- Australian Broadcasting Corporation v O'Neill

Judgment 1By notice of motion filed by leave on 22 January 2014, the First Plaintiff, Mr Glenn Tetley and others, seek interlocutory orders affecting the conduct of the administration, in New Zealand, of a New Zealand incorporated company, Featherston Resources Limited (recs and mgrs appointed) (admins appointed) ("FRL"). Although FRL is incorporated in New Zealand, it is a registered foreign company under the Corporations Act 2001 (Cth) and its primary corporate office was or is in New South Wales. One of the joint and several administrators appointed to FRL, Mr Barnden, is also resident in New South Wales. In particular, the orders sought by the Plaintiffs include orders affecting the conduct of a "watershed meeting" of creditors of FRL to be held in New Zealand on 23 January 2014. Given the urgency of the application, I delivered an oral judgment on that date. I have revised the expression of my oral reasons for judgment in this published version of my judgment. 2The orders sought by the Plaintiffs are, in particular, that the administrators of FRL be restrained from conducting polling of creditors at its watershed meeting, the equivalent of the second meeting of creditors in respect of an administration under the Corporations Act, pending certain matters; or that the administrators cause the watershed meeting to be adjourned for 30 working days; or requiring Plaman Group to withdraw the deed of company arrangement proposed by it from consideration at the watershed meeting and to request that meeting be adjourned for 30 days. The Plaintiffs' notice of motion identifies, as persons affected by the orders sought, Mr Barnden and Mr Vlasic, as the joint and several administrators of FRL, and Plaman Group Pty Limited, the proponent of a deed of company arrangement in respect of FRL which is to be put before the watershed meeting of FRL's creditors. Each of Messrs Barnden and Vlasic and Plaman Group have been given notice of the proceedings. Mr Barnden has appeared in the proceedings and has been heard under r 2.13 of the Supreme Court (Corporations) Rules as an interested person, although not made party to the proceedings. Plaman Group, by its solicitors, communicated with the Court in respect of the proceedings but did not seek to be heard in them. 3Before dealing with the substance of the application, I should say something as to the history of the matter. On 3 December 2013, the duty judge made certain interim orders in respect of FRL and an associated entity, Adveco Fertilisers Pty Limited. I set aside those interim orders by my judgment delivered on 10 December 2013 ([2013] NSWSC 1923) on the basis that the jurisdictional requirements for the grant of the specified relief under s 1323 of the Corporations Act were not satisfied. By Originating Process then filed on 13 December 2013, Mr Tetley and others sought leave under ss 236-237 of the Corporations Act and in the Court's inherent jurisdiction to bring proceedings in the name of FRL. That application raises questions as to whether the Court can and should grant such leave in respect of a registered foreign company, either in its statutory or inherent jurisdiction. The proposed proceedings relate to the circumstances in which FRL issued convertible notes to another entity, FRCN Pty Limited ("FRCN") which is apparently associated with two of FRL's directors and with a former executive, Ms Weston, now the First Defendant in the proposed proceedings. I made orders in respect of the conduct of those proceedings and noted certain undertakings on 16 December 2013 and listed the application for leave to bring the proceedings for hearing on 6-7 February 2014. 4All parties rely on substantive affidavit evidence in this application. I will refer to that evidence in some detail, although aspects of the matters addressed by that evidence will require less scrutiny by reason of a limited admission which the Defendants sensibly made for the purposes of this application only. The Plaintiffs rely on the affidavits of Mr Tetley dated 20 January 2014, Mr David Ramsay dated 21 January 2014 and their solicitor, Mr Ashcroft, dated 20 and 21 January 2014. Mr Tetley's affidavit sets out the nature of the relief sought, contends that relief is directed to preserve the position pending the hearing of the application on 6-7 February 2014 and expresses concern that the proceedings in this Court will be frustrated if the resolution recommended by the administrators, namely to approve a deed of company arrangement proposed by Plaman Group, is passed by creditors at the watershed meeting. Mr Tetley appears to accept, in paragraph 8 of his affidavit, that FRL is, in fact, insolvent, but contends it is insolvent by reason of mismanagement by its directors and that the proposed proceedings will affect the company's solvency and the composition of its creditors. 