Bovis Lend Lease Pty Ltd v Wily

Entitlement to vote - s 600H

1. Section 600H was introduced by (CTH) Corporations Amendment (Sons of Gwalia) Act 2010, and applies to claims made against a company where its external administration begins after the commencement of that Act on 18 December 2010. Its objects include reducing the costs and improving the efficacy of external administrations, [5] and its mechanisms for advancing that end include reducing the requirement for communication with subordinate claimants who are unlikely to have any real stake in the administration. The rationale for excluding subordinate claimants from decision-making, unless the court otherwise orders, is that if they have no real financial interest, they should have no say in decision-making. [6]
2. Thus, for the purpose of deciding whether an order should be made under s 600H entitling a subordinate claimant to vote, a relevant consideration is whether that claimant might reasonably be considered to have a real financial interest in the external administration of the company. [7] Where the claims of ordinary creditors will exhaust the available funds, that will not likely be the case.
3. However, in the present case the administrators have formed the view that (even on a pessimistic scenario) it is likely that there will be surplus in the liquidation after paying all debts and claims other than subordinate claims, and accordingly that any subordinate claimants who can establish their claims are likely to be able to participate in a distribution to creditors on winding up. In those circumstances, they consider that such claimants have a real financial interest in the liquidation, and accordingly propose that the Court order that they be entitled to vote at the s 439A meeting. In my judgment, that view of the administrators is plainly proper: as there is likely to be surplus, the subordinate claimants have a real financial interest in the administration. Accordingly, there should be an order that subordinate claimants be entitled to vote.

Notice to subordinate claimants

1. By s 600H(1)(a), subordinate claimants are entitled to receive a copy of any notice, report or statement to creditors only if they ask for a copy. The orders sought in respect of giving notice of the meeting to potential subordinate claimants invoke s 447A, to modify the operation of s 439A(3) (notice to creditors and publication of notice), s 439A(4) (accompaniments to notice) and s 449E(7) (distribution of remuneration report), so that the administrators would be required only to give notice to those identified as Group Member Claimants by the filtering process to which reference has been made, to the solicitors acting for the lead plaintiffs in each of the class actions, to the Group Member Claimants by email (where they have an email address) and otherwise by post or fax, and generally by publication in appropriate places (the ASX, the administrators' website, and the Financial Review). These proposals were uncontroversial, and provide a sensible and cost-effective combination of means of bringing the relevant information to the notice of Group Member Claimants. Consistent with the object of s 600H(1)(a) of reducing costs, other potential subordinate claimants (not being Group Member Claimants), if there are any, will remain entitled to receive a copy only if they ask; but publication of the notice in accordance with the orders would bring to attention their right to do so.

Time for proofs and proxies

1. The administrators seek an order, pursuant to s 447A, modifying the operation of Corporations Regulations, reg 5.6.23, so that potential subordinate claimants are not entitled to vote unless their claims have been admitted by the administrator, or they have lodged particulars of their claim or a formal proof by the date and time set out in the notice of meeting as the time by which proofs and proxies are to be submitted. Such an order is sought in order to avoid any argument about the entitlement of the administrators to disregard claims lodged after the specified time.
2. Corporations Regulation, reg 5.3A.03AB, provides: 5.3A.03AB Notice of meeting to decide the company's future (1) This regulation is made for paragraph 439A(3)(b) of the Act. (2) The information about a meeting that is to be set out in a notice is at least the following information: (a) the name of the company; (b) any trading name of the company; (c) the ACN of the company; (d) the section of the Act under which the notice is being given; (e) the time, date and place for the meeting; (f) the purpose for which the meeting is being convened under that section; (g) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted; (h) the name and contact details of the administrator.
3. In my view, it is implicit in clause 2(g) that proofs and proxies submitted after the specified time are not validly submitted and may be disregarded. While I do not consider it appropriate to engage s 447A to modify the operation of Part 5.3A in this respect, lest there be doubt I am prepared to advise the administrators, under (former) s 447D, that they would be justified in rejecting proofs and proxies received after the date and time so specified.

