Ascot Vale Self Storage Centre Pty Ltd v Wallace Smith [2013] VSC 519

2 The company was the trustee of the Ascot Vale Self-Storage Centre Unit Trust. Richard Leggo ("Leggo") was the sole shareholder. John Crosier was a director from 2 November 2000 to 1 June 2009. Leggo acted as a director from on or about 3 April 2008 and was formally appointed on 30 April 2008. On 5 April 2002, the company effected settlement of the purchase of a property located at 8 Burrowes Street, Ascot Vale for the purpose of undertaking a development and construction of a 50 unit apartment complex.

3 On 2 February 2011, the liquidator was appointed official liquidator of the company pursuant to orders of the Supreme Court of Victoria.

4 On 8 March 2012, Fingal, the holder of a registered charge over the property of the company ("the Fingal charge") commenced Supreme Court proceeding No SC I 2012 1299 ("the Fingal proceeding") against Non de Plume Nominees Pty Ltd ("Non de Plume"), the holder of a registered charge over the property of the company between 23 July 2008 and 14 December 2010. Leggo is and has been at all times a director and shareholder of Non de Plume, together with Peter Szanto. The unit holders in the Ascot Vale Self Storage Centre Unit Trust included Leggo and Anthony Melville. Anthony Melville is the director and shareholder of Fingal.

5 In the Fingal proceeding, Fingal seeks declarations and orders against Non de Plume alleging, among other things, that Non de Plume made payments to various unsecured creditors of the company in circumstances where those payments were not subject to the Non de Plume charge and, as mortgagee in possession, breached its duties to Fingal in respect of repayments to financiers of the development. The Fingal proceeding is being managed by Justice Sifris. By amended defence and counterclaim dated 8 November 2012, Non de Plume pleaded, inter alia, that:

(xi) The purported creation of the Fingal charge on or about October 2007 was of no effect as:

(A) At the time of its creation the Fingal charge secured no debt, the funds having already been lent to [the company] on an unsecured basis.

(B) The Fingal charge was entered into by Crosier, for and on behalf of both [the company] and Fingal, to the detriment of creditors of [the company] and in breach of his duties to [the company], at a time when [the company trust] had negative assets.

6 Non de Plume counterclaims, inter alia, a declaration that the Fingal charge does not, alternatively, since 28 February 2011, but or alternatively 4 April 2011, does not secure any debt and is void and unenforceable.

7 Pursuant to orders made 14 September 2012, the company was joined as second defendant to the Fingal proceeding. Since the joinder of the company to the Fingal proceeding, the company entered a consenting appearance.

8 The Fingal proceeding is at an advanced stage. However, Justice Sifris has adjourned the same to permit the application by the liquidator for approval to enter into the funding agreement.

9 On 15 April 2013, the liquidator conducted a public examination of Leggo. The liquidator subsequently filed proceedings on 31 July 2013. The originating process in S CI 2013 03929 wherein Non de Plume and Leggo are the defendants sets out the following:

1. A Deed of Settlement dated 23 March 2009 between [the company] and the defendants (among others) ...
2. In the alternative, s 588M(2) ...

... [the company] claims the following relief:

1. A sum not exceeding $6,246,821 being the total of the Debts as referred to in the statement of claim exhibited to the affidavit of the liquidator filed in support of this originating process.
2. Alternatively to 1, damages in a sum not exceeding $6,246,821.
3. ...

and, alternatively to the above, the liquidator claims against [Leggo]:

1. Pursuant to s 588M(2) ... a sum not exceeding $2,711,090 being the total of the Post-March Debts, as referred to in the statement of claim exhibited to the affidavit of the liquidator filed in support of this originating process.

10 It is with respect to this proceeding ("the liquidator's proceeding") that funding approval is sought. The liquidator had previously entered into another funding arrangement to enable the public examination of Leggo to be conducted. The entry into of the prior funding arrangement did not require approval.

