Australian Securities and Investments Commission v Letten

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

INTRODUCTION 1 On 25 February 2010, the schemes numbered 1, 4 to 9 and 13 to 16 in Annexure A to these reasons for decision were wound up pursuant to s 601EE(1) of the Corporations Act 2001 (Cth) (the Act). Also on 25 February 2010, Mr Damian Templeton and Mr Phillip Hennessy of KPMG (the Receivers) were appointed as joint and several receivers and managers of certain property of each of the second to sixteenth and eighteenth to forty-fifth defendants (the Corporate Defendants) and as joint and several receivers and managers of identified property of each of the schemes listed in Annexure A (the Schemes) except for the scheme numbered 12: Australian Securities and Investments Commission v Letten [2010] FCA 140 (the 25 February Orders). 2 On 4 March 2010, Orders were made appointing the Receivers as joint and several receivers and managers of the property of the scheme defined in those orders as "the funds invested, contributed or deposited by investors for the purpose of acquiring an interest in the project known as SY21 Retail Complex Project" (the SY21 Scheme), being the scheme numbered 12 in Annexure A (the 4 March Orders). The 4 March Orders also provided the SY21 Scheme be wound up pursuant to s 601EE(1) of the Act. 3 On 31 March 2010, Orders were made providing that the Receivers were justified in causing certain Corporate Defendants which owned or operated the schemes numbered 4, 5, 6, 9, 13, 14, 15 and 16 in Annexure A to borrow funds from Westpac Banking Corporation Limited (Westpac) on certain conditions to maintain the status quo: see Australian Securities and Investments Commission v Letten (No 2) [2010] FCA 307. 4 The 25 February Orders required the Receivers to do a number of things. Two aspects of the 25 February Orders should be noted. First, the 25 February Orders required the Receivers to file and serve a report in respect of, inter alia, the nature and identity of the property of each Scheme, any claims by third parties in relation to the property of the Scheme, the identities of investors and the nature of their investment (the Disclosure Reports). Secondly, the 25 February Orders required the Receivers to provide a copy of a Disclosure Report in respect of a Scheme to the investors in that Scheme. 5 On 13 April 2010, the Receivers filed Disclosure Reports in relation to each Scheme listed in Annexure A except for schemes numbered 6, 15 and 16. The Disclosure Reports for schemes numbered 6, 15 and 16 were filed on 28 April 2010. 6 On 6 May 2010, the Receivers were directed to send a circular to all investors clarifying the way in which investors could make submissions to the Court in relation to the future of any of the Schemes. Between 11 and 19 May 2010, submissions were received from 33 investors in relation to the schemes numbered 4, 5, 8, 9, 13 and 14 in Annexure A. These submissions will be addressed in further detail below. 7 The Receivers now seek a power of sale in relation to the property of the schemes numbered 4, 5, 8, 9, 13 and 14 in Annexure A. At the hearing of the application, the Receivers did not pursue their application for orders approving distribution of any proceeds and / or payment of their costs associated with disposal of any property of these schemes. Instead, the Receivers sought to vary paragraphs 3 and 8(c) of the 25 February Orders so that the Receivers had the power to dispose of the property of the schemes numbered 4, 5, 8, 9, 13 and 14 in Annexure A. 8 Before turning to consider each scheme separately, the Receivers submitted that there were a number of submissions applicable to each of the schemes numbered 4, 5, 8, 9, 13 and 14 in Annexure A which supported the grant of the power of sale including: 1. on 25 February 2010, the Court ordered the scheme be wound up pursuant to s 601EE of the Act; 2. the property of the scheme is subject to mortgages and charges which secure substantial debts, and the scheme does not have the resources to pay the debts otherwise than out of the proceeds of the sale of the property of the scheme; 3. the Secured Lender (as defined in the 25 February Orders) has reserved its rights in relation to its securities in respect of the scheme; 4. interest is presently accruing on the secured debt in respect of the scheme in favour of the Secured Lender which is diminishing any equity which may be available for distribution to investors in the scheme; 5. exercising the power of sale would minimise the ongoing operating costs in relation to the property of the scheme; 6. investors will only become entitled to repayment of their principal investment in the scheme or to a share in the net profits of the joint venture when the property of the scheme is sold; and 7. there is no practical means of winding up the schemes otherwise than by realisation of the property of the scheme. It should be noted that each of these facts and matters is recorded in the Disclosure Report for each of the schemes numbered 4, 5, 8, 9, 13 and 14. 9 Before turning to consider each scheme, I should note that I have read each submission filed by the investors. However, although I have read and considered each submission filed by an investor in relation to a particular scheme, it is both unnecessary and inappropriate for me to determine whether that person is in fact an investor in that scheme. Further, for the purposes of the present application, I have deferred consideration of those submissions dealing with the distribution of any proceeds from the sale of any scheme property. Those issues will be addressed if and when any property is sold.

