BP Australia Ltd v Brown

Supreme Court of NSW|2004-03-12|Before: Barrett J

Reported Decision : 48 ACSR 723 (2004) 22 ACLC 449

CITATION : McGrath & Ors re HIH Insurance Ltd (In Liq) [2004] NSWSC 165 HEARING DATE(S) : 10/03/04, 12/03/04 JUDGMENT DATE : 12 March 2004

JURISDICTION: Equity Division Corporations List JUDGMENT OF : Barrett J DECISION : Extension granted

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

1876/04 - ANTHONY GREGORY McGRATH and ALEXANDER ROBERT MACKAY MACINTOSH AS JOINT LIQUIDATORS OF THE HIH COMPANIES & ORS

1 In the course of the last week, the court has had before it several applications by the HIH liquidators seeking extensions of time under s.588FF(3)(b) of the Corporations Act 2001 (Cth) in respect of foreshadowed proceedings under s.588FF(1) against identified persons. The relevant proceedings are 1790/04, 1839/04, 1877/04, 1878/04 and 1879/04. One of the applications is as yet undetermined and will be before the court again after this judgment is delivered. 2 The HIH liquidators also make a non-specific application in this proceedings, 1876/04. The form of order claimed in the originating process is: "An order extending to a date 12 months from the date of filing this application, or such other period as the court thinks fit, the period within which the plaintiffs may make an application under section 588FF(1) of the Act with respect to any voidable transaction involving the HIH companies which have not been identified by the liquidators as at the date of the filing of this application." 3 The originating process was filed in court on 10 March 2004 and heard on that day. No person is named in it as a defendant. Read in support of the application was an affidavit of one of the liquidators, Mr McGrath, sworn on 9 March 2004. A further affidavit of Mr McGrath, sworn on 11 March 2004, has been filed and read this morning. 4 I should begin by referring to the relevant statutory provision and the question whether it permits the court to make an order of the kind now sought. Sub-sections (1) to (3) of s.588FF of the Corporations Act are in the following terms: " Courts may make orders about voidable transactions (1) Where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of section 588FE, the court may make one or more of the following orders: (a) an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction; (b) an order directing a person to transfer to the company property that the company has transferred under the transaction; (c) an order requiring a person to pay to the company an amount that, in the court's opinion, fairly represents some or all of the benefits that the person has received because of the transaction; (d) an order requiring a person to transfer to the company property that, in the court's opinion, fairly represents the application of either or both of the following: (i) money that the company has paid under the transaction; (ii) proceeds of property that the company has transferred under the transaction; (e) an order releasing or discharging, wholly or partly, a debt incurred, or a security or guarantee given, by the company under or in connection with the transaction; (f) if the transaction is an unfair loan and such a debt, security or guarantee has been assigned - an order directing a person to indemnify the company in respect of some or all of its liability to the assignee; (g) an order providing for the extent to which, and the terms on which, a debt that arose under, or was released or discharged to any extent by or under, the transaction may be proved in a winding up of the company; (h) an order declaring an agreement constituting, forming part of, or relating to, the transaction, or specified provisions of such an agreement, to have been void at and after the time when the agreement was made, or at and after a specified later time; (i) an order varying such an agreement as specified in the order and, if the Court thinks fit, declaring the agreement to have had effect, as so varied, at and after the time when the agreement was made, or at and after a specified later time; (j) an order declaring such an agreement, or specified provisions of such an agreement, to be unenforceable.

(2) Nothing in subsection (1) limits the generality of anything else in it. (3) An application under subsection (1) may only be made: (a) within 3 years after the relation-back day; or (b) within such longer period as the Court orders on an application under this paragraph made by the liquidator within those 3 years."

5 The "relation-back day" in relation to each of the second to twenty-third plaintiffs is 15 March 2001, that being the day on which the order for the appointment of liquidators provisionally was in each case made. The conclusion that 15 March 2001 is the relation-back day comes from a combination of paragraph (b) of the definition of "relation-back day" in s.9 and the provisions of s.513A. The period of three years referred to in each of paragraphs (a) and (b) of s.588FF(3) is therefore still current, although close to expiry. The current application, being an application for an order fixing a longer time as referred to in s.588FF(3)(b), was accordingly made within the specified period of three years and any order made today will likewise be made within that period.

