Boys, in the matter of 38 Akuna Pty Ltd (Deregistered) v Australian Securities and Investments Commission

C Relevant background 3 38 Akuna was registered in October 2006. On 1 April 2011, a contract was exchanged between Mr Boys and 38 Akuna in respect of a unit in the development, and that contract was completed in September 2013. 4 The relevant contract contained provisions which Mr Boys alleges represented that the sale was a taxable supply and the purchase price included GST. Mr Boys will further allege that he believed at the time of exchange of contracts and the completion of the sale that: (a) the sale of the apartment constituted a taxable supply; (b) the purchase price included a component of GST; (c) 38 Akuna would calculate the component of GST using the margin scheme; and (d) 38 Akuna would remit the GST component of the purchase price to the Commissioner of Taxation (Commissioner). 5 Mr Boys seeks to advance a case similar to two cases currently in my docket, being Part IVA representative proceedings, which seek the recovery of money which was retained instead of being remitted to the Commissioner. In the existing class actions, those claims have been advanced as being for monies had and received, breach of contract and statutory compensation for the contravention of misleading or deceptive conduct and unconscionable conduct norms in relevant consumer protection legislation. 6 Returning to the chronological narrative, in December 2015, a resolution was passed that 38 Akuna be wound up voluntarily pursuant to s 491(1) of the Act and that Mr Henry Kazar and Mr Aaron Torline be appointed as liquidators of 38 Akuna. In August 2016, a conversation took place during which the liquidators first became aware that there may be a party who purported to be a creditor of the company. This was referred to in a letter dated 16 August 2016 from Mr Kazar to Mr Bede Webster (a solicitor with an organisation called "Just Dispute Resolution"), during which reference was made to a conversation where Mr Webster had advised Mr Kazar that he represented a party which may be a creditor as a result of transactions which took place prior to the appointment of liquidators. 7 In that letter, Mr Kazar indicated: In order for us to assess the merits of your client's claim, and to determine a future course of action in respect to the liquidation, we request that your client substantiate any claim they may have against [Akuna 38] by no later than close of business 24 August 2016. 8 A formal proof of debt form was enclosed and it was said that if particulars of the claim were not provided by the date specified, the liquidators proposed to proceed with finalising the liquidation and resign as liquidators on 29 August 2016 with the effect that the company would be deregistered at the end of November 2016. 9 On 23 August 2016, a listed litigation funder, IMF Bentham Limited (IMF), noted that it was investigating a potential class action against various property developers in the ACT. This notification indicated that a person may be entitled to join a class action if: (a) they purchased a residential unit in the ACT directly from a developer; (b) the purchase settled in the previous six years; and (c) the contract stated that GST was included in that transaction. As I have already noted, Mr Boys alleges that he is someone who has these characteristics. What then appears to have occurred is that the letter of 16 August 2016 from the liquidators to Mr Webster, to which I have already referred, was passed onto Corrs Chambers Westgarth. 10 On 24 August 2016, a partner of that firm, Mr Mark Wilks, wrote to the liquidators indicating that they were in the process of obtaining instructions from persons who entered into contracts for the sale of residential units and, once that process had been completed, the firm anticipated being instructed to commence proceedings. It was said that due to the number of persons who entered into contracts for sale with the company, the proceeding would likely be commenced as a class action and that the amount of the claim was likely to be substantial. The letter then noted that in the circumstances recounted: …we trust that the joint and several liquidators will not take any steps to finalise the liquidation and cause the deregistration of company. 11 The following day, a letter was sent by Mr Torline to Mr Wilks, which noted that the final meeting of 38 Akuna had been arranged to be held on 29 August 2016 but indicated that the liquidators intended to adjourn the final meeting for a period of three months: ... to allow your client(s) an opportunity to formalise their claim(s) against [38 Akuna], noting that the adjourned meeting may be subsequently adjourned if required. We intend to provide you (sic) formal notice of the adjourned final meeting once it has been convened. In the interim, as soon as practicable, and in any event within three months, we request that you provide further particulars of your clients' claims and advise whether you intend to seek leave of the Court pursuant to section 500(2) of the Act to commence proceedings against [38 Akuna]. 