Australasian Memory Pty Limited and Another v Brien and Another

BARKER J: 1 The plaintiff claims the following orders: 1. An order pursuant to sections 439A(6) and 447A(1) of the Act extending the date by which the Plaintiffs are required to convene a second meeting of the creditors of Aquaint Capital Holdings Ltd ACN 164 440 859 (Administrators Appointed) (First Company) and Aquaint Capital Limited ACN 110 353 065 (Administrators Appointed) (Second Company) under section 439A of the Act to 15 August 2016. 2. An order pursuant to section 447A(1) of the Act that Part 5.3A of the Act is to have effect in relation to the Plaintiffs, the First Company and the Second Company such that the second meeting of the creditors of the First Company and the Second Company required by section 439A of the Act may be held at any time during the period up to or within 5 business days after the end of the convening period as extended by order 1 above, notwithstanding the provisions of section 439A(2) of the Act. 3. An order that liberty to apply be granted to any person, including any creditor of the First Company, the Second Company or the Australian Securities & Investments Commission who can demonstrate sufficient interest to modify or discharge these orders upon appropriate notice being given to the Plaintiffs and to this Court. 4. An order that liberty to apply (in these proceedings) be granted to the Plaintiffs in relation to any other matter arising in the administration generally. 5. An order that the Plaintiffs' costs and expenses of this application for the First Company be paid from the assets of the First Company. 6. An order that the Plaintiffs' costs and expenses of this application for the Second Company be paid from the assets of the Second Company. 2 On 8 July 2016, I made orders in these terms. These are the reasons for so doing. 3 The circumstances in which the orders were sought are recounted in the affidavit of Mr Samuel John Freeman, made 7 July 2016, Mr Freeman being one of the three joint and several voluntary administrators, along with Mr Clint Peter Joseph and Mr Adams Pauls Nikitins, of Aquaint Capital Holdings Limited ACN 164 440 859 (Administrator Appointed) (first company) appointed on 14 June 2016. He, together with the other two, were also appointed as joint and several voluntary administrators of Aquaint Capital Limited ACN 110 353 065 (Administrators Appointed) (second company) on 22 June 2016.

Power of this court to make the orders sought 4 Section 439A(1) of the Corporations Act 2001 (Cth) provides: The administrator of a company under administration must convene a meeting of the company's creditors within the convening period as fixed by subsection (5) or extended under subsection (6). 5 By virtue of subs (5)(b), the relevant convening period for: the first company is 20 business days from 15 June 2016, that being the date after the date of the appointment of the administrators of the first company; and the second company is 20 business days from 23 June 2016, that being the date after the date of the appointment of the administrators of the second company. 6 By s 439A(6) of the Act, the Court may extend the convening period on an application made during or after the 20 business day period referred to in subs (5)(b). 7 Section 439A(6) of the Act does not set out the criteria that should be met in order for the Court to exercise the discretionary power to extend the convening period. 8 Section 435A provides: The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that: (a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or (b) if it is not possible for the company or its business to continue in existence -results in a better return for the company's creditors and members than would results from an immediate winding up of the company. 9 In the ordinary course, the general expectation is that the time limits applicable under the provisions of Pt 5.3A will be complied with, unless good cause is shown for the Court to permit departure from them. "Good cause" in this context requires, in effect, the promotion of the objects of Pt 5.3A as set out in s 435A of the Act. See Lombe re Australian Discount Retail Pty Ltd [2009] NSWSC 110 at [16]. 10 The Court must weigh the objects of Pt 5.3A against the expectation that a voluntary administration will be a reasonably expedited affair. 11 Speed of the administration is not the paramount consideration. A useful gathering of intelligence to guide the company into the future is desirable. See Re Tracker Software (Australia) Pty Ltd (admin apptd) (1997) 24 ACSR 92 at 93; Herbert & Anor v Exuma Pty Ltd (Administrators Appointed) [2003] WASC 167. 12 The Court's role on an application such as this is to seek "to strike an appropriate balance between, on the one hand, the expectation that administration will be a relatively speedy and summary matter and, on the other, the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders". See Diamond Press Australia Pty Limited [2001] NSWSC 313 at [10]; Re Riviera Group Pty Ltd (admins apptd)(recs and mgrs apptd)(ACN 102 298 279) and Others (2009) 72 ACSR 352 at [15]; [2009] NSWSC 585. 