Byrnes v Kendle

Federal Court of Australia|2024-09-06|Before: Jackman J

AMP Funds Entitlements

The Administrators are justified in causing the Company to pay, out of funds held in the Administration Account, the AMP Funds Entitlements to each respective AMP Client on the ground that the AMP Clients are respectively beneficially entitled to their respective AMP Funds Entitlements.

Appointment Date General Company Money 2. The Administrators are justified in treating the Appointment Date General Company Money in the Administration Account as funds beneficially owned by the Company.

Remuneration, costs and expenses of the Administration 3. The Administrators are justified in using and applying the funds held in the Administration Account (other than the AMP Funds Entitlements and the Appointment Date General Company Money) to pay the costs and expenses of the administration and of these proceedings. 4. Subject to order 5 below, the Administrators are justified in using and applying the funds held in the Administration Account (other than the AMP Funds Entitlements and the Appointment Date General Company Money) to pay their remuneration in respect of the administration and of these proceedings. 5. The Administrators' remuneration (referred to in order 4 above): (a) is to be calculated at the professional rates (plus GST) set out in the table entitled "Remuneration Rates Effective 9 August 2022" attached to the Administrators' report to creditors of the Company dated 2 July 2024; and (b) is approved by the Court for payment, provided that: (i) the amount of the remuneration has been approved by a resolution of the Committee of Inspection or of a meeting of creditors; and (ii) no written objection has been received to the amount of the remuneration so approved within 14 days after the Administrators have given notice of such resolution to creditors of the Company whose contact details are known to the Administrators; and (iii) the amount of the remuneration is to be fixed by the Court where any written objection is received pursuant to order 5(b)(ii) above.

Confidentiality Orders 6. Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, paragraphs 7 to 12 (inclusive) to the affidavit of Christopher Harold David Barr affirmed on 6 September 2024 is to be marked "confidential" on the Electronic Court File and are not to be published or accessed until 6 March 2025, except pursuant to an order of the Court. 7. Any person demonstrating sufficient interest in Order 6 above has liberty to apply on 3 days' notice.

Other Orders 8. The proceedings be listed for further directions on 8 November 2024. 9. Liberty to the Plaintiffs to apply to the Court on 24 hours' notice. 10. These Orders be entered forthwith.

Definitions Administration Account means the following bank account established by the First Plaintiffs with the Commonwealth Bank of Australia: Account name: Goal Group Australia Pty Ltd Administrators Appointed Account number: 2000#####950 Administrators The First Plaintiffs. AMP Clients means each of the 14 clients listed in column A of the table at Annexure B of the affidavit of Andrew John Spring affirmed on 20 August 2024. AMP Funds means the proceeds of recovery from the AMP Shareholder Class Action that is attributable to the AMP Clients. AMP Funds Entitlements The respective amount of the AMP Funds to which an AMP Client appears to be entitled as set out in column J of the table at Annexure B of the affidavit of Andrew John Spring affirmed on 20 August 2024. AMP Shareholder Class Action means the representative proceeding commenced in the New South Wales Supreme Court by Komlotex Pty Ltd as trustee for Breda Sinclair Industries Superannuation Fund and other group members against AMP Limited, with such proceedings known as Komlotex Pty Ltd and Anor v AMP Ltd (2018/310118). Appointment Date General Company Money The amount of AU$336,087.33 standing to the credit of the Administration Account (being the balance of the commission payable to the Company in connection with the AMP Fund Entitlements held by the Company on the date of the appointment of the Administrators) Committee of Inspection means the Committee of Inspection appointed in relation to the administration of the Company. the Company The Second Plaintiff.

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

Introduction 1 The Plaintiffs, Andrew John Spring (Mr Spring), Trent Andrew Devine and Bradd William Morelli (together the Administrators) in their capacity as the voluntary administrators of Goal Group Australia Pty Ltd (Administrators Appointed) (GGA or the Company), are the Applicants with respect to an Interlocutory Process filed on 26 August 2024 (Application). 2 The relief sought in the Interlocutory Process is for orders, pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (IPS), being Sch 2 to the Corporations Act 2001 (Cth) (Corporations Act), and ss 63 and/or 81 of the Trustee Act 1925 (NSW) (Trustee Act) that the Administrators would be justified in: (a) causing the Company to pay amounts identified below as "AMP Clients' Net AMP Fund Entitlement", which total $15,681,793.42, to "AMP Clients" on the ground that the AMP Clients are respectively beneficially entitled to their respective AMP Funds Entitlements (para 2); (b) treating the funds described below as the Appointment Date General Company Money, totalling $336,087.33, as funds beneficially owned by the Company (para 3); and (c) using and applying the funds held in their Administration Account (other than the AMP Funds Entitlements and the Appointment Date General Company Money) to pay the costs and expenses of the administration and of these proceedings, and for orders as to the determination of the amount of the Administrators' remuneration to be so paid out of those funds (paras 4 to 6).

Factual background 3 On 28 June 2024 the Administrators were appointed as voluntary administrators of the Company. 4 The Company was part of a group (Goal Group) which identified and managed potential recoveries for its clients (typically financial institutions and investment firms) in securities class actions, by administering the clients' participation in such claims. Those clients held, hold or traded securities (directly or indirectly) which are the subject of the claims. The services provided by the Goal Group included accepting receipt of settlement funds. 5 The Company has in total 26 current clients and "active" former clients who (according to the Company's records) are still participating in active claims or are yet to be paid litigation recoveries owing to them by the Company. 6 Each client's relationship with the Company is governed by a client agreement, and in a number of cases clients also provided powers of attorney to the Company. 7 According to the Company's books and records, the total amount of creditor claims is $43,624,898, of which over 99% represent claims of the Company's clients in respect of unpaid litigation recoveries. 8 Pending the determination as to whether certain funds held by the Company are beneficially held for particular clients, the Administrators are treating such client claims against the Company as contingent, as funds may be determined to be held on trust for particular clients and paid to them in reduction of their claim against the Company. 9 Whilst the Administrators' process of reviewing client claims is ongoing, it is apparent that there will be a significant shortfall between the amount of settlement proceeds which have been received on behalf of the Company's clients and the amount of cash under the control of the Administrators. 10 The Administrators have identified that there were 14 bank accounts which were either held in the name of, or on behalf of, the Company. Some of those accounts appear to have been used as operating accounts, whilst others appear to have been used by the Company to receive litigation recoveries in respect of class action settlements (Client Accounts). 11 Based on their investigations, the Administrators understand that: (a) an account described as the Westpac Account 1 (Westpac Account 1) was the Company's main operating account; and (b) an account described as the Westpac Account 2 (Westpac Account 2) was the Company's main Australian based Client Account. 12 Following their appointment, the Administrators have arranged for the transfer of the credit balances of those accounts as at their appointment to their Administration Account.

Entitlement to Net AMP Funds: Para 2 13 On 16 May 2024, Maurice Blackburn made 14 deposits totalling $16,150,635.21 into Westpac Account 2 on account of "AMP Shareholder Class Action". 14 Based on the Administrators' investigations: (a) "AMP Shareholder Class Action (6084)" is reference to a successfully resolved class action claim, which was brought in the Supreme Court of New South Wales; (b) 14 of the Company's clients (AMP Clients) participated in "AMP Shareholder Class Action (6084)"; (c) Maurice Blackburn were appointed by the Court to administer the distribution of the settlement funds