By an originating process filed on 29 September 2017, the plaintiff Zongqing Xu claims an order that the defendant company Megaward Pty Limited be wound up in insolvency and a liquidator appointed. The application is founded on the company's failure to comply with a creditor's statutory demand issued on 11 July 2017 and served on the company on 17 July 2017, which demanded payment of a debt of $392,174.35, described in the schedule to the demand as follows:
Between 19 March 2015 and 5 June 2017, the creditor provided his services in introducing clients to purchase properties on sale by the debtor in Australia and managed 36 properties on behalf of the debtor company. The Court had rendered invoices for its services to the debtor company. The debtor company has not paid any of the invoices issued by the creditor. Annexed hereto are copies of the invoices.
The demand was accompanied by the plaintiff's affidavit verifying it, also of 11 July 2017. The company made no application to set aside the demand, nor did the company comply with the demand. In those circumstances, by operation of (CTH) Corporations Act 2001, s 459C(2)(a), the Court must presume that the company is insolvent for the purposes of this application unless, pursuant to s 459C(3), the contrary is proved. The real issue on this application is whether the contrary has been proved; that is to say, whether it has been proved that the company was not insolvent.
By Corporations Act, s 95A(2), a person is insolvent if he or she is not solvent; and by s 95A(1), a person is solvent if and only if the person is able to pay all the person's debts as and when they become due and payable. It is well-established that this definition adopts a cash flow test of insolvency, which is directed to income sources available to the company and expenditure obligations it has to meet, rather than a mere balance sheet test focussing on the value of assets and liabilities reflected in the company's books. But a balance sheet test can nonetheless provide context for the application of the cash flow test: see Southern Cross Interiors Pty Limited v Deputy Commissioner of Taxation (2001) 53 NSWLR 213; 39 ACSR 305; [2001] NSWSC 621; ASIC v Plymin (No 1) Pty Ltd (2003) 46 ACSR 126; Bell Group Limited v Westpac (No 9) (2008) 70 ACSR 1; Emanouel v Cube Footwear Pty Ltd (2013) 2 Qd R 501; (2012) 92 ACSR 218.
Whether a company is able to pay its debts as and when they fall due is a question of fact, to be determined in all the circumstances; those circumstances include the nature of the company's assets and business. The Court will have regard to commercial realities, including the availability of unsecured borrowings or voluntary extension of credit: see Sandell v Porter (1966) 115 CLR 666; Southern Cross Interiors v Deputy Commissioner of Taxation at [54]; Lewis v Doran (2005) ACSR 410; [2005] NSWCA 243; Bell Group v Westpac at [1087] to [1090]. In particular, as was said by Palmer J in Southern Cross Interiors v Deputy Commissioner of Taxation at [54], in assessing whether a company's position as a whole reveals surmountable temporary illiquidity or insurmountable endemic illiquidity resulting in insolvency, it is proper to have regard to the commercial reality that, in normal circumstances, creditors will not always insist on payment strictly in accordance with their terms of trade, although that does not result in the company thereby having a cash or credit resource which can be taken into account in determining solvency.
Because the company did not apply to set aside the creditor's statutory demand and because it has not sought leave (pursuant to Corporations Act, s 459S, to do so), it is not entitled to resist the present application on any ground which it could have raised on such an application. Thus, for present purposes, it is statutorily estopped from disputing the debt claimed by the plaintiff, and also from disputing the plaintiff's standing as a creditor. However, at least in one respect, the fact that it does in fact dispute the debt is not irrelevant, and that is in explaining why the debt is not included in its financial statements, and in reducing the force of any submission that insolvency is to be inferred from mere failure to pay it.