13 Factors relevant to the manner in which the balance referred to above is struck include: (1) whether adequate reasons for the extension have been provided (Riviera at [12]); (2) the degree of complexity of the administration (Riviera at [17] and [18]); (3) whether there is any prejudice to creditors (Riviera at [16]-[18]); (4) any possibility that an extension will enhance the return for unsecured creditors (Riviera at [13]); (5) preserving the possibility of a "going concern" sale in relation to a company's business (In the matter of Harrisons Pharmacy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) [2013] FCA 458); (6) the need to give the administrators time to present meaningful choices to the creditors at their meeting (Re Pan Pharmaceuticals Ltd (admins apptd) (ACN 091 032 914) (McGrath and Honey as joint liquidators) and Others (2003) 46 ACSR 77; [2003] FCA 598); (7) whether the extension is sought as part of a genuine attempt to seek necessary information and/or a viable deed of company arrangement (DOCA), rather than mere delay (Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611; Re Brash Holdings Ltd (admr apptd) (1994) 13 ACSR 793); and (8) whether a failure to grant the extension or adjournment will prejudice an administrator's ability to take sensible and constructive actions directed at maximising the return for creditors (Collective Olive Groves Limited, in the matter of Collective Olive Groves Limited; application by Reidy [2009] FCA 177 at [18]). 14 The question of delay in making the application may also affect the Court's assessment. 15 Section 447A of the Act gives the Court broad powers, including the power to alter what would otherwise be the operation of Pt 5.3A in relation to a particular company. See Australasian Memory Pty Limited and Another v Brien and Another (2000) 200 CLR 270 at [17] and [18]; [2000] HCA 30. 16 The power of the Court to make orders in terms of the second order sought by the plaintiff is well established. See recently Hayes in the matter of Dick Smith Holdings Limited (Administrators Appointed) (Receivers and Managers Appointed) [2016] FCA 24 and McKinnon, in the matter of Specialised Concrete Pumping Victoria Pty Ltd (Administrators Appointed) [2016] FCA 325.

Circumstances of this case 17 The material placed before the Court by Mr Freeman is as follows. 18 The first company and the second company do not conduct business in Australia in an operational or trading sense. They hold shares, invest and assist in funding the operations of a number of operating subsidiary companies that trade in Australia, Singapore and Malaysia. The most material of those subsidiary companies are as follows: (1) the second company, being a wholly owned subsidiary of the first company; (2) Aquaint Property Pte Ltd (AQPS), being the holder of leasehold interests in Laos, financial instruments and property development interests in India. AQPS is a wholly owned subsidiary of the second company; (3) Azeana Pte Ltd (AZS), being a wholly owned subsidiary of AQPS; (4) Azeana Sdn Bhn, being a wholly owned subsidiary of AZS; (5) Aquaint Property Sdn Bhd (AQPM), being a wholly owned subsidiary of AQPS; (6) Silvernote Sdn Bhd, a wholly owned subsidiary of AQPM, being the holder of an interest in a Malaysian property development; (7) Aquaint Management Pte Ltd (AQMS), being a wholly owned subsidiary of AQPS; (8) Aquaint Management Sdn Bhd, being a wholly owned subsidiary of AQMS; and (9) Imperial Marina Pte Ltd, an entity in which the first company holds a 4% shareholding, collectively, the subsidiaries. 19 On the basis of the administrators' review of the books and records of the first company and the second company, and the investigations that have been conducted by the administrators since the time of their appointment, Mr Freeman has determined that the funding and investment activities referred to above have been financed by: (1) the first company by a combination of equity funding (through capital raisings) and debt funding; and (2) the subsidiaries by a combination of debt funding and earnings reinvestment. 20 Attached to Mr Freeman's affidavit and marked "SJF-3" is a true copy of a corporate structure diagram that the administrators have caused to be prepared by their staff. The diagram relates to the corporate group of which the first company is the parent, and identifies its relationship with the subsidiaries. 21 The first company: (1) is a public company (as defined in s 9 of the Act); and (2) is listed on the Australian Securities Exchange (ASX). 22 The first company's securities have been suspended from trading on the ASX since 1 September 2015. Attached to Mr Freeman's affidavit and marked "SJF-4" is a true copy of the ASX announcement in relation to that suspension. 23 The second company is an unlisted public company. 24 Based on Mr Freeman's investigations up to the date of his affidavit, Mr Freeman understands that the first company's assets broadly consist of the following: (1) cash at bank in the sum of $170; (2) the first company's direct and indirect shareholding in the subsidiaries; and (3) intercompany receivables. 25 In Mr Freeman's opinion, and based on his experiences in relation to the administration of distressed ASX­listed entities, he considers that the first company's ASX listing is also an asset of value that may present the potential for the realisation of value for the benefit of the first company's creditors and possibly its shareholders. 