12 On 2 September 2016, Mr Wilks responded. From the terms of that response, it is evident that there had been telephone discussions in the intervening period. The letter commenced by noting that the final meeting did not proceed due to a lack of quorum. It was then noted that instructions were continuing to be sought and Mr Wilks wrote: Whilst that process continues, we are preparing a claim against [38 Akuna] along with an application seeking leave of the Court pursuant to s. 500(2) of the [Act]. We will provide you with the relevant Court documents in due course. 13 Again, there appears to have been some telephone communications between Mr Wilks and the liquidators after the letter of 2 September 2016 and, on 12 September 2016, Mr Torline wrote to Mr Wilks attaching correspondence from Maxim Chartered Accountants requesting that the liquidators conduct the voluntary liquidations of certain companies, which included 38 Akuna. The attached correspondence included information which apprised Corrs Chambers Westgarth of the following facts: that 38 Akuna was a trustee company only; that it did not trade in its own right; that it acted as a trustee for a trust known as the "38 Akuna Trust" (which had ceased trading); that it had lodged its final return; and that the trust had now vested. It also indicated that the liquidators were in the process of lodging a "nil" final return. Also, significantly, during a telephone conversation on the same date as Mr Torline's email, Corrs Chambers Westgarth were informed by the liquidators that they intended to lodge final accounts with the respondent (ASIC) on 19 September 2016. 14 It is convenient to pause here to note that s 509(1) of the Act provides that if "an end of administration return for a company is lodged with ASIC on the basis that the affairs of the company are fully wound up, ASIC must deregister the company at the end of the period of 3 months beginning on the day after the return is lodged". This three-month period is a safeguard to enable "persons who are affected to come in and make a claim": see Emergen-X Pty Limited (in liquidation), in the matter of Emergen-X Pty Limited (in liquidation) [2010] FCA 487 at [16]. Although it is not suggested that it was known to the liquidators, two days after this correspondence, on 14 September 2016, Magistrate Morrison delivered judgment in the Magistrates Court of the Australian Capital Territory in Belconnen Lakeview Pty Ltd v Maya Krishna Goundar [2016] ACTMC 10. In that case, a developer was seeking common law damages in respect of the failure to complete a contract of sale following the service of a notice to complete. 15 The case involved a question of whether or not the vendor was entitled to call for completion. Similar issues to those that are currently raised were discussed by the Magistrate. It is unnecessary to go into the detail, but his Honour did not accept that the evidence supported a finding that liability for GST (and access to credits for items which were input taxed for GST purposes), had been taken into account in determining the level of profit in the project and therefore did not have an indirect effect on the asking prices of the units for sale purposes: see [90]. The Magistrate also rejected a defence which seemed to proceed on the basis that any damages were to be reduced because of breaches of various statutory norms or by reason of some unconscionable conduct. 16 Nothing then relevantly occurred until 25 October 2016, when Corrs Chambers Westgarth contacted Mr Graham Potts, the managing director of what was described as the "Amalgamated Property Group". This group had a number of subsidiaries and related parties which, it is common ground, included 38 Akuna. Mr Wilks, in this letter, again indicated that Corrs Chambers Westgarth acted for persons who purchased residential units in various developments and reiterated the likelihood that persons who entered into such contracts would commence proceedings. Reference was also made to IMF being the proposed provider of litigation funding and it was said that it was anticipated that proceedings would be commenced within the next three months "unless an alternative arrangement is reached". Further, it was said that there would be further communication to provide more details as to the claims with respect to each of the developments, which included the Manhattan on the Park development. An entreaty was also made to retain documents and the advice (or perhaps warning) was given that the various companies may wish to notify their insurers. 17 On 13 November 2017, a further letter was sent to Mr Potts which set out the detailed background, identified the causes of action proposed to be advanced and noted that one proceeding (NSD1417/2017) raising allegations of the type canvassed in the letter had recently been commenced in this Court. 