Although there are, in many cases, references to the need for a company seeking to rebut the presumption of insolvency to adduce the "fullest and best" evidence of solvency, that is not what s 459C says. What is required is that it be proved by admissible evidence that the company is not insolvent. That is a state of satisfaction which the Court must reach on the balance of probabilities. The references to the requirements for the "fullest and best" evidence are really statements to the effect that mere general assertions of solvency are insufficient, that even expert opinions of solvency based on a general review of books without proving the true financial position are unhelpful; and that, at least where it is in doubt, the proffering of unaudited balance sheets with no supporting evidence to verify the entries in them may not suffice. However, as has been said in a number of cases, of which perhaps the judgment of Finkelstein J in Deputy Commissioner of Taxation v De Simone Pty Limited [2017] FCA 548 is the origin, audited accounts are not required in every case. There are other ways of proving solvency and, in some cases, it might suffice for an officer of the company with detailed knowledge of its financial position to depose to its assets and liabilities of which he or she has personal knowledge in such a way that, if uncontradicted and unchallenged, solvency would be obvious. The question will always depend on the evidence in the particular case.
In proving solvency, the verification of a company's assets, and particularly its current assets, will usually be more important than liabilities. It is of course within the power of the company to prove what its assets are and what they are worth. Liabilities are in a different position. A company can admit what liabilities it has, and a director can depose that it has no other liabilities than those which it has admitted in its balance sheet, but a company cannot otherwise be expected to undertake the impossible task of proving the negative, that there are no other liabilities. It is of course open to a plaintiff creditor to test a company's balance sheet by procedures of discovery, subpoenas and notices to produce and to seek to prove that liabilities are understated if it wishes to do so.
In this case, the principal evidence on which the company relies for proof of its solvency are its financial statements, and those of most relevance for present purposes are the interim financial statements as at 30 September 2017, being the most recent, together with some updating evidence of its current assets and some current liabilities at the date of hearing.
I referred earlier to the nature of the company's business as being a relevant factor. This company is in effect a real estate agency, which markets units in large developments. It is remunerated chiefly by commission on sales achieved. Typically, though not invariably, that commission is payable in stages, as to part on exchange, and part on settlement.
The company itself engages consultants or contractors as subagents to perform some of its functions. The plaintiff was such a contracted subagent. Again, typically, the arrangements with the subagent, as they were with the plaintiff, are that the subagent will receive a portion of the commission payable to the company, typically at the same times that the company is entitled to receive its commission namely, 50% on completion and 50% on settlement.
The company's internal accountant explained that when a contract was exchanged, she would raise an invoice for the first instalment of the commission - that is, the commission that was payable on exchange - and that would be entered in MYOB, so as to become a debtor in the company's accounts. At the same time, she would enter a provision for the agent's commission. When the agent submitted an invoice, the agent's commission would move from a provision to an account payable. That this was the model is confirmed by a close study of the financial records and, in particular, the accounts receivable which show, for many projects, invoices designated with the same number followed by a "-1", and then another invoice with the same number followed by "-2" which I take to be indicative of the first instalment of commission invoiced on exchange, and the second instalment of commission invoiced on settlement, respectively.
As I have mentioned, cases have referred to the often insufficient nature of unaudited financial statements to prove solvency. Frequently, such statements are of dubious reliability. That is especially so when they are produced at the last minute and in the context of a winding up application. The financial statements of the company in this case do not suffer from those defects.
The defendant has put in evidence its financial statements over a period of several years dating from 2014 through to 2017, in addition to the September 2017 interim financial statements. That is important, because it shows them to be consistent over a period of years. Their reliability is assisted by the circumstance that they are produced through the MYOB platform, which ensures their consistency in terms of what is entered, for example, as an invoice, then being consistently reflected throughout the accounts. Notably, their reliability is further confirmed by the fact that they correlate with the income tax returns lodged by the company in the years to which they relate, which means that the company is incurring and paying its taxation liabilities on the basis of those financial statements. There is thus a strong taxation incentive not to overstate income, or the overall financial position of the company, in its financial statements. In my view, the consistency of the financial statements with the fact that tax returns have been lodged and tax has been incurred on the basis of those statements is an important consideration in considering the reliability of the financial statements.