5Mr Tetley expresses concern that FRL's assets may be transferred as a result of the watershed meeting and the proceedings rendered moot. This concern assumes that creditors will vote to approve Plaman Group's proposed as recommended by the administrators rather than, for example, to place FRL in liquidation; that that resolution will not be set aside on application to a New Zealand Court; that the deed of company arrangement will then be executed pursuant to that resolution; that deed of company arrangement will also not be set aside on application to a New Zealand Court; and that the transfer of assets will then be implemented pursuant to that deed of company arrangement and, so far as a transfer of shareholders' shares to Plaman Group is concerned, the necessary approval by a New Zealand Court to that transfer would be given. Mr Tetley also expresses concern, understandably, that Plaman Group's proposal provides for shareholders to receive a payment of $125,000 in total, in proportion to their shareholdings, where they have contributed in excess of $15 million to FRL. Mr Tetley also sets out the history of his involvement as a shareholder in FRL and, at one point, as assisting in introducing finance to FRL. Mr Tetley emphasises the failure of FRL to seek approval for debt funding in late 2012, so far as such debt funding was later sought from FRCN by the convertible notes. 6Mr Tetley also refers to a conversation with a director of FRL, who is also a person interested in FRCN, on which the Plaintiffs rely to contend that the directors of FRL, or at least that director, perceived that they or he would be better off if FRL could not repay the debt due to FRCN, so far as that would allow an opportunity for FRL's assets to be acquired. That conversation, and other aspects of FRL's dealings with FRCN and its associates, are contested and it is not necessary for me to reach any findings concerning them, given the concession made by the Defendants for the purposes of this application, to which I will refer further below. 7Mr Ramsay's affidavit dated 21 January 2014 refers to his dealings, in his capacity as a former chief executive officer of FRL (with which he is now in dispute in other proceedings) with a corporate advisor, Driftwood Capital, the circumstances of the issue of and purported redemption of the convertible notes by FRCN and with attempts by FRL to raise capital from third parties. Again it is not necessary to address these matters, which also appear to be in contest, given the concession noted below. Mr Ashcroft's affidavit dated 20 January 2014 deals, inter alia, with the giving of notice of this application to the administrators and Plaman Group and with the history of the associated proceedings to which I have referred above. Mr Ashcroft also refers to a deed of company arrangement proposed by Dynamesh Hong Kong Limited for which he also acts, which it appears is also to be proposed for creditors' consideration at the watershed meeting and to the development of the respective deed of company arrangement proposals by Plaman Group and Dynamesh. 8The Plaintiffs, by their Counsel, Mr Botsman, have advanced various submissions in support of the relief sought. They emphasise that they seek to set aside the transaction by which FRL granted security to FRCN, in their proposed proceedings. They point to undertakings given by FRCN and by FRL's receiver and manager, when the matter was listed in December 2013, not to dispose of or encumber FRL's assets. They contend that FRL's administrators, rather than adjourning the watershed meeting for 30 days as permitted by the Companies Act 1993 (NZ) will recommend a resolution that would see control of the assets of FRL transferred to the Plaman Group for AUD $4.8 million. That matter appears to be common ground, subject to the reservation which I noted above in respect of the requirement for the New Zealand Courts' approval of any transfer of shares to the Plaman Group, and subject to the other powers of the New Zealand Courts to which I will refer below. 9The Plaintiffs initially contended that a creditors' resolution in favour of the deed of company arrangement proposed by the Plaman Group would pay out FRCN in respect of its convertible note, notwithstanding that the Plaintiffs seek to set it aside and where FRCN's status as a creditor is in issue in the proposed proceedings. I understand that submission to have been qualified in Mr Botsman's oral submissions, which appeared to proceed on the basis that the Plaintiffs recognised that a term of any order made by the Court setting aside FRCN's security might well require that FRCN's debt be repaid. The Plaintiffs contend that the transfer of assets to the Plaman Group would frustrate shareholders' efforts to protect FRL's assets and would render moot the question whether the Court has jurisdiction to authorise derivative proceedings, at least so far as FRL's principal asset would have been transferred to Plaman Group. More widely, the Plaintiffs contend that FRL should not be in administration and that the administration is an artifice to transfer FRL's assets to persons associated with its directors. It should be noted, however, that the Plaintiffs have not applied to set aside the administration in to the High Court of New Zealand, and I will refer further to the significance of that matter below. 10Mr Botsman also drew attention in submissions to matters contained in the administrators' reports to creditors in respect of the watershed meeting which seem to me to be of some significance. The administrators' report dated 15 January 2014 records that two of FRL's directors, Mr Goodacre and Mr Kember have attributed FRL's failure to the proceedings in this Court commenced by shareholders on 3 December 2013 and to the placing (I interpolate, by FRCN) of FRL in receivership, which they say negated the chance of raising the required capital prior to the action commencing. The administrators then state: "Based on investigations to date, the Joint Administrators have not identified any additional reasons for the failure of the Company that are inconsistent with those provided by Mr Goodacre and Mr Kember." 