Restriction on resolution affecting priority

1. The administrators also seek an order, pursuant to s 447A, modifying the operation of Corporations Regulations, reg 5.6.23, so that if any resolution is proposed which contemplated a distribution to potential subordinate claimants before all other debts and claims are paid, the Chair is not required to put it to a vote unless and until it has been passed by creditors other than potential subordinate claimants.
2. A resolution that had the effect of enabling a distribution to subordinate claimants before all other debts and claims were paid would be inconsistent with the statutory order of priorities, and a DOCA which had that effect would be liable to be set aside. It is plain that the purpose of s 563A would be frustrated if, by mustering a majority at the s 439A meeting, the subordinate claimants could procure for themselves a greater priority than that which the Act intends them to enjoy.
3. It does not seem to me that this has anything to do with reg 5.6.23. However, Corporations Act, s 439C(a), specifically contemplates that the creditors may resolve that the company execute a DOCA even if it differs from any proposed deed referred to in the notice of meeting. It is not apparent that Part 5.3A otherwise precludes the creditors from resolving that the company execute a DOCA which would alter the priorities, although such a DOCA might well be liable to be set aside. By requiring the prior approval of the class of ordinary creditors for any such resolution, the potential for the meeting to require the company to execute a DOCA which would be liable to be set aside on that basis is mitigated. In the present context, it is plainly desirable that the operation of Part 5.3A be modified to the extent necessary to ensure that the subordinate claimants cannot, at least without the concurrence of the ordinary creditors, use their numbers to enhance their priority.

