Australian Securities and Investments Commission v Macro Realty Developments Pty Ltd

1. The First, Second, Third, Fourth, Fifth and Sixth Defendants be wound up pursuant to section 461(1)(k) of the Corporations Act 2001 (Cth) (Corporations Act) on the ground that it is just and equitable that they be wound up.
2. Pursuant to section 472(1) of the Corporations Act, Hayden Leigh White and Matthew David Woods of KPMG be appointed as joint and several liquidators of the First, Second, Third, Fourth, Fifth and Sixth Defendants.
3. The Plaintiff's costs of and incidental to this application be costs in the winding up of the Defendants, and those costs be taxed and reimbursed out of the property of the Defendants in accordance with section 466(2) of the Corporations Act. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 On 30 May 2017, I ordered that each of the defendants in this proceeding be wound up pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth), and that joint and several liquidators be appointed to each defendant. These are the reasons for so ordering. 2 The Court earlier made orders, on 14 March 2017, appointing Mr Hayden Leigh White and Mr Matthew David Woods of KPMG (provisional liquidators) as joint and several provisional liquidators to the defendants, and requiring the provisional liquidators to provide to the Court and the plaintiff, the Australian Securities and Investments Commission (ASIC), a report as to the provisional liquidation of each defendant. 3 On 28 April 2017, the provisional liquidators provided their reports in respect of the first, second, third, fifth and sixth defendants. As to the fourth defendant, the provisional liquidators provided a letter to the Court and ASIC, dated 28 April 2017. 4 At the hearing on 30 May 2017, ASIC relied on each of the five affidavits of Mr Gary Martyn Bertram and two further affidavits of service of Mr Bertram. ASIC additionally tendered the following documents already filed in the Court: (1) provisional liquidator's report in relation to the first defendant dated 28 April 2017; (2) provisional liquidator's report in relation to the second defendant dated 28 April 2017; (3) provisional liquidator's report in relation to the third defendant dated 28 April 2017; (4) provisional liquidator's report in relation to the fifth defendant dated 28 April 2017; (5) provisional liquidator's report in relation to the sixth defendant dated 28 April 2017; (6) letter in relation to the fourth defendant dated 28 April 2017; (7) consent of liquidator form in relation to the first defendant dated 9 March 2017; (8) consent of liquidator form in relation to the second defendant dated 9 March 2017; (9) consent of liquidator form in relation to the third defendant dated 9 March 2017; (10) consent of liquidator form in relation to the fourth defendant dated 9 March 2017; (11) consent of liquidator form in relation to the fifth defendant dated 9 March 2017; and (12) consent of liquidator form in relation to the sixth defendant dated 9 March 2017. 5 In its submissions filed 24 May 2017, ASIC made the following submissions based on the provisional liquidators' reports: First Defendant - Macro Realty Developments Pty Ltd (In Provisional Liquidation) 9. In their report with respect to the affairs of the First Defendant dated 28 April 2017 (First Defendant Report), the Provisional Liquidators have expressed the view, inter alia, that: 9.1. the First Defendant has a net asset deficiency of at least $41m and has no capacity to generate sufficient cash to meet its liabilities; 9.2. it is clear that the First Defendant is insolvent; 9.3. in their preliminary view the First Defendant was insolvent from at least early 2016; 9.4. the First Defendant may have been insolvent from as early as 2015; 9.5. there is a real prospect that there will be no return to unsecured creditors in a winding up of the First Defendant; and 9.6. they have identified potential contraventions of the following sections of the Corporations Act by the First Defendant's directors and officers: 9.6.1. directors' duties (ss 180 - 184); 9.6.2. failure to keep proper accounting records (s 286); 9.6.3. failure to submit report as to affairs (s 475); 9.6.4. trading while insolvent (s 588G); and 9.6.5. concealing, destroying, mutilating or falsifying books and records (s 1307). Second Defendant - Macro Realty Pty Ltd (In Provisional Liquidation) 10. In their report with respect to the affairs of the Second Defendant dated 28 April 2017 (Second Defendant Report), the Provisional Liquidators have expressed the view, inter alia, that: 10.1. the Second Defendant has a net asset deficiency of at least $563,000 and has no capacity to generate sufficient cash to meet its liabilities; 10.2. it is clear that the Second Defendant is insolvent; 10.3. in their preliminary view the Second Defendant was insolvent from at least early 2016; 10.4. the Second Defendant may have been insolvent from as early as 2015; 10.5. there is a real prospect that there will be insufficient recoveries to allow for any return to unsecured creditors in a winding up of the Second Defendant; and 10.6. they have identified potential contraventions of the following sections of the Corporations Act by the Second Defendant's directors and officers: 10.6.1. directors' duties (ss 180 - 184); 10.6.2. failure to keep proper accounting records (s 286); 10.6.3. failure to submit report as to affairs (s 475); 10.6.4. trading while insolvent (s 588G); 10.6.5. offences by officer or employees of certain corporations (s 590); and 10.6.6. concealing, destroying, mutilating or falsifying books and records (s 1307). Third Defendant - Macro All State Investments & Securities Ltd (In Provisional Liquidation) 11. In their report with respect to the affairs of the Third Defendant dated 28 April 2017 (Third Defendant Report), the Provisional Liquidators have expressed the view, inter alia, that: 11.1. the Third Defendant has no means or capacity to generate sufficient cash to meet its obligations; 11.2. it appears that the Third Defendant is insolvent; 11.3. in their preliminary view the Third Defendant was likely insolvent from at least early 2016; 11.4. it is unlikely that recoveries will be sufficient to allow for any meaningful return to unsecured creditors in a winding up of the Third Defendant; and 11.5. they have identified potential contraventions of the following sections of the Corporations Act by the Third Defendant's directors and officers: 11.5.1. failure to keep proper accounting records (s 286); and 11.5.2. failure to submit report as to affairs (s 475). Fourth Defendant - Macro Realty Developments AFSL Pty Ltd (In Provisional Liquidation) 12. By a letter to the Court and the Plaintiff dated 28 April 2017, the Provisional Liquidators have informed the Court and the Plaintiff that the limited information available to them with respect to the Fourth Defendant's affairs has prevented them from preparing a report with respect to that company in the terms required by the March Orders. 