26 He states that the first company has no source of revenue other than the repayment of loans and other receivables from the subsidiaries. Further, he says, there is at least the conceptual possibility of dividend entitlements from the various subsidiaries, though for the reasons outlined further below, the immediate prospect of any such entitlement would appear to be remote. 27 Based on Mr Freeman's investigations up to the date of his affidavit, he understands that the second company's assets broadly consist of the following: (1) cash at bank in the sum of $150,000; and (2) the second company's direct and indirect shareholding in the subsidiaries. 28 Based on Mr Freeman's investigations up to the date of his affidavit, he understands that the first company's liabilities broadly consist of the following: Secured creditor 95,000* Employees (Director) 13,587 Trade creditors - unsecured 26,273 Inter-company creditors 77,491 Other creditors 152,149 Total 564,499

• The secured creditor's proof of debt states $95,000, but Mr Freeman understands that claim to be approximately $170,000. 29 Based on his investigations up to the date of his affidavit, Mr Freeman understands that the second company's liabilities broadly consist of the following: Trade creditors - unsecured 57,144 Director creditor balance 342,802 Inter-company creditors 1,095,857 Other creditors 1,019,135 Total 2,514,939 30 Save for the first company's directors, the first company has no employees. 31 Save for the second company's directors, the second company has no employees. 32 The first meeting of the first company's creditors was held on 24 June 2016 (ACHL first meeting). 33 At the ACHL first meeting, the creditors of the first company did not raise any objections to the administrators' appointment. 34 Attached to Mr Freeman's affidavit and marked "SJF-5" is a true copy of the minutes that the administrators caused to be prepared in relation to the ACHL first meeting. 35 The first meeting of the second company's creditors was held on 4 July 2016 (ACL first meeting). 36 At the ACL first meeting, the creditors of the second company did not raise any objections to the administrators' appointment. 37 At the time of the hearing on 8 July 2016, the administrators were still preparing the minutes in relation to the ACL first meeting and indicated they would file them with the Australian Securities and Investments Commission (ASIC) when they were available for that purpose. 38 At the time of the hearing, the administrators had attended to (amongst other things) the following tasks during the course of the administrations of the first company and the second company: commenced investigations in relation to the financial positions of the various subsidiary entities, including the subsidiaries; considered the potential significance of the financial positions of the relevant subsidiaries for the prospects and structure of any recapitalisation proposal for the first company and/or the second company (including, by way of example, any proposal that seeks to retain the first company's ASX listing and enable the creditors of the first company and/or the second company, and potentially their members, to see some value realised through such a proposal); and performed the functions, and exercised the powers, that the first company and the second company and their respective officers would have otherwise performed or exercised if the first company and the second company were not in administration; controlled and managed the affairs of the first company and the second company, such as they are; investigated the business, property, affairs and financial circumstances of the first company and the second company; conferred and met with the pre-appointment advisers of the first company and the second company to obtain all books and records of the first company and the second company; conferred with the secured creditor of the first company in relation to matters relevant to its position and the approach that it wishes to adopt in relation to the administration of the first company; conferred with the directors of the first company and the second company in relation to the books and records of the first company and the second company and their direct and indirect investments in Malaysia and Singapore; identified opportunities (and were continuing to do so) for the business of the first company and the second company moving forward, including, without limitation, the potential: ○ sale of the first company and/or the second company and/or their business assets; ○ equity investment into the first company and/or the second company by interested third parties; and ○ restructure of the first company and/or the second company by DOCA or otherwise; the tasks referred to at [41] and [42] below; and investigated the conduct of the directors of the first company and the second company, and the ability for recoveries in relation to any antecedent transactions identified. 