11Mr Botsman was strongly critical of this statement, and it seems to me that criticism may well have been justified. The statement is, in terms, not wholly clear. The joint administrators say they have not identified any additional reasons that are inconsistent with those provided by Mr Goodacre and Mr Kember, but do not say what other reasons for the Company's insolvency they have identified, which they consider are consistent with those identified by Mr Goodacre and Mr Kember, or why they consider those additional reasons are consistent. Second, while I am conscious that the administrators will have been permitted a short time for investigation, one would have expected that their investigation would at least have included a careful review of the judgments delivered in this Court which refer to the alleged dealings between FRCN, FRL, their officers and advisors which may have contributed to FRL's insolvency. A fair account of the causes of the company's insolvency, and an assessment of the alternatives available to creditors of the watershed meeting, might well have required further reference to those matters. It is, in my view, seriously arguable that these statements are a misleading or potentially misleading oversimplification of a matter that may be of significance to creditors. It is difficulty to see that this matter could be adequately addressed without reference to the issues arising in these proceedings relevant to FRL's failure in the information provided by the administrators to creditors before they provided proxies in respect of the watershed meeting 12Mr Botsman also draws attention to a provision in the Plaman Group's initial and further amended proposals for a deed of company arrangement which, on one view, seems to provide for the DOCA administrators, or for the administrators in their present capacity, to consent to the transfer of FRL's assets to the Plaman Group if the deed of company arrangement or any part of it is declared void by a New Zealand Court. I do not accept Mr Botsman's submission that this provision is likely to authorise the transfer of FRL's assets to the Plaman Group notwithstanding a successful application to set aside the deed of company arrangement in the New Zealand Courts. First, it applies only if an application is made to the High Court of New Zealand and that Court determines certain matters. In this event, it seems likely that the Court's powers, to which I will refer below, would be sufficient to deal with that provision, if in fact it seeks to provide for the administrators to do what an order setting aside the deed of company arrangement would otherwise prevent. Second, if the deed of company arrangement is set aside as a whole, that provision would have no continued effect. Third, the New Zealand Courts seem to me to have ample powers, to which I will refer below, to deal with the absence of comment upon that provision in the administrators' report, so far as it may affect the exercise of creditors' rights at the watershed meeting, and, in particular, the absence of any reference to the legal, public policy or commercial issues arising from a purported agreement to transfer assets to a party to a deed of company arrangement, notwithstanding that a New Zealand Court may have set aside the deed of company arrangement. 13It seems to me arguable that, if these matters arose in respect of an administrator's report in an Australian administration, and a deed of company arrangement was approved at a second meeting of creditors on the basis of that report, that deed of company arrangement might potentially be set aside by an Australian Court under s 445D of the Corporations Act. A similar result could arise in New Zealand since Pt 15A of the Companies Act (NZ) is based on Pt 5.3A of the Corporations Act, and s 239ADD of the Companies Act (NZ) broadly corresponds to s 445D of the Corporations Act, and authorises the High Court of New Zealand to terminate a deed of company arrangement where, inter alia, misleading information about a company's affairs was contained in an administrator's report that accompanied a notice of the watershed meeting. 14Mr Botsman also contends that, if shareholders in FRL were required to take steps in New Zealand to protect their rights, they would be exposed to costs of proceedings in two jurisdictions, since the convertible note issued to FRCN is governed by the law of New South Wales and the parties to it submit to the non-exclusive jurisdiction of the Courts of New South Wales. I do not accept that submission, since the submission to New South Wales jurisdiction in that clause is nonexclusive and does not deprive the New Zealand Courts of jurisdiction. 