13. By that letter, at p. 2, the Provisional Liquidators have expressed the view, inter alia, that: 13.1. they are unable to form a view as to the assets and the liabilities of the Fourth Defendant at this time; 13.2. they are unable to form any opinion as to the solvency of the Fourth Defendant in the absence of records of any quantified liabilities; 13.3. as there is no established creditor position, they are unable to provide an estimated return to creditors in a winding up of the Fourth Defendant; and 13.4. they have identified a potential contravention of the following section of the Corporations Act by the Fourth Defendant's directors and officers: 13.4.1. failure to keep proper accounting records (s 286). Fifth Defendant - 511 GTN Pty Ltd (Receivers and Managers Appointed) (In Provisional Liquidation) 14. In their report with respect to the affairs of the Fifth Defendant dated 28 April 2017 (Fifth Defendant Report), the Provisional Liquidators have expressed the view, inter alia, that: 14.1. the Fifth Defendant has a net asset deficiency of at least $5.3m and has no capacity to generate sufficient cash to meet its liabilities; 14.2. it is clear that the Fifth Defendant is insolvent; 14.3. in their preliminary view the Fifth Defendant was insolvent from at least 14 April 2016, when the Receivers were appointed to the Fifth Defendant; 14.4. the Fifth Defendant may have been insolvent from as early as 2015; 14.5. it is unlikely that recoveries will be sufficient to allow for any meaningful return to unsecured creditors in a winding up of the Fifth Defendant; and 14.6. they have identified potential contraventions of the following sections of the Corporations Act by the Fifth Defendant's directors and officers: 14.6.1. directors' duties (ss 180 - 184); 14.6.2. failure to keep proper accounting records (s 286); 14.6.3. failure to submit report as to affairs (s 475); and 14.6.4. trading while insolvent (s 588G). Sixth Defendant - Pilbara Property Developments Pty Ltd (In Provisional Liquidation) 15. In their report with respect to the affairs of the Sixth Defendant dated 28 April 2017 (Sixth Defendant Report), the Provisional Liquidators have expressed the view, inter alia, that: 15.1. the Sixth Defendant has a net asset deficiency of at least $1.4m and has no capacity to generate sufficient cash to meet its liabilities; 15.2. it is clear that the Sixth Defendant is insolvent; 15.3. in their preliminary view the Sixth Defendant was insolvent from at least early 2016; 15.4. it is unlikely that recoveries will be sufficient to allow for any meaningful return to unsecured creditors in a winding up of the Sixth Defendant; and 15.5. they have identified potential contraventions of the following sections of the Corporations Act by the Sixth Defendant's directors and officers: 15.5.1. directors' duties (ss 180 - 184); 15.5.2. failure to keep proper accounting records (s 286); 15.5.3. failure to submit report as to affairs (s 475); and 15.5.4. trading while insolvent (s 588G). 6 As ASIC submits, when regard is had to the opinions expressed by the provisional liquidators' reports, and the three factors of central consideration on an application such as this as identified by Warren J in Australian Securities and Investments Commission v ABC Fund Managers (2001) 39 ACSR 443; [2001] VSC 383, the evidence weighs strongly in favour of a winding up order being made in respect of each of the defendants. More specifically: (1) the Court is entitled to lack confidence in the conduct and management of each of the defendants; (2) the defendants' involvement in raising investment funds from the public by way of what is said to be a Ponzi scheme, as well as their past and ongoing contraventions of the Corporations Act demonstrate that there is a need to ensure investor protection and a real risk to the public interest that warrants protection; and (3) the reluctance of the Court to wind up a solvent company has no application in this matter, as the evidence demonstrates that the defendants are either insolvent or have failed to maintain sufficient financial records to allow their solvency status to be properly assessed by the provisional liquidators. 7 ASIC has reasonably brought this application because no-one has any confidence that the affairs of the defendants have been or are being properly managed, and because there would be a serious risk to the public interest if the defendants are not wound up. 8 The Court is entitled to have regard to the actual public interest considerations that have induced ASIC to bring this application: Australian Securities Commission v AS Nominees Limited & Ample Funds limited (1995) 62 FCR 504; [1995] FCA 1663 at 531. 9 Finally, as ASIC submits, the conclusions reached by the provisional liquidators in their reports strongly support ASIC's concerns with respect to the mismanagement of the defendants' affairs and favour an order being made that each of the defendants be wound up. 10 I accept the submissions made on behalf of ASIC. 11 In these circumstances, I consider, on the just and equitable ground under s 461(1)(k) of the Act, that the defendants should be wound up. 12 For these reasons, I made the above orders. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.