6 The question whether s.588FF(3)(b) allows an order for extension of time to be made in a general way (that is, not by reference to a particular person and a particularly contemplated s.588FF(1) proceeding) is one to which attention was given by the Queensland Court of Appeal and the Court of Appeal of this Court in judgments delivered on, respectively, 18 July 2003 and 8 August 2003: see Greig v Australian Building Industries Pty Ltd (2003) 21 ACLC 1565 and BP Australia Ltd v Brown (2003) 46 ACSR 677. 7 In BP Australia v Brown, Spigelman CJ, with whom Mason P and Handley JA agreed, saw s.588FF(3)(b) as sufficiently broad in its operation to support a general extension order of the kind I have mentioned where it was not possible to identify relevant persons and proceedings. I quote paragraphs 170 to 173 of the Chief Justice's judgment: "The power to extend the time limit for commencing proceedings is intended to provide for the circumstance in which a liquidator is not in a position to commence proceedings within three years of the relation-back day, for whatever reason, subject to the assessment of the Court of all relevant circumstances, including the liquidator's conduct. It is not difficult to envisage a circumstance in which a liquidator is still ascertaining the identity of the recipients of benefits under possible voidable transactions and cannot give the Court an indication of the creditors to be targeted. The power should be broad enough to allow, in those circumstances, for an order granting an extension of time in general terms. The requirement of commercial certainty on the part of those who have had past dealings with the corporation is to be balanced against the conflicting interest of the creditors of the company. The Court, through the discretions it exercises under ss588FF(3) and 588FF(1), is in a position to control unwarranted delay by liquidators. Subject to reasonable expedition on the part of a liquidator, and to adopt the reasoning of Doyle CJ in Pegulan Floor Coverings Pty Ltd v Carter (1997) 24 ACSR 651 at 659, the creditors are entitled to: '... the benefit of having the affairs of an insolvent company properly investigated and administered in an orderly fashion in terms of the provisions of the law.' Such an orderly administration is one of the underlying purposes of the legislation. Pursuant to s5C of the Act and s15AA of the Acts Interpretation Act 1901, the Court must prefer a construction that would promote the purpose or object underlying the Act. The purpose or object of orderly liquidation is best served by recognising that diligent liquidators may not be able to identify a full list of targets for applications under s588FF(1) within the three year period specified in s588FF(3).

There is nothing in the words of s588FF(3)(b) which ties the character of the extension application to the specificity of what is required in an originating process for an order under s588FF(1). For the reasons I have mentioned, it is not appropriate to construe the section as if it did do so." 8 This part of the judgment in BP Australia v Brown was written before the judgments delivered in Greig had become available. In Greig, Williams JA placed strong emphasis on the need for a person affected or potentially affected by a s.588FF(3)(b) extension application to be made a party to the application. In his Honour's view, inability to identify persons with particularity should not lead to the making of an order without notice to anyone, but rather to a course ensuring that everyone who might conceivably be affected is forewarned. This, it must be said, proceeded from a view (at paragraph 45) that "… any liquidator doing his or her job competently would at least be able to say towards the end of the three year limitation period what transactions might be challenged." 9 Jerrard JA, referring to the observations of Williams JA, said at paragraph 111: "I agree with the view expressed by Williams JA that s.588FF(3) does not, as a general rule, authorise blanket applications made ex parte and without any identification in the application (or order made) of any person or persons against whom an application may ultimately be made for any one of the variety of orders provided for in s.588FF (1)(a) - (j)."

