and a summary of the key terms of each such agreement.
Bank account
10.Pursuant to sections 65-45 and 90-15 of the IPSC, the First Plaintiffs (in their capacity as administrators of each of the Virgin Companies) are not required to maintain a separate administration account in relation to each of the Virgin Companies (as otherwise required by the operation of Division 65 of the IPS).
Other ancillary orders
11.The First Plaintiffs must take all reasonable steps to cause notice of these orders to be given, within one (1) business day after the making of these orders, to:
(a)the creditors (including persons or entities claiming to be creditors) of each of the Virgin Companies, in the following manner:
(i)where the First Plaintiffs have an email address for a creditor, notifying each such creditor, via email, of the making of the orders and providing a link to a website where the creditor may download the orders and the Interlocutory Process;
(ii)where the First Plaintiffs do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), notifying each such creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and the Interlocutory Process; and
(iii)placing scanned, sealed copies of the orders and the Interlocutory Process on the website maintained by the First Plaintiffs at and
(b)the Australian Securities and Investments Commission;
(c)the Deputy Commissioner of Taxation; and
(d)the Attorney-General's Department (administering the Fair Entitlements Guarantee Scheme).
12.Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge any orders made pursuant to orders 2 to 10 above, on 1 business day's written notice being given to the Plaintiffs and to the Associate to Justice Middleton.
13.The Plaintiffs' costs of this application be costs in the administration of the Virgin Companies, jointly and severally.
14.The hearing be stood over until 10.15am on Wednesday 20 May 2020 in respect of paragraph 18 of the Interlocutory Process.
15.These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 464 of 2020 IN THE MATTER OF VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED) ACN 100 686 226 & ORS
VAUGHAN STRAWBRIDGE, SALVATORE ALGERI, JOHN GREIG AND RICHARD HUGHES, IN THEIR CAPACITY AS JOINT AND SEVERAL VOLUNTARY ADMINISTRATORS OF EACH OF VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED)
First Plaintiffs
VIRGIN AUSTRALIA HOLDINGS LTD (ADMINISTRATORS APPOINTED) ACN 100 686 226
Second Plaintiff
VIRGIN AUSTRALIA INTERNATIONAL OPERATIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 155 859 608 (and others named in the Schedule)
Third Plaintiff
JUDGE:
MIDDLETON J
DATE OF ORDER:
20 MAY 2020
THE COURT ORDERS THAT:
JobKeeper
1.An order pursuant to section 447A(1) of the Corporations Act 2001 (Cth) (Corporations Act), that Part 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if section 443A(1) of the Corporations Act provides as follows:
(a)To the extent that:
(i)the First Plaintiffs incur any liability under section 443A(1) of the Corporations Act for debts to the Commonwealth as a result of any JobKeeper payment made during the period from 20 April 2020 to the earlier of 31 August 2020 and the end of the voluntary administration of the Ninth Plaintiff pursuant to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (as amended) and Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) (together, the Coronavirus legislation) arising out of, or in connection with, the employment of staff of the Ninth Plaintiff; and
(ii)those debts to the Commonwealth were incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of the Ninth Plaintiff; then
the First Plaintiffs shall not be personally liable for such debts to the extent that those debts exceed the assets of the Ninth Plaintiff.
(b)Order 1(a) does not apply to any liability for a debt incurred by the First Plaintiffs in consequence of the First Plaintiffs’ failure to act in good faith and without negligence in connection with the preparation or lodgement of the necessary documents or information for a JobKeeper payment.
(c)To the extent that:
(i)the First Plaintiffs incur any liability under section 443A(1) of the Corporations Act for debts to the Commonwealth as a result of any JobKeeper payment made during the period from 20 April 2020 to the earlier of 31 August 2020 and the end of the voluntary administration of the Tenth Plaintiff pursuant to the Coronavirus legislation arising out of, or in connection with, the employment of staff of the Tenth Plaintiff; and
(ii)those debts to the Commonwealth were incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of the Tenth Plaintiff; then
the First Plaintiffs shall not be personally liable for such debts to the extent that those debts exceed the assets of the Tenth Plaintiff.
(d)Order 1(c) does not apply to any liability for a debt incurred by the First Plaintiffs in consequence of the First Plaintiffs’ failure to act in good faith and without negligence in connection with the preparation or lodgement of the necessary documents or information for a JobKeeper payment.
(e)To the extent that:
(i)the First Plaintiffs incur any liability under section 443A(1) of the Corporations Act for debts to the Commonwealth as a result of any JobKeeper payment made during the period from 20 April 2020 to the earlier of 31 August 2020 and the end of the voluntary administration of the Thirteenth Plaintiff pursuant to the Coronavirus legislation arising out of, or in connection with, the employment of staff of the Thirteenth Plaintiff; and
(ii)those debts to the Commonwealth were incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of the Thirteenth Plaintiff; then
the First Plaintiffs shall not be personally liable for such debts to the extent that those debts exceed the assets of the Thirteenth Plaintiff.
(f)Order 1(e) does not apply to any liability for a debt incurred by the First Plaintiffs in consequence of the First Plaintiffs’ failure to act in good faith and without negligence in connection with the preparation or lodgement of the necessary documents or information for a JobKeeper payment.
(g)Orders 1(a), 1(c) and 1(e) do not apply to any liability of the First Plaintiffs arising pursuant to section 11(2) and (3) of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth).
Other ancillary orders
2.The First Plaintiffs must take all reasonable steps to cause notice of these orders to be given, within one (1) business day after the making of these orders, to:
(a)the creditors (including persons or entities claiming to be creditors) of each of the Virgin Companies, in the following manner:
(i)where the First Plaintiffs have an email address for a creditor, notifying each such creditor, via email, of the making of the orders and providing a link to a website where the creditor may download the orders and the Interlocutory Process;
(ii)where the First Plaintiffs do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), notifying each such creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and the Interlocutory Process; and
(iii)placing scanned, sealed copies of the orders and the Interlocutory Process on the website maintained by the First Plaintiffs at and
(b)the Australian Securities and Investments Commission; and
(c)the Deputy Commissioner of Taxation;
3.Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge any orders made pursuant to orders 1 above, on 1 business day’s written notice being given to the Plaintiffs and to the Associate to Justice Middleton.
4.The Plaintiffs' costs of this application be costs in the administration of the Virgin Companies, jointly and severally.
5.These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
INTRODUCTION AND OVERVIEW
On 13, 15 and 20 May 2020 I made a number of orders on the application of the First Plaintiffs in this proceeding. These are the reasons for those orders.
The First Plaintiffs, Vaughan Strawbridge, Salvatore Algeri, John Greig and Richard Hughes of Deloitte (together, the ‘Administrators’), in their capacity as administrators of each of the Second Plaintiff, Virgin Australia Holdings Ltd (Administrators Appointed) (‘Virgin’), and the Third to Thirty-Ninth Plaintiffs and the prospective Fortieth Plaintiff, which are various subsidiaries of Virgin (together, the ‘Virgin Subsidiaries’), sought various orders in the Interlocutory Application filed on 11 May 2020. Virgin and the Virgin Subsidiaries are, together, referred to as the ‘Virgin Companies’. Each of the Virgin Companies is a company incorporated and operating in Australia. Each is part of a corporate group comprised of other companies incorporated and operating in Australia, New Zealand and Singapore known as the Virgin group of companies (the ‘Virgin Group’). The Virgin Group is an Australian-based corporate group that operates in the domestic and international passenger and cargo airline business. The Virgin Group also operates the ‘Velocity Loyalty Program’. However, entities related to the Velocity Loyalty Program are not in any form of external administration. The Virgin Group offers a variety of aviation products and services to the Australian aviation market, including corporate, government, leisure, low cost, regional and charter travellers and air freight customers (collectively, the ‘Business’).
Virgin is a public company whose shares are listed on the Australian Securities Exchange. On 20 April 2020, the Administrators were appointed as joint and several administrators of each of Virgin and the Virgin Subsidiaries other than the prospective Fortieth Plaintiff, Tiger International No. 1 Pty Ltd (Administrators Appointed) (‘Tiger 1’). On 28 April 2020, the Administrators were appointed as joint and several administrators of Tiger 1.
Collectively, before the appointment of Administrators, the Virgin Group employed approximately 10,000 employees nationally and operated a fleet of 144 aircraft. The Business operates under, amongst others, the ‘Virgin’ and ‘Tiger’ brand names.
