Adelaide Brighton Cement Ltd, in the matter of Concrete Supply Pty Ltd v... [2023] NSWSC 801 | Case summary

Adelaide Brighton Cement Ltd, in the matter of Concrete Supply Pty Ltd v... [2023] NSWSC 801 | Case summary | Zoe

Judgment

By my primary judgment delivered on 3 July 2023 ([2023] NSWSC 753] ("Primary Judgment") I found that a Deed of Company Arrangement ("DOCA") in respect of ACN 613 909 596 Pty Ltd (formerly Minle Wine Negociants of Australia Pty Ltd) (subject to Deed of Company Arrangement) ("Company") should be terminated under s 447A of the Corporations Act 2001 (Cth) ("Act"). I expressed (at [71]) the following preliminary view as to costs: "My preliminary view is that costs should follow the event, as between MGP and Mr Le, and Mr Le should pay MGP's costs of the proceedings as agreed or as assessed. The Administrators confirmed at the hearing, by their Counsel, that they had not yet drawn down remuneration or disbursements relating to their involvement in these proceedings from the Deed Fund, and that they would not do so prior to the delivery of this judgment. My preliminary view is that there should no order for costs in favour of, or against, the Administrators in respect of these proceedings, and they should not entitled to recover any remuneration or costs relating to their attendance at this hearing on 20 and 22 June from the Deed Fund. It seems to me that there was no utility in the Administrators being represented by Counsel and solicitors for two days of this hearing in order to make limited submissions and, when asked in closing submissions to address the question whether the evidence emerged in the hearing had affected the Administrators assessment of the issues, to decline to engage with that question. However, I will allow the parties an opportunity be heard as to costs."
I directed the parties to bring in short minutes of order to give effect to the judgment, including as to costs, within two business days and to submit draft orders and submissions if there was no agreement between them.
By email dated 5 July 2023, the Plaintiff ("MGP") proposed orders largely consistent with the preliminary view expressed in my judgment. It did not make submissions in respect of those orders, where it had not then been advised by the Defendants as to their position in respect of its proposed orders. All parties subsequently made late submissions in respect of the different positions for which they contended.
The parties agreed the form of the first and second orders dealing with the termination of the DOCA and the Company's passage into liquidation.
MGP's proposed third order provided for the appointment of liquidators it had nominated as liquidators of the Company. At least the Fourth Defendant, Mr Le, seeks to have the Second and Third Defendants ("Administrators") continue as liquidators of the Company. Mr Jordan, who appears for the Administrators, summarises the applicable principles. He points out that, where, by the termination of the DOCA and by operation of s 446AA of the Act, the Company is taken to have passed a special resolution under s 491 of the Act that it be wound up voluntarily, then, by operation of s 499(2D)(b) of the Act, the Company is taken to have appointed the Administrators to be the liquidators for the purpose of winding up the Company's affairs and distributing its property, unless an appointment is made under s 499(2D)(a) of the Act: MCCA Asset Management Ltd v Kamata Homes Pty Ltd (Admins Appointed) (No 2) [2019] VSC 842 ("MCCA"). Mr Jordan also points out that, in MCCA, McDonald J considered (at [43]-[44]) whether to make an order under s 499(2D)(a) and noted that the power to make an order under that section is discretionary and relevant matters included whether the administrators in that case had acted appropriately and in the best interest of creditors and the amount of work that had already been undertaken by them. Mr Jordan did not further address the application of those matters in this case, so I assume that the Administrators do not actively submit that they should be preferred as liquidators to the Plaintiff's proposed appointees.