The financial statements demonstrate a company that has been consistently profitable over the last several years, with an increasing surplus over that period. The financial statements admittedly omit three liabilities. One is the debt to the plaintiff, which the director and the accountant explain is omitted because it is disputed; the company does not accept that it has any such liability. The second is a debt claimed by Ms Wang, who gave evidence in the plaintiff's case; she is another subagent, and her claim is similar to the plaintiff's and disputed on similar grounds. The third emerged in the course of the director's evidence; when asked whether there were any other liabilities not included, the director spontaneously volunteered that there was one other, being another subagent in a similar category.
These debts are disputed by the defendant on the basis that they are for the second instalments of commission, which are apparently said to have become payable after the relevant subagent ceased to have a relationship with the company, and in respect of which it is said that the subagent did not perform the requisite functions to earn the second instalment. It is not necessary on this application to resolve whether there is any merit in that ground for refusing payment or not. That is because, so far as the plaintiff's debt is concerned, the matter is foreclosed; and so far as the others are concerned, I am content to proceed on the basis that they should be included as liabilities. What is relevant about the fact that they are disputed is simply, first, that it explains why they are not in the balance sheet and so does not otherwise cast doubt on the reliability of the financial statements; and secondly, that it deprives a submission that insolvency is to be inferred from the mere non-payment of debts of some of its force.
I turn then to examine the financial position of the company. It is convenient to do so at three dates: first, 30 September 2017, being the date of the interim financial statements last available; secondly, 23 October 2017, being the date of one set of updating evidence; and thirdly, the date of hearing, being the date of a further set of updating material. Because the updating material is incomplete, it is possible only to make some adjustments to the 30 September 2017 position, which is the fullest and most reliable description of the company's financial position.
According to the interim financial statements of 30 September 2017, the company had total assets of $2,793,852. Of that, $327,535 were non-current assets, being property, plant and equipment, leaving current assets (comprising receivables of $2,287,870, cash of $112,733, and other assets of $72,712). The total liabilities were $2,034,825. Of them, $134,106 were non-current interest bearing liabilities, leaving current liabilities of $1,900,718, which included payables of $148,581 and accruals for commission of $938,480 and bonus of $90,300.
The important conclusions are, first, that total assets exceeded total liabilities by $759,000; secondly, that current assets exceeded current liabilities by $565,598 and thus that the company had a positive current ratio which is an indication of solvency; thirdly, and of some significance, current assets even exceeded total liabilities by $431,491. That, of course, is before providing for the plaintiff's debt and for Ms Wang's debt. But if one includes them as one must, that still leaves current assets in excess of current liabilities by about $125,000, and still leaves the company with a positive current ratio.
As at 23 October 2017, there is available evidence of cash at bank, receivables and payables. So far as receivables are concerned, whereas they were $2,280,000 as at 30 September, they had decreased by 23 October to $1,923,503, a reduction of $357,367. Whereas cash at bank had been $112,733 as at 30 September, it had increased to $507,772, an increase of $395,039. It is not in the least surprising that as the receivables decreased, the cash increased, because that would represent the recovery of the receivables. As will in due course be seen, there were substantial recoveries of receivables during that period.
So far as payables are concerned, whereas they had been $148,581 as at 30 September 2017, they increased to $195,681, an increase of $47,100. That is likely to represent, at least in part, some of the liabilities that had previously been recorded as accrued commission migrating to become payables, as the receivable commission from the principal was received and an invoice submitted by the subagent.
If one merely adjusts the balance sheet for the updated receivables, cash and payables figure, and leaves all other entries unaffected, that would produce a surplus of current assets over current liabilities as at 23 October 2017 of $556,170. That is sufficiently close to the $565,000 of 30 September 2017 as to indicate that there was probably not much further impact on the balance sheet by 23 October 2017.