10 At paragraph 112, his Honour described circumstances in which the general rule to which he had referred would not apply: "It should only be where a liquidator can satisfy the court that the date of the liquidator's appointment, or the state of affairs of the relevant company, have resulted in the liquidator being unable to describe the nature of a possible application or applications to be brought and the identity of the potential respondent or respondents, that those circumstances take the case out of the general rule." 11 The third member of the court, Fryberg J, dealt with the matter at paragraph 142: "I agree with Williams JA that it is not possible to distinguish in this context between identified and unidentified parties to voidable transactions. Like his Honour, I think the cases will be rare indeed in which a liquidator is unable within the statutory three-year period to identify the persons against whom proceedings might be brought under s588FF. The numbers of such persons and transactions are unlikely to be so large as to render it impracticable to bring applications for an extension of time against them as respondents or to effect service of those applications. In an appropriate case an order for substituted service might be made or, unusually, an application against a representative party might be possible . The possibility of rare hard cases does not induce me to discern in the Corporations Act any intention to abolish the audi alteram partem rule in respect of applications under s588FF(3)." 12 In BP Australia v Brown, Spigelman CJ added at the end of his judgment a section dealing with the judgments in Greig which had become available to him after the balance of his judgment had been written. In relation to the matter now relevant, Spigelman CJ made observations at paragraphs 200 to 204 as follows: "I have concluded above that the court does have power to grant an extension of time in general terms by specification of categories. I have left open the issue of the right of persons, who are not targeted or even identified at the time of the application, to move the court to set aside the order extending time. Some of the reasoning in Greig approaches the issue in a different way. At [45] Williams JA poses the rhetorical question: 'Surely any liquidator doing his or her job competently would at least be able to say towards the end of the three year limitation period what transactions might be challenged'. My reasoning in pars [166]-[171] would answer this question: 'Not necessarily'.

Williams JA concludes at [51], whilst expressly acknowledging his remarks to be obiter, that ' at least as a general rule ... the court has no power to grant a blanket extension of time pursuant to s588FF(3) on an ex parte application" (emphasis added). The italicised words suggest that his Honour's reasoning and my own may differ more in form than in substance.

Jerrard JA repeats the formulation 'as a general rule' at [111] and 'in the ordinary course' at [112] and adds that a liquidator must satisfy the court that he or she was 'unable to describe the nature of a possible application ... and the identity of the potential respondent'.

It is not necessary to decide this issue in the present case. However, the analysis supports my conclusion that the seeking of an order in general terms does not result in invalidity of the application." 13 I turn now to the affidavit of Mr McGrath sworn on 9 March 2004 and read in support of the present application. Mr McGrath states that the liquidators are uncertain whether they have identified all of the potential voidable transactions involving the HIH companies. He gives reasons for this. The HIH group is, he says, a very complex group of companies. There are 274 corporate entities located in several countries. There were 1,300 employees when Mr McGrath and Mr McIntosh were appointed provisional liquidators in March 2001. 14 Mr McGrath's affidavit goes on to detail the work the liquidators have done and the factors that have inhibited them in the task of tracking down and evaluating all potential s.588FF(1) claims. These matters can best be explained by quoting in full paragraphs 6 and 7 of Mr McGrath's affidavit: " 6. Summary of major tasks undertaken since appointment 6.1 Since our appointment as Provisional Liquidators, and then as Liquidators, of the HIH Companies, we have undertaken a wide range of tasks and gathering information to assist with undertaking those tasks, including: (a) Dealing and liaising with regulators and other government instrumentalities, including the HIH Royal Commission ( HIH RC ) (to which I make further reference below), the Australian Securities and Investments Commission ( ASIC ), the Australian Prudential Regulatory Authority ( APRA ), the Australian Stock Exchange ( ASX ), and each of the State workers' compensation authorities and compulsory motor vehicle insurance authorities. This has included providing statements to those bodies about our investigations and the financial position of the HIH Group as well as responding to various notices to produce documents pursuant to their statutory powers. The Liquidators have engaged in regular and extensive communications with the HIH RC, ASIC and APRA, including numerous meetings with their representatives. (b) Preparing and distributing general information to the public, insurance industry participants, claimants and policyholders, which has included the issue of a number of press releases. (c) Negotiating with joint venture partners or parties who are acquiring or seeking to acquire assets of the HIH Companies. Further details of the most significant of those transactions which have been or are being completed by the Liquidators are set out in paragraph 7.8 below. (d) Assessing the assets and liabilities of the HIH Companies and conducting a review of those assets to determine their value and developing realisation plans for them. (e) Identifying, developing and implementing plans to deal with current and pending litigation relating to: (i) claims against all of the HIH Group companies; (ii) claims by all of the HIH Group companies; (iii) claims against insureds of HIH group companies, and (iv) recovery actions in which a claim is pursued by an HIH Group company in the name of the insured. (f) Communicating with the very large number of lawyers who acted, and in some cases continue to act, for some of the HIH Companies or their insureds in litigation. (g) Responding to applications for leave to proceed under s 471B of the Corporations Law and the Act against the HIH Companies. (h) Identifying, and developing and implementing a plan to deal with claims by policyholders that were made prior to and after the appointment of the Provisional Liquidators, which ultimately resulted in the Liquidators making arrangements to outsource the claims management, reinsurance management and underwriting management services in Australia to Claims Management Group Limited ( CMGL ). The decision to outsource these services for the run-off of the underwriting business was made after a tender process through which CMGL, an established claims and reinsurance services provider, was selected as the preferred tenderer. CMGL has commenced providing the services. However, the Liquidators have not yet called for the lodgement of proofs of debt and no final date for the submissions of claims in respect of the HIH Companies to the Liquidators has been set. (i) Identifying the current reinsurance arrangements in place for the companies in liquidation and undertaking an early assessment of the possible priority of payment of reinsurance proceeds in respect of existing and future claims by policyholders. (j) Dealing with staff of the HIH Companies and identifying the current and future staffing requirements of those companies, given the changed and changing nature of their operations following their entry into provisional liquidation and then liquidation. This has included: the development of protocols for use by staff members for the purposes of their ongoing dealings with the public, insurance industry participants, claimants and policyholders; assessing entitlements of employees; reviewing payroll issues; and developing a bulletin and an intranet site for staff members for the purpose of communicating with them and updating them on the status of the liquidations and developments within the HIH Group businesses. The Liquidators have also considered and determined who are the key staff of the HIH Companies who are necessary to manage the 'run-off' phase of the businesses of the licensed insurers and have made agreements with them for the purposes of securing their services to ensure, among other things, that the "run-off" will be effectively managed. (k) Reviewing and rationalising the HIH Group's property and leasing arrangements in Australia. In this regard, the seventy-two (72) sites which were occupied by HIH Group companies and businesses as at the date of our appointment as Provisional Liquidators have now been consolidated to two (2) sites with concomitant significant savings in annual rental payments and outgoings. (l) Dealing with industry bodies representing groups of policyholders such as the Law Society of New South Wales, the Bar Association of New South Wales, the Insurance Council of Australia and brokers and insurance agents. (m) Dealing with brokers with respect to funds held in brokers' trust accounts to which one or more of the HIH Companies may be entitled. (n) Obtaining legal advice and other professional advice in relation to any of the above matters.