Mr Foley, who appears for MGP, refers to the affidavit evidence of Mr Healey, one of the liquidators proposed by MGP, to which I referred in the Primary Judgment; notes that Mr Healey was not cross-examined; and submits that there was no suggestion that the liquidators who MGP seeks to have appointed were not appropriately qualified insolvency practitioners who are able and willing to conduct a proper liquidation of the Company. I understand that to be common ground. He also refers to several observations in the Primary Judgment where I noted, broadly, that the Administrators could have shown greater scepticism in dealing with information provided to them by Le in the course of the administration (Primary Judgment [32], [52]-[53]). However, no finding was sought or reached that the Administrators did not properly perform their professional duties in the administration or deed administration. MGP expresses its lack of confidence in respect of further investigations conducted by the Administrators, and that is a relevant matter so far as it has undertaken to fund further investigations, whether or not its view is justified. Mr Foley submits that is in the interests of all parties to have insolvency practitioners with no prior involvement in this matter appointed as liquidators to investigate the affairs of the Company
As I noted above, Mr Le submits that the Administrators should now be appointed as liquidators of the Company, rather than MGP's nominees being appointed as liquidators. Mr Le submits that the Administrators should be appointed as liquidators where the Plaintiff does not seek to impugn their conduct in the voluntary administration process and it is open to the Court to accept their evidence that they are familiar with the "machinations" (to use Mr Le's term, which I would not necessarily have otherwise used) of the Company.
It seems to me that there are several reasons why I should exercise the Court's discretion to make an order under s 499(2D)(a) appointing MGP's nominees as liquidators of the Company. First, the Court's usual practice, where a plaintiff is successful in a winding up application, is to appoint the plaintiff's nominee as liquidator unless there is reason not to do so, and there is a degree of similarity between that situation and the result in this case. Second, MGP has offered to fund investigations by its proposed liquidators in an amount that those liquidators consider is sufficient for those investigations, and it is not clear that MGP would fund the Administrators who have expressed no view as to whether they would or could complete such investigations for the amount of funding offered. Third, it is not apparent that the Administrators have any real advantage in respect of the appointment as liquidators, notwithstanding their previous role as voluntary administrators and deed administrators, given the limited investigations which they had undertaken. Fourth, if they have obtained any further information from their participation in the proceedings, they were not prepared to disclose what it is to the Court, since they declined my invitation, in closing submissions, to indicate whether the evidence that had emerged in the hearing had affected their assessment of the issues. Fifth, Mr Le's support for the Administrators continuing as liquidators does not advance that result where, ordinarily, it may seem preferable that the choice of investigator is not made by a potential primary target of the investigation.
MGP's proposed fourth order deals with costs. MGP seeks, and the Administrators and Mr Le do not oppose, an order that Mr Le pay MGP's costs of the proceedings as assessed or agreed.
MGP's proposed fifth order is: "Orders that the [Administrators] are not entitled to draw upon the Deed Fund established under the (now terminated) DOCA or the property of the [Company], nor rely on the indemnity or lien established under clause 20 of the DOCA, to meet any remuneration or costs in respect of the proceedings." This order would be less favourable to the Administrators than the preliminary view expressed in my Primary Judgment, so far as it excludes their recovery of the costs of the proceedings generally and not only the costs of the two hearing days before me.
The Administrators in turn submit that the Court should make an order that: "… the [Administrators'] costs and expenses of the proceedings be paid out of the Deed Fund."
Mr Le neither consents to nor opposes the proposed order for costs in respect of the Administrators.
In support of the order proposed by MGP, Mr Foley points to Mr Hogan's intention, expressed in cross-examination (T54), that the Administrators would not draw on the Deed Fund for further remuneration, unless a costs order was made in favour of the Administrators and against MGP, and notes that such a costs order is not sought by the Administrators. I proceed on that basis.
Mr Foley submits that the Administrators should be prevented from drawing upon the Deed Fund to meet the costs and expenses of the proceedings for three reasons. First, he submits that the Administrators' active participation in the proceedings was entirely unnecessary and unhelpful. I have had regard to his submission in that respect and the examples he gives in support of it, but I do not reach so wide a finding, although I conclude below that the Administrators' attendance by Counsel and solicitors at the hearing on 20 and 22 June was unnecessary and not particularly helpful. Second, Mr Foley submits that, as a consequence of the Administrators taking an active role, and as a consequence of the affidavit evidence put forward by the Administrators, it was necessary for MGP to object to large parts of the evidence given by Mr Hogan and to cross-examine Mr Hogan as to parts of Mr Hogan's affidavit that were challenged by MGP. I have regard to that submission, but I also recognise that Mr Hogan's affidavit and its exhibit provided useful evidence, and any such adverse impact of parts of his evidence is sufficiently addressed by the order for costs made in favour of MGP against Mr Le and the approach I propose to take in respect of the Administrators costs of the hearings on 20 and 22 June.
