Benedict v Olde; in the matter of ATS

Federal Court of Australia|2021-06-16|Before: McKerracher J

Upon receipt by the First Applicants (Liquidators) in the following bank account: Bank: Macquarie Bank Account Name: Substar Holdings Pty Ltd (In Liquidation) BSB: 186-300 Account Number: 204 202 584 of an amount of $530,000 paid by or on behalf of the Second Applicant (the Company) to the Liquidators, provided that such funds are received by the Liquidators within 60 days of the date of these orders: (a) The winding up of the Company is terminated; (b) The receivership of the property of the Taurus Investment Trust is terminated.
Within 14 days of the date of these orders, and again within 14 days of receipt of the payment in satisfaction of order 1 above, the Company shall lodge a copy of these orders with the Australian Securities and Investments Commission.
The Liquidators be allowed remuneration and their costs incurred in relation to the work undertaken in relation to the receivership and liquidation of the Company in the amount of $65,921.65 (inclusive of GST) over the period from 25 November 2020 to 10 May 2021, and such costs and remuneration to be paid from the funds received in satisfaction of order 1 above.
The legal costs and disbursements in respect of the receivership and liquidation for the period from the date of the Liquidators' appointment to 10 May 2021 be fixed in the sum of $103,917.52 (inclusive of GST), and such costs to be paid from the funds received in satisfaction of order 1 above.
The Liquidators be allowed further remuneration and costs including holding costs, legal fees, and settlement agent fees in relation to the receivership and liquidation in an amount no greater than $28,710.79 for the period from 11 May 2021 to settlement, and such costs to be paid from the funds received in satisfaction of order 1 above.
The requirement in r 14.25 of the Federal Court Rules 2011 (Cth) to file accounts and pass accounts is dispensed with.
There be liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 In August last year, Mr Bryan Kevin Hughes and Mr Daniel Johannes Bredenkamp were appointed as joint and several Liquidators of Substar Holdings Pty Ltd (or the Company). In Hughes, in the matter of Substar Holdings Pty Ltd (in liquidation) [2020] FCA 1863(Substar (No 1)), I made orders for the appointment of the Liquidators as receivers and managers of the property of the Taurus Investments Trust, of which Substar is the trustee. Those orders were necessary to enable the Liquidators to realise the property of the Trust to satisfy the liabilities incurred by Substar in its capacity as trustee, in circumstances where Substar conducted no business, and only held assets in its capacity as trustee. Where the Liquidators are referred to in these reasons, this term encompasses their role as receivers and managers of the Trust property. 2 By a further re-amended interlocutory application filed on 14 June 2021, the Liquidators seek orders for the termination of the liquidation of Substar on the basis that its sole director, Mr Andrew Scala (or the Director) has put forward a proposal to the Liquidators which they consider will allow each of the Company's creditors to be repaid in full as well as the costs and remuneration of the Liquidators to be met. Orders are accordingly also sought for the fixing of the Liquidators' costs and remuneration in certain amounts. After some conferral with the Liquidators' solicitors, resulting in the filing of various amended iterations of the interlocutory application, the most current of which seeks a narrower form of relief than that originally pressed, I am satisfied, for the reasons that follow, that orders should be made in the terms sought in the further re-amended interlocutory application dated 14 June 2021. 3 The Liquidators' application is supported by an affidavit of Mr Bredenkamp of 21 April 2021 and an affidavit of Mr Michael Stulic, solicitor, of 12 May 2021. In addition, Andrew Scala has filed an affidavit of 28 April 2021 in which he deposes, amongst other things, to his support for the termination of the liquidation and the consequential orders sought. The Liquidators also rely on portions of affidavits previously filed by Messrs Bredenkamp and Stulic in support of the application the subject of Substar (No 1).