The application primarily seeks the following relief:
(1)in respect of Tiger 1:
(a)curative orders having regard to the fact that the notice to creditors for the first meeting of creditors held on 11 May 2020 was sent to creditors less than the five business days required by s 436E(3) of the Corporations Act 2001 (Cth) (the ‘Corporations Act’);
(b)similar administrative-type orders to those sought in the first court application in this proceeding on 24 April 2020 (the ‘Initial Application’), including to hold meetings of creditors by video-link or telephone and to send notices to creditors electronically where email addresses are available to the Administrators; and
(c)orders varying those orders the Court made on 24 April 2020 so that the existing committee of inspection also encompasses Tiger 1;
(2)orders extending the period for the convening of the second meeting of creditors of each of the Virgin Companies (the ‘Second Meeting’), for approximately three months, to 18 August 2020 (the ‘Convening Period’);
(3)orders permitting the Second Meeting to be convened at any time within the Convening Period;
(4)orders limiting the Administrators’ personal liability with respect to obligations entered into after their appointment, including with respect to:
(a)specific charter flights provided to a particular customer, Rio Tinto Services Limited (‘Rio Tinto’);
(b)future arrangements to be entered into by the Administrators in connection with the operation of the Virgin Companies’ business;
(c)the Commonwealth’s JobKeeper programme (‘JobKeeper’); and
(d)intercompany loans between various entities within the Virgin Companies;
(5)directions that the Administrators would be justified in offering a conditional credit to customers of the Virgin Companies who have been unable to take flights booked with the Virgin Companies because those flights were cancelled in response to the COVID-19 pandemic (the ‘Conditional Credits Proposal’) (and an associated limitation of the Administrators’ personal liability in connection with the Conditional Credits Proposal);
(6)orders modifying the requirement in s 438B(2) of the Corporations Act that the directors of each of the Virgin Companies provide a report as to the company’s activities and property, and instead requiring that a single report be prepared for Virgin and various of the Virgin Subsidiaries (with the directors of the other Virgin Companies preparing reports in the usual manner);
(7)orders that the members of the committee of inspection be given leave to derive a profit or advantage from the external administration of each of the Virgin Companies (so as, for example, to permit the Administrators to cause the Virgin Companies to enter into arrangements to permit ongoing trading with members of the committee during the administration period); and
(8)orders dispensing with the requirement that the Administrators open and operate a separate bank account for each of the Virgin Companies.
In these circumstances I make the observation that the Court should support innovative measures that are considered appropriate by the Administrators as long as the interests of the relevant creditors are taken into account. It is important that there be an efficient progression of the administration and in a timely manner as far as the circumstances permit. Obviously, the role of the airline industry in Australia as a whole, of which Virgin is a part, is important to the whole community and to the national interests generally.
Before turning to the background to the application the subject of these reasons, I note that on 24 April 2020, following the Initial Application, I made orders (the ‘24 April Orders’), which:
(1)provided administrative-type relief to the Plaintiffs to permit them to hold meetings of creditors by video-link or telephone, to send notices to creditors electronically where email addresses were available to the Administrators, and for the formation of a single committee of inspection for the Second to Thirty-Ninth Plaintiffs; and
(2)granted the Administrators a four-week extension of the time in s 443B of the Corporations Act for the Administrators to give notice to lessors of property leased, used or occupied by the Second to Thirty-Ninth Plaintiffs as to whether to retain or give up possession of that property (together with a corresponding extension of the period in which the Administrators were not personally liable for obligations under those leases).
On 29 April 2020, the Court published reasons for judgment in respect of the 24 April Orders: Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) [2020] FCA 571 (the ‘First Judgment’).
FACTUAL BACKGROUND
The Administrators rely upon the affidavits of:
(1)Vaughan Neil Strawbridge dated:
(a)15 May 2020 (the ‘Fourth Strawbridge Affidavit’);
(b)11 May 2020 (the ‘Second Strawbridge Affidavit’), as amended by affidavit dated 15 May 2020, which corrects a minor error in the Second Strawbridge Affidavit;
(c)11 May 2020, being the further affidavit of Mr Strawbridge (the ‘Supplementary Strawbridge Affidavit’);
(d)23 April 2020, which was relied upon in the Initial Application;
(2)Kassandra Suzann Adams dated 15 May 2020 (the ‘Adams Affidavit’); and
(3)Elizma Bolt dated 19 May 2020 (the ‘Bolt Affidavit’).
The following statement of the factual background to these proceedings should be read in addition to the factual background in the First Judgment.
The Virgin Companies
The Administrators have currently identified that the Virgin Companies have approximately 12,808 known creditors in total (other than bondholders). The creditors identified thus far comprise the following:
(1)26 lenders under secured corporate debt and aircraft financing facilities, who are together owed approximately $2,283,639,303;
(2)unsecured noteholders who are together owed approximately $1,988,250,000;
(3)1,070 trade creditors, who are together owed approximately $166,704,085.69;
(4)50 aircraft lessors, who are together owed approximately $1,883,914,848;
(5)81 landlords, who are together owed approximately $71,209,929;
(6)9,020 employees, who are together owed approximately $450,777,961; and
(7)in addition to the unsecured noteholders in respect of notes issued by Virgin Australia, Tiger 1 has the following creditors:
(a)the Ninth Plaintiff, Tiger Airways Australia Pty Ltd (Administrators Appointed), in the amount of approximately $38.5 million;
(b)the Tenth Plaintiff Virgin Australia Airlines Pty Ltd (Administrators Appointed) (‘VAA’), in the amount of approximately $11.9 million;
(c)the Fifth Plaintiff, Virgin Australia International Airlines Pty Ltd (Administrators Appointed), in the amount of approximately $3.5 million; and
(d)the Deputy Commissioner of Taxation (the ‘ATO’), the value of whose claim is not currently known.
The COVID-19 pandemic has led to a substantial downturn in the operations and revenue of the Virgin Companies. Between 18 March 2020 and 5 April 2020, the Commonwealth, State and Territory Governments took various steps that placed severe restrictions on overseas and inter-state travel; and similar restrictions were adopted worldwide to reduce the spread of COVID-19. Specifically, on 18 March 2020, the National Cabinet announced that the National Security Committee of Cabinet had issued ‘Level 4’ travel restrictions, being advice to Australians in relation to overseas travel of ‘do not travel’. Then, effective from 20 March 2020, the Commonwealth Government closed Australia’s borders to all non-citizens and non-residents. Effective from various times between 20 March 2020 and 5 April 2020, the Northern Territory, Tasmanian, Western Australian, Queensland and South Australian Governments imposed further travel restrictions for interstate travellers with some of these States and Territories closing their borders to all non-essential interstate travel for non-residents.
These actions have resulted in a significant reduction in the demand for international and domestic air travel, which is a significant part of the business operations of the Virgin Companies. It was Mr Strawbridge’s evidence that the COVID-19 pandemic has had a considerable adverse effect on the revenues of the Virgin Companies.
Since their appointment, the Administrators have sought to continue to trade the Virgin Companies on a ‘business as usual’ basis, albeit that, due to the travel restrictions arising from COVID-19:
(1)the airline is not operating any international passenger routes (with the exception of limited repatriation flights to and from Hong Kong and Los Angeles) and only limited domestic passenger routes (about 128 flights per week);
(2)the business is not being operated at full capacity; and
(3)it is likely that the Virgin Companies will continue to generate losses throughout the administration period whilst these restrictions are in place.
As the First Judgment noted at [14], the Virgin Companies comprise a very significant enterprise with substantial operations, complex affairs, considerable assets and a very large number and type of creditors; accordingly, the administrations are likely to be sophisticated and complex.
The Virgin Companies are, together, a very large commercial enterprise that carries on a very substantial aviation business. The administrations of the Virgin Companies are complex, involving both the operation of the business (where possible, due to constraints occasioned by the COVID-19) and an ongoing effort to sell the business as a going concern, or recapitalise it through a proposal for a deed of company arrangement (‘DOCA’).