Just estimate

1. Finally, and more controversially, the administrators seek an order, pursuant to s 447A, modifying the operation of Corporations Regulations, reg 5.6.23, so that the Chair may admit any group member claimant (including those who have lodged sufficient particulars of their debt or claim or a formal proof) for a just estimate of $1.
2. Regulation 5.6.23 (which is made applicable to a meeting of creditors convened under Part 5.3A, by reg 5.6.11) relevantly provides: 5.6.23 Creditors who may vote (1) A person is not entitled to vote as a creditor at a meeting of creditors unless: (a) his or her debt or claim has been admitted wholly or in part by the liquidator or administrator of a company under administration or of a deed of company arrangement; or (b) he or she has lodged, with the chairperson of the meeting or with the person named in the notice convening the meeting as the person who may receive particulars of the debt or claim: (i) those particulars; or (ii) if required - a formal proof of the debt or claim. (2) A creditor must not vote in respect of: (a) an unliquidated debt; or (b) a contingent debt; or (c) an unliquidated or a contingent claim; or (d) a debt the value of which is not established; unless a just estimate of its value has been made.
3. Regulation 5.6.26 (which is also made applicable to a meeting of creditors convened under Part 5.3A, by reg 5.6.11) provides: 5.6.26 Admission and rejection of proofs for purposes of voting (1) The chairperson of a meeting has power to admit or reject a proof of debt or claim for the purposes of voting. (2) If the chairperson is in doubt whether a proof of debt or claim should be admitted or rejected, he or she must mark that proof as objected to and allow the creditor to vote, subject to the vote being declared invalid if the objection is sustained. (3) A decision by the chairperson to admit or reject a proof of debt or claim for the purposes of voting may be appealed against to the Court within 10 business days after the decision.
4. In a case to which reg 5.6.23(2) applies, the administrator must attempt to ascribe a "just estimate" to the claim. [8] An administrator may admit a claim for voting purposes, with a nominal "just estimate" of $1, where the claim cannot be quantified by a just estimate but it appears that the creditor is a creditor for at least some amount (such as where the debt is subject to an uncertain contingency), [9] or where there is no or limited material from which a conclusion as to the just value of the debt can be drawn, [10] or where it is almost impossible to ascribe a value to the claim, [11] or where a claim is an "all or nothing" one and there is no realistic intermediate figure, as Giles JA explained in Kirwan v Cresvale Far East Pty Ltd: [12] [244] Did Mr Gould act improperly in ruling that a just estimate of the value of Newland's claim could not be made? On the information he had, it was an all or nothing claim. If representations justifying termination of the underwriting agreement had been made, there was no liability. If the underwriting agreement remained, there was a liability of $1,576,277. On one view, it was not a question of valuing the claim at all, because it was not a true contingent debt or claim or one the value of which (if there was a debt or claim at all) was not established: Mr Gould's doubtful use of "contingent" in the report to creditors has earlier been noted. (According to the minutes of the meeting, however, Mr Dubler shared this use of the word.) On another view, it would have been appropriate to give the claim a justly estimated nominal value, see re Zambena Pty Ltd (1995) 13 ACLC 1020 and National Australian Bank Ltd v Market Holdings Pty Ltd (2001) 161 FLR 1. On another view, a just estimate of the value could not be made because it was all or nothing and there was no realistic in-between figure. The inter-action between reg 5.6.23 and reg 5.6.26(2) is not clear, and has exercised judicial minds.
5. For the administrators, it was submitted that it was appropriate to dispense with the requirement for the administrators to make any just estimate other than a nominal one, by invoking s 447A, because of the difficulties that the administrators are likely to encounter in doing so, having regard to (1) evaluating the prospects of success, (2) the various alternative approaches to estimating the losses (which would not necessarily be the same for all claimants), (3) the complexities involved in each of those approaches, (4) the likely absence of sufficient evidence at this stage to undertake any of them, (5) the sheer number of such claims (potentially up to 3,313), and (6) the time and financial cost of the exercise required. The administrators' object is to avoid controversy about the quantum for which class members' claims are admitted - it being said that it is inevitable that, given the manifold ways of assessing the claims, there will be dispute, whatever estimate is arrived at - and thus to circumvent any potential appeal from a "just estimate".
6. I do not consider that the circumstances that the claims may be numerous and their valuation complex and time consuming affords sufficient reason for not undertaking the exercise at all. Reg 5.6.23 does not require that an administrator undertake a detailed inquiry; the process is necessarily of a "somewhat summary nature", as Barrett J (as he then was) has explained in Selim v McGrath (emphasis added): [13] [103] It is here that a difference between proof in a winding up and proof for Pt 5.3A voting must be noted. Any estimate of value undertaken pursuant to reg 5.6.23(2) - as well as any decision under reg 5.6.26(1) to admit or reject - will, of necessity, be of a somewhat summary nature. A decision of the latter kind, as I have said, can only be undertaken by the chairperson, which means that the meeting will either have started or be about to start. The same will be true of any reg 5.6.23(2) estimate, if, as I consider likely, the correct view is that the function of making such an estimate is a function to be performed by the chairperson. Even if it is a function of the administrator as such, the fact that it is a function that the legislation envisages only in relation to a meeting means that it will be undertaken, at the earliest, a short time before the time at which the meeting is to start. The situation is accordingly not one in which extensive debate and deliberation will be possible. As far as the reg 5.6.26 function of admitting or rejecting is concerned, this is borne out by the fact that there is express provision acknowledging that the chairperson may be in doubt as to the correct course to take. In that instance, it is not expected that the chairperson will resolve the doubt. So too, it seems to me, reg 5.6.23, in requiring a just estimate of value to be made, does not contemplate that the chairperson or administrator will undertake any detailed inquiry. He or she will do the best that can be done by reference to the factual material the claimant furnishes, viewed in the total context with which the decision-maker is dealing. If that material provides reasonable grounds, within that context, for ascribing a particular figure to the particular claim, the chairperson or administrator is no doubt expected to accept that position. If, on the other hand, there is little or no material from which a conclusion as to value can be drawn, a just estimate may be zero or perhaps the nominal amount of $1.00, assuming that admission is warranted at all
7. Those observations do not mean that the exercise need not be undertaken where it is complex; rather, they means that despite the complexity of the exercise, the administrators are entitled to take a robust, rough and ready approach to evaluation. There is a difference between a summary approach, and an arbitrary one. Proofs have not yet been called for, let alone received. It is not inconceivable that when proofs are called for, claimants may be able to articulate the quantum of their claim. The claimants will bear the onus of adducing sufficient material to enable the administrators to evaluate their claims, and if they do not, then they are likely to be admitted for $1 only. But if they quantify their claim and explain the basis of it, it may well be practicable for the administrators to make a summary assessment of its value. On the other hand, it may eventuate that, for some or all of the reasons given by the administrators, they would be justified in assigning only a nominal value to some or all of the subordinate claims for the purposes of voting at the s 439A meeting. But they should not at this stage be exonerated from even attempting to do so.
8. Moreover, it is far from clear that the course proposed will avoid dispute. If there is controversy at the s 439A meeting, the likely line of division of interests will be between ordinary unsecured creditors on the one hand, and subordinate claimants on the other. If subordinate claimants are admitted for only $1, they are likely to constitute a majority by number, but a minority by value, in which case the administrator will have a casting vote, and a creditor who votes against the resolution may apply to the court to review the resolution. [14]
9. Nor am I persuaded that, assuming without deciding that by resort to s 447A it could be done, it is appropriate to circumvent the rights given to creditors in this way. Effectively removing a right of appeal from an administrator's decision on admission of a proof, even only for voting purposes, is a significant erosion of creditors' rights.
10. It follows that the administrators should not be permitted to admit the subordinate claimants for $1 only, without making a genuine - albeit summary - attempt to make a "just estimate" of those claims.