THE FINANCIAL POSITION OF SUBSTAR 4 Andrew Scala has now confirmed in his affidavit the Liquidators' initial understanding that Substar carried on no business of its own and holds all of its assets in its capacity as trustee of the Trust. As detailed in Substar (No 1) (at [9]), the Liquidators encountered difficulties engaging with Andrew Scala and his father (the sole shareholder of Substar), Mr Leopold Scala to ascertain Substar's position in the early months of the litigation. Leopold Scala was previously the director of Substar up until he was declared bankrupt; he remains an undischarged bankrupt. He is also the appointor of the Trust. 5 Substar is the registered proprietor of three properties and owns 11 motor vehicles. Late last year, the value of the Company's assets was estimated by the Liquidators at $1,435,500: Substar (No 1) (at [13]-[17]). 6 The Liquidators' previous estimate of the Company's liabilities was $205,197: Substar (No 1) (at [22]-[23]). On 31 March 2021, the Liquidators issued a notice to creditors calling for the submission of formal proofs of debt. On the basis of the proofs received, the Liquidators believe the liabilities of Substar now total slightly less than $237,230.75. The total comprises the following: Creditor Basis Amount Claimed Petitioning Creditor's costs Legal fees $7,000.00 Colliers International Perth Professional fees $12,762.50 Sheriff's Office Court costs $14,989.90 67 Ewer Street Pty Ltd Mortgage $39,975.15 Finance (A dispute arose with respect to this claim. It has been reduced to $34,000). Taylor Smart Lawyers Legal Fees $14,875.59 Strata Company at 9 Capel Court, Bentley Strata Levies $16,900.00 Strata Company at 30 The Circus, Burswood WA 6100 Strata Levies $39,553.35 City of Canning Council Rates $31,897.90 Town of Victoria Park Council Rates $19,130.56 Water Corporation Water Rates $35,098.00 Department of Finance Land Taxes $5,047.80 TOTAL $237,230.75

7 As noted in the table above, there had been until very recently, a live dispute as to the value of 67 Ewer Street Pty Ltd's claim. Mr Stulic annexes correspondence to his affidavit between solicitors for Ewer Street and the Liquidators in relation to that dispute. In circumstances where Ewer Street has caveats registered over the Company's properties, the Court raised with the Liquidators concerns about the prospect of the proposal for the termination of the liquidation (discussed below) being successfully achieved while the dispute was ongoing. As at the date of filing the further re-amended application, the Liquidators have advised the Court that Ewer Street and the Liquidators have resolved that the claim will be admitted for $34,000. The total liabilities of Substar are thus slightly less than the total set out in the above table.