15The administrators rely on Mr Barnden's affidavits dated 22 January 2014. Mr Barnden sets out details of FRCN's claim under the convertible note, and refers to accounting records of FRL which record the amount due by FRL to FRCN. His evidence is that, irrespective of whether FRCN is a secured creditor, it is a creditor of FRL at least for an amount exceeding AUD$1.5 million and that, even if that debt were excluded, FRL would remain insolvent. It appears, as I noted above, to be common ground between the parties that FRL is in fact insolvent, notwithstanding the Plaintiffs' contention that that position arises from the conduct of its directors as noted above. Mr Barnden also notes the limits to the funding provided to the administrators - although I note that he has represented by solicitors and counsel in these proceedings - and the limits to such funding would be a matter of significance if the administration were to be required to continue for a lengthy further period. Mr Barnden also identifies the risk, which seems to me to be real, that the parties who have put proposals for deeds of company arrangement may withdraw them if the Plaintiffs succeed in their application and the watershed meeting is adjourned, potentially for a lengthy period. That seems to me a matter of real significance, particularly where there is no evidence as to the Plaintiffs' capacity to meet an undertaking as to damages in respect of the loss of the substantial amounts payable under both the proposed deeds of company arrangement. 16Mr Barnden's solicitor also gives evidence that she did not understand the undertakings given by other parties to the Court to bind the administrators in respect of the administration procedure. The contrary does not seem to me to be arguable, and I did not understand the Plaintiffs to contend before me that the administrators were, in terms, bound by those undertakings given by other parties so as to prevent their recommending a deed of company arrangement which may be approved by creditors, and which may authorise certain steps to be taken. As I understood it, the Plaintiffs instead generally relied on the undertakings given by the other parties to support the merit of their position, so far as an attempt was made to restrain the administrators taking steps which might lead to a result inconsistent with those undertakings. 17Mr Golledge, who appeared for the administrators, in turn submitted, and I accept, that the Plaintiffs' concern that their shares would be appropriated under the terms of the Plaman Group deed of company arrangement, or their standing as shareholders to bring the derivative proceedings affected, was mitigated by the fact that that could only occur with the approval of the High Court of New Zealand under s 239ACL of the Companies Act (NZ). Mr Golledge also pointed to the absence of evidence as to how FRL's present insolvency would be addressed if the administration continued for a significant period, which is a matter of significance to which I will return below. Mr Golledge also submitted the proceedings were, in substance, against FRL, and could not be brought without leave of a Court while FRL was under administration. It is not necessary to deal with the complexities of that matter to resolve this application, although the requirement for such leave, and the difficulty of applying that requirement in respect of proceedings brought in a foreign Court, is a factor which may point to the legislative intent that matters relating to the administration of New Zealand companies would be resolved in the New Zealand Courts or at least to the need for comity between Courts in this area. 18Mr Golledge in turn submits, and I accept for reasons to which I will return, that the orders sought by the Plaintiffs, if made by this Court, would be a significant intrusion into the conduct of the administration where the statutory regime confers a supervisory jurisdiction on the New Zealand Courts, and that, as I will note below, the New Zealand statutory regime provides significant protection for the Plaintiffs' interests. Mr Golledge also contends, and I accept, that it is at least the better view, having regard to Pt 15A and Sch 5 of the Companies Act (NZ) and the general law position as summarised in Australia in Commonwealth Bank of Australia v Fernandez [2010] FCA 1487; (2010) 81 ACSR 212 at [27], that the administrators could not unilaterally adjourn the watershed meeting without the consent of the majority of creditors, and that the effect of their purporting to do so might well be to terminate the administration under s 239E of the Companies Act (NZ). 19The Second and Third Defendants, Messrs Kember and Goodacre, who are directors of FRL, in turn rely on affidavits of their solicitor Mr Hunt dated 20 and 22 January 2014, which outline the operation of the voluntary administration procedure in New Zealand, and the notice given to creditors in respect of the watershed meeting. Mr Hunt also points out that that meeting could not, in any event, be adjourned beyond 13 February 2014 without an application being brought by the administrator to the New Zealand Courts. The Second and Third Defendants also read affidavits of Messrs Goodacre and Mollison which had been read in earlier proceedings, to which it is not necessary to refer given the Defendants' concession, for the purposes of this application, as to a serious case to be tried. It is also not necessary to address the submissions of Mr Smith, who appears for the Second and Third Defendants, in answer to any claim that the security granted to FRCN could be set aside without repayment of FRCN's loan, both because of that concession and also because I did not understand the Plaintiffs to seek to maintain that position. Mr Smith's submissions in turn address the New Zealand administration regime. I will, without disrespect to him, not deal with them separately, by reason of the extent to which they and Mr Golledge's submissions covered common ground. 