THE GEORGE STREET JOINT VENTURE: SCHEME 4 AND THE CIMITIERE HOUSE JOINT VENTURE: SCHEME 5 10 These schemes are linked. First, the registered proprietor of both the George Street property and Cimitiere House is common - Enmore Enterprises Pty Ltd (Enmore). Secondly, although there are separate loan agreements and mortgages over each property, the security offered by each scheme is common by reason of a fixed and floating charge over the whole of the assets of Enmore in favour of Westpac. Thirdly, the properties are adjoining and the car park used by the tenants of Cimitiere House is partly on the George Street site. That list is by no means complete. 11 In addition to those matters, the Disclosure Reports record some other matters that should be noted. First, there are insufficient funds available to service the debts. Secondly, LGH Administration Pty Ltd (LGHA) owes an amount to each scheme and thirdly, it would appear that based on book values, a surplus is expected when the properties are realised. 12 Submissions were received from three investors in scheme numbered 4: Roger Smith, Marilyn Ruth Best as administrator of the Comaha Freedom Trust, and Gregory Bruce Thomas on behalf of Blind Citizens Australia (a beneficiary under the will of Serge Bankovski). The submissions directly relevant to the present application were that the sale of the properties should proceed in an orderly fashion and not on a fire sale basis and that the properties should be sold for the highest possible price. 13 Submissions were received from six investors in scheme numbered 5: Gary Sykes, Marion and Ray Borycewicz, Roger Smith, Wayne and Lesley Kelly, Geoffrey and Veronica Keogh and Sally Jeanette Carlton (as trustee of the BA & SJ Carlton Superannuation Fund). The submissions directly relevant to the present application were that the sale of the properties should proceed in an orderly fashion and not on a fire sale basis. 14 For the reasons set out in paragraphs [8], [10] and [11], the Receivers sought a power of sale of the property of the schemes numbered 4 and 5. I would grant the Receivers that power. I am satisfied that the investors' concerns are adequately addressed by the form of orders I propose to make in relation to the power of sale.

THE LOW HEAD JOINT VENTURE: SCHEME 8 15 The Disclosure Report identifies the property as a tourist park which is operating and two vacant blocks of land. The whole of the property is mortgaged to Tasmanian Perpetual Trustees Limited. As with the other schemes, insufficient cash flow is being generated to service the debt. The Disclosure Report also records a further amount owed to St George Finance Limited (which is secured) and an unsecured debt owed by the scheme to LGHA. In addition to these matters, the Disclosure Report records that it is possible that if the sale of the vacant land precedes the sale of the tourist park, any proceeds of sale may be sufficient to discharge most, if not all, of the secured debt. 16 Submissions were received from three investors in scheme numbered 8: Keith Siler as trustee for the Keason Family Trust, Roger Smith and Fiona Jean White as trustee for the Wallace White Trust. Two of the investors agreed with the recommendation of the Receivers. The third was again concerned to ensure that the sale of the property should proceed in an orderly fashion to achieve best returns. 17 For the reasons set out in paragraphs [8] and [15] above, the Receivers sought a power of sale of the property of the scheme numbered 8. I would grant the Receivers that power. I am satisfied that the investors' concerns are adequately addressed by the form of orders I propose to make in relation to the power of sale.

THE NICHOLSON STREET JOINT VENTURE: SCHEME 9 18 The Disclosure Report identifies the property as an industrial complex located in Nicholson Street, Brunswick, Melbourne. The whole of the property is mortgaged to St George Bank Limited. As with the other schemes, insufficient cash flow is being generated to service the debt. The Disclosure Report records that LGHA owes an amount to the scheme and that based on book values, a surplus is expected when the property is realised. 19 Submissions were received from nine investors in scheme numbered 9: the Bruce Flett Family Trust, Keith Siler as trustee for the Keason Family Trust, Marion and Ray Borycewicz, Terry Bodel, Geoffrey and Veronica Keogh, Fiona Jean White as trustee for the Wallace White Trust, Jonathan Letten, Sally Jeanette Carlton of the BACS Group Trust and Sally Jeanette Carlton as trustee of the BA & SJ Carlton Superannuation Fund. A number of investors supported the recommendations of the Receivers. Concern was also expressed by a number of investors that the sale should proceed in an orderly fashion and not on a fire sale basis and that the Receivers should address a rezoning issue before proceeding to sell the property. 20 For the reasons set out in paragraphs [8] and [18] above, the Receivers sought a power of sale of the property of the scheme numbered 9. I would grant the Receivers that power. I am satisfied that the investors' concerns are adequately addressed by the form of orders I propose to make in relation to the power of sale.