THE PROPOSAL 8 By a series of email correspondence and in-person meetings in January and February 2021 between the Liquidators and Andrew Scala and his representatives, a desire was expressed by Andrew Scala to pay Substar's creditors in full and have the Company's winding up terminated. 9 The Liquidators considered that any proposal to meet Substar's liabilities and terminate the winding up would need to satisfy the following conditions: (a) the Liquidators be paid the sum of approximately $530,000.00 (Requisite Funds) so as to satisfy the creditors' claims against Substar, and the remuneration of the Liquidators and costs incurred by the Liquidators; (b) Andrew Scala's nominee, Scala Holdings Pty Ltd provide the Liquidators with confirmation that it has obtained a loan to meet its obligation to pay the Requisite Funds to the Liquidators; and (c) the Liquidators consent to security being registered against a property of which Substar is the registered proprietor, namely Unit 403, 30-44 The Circus, Burswood, Western Australia, as security for the loan referred to in (b). (i) (together, the Liquidators' Conditions) 10 On 1 April 2021, Scala Holdings (as the first borrower), Substar (as the second borrower) and Andrew Scala (as the guarantor) entered into an agreement with OFCS Pty Ltd trading as 'Oak Capital', which included terms to the effect that: (a) Oak agreed to loan Scala Holdings and Substar the amount of $753,018.00; (b) as security for the repayment of the loan, Andrew Scala (as the sole director of Scala Holdings) agreed to provide Oak with personal and unlimited guarantees; (c) as security for the repayment of the loan, Andrew Scala (as the sole director of Substar) agreed to provide Oak with personal and unlimited guarantees; (d) as security for the repayment of the loan, Andrew Scala agreed to provide Oak, by way of general security agreements, a security interest over all his present and after acquired property to be registered on the Personal Property Securities Register; and (e) as security for the repayment of the loan, Scala Holdings and Substar agreed to provide Oak with a first registered mortgage over various real property owned by either Scala Holdings and/or Substar. (f) (Creditor Finance Agreement) 11 Andrew Scala is the sole director and shareholder of Scala Holdings and he states that some of the funds will also be used to satisfy that company's debts. 12 Andrew Scala also explains in his affidavit that Oak has subsequently agreed to increase the net amount of the loan funds under the Credit Finance Agreement to $800,000, however it is still only proposed that $530,000 will be provided to the Liquidators to meet their Conditions. 13 Much of the Requisite Funds of $530,000 proposed to be advanced to the Liquidators will meet their costs, disbursements and remuneration with respect to the liquidation. In Substar (No 1) an order was made fixing the Liquidators' remuneration for the period from their appointment to 25 November 2020 in the sum of $74,676.50: Substar (No 1) (at [43]-[46]). The Liquidators are yet to draw down this amount having not taken any steps to realise the value of the Trust property. Accordingly, the sum of $530,000 to be received by the Liquidators as a condition of the termination of the winding up is to be distributed as follows: Expense Value Creditors' claims $237,230.75 (subject to slight reduction in relation to the now-settled Ewer Street dispute) Liquidators' legal costs from appointment to 10 May 2021 $103,917.52 (incl. GST) Liquidators' disbursements from appointment to 10 May 2021 $19,542.79 (incl. GST) Liquidators' remuneration from appointment to 25 November 2020 as approved by the orders in Substar (No 1) $74,676.50 (excl. GST) Liquidators' remuneration from 26 November 2020 to 10 May 2021 $65,921.65 (incl. GST) Estimated further property holding costs and remuneration and disbursements of the Liquidators from 11 May 2021 to termination of the liquidation $28,710.79 (incl. GST) Total $530,000

14 The final sum of $28,710.79 is the amount that the Liquidators reasonably estimate will be required to meet various further costs and remuneration in the liquidation if the orders sought are granted. In the event that a surplus remains, they propose to return any unused funds to the Company. 15 The Liquidators, through Mr Bredenkamp, depose to their belief that the legal costs, disbursements and remuneration claimed by the Liquidators has been reasonably incurred. Together with Andrew Scala, they also depose to their belief that upon payment of the sum of $530,000 to the Liquidators and its distribution as set out above, Substar will be solvent. Andrew Scala says he intends to repay the loan funds to Oak by the sale of various properties, one of which is presently owned by Substar.

FORM OF RELIEF SOUGHT 16 To give effect to the Director's proposal for the termination of the winding up upon receipt by the Liquidators of the Requisite Funds, the following orders are sought: 1. Upon receipt by the Liquidators in the following bank account: … of an amount of $530,000 … paid by or on behalf of the Company to the Liquidators provided such funds are received within 60 days of the date of these Orders, … : (a) the winding up of the Company be terminated; and (b) the receivership of the property of the Trust be terminated. 2. Pursuant to section 482(5) of the [Corporations Act 2001 (Cth)], the Company shall lodge a copy of this Order with the Australian Securities and Investments Commission within 14 days of the date of this Order and subsequent compliance with Order 1 herein. 3. The Liquidators be allowed remuneration and its costs [sic] incurred in relation to the work undertaken in relation to the receivership and liquidation in the amount of $65,921.65 (inclusive of GST) over the period from 25 November 2020 to 10 May 2021, and such costs and remuneration to be included in the amount referred to at Order 1 herein. 4. The legal costs and disbursements in respect of the receivership and liquidation for the period from winding-up, up to 10 May 2021 be fixed in the sum of $103,917.52 (inclusive of GST), and such costs be included in the amount referred to at Order 1 herein. 5. The Liquidators be allowed further remuneration and costs including holding costs, legal fees, and settlement agent fees in relation to the receivership and liquidation in the amount no greater than $28,710.79 over the period 11 May 2021 to settlement, and such costs to be included in the amount referred to at Order 1 herein. 6. The requirement in rule 14.25 of the Federal Court Rules 2011 (Cth) to file accounts be dispensed with, as well as the need to pass accounts. 7. Such further Order or Orders as this Honourable Court thinks fit. 8. Liberty to apply.