Further information in respect of certain major tasks HIH RC 7.1 During the course of the HIH RC, the Liquidators sought, and obtained orders, from this Honourable Court that they were justified in expending the funds of the HIH Companies in relation to cooperating with, and otherwise assisting the HIH RC with its inquiry. 7.2 To that end, the Liquidators, and the Provisional Liquidators of the HIH Group subsidiaries which underwrote insurance business in the United Kingdom, have provided statements to the HIH RC in relation to their investigations and opinions with respect to the financial position of the HIH Group at particular points in time. In addition, the Liquidators and their lawyers assisted in responding to approximately 100 notices to produce documents and requests for information from the HIH RC. 7.3 The report of the HIH RC was delivered by the Honourable Justice Owen to the Governor General of the Commonwealth of Australia on 4 April 2003 (the RC Report). It comprises 3 volumes. In the RC Report, the Commissioner made a number of adverse findings against many individuals and entities. In the context of the liquidations of the HIH Companies, the investigation of those adverse findings, and the extent to which any recovery actions may be commenced in relation to them, are very substantial tasks and will be on-going for some years. I discuss below some of those investigations which have been conducted to date. Major Investigations Conducted to date 7.4 Mr Macintosh and I are continuing a detailed review of causes of action which the HIH Companies might have against directors, advisers and third parties to recover property or damages for the benefit of the creditors of the relevant HIH Companies. We are continuing our consideration and development of our strategy for the possible litigation, or settlement, of claims that may lead to recoveries for the benefit of the creditors of the HIH Companies. 7.5 Further, the Liquidators have applied to the Supreme Court of New South Wales and the Federal Court of Australia to require a large number of persons to attend for examination and/or produce documents concerning the "examinable affairs" of the HIH Companies, which include the promotion, formation, management, winding up or any other affairs of the HIH Companies. Mr Macintosh and I have continued to conduct examinations to gather information to assist us in our conduct of the liquidations. This has principally involved examining former officers and directors of companies in the HIH Group, most of which have, by agreement, been conducted in private. To date, the Liquidators have conducted approximately 30 such examinations. Liaising with ASIC 7.6 In the RC Report, a large number of referrals were made to both ASIC and the Director of Public Prosecutions in relation to suspected breaches of the Corporations Law . 7.7 Since the publication of the RC Report, the Liquidators have been assisting ASIC to conduct further investigations into the referrals to it by the HIH RC. That assistance has included providing various statements to ASIC and responding to a large number of notices to produce documents, requests for information, and the review of documents for legal professional privilege which are to be disclosed to defendants against whom criminal proceedings have been commenced. That assistance is ongoing and we expect our liaison with ASIC to continue over the coming months and years. Seeking the approval of the Court to enter into certain agreements 7.8 During the course of the liquidation of the HIH Group, as a result of the operation of sections 477(2A) and 477(2B) of the Corporations Law and then the Corporations Act, it has been necessary to approach this Court on a large number of occasions to seek approval with respect to the entry into agreements where certain obligations under those agreements may be discharged more than three months after the entry into them by the HIH Companies, and/or that the agreement is to compromise an amount owed to the relevant HIH Company which is in excess of $20,000.00. Some of the applications which are of particular significance to the HIH group are as follows: (a) NRMA- Acquisition of the Workers Compensation Portfolio; (b) QBE - Purchase of certain insurance products; (c) QBE - the sale of HIH's Argentinian workers' compensation business; (d) Royal & Sun Alliance - sale of Industrial Rehabilitation Service Pty Limited; (e) Hannover Re - the commutation of certain reinsurance arrangements; and (f) Allianz Australia Limited - agreement for the repayment of certain funds held on trust for the HIH Group. Committee of Inspection - Scheme of Arrangement 7.9 The Liquidators are currently consulting with the Committees of Inspection appointed in respect of FAI, C&G, CIC in relation to formulating a Scheme of Arrangement for these and other companies within the HIH Group. 7.10 We presently consider that it is likely that we will be in a position to put forward to the Court a proposal for a Scheme of Arrangement in the first half of 2004. The Liquidators intend to consult with the relevant regulatory authorities such as the ASIC, APRA, the New York Insurance Department and the Financial Services Authority in the United Kingdom to obtain their support for such proposal before seeking Court approval to convene meetings of creditors to consider the proposal. Overseas Applications to the High Court of England and Wales 7.11 Upon an application to this Court for the issue of Letters or Request to the High Court of England and Wales, Provisional Liquidators were appointed, and remain appointed in the United Kingdom with respect to C&G and World Marine and a number of other HIH group companies. The Liquidators consider that C&G and World Marine should remain in provisional liquidation in the United Kingdom (and not be ordered to be wound up there) until such time as it is established whether a Scheme of Arrangement can be proposed that deals satisfactorily with the claims of creditors in the various jurisdictions. Overseas Proceedings in the United States Bankruptcy Court 7.12 The Superintendent of Insurance of the State of New York (the Superintendent) has commenced conservation proceedings with respect to the trust funds established by two of the HIH Companies, FAI and C&G, and has obtained an Order of Conservation with respect to each of these trust funds. The Liquidators are continuing to cooperate with the Superintendent and will keep him