Progress of the administrations
Since the Initial Application and the 24 April Orders, the Administrators have continued to progress the administration of the Virgin Companies, which include the following:
(1)General administration tasks, including:
(a)undertaking preliminary investigations into the financial position of the Virgin Companies and forensic imaging of the Virgin Companies’ electronic records;
(b)investigating the security held in relation to the assets and property of the Virgin Companies, including a review of the financing statements lodged against the Virgin Companies on the register established and maintained under the Personal Property Securities Register (‘PPSR’) and liaising with the relevant secured parties;
(c)undertaking preliminary calculations of the secured debt position of the Virgin Companies;
(d)locating and securing owned and leased assets, assessing the condition of those assets and ensuring that those assets are appropriately insured;
(e)taking steps to resolve retention of title claims, noting that many of these claims have taken (and may continue to take) some time to be resolved;
(f)dealing with the Virgin Companies’ banks and bank accounts;
(g)facilitating the ongoing trading of the Virgin Companies and the operation of the Business (subject to the restrictions imposed by the COVID-19 pandemic);
(h)reviewing various lease documentation and liaising with landlords in relation to rent relief;
(i)holding discussions with and requesting information from various key staff members and advisers in relation to the assets, liabilities and operations of the Virgin Companies;
(j)liaising with Government bodies and Government representatives at the State and Commonwealth level in relation to the administration of the Virgin Companies;
(k)liaising with employees and union representatives in relation to the administration of the Virgin Companies;
(l)continuing the employment of staff and facilitating the payment of employee wages, including assisting the Virgin Companies with accessing JobKeeper;
(m)undertaking calculations of employee entitlements;
(n)liaising with certain shareholders of the Virgin Companies in relation to the administration of the Virgin Companies;
(o)considering the books and records of the Virgin Companies to identify secured and unsecured creditors of the Companies;
(p)liaising with a large number of secured and unsecured creditors and various other stakeholders of the Virgin Companies in relation to the administration of the Virgin Companies;
(q)establishing, monitoring and managing six separate email addresses to deal with enquiries and correspondence in relation to the administration for:
(i)general enquiries: [email protected];
(ii)trade creditors and suppliers: [email protected];
(iii)employees: [email protected];
(iv)customer queries: [email protected];
(v)aircraft lessors: [email protected]; and
(vi)secured lenders: [email protected],
and together, these email addresses have received approximately 4,900 emails from creditors and other stakeholders of the Virgin Companies;
(r)establishing and maintaining a database to record the various creditor claims and assist with ongoing management of creditor claims; and
(s)conducting meetings with directors, senior management and staff of the Virgin Companies;
(2)tasks relevant to the Administrators’ statutory obligations, including:
(a)filing of requisite notices with ASIC in respect of the appointment of the Administrators, and the convening of the first meeting of creditors of the Second to Thirty-Ninth Plaintiffs on 30 April 2020 (the ‘First Meeting’) and the first meeting of creditors of Tiger 1 on 11 May 2020 (the ‘Tiger 1 First Meeting’);
(b)issuing the requisite statutory notices to creditors of the Virgin Companies; and
(c)notifying the ATO of the appointment of the Administrators;
(3)tasks relevant to the First Meeting, including:
(a)preparing the requisite notices and the circular to creditors;
(b)making an application to the Court for various orders including to permit the First Meeting to be held by electronic means;
(c)arranging for the use of a Microsoft Teams Live Event to be used to host the meeting;
(d)preparing for and attending the First Meeting;
(e)collecting and adjudicating proofs of debt and proxies lodged by secured and unsecured creditors before the First Meeting;
(f)conducting the First Meeting;
(g)preparing the minutes of the First Meeting; and
(h)preparing and issuing the proposal to creditors for their ratification of the
(i)proposed members of the committee of inspection selected by the Administrators;
(4)an application to the Court for orders with respect to, amongst other things, providing electronic notices to creditors and an extension of time to consider the position of leases entered into by the Virgin Companies;
(5)tasks relating to a process for a sale of the Business in respect of the Virgin Companies, including:
(a)commencing a short competitive process in respect of the recapitalisation of the Business and/or acquisition of the assets of the Virgin Companies including the entering into of non-disclosure agreements following receipt of expressions of interest (the ‘Sale Process’);
(b)engaging advisers Houlihan Lokey and Morgan Stanley to progress the Sale Process;
(c)instructing Houlihan Lokey to:
(i)issue a flyer (‘Flyer’) and non-disclosure agreement to interested parties on and from 21 April 2020 seeking binding offers to recapitalise or acquire the assets of Virgin Australia;
(ii)prepare an information memorandum and establish a secure data room containing documents regarding the Business and the financial position of the Virgin Companies (the ‘Data Room’); and
(iii)contact all known interested parties and potential buyers; and
(d)liaising with Houlihan Lokey and Morgan Stanley on the commencement of discussions with a number of interested parties.
On 30 April 2020, the Administrators held the First Meeting.
In accordance with the 24 April Orders, the First Meeting was held on 30 April 2020 at 11:30am via a Microsoft Teams Live Event.
Before the First Meeting, creditors and observers were required to pre-register through an online form hosted by Microsoft and were permitted to submit questions prior to the meeting.
At the First Meeting:
(1)there were approximately 898 creditors and 661 observers in attendance;
(2)creditors could submit questions via the live question and answer function within the Microsoft Teams Live Events virtual platform (‘Live Q&A Function’); and
(3)137 questions were asked through the Live Q&A Function (with any questions asked in the Live Q&A Function that were not answered by the Chairperson having been answered by the Administrators FAQs on their website).
Following the First Meeting, on 5 May 2020, a circular to creditors was issued with a proposal as to the members of the committee of inspection (the ‘Proposed Committee of Inspection’) to be formed in accordance with the 24 April Orders (the ‘COI Proposal’). In accordance with the COI Proposal, the Proposed Committee of Inspection is to comprise the following members:
(1)4 representatives of noteholder creditors;
(2)11 representatives of employee creditors;
(3)1 representative of other creditors;
(4)6 representatives of secured creditors;
(5)1 statutory representative;
(6)6 representatives of trade creditors; and
(7)1 statutory observer.
Creditors have until 12 May 2020 to vote on the COI Proposal. As at 11 May 2020, 99.47% of 4,541 votes that have been returned thus far have voted in favour of the Proposed Committee of Inspection. Thus, it is overwhelmingly likely that the members of the Proposed Committee of Inspection will be deemed to be the members of the committee by close of business on 12 May 2020 (the ‘Committee of Inspection’).
On 28 April 2020, Tiger 1, which is part of the ‘International Flying Rights Group’ of the Virgin Group, went into administration. Tiger 1 is an otherwise dormant entity (in that it does not carry out any business or operations). However, it is a guarantor in respect of various USD and AUD notes issued by Virgin Australia (and therefore has a contingent liability to the noteholders). Besides the noteholders (which I referred to earlier), the only external creditor of Tiger 1 is the ATO (the value of whose debt is uncertain). Thus, the external creditors of Tiger 1 are also creditors of certain other Virgin Companies.
As with the First Meeting, the Tiger 1 First Meeting was successfully conducted by electronic means. I note that at the Tiger 1 First Meeting:
(1)no proposal was sought for a committee of inspection to be formed solely for Tiger 1; and
(2)there were no objections raised in relation to inadequate notice being provided to creditors.
Sales process
I have already mentioned the tasks the Administrators have undertaken in terms of the selling of the Business.
As at 11 May 2020, a total of 19 commercial parties had been granted access to the Data Room.
The Sale Process’ indicative timeline is as follows:
(1)the Flyer and non-disclosure agreements were provided to parties on and from 21 April 2020;
(2)on and from 27 April 2020, the information memorandum was distributed to parties that had entered into a non-disclosure agreement and the Data Room was opened;
(3)non-binding indicative offers were due to be provided on 15 May 2020;
(4)binding offers are due to be provided on 12 June 2020;
(5)a binding implementation deed is proposed to be entered into by 21 June 2020, subject to any regulatory approvals that might be required;
(6)the terms of any DOCA are to be progressed leading up to the second meeting of creditors, to be in held in early August; and
(7)if applicable, a DOCA is to be executed shortly thereafter.
The Administrators are focused on seeking to achieve a successful outcome from the Sale Process, as a maximisation of the price paid for the business (through a DOCA or otherwise) is likely to provide the best result for creditors of the Virgin Companies.
TIGER 1 – MEETINGS BY ELECTRONIC MEANS, NOTICE BY EMAIL AND INCORPORATION INTO COMMITTEE OF INSPECTION
This matter is addressed in the Interlocutory Process at prayers 2-10 (which I will deal with in greater detail below), and in the Second Strawbridge Affidavit, which provides that:
Tiger 1
25. On 28 April 2020, the Administrators were appointed as joint and several administrators of Tiger 1 by resolution of the directors of that company pursuant to section 436A of the Corporations Act.
26. Tiger 1 is a wholly owned subsidiary of the Fifth Plaintiff. …
27. At the time of swearing this affidavit, the directors of Tiger 1 have not provided to the Administrators a ROCAP for any of the Virgin Companies.
