SUPREME COURT OF QUEENSLAND
CITATION:
Wadren Pty Ltd v Algeri [2024] QSC 109
PARTIES:
WADREN PTY LTD (ACN 005 537 235) IN ITS CAPACITY AS TRUSTEE FOR THE HOPPERS CROSSING UNIT TRUST
(ABN 83 405 769 465)(first applicant)
and
QIC WERRIBEE PTY LTD (ACN 624 121 204) IN ITS CAPACITY AS TRUSTEE FOR THE QIC WERRIBEE TRUST
(ABN 76 994 021 211)
(second applicant)v
SALVATORE ALGERI, JASON TRACY, DAVID ORR AND MATT DONNELLY IN THEIR CAPACITIES AS DEED ADMINISTRATORS OF THE DEED COMPANIES (LISTED IN SCHEDULE 2)
(first respondent)and
PROBUILD CONSTRUCTIONS (AUS) PTY LTD (ACN 095 250 945) (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
(second respondent)
and
AIG AUSTRALIA LIMITED, STARR UNDERWRITING AGENTS LIMITED FOR AND ON BEHALF OF LLOYD’S UNDERWRITER SYNDICATE NO. 1919 CVS, AND HCC INTERNATIONAL INSURANCE COMPANY PLC
(proposed intervenors)and
CHUBB INSURANCE AUSTRALIA LTD (ACN 001 642 020), INSURANCE AUSTRALIA LIMITED TRADING AS CGU INSURANCE (ACN 000 016 722), ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850), XL INSURANCE COMPANY SE (AUSTRALIA BRANCH) (ARBN 36 083 570 441), SWISS RE INTERNATIONAL SE – AUSTRALIA BRANCH, LIBERTY MUTUAL INSURANCE COMPANY, AUSTRALIA BRANCH (ABN 61 086 083 605), A COMPANY INCORPORATED UNDER THE LAWS OF MASSACHUSETTS, USA (THE LIABILITY OF MEMBERS IS LIMITED), TRADING AS LIBERTY SPECIALTY MARKETS, ALLIED WORLD ASSURANCE COMPANY, LTD ARBN 163 304 907, HDI GLOBAL SPECIALTY SE, ABN 58 129 395 544, CONVEX INSURANCE UK LIMITED
(second intervenors)FILE NO/S:
BS 13331 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
3 June 2024
DELIVERED AT:
Brisbane
HEARING DATE:
20 November 2023
JUDGE:
Brown J
ORDER:
The parties are to provide draft orders within seven days reflecting the above reasons. The matter will then be listed at a time convenient for the parties to make further submissions to the Court on the appropriate form of orders including as to confidentiality, at which time I will hear the parties as to costs.
CATCHWORDS:
CORPORATIONS – ADMINISTRATION – PRELIMINARY DISCLOSURE – PROCEDURE – ESTOPPEL – STAY OF PROCEEDINGS – application for insurance information held by administrators of the first respondent and by director respondents – power to order production of documents under section 70-90 of Schedule 2 to the Corporations Act 2001 (Cth) (IPS) – where orders for preliminary disclosure have been made in Victoria – where insurers intervene – where there is overlap of documents sought – where production of documents would be in the interests of administrators and creditors as a whole – where any prejudice to creditors could be mitigated or eliminated by limitations on disclosure – held that administrators should be ordered to produce documents, subject to limitations to be decided, under s 70-90(3) of the IPS – whether categories of documents sought are reasonably necessary – whether the application is prevented by Anshun estoppel – whether application should be stayed for abuse of process – whether temporary stay should be ordered pending Victorian proceedings
Corporations Act 2001 (Cth) sch…
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- Case
- [2024] QSC 109
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the categories of documents sought by the liquidator were reasonably necessary for the administration of Wadren Pty Ltd's assets and if the application for disclosure was precluded by Anshun estoppel. Additionally, the court had to consider whether the application should be stayed due to an alleged abuse of process or if a temporary stay should be ordered pending the resolution of related proceedings in Victoria.
The court found that the administrators should be ordered to produce the documents sought, subject to limitations to be determined. The court reasoned that the production of the documents was in the interests of the administrators and creditors as a whole, and any potential prejudice to creditors could be mitigated through appropriate limitations on disclosure. The court also determined that the application was not prevented by Anshun estoppel, as there was no suggestion that the administrators' refusal to provide the documents was not made in good faith. The court further held that the application should not be stayed for abuse of process, but a temporary stay was ordered pending the outcome of the Victorian proceedings to avoid any overlap and ensure that the interests of creditors were not adversely affected.
The final orders of the court required the parties to provide draft orders within seven days, reflecting the court's reasons, and to make further submissions regarding the form of orders, including confidentiality and costs. The matter was to be listed at a time convenient for the parties to address these issues.
Orders
Orders of the court
The parties are to provide draft orders within seven days reflecting the above reasons. The matter will then be listed at a time convenient for the parties to make further submissions to the Court on the appropriate form of orders including as to confidentiality, at which time I will hear the parties as to costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The applicants’ counsel however contends that the position was not without uncertainty as to whether s 54 of the Insurance Contract Act would limit the claims to the policy for the 2019/2020 year and that the position may be to the contrary. At the very least it contends that the later policies may have a bearing upon which of the three years insurance was engaged in respect of the claim. The applicants also contend that the information about other claims is material to the applicants because it bears upon whether it continue in the Victorian proceedings or starting fresh proceedings for the non-structural defects would or would not be commercially worthwhile. If the applicants are satisfied that there is insurance they may not then prove in Pool C so that a greater amount is available to be distributed amongst the unsecured creditors, which would be a benefit to the creditors. As to any advantage over other creditors the applicants’ counsel contended it was open for them to seek the same information that they were seeking.Consideration There is no suggestion that the administrators’ refusal to provide the documents requested was not done in good faith. While it is not apparent why the administrators consider that the provisions of documents might prejudice the interests of one or more creditors or be a breach of confidence, at least the latter can be addressed by a court order. The administrators have not appeared to resist the application on the basis of their refusal and do not oppose the orders’ sought. The circumstances of the present case are somewhat unusual. The DOCA incorporates as a term, the terms of s 562 of the Corporations Act and provides the applicants with a contractual right to be paid insurance received by the administrators, the company or liquidators, in respect of liability incurred by the company to that third party in respect of whom liability was incurred (after the deduction of expenses).[34] The administrators have told creditors that a final distribution of the Pool C funds will require any outstanding litigation against the Probuild Group which includes Probuild ( Aust) to be determined so that final distributions can be calculated. Thus, if the applicants determine to pursue litigation to seek relief in relation to the non-structural defects, the distributions to creditors will be delayed and affected by that litigation. [34]Cl 8.5 DOCA dated 21 December 2022. The decision of the applicants as to whether to proceed with the litigation is therefore a decision which not only affects the parties to the litigation, but creditors as a whole. The proposed claim is potentially large and the litigation potentially complex and lengthy. If they were successful in the litigation that would presumably at least they would not prove against other unsecured creditors in Pool C. The applicants have information already through voluntary disclosure by Probuild as to the primary level of cover. They obtained on preliminary disclosure some further information subject to confidentiality restrictions. The applicants are also aware that for the 2019/2020 policy year the primary insurance has not been exhausted. They also have the excess insurance policies for the years from 2019/2020 through to 2022.