11 The proposed funding agreement is between the liquidator, the company, Fingal and Ryeland Nominees Pty Ltd ("the Funder"). Anthony Melville is the sole director of each of Ryeland and Fingal.

12 Clause 1 sets out a number of definitions. Those definitions include:

Action Costs All legal costs, expenses, disbursements reasonably incurred by the liquidator, the company or their lawyers ...

Fingal charge The charge given in favour of Fingal which is the subject of the proceeding before Sifris J.

Funding Fee The amount that is equal to 40% of the net proceeds.

Net Proceeds The Recovery Amount less the Action Costs.

Recovery Amount The value of such sum of money or property in Australian dollars as is recovered by the company and/or the liquidator pursuant to any settlement of or judgment or order in the action.

13 Clause 3 refers to an indemnity. Clause 3.1 provides:

The Funder indemnifies, and will keep indemnified, the liquidator and the company and each of them against all damages, charges, costs, expenses and other sums whatsoever for which the liquidator and/or the company may be liable or become liable, pay, incur or sustain in respect of, or arising out of, or in connection with any Action Costs. The indemnity contained within this clause 3.1 is limited to the sum determined in accordance with clauses 3.2 to 3.4 below.

14 Clauses 3.2 to 3.4 deal with the mechanism for the agreement as to the amounts payable by the Funder in relation to particular stages of the liquidator's proceeding or a mechanism to arrive at such amount.

15 Clause 4 deals with the term and termination. Clause 4.1 provides that the Funder may terminate upon the giving of 28 days' notice in writing to the liquidator.

16 Clause 5 acknowledges that the liquidator will retain the lawyers to act on his behalf and on behalf of the company and, although the liquidator is required to confer with the Funder, the liquidator is solely responsible for providing all instructions to the lawyers in relation to the actions.

17 Clause 9 deals with disbursal pursuant to any recovery. Clauses 9.1 and 9.2 deal with advances to the liquidator and the obligations arising there under.

Subject to clause 9.2, the terms of this Deed and any requirement of the Act, in consideration of the covenants and indemnities contained in this Deed, the parties agree that upon receipt of the Recovery Amount, the liquidator and the company will pay to the Funder out of the Recovery Amount, and as a first priority:

(a) such sum as is required to enable the Funder to pay, or alternatively to reimburse the Funder any amount it has paid, for procuring the indemnity referred to in clause 3.7;

(b) such Action Costs as have been paid by the Funder to the Liquidator and/or the company pursuant to the terms of this Deed;

(c) payments made by the Funder on account of the Liquidator's remuneration payable pursuant to clause 3.5; and

(d) any Action Costs which have not been paid by the Funder, by reason that they exceed the maximum sum determined in accordance with clauses 3.2 to 3.4

If the balance of the recovery amount, after payment of the amounts referred to in clause 9.3, is sufficient to pay or reimburse in full:

(a) the Funding Fee payable to the Funder on the terms contained in this Deed (less the amount referred to in clause 9.3); and

(b) the Deferred Expenses in so far as they relate to the conduct of the Action;

these amounts shall be paid or reimbursed in full. If, however, the balance of the Recovery Amount, after payment of the amounts referred to in clause 9.3, is insufficient to pay or reimburse in full the amounts referred to in (a) to (b), those amounts shall be paid parry pari passu.

20 Clause 9.5 provides that the payment and/or reimbursement of each of the amounts to the Funder in accordance with clauses 9.3 and 9.4 are subject to, and conditional upon, the company having sufficient assets to pay or reimburse them following completion of the actions and enforcement of any judgment or reward.

21 Clause 12 deals with Fingal as the secured creditor. Clause 12.1 provides:

The liquidator undertakes in favour of Fingal not to make, bring or support any application or proceeding to set aside, avoid or otherwise challenge the enforceability of the Fingal charge.

22 Clause 12.2 deals with s 564 in the event that the charge is found void or otherwise unenforceable.

To the extent Fingal holds any security over or in respect of any Actions Fingal:

...