28. Tiger 1 is part of the 'International Flying Rights Group' as described in paragraph 14 of my First Affidavit. While Tiger 1 is an otherwise dormant entity in the Virgin Group (in that it does not carry out any business or operations), it is a guarantor in respect of various USD and AUD notes issued by Virgin Australia. For that reason, the directors of Tiger 1 resolved to appoint administrators on the basis that it was insolvent or likely to become insolvent.
29. The Administrators understand that in addition to the noteholders (who are the creditors I referred to as unsecured bondholders in my First Affidavit) in respect of notes issued by Virgin Australia, Tiger 1 has the following creditors:
(a) the Ninth Plaintiff, Tiger Airways Australia Pty Ltd (Administrators Appointed), in the amount of approximately $38.5 million;
(b) the Tenth Plaintiff Virgin Australia Airlines Pty Ltd (Administrators Appointed) (VAA), in the amount of approximately $11.9 million;
(c) the Fifth Plaintiff, Virgin Australia International Airlines Pty Ltd (Administrators Appointed), in the amount of approximately $3.5 million; and
(d) the Deputy Commissioner of Taxation (ATO), the value of whose claim is not currently known.
30. On 30 April 2020, the Administrators published a combined notice of appointment and first meeting of creditors (Tiger 1 First Meeting) in respect of Tiger 1 (Tiger 1 Notice of Meeting) on the ASIC Insolvency Notices website … . The Tiger 1 Notice of Meeting provides details for the Tiger 1 First Meeting, which is scheduled to be held (at Deloitte’s offices) on 11 May 2020 at 2:00pm but with creditors being permitted to attend by electronic means only.
31. On 1 May 2020, the Administrators sent an initial notice of appointment and first meeting of creditors in respect of Tiger 1 dated 1 May 2020 to the ATO (Initial Tiger 1 Notice).
32. On 7 May 2020, the Initial Tiger 1 Notice was sent to each note trustee in relation to notes issued by Virgin Australia, being:
(a) Bank of New York Mellon at [email protected];
(b) Sargon CT Pty Ltd at [email protected];
(c) Computershare at [email protected]; and
(d) DF King at [email protected],
(Note Trustees). …
33. The noteholders are contingent creditors as a result of guarantees provided by Tiger 1 in respect of the USD and AUD notes issued by Virgin Australia. The Administrators were delayed in providing the Initial Tiger 1 Notice to the Note Trustees as the Administrators were still ascertaining the nature of the claims that the noteholders had against the Virgin Companies (including ascertaining their status as contingent creditors).
34. Each of the noteholders, via the Note Trustees, was also provided with information about the affairs of the Virgin Companies and the impact of the administration of the Virgin Companies in the details provided in advance of, or at, the First Meeting. This information included that set out in:
(a) the Notice of Appointment and First Meeting of Creditors sent to the noteholders on or about 21 or 22 April 2020, … ; and
(b) Circular to Creditors dated 27 April 2020, sent to noteholders on the same date, … .
35. In addition, after the First Meeting, each of the noteholders was issued:
(a) the circular to creditors dated 5 May 2020 (sent to noteholders on the same date), as I referred to above, which included information on the proposed Committee of Inspection; and
(b) a notice to Virgin Australia’s noteholders dated 6 May 2020 (sent to noteholders on the same date), which contained information about the appointment of a Special Noteholder Liaison Counsel, … .
Attendance at Tiger 1 First Meeting
36. I refer to paragraphs 16-26 and 41-43 of the First Affidavit and paragraph 18 above. In light of those matters, in the opinion of the Administrators there was no practical impediment to holding the Tiger 1 First Meeting by electronic means only (other than conducting a poll of creditors).
37. I am aware that Mr Anthony Lowe, Director, Deloitte chaired the Tiger 1 First Meeting. I am informed by Mr Lowe and believe to be true that there were no technical issues with holding the first meeting electronically.
38. At the Tiger 1 First Meeting:
(a) there was no proposal for an alternative person or persons to be appointed as administrators and, accordingly, the appointment of the Administrators continues for Tiger 1;
(b) as set out below, no proposal was sought for a committee of inspection to be formed solely for Tiger 1; and
(c) there were no objections raised in relation to inadequate notice being provided to creditors.
Provision of electronic notices to creditors
39. I refer to paragraphs 56-61 of the First Affidavit. For the same reasons set out in those paragraphs, the Administrators consider that it is in the best interests of the creditors of Tiger 1 for the Administrators to be permitted to send notices by email to those creditors for whom an email address has been provided.
Committee of Inspection
40. As set out above, a single Committee of Inspection has been formed for the Second to Thirty-Ninth Plaintiffs.
41. At the Tiger 1 First Meeting, the Administrators informed the meeting that the Administrators did not propose to provide the creditors with an option to propose and vote on a resolution that a committee of inspection for Tiger 1 be formed. No objections were raised by any creditors at the meeting on this issue and no creditor sought to propose a resolution that a committee of inspection be formed solely for Tiger 1. Instead, the Administrators seek orders:
(a) that Tiger 1 form part of the entities to which the existing Committee of Inspection has been formed in respect of the Second to Thirty Ninth Plaintiffs; and
(b) confirming that the members of the Committee of Inspection be those selected by the Administrators and voted for by creditors in accordance with the COI Proposal as set out in paragraphs 20 to 22 above.
42. In the opinion of the Administrators, and based on our experience as insolvency practitioners, an order of this type will enable the Administrators to streamline the administrations rather than having separate committees of inspection. It will save costs in the administration by reducing the need to run duplicative processes (which I consider to be in the best interests of the creditors of the Virgin Companies as a whole).
43. Also, as detailed in paragraph 29 above, the only creditors of Tiger 1 (other than creditors within the Virgin Group) are also creditors of Virgin Australia in any event. Accordingly, the Administrators do not consider that there will be any prejudice to the creditors of Tiger 1 in the making of this order, as the Committee of Inspection proposed to include four members representative of the noteholders creditors.
As set out above, Tiger 1 appointed the Administrators as joint and several administrators to that entity on 28 April 2020. Accordingly, the Initial Application did not address Tiger 1 and the 24 April Orders do not presently apply to Tiger 1.
Joinder
The Administrators seek an order pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) (the ‘Rules’) that Tiger 1 be added to this proceeding as Fortieth Plaintiff.
Rule 9.05(1)(b)(iii) of the Rules (which applies by reason of r 1.3(2)(a) of the Federal Court (Corporations) Rules 2000 (Cth)), permits the Court to join a person to existing proceedings if the person proposed to be joined ‘should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings’.
Tiger 1 should be joined to these proceedings as it is part of the group of Virgin Companies now in external administration and common issues have and will continue to arise in the course of the various administrations.
Curing insufficient notice of first meeting
The Administrators seek an order pursuant to s 1322(4)(a) of the Corporations Act that the convening and holding of the Tiger 1 First Meeting in accordance with s 436E of the Corporations Act, pursuant to the notice sent to creditors in accordance with rr 75-225(1) and 75-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (the ‘IPR’), is not invalidated by reason of the notice having been issued on 7 May 2020 (resulting in less than five business days’ notice of the meeting being given to the creditors of Tiger 1).
The Tiger 1 First Meeting was convened on 30 April 2020 and was held on 11 May 2020.
Notice of the Tiger 1 First Meeting was given to the ATO (on behalf of the Deputy Commissioner of Taxation) on 30 April 2020. However, notice to the noteholders was not given until 7 May 2020, which is less than the five business days required by s 436E(3) of the Corporations Act.
Section 1322(4) of the Corporations Act is a remedial provision that is able to be used to cure a notice period that is less than that prescribed by the statute. The powers under that section are to be exercised liberally, so as not unreasonably to stifle corporate and financial activity merely on technical grounds: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427 at [74]; Re Insurance Australia Group Ltd (2003) 128 FCR 581 at [27]; Re Wave Capital Ltd [2003] FCA 969 at [30].
Subject to the requirements of s 1322(6), the section confers an unfettered discretion on the Court: In the matter of National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21]. Orders can be made under the section:
(1)with retrospective effect: Re Wood Parsons Pty Ltd (in liq) [2002] NSWSC 1058 at [52]; In the matter of Golden Gate Petroleum Ltd [2010] FCA 40 at [42]; and
(2)where there is a real question as to whether a contravention of a provision would even lead to invalidity, so as to avoid any uncertainty with respect to the matter: In the matter of Milgerd Nominees Pty Ltd [2019] NSWSC 311 at [13].