18 It is evident that this letter was in a form which sought to comply with the obligation in s 4 of the Civil Dispute Resolution Act 2011 (Cth) to take genuine steps to resolve the claim before proceedings are instituted. No response was received to either of these letters from Mr Potts and although copies were sent to the liquidators (who had ceased to be liquidators on 19 September 2016), no communication was received by Corrs Chambers Westgarth from the former liquidators. 19 The company was deregistered on 22 December 2016, that is, some 11 months prior to the sending of the letter of 13 November 2017. The liquidators, by that stage, had been retired for a period in excess of 12 months. On 8 December 2017, a further letter was sent to Mr Potts in which it was indicated that the inference was being drawn, from his lack of any response to previous communications, that Mr Potts did not wish to engage with the clients of Corrs Chambers Westgarth in respect of the matters raised. 20 On 24 July 2018, a funding offer was made by IMF to proposed liquidators of 38 Akuna, setting out the details of the funding of the proceeding, and shortly thereafter, in August 2018, Corrs Chambers Westgarth contacted ASIC and asked whether ASIC was willing to investigate the claim of Mr Boys and the potential claims of other purchasers in the Manhattan on the Park development and, if ASIC did not propose to take any steps, whether it consented to an application by Mr Boys to reinstate 38 Akuna. 21 The position of ASIC is that they submit to any orders that the Court makes in relation to the applications save any order as to costs. 22 Having identified the relevant background, I now turn to consider whether I should make the orders sought.

Whether Reinstatement is Just 27 In In the matter of ERB International Pty Limited (deregistered) [2014] NSWSC 200; (2014) 283 FLR 223 at 225 [5], Brereton J observed: The provision that the court "may" order reinstatement if satisfied that it is "just" to do so has been said to confer a broad discretionary judgment on the Court. Relevant considerations include the circumstances in which the company was de-registered, the purpose in seeking its re-instatement, whether any person is likely to be prejudiced by reinstatement, and the public interest generally: Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688 at [27]-[28]; Promnitz v Australian Securities and Investments Commission (2004) 22 ACLC 108 at [19]-[20]; JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu (2008) 167 FCR 212 at [4]; AMP General Insurance Ltd v Workcover Authority (Vic) (2006) 15 VR 175. 28 As can be seen, what is involved in determining whether reinstatement is just, is a wide discretion which involves a number of considerations, including the circumstances surrounding the company's deregistration, the use that might be made of the reinstatement, and the prejudice any person may suffer as a result of the reinstatement. Where reinstatement is sought for the purpose of pursuing litigation by a creditor or a potential creditor, it has been said that the applicant must demonstrate that there is an arguable cause of action. It is not, however, appropriate to consider, in any granular detail, the matters which may be the subject of the dispute: ERB International Pty Limited at 227-228 [12]-[16]. 29 It is at this stage of the analysis that counsel for the interested party, Mr Potts, made a number of submissions as to why reinstatement ought be refused. Mr Potts, to whom reference has been made above, was relevantly the sole director of 38 Akuna at the time of its deregistration. Having already dealt above with the argument made by Mr Potts that the plaintiff was not a person aggrieved, I now turn to the other matters relied on by Mr Potts. 30 The first issue raised was that the company's affairs have been fully wound up in accordance with the deregistration process contemplated by s 509 of the Act. The evidence reveals, it is said, that the allotted three-month period did not cause any claims to be brought forward, notwithstanding that the solicitors currently engaged for the plaintiff were apprised of information as to the nature of the claims and, indeed, had gone so far as to indicate that a claim would be made. 31 I am conscious of the fact that there should be some reluctance in interfering with the affairs of deregistered companies which have gone through a process of winding up of their affairs in an orderly manner. I am also conscious of the fact that it was as early as 24 August 2016 that there was an anticipation that proceedings were to be commenced. Despite this and later communications foreshadowing a claim, it was not brought. Contrary to the submissions of Mr Potts, however, I do not believe it is safe to infer that this was a decision made by reason of some adverse view taken as to prospects following the decision of the Magistrates Court. This would be idle speculation and no inference of this type could be safely drawn simply by reason of the failure of Mr Wilks to give evidence on this application. 