(c) will not make any claim to any proceeds on resolution of any Action that is otherwise subject to such security until payment in full of the Deferred Expenses and each of the payments in clause 9.4 and authorises and consents to the making of such payments ...

24 Section 477(2B) is a prohibition against the liquidator of a company entering into an agreement without approval of the Court, of the committee of inspection or of a resolution of the creditors, if:

(a) without limiting paragraph (b), the term of the agreement may end; or

(b) obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance;

more than 3 months after the agreement is entered into, even if the term may end, or the obligations may be discharged, within those 3 months.

25 Given the expected duration of the liquidator's proceeding, it is accepted that the liquidator requires approval to enter into the funding agreement.

26 In the matter of Newtronics Pty Ltd,[1] Gordon J said at [26]:

There are a number of principles relevant to the exercise of the Court's power under s 477(2B) which are worth restating:

(1) the Court does not simply "rubber stamp" whatever is put forward by a liquidator. As Giles J said in Re Spedley Securities Ltd (in liq) ...

In relation to the powers of the liquidator to compromise claims:

[T]he Court is necessarily confined in attempting to second guess the liquidator in the exercise of his powers, and generally will not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct. The same restraint must apply when the question is whether the liquidator should be authorised to enter into a particular transaction the benefits and burdens of which require assessment on a commercial basis. Of course, the compromise of claims will involve assessment on a legal basis, and a liquidator will be expected (as was made plain in Re Chase Corporation (Australia) Equities Ltd to obtain advice and, as a prudent person would in the conduct of his own affairs, advice from practitioners appropriate to the nature and value of the claims. But in all but the simplest case, and demonstratably in the present case, commercial considerations play a significant part in where a compromise will be for the benefit of creditors.

(2) a Court will not approve an agreement if its terms are unclear: Re United Medical Protection (No 4) (2002) 2 ACLC 1,647;

(3) the role of the Court is to grant or deny approval of the liquidator's proposal. Its role is not to develop some alternative proposal which might seem preferable: Corporate Affairs Commission v ASC Timber Pty Ltd ... ;

(4) in reviewing the liquidator's proposal, the task of the Court is:

[Not] to consider all of the issues which have been weighed up by the liquidator in developing the proposal, and to substitute its determination for his in ... a hearing de novo [but] ... simply to review the liquidator's proposal, paying due regard to his or her commercial judgement and knowledge of all of the circumstances of the liquidation, satisfying itself there is no error or law or ground for suspecting bad faith or impropriety, and weighing up whether there is any good reason to intervene in terms of the "expeditious and beneficial administration" of the winding up.

... The Court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgement in the matter;

(5) Further, in judging whether or not a liquidator should be given permission to enter into a funding agreement (whether retrospective or not), it is important to ensure, inter alia, that the entity or person providing the funding is not given a benefit disproportionate to the risk undertaken in light of the funding that is promised or a "grossly excessive profit" ...

(6) Generally, the Court grants approval under s 477(2B) of the Act only where the transaction is the proper realisation of the assets of the company or otherwise assists in the winding up of the company ...

27 In Re ACN 076 673 875 Ltd,[2] Austin J summarised relevant factors as including:

(a) the liquidator's prospects of success in a litigation;

(b) the interests of creditors other than the proposed defendants;

(c) possible oppression in bringing the proceedings;

(d) the nature and complexity of the cause of action;

(e) the extent to which the liquidators canvass other funding options;

(f) the level of the Funder's premium;

(g) the liquidator's consultations with creditors;

(h) the risks involved in the claim (including the amount of costs likely to be incurred in the proposed litigation, the extent to which the Funder is to contribute to those costs, and the extent to which the Funder is to contribute to the costs of the defendant in the event that the action is not successful, or towards any order for security for costs.