In the present case, s 1322(4)(a) may be used to confirm that the holding of (and passage of resolutions at) the Tiger 1 First Meeting is not invalidated by the notice of the meeting being provided to creditors being less than the prescribed statutory period.
As I noted earlier, Mr Strawbridge’s evidence is that Tiger 1 does not trade or carry out any business, but was placed into administration because it is a guarantor of the notes issued by Virgin Australia to the noteholders. Consequently, its creditors were already provided with details as to the administrations generally when the notice of the First Meeting was issued and sent to creditors. Those creditors of Tiger 1 were also able to attend the First Meeting on 30 April 2020.
Further, at the Tiger 1 First Meeting, no creditor raised any issue as to the inadequacy of any notice of the meeting.
In the circumstances, the order sought by the Administrators is appropriate and the requirements of s 1322(6) are satisfied.
Holding meetings by electronic means
The Administrators seek:
(1)An order pursuant to s 447A(1) of the Corporations Act and s 90-15 of the Insolvency Practice Schedule (Corporations) 2016, which is Sch 2 to the Corporations Act (the ‘IPSC’), that, to the extent not permitted specifically by rr 75-30, 75-35 and 75-75 of the IPR and the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth) (the ‘Determination’), the Administrators be permitted to hold meetings of creditors during the administration of Tiger 1 by telephone or audio-visual conference only at the place of the Administrators’ offices (without creditors of Tiger 1 being able to attend physically at that place), with such details of the arrangements for using the telephone or audio-visual conference facilities to be specified in each of the notices issued to creditors.
(2)An order pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, that, to the extent not permitted specifically by r 75-35(2)(b) of the IPR and the Determination, the creditors of Tiger 1 who wish to participate at any meeting of Tiger 1 by telephone or audio-visual conference only at the place of the Administrators’ offices (without creditors of Tiger 1 being able to attend physically at that place), must lodge with the Administrators, no later than the second last business day before the day on which the meeting is held, specific proxy forms containing the information in r 75-35(2)(b)(i)-(iii) of the IPR (with liberty to notify the Administrators of the withdrawal of that specific proxy and amended vote following any discussion at a meeting, in advance of a resolution being passed).
In the First Judgment at [25] I said that there was no practical impediment to meetings of creditors being held by electronic means and it is appropriate (if not necessary) that this occur. I see no reason why the same observation should not apply with equal force to meetings of creditors of Tiger 1.
In addition, it was Mr Strawbridge’s evidence (which I referred to earlier), that the First Meeting was conducted successfully using electronic technology with creditors attending the meeting and participating without being physically present in the same location as the Administrators or one another.
For those reasons, the Administrators seek orders for Tiger 1 to the following effect, and in the same form as those made in the 24 April Orders with respect to the other Virgin Companies:
(1)confirming that the meetings of creditors of Tiger 1 (including the Tiger 1 First Meeting) may be held exclusively by electronic means; and
(2)requiring that, in respect of any creditor who wishes to participate in, and vote on, resolutions that are put to creditors at a meeting (to the extent that this may occur at meetings subsequent to the Tiger 1 First Meeting), special proxies must be provided to the Administrators no later than the second last business day before the meeting is held (although giving liberty to any creditor providing such a proxy to withdraw those voting instructions in advance of the resolution being passed).
It is appropriate to make those orders.
Electronic notice to creditors
The Administrators seek:
(1)An order pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, that Pt 5.3A of the Corporations Act is to operate, nunc pro tunc, in relation to Tiger 1, as if any notice (‘Notice’) required to be given pursuant to rr 75-225(1) and 75-15 of the IPR will have been validly given to creditors of Tiger 1 by reason of the following steps having been taken before the date of the meeting:
(a)where the Administrators:
(i)have an email address for a creditor, by sending the Notice by email to each such creditor;
(ii)where the Administrators do not have an email address for a creditor, but have a postal address for the creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), by sending the Notice by posting a copy of it to the postal address for each such creditor;
(b)by causing the Notice to be published on the Australian Securities and Investments Commission (‘ASIC’) published notices website at and
(c)by publishing the Notice on the website maintained by the Administrators at type="1">
It is also to be understood that the removal of personal liability does not immunise the Administrators from their obligations generally as administrators, such as their obligations to act in good faith and for a proper purpose.
The ATO did not oppose the orders made in the circumstances of the application. Senior Counsel for the ATO properly emphasised that the orders sought were very peculiar to the particular situation faced by the Administrators and the nature of the companies involved.
Intercompany loans
Matters relevant to the order made in respect of limitation of liability for intercompany loans between the Virgin Companies during the administration period are dealt with in paragraphs [71]-[74] and [118]-[120] of the Second Strawbridge Affidavit, which are extracted earlier in these reasons.
With respect to the Virgin Companies, the Administrators have opened separate administration bank accounts for two entities: VAA and VARA.
The funding and expenses of the Virgin Companies since the appointment of the Administrators have been cleared through the bank accounts opened in the names of VAA and VARA. Where one or other of the Virgin Companies other than VAA or VARA pays or receives money, that is paid from or into the account in the name of VAA or VARA and intercompany loan account entries are recorded in the financial records of the applicable Virgin Companies and those of the Administrators to ensure that the accounts are properly reconciled.
I accept that that practice may be regarded as the Administrators causing the Virgin Companies to borrow money from VAA and/or VARA, for which the Administrators would ordinarily be personally liable pursuant to s 443A(1)(d) of the Corporations Act: McKinnon, in the matter of Specialised Concrete Pumping Victoria Pty Ltd (Administrators Appointed) [2016] FCA 325 at [23] (‘Specialised Concrete Pumping’) (Middleton J).
Limiting the liability of the Administrators for intercompany loans where that facilitates the ongoing trading of the business of the companies in administration is consistent with the objectives in s 435A of the Corporations Act: Specialised Concrete Pumping at [29]; In the matter of Nexus Energy Ltd [2014] NSWSC 1041.
While there is a potential prejudice to creditors if the intercompany debts are unable to be repaid from the assets of companies other than VAA and VARA, that will only arise in the scenario that a DOCA proposal or a winding up does not involve a pooling of assets and extinguishing of intercompany debts.
However, that possibility is not a reason to limit the Administrators’ personal liability in circumstances where the issue arises because of the way in which the financial affairs of the Virgin Companies were structured prior the Administrators’ appointment.
The Commonwealth does not oppose an order limiting the Administrators’ liability for intercompany loans, so long as the Administrators record journal entries for intercompany debts between the Virgin Companies that are incurred for the remainder of the administration period.
Mr Strawbridge has given evidence that the Administrators have thus far made such accounting entries, and, as confirmed in the solicitors’ correspondence, the Administrators agree to continue to do so for the remainder of the administration period.
In the circumstances I have outlined, I am satisfied that the order concerning the limitation of liability for intercompany loans is warranted.
CONDITIONAL CREDIT PROPOSAL
The Administrators seek:
(1)A direction pursuant to s 90-15 of the IPSC, that the Administrators would be justified in issuing conditional credits to customers of the Virgin Companies in accordance with the proposal set out in Schedule 2 to the Interlocutory Process (the ‘Conditional Credits’).
(2)An order pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, that Pt 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if s 443A(1) of the Corporations Act provides that:
(a)the liabilities of the Administrators incurred with respect to any obligations arising out of, or in connection with, the issuing of Conditional Credits, including but not limited to taxes, airline surcharges and ancillary fees associated to the Conditional Credits Proposal, are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies; and
(b)notwithstanding that the liabilities for the Conditional Credits are debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of each of the Virgin Companies, the Administrators shall not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of the particular Virgin Company or Virgin Companies that are the issuers of the Conditional Credits are insufficient to satisfy the debt and liabilities incurred by the Administrators arising out of, or in connection with, the issuance of the Conditional Credits.
The essential features of the Conditional Credits Proposal, which is reflected in the ‘Virgin Australia Guest Compensation Policy’, are as follows:
(1)Conditional credits will be issued to customers who purchased:
(a)a ticket for a flight operated by Virgin Australia Airlines Pty Ltd (‘Virgin Australia’), VARA, Tiger Airways Australia Pty Ltd or Virgin Australia International Airlines Pty Ltd (each a ‘Virgin Australia Group Entity’); or
(b)a holiday package from Virgin Australia;
where the flight or holiday was cancelled (other than by the customer), or where the customer cancelled their ticket or holiday in circumstances entitling the customer to a refund or credit, and where no refund, credit or other compensation has been provided to the customer.