32 What is far more likely to have been the case, is that there was a process of considering how the proceeding ought to be framed and whether at that time, the solicitors had sufficient material in their possession to maintain the claim and whether such a claim could be funded. Indeed, when this matter first came before me, it was notable that counsel for the plaintiff could not say that they had a reasonable basis, at that moment, to commence a claim because of the deficiency in the information then available. 33 In particular, as was later explained by counsel for the plaintiff, any claim was contingent on identifying whether the provisions introduced by the Tax Laws Amendment (2011 Measures No. 9) Act 2012 (Cth) applied such that the sale of Mr Boy's apartment was input taxed. Until material was recently produced upon the return of subpoenas, it was unclear as to whether or not that was the case, although this is now no longer a matter of disputation. During the course of argument today, counsel for Mr Potts accepted that there is at least an arguable case. 34 Even though the identification of the existence of an arguable case has taken some time, having only reached a level of certitude following the recent production of documents (despite the solicitors for Mr Boys previously indicating an unqualified intention to commence proceedings), it seems to me that the existence of an arguable cause of action is an important factor favouring the relief sought. 35 Secondly, it is said that a proper investigation took place during the course of the liquidation. More specifically, the liquidators properly discharged their obligations to identify whether there were any claimants who wished to make a claim against the company and gave them an opportunity to bring claims forward. It is inappropriate for me to reach definitive findings concerning the extent of the investigation undertaken by the liquidators. I am conscious of the fact that they have not been heard. Having said that, the material to which I have been taken and which has been summarised above, seems to indicate that no detailed investigation was undertaken by the liquidators of the nature of the claims advanced or the possibility that 38 Akuna may have causes of action against third parties. 36 There may, of course, be sound reasons as to why certain steps were not taken, but the fact is that notwithstanding that a claim had been identified, the deregistration of the company took place without steps apparently being taken by the liquidators to investigate matters. Counsel for Mr Potts submitted that the conduct was entirely understandable, given that it had been indicated that claims against the company were being investigated by those seeking to bring them and that proceedings were to be commenced. Notwithstanding this, even though I do not believe it is appropriate I find that there was some want of attention by the liquidators, the fact that it appears that there has not been a thorough investigation (at least on the material in evidence) is a factor which is relevant in pointing towards the appropriateness of the relief sought being granted. 37 Thirdly, Mr Potts referred to the lapse of time between the deregistration and the application for reinstatement, noting that courts have been, on a number of occasions, very reluctant to reinstate companies in circumstances where there has been some operative delay: du Boulay v Worrell [2009] QCA 63 at [57]. Although relevant, I do not consider that there is significant merit in this point. It is unclear precisely what occurred between 12 September 2016, when Corrs Chambers Westgarth was informed by the liquidators that they intended to lodge final accounts, and the first letter to Mr Potts of 25 October 2016. It is also somewhat obscure as to why the long period then elapsed until the next communication of 13 November 2017. It is reasonable to suppose, however, that this delay seems at least partly related to the fact that there were other similar proceedings commenced in August 2017, and that funding was not secured until July 2018. Irrespective of the correctness of this supposition, although it is a factor in the discretionary mix, I do not think that the delay has been so significant as to factor heavily in the analysis. 38 Fourthly, it was asserted that there was a lack of evidence as to whether the company even has any assets and liabilities and indeed the only evidence is that the company, when deregistered, had no assets and liabilities. This is true insofar as it goes, but there are a number of points that could be made in response. One is that the evidence is silent on whether 38 Akuna had insurance that might respond to any claim. As a general proposition, the Court ought not refuse an application for reinstatement if there is uncertainty about the existence of any insurance or the availability of a claim against the insurer who provided such insurance. The position here is slightly weaker in that given the nature of the business activities carried on by 38 Akuna, it is not self-evident that it is likely that there would be an insurance policy. But leaving aside the question