(a) I am satisfied that the liquidator's prospects with respect to the liquidator's proceeding are reasonable save that it is difficult to distil how the amount purportedly advanced by Fingal in the sum of $3,535,731 is recoverable pursuant to the deed made 23 March 2009. The alternative claim based upon insolvent trading excises that amount. Although each cause of action is relatively straightforward, the issue of the efficacy of the Fingal charge will no doubt be pleaded by the director with respect to the issue of the solvency of the company.

(b) Subject to what I have set out hereafter with respect to Clause 12 of the funding agreement, I am satisfied that the liquidator's proceeding is in the interests of creditors. The proceeds of any recovery pursuant to the deed made 23 March 2009, subject to the provisions and priorities of the funding agreement, will be exclusively available to Fingal pursuant to its charge. The proceeds of any recovery pursuant to the insolvent trading claim, subject to the priorities in the funding agreement and subject to s 564 (the priority of a funding creditor), will be available to the ordinary unsecured creditors. Further, in so far as the liquidator has made a commercial decision, the Court should be slow to interfere with the same. The liquidator has secured funding with respect to the liquidator's proceeding. No creditor or funder stepped forward to fund any claim to set aside the Fingal charge. Even if it were accepted that entry into of the liquidator's undertaking may be detrimental to the creditors of the company, the decision to forgo any claim to avoid the Fingal charge would not be commercially unsound. On one hand, there is a chose in action with respect to the Fingal charge which cannot be prosecuted by the liquidator by reason of lack of funds. Neither Leggo nor Non de Plume have offered to fund the liquidator. The Fingal proceeding has been progressing since early 2012. On the other hand, the liquidator is now funded for the liquidator's proceeding. Subject to the solvency of the defendants to the liquidator's proceeding, there is a prospect of return to the creditors. The prospect of some return is more beneficial to the creditors than a moribund liquidation.

(c) I can distil no oppression in the bringing of the proceeding within the meaning set out by Austin J. However, subject to directions of the Trial Judge, it would be preferable if the efficacy of the Fingal charge was determined by Justice Sifris in the Fingal proceeding either prior to, or in conjunction with, the liquidator's proceeding.

(d) The liquidator's proceeding is, save for the efficacy of the Fingal charge, no more complex than the usual contract recovery and insolvent trading claim.

(e) I am satisfied that the liquidator has made appropriate enquiries of creditors to determine whether or not any would be willing to fund any causes of action. The liquidator has identified the following claims in the liquidation of the company:

• Galvin Constructions Pty Ltd (the petitioning creditor) - $1,365,000;

• Melbourne Business & Investment Commission - $127,000;

The liquidator of Galvin Constructions Pty Ltd has not expressed any interest to fund any potential cause of action. Further, the liquidator is not aware of whether there are any funds in the liquidation of Galvin Constructions Pty Ltd to do so. The Australian Taxation Office has declined to fund. Fingal has acquired the claim of Melbourne Business & Investment Commission by way of assignment. Given the quantum of the remaining claims, it is axiomatic that such creditors would not be interested in outlaying considerable sums of money when the quantum of their debt is so small. In those circumstances, it was appropriate that the liquidator did not canvass such creditors.

In addition, the liquidator's solicitors treated with Litigation Lending Services, which declined to fund, and also LCM Litigation Fund Pty Ltd ("LCM"). Mr Coope of LCM advised that LCM might consider funding possible actions after the completion of public examinations. Although Mr Coope of LCM expressed interest in looking at the funding of some examinations in the liquidation of company, Mr Lhuede deposed that "events ultimately overtook this discussion and he never came back to me with any offer to finance investigations or actions."[3]

(f) Level of the Funder's premium. The percentage of the Funder's fee is in line with the agreement in Re ACN 076 673 875 Ltd[4]. However, I will return to that issue.

(g) I am satisfied that the liquidator has consulted with creditors;

(h) Albeit it that the likely costs of the proceeding are not specified, I am satisfied that there is an appropriate mechanism for the determination of an independent cost assessor in the event that the parties to the funding agreement are unable to agree.