20The Plaintiffs contend that the Court may grant an interlocutory injunction in order to protect the integrity of its processes in respect of the application listed on 6 and 7 February 2014. The proposition that the Court has power to grant such an injunction is plainly established by the authorities to which Mr Botsman refers and I do not understand any other party to have contested it. 21On an application for an interlocutory injunction, the question is whether the Plaintiffs have established a sufficiently seriously arguable case for a final injunction to justify the grant of interlocutory relief, having regard to the balance of convenience. The Plaintiffs bear the onus of making out a case for interlocutory relief, and the limbs relating to the serious question to be tried and the balance of convenience are interrelated, in that the strength of the Plaintiffs' claim for final relief may be relevant to what is required to establish that the balance of convenience supports interlocutory relief, and the preponderance of the balance of convenience may be relevant to the strength of the case required to make out a sufficiently serious question to be tried: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]-[72]. In dealing with the balance of convenience, the question is whether the grant or withholding of interlocutory relief carries the lowest risk of doing injustice to one party or to the other or to a third party: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [41]-[42]. 22I proceed on the basis that a serious question to be tried is established, since the parties, appropriately, agreed that such a serious question existed, formulated as follows: "Without admission, and for the purpose of this application only, and without prejudice to the First, Fourth - Sixth Defendants' right to contend otherwise at the hearing on 6 - 7 February 2014, the parties agree that there is a serious question to be tried as to whether the Plaintiffs: (a) would be entitled to granted leave (either by way of Pt 2F.1 Corporations Act 2001 or the inherent jurisdiction of the Supreme Court of New South Wales) to commence proceedings in the name of Featherston Resources Limited for the relief sought in the originating process filed on 13 February 2014; and/or (b) would be entitled to the final relief sought in the originating process filed on 13 December 2014. 23However, I am not satisfied that the balance of convenience supports the grant of the relief sought by the Plaintiffs by this Court. I have reached that view notwithstanding that the administrators might well consider that the prudent and proper course, having regard to the observations I have made above in respect of the information provided to creditors, is to propose a resolution to adjourn the meeting to supplement that information, and also to draw creditors' attention to the risk that any deed of company arrangement which is approved on the basis of the information that has presently been provided might well be set aside on application to the High Court of New Zealand. 24The difficulty with this Court's granting the relief sought seems to me to be that, first, the remedies available to the Plaintiffs in a New Zealand Court are amply sufficient to protect their position and, second, this Court should be cautious in taking steps which would significantly affect the conduct of an administration taking place in respect of a New Zealand company under the statutory regime established by the Companies Act (NZ). Part 15A of that Act is, as I noted above, in broadly similar form to Pt 5.3A of the Corporations Act. In particular, s 239A of the Companies Act (NZ) provides for the objects of an administration, which include maximising the chances of the company or as much as possible of its business continuing to exist, or if that is not possible, achieving a better return for the company's creditors and shareholders than would result from an immediate liquidation of the company. Section 239AJ provides for the calling of the watershed meeting, corresponding to the second meeting of creditors under the Corporations Act (Cth), of which creditors decide the company's future and, in particular, whether a deed of company arrangement should be executed. The New Zealand Courts are given comprehensive powers in relation to the conduct of a creditors meeting, including where the outcome of the meeting is determined by a creditor related to the company under administration under s 239AM of the Companies Act (NZ). The New Zealand Courts also have power to terminate a deed of company arrangement under s 239ADD of the Companies Act (NZ), which is similar to s 445D of the Corporations Act (Cth), including where misleading information is provided in respect of the meeting, or where effect cannot be given to that deed without injustice, or where the deed gives rise to oppression, unfair prejudice or unfair discrimination. 