of insurance, the prospect exists that investigations could be carried out to identify other assets. In Deputy Commissioner of Taxation v Australian Securities and Investments Commission; in the matter of Civic Finance Pty Limited (Deregistered) [2010] FCA 1411; (2010) 81 ATR 456 at 467-468 [27], Jagot J found there would be real utility in allowing investigations to be undertaken to identify any assets that may be applied to meet a company's tax obligations in circumstances where, such as here, there was a willingness to fund investigations by a liquidator - even though the results and potential remedies arising from such investigations could not be known until they occurred. Here, the fact that IMF is willing to fund investigations is a highly relevant consideration in that it means if reinstatement occurs, any liquidator would be indemnified for the costs of any investigations including, importantly, any rights of indemnity out of the trust assets or claims against further directors or advisors that may respond to the plaintiff's claim. 39 Fifthly, Mr Potts submitted that the claim advanced either against 38 Akuna or the possibility of 38 Akuna taking steps to seek to establish a claim against third parties, was not sufficiently arguable so as to militate in favour of reinstating the registration. As noted above, the nature of this application does not involve a minute examination of the strength of the claims. It is not entirely irrelevant that there are two other very similar claims in my docket which raise substantial matters for trial, and there is nothing on the material that I have seen which would suggest to me that the same could not be said of the matters that may be able to be advanced in the claim against 38 Akuna, if such a proceeding was commenced. The fact that third party claims may be, at this stage, somewhat speculative may be true, but if I was otherwise persuaded that it was appropriate to reinstate, then this does not seem to me to be a significant factor. 40 Finally, much reliance was placed by Mr Potts on the decision of Chesterman J in du Boulay v Worrell [2008] QSC 174 at [26]-[29] which was subsequently upheld by the Court of Appeal of Queensland. In the paragraphs identified, his Honour referred to propositions which appear to me to be entirely uncontroversial: in particular, that in considering whether it is just that a company's registration be reinstated, there is a need to have regard to (at [26]): ... the circumstances in which the company came to be deregistered; what good would come from reinstatement and whether reinstatement would be prejudicial … 41 In the circumstances of that case, like here, such an enquiry involved consideration of whether there was an arguable cause of action, the likelihood the cause of action will be prosecuted, the amount likely to be recovered, and also the lapse of time between de-registration and application for reinstatement. I have already dealt with these matters in the course of my consideration of the other arguments advanced on behalf of Mr Potts. There is a danger in cases such as this in descending into a mechanical comparison with other cases, each of which turn upon their own facts. In the end, the discretion is wide, and the satisfaction that it is just that a company's registration be reinstated is an evaluative view which is informed by, and depends upon, a multi-factorial assessment of all the relevant circumstances. 42 Drawing these threads together, even though I am not satisfied that there was anything irregular or improper in the circumstances of the deregistration of 38 Akuna on the current evidence, I am satisfied that there is an arguable cause of action against the company, which is available to be advanced in circumstances where the litigation is funded. Despite earlier equivocation by Mr Boys, it now appears that the relevant material is available, which means that the litigation is likely to proceed. 43 Having said this, I am conscious of the fact that there might be two matters that would mean litigation would not proceed. 44 The first would be that investigations indicate that such litigation would not be utile because there are no available assets. Secondly, it might be that following the determination of the two other cases in my docket, a judgment might be obtained which may mean that the controversy between Mr Boys, the group members, and 38 Akuna may not need to be litigated. All of this is presently unclear, but it does seem to me just that in the circumstances, investigation takes place to determine whether litigation should be commenced or maintained, and that there is, at present, at least some prospect that Mr Boys (and potentially putative group members) could receive some distribution in the winding-up of the company. The issues of delay and lapse of time to which I have referred do not seem, to me, to be significantly important to detract from the overall evaluative assessment that it is just that the company be reinstated.

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