Third, MGP submits that it made numerous requests to the Administrators not to needlessly involve themselves and not to take an active role in the proceedings and the Administrators "instead elected to actively participate in the proceedings". I accept that such requests were made; I note below the benefit of the Administrators putting affidavit evidence before the Court; but it seems to me that the Administrators played a limited role at the hearings on 20 and 22 June, which is a difficulty that I address below.
Mr Foley submits that, for these reasons: "… the costs incurred by the Administrators in relation to the proceedings as a whole were not reasonably incurred. The Administrators should not be permitted to draw on the Deed Fund with respect to their costs of the proceedings. The Court should make Order 5 as sought in the MGP Orders."
Mr Foley alternatively submits that the Administrators ought not be permitted to recover any costs incurred in connection with the final hearing of the proceedings (not only the costs of attending the final hearing), and the Court ought make an order excluding not only any remuneration or costs in connection with the final hearing of the proceedings, but also the costs of making written submissions, the costs of preparing for the final hearing and the costs relating to the making of final orders. I cannot make an order in that form, where they would be too much uncertainty as to which costs were included or excluded by such an order.
Mr Jordan noted that the Administrators did not wish to be heard orally as to this issue and were content for it to be dealt with on the papers. He accepted that the Court has jurisdiction to determine whether the Administrators are entitled to an indemnity in respect of their own costs under s 90‑15 of the Insolvency Practice Schedule (Corporations) and the power in s 90-15(1) is a very broad power to make such orders as the Court thinks fit and is similar in scope to s 98 of the Civil Procedure Act 2005 (NSW): Adelaide Brighton Cement Ltd, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to a Deed of Company Arrangement) (No 6) [2020] FCA 928 ("Adelaide Brighton") at [32]; Re Bluechain (No 3) [2021] VSC 420 at [54]-[55]. It is therefore not necessary to invoke the Court's supervisory jurisdiction in respect of insolvency practitioners in any wider form.
Mr Jordan referred to Adelaide Brighton, where Besanko J (at [113]ff) cited Kirwan v Cresvale Far East Ltd (2002) 44 ACSR 21; [2002] NSWCA 395 ("Kirwan") for Giles JA's observation (at [259]) that: "For the reasons I have given, I have come to a different view of the findings of impropriety essential to his Honour's making of orders 3 and 4. On the view I have come to, it was reasonable for Mr Gould actively to defend the proceedings brought against Securities and against himself as administrator. He was entitled to indemnity for costs reasonably and honestly incurred... It does not matter that at the same time Mr Gould was "defending his own character"… Whether particular costs were reasonably incurred may arise, but there was not impropriety in the administration amounting to misconduct whereby, because defending his own misconduct, Mr Gould did not incur the costs reasonably and honestly." [citations omitted]
Besanko J also there noted (at [14]) that in Kirwan: "Young CJ in Eq noted that the primary judge, in refusing to allow the administrator and deed administrator an indemnity out of the company assets, had held that it was unreasonable for him to defend the proceeding "given that the gist of the proceedings was to complain, successfully in the result, about the administrator and deed administrator's improper conduct". Young CJ in Eq also referred to a general guideline to the effect that a liquidator or administrator acting appropriately is entitled to an order, if unsuccessful, that the costs be paid by the company and not by the liquidator or administrator personally. A deed administrator might incur costs as part of the duty of a reasonable administrator "to put before the court material which the court would need to decide the issues before it". Young CJ in Eq said (at [429]): "With respect, it does not necessarily follow from Mr Gould's decision actively to defend the proceedings that all the costs incurred by Securities or Mr Gould were unreasonably incurred. It would be almost certain that some of those costs would be necessary to perform the duty of any reasonable administrator in seeking to put before the Court material which the Court would need to decide the issues before it.""
Besanko J also there observed at [166]: "Dealing with the first purpose of assisting the Court by providing relevant evidence to inform the Court's decision-making, I have already referred to the remarks of Young CJ in Eq in [Kirwan] (at [115]). It may be accepted that deed administrators have a duty to assist the Court and that may involve putting information before the Court and incurring costs in doing so. Those costs reasonably and properly incurred may be recovered by the deed administrators under their right of indemnity. Critically, what is reasonable assistance depends on the circumstances of the case….