THE PRINCIPLES ON TERMINATION OF A WINDING UP 17 The Court's power to terminate the winding up of a company is conferred by s 482(1) of the Corporations Act 2001 (Cth), which provides as follows: 482 Power to stay or terminate winding up (1) At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order. 18 In considering the exercise of the discretionary power, regard should be had to the eight factors set out by Master Lee QC in Re Warbler Pty Ltd (1982) 6 ACLR 526 (at 533). In Re MWM Sydney Pty Ltd (in liq) [2016] NSWSC 688, Black J set out those principles as follows (at [16]-[17]): 16 I turn now to the applicable legal principles, which are well established, but may nonetheless be difficult in their application in a particular case. The Court's power to make an order terminating a winding up under s 482 of the Corporations Act is discretionary, as the case law has noted, and a person who seeks such an order must establish that the order is appropriate. The factors relevant to whether a winding up should be stayed or terminated were summarised by Master Lee QC of the Supreme Court of Queensland in Re Warbler Pty Ltd (1982) 6 ACLR 526 at 533 as follows: "1. The granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay: Re Calgary and Edmonton Land Co Ltd (in liq) (1975) 1 WLR 355 at 358-359 per Megarry J. See also sec 243 of the Act [ie, Companies Act 1961]. 2. There must be service of notice of the application for a stay on all creditors and contributories, and proof of this: Re South Barrule Slate Quarry Co (1869) LR 8 Eq 688; Re Bank of Queensland Ltd (1870) 2 QSCR 113. 3. The nature and extent of the creditors must be shown, and whether or not all debts have been discharged: Krextile Holdings Pty Ltd v Widdows supra [[1974] VR 689]; Re Data Homes Pty Ltd supra [1971] 1 NSWLR 338]. 4. The attitude of creditors, contributories and the liquidator is a relevant consideration: sec 243(1), Re Calgary and Edmonton Land Co Ltd supra. 5. The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay of proceedings in the winding-up is sought: Re a Private Company [1935] NZLR 120; Re Mascot Home Furnishers Pty Ltd [1970] VR 593 at 598. 6. If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs, a full explanation of the reasons and circumstances should be given: Re Telescriptor Syndicate Ltd, supra [[1903] 2 Ch 174]. 7. The general background and circumstances which led to the winding-up order should be explained: Krextile Holdings Pty Ltd v Widdows, supra. 8. The nature of the business carried on by the company should be demonstrated, and whether or not the conduct of the company was in any way contrary to "commercial morality" or the "public interest": Krextile Holdings Pty Ltd v Widdows, supra; Re Data Homes Pty Ltd, supra …" 17 Master Lee noted that this list was not intended to be exhaustive and should not be regarded as a series of rigid principles, and that proposition has subsequently been endorsed in later case law: Dubolo Pty Ltd (t/as Fender Signs) v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723 at 724, Metledge v Bambakit Pty Ltd (in liq) [2005] NSWSC 160 at [5] and Von Riesefer v Mainfreight International Pty Ltd [2009] VSCA 129; (2009) 73 ACSR 427 at 438; Re 311 Hume Highway Liverpool Fund Pty Ltd (in liq) [2013] NSWSC 465; 93 ACSR 683 at [4]. (see also Perera v Australian Securities and Investments Commission, in the matter of Hodder Rook & Associates Pty Limited [2019] FCA 2015 per Markovic J at [66]; Doolan, in the matter of MIH Company Pty Ltd (in liq) v MIH Company Pty Ltd (in liq) [2015] FCA 1130 per Edelman J at [9]-[11]; Judson, in the matter of Maneroo Pty Ltd (in liq) [2015] FCA 783 per Gleeson J at [21]-[22]; and Benedict v Olde; in the matter of ATS (Asia Pacific) Pty Ltd [2011] FCA 1008 per Jacobsen J at [5]). 19 In circumstances where winding up orders have been made against a company on insolvency grounds, the question of solvency will be a primary consideration for the Court. It will be necessary for the company to demonstrate that it is now solvent and that the circumstances that necessitated the initial winding up order are no longer present. As noted by Austin J in Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756; (2000) 35 ACSR 70 (at [47]): [47] In considering an application to stay or terminate a court-ordered winding up under s 482, the court has regard to various categories of interests. First, the court considers the interests of creditors, taking into account whether they object to the proposed termination. But even if all the existing creditors agree, the court may take the view that the proposed termination puts at risk the interests of future creditors. For example, the court is likely to be concerned where the proposal preserves the existing debts but defers their payment, particularly if the deferment has no enforceable status: see the remarks of Street J at first instance in Re Data Homes Pty Ltd [1971] 1 NSWLR 338 at 341. Similarly, if the proposal is that the principal shareholder/creditor will pay out all the other creditors and seek recovery of his debt by instalments, the court is unlikely to permit the company to start trading again and thereby incur additional debts, since if the company fails again, recovery by the new creditors may be prejudiced by the existing debt. However, if the principal shareholder/creditor capitalises his debt, the court may well take a different view: Collins v G Collins & Sons Pty Ltd (1984) 9 ACLR 58. 20 Similar observations were made by Brereton J in Re Glass Recycling Pty Ltd (in liq) [2014] NSWSC 439 (at [18]-[20]): 18 Essentially, on such an application, the Court must be satisfied, first, that the state of affairs that required that the company be wound up no longer exists. Where the winding up was on grounds of insolvency, it will be necessary for the applicant to demonstrate that the company is not, or is no longer, insolvent. This is usually the most significant consideration [Re SNL Group Pty Ltd (in liq) [2010] NSWSC 797, [24]]. Thus it has been said that an order terminating the winding up would usually be made if all the creditors are paid out, the liquidators' costs and expenses are covered, and the members agree [Apostolou v VA Corporation of Australia Pty Ltd [2010] FCA 64; (2010) 77 ACSR 84, [58]; Re Kitchen Dimensions Pty Ltd (in liq) [2012] VSC 280]. 19 However, the factors to which the cases refer demonstrate that more is necessary than merely establishing that the state of affairs that required the company to be wound up no longer exists. This appears from, inter alia, the references to "commercial morality" as a relevant consideration, and also from references to the interests of future as well as extant creditors. These factors illustrate that the second broad consideration that informs the exercise of the Court's discretion - once satisfied that the state of affairs that originally required winding up no longer exists - is that it would be reasonable to entrust the affairs of the company, once again, to the directors, under whose management it previously failed. 20 While there are cases in which it has been pointed out that, in the absence of an order disqualifying them from continuing to carry on business through a new entity, the same directors could simply incorporate another company to do so [see, for example, In the matter of Kitchen Dimensions Pty Ltd (in liquidation) [2012] VSC 280, [38]], the persistent reference in the cases to matters such as commercial morality and other considerations that relate to the future conduct of the company's affairs demonstrate that, where the Court's discretion to terminate a winding up is invoked, it seeks some comfort that such a state of affairs is not likely to recur in the foreseeable future. This concern with the future conduct of the affairs of the company is manifest from cases such as Re Data Homes Pty Ltd [1972] 2 NSWLR 22, 27 (where Mason JA was concerned that while a company was perhaps technically solvent due to an agreement with its creditors, its liabilities nonetheless greatly exceeded its assets) and Krextile Holdings Pty Ltd v Widdows [1974] VR 689, 695 (in which Gillard J referred to the circumstance that the company could continue its business "without any risk to any creditor or any other person"). These cases were considered by Judd J in Kitchen Dimensions (at [28]), where his Honour identified their focus as, broadly, "the likely impact on future creditors". (Emphasis added.)