(2)The Conditional Credits would be redeemable only against domestic flights operated by Virgin Australia and VARA.
(3)The Conditional Credits would only be redeemable for a limited period of time and until the earlier of: (i) a restructuring or recapitalisation of the Virgin Australia Group Entity that issues the credit (unless the right to redeem such credits, or their equivalent, is expressly preserved and extended as part of that restructuring or recapitalisation); or (ii) the liquidation of the Virgin Australia Group Entity that issues the credit.
(4)A customer will only ‘use’ a Conditional Credit once the flight booked with the credit has been provided or, where a credit has been used to book a flight, if the customer does not turn up for the booked flight or cancels otherwise than in accordance with the applicable terms and conditions. Where a Conditional Credit has been ‘used’ in this sense, the customer would no longer be entitled to a refund or credit arising from the original cancellation.
(5)Where a customer either elects not to receive a Conditional Credit, or receives such a credit but fails to use it before the restructuring, recapitalisation or liquidation of the relevant Virgin Australia Group Entity, the customer would retain the customer’s general law and statutory rights against that entity in accordance with the original cancellation.
The rationale for the Administrators offering Conditional Credits is to preserve, to the extent possible, the goodwill associated with the Virgin Companies. While the travel industry has been detrimentally impacted by the COVID-19 pandemic, it was submitted that the Virgin Companies are currently at a competitive disadvantage given their inability to offer customers refunds or credits for flights cancelled before the companies entering into voluntary administration. Mr Strawbridge’s evidence is that the Administrators believe that this may negatively affect the prospects of any sale of the Virgin Companies. If a large number of customers lose money in connection with the Virgin Companies’ administration, those and other customers may be less willing to fly with the Virgin Companies (or their successors) in the future. Conversely, if the Virgin Companies are able to offer credits to customers now, the position of the Virgin Companies will not significantly differ from other travel businesses who have had to cancel flights and other services during the COVID-19 pandemic.
In assessing the merits of the Conditional Credits Proposal, it is necessary to have regard to the present circumstances of customers who are entitled to, but have not received, refunds in respect of flights and holidays cancelled before the Virgin Companies entered voluntary administration. At present, those customers are, at best, contingent unsecured creditors or unsecured creditors of one of the Virgin Companies and, as such, are unlikely to receive a 100% return if the Virgin Companies are restructured or if those companies go into liquidation. In these circumstances, a Conditional Credit offers the customer the prospect of improving their position by realising the full value of the lost fare on a future domestic flight operated by Virgin Australia or VARA, should those companies resume commercial flights during the administration.
There is no guarantee that it will be possible or practical for Virgin Australia and VARA to resume such flights in this period. This is made clear in paragraph 5 of the Conditional Credits Proposal itself, which states that it may not be possible or practical for Virgin Australia and VARA to resume commercial flights during the period of administration. If that does not occur, the Conditional Credits would not be useable during this time but the credits would still have some utility as there would be at least a prospect that the credit scheme would be extended following any restructuring or recapitalisation of the Virgin Companies. As Mr Strawbridge explains, there is good reason to think that any successor or successors to the Virgin Companies would be keen to preserve, as much as possible, the goodwill associated with the Virgin Companies and one way of doing so would be to extend the effect of the conditional credit scheme.
As things presently stand, it appears that the worst case scenario for customers under the Conditional Credit scheme would be if Virgin Australia and VARA do not resume domestic flights during the course of the administration and the scheme is not extended beyond the administration. Even in this scenario, however, it was submitted that it is the intention of the Conditional Credits Proposal that customers who have pre-administration entitlements to receive a refund or credit from a Virgin Australia Group Entity would be no worse off than they are today: they would retain their pre-administration contractual or statutory rights to a refund and would stand as unsecured creditors of the relevant Virgin Australia Group Entity. This reflects the fact that the Conditional Credits Proposal seeks to offer the prospect that customers will improve their position relative to the status quo, but does not involve any risk that they will be worse off.
I am satisfied that the Conditional Credit Proposal offers the prospect of a better outcome for customers and, in doing so, preserves the goodwill associated with the Virgin Companies. This, in turn, maximises value of the Virgin Companies pending any sale, which is to the ultimate benefit of all creditors. In these circumstances, and having regard to the fact that the proposal does not appear apt to disadvantage any creditor, I will make a direction under s 90-15 of the IPSC that the Administrators would be justified in issuing Conditional Credits to customers of the Virgin Companies in accordance with the Conditional Credits Proposal.
In these circumstances, it is also appropriate that orders are made to relieve the Administrators of personal liability for the debts and liabilities incurred by the Administrators arising out of, or in connection with, the issuance of the Conditional Credits.
The Conditional Credits Proposal is not intended to convert a pre-administration entitlement to a refund or credit against the Virgin Companies into a right enforceable against the Administrators. The Administrators should not risk personal liability in seeking only to improve the position of certain customers and the prospect of a successful sale of the business.
In any event, the Administrators are unwilling to offer Conditional Credits without protection from personal liability. That being so, there is no prospect that Conditional Credits will be offered to customers in the absence of orders that relieve the Administrators of personal liability for those credits. Mr Strawbridge’s evidence in the Supplementary Strawbridge Affidavit is that:
22. … The number of customers who may be entitled to Conditional Credits is simply too large for the Administrators to expose themselves to personal liability in this regard. For example, if a customer books a flight with a conditional credit and that flight is cancelled by Virgin Australia Airlines Pty Ltd or Virgin Australia Regional Airlines Pty Ltd, the customer might assert that the Administrators were personally liable to pay a refund to the customer. That is not a risk that the Administrators are willing to accept.
23. In addition, there is potential risk that the Virgin Companies may have substantial liabilities including but not limited to taxes, airline surcharges and ancillary fees associated to the Conditional Credits Proposal. Accordingly, the Administrators are seeking an order limiting their liability in relation to any taxation liabilities that may arise in respect of the Virgin Companies.
COMPANY REPORT
The Administrators seek an order pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, that Pt 5.3A of the Corporations Act is to operate in relation to the Plaintiffs as if:
(1)a single report in the prescribed form about the business, property, affairs and financial circumstances of the Second, Third, Seventh to Tenth, Thirteenth, and Nineteenth to Twenty-Fourth Plaintiffs be prepared by each of the directors of the Second Plaintiff;
(2)the requirement in s 438B(2) that the directors of each of the Second, Third, Seventh to Tenth, Thirteenth, and Nineteenth to Twenty-Fourth Plaintiffs prepare a separate report about the business, property, affairs and financial circumstances of each of those companies, be dispensed with; and
(3)the requirement in s 438B(2) that the directors of each of the Fourth to Sixth, Eleventh to Twelfth, Fourteenth to Eighteenth, and Twenty-Fifth to Fortieth Plaintiffs prepare a separate report about the business, property, affairs and financial circumstances of each of those companies, be maintained.
As to this matter, Mr Strawbridge’s evidence in the Second Strawbridge Affidavit is that:
REPORT ON COMPANY ACTIVITIES AND PROPERTY
121. The Administrators are aware that the following Virgin Companies are party to a deed of cross guarantee:
(a) the Second Plaintiff, Virgin Australia Holdings Limited (Administrators Appointed);
(b) the Third Plaintiff, Virgin Australia International Operations Pty Ltd (Administrators Appointed);
(c) the Seventh Plaintiff, Virgin Australia Airlines Holdings Pty Ltd (Administrators Appointed);
(d) the Eighth Plaintiff, VAH Newco No.1 Pty Ltd (Administrators Appointed);
(e) the Ninth Plaintiff, Tiger Airways Australia Pty Limited (Administrators Appointed);
(f) the Tenth Plaintiff, Virgin Australia Airlines Pty Ltd (Administrators Appointed);
(g) the Thirteenth Plaintiff, Virgin Tech Pty Ltd (Administrators Appointed);
(h) the Nineteenth Plaintiff, A.C.N. 098 904 262 Pty Ltd (Administrators Appointed);
(i) the Twentieth Plaintiff, Virgin Australia Regional Airlines Pty Ltd (Administrators Appointed);
(j) the Twenty-First Plaintiff, Virgin Australia Holidays Pty Ltd (Administrators Appointed);
(k) the Twenty-Second Plaintiff, VB Ventures Pty Ltd (Administrators Appointed);
(l) the Twenty-Third Plaintiff, Virgin Australia Cargo Pty Ltd (Administrators Appointed); and
(m) the Thirty -Fourth Plaintiff, VB Leaseco Pty Ltd (Administrators Appointed), (Deed of Cross Guarantee Companies).