Orders

1. The Court therefore orders that: 1. Pursuant to Corporations Act, s 600H(1)(b): 1. all persons who: 1. acquired an interest in SGL's shares in the period from: (1) 27 August 2015 to 24 February 2016 (inclusive) and who still held those shares on 25 February 2016, 3 May 2016 or 9 June 2016; (2) 25 February 2016 to 2 May 2016 (inclusive) and who still held those shares on 3 May 2016 or 9 June 2016; or (3) 3 May 2016 to 9 June 2016 (inclusive) and who still held those shares on 8 June 2016; 2. acquired an interest in SGL's shares in the period 23 October 2015 to 9 June 2016 and still held those shares on any of 25 February 2016, 3 May 2016 or 9 June 2016; or 3. acquired an interest in SGL's shares prior to 23 October 2015 and retained those shares after 23 October 2015, (together, "Group Member Claimants"); and 1. any person who may have a subordinate claim within the meaning of section 563A(2) of the Corporations Act ("Potential Subordinate Claimant") who is not a Group Member Claimant and who is able to establish a claim against SurfStitch Group Limited ("SGL") in accordance with Corporations Regulations 2001, cl 5.6.23; is entitled to vote at a meeting during the external administration of SGL, including the second meeting of creditors referred to in Corporations Act, s 439A ("the Second Meeting"), in their capacity as a creditor of SGL. 1. Pursuant to Corporations Act, s 447A(1), the operation of Corporations Act, ss 439A(3), (4) and 449E(7) in relation to SGL is modified, in connection with the giving of notice convening the Second Meeting to Potential Subordinate Claimants, so that the administrators are required only to: 1. send the notice convening the Second Meeting required by s 439A(3) ("the Notice") accompanied by the report and statements prescribed in s 439A(4) ("the Report") to all Group Member Claimants in the manner set out in paras (b) to (g) below; 2. for the purposes of notifying the Group Member Claimants referred to in para (a), the Administrators are to identify the Group Member Claimants through the process set out in paragraph 38 of the affidavit of Joseph Ronald Hansell sworn 7 December 2017; 3. for the Group Member Claimants who are group members in the proceedings TW McConnell Pty Ltd ACN 000 217 890 as trustee for the McConnell Superannuation Fund v SurfStitch Group Limited ACN 602 288 004 (Administrators Appointed), before the New South Wales Supreme Court (proceedings number 2017/193375), the Administrators are to send the Notice and the Report to Gadens Lawyers, the solicitors acting for the representative litigant in those proceedings, by email to glenn.mcgowan@gadens.com, at least 5 business days before the Second Meeting; 4. for the Group Member Claimants who are group members in the proceedings Nakali Pty Ltd ACN 062 473 830 v SurfStitch Group Limited ACN 602 288 004 (Administrators Appointed) and Anor, before the New South Wales Supreme Court (proceedings number 2017/347082), the Administrators are to send the Notice and the Report to Johnson Winter & Slattery Lawyers, the solicitors acting for the representative litigant in those proceedings, by email to joseph.scarcella@jws.com.au, at least 5 business days before the Second Meeting; 5. for the Group Member Claimants for whom the Administrators have an email address, the Administrators are to send the Notice and the Report to those Group Member Claimants by email at that address, at least 5 business days before the Second Meeting; 6. for any Group Member Claimant who is not referred to in para (e), the Administrators are to send, by post or fax, at least 10 business days before the Second Meeting: 1. the Notice; 2. an informal proof of debt form; 3. a form of proxy; and 4. a circular which sets out (1) the website maintained by the Administrators from which the Report, the report referred to in section 449E(7)(a) and any other document provided to a creditor referred to in order 2(e) is available for download, (2) a statement that such material can be sent to the creditor by post on written request free of charge and (3) a statement that such material is available for inspection at SGL's head office at Burleigh Heads or the Administrators' offices in Sydney. 1. the Administrators are to publish, at least 5 business days before the Second Meeting: 1. the Notice, on the platform maintained by the Australian Securities Exchange; and 2. the Notice and the Report, on the website maintained by the Administrators in respect of the administration of SGL: http://www.fticonsulting-asia.com/cip/SurfStitch-group-limited; and 3. the Notice, in an advertisement in The Australian Financial Review newspaper for one day. 1. Pursuant to Corporations Act, s 447D, the Administrators would be justified, in accordance with s 600H(1)(a), in not giving the Notice or the Report to other Potential Subordinate Claimants, who are not Group Member Claimants, unless such person asks the Administrators in writing for a copy of the Notice and/or Report. 2. Pursuant to Corporations Act, s 447D, the Administrators would be justified in rejecting for the purposes of voting at the Second Meeting the claim of any Potential Subordinate Claimant which has not been admitted by the Administrator and particulars or formal proof of which has not been lodged by the time and date set out in the Notice as the time and date by which proofs of debt and proxies for the meeting, are to be submitted. 3. Pursuant to Corporations Act, s 447A, the operation of Corporations Act, ss 439C(a) in relation to SGL is modified, so that the creditors may not resolve that the company execute a deed of company arrangement which contemplates a distribution to Potential Subordinate Claimants before all other debts payable by and claims against SGL are satisfied, unless and until the resolution has first been approved by the creditors other than the Potential Subordinate Claimants. 4. Within 5 business days of the making of these orders, the Administrators are to take all reasonable steps to give notice of the orders to the Companies' creditors (including the Group Member Claimants) by means of a circular: 1. for the creditors other than the Potential Subordinate Claimants, sent by email transmission to creditors for whom the Administrators have a current email address and by ordinary post to creditors for whom the Administrators have only a postal address; and 2. for Group Member Claimants, in the manner described in Order 2(c), (d), (e) and (f) above. 1. The Plaintiffs' costs and the costs of the intervener Nakali Pty Limited of and incidental to this application be costs and expenses in the administration.