Mr Jordan submits that the main purpose of Mr Hogan's affidavit was to put before the Court material which the Court would need to decide the issues before it. I accept that submission and that the Administrators should have the costs of their involvement up to the point of the hearing on 20 and 22 June, of which the preparation of Mr Hogan's affidavit and a detailed exhibit likely form a significant part. Mr Jordan also submits that a large part of the first day of the hearing on 20 June 2023 was concerned with addressing the objections taken by MGP to Mr Hogan's affidavit (T15-22) and with Mr Hogan's cross-examination (T23-60). Mr Jordan submits that it was not unreasonable for the Administrators to be legally represented in Court during these parts of the hearing, which took up the majority of the first day of the hearing. Mr Jordan recognises that the second day of the hearing on 22 June 2023 comprised Mr Le's cross-examination and closing submissions. Mr Jordan then submits that: "The Administrators accept that (other than stating that the Administrators' position had not changed, and that the Administrators maintained their position of neutrality) limited submissions were made by the Administrators in closing (J [71]). The Administrators did not attend to make any closing submissions for or against MGP's application. The Administrators attended to respond to any closing submissions that may have: (a) called for the Administrators to address in accordance with their duty to assist the Court; or (b) been directed at the Administrators in closing by MGP or Mr Le (e.g. as a result of the evidence or concessions made by Mr Hogan in oral evidence) (e.g. see the Administrators' response to submissions made by MGP in written opening at CB 3253 [37]-[47])."
With respect, it seems to me that one obvious way in which the Administrators could have assisted the Court was to be candid and open as to the extent to which matters had emerged in the hearing which were not previously known to them, and that would not have required that they depart from a position of neutrality as to the outcome. The Administrators were not prepared to address that question, even after they were invited to do so.
The Administrators submit that the costs of attendance on 20 and 22 June 2023 were reasonably and honestly incurred. I would likely have accepted this submission, had the Administrators been prepared to assist the Court by making any substantive submission as to what had emerged from the two days of hearing which Mr Hogan, their Counsel and their solicitors had attended. Where they were not prepared to do so, it seems to me that Mr Hogan's role was limited to that of a witness, and there was no necessity for him to be represented by Counsel and instructing solicitors in that capacity. It also seems to me that the Administrators' lack of assistance in identifying any new matters that had emerged from the hearing tells strongly against their recovery of the costs of the two hearing days. I will therefore make the order proposed by the Administrators, but exclude the two hearing days from that order, consistent with the preliminary view that I had expressed in the Primary Judgment.
The sixth order sought by MGP is that the Court: "[o]rders that the [Administrators] pay, or cause to be paid, any monies held in the Deed Fund established under the DOCA, and any other funds held in respect of the administration of the Company (including the funds held in trust account recorded in the trust account statement at page 3122 of the Court Book and the accounts referred to in the transaction listing at page 3118 of the Court Book) to an account held by the Liquidators in their capacity as the liquidators of the [Company] (Nominated Account), within three business days of being provided with the details of the Nominated Account, without set-off or deduction."
The Administrators respond that this order is not necessary to give effect to the Primary Judgment; is not an order that is sought in the Originating Process; and effect can be given to the Court's judgment without that proposed order 6. Mr Fermanis, who appears for Mr Le, also submits that the Court should not make this order where it was not sought in the Originating Process or in the Plaintiff's opening written submissions. I recognise, however, that it is necessary to determine the position as to the funds held in the Deed Fund, where the DOCA is set aside.
Mr Fermanis refers to the observations of Rees J in Re Antqip Hire Pty Ltd (subject to deed of company arrangement) (in liq) [2020] NSWSC 487 ("Antqip") at [94]-[117] concerning whether a deed of company arrangement creates a trust where funds are held for creditors who approved that deed. Her Honour there noted, by reference to Schedule 8A of the Corporations Regulations 2001 (Cth) ("Corporations Regulations"), that, in exercising the powers conferred by the deed and in carrying out the duties under the deed, the administrator is taken to act as agent for and on behalf of the company, and holds the deed fund as agent for the companies and not as trustee. Her Honour also referred to Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Limited (1994) 14 ACSR 753 ("All Suburbs Car Repairs"), where the DOCA incorporated Schedule 8A of the Corporations Regulations, including clause 1 and Davies J held at 758-759: "It follows, in my opinion, that, when the directors and shareholders agreed to pay sums to Mr Silvia in his capacity as administrator, they agreed to pay those sums to him in his capacity as agent for All Suburbs and, consequently, that the sums when paid would be received by him on behalf of the company. It necessarily follows that the sums when received would be property of All Suburbs. This also accords with the ordinary operation of company schemes of arrangement. Thus, when s 444A(4)(b) provides that the deed must specify "the property of the company (whether or not already owned by the company when it executes the deed) that is to be available to pay creditors' claims", it contemplates that sums may be paid by third parties for distribution to creditors and that those sums will be property of the company available to pay creditors' claims."