THE GLEN CENTRE JOINT VENTURE: SCHEME 13 21 The Disclosure Report identifies the property as the Glen Centre, a retail complex located in Glenferrie Road, Hawthorn. The whole of the property is mortgaged to Westpac. As with the other schemes, insufficient cash flow is being generated to service the debt. The Disclosure Report records that LGHA owes an amount to the scheme and that based on book values, a surplus is expected when the property is realised. 22 Three investor submissions were received concerning the Glen Centre Joint Venture: Marion and Ray Borycewicz, Roger Smith and Sally Jeanette Nicholson. Concern was expressed by a number of investors that the sale should proceed in an orderly fashion in a way that will achieve the best returns. 23 For the reasons set out in paragraphs [8] and [21] above, the Receivers sought a power of sale of the property of the scheme numbered 13. I would grant the Receivers that power. I am satisfied that the investors' concerns are adequately addressed by the form of orders I propose to make in relation to the power of sale.

THE TWINVIEW JOINT VENTURE: SCHEME 14 24 The Disclosure Report identifies the property as a retail and commercial building in Flinders Lane, Melbourne. The whole of the property is mortgaged to Westpac. As with the other schemes, insufficient cash flow is being generated to service the debt. The Disclosure Report records that LGHA owes an amount to the scheme and that based on book values, a surplus is expected when the property is realised. 25 Four investor submissions were received concerning scheme numbered 14: Catherine Allen, Gary Sykes, Douglas Mitchell and Daniel Kennedy. Two investors submitted that the property should be held and sold only in the long term. Concern was also expressed by investors that any sale should proceed in an orderly fashion and that interests of investors should be considered. 26 For the reasons set out in paragraphs [8] and [24] above, the Receivers sought a power of sale of the property of the scheme numbered 14. I would grant the Receivers that power. I am satisfied that the scheme is unable to service the debt and that the investors' concerns are otherwise adequately addressed by the form of orders I propose to make in relation to the power of sale.