Endnotes

1. An earlier extension was granted by order of the Federal Court of Australia on 15 September 2017: see Park, in the matter of SurfStitch Group Limited [2017] FCA 1221 (Gleeson J).
2. In the matter of SurfStitch Holdings Pty Limited [2017] NSWSC 1827 (Black J).
3. See Corporations Act, s 1605, and the definition of "old Act" in s 1551; In the matter of SurfStitch Holdings Pty Limited [2017] NSWSC 1827 at [8] (Black J).
4. See par (a) of the definition of "external administration" in s 600H(2); Re QRxPharma Ltd [2015] FCA 1140; (2015) 235 FCR 456 at p[23]; In the matter of TEN Network Holdings Limited [2017] NSWSC 1247 at [160].
5. Explanatory Memorandum to the Corporations Amendment (Sons of Gwalia) Bill 2010 at [2.12].
6. Thus the Revised Explanatory Memorandum to the Corporations Amendment (Sons of Gwalia) Bill 2010, clause [1.15], states that, in determining whether to exercise its discretion under s 600H, a court might be expected to have regard to whether the person might reasonably be considered to possess "a real financial interest in the external administration": see Re Atlas Iron Ltd [2016] FCA 366; (2016) 112 ACSR 554 at [46].
7. Re Boart Longyear Ltd (No 2) [2017] NSWSC 1105 at [259]; In the matter of TEN Network Holdings Limited [2017] NSWSC 1247 at [161].
8. Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612 at [82]; Selim v McGrath [2003] NSWSC 927; (2003) 47 ACSR 537 at [82]-[103]; Kirwan v Cresvale Far East Pty Ltd (2002) 44 ACSR 21 at [395] (Young CJ in Eq).
9. Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612; Selim v McGrath [2003] NSWSC 927; (2003) 47 ACSR 537 at [82]; (2003) 47 ACSR 537; Re Sovereign MF Ltd (in liq) [2014] VSC 681 at [100].
10. Selim v McGrath [2003] NSWSC 927; (2003) 47 ACSR 537 at [103].
11. Kirwan v Cresvale Far East Pty Ltd (2002) 44 ACSR 21 at [395] (Young CJ in Eq).
12. (2002) 44 ACSR 21 at [244] (Giles JA).
13. [2003] NSWSC 927; (2003) 47 ACSR 537 at [103].
14. Corporations Act, s 600B, s 600C.

Amendments 02 March 2018 - Typographical errors at 27(f)(iv) and 27. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2018