29 Notwithstanding what I have set out in relation to the criteria referred to by Austin J, two issues cause me concern. The first is the quantification of the consideration for provision of the funding. The second is the liquidator's undertaking not to seek to set aside the Fingal charge.

30 The first amount to be paid from any recovery is the sum required to enable the Funder to pay, or alternatively to reimburse the Funder any amount it has paid, for procuring the indemnity referred to in clause 3.7. That indemnity is for the benefit of the liquidator in such form and for such amount and on such terms as the liquidator reasonably requires. The funding agreement does not impose any parameters as to the quantum or "price" for entry into such indemnity. Further, when pressed, the liquidator's counsel informed the Court that he did not have instructions to advise the Court what the likely costs would be. Initially, it was conceded that the indemnity price was in addition to the funding fee (40% as defined in clause 1.1 of the funding agreement). However, with leave, supplementary submissions were filed which submitted that by virtue of clause 9.4(a) the funding fee is payable less the amount referred to in clause 9.3 which includes the "price" of the indemnity. The supplementary submissions filed on behalf of Non de Plume highlight the apparent concession made by counsel for the liquidator and focus upon what are contended to be other drafting problems in relation to clause 9.2 of the funding agreement. However, I am satisfied that the funding fee is not in addition to the sums and payment referred to in clause 9.3. I am entitled to assume that the cost of procuring the indemnity, not being the actual funding of the liquidator's proceeding, would be less than the 40% fee.

The liquidator's undertaking in clause 12 of the funding agreement

31 Non de Plume contended that the liquidator's undertaking should be viewed in two ways. Firstly, that it was a "price" over and above the 40% and, secondly, that it was not in the interest of the creditors to relinquish the chose of action which might be available to the liquidator. As to the first, I am satisfied that the terms of the funding agreement are sufficiently clear so that the principles set out in Re United Medical Protection (No 4)[5] do not prevent approval of entry into of the funding agreement. Of course, ascribing a value to the undertaking is more difficult. It is common ground that about $1.1 million has been repaid to Fingal. That amount would not be recoverable if the Fingal charge were not set aside. The counterclaim filed in the Fingal proceeding seeks a declaration that the Fingal charge does not or alternatively, since 28 February 2011 but or alternatively before April 2011 does not secure any debt and is void and unenforceable. That leaves open the possibility that the sum said to be owed to Fingal as set out in the particulars subjoined to paragraph 9 in the sum of $3,535,731 would not be a liability of the company.

32 Although Senior Counsel for Non de Plume conceded that the liquidator has acted in good faith, it was submitted that the failure to properly investigate the likelihood of setting aside the Fingal charge was in breach of duty. Senior Counsel for Non de Plume based submissions relying upon evidence filed in the Fingal proceeding. I decline to read the witness statement filed in that proceeding and have regard to references to those witness statements in the affidavits in opposition to this application. The filing of such witness statements pursuant to order of Justice Sifris is captured by the Commercial Court Practice Note No. 10 which, at paragraph 13.21, provides:

A party receiving a witness statement is taken to have done so subject to an implied undertaking to the Court that the witness statement and its contents will not be used for any purpose other than for the legitimate purposes of the proceeding.

33 Leave was sought to rely upon the witness statements notwithstanding the Practice Note No. 10, and notwithstanding the principles set out in Home Office v Harmon.[6] I am not satisfied that special circumstances exist within the meaning of Springfield v Bridgelands.[7] Fingal is not privy to this application and the liquidator is merely a consenting party in the proceeding before Justice Sifris. Further, my task is not to embark upon a determination of the efficacy of the Fingal charge in order to determine whether or not to approve the funding agreement. For the purposes of this application it is sufficient if I have regard to the matters set out in the amended defence and counterclaim filed on behalf of Non de Plume. However, I note that it is conceded that approximately $150,000 had been advanced to the company pursuant to the Fingal charge.