CONCLUSION AND ORDERS 27 Subject to the matters I am about to address, I will grant the Receivers the power of sale of the property of the schemes numbered 4, 5, 8, 9, 13 and 14. 28 I accept that the Receivers are bound to (and intend to) realise the property of the schemes in accordance with their duties as receivers and managers including their duties under ss 420A and 180 of the Act. However, as noted during the course of the hearing, the nature of these proceedings (including the submissions filed by the investors) and the differing types of property in the schemes raise additional considerations. It was for those reasons that I suggested and remain of the view that it is both necessary and appropriate for the orders approving the power of sale to prescribe the process to be adopted by the Receivers in effecting the power of sale in terms of the number of real estate or other agents to be contacted, the process for appointment of the agent(s), the maximum sales commission payable to the agent(s) and the nature of the advice to be sought from them including but not limited to the real estate or other agent's opinion about the preferred manner of sale of property, the appropriate marketing campaign for the property and the process (in general terms) to be adopted by the Receivers in selling the property. 29 Having obtained the proposals, the Receivers should be permitted to accept the proposal that they consider to be the most appropriate in the circumstances. 30 Finally, the orders will provide that the proceeds of each sale are to be paid into separate accounts and without further order of the Court, the Receivers may not withdraw, distribute or otherwise deal with the proceeds (except for the payment of the agent's reasonable fees and other reasonable expenses associated with the sale of the property). I note for completeness that I was informed by Counsel for the Receivers and Westpac that the distribution of any proceeds of sales will be the subject of further submission next Friday, 28 May 2010. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Scheme Description of property Joint venture manager/s 1. 211 Wellington Road Joint Venture 211 Wellington Road, Mulgrave, Victoria 211 Wellington Road Pty Ltd - Third Defendant 2. Healesville Walk Shopping Centre Joint Venture 251-263 Maroondah Highway, Healesville, Victoria Bluemist Holdings Pty Ltd - Fourth Defendant 3. Howleys Road Joint Venture 40-48 Howleys Road, Notting Hill, Victoria Dellwood Holdings Pty Ltd - Fifth Defendant 4. George Street Joint Venture 34 George Street, Launceston, Tasmania Enmore Enterprises Pty Ltd - Sixth Defendant 5. Cimitiere House Joint Venture 113 Cimitiere Street, Launceston, Tasmania Enmore Enterprises Pty Ltd - Sixth Defendant 6. Reef House Resort 99 Williams Esplanade Palm Cove, Qld - The Sebel Reef House Resort Firbank Arch Pty Ltd - Seventh Defendant Glenline Pty Ltd - Eighth Defendants 7. Queen Street Joint Venture 118 Queen Street, Melbourne, Victoria Gerling Holdings Pty Ltd - Ninth Defendant 8. Low Head Joint Venture 136 Low Head Road George Town, Tasmania, 142 Low Head Road, George Town, Tasmania & 40 Gunn Parade, George Town, Tasmania Low Head Village Pty Ltd - Twelfth Defendant 9. Nicholson Street Joint Venture 127-137 Nicholson Street, East Brunswick, Victoria Nicholson Street Pty Ltd - Thirteenth Defendant Holloway Crest Pty Ltd - Fourteenth Defendant Rosebery Enterprises Pty Ltd - Fifteenth Defendant 10. National Boulevard Joint Venture 144 National Boulevard, Campbellfield, Victoria Rosebery Enterprises Pty Ltd - Fifteenth Defendant 11. Simms Investment Project 626 Pittwater Road, Brookvale, NSW Simms Investments Pty Ltd - Sixteenth Defendant 12. SY21 Joint Venture 720-760 Chapel Street, South Yarra, Victoria SY21 Retail Pty Ltd - Seventeenth Defendant 13. The Glen Centre Joint Venture 673-681 Glenferrie Road, Hawthorn, Victoria The Glen Centre Hawthorn Pty Ltd - Eighteenth Defendant Castello Holdings Pty Ltd - Nineteenth Defendant 14. Twinview Joint Venture 167 Flinders Lane, Melbourne, Victoria Twinview Nominees - Twentieth Defendant 15. Yarra Valley Golf Joint Venture St John of God's Seminary and Henley Farm, Chirnside Park, Victoria Yarra Valley Golf Pty Ltd - Twenty-First Defendant Adina Rise Pty Ltd - Twenty-Second Defendant Albright Investments Pty Ltd - Twenty-Third Defendant Ashfield Rise Pty Ltd - Twenty-Fourth Defendant Bradfield Corporation Pty Ltd - Twenty-Fifth Defendant Copeland Enterprises Pty Ltd - Twenty-Sixth Defendant Devlin Way Pty Ltd - Twenty-Seventh Defendant First Hazelwood Pty Ltd - Twenty-Eighth Defendant Glenbelle Pty Ltd - Twenty-Ninth Defendant Glenvale Way Pty Ltd - Thirtieth Defendant Greenview Lane Pty Ltd - Thirty-First Defendant Hallmark Corporation Pty Ltd - Thirty-Second Defendant Moorleigh Holdings Pty Ltd - Thirty-Third Defendant Norton Ridge Pty Ltd - Thirty-Fourth Defendant Raleigh Glen Pty Ltd - Thirty-Fifth Defendant Redcrest Holdings Pty Ltd - Thirty-Sixth Defendant Suri Corporation Pty Ltd - Thirty-Seventh Defendant Sutton Rise Pty Ltd - Thirty-Eighth Defendant The Virtual Mlmer Pty Ltd - Thirty-Ninth Defendant Tivendale Pty Ltd - Fortieth Defendant Tulloch Downes Pty Ltd - Forty-First Defendant Mainking Pty Ltd - Forty-Second Defendant Topglen Pty Ltd - Forty-Third Defendant Allblue Pty Ltd - Forty-Fourth Defendant Aranbay Pty Ltd - Forty-Fifth Defendant 16. Glenbelle Project Sebel Heritage Lodge Management Lot, Yarra Valley Golf Course, Chirnside Park, Victoria Glenbelle Pty Ltd - Twenty-Ninth Defendant Redcrest Holdings Pty Ltd - Thirty-Sixth Defendant