39 As the administrators of the first company and the second company, the administrators are endeavouring to administer the business, property and affairs of the first company and the second company in such a way that maximises the chances of the first company and the second company, or as much as possible of their business, continuing in existence. If this cannot be achieved, the administrators will endeavour to administer the first company and the second company in a way that may result in a better return to the creditors and members of the first company and the second company than would result from the immediate winding up of those entities. 40 Since 14 June 2016, the administrators have taken preliminary steps to identify and analyse the subsidiaries and their financial positions (as those positions directly impact the financial positions of the first company and the second company). 41 Specifically, the administrators have: held preliminary discussions with the subsidiaries' advisers, joint venture partners and developers who are located in Singapore, Malaysia and Laos; reviewed the corporate structure as it relates to the first company and the subsidiaries, and the books and records of, and in relation to, the subsidiaries that are available to the administrators; and liaised with the subsidiaries' advisers and joint venture partners in Singapore, Malaysia and Laos with a view to obtaining an understanding of the assets owned by those entities and the potential value of such assets. 42 Mr Freeman says he does not yet have sufficient information to hand to form a proper view in relation to the matters referred to at [42] above. He says he requires clarity in relation to those matters in order to properly consider the position of the first company and the second company and formulate his ultimate statutory recommendation to creditors in accordance with s 439A of the Act. 43 Mr Freeman says that the financial position of the subsidiaries, and their status generally, is material in relation to the conduct and ultimate outcome of the administrations of the first company and the second company, in that the primary assets of those entities are shares in, and loans to, the subsidiaries. 44 Mr Freeman says that it is imperative that the following issues be resolved (at a minimum) before the administrators report to the respective creditors of the first company and the second company and provide the recommendation that they are required to provide to creditors pursuant to s 439A of the Act in relation to the future of the first company and the second company: the recoverability of the loans made by the first company and/or the second company to the subsidiaries; the value (if any) of the shares in AQPS, and the subsidiaries generally; the potential for a DOCA or broader restructuring proposal that seeks to realise value from the first company's interest in AQPS and the first company's ASX listing, whether that proposal be executed at the company level, the AQPS level or by some sort of combined restructuring proposal that realises value for creditors (and potentially shareholders) at the first company, second company and AQPS levels; and the value of the antecedent transactions that may have arisen and their recoverability. 45 On the basis of Mr Freeman's experiences in restructuring ASX-listed companies, he considers that the potential exists for a party to propose a restructure and recapitalisation of the first company and the second company by way of a DOCA with a view to preserving the enterprise value of the first company and/or the second company by restructuring their balance sheets and avoiding the liquidations of those entities and/or AQPS. Further, he says he has: received eight expressions of interest in relation to the restructure of the first company and/or the second company; received five DOCA proposals from five separate parties in relation to the restructure of the first company; received signed confidentiality agreements from four of the five interested parties referred to above and provided information in relation to the business, property and affairs of the first company and the second company to those parties; conducted a number of confidential discussions with the first company's secured creditor about the DOCA proposals submitted by certain of those persons (including the potential elements of those proposals); and conducted a number of confidential discussions with the parties that made the DOCA proposals with a view to better understanding, and having them refine, their proposals so that Mr Freeman may report to creditors in relation to the relative merits of those proposals. 46 Mr Freeman notes that he has referred in a generic way to parties and detailed discussions due to their confidential nature. 47 If the Court considers it necessary or desirable for the administrators to do so, Mr Freeman says he would be prepared to swear a confidential affidavit, to be made the subject of appropriate confidentiality orders, which deposes to the full material particulars in relation to the parties and discussions referred to above. 48 Having regard to the proposals referred to above and several of the transaction structures contemplated by interested parties (the details of which are confidential), Mr Freeman considers that the immediate liquidations of the first company and the second company would have the potential to jeopardise potential offers or proposals, or dissuade interested parties (or potentially interested parties) from formalising or further refining and improving any such offers or proposals. 