By March 2018, the receivables have reduced to $1,888,545. This is a reduction of a further $34,958, and a total of $392,325 since 30 September 2017. The cash had fallen to $162,009, representing a reduction of $345,763 since 23 October 2017, but still an increase of $49,276 since 30 September 2017. The reduction in receivables and in cash totalled $380,721, which one would expect to see reflected in a corresponding reduction in liabilities.
On the liabilities side, the payables indeed did reduce from $195,681 to $36,331, a reduction of $159,350 and a net reduction of $112,250 since 30 September 2017. The application of the remaining $220,371 funded by the reduction in receivables and cash is not apparent from the available documentation. However, as the receivables reduced and commission became payable to subagents, one might well anticipate that the provision for accrued commission would correspondingly reduce as it was converted to payables.
If one makes only the adjustments for receivables, cash and payables and applies that to the 30 September 2017 balance sheet, the result would be that current assets exceeded current liabilities by $334,799. However, given that there is another $221,371 of reductions in liabilities funded by the reduced receivables and cash, I do not think that is a reliable figure. The 30 September 2017 financial statements, seen in the light of the results I have deduced for 23 October 2017, and the movements of which there is evidence to March 2018 point to a consistent position of the company having more than $550,000 surplus of current assets over current liabilities - which, as I have said, more than covers the plaintiff's debt and Ms Wang's debt, and after that, still leaves the company in a positive current ratio position.
That, however, raises the most important question that underpins the company's claim to solvency, which is the recoverability of its receivables. The receivables are, in many cases, old. As at 20 October 2017, 80% were in excess of 90 days, and a significant body much older than that; only 2.56% were less than 30 days, and 15% between 30 to 60 days. As at 13 March 2018, 53% were in excess of 90 days; another 13% in excess of 60 days; another 5% in excess of 30 days, and 30% within 30 days. This gave rise to a serious question as to the recoverability of the receivables.
The company explains this phenomenon as being a function of its business model and operations and that, in many cases, it does not get paid when exchange takes place, and it may agree with a developer not to be paid until settlement. There are a number of matters which inform a view as to the recoverability of the receivables. One, which, to my mind is powerful, is that the accounts being prepared, as they are, on an accruals basis, means that all the receivables are treated as income for the purposes of tax, and are taxable income, unless and until they are written off, in which case they would be expensed and deductible. Again, there is a very powerful taxation incentive to write off bad debts. The very fact that these debts have not been written off but included in financial statements and, as a result, in tax returns, and that liability for tax has therefore been incurred on them, is a strong indicator that they are genuinely regarded as recoverable; otherwise they would have been written off.
I have undertaken a detailed examination of the recoverables as at 20 October 2017, in respect of which the director was cross-examined. They can be compared with the receivables as at March 2018 to identify which of those outstanding as at 20 October 2017 have been recovered between then and March 2018. Working down the list of the aged receivables as of 20 October 2017:
Australand North Ryde, which, as at that date, had an in excess of 90 day liability to the company for $16,335 incurred on 31 March 2017 was, by March 2018, fully paid.
Colliers International was fully paid, although a new invoice was issued, apparently being the settlement invoice, the one in the accounts in October being the exchange invoice.
Colliers International, in October 2017, owed $20,707 since 30 June 2017. That too had been paid by March 2018, although new invoices for additional sales had been issued to Colliers.
Crown W1 Developments owed $8,998 in October 2017 since June 2017. That too was paid by March 2018.
GMR Riverstone owed $7,804 in October on a September 2017 invoice. That had been paid and a new invoice issued to it for a new sale.
Gold Max Developments owed $33,346 to the company on invoices that dated from September to October 2017. That was paid and new invoices issued to it for new sales.
Link Realty owed $90,598 on invoices dating from September 2017. They had been paid in full by March and new invoices issued for new sales.
Norwest Schofields owed a total of $369,222 as at October 2017 incurred between April and September 2017. By March, that had been paid in full. That payment also completely explains what, it was suggested, might have been a convenient entry in the bank statements, because it corresponds precisely with the amount that was deposited into the bank account on 23 October 2017.