Her Honour recognised that a different approach was taken in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) (2003) 45 ACSR 290; [2003] NSWSC 353 and Shepard v Sports Mondial of Australia Pty Ltd (in liq) (2005) 53 ACSR 746; [2005] NSWSC 432, and this different approach was then questioned in Commonwealth of Australia v Rocklea Spinning Mills Pty Limited (2005) 145 FCR 220; [2005] FCA 902.
Her Honour then referred to Lombe v Wagga Leagues Club [2006] NSWSC 3 ("Lombe"), where the deed provided that the deed administrators held the deed fund "on trust" for the benefit of the administrators, deed administrators and participating creditors and that such monies were not refundable. Barrett J considered that the analysis in All Suburbs Car Repairs applied in all cases where a deed incorporated clause 1 of Schedule 8A of the Corporations Regulations and funds were provided from outside the company's existing resources for application towards creditors' claims under the deed. Barrett J observed (at [68] and [74]) that: … [t]hose funds become the property of the company. That they should therefore be controlled and applied by the deed administrator is a corollary of the statutory scheme that makes the administrator the agent of the company. In the ordinary course of events, the deed administrator, being an agent of the company and a fiduciary, obtains no proprietary interest in the contributed funds. And, as one of the parties bound by the deed (s 444G(c)), the deed administrator must deal with the relevant property as the deed provides ... The only person capable of creating a trust affecting property of the [company] was the [company] itself. Essential to any conclusion that it had done so would be a finding that there was divestment from the [company] of all legal and beneficial interests in the relevant property in such a way that the deed administrators became the owners at law and other persons became entitled in equity. I do not think that it was intended by the deed of company arrangement that the … creditors whose claims were to be dealt with under the deed, should be the beneficial owners of the deed fund. Rather, it was intended that the deed fund should be applied by reference to the claims of those persons, being claims against the [company]. Application of the deed fund was thus to be by way of quid pro quo: payment of part of the fund to a particular person was the reward for elimination of a claim that person had against the [company]. That intention is incompatible with the creation of a trust in respect of the property concerned. It is consistent with the application of company property for company benefit."
In Lombe, Barrett J also recognised (at [76]) that a deed of company arrangement may create a trust by specifically divesting the company's property and settling it upon a trustee to be held upon defined trusts, but that segregating part of the company's property so that it became a fund to be applied by the deed administrator as the company's agent in accordance with the deed did not, of itself, give rise to a trust "unless it can clearly be seen that the company has divested itself of the legal and beneficial interests in its property". His Honour also observed at [87]-[88], if there was a trust, the effect of termination of the DOCA was to bring the trust to an end, with the residue of trust property held on resulting trust for the company.
As Rees J noted in Antqip at [104], the decision in Lombe has been followed in later cases including Re Jick Holdings Pty Ltd (in liq) (2009) 72 ACSR 387; [2009] NSWSC 574 ("Jick Holdings") at [33]-[36], where White J noted that Lombe is not authority for the proposition that it is not possible for a DOCA to provide that property of the company be settled on trust; but that it does not follow that merely because the deed administrator is required to hold the deed fund and apply it to participating creditors that the company, let alone the deed administrator who is usually the agent of the company, holds the property on trust for those persons: at [33]-[36]. His Honour noted (at [36]) that the deed in Jick Holdings did not use the language of trust and there was no need to imply from the language of the deed that a trust was intended to be created and (at [38]) that: "If the deed had created a trust, this would have been a clear case to make an order terminating the deed. The trust would thereupon be extinguished."