49 Mr Freeman says he does not consider that the DOCA proposals will be properly refined and articulated by 11 July 2016, being the date by which a second meeting of the first company's creditors must be convened under s 439A(5) of the Act, or otherwise in sufficient time for him to form a view in relation to the merits of such proposals. Further, and in light of the matters referred to above, he says the administrators are not in a position to quantify the return to creditors in a liquidation scenario (which will be, in large part, determined upon resolution of the matters outlined in his affidavit). In short, Mr Freeman says that he needs to conduct further investigations in order to determine the assets and claims that might be available to a liquidator of the first company and the second company so that he can quantify those claims (if any) and provide a fully informed recommendation to creditors in relation to the relative merits of liquidation and any one or more DOCA proposals. 50 On the basis of the administrators' investigations in the administration at the date of the hearing: (1) Mr Freeman considers that substantially more information is required in relation to (amongst other things) the matters deposed to above in order for him to be in a position to present an informed view to the creditors of the first company and the second company as to the administrators' recommendations for the future of those entities; (2) having regard to the logistical considerations that confront the administrators and the first company and the second company by reason of the subsidiaries being located in Malaysia and Singapore (with further assets in Laos and India), Mr Freeman does not consider that the required information will be presented to the administrators with sufficient time within the existing statutory timetable for him to adequately discharge his obligations pursuant to s 439A of the Act; and (3) Mr Freeman considers that more time will be required in order for the administrators to: (a) assess recapitalisation or restructuring proposals in respect of the first company, the second company and/or AQPS, and for proponents to refine and finally articulate the terms of their proposals; and (b) complete their investigations in relation to the assets and claims that might be available to a liquidator of the first company and the second company. 51 The time (convening period) within which the administrators must convene the second meeting of the first company's creditors and the second company's creditors under s 439A(5) of the Act (collectively, the second meetings), expires on Monday, 11 July 2016 and Wednesday, 20 July 2016, respectively. 52 In accordance with s 439A(6) of the Act, the second meetings are required to be held by no later than: Tuesday, 19 July 2016 in respect of the first company; and Wednesday, 27 July 2016 in respect of the second company. 53 If the second meetings proceed within the timeframe referred to above: (1) the administrators will be required to, amongst other things, issue a report to the creditors of the first company and the second company pursuant to s 439A of the Act (together with formal notice of the second meeting) by no later than Monday, 11 July 2016 and Wednesday, 20 July 2016, respectively; and (2) the administrators will not, in Mr Freeman's view, have to hand the requisite information to make an informed recommendation to the creditors of the first company and the second company on the course that should be adopted in relation to the first company and the second company. 54 It would, in Mr Freeman's opinion, be in the best interests of the creditors of the first company and the second company to approach and conduct the second meetings on the same day. That view is informed by the following considerations (amongst other things): (1) the second company is a wholly owned subsidiary of the first company; (2) in the event that a recapitalisation proposal proceeds, it is, in Mr Freeman's view, likely to incorporate (in some way) the interests and property of both the first company and the second company; and (3) should the second meetings not proceed in tandem, it is possible that the liquidation of the first company or the second company (should it eventuate) would have an impact on any potential 'global' recapitalisation of the broader corporate group. 55 Mr Freeman says he is concerned that it would not be in the best interests of the creditors of the first company and the second company to decide the future of the first company and the second company in the circumstances described at [54] above. Rather, Mr Freeman considers that it would be in the best interests of the respective creditors of the first company and the second company for that decision to be made after: (1) the administrators have had the opportunity to fully consider the financial positions of the first company and the second company as they relate to the subsidiaries; (2) all information is provided with respect to the subsidiaries' financial position, in particular, AQPS; and (3) the administrators have had a proper opportunity to: (a) complete investigations into the business, property and affairs of the first company and the second company; (b) provide interested parties with time to formulate a proposal for a DOCA in respect of the first company and/or the second company; (c) assess and interrogate the DOCA proposals that have been presented in respect of the first company and/or the second company; and (d) make a more informed recommendation to the creditors of the first company and the second company in relation to the relative merits of liquidation and any DOCA proposal. 