122. I refer to paragraph 9 of my First Affidavit and the current and historical extracts of the records maintained by ASIC obtained on 22 April 2020 in respect of the Second to Thirty-Ninth Plaintiffs as well as the current and historical extracts of the records maintained by ASIC in relation to Tiger 1 located at Tab 3 of Exhibit VNS-2.
123. The Administrators are aware that each of the Deed of Cross Guarantee Companies have common directors, being Paul Darren Scurrah and Keith Antony Neate, with the exception of:
(a) the Second Plaintiff, Virgin Australia Holdings Limited (Administrators Appointed), whose directors are:
(i) Elizabeth Blomfield Bryan;
(ii) Meng Hung Marvin Tan;
(iii) Kenneth Alfred Dean;
(iv) Warwick Negus;
(v) Trevor Bourne;
(vi) Allan Grant Houston;
(vii) Raymond Gammell;
(viii) Paul Darren Scurrah;
(ix) Wei Hou;
(x) Judith Swales; and
(xi) Qiping Xing; and
(b) the Twenty-Fourth Plaintiff, VB Leaseco Pty Ltd (Administrators Appointed), whose directors are:
(i) Steven James Fouracre; and
(ii) Keith Antony Neate.
124. The Administrators are also aware from our investigations that each of the Virgin Companies party to the deed of cross guarantee prepare financial reports on a consolidated basis for the purposes of yearly reporting.
125. Given the overlap in directorships of the Deed of Cross Guarantee Companies (with the exception of Virgin Australia and the Twenty-Fourth Plaintiff) and the preparation of financial reports on a consolidated basis by these entities, it is the Administrators’ opinion that a single ROCAP in relation to each of the Deed of Cross Guarantee Companies will be more informative than the Administrators receiving a separate report for each individual one of the Deed of Cross Guarantee Companies.
126. Given the complexity of the affairs of the Virgin Companies, and to assist in relation to the preparation of ROCAPs by the directors of the Virgin Companies more broadly, the Administrators have granted the directors of the Virgin Companies an extension of time for the preparation of the ROCAPs to 21 May 2020.
COMMITTEE OF INSPECTION
127. Pursuant to 80-55(1) of the IPSC, members of the Committee of Inspection must not directly or indirectly derive any profit or advantage from the external administration of any of the Virgin Companies (subject to the leave of the Court).
128. The Administrators seek an order that leave be granted to the members of the Committee of Inspection to derive a profit or advantage from the administrations.
I will make the orders the Administrators seek for the following reasons.
Section 438B(2) of the Corporations Act provides that directors of a company are required to give to the administrator a report about the company’s business, property, affairs and financial circumstances (the ‘ROCAP’), within five business days after the administration of a company begins or such longer period as the administrators allow. As Mr Strawbridge states, the Administrators have extended the period for the ROCAPs to be provided by the directors of the various Virgin Companies, to 21 May 2020.
The Business of the Virgin Companies overlaps between different entities. Virgin Australia and a number of the Virgin Subsidiaries (the Third, Seventh, Eighth, Ninth, Tenth, Thirteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty- Third, and Thirty-Fourth Plaintiffs) (together, the ‘Deed of Cross Guarantee Companies’) are each party to a deed of cross guarantee and prepare financial reports on a consolidated basis for the purposes of yearly reporting.
The Administrators have expressed the view that the provision of a single ROCAP for the Deed of Cross Guarantee Companies will be more informative than the Administrators receiving a separate report for each individual one of the Deed of Cross Guarantee Companies.
The preparation of a single such ROCAP will be a simpler and more straightforward exercise for the directors of the Deed of Cross Guarantee Companies (who would otherwise have to prepare multiple reports in respect those entities).
The Administrators therefore seek an order that one ROCAP be prepared for the Deed of Cross Guarantee Companies as a whole and otherwise dispensing with a requirement of the directors of the other Deed of Cross Guarantee Companies to prepare a ROCAP.
I note that the Commonwealth requested that information about the financial position of each of the employing entities of the Virgin Companies (as at the date of the Administrators’ appointment) be provided, so that the Commonwealth has information about the quantum of circulating assets available to each of those companies. The nature of the material to be provided by the Administrators was refined in the solicitors’ correspondence, and the Administrators have agreed to provide the Commonwealth with certain financial information for each of the employing entities. That course appears to have alleviated any concern that the Commonwealth has in respect of this order.
LEAVE TO MEMBERS OF COMMITTEE OF INSPECTION TO DERIVE A PROFIT
The Administrators seek an order pursuant to ss 80-55 and 90-15 of the IPSC that leave be granted to the members of the Committee of Inspection formed in respect of the Virgin Companies to derive a profit or advantage from the external administration of each of the Virgin Companies.
Mr Strawbridge’s evidence in the Second Strawbridge Affidavit is that:
127. Pursuant to 80-55(1) of the IPSC, members of the Committee of Inspection must not directly or indirectly derive any profit or advantage from the external administration of any of the Virgin Companies (subject to the leave of the Court).
128. The Administrators seek an order that leave be granted to the members of the Committee of Inspection to derive a profit or advantage from the administrations.
129. As described in paragraphs 45 to 49 above, the Administrators are currently undertaking the Sale Process for the Business as well as conducting ongoing negotiations with counterparties in relation to the Aircraft Leases (for example, under the Aircraft Protocol) and other operational agreements affecting the Virgin Companies.
130. It is likely, or at least possible, that some of the proposed members of the Committee of Inspection (for example, secured creditors such as Aircraft Lessors) will be counterparties as part of:
(a) ongoing negotiations during the administrations; and / or
(b) any agreement reached in connection with a sale of the Business (through a DOCA or otherwise).
131. In the absence of an order giving leave to the members of the Committee of Inspection, directly or indirectly, to derive any profit or advantage from the administrations, the Administrators are concerned that the negotiation of ongoing arrangements with creditors and potential purchasers of the Business may be hampered.
132. The Administrators are of the opinion that it is in the best interests of the creditors of each of the Virgin Companies generally, that such leave be granted to members of the Committee of Inspection so as to preserve maximum flexibility to the Administrators during the administrations.
Section 80-55 of the IPSC, prohibits, without the approval of the creditors or the leave of the Court, a member of the Committee of Inspection deriving a profit or advantage from the company. The section operates broadly and the words ‘profit or advantage’ capture a transaction ‘for or on account of’ the company.
The statutory predecessors to that provision were s 551 of the Corporations Act and s 435 of the Companies Code 1982 (NSW) (and its equivalents). Those provisions applied when the company was being wound up and the proscriptive obligations imposed on committee members were consistent with the principle that members of committees of inspection are regarded as occupying fiduciary positions relative to the creditors, such that the section was directed to avoiding a conflict between interest and duty: Re F.T. Hawkins & Co., Ltd [1952] 2 All ER 467; In the matter of DH International Pty Ltd (in liq) (No 2) [2017] NSWSC 871 at [30], [34] (Gleeson JA).
However, the 2017 amendments to the Corporations Act, by the repeal of s 551 and the insertion of s 80-55 of the IPSC, have brought about a change to the practical operation of that provision. Previously, it operated only where the company was in liquidation; it now applies to an ‘external administration’, which includes where the company is under administration.
In an administration, the business of a company may continue to be traded; whereas, in a winding up, a company’s business comes to an end as part of the realisation of all its assets. Thus, in the case of a winding up, there would not be the potential for ongoing dealings between the company and its creditors. But the position is often different in the case of an administration, where the business is continuing to trade.
In those circumstances, unless the Court grants leave, the effect of the section may curtail the ability of the Administrators to trade the business of the Virgin Companies by preventing the Virgin Companies, without leave of the Court or the creditors, from continuing to contract with any counterparty who is a member of the Committee of Inspection.
Indeed, the current evidence is that it is likely, or at least possible, that some of the members of the Committee of Inspection (such as the Aircraft Lessors) will be counterparties as part of ongoing arrangements during the administrations (and/or parties to any agreement reached in connection with a sale of the business of the Virgin Companies (through a DOCA or otherwise)). That possibility is increased given that there are proposed to be 34 different members of the Committee of Inspection.
In the absence of an order granting leave to the members of the Committee of Inspection to transact with the Virgin Companies during the administrations, the Administrators’ flexibility to carry on the Business may be hampered.