Notice of the application to all creditors? 21 The Liquidators served via email a previously filed version of the application (the initial version rather than the now further re-amended version) on all creditors except Ewer Street on 5 May 2020. The same version of the application was served via email on Ewer Street on 10 May 2021. A further amended application was then filed on 13 May 2021 and was subsequently brought to the attention of all creditors. There was no material changes to the relief sought in those amendments. The Court has now been furnished with a further re-amended application filed on 14 June 2021. This present application seeks a narrower form of relief than the iterations of the application previously filed. 22 In the emails to creditors, the Liquidators sought a response or any objections to the application from creditors within five days. They then indicated that if no response was received within that short timeframe, the Liquidators would consider that there was no objection to the application. 23 The Liquidators received responses from four creditors (out of a total of 11) indicating no objections to the application. They also received a response from the solicitors acting for Ewer Street indicating that they were unable to advise Ewer Street's position with respect to the application until they had received the Liquidators' determination of their claim. Ewer Street's claim has now been determined however the Liquidators have not advised the Court any further as to Ewer Street's position. There has been no response from six of Substar's creditors. 24 The period within which the Liquidators permitted creditors to object to the application was far too short. Five days is not enough time to permit a creditor to consider its position, particularly in the case of the email sent on 5 May 2021 to all creditors except Ewer Street where the five day period included the weekend. This being so, more than a month has now passed since creditors were served with the application and the Liquidators have not brought any further correspondence from creditors to the attention of the Court. I will say more on this topic below. 25 The Liquidators have also served the application on the Australian Securities and Investments Commission who have advised that, in accordance with an updated policy, they will not be providing a formal response to the application unless specifically requested by the Court.