informed of developments of the winding up proceedings. Overseas Proceedings in the High Court of New Zealand 7.13 On 6 June 2001, the Provisional Liquidators caused applications to be issued in the High Court of New Zealand for the appointment of Interim Liquidators to the two principal companies within the HIH Group which controlled assets which were the subject of the QBE transactions (referred to in paragraph 7.8 above), being HIH Holdings (NZ) Limited and HIH Casualty and General Insurance (NZ) Limited. Interim Liquidators were appointed to those companies on the same day. We are continuing to liaise with the Interim Liquidators in New Zealand. Record keeping of the HIH Group 7.14 As a result of the various investigations conducted into the circumstances surrounding the collapse of the HIH Group to date, as well as the record keeping practices of the HIH Group, the Liquidators have experienced difficulty in identifying the whereabouts of certain key documents which would assist them with their investigations and the commencement of proceedings. 7.15 At the date of swearing this affidavit, important HIH corporate records remain in the custody of ASIC as a result of the issuing of a notice to produce which was exercised "forthwith". Although ASIC has provided the Liquidators with a list of those documents, those lists are only at a folder level and only for a small percentage of those folders. 7.16 To assist in our investigations, we are also in the process of creating an index of the contents of HIH group archive boxes. This project is being undertaken at the premises of Recall in Wodonga in northern Victoria. That process relates to approximately 100,000 boxes of documents, of which we propose to index in the region of 20,000 of documents which have been identified as containing 'general documents' (as opposed to material relating specifically to claims and policies). That process will take a minimum of 6 months. 7.17 In addition to the matters referred to above, there has been a general paucity of financial records, and those records which have been identified are generally uninformative and of poor quality." 15 This evidence paints a striking picture of the very considerable task that the liquidators have confronted and on which they are likely to remain engaged for a long time. Time and resources have, of necessity, been prioritised. Investigations on a range of matters are ongoing and will continue for several years. There are gaps in the corporate records. It is said that there is a "general paucity" of financial records. Important records continue to be held by ASIC and are for the time being unavailable to the liquidators. The ongoing process of indexing some 100,000 boxes of documents is, of itself, a telling indication of the extraordinary circumstances of these windings up. 16 In Greig, Williams JA expressed an opinion or expectation that any liquidator doing his or her job competently would at least be able to say, towards the end of the three year limitation period, what transactions might be challenged. The riposte of Spigelman CJ in BP Australia v Brown (at paragraph 201) was, "Not necessarily." 17 Having regard to the content of Mr McGrath's affidavit, I am entirely satisfied that this is a case that represents a clear and cogent exception to the expectation expressed by Williams JA. I am, for the same reason, satisfied that, in the way described by Jerrard JA at paragraph 112 of his judgment, this case is one that stands beyond the general rule referred to by his Honour in paragraph 111. The situation is one in which an application for the kind of general order now sought must be seen as a valid application in the way discussed at paragraphs 170 to 173 and 200 to 204 of the judgment of Spigelman CJ. 18 The HIH liquidators have already commenced a number of proceedings under s.588FF(1) and sought extensions of time under s.588FF(3)(b) in respect of several possible proceedings. They recognise the possibility that they may, over the next twelve months, discover circumstances not now known to them that may warrant the initiation of further s.588FF(1) proceedings. The order they seek is confined to claims not now known - that is to say, excluding the claims in respect of which extension applications have already been made by reference to particular circumstances and particular persons. It has been confirmed by Mr McGrath, on affidavit filed in court today, that apart from the transactions which have already been the subject of either substantive s.588FF(1) applications or the applications under s.588FF(3)(b) made over the past week, no potential claims have been recognised. 19 Mr McGrath refers to three reasons for seeking an extension of time based on the matters concerning the windings up I have mentioned. They are, first, the size and complexity of the business and affairs of the group; second, the need for continual liaison with regulatory and investigatory bodies and third, the difficulty in obtaining access to relevant information and documents. 20 In the particular circumstances of these windings up, these considerations justify the grant of further time by way of the general order sought. Such an order will be made. The question whether an order made in this way ex parte may, in due course, be set aside as regards a particular person on application made by that person is no doubt one that has been considered by the plaintiff. I say nothing about that possibility beyond observing that the evidence has not disclosed the existence at this point of anyone affected by the order who is the subject of any intended or possible s.588FF(1) proceeding. 21 The order is as follows: Order that the period within which the plaintiffs may make application under s.588FF(1) of the Corporations Act (2001) with respect to transactions alleged by them to be voidable transactions (not being transactions with persons the subject of the applications under s.588FF(3)(b) in proceedings 1790/04, 1839/04, 1877/04, 1878/04 and 1879/04, those transactions being, according to the affidavit of Anthony Gregory McGrath sworn 11 March 2004 and filed herein, all transactions so far identified by the first plaintiffs in relation to which proceedings may be instituted under s.588FF(1)) after the expiration of the period of three years referred to in s.588F(3)) be extended so as to expire at the conclusion of 15 March 2005. **********

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