56 In light of the matters that Mr Freeman has deposed to, he considers that it would be in the best interests of the respective creditors of the first company and the second company to decide the future of those entities in tandem and after those creditors have had the opportunity to consider the matters referred to at [56] above. 57 In light of the matters deposed to in his affidavit, and his general experience in the administration of companies, Mr Freeman considers that an extension of the expiration of the convening period to 15 August 2016 is likely to afford sufficient time to address the matters referred to above. 58 If the administrators are in a position to report to creditors and convene the second meetings before the expiry of the extended convening period (if extended), then Mr Freeman says he will endeavour to convene the second meetings as soon as practicable if the circumstances permit. 59 In Mr Freeman's opinion, the proposed extension would not have any significant impact on the creditors of the first company or the second company. Rather, it would allow them to fully consider, on an informed basis, all of the relevant issues when making their decision on the future of the first company and the second company. 60 Mr Freeman says he has addressed the issue of an extension of the convening period with ASIC. Attached to Mr Freeman's affidavit and marked "SJF-6" is a true copy of an email that Mr Freeman received from Mr Steve Milner at ASIC in relation to the extension that is contemplated by the plaintiff's application. 61 Mr Freeman says he has addressed the issue of an extension of the convening period with the first company's secured creditor. Attached to his affidavit and marked "SJF-7" is a true copy of the email chain between Mr Freeman and Mr Julian Atkinson, the secured creditor. 62 Mr Freeman's view and belief in relation to the need for an extension of the convening period has arisen recently and in response to the matters that he has deposed to in his affidavit. For those reasons, and on the basis of the view that he has expressed at [60] above in relation to the course that would, in Mr Freeman's view, be in the best interest of creditors, he does not consider that any issue of prejudice arises in any event. 63 Should the Court grant the extension sought, the extended convening period would expire on 15 August 2016. However, Mr Freeman says he cannot say with certainty whether the administrators will be in a position to report to creditors by that date. 64 For this reason, in addition to seeking an extension to the expiration of the convening period to 15 August 2016, the administrators seek liberty to apply for a further extension of the convening period in these proceedings pursuant to s 447A(1) of the Act should they consider it necessary to do so. 65 The plaintiff also produced, by the affidavit of Ms Stephanie Lee Hughes, made 7 July 2016, an extract from the Personal Property Securities Register in relation to the security interests granted by the first company.

Consideration 66 The Court accepts the submission made on behalf of the plaintiff that the administrations of the first company and the second company are complex in nature. The first company is an ASX-listed public company and is the parent entity of a corporate group which involves a number of entities. 67 The complexity of the administrations are obviously compounded by the fact that the assets of a number of subsidiaries are located in Malaysia, Singapore, Laos and India. 68 I accept that the administrators require time to complete their task in a competent professional manner. 69 I accept the submission made that it would be counter-productive for the plaintiff to be compelled to bring on the second meeting of creditors quickly and within the existing convening period for each entity. The purpose of the meeting is to decide the future of the relevant company - whether the administration should end, whether the company should pass into liquidation or whether any DOCA proposals should be accepted. All of this requires proper consideration and, in the circumstances, more time for reflection. 70 The Court has given particular consideration to whether there is any evidence of prejudice to those who might be affected by the making of the orders. There is no suggested prejudice. There is no direct evidence of risk to creditors. The secured creditor has had an opportunity to consider its position and consents to the application as it relates to the first company. ASIC have also been consulted and have no submissions to make at this time. 71 Nor is there any what might be called disentitling conduct on behalf of the plaintiff - of the administrators - in relation to the making of this application, such as undue delay. 72 It is appropriate that the orders be made. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.