Has the nature and extent of all creditors been shown, and will all debts be discharged? 26 On the basis of the matters set out above in relation to Substar's total liabilities it is clear that the proposed sum of $530,000 will be sufficient to pay out all current creditors in full. Moreover, the Liquidators called for formal proofs of debt on 31 March 2021 and the claims received substantially accord with the number and value of creditors ascertained by the Liquidators during their preliminary investigations: Substar (No 1) (at [21]-[23]). Andrew Scala has also deposed to his belief that the Company's liabilities are as recorded by the Liquidators. It can be assumed with a reasonable degree of certainty that the Liquidators have ascertained the nature and extent of the Company's creditors.

The attitude of the creditors, contributories and Liquidators to the application 27 Significantly, the application to terminate the winding up is brought by the Liquidators. Andrew Scala is also clearly supportive of the orders sought. As to creditors, while no objections have yet been raised, the evidence does not establish that the creditors as a whole positively support the application. However, it is difficult to foresee the basis of any potential objection where the receipt of the Requisite Funds by the Liquidators will allow all creditors to be paid in full. This is particularly so now that the Ewer Street claim has been agreed and settled. In the event that the Liquidators do not receive the Requisite Funds, the winding up will not be terminated.

The current trading position and general solvency of the Company 28 The Liquidators consider that Substar will be solvent following receipt of the Requisite Funds. These funds will allow all creditors to be paid in full. Further, the Company does not trade and its sole purpose is to act as trustee of the Trust. Andrew Scala has indicated his intent to repay the loan to Oak by selling a number of properties.

Have the circumstances leading up to the winding up been explained? 29 In his affidavit, Andrew Scala explains that: (a) since 10 February 2017, the registered office of Substar has been care of Macri Partners, Suite 2, 137 Burswood Road, Burswood, WA 6100. Macri Partners were the former accountants of Substar; (b) unbeknownst to him, a range of correspondence was served on Substar at Macri Partners' office that Macri Partners failed to bring to his attention; (c) he only became aware of the matters relating to the winding up of Substar after that process had commenced; (d) to the best of his knowledge and understanding, the solicitors for The Owners of Axis Strata Plan 46301 served a statutory demand for payment of debt on Substar at Macri Partners' office; (e) the statutory demand sought payment of a debt owed by Substar to Axis in the amount of $17,923.08, pursuant to default judgment entered for that amount in favour of Axis in the Magistrates Court of Western Australia on 19 February 2020; (f) at the time, he had not been made aware of the default judgment by Macri Partners or that a statutory demand had been issued and served. As such, the debt in question was not paid; (g) on 1 May 2020, the solicitors for Axis filed an originating process to wind up Substar in the Supreme Court of Western Australia. To the best of his knowledge and understanding, this was served on Macri Partners' office on 4 May 2020; and (h) Macri Partners did not notify him that they had received the winding up application. He understood, and verily believed it to be true, that a hearing of that application took place in the Supreme Court on 16 July 2020. However, Macri Partners did not inform him ahead of time that the hearing was taking place.