The Administrators, who are experienced insolvency practitioners, have expressed the opinion that it is in the best interests of the creditors of each of the Virgin Companies generally, that such leave be granted. No creditor or other interested party opposes the leave being granted.
The purpose for the order sought then is to permit the Administrators to cause the Virgin Companies to enter into arms-length transactions during the administration with creditors who may be members of the Committee of Inspection. In my view this is a valid purpose and leave should be granted.
The order as originally sought had the potential to operate with great amplitude, which basically sought leave on an open ended basis. To address that concern, the orders (a) narrow the scope of the leave to be granted to provide that no gift or remuneration may be provided to any member of the Committee of Inspection by reason of their membership of the committee; and (b) require the Administrators to provide, both to the Committee of Inspection and to all creditors (in their report in advance of the second meeting of creditors), a list of all agreements entered into during the administration period with any of the members of the Committee of Inspection or their related entities.
For the above reasons, I make the orders sought in this matter.
COMMON BANK ACCOUNTS
The Administrators seek an order pursuant to ss 65-45 and 90-15 of the IPSC, that the Administrators (in their capacity as administrators of each of the Virgin Companies) are not required to maintain a separate administration account in relation to each of the Virgin Companies (as otherwise required by the operation of Div 65 of the IPS).
This matter is addressed in Mr Strawbridge’s evidence at [71]-[74] of the Second Strawbridge Affidavit, an extract of which is reproduced earlier in these reasons.
Division 65 of the IPSC deals with bank accounts required to be operated in an external administration.
Section 65-5(1) of the IPSC provides that an external administrator of a company must pay all money received by the external administrator on behalf of, or in relation to, the company into an administration account (as defined by s 60-10) for the company within five business days after receipt. Section 65-15 requires an administrator not to pay other monies into an administration account. Section 65-25 prohibits an administrator from paying money out of an administration account other than for purposes related to the administration of that company (or otherwise in accordance with the Corporations Act or an order of the Court).
As I have already noted, the Administrators have opened separate ‘administration bank accounts’ for VAA and VARA, with funding and expenses of the Virgin Companies being cleared through the bank accounts opened in the names of VAA and VARA (with corresponding intercompany loan account entries being made).
Given that there are now 39 companies within the Virgin Group that are in external administration, opening a separate bank for each entity would increase cost and bring added complexity to the administration. Further, some of the Virgin Companies are dormant entities and did not actively trade prior to the Administrators’ appointment such that that step might be unnecessary.
In circumstances where accounting entries are made to record transactions between the Virgin Companies, there is no utility in requiring the Administrators to open a separate bank account for each of the Virgin Companies.
In Ten Network, Markovic J noted at [91]-[94] that s 65-45 of the IPSC provides a plenary power, equivalent to s 447A with respect to Pt 5.3A of the Corporations Act, to make orders modifying the arrangements with respect to the operation of administration accounts.
Each of the Virgin Companies forms part of the same group of companies; further, any DOCA proposal or a winding up of the Virgin Companies is likely to involve a pooling of the companies’ assets and an extinguishment of intercompany loans. Finally, the Administrators are maintaining records of post-administration dealings between the Virgin Companies.
In light of those matters, the cost of opening and maintaining separate bank accounts for each of the Virgin Companies would be disproportionate given that, prior to the administration, most of the Virgin Companies did not have separate dealings with external creditors in any event.
Accordingly, I will make orders under s 65-45 dispensing with the requirements for administration accounts to be opened and operated for the Virgin Companies other than VAA and VARA.
It is to be noted that the Commonwealth’s position as to the order made concerning the ROCAPs also applies to this order regarding the operation of a common bank account. On the basis that the Administrators have agreed to provide financial information about each of the employing entities of the Virgin Companies, the Commonwealth does not oppose an order in this form.
I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 26 May 2020
SCHEDULE OF PARTIES
NSD 464 of 2020 Plaintiffs
Fourth Plaintiff:
VIRGIN AUSTRALIA INTERNATIONAL HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) ACN 155 860 021
Fifth Plaintiff:
VIRGIN AUSTRALIA INTERNATIONAL AIRLINES PTY LTD (ADMINISTRATORS APPOINTED) ACN 125 580 823
Sixth Plaintiff:
VIRGIN AUSTRALIA AIRLINES (SE ASIA) PTY LTD (ADMINISTRATORS APPOINTED) ACN 097 892 389
Seventh Plaintiff:
VIRGIN AUSTRALIA AIRLINES HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) ACN 093 924 675
Eighth Plaintiff:
VAH NEWCO NO.1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 160 881 345
Ninth Plaintiff:
TIGER AIRWAYS AUSTRALIA PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 124 369 008
Tenth Plaintiff:
VIRGIN AUSTRALIA AIRLINES PTY LTD (ADMINISTRATORS APPOINTED) ACN 090 670 965
Eleventh Plaintiff:
VA BORROWER 2019 NO. 1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 633 241 059
Twelfth Plaintiff:
VA BORROWER 2019 NO. 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 637 371 343
Thirteenth Plaintiff:
VIRGIN TECH PTY LTD (ADMINISTRATORS APPOINTED) ACN 101 808 879
Fourteenth Plaintiff:
SHORT HAUL 2018 NO. 1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 622 014 831
Fifteenth Plaintiff:
SHORT HAUL 2017 NO. 1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 617 644 390
Sixteenth Plaintiff:
SHORT HAUL 2017 NO. 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 617 644 443
Seventeenth Plaintiff:
SHORT HAUL 2017 NO. 3 PTY LTD (ADMINISTRATORS APPOINTED) ACN 622 014 813
Eighteenth Plaintiff:
VBNC5 PTY LTD (ADMINISTRATORS APPOINTED) ACN 119 691 502
Nineteenth Plaintiff:
A.C.N. 098 904 262 PTY LTD (ADMINISTRATORS APPOINTED) ACN 098 904 262
Twentieth Plaintiff:
VIRGIN AUSTRALIA REGIONAL AIRLINES PTY LTD (ADMINISTRATORS APPOINTED) ACN 008 997 662
Twenty-first Plaintiff:
VIRGIN AUSTRALIA HOLIDAYS PTY LTD (ADMINISTRATORS APPOINTED) ACN 118 552 159
Twenty-second Plaintiff:
VB VENTURES PTY LTD (ADMINISTRATORS APPOINTED) ACN 125 139 004
Twenty-third Plaintiff:
VIRGIN AUSTRALIA CARGO PTY LTD (ADMINISTRATORS APPOINTED) ACN 600 667 838
Twenty-fourth Plaintiff:
VB LEASECO PTY LTD (ADMINISTRATORS APPOINTED) ACN 134 268 741
Twenty-fifth Plaintiff:
VA HOLD CO PTY LTD (ADMINISTRATORS APPOINTED) ACN 165 507 157
Twenty-sixth Plaintiff:
VA LEASE CO PTY LTD (ADMINISTRATORS APPOINTED) ACN 165 507 291
Twenty-seventh Plaintiff:
VIRGIN AUSTRALIA 2013-1 ISSUER CO PTY LTD (ADMINISTRATORS APPOINTED) ACN 165 507 326
Twenty-eighth Plaintiff:
737 2012 NO.1 PTY. LTD (ADMINISTRATORS APPOINTED) ACN 154 201 859
Twenty-ninth Plaintiff:
737 2012 NO. 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 154 225 064
Thirtieth Plaintiff:
SHORT HAUL 2016 NO. 1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 612 766 328
Thirty-first Plaintiff:
SHORT HAUL 2016 NO. 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 612 796 077
Thirty-second Plaintiff:
SHORT HAUL 2014 NO. 1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 600 809 612
Thirty-third Plaintiff:
SHORT HAUL 2014 NO. 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 600 878 199
Thirty-fourth Plaintiff:
VA REGIONAL LEASECO PTY LTD (ADMINISTRATORS APPOINTED) ACN 127 491 605
Thirty-fifth Plaintiff:
VB 800 2009 PTY LTD (ADMINISTRATORS APPOINTED) ACN 135 488 934
Thirty-sixth Plaintiff:
VB LEASECO NO 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 142 533 319
Thirty-seventh Plaintiff:
VB LH 2008 NO. 1 PTY LTD (ADMINISTRATORS APPOINTED) ACN 134 280 354
Thirty-eighth Plaintiff:
VB LH 2008 NO. 2 PTY LTD (ADMINISTRATORS APPOINTED) ACN 134 288 805
Thirty-ninth Plaintiff:
VB PDP 2010-11 PTY LTD (ADMINISTRATORS APPOINTED) ACN 140 818 266
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