Norwest Developments owed $124,000 as at October 2017 incurred between June and August 2017. That was paid in full by March and new invoices issued for further sales.
Tien Tong owed a total of $584,474 at October 17 on invoices which dated between May and September 2017. It paid $336,380 by March on invoices up to about June 2017.
Union Grace owed $55,438 in October on invoices dating from June through to September 2017. It was paid in full by March.
Accordingly, a total of $1,062,828 of the $1,923,508 aged receivables as at 20 October 2017 had been recovered by mid-March 2018. That represents a recovery of 55% of the aged receivables over a five months period, equivalent to 11% per month. If one applies that rate to the current aged receivables of $1,888,000, that approximates to recoveries of $207,750 per month from the aged receivables.
That analysis shows two things. The first is that in the nature of this business there is delay in recovery from debtors because of the time taken for developments to be completed and the sale of units in them to exchange and then settle, and for the developers to pay. That does not mean that debts are not paid as and when they fall due, but that in the practice of the industry it takes time for commission to be received by agents and therefore by subagents. Secondly, it demonstrates that the aged receivables are by no means irrecoverable.
If one turns to an analysis of what might be described as the very short-term position, the company's immediate liabilities are its creditors payable of $36,331, the plaintiff of $392,174 and Ms Wang, who I will accept for present purposes is payable, of $48,373; a total of $476,878. The company has $162,009 in the bank. That leaves a difference of $314,869. At the rate at which the company realises its receivables that difference will be recovered in the space of about six weeks.
In my view, in the context of this industry, that means that the company has shown that it does not lack the ability to pay its debts as and when they fall due.
It has therefore been proved that the company is not insolvent.
The Court orders that the originating process be dismissed with costs.
[3]
Costs
Consequent upon my indication that I proposed that the originating process be dismissed and that the unsuccessful plaintiff pay the successful defendant's costs, Mr Burchett for the plaintiff has submitted that that is not the appropriate costs order.
With his customary persuasion, he has taken me to a number of authorities said to support the proposition that, where a winding up summons is properly brought by a creditor in circumstances where a company has failed to contest or comply with a creditor's statutory demand but succeeds in having the proceedings dismissed only by belatedly proving solvency, the usual order is that the company pay the plaintiff's costs, at least up until the time when it ought to have been conceded that the company was solvent, and thereafter there be no order as to costs.
Examination of this proposition should commence with the decision of the Court of Appeal in Australiawide Airlines v Aspirion Pty Limited [2006] NSWCA 365, when the Court pointed out that the starting point was provided by (NSW) Uniform Civil Procedure Rules 2005 r 42.20, namely that where proceedings are dismissed, the unsuccessful plaintiff is required to pay the costs of the successful defendant although, of course, the Court may otherwise order. In deciding that there should not be an otherwise order, Bryson J pointed out that the evidence on which the creditor launched the proceedings, being non-compliance with the statutory demand, was no more than a formal conclusion, based on the absence of an appropriate response to a statutory demand, that there was evidence of insolvency. Thus as Rein J said in ET Petroleum Pty Limited v Clarenden Pty Limited [2008] NSWSC 590, the starting point for the Court where winding up proceedings are dismissed is an order that the plaintiff pay the defendant's costs, and the fact that the plaintiff was entitled to bring winding up proceedings is of itself insufficient to warrant an "otherwise order".
That in fact was not the outcome in ET Petroleum v Clarenden, nor in the other cases to which Mr Burchett referred where there were "otherwise orders", and it is necessary to explain why.