Has there been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs? 30 The Liquidators did not raise, and made no submission on this factor but it is clearly a relevant consideration in the exercise of the discretion under s 482(1). It must be observed that the Liquidators encountered significant difficulties over an extended period of time in making contact with Andrew Scala. Having then made contact with him, he informed the Liquidators that Substar had no books or records because he did not believe it was required to keep any. No evidence has been led, or representations made to dispel the concern that this unsatisfactory state of affairs could continue following termination of the winding up. 31 The weight to be given to this consideration is somewhat lessened in a case such as the present where the Liquidators themselves have applied for termination of the winding up (as opposed to a creditor of the Company).

Is the nature of the Company's business contrary to commercial morality or the public interest? 32 The Liquidators say that in the following circumstances, it is not contrary to commercial morality or the public interest for the winding up to be terminated: (a) Substar carried on no business of its own; (b) upon the Requisite Funds being received by the Liquidators, the debts of Substar (save for the loan from Oak) will be discharged in full; and (c) Substar will be solvent, as its only outstanding debt will be the Oak loan which Andrew Scala intends to repay through the sale of various properties;

Determination of the application to terminate the winding up 33 The proposed form of orders sought by the Liquidators would operate such that the termination of the winding up is contingent upon the receipt by the Liquidators of the Requisite Funds. This mechanism removes any risk that the winding up could proceed even if Andrew Scala failed to transfer the Requisite Funds. The evidence filed by the Liquidators also demonstrates that there will be sufficient funds available to pay out Substar's creditors in full and I am satisfied that the amounts sought by the Liquidators have been reasonably incurred. In this regard, it is noted that the non-cooperation of the Director in the early stages of the liquidation added significantly to the costs: Substar (No 1) (at [44]-[46]). 34 Although there remains some concern about the previous conduct of the Director in failing to maintain any books or records for the Company and failing over a significant period of time to cooperate with the Liquidators, in circumstances where Substar does not carry on any business and its sole purpose is to hold property as a corporate trustee, considerations of commercial morality and the public interest are not as significant as they otherwise would be. 35 The approach to giving notice to Substar's creditors of the application has not been ideal. However, creditors have been made aware of the application and no objections have been brought to the attention of the Court, whether within or outside the time set by the Liquidators for such objections to be raised. In any event, it is difficult to discern any prejudice to creditors by the making of orders for the termination of the winding up which remains contingent on the receipt of the Liquidators of the Requisite Funds which will allow all creditors to be paid in full. 36 As adverted to at various points above, various iterations of the application to terminate the winding up have been filed, the most recent of which resulted in a narrowing of the relief sought. Importantly, the Liquidators now seek to limit the time within which the Director has to transfer the Requisite Funds to 60 days from the date the relief is ordered. It is appropriate to set a time limit after which the Director's opportunity to transfer the Requisite Funds will expire to give certainty to all parties concerned. There will be liberty to apply to extend this time limit on reasonable grounds. 37 Finally, the Liquidators seek an order dispensing with any requirement to file accounts under r 14.25 of the Federal Court Rules 2011 (Cth). Although perhaps not strictly necessary, the order is appropriate in this case where the Liquidators (as receivers of the Trust) did not realise any trust assets.

CONCLUSION 38 Orders will be made substantially in terms of the further re-amended interlocutory application filed on 14 June 2021. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.

Corporations Act 2001(Cth)ss 482(1), Cases

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