25It would, in my view, be an intrusion into the operation of the administration regime established by the Companies Act (NZ) for this Court to seek to dictate how an administrator should perform his statutory duties under New Zealand law in respect of a New Zealand company. To the extent that the Plaintiffs have chosen to acquire shares in a New Zealand company, they ought not to be caught by surprise by the fact that its affairs are conducted under New Zealand law, and are subject, in the ordinary course, to regulation by the New Zealand Courts in accordance with the Companies Act (NZ). It seems to me that the intrusion into the conduct of a New Zealand administration contemplated by the relief sought by the Plaintiffs would be particularly substantial where any injunction might continue for some months, even in expedited proceedings, pending the determination of the proposed derivative proceedings, if leave is granted for them, and any appeal from them. 26Second, it seems to me that the premise of the Plaintiffs' application, so far as it assumes that the approval of the deed of company arrangement proposed by Plaman Group at the watershed meeting would defeat their rights, is not established. The New Zealand Courts have power to terminate the deed or grant other relief on application by the Plaintiffs if such an application is made and if grounds are established on the basis for which the Plaintiffs contend. It is, of course, a matter for the Plaintiffs whether they bring such an application in the High Court of New Zealand to which the New Zealand legislature has allocated supervisory responsibility in respect of Pt 15A of the Companies Act (NZ). If such an application is brought and succeeds, none of the consequences which the Plaintiffs fear would follow; if such an application is brought and fails, those consequences follow from the proper application of the administration regime under the Companies Act (NZ) to a New Zealand company, and the fact that the proposed proceedings in this Court may become moot is a consequence, but not a wrongful consequence, of that matter. Mr Botsman submits that the Plaintiffs should not be exposed to the cost of bringing such an application in the New Zealand courts, which might frustrate their proceedings. However, I do not consider that submission outweighs the need for this Court to respect the role of the New Zealand Courts in supervising New Zealand administrations of New Zealand companies. Any additional costs incurred by the Plaintiffs are a product, first, of their investment in a New Zealand company and, second, of the commencement of these proceedings in Australia, which could equally have been commenced in New Zealand. 27I am also not satisfied that the balance of convenience favours relief in the form sought, where it seems to me that the better view is, for the reasons noted above, that it is not open to the administrators unilaterally to adjourn the watershed meeting without creditors' approval, which may not be given; where such an adjournment would, in any event, require approval from the New Zealand Courts if it were to extend beyond thirty days; and where such an adjournment would, as noted above, potentially expose FRL and its creditors to the loss of the present proposals for deeds of company arrangement for which an undertaking as to damages may not provide adequate practical compensation. 28Finally, even putting aside these difficulties, and even if FRL were in administration in Australia rather than in New Zealand, and putting aside also the observations which I have made above in respect of the adequacy of the information provided by the administrators, the application has the difficulty noted by Barrett J in NA Enterprises Pty Ltd v Jonvana Enterprises Pty Ltd [2011] NSWSC 125, where a plaintiff similarly sought to restrain an administration proceeding with a meeting of creditors, in respect of an Australian incorporated company, where it challenged the grant of security in respect of the company's assets. His Honour there proceeded on an assumption that there was a serious question to be tried, but nonetheless noted that, if an administrator had formed the view that a company was insolvent, it would "take some very strong countervailing factor to outweigh that, and justify the Court's preventing the continuation of due process in the subsisting voluntary administration, including voting by creditors". As I noted above, it is here common ground that the company is, for whatever reason, now insolvent. His Honour also placed particular emphasis (at [35]) on the fact that, as is also the case here, no steps had been taken to terminate the voluntary administration. Mr Botsman sought to distinguish that case on the basis that the Plaintiffs' success in the statutory derivative proceedings would require repayment or substantial repayment by them of the FRCN debt. I understand that submission to anticipate that repayment of that debt may be a term of any order setting aside FRCN's security. I do not consider that that is a substantial distinguishing factor, where it does not address the present insolvency of FRL, and where the prospect of the Plaintiffs funding a substantial repayment of that kind is unknown. 29For these reasons, the notice of motion should be dismissed. 30I propose to reserve costs of the motion, for several reasons. First, the administrators may consider that, having regard to the observations I have made, the prudent course is nonetheless to adjourn the meeting with creditors' approval. Second, if the meeting proceeds, and the deed of company arrangement is approved on the basis of the information that has been provided to creditors, it seems at least possible that the deed of company arrangement would be set aside on an application made in the New Zealand Courts. It seems to me these possible outcomes would be relevant to the Court's exercise of discretion as to costs in this application, and the Court will be in a better position to exercise that discretion once the outcome of these matters is known. 31I order that exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of time to file an appeal, or until any appeal has been determined.