In Lavercombe v Auscott Limited (2006) 58 ACSR 586, winding up proceedings were consensually dismissed in circumstances where as Barrett J pointed out (at [43]), there was no relevant "event": the proceedings having been disposed of by consent, there was no determination on the merits and in cases of that kind, the general expectation is that there should be no order as to costs. Moreover the plaintiff's consent to the dismissal of the proceedings came about only after the defendant paid the debt that was unquestionably owing due and payable: see at [48]. In other words, there was no relevant event, and the plaintiff obtained substantial success by having its debt paid. In those circumstances, it is unsurprising that there was a departure from the usual order.
The next case was Deputy Commissioner of Taxation v De Simone Consulting Pty Limited [2007] FCA 548. In that case the plaintiff, taxation commissioner obtained leave to withdraw the application in circumstances where first, somewhat to the plaintiff's surprise, the company's director had appeared before the Registrar on the first return date with a suitcase containing cash in the sum of several hundred thousand dollars said to be more than enough to meet the debt due; and secondly, the company paid $175,000 to the Commissioner: see [3] and [4]. In other words, although there was no relevant event (because the matter did not proceed to the Court's determination) the plaintiff obtained substantial success in the form of a payment of $175,000.
Thirdly, in ET Petroleum v Clarenden (to which I have already referred) before the winding up petition came on for hearing, the plaintiff was able to garnishee an account into which proceeds of a loan raised by the defendant was paid, and thereby obtained full payment of the amount of its debt. It was in those circumstances - presumably because it was no longer a creditor - that it was agreed that the plaintiff's proceedings must now be dismissed. The plaintiff obtained substantial success in being paid out its debt.
Rhodium Australia Pty Limited v Deputy Commissioner of Taxation [2011] FCA 988 is slightly but not relevantly different. The difference there is that the debt in question was founded on a taxation estimate, which was liable to be revoked as soon as the taxpayer lodged a statutory declaration verifying facts sufficient to prove that the underlying liability never existed: see [11]. The Deputy Commissioner treated certain affidavits filed on behalf of the company in the proceedings as triggering that requirement, and accordingly was compelled to revoke the estimate: see [19]. In those circumstances, Rhodium snatched from the jaws of defeat, shortly before the hearing, the result that there was no longer a debt that could be relied on by belatedly providing an affidavit.
In my view the present case is completely different from those cases. Fundamentally, the plaintiff has not achieved substantial or any success. It has not achieved payment of its debt in whole or in part. All that has happened is its contention that the defendant was insolvent has been rejected. Accordingly, that line of authority does not to my mind provide a reason from departing from the ordinary rule.
It was argued that the conclusion of solvency relied essentially on evidence that was served very late in the proceedings. It is true that in giving my reasons I have referred to and relied on the interim financial statements for September 2017 and the updating documents served recently. Much time was spent in comparing the October 17 receivables with the March 18 receivables to deal with the argument that they should not be regarded as recoverable.
But while it is true that that was the material relied on in the course of giving my reasons, because it was the most recent and current, it cannot be overlooked that Exhibit HW1 to Hong Wu's affidavit of 24 October 2017, being the initial responsive affidavit, contained the financial statements for 2014, 2015, 2016 and interim financial statements through to March 2017, and those financial statements displayed approximately the same overall financial position as the September 2017 interim statements. Once that material was served, it should have been clear enough that the company was a substantial undertaking with current assets which apparently exceeded its current liabilities. It is true that at least on some of the financial statements, whether the difference would cover the plaintiff's debt might have been marginal, but it was also clear from that point that there was going to be a live argument about solvency, in respect of which it has to be said that the plaintiff took its chances.
That conclusion is fortified by the circumstance that on 16 November 2017, the defendant made an offer, without prejudice save as to costs, that there be judgment in favour of the defendant and no order as to costs. An offer in those terms is specifically authorised by UCPR r 20.26 subrule 3(a). That offer appears to comply with UCPR Part 20 and has an automatic costs consequence with effect from the date of the offer, because the defendant has bettered it.
Having regard to all those considerations, the order that I initially foreshadowed, that the plaintiff pay the defendant's costs, must stand.
[4]
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Decision last updated: 11 April 2018