The approach taken in Lombe was also followed in Antqip. Rees J there also noted (at [115], by reference to authority, that an express trust would require certainty of intention, subject matter and objects.
Mr Foley in turn refers to cl 6.2 of the DOCA, which, importantly, provides that: "All payments of the Deed Fund are non-refundable and will vest with the Company should the Deed be terminated, subject to the Administrators and the Deed Administrators right to the indemnity and Lien outlined in clause 20.4 and 20.5."
Mr Foley also refers to cll 7.1 and 7.4 of the DOCA. Mr Fermanis refers to several provisions of the DOCA, namely cll 6.4 and 7.1 (in respect of the purposes of the DOCA) and cl 20.5, on which he relies to submit that the DOCA created a trust; the purpose of the trust failed; and the remaining funds ought to be returned to Mr Le. He seeks to distinguish the position in Lombe and in Antqip, on the basis that it is clear from the terms of the DOCA that the Company was not the beneficial or legal owner of the Deed Fund. I do not accept that submission. First, it seems to me that a trust was not established here. The Administrators here held the Deed Fund as the Company's agent, and the Company had not divested all legal and beneficial interests in the relevant property in such a way that the Administrators became the owners at law and other persons became entitled in equity to that fund. If a trust had existed, it would in any event have been terminated by the termination of the DOCA. Second, the evidence does not establish that, and it is not likely that, the purposes of any trust have wholly failed, at least so far as the deed administration remained in place for a considerable period and the Administrators performed work under the DOCA, although a distribution to creditors will not occur under the DOCA. Third, so far as Mr Fermanis relies on an unelaborated contention that the terms of the DOCA require the return of the Deed Fund to Mr Le on termination of the DOCA, that would be inconsistent with termination of the DOCA on the basis found in the Primary Judgment and I would not make such an order on that basis.
Consistent with the result in Lombe and Antqip, the Deed Fund remains the Company's property and should be remitted to the liquidators for distribution to all creditors of the companies in the winding up, subject to the Administrators' statutory and equitable liens over those funds for proper remuneration (as to which they have limited their claim as noted in the Primary Judgment and above) and proper costs and expenses including those allowed by this judgment. I will therefore make the order sought by MGP in this regard, but limiting the amount transferred to any remaining balance in the Deed Fund after the proper exercise of the Administrators' general law and statutory lien and after the costs and expenses falling within order 5. The practical likelihood may well be that no such balance will exist.
Accordingly, I make the following orders: 1 Order that, pursuant to section 447A of the Corporations Act 2001 (Cth) (the Act), the Deed of Company Arrangement executed on 13 February 2023 relating to the First Defendant (DOCA) is terminated. 2 Declares that, by operation of section 446AA of the Act and the making of Order 1, the First Defendant is taken to have passed a special resolution under section 491 of the Act that the First Defendant be wound up voluntarily. 3 Orders that Quentin Olde and Liam Healey are appointed as liquidators of the First Defendant (Liquidators). 4 Orders that the Fourth Defendant pay the Plaintiff's costs of the proceedings as assessed or agreed. 5 Subject to order 6, order that the Second and Third Defendants' reasonable costs and expenses of the proceedings be paid out of the Deed Fund. 6 Order that the Second and Third Defendants not be entitled to recover any remuneration or costs relating to their attendance at the hearing on 20 and 22 June from the Deed Fund. 7 Orders that the Second Defendant and Third Defendant pay or cause to be paid the Specified Amount to the Nominated Account within the Specified Time, where: "Nominated Account" means an account held by the Liquidators in their capacity as the liquidators of the First Defendant; "Specified Amount" means any monies held in the Deed Fund established under the DOCA, and any other funds held in respect of the administration of the Company (including the funds held in trust account recorded in the trust account statement at page 3122 of the Court Book and the accounts referred to in the transaction listing at page 3118 of the Court Book), less (i) the amount of any proper deduction in the exercise of the Administrators' statutory or general law lien and, (ii) to the extent that it is not included in (i), the amount properly due to the Administrators under order 5; and "Specified Time" means within three business days of the later of (i) being provided with the details of the Nominated Account and (ii) the determination of the Specified Amount.

Adelaide Brighton Cement Ltd, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd

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