34 Non de Plume criticises the conduct of the liquidator and the scope of the enquiries which he undertook to determine whether or not to agree to the liquidator's undertaking contained in the funding agreement. The liquidator concedes that he has not investigated the efficacy of the Fingal charge. At paragraph 28 of his affidavit sworn in support of this application, the liquidator set out:

With respect to the allegation of Mr Leggo that the Fingal charge is voidable I have not investigated that allegation in any detail to date. In this regard I have been conscious of a number of significant issues that might arise in any action to avoid such charge including but not limited to:

28.1 Mr Leggo having himself drafted and entered into the settlement deed the subject of the [Fingal] proceeding which contemplates the validity of the Fingal charge; and

28.2 Mr Leggo as a director of the company taking no steps to set aside or void the Fingal charge while he was in control of the company.

In crossexamination, the liquidator did not resile from those observations and did not seek to assert that he had carried out any further investigations. He was cognisant that he was not required to incur any costs of investigation unless there was sufficient funds in the liquidation.

35 It was submitted on behalf of Non de Plume that:

• the liquidator has selectively investigated causes of action available to the company;

• the liquidator has investigated those causes of action available to the company which are in Fingal's interest and are premised on the validity of the Fingal charge, but has not investigated any causes of action that may be contrary to Fingal's interest or which may involve the setting aside of the Fingal transaction or recovering moneys paid there under to Fingal;

• the liquidator has only conducted a public examination of Mr Leggo which centred on matters which are now the subject of the liquidator's proceeding and to a lesser extent on Fingal's claim in the proceeding before Justice Sifris;

• no public examinations were conducted of any other unit holders;

• no examinations have been conducted dealing with the validity of the Fingal transaction;

36 The submission on behalf of Non de Plume also put that it was contrary to the liquidator's duty to enter into the liquidator's undertaking in the funding agreement. The undertaking is not in the interests of creditors.

37 Whilst the argument has merit, the prevailing circumstances of already having filed the counterclaim in the Fingal proceeding militates against a determination that it is not in the interests of creditors to enter into the liquidator's undertaking in the funding agreement. I cannot predict what might occur in the Fingal proceeding. If approval is given to the liquidator to enter into the Funding agreement, it might be that Fingal discontinues its claim. However, it does not follow that the counterclaim as to the efficacy of the Fingal charge would also be discontinued. To the contrary, as the efficacy of the Fingal charge and whether or not any moneys are secured thereby bears upon the issue of the solvency of the company during the relevant period, I cannot imagine that Non de Plume would lightly abandon prosecuting that claim. It is in its interest to have the issue determined before or concurrently with the insolvent trading claim.

38 I am satisfied that the undertaking provided at clause 12 is an undertaking given solely by the liquidator in his capacity as liquidator of the company. Albeit that the undertaking binds the liquidator and any successor liquidator, in the event that Justice Sifris determines that the Fingal charge ought to be set aside, the undertaking does not prevent the company (not the liquidator) from seeking to recover repayments to Fingal by the company. If Justice Sifris were not to disturb the Fingal charge, although the liquidator has powers pursuant to Part 5.7B which are not all available to an ordinary litigant, it is difficult to see that the liquidator is giving up anything of value.

39 The entering into of the funding agreement is approved.

[1] [2007] FCA 1375.

[2] [2002] NSWSC 578. See also Leigh; Re AP & PJ King Pty Ltd (in liq) [2006] NSWSC 315.

[3] Paragraph 4 of Mr Lhuede's affidavit filed 10 September 2013.

[4] [2002] NSWSC 578 at [21].

[5] (2002) 20 ACLC 1647.

[6] [1981] Q.B. 534.

[7] Springfield Nominees Pty Ltd & Ors v Bridgelands Securities Ltd & Ors [1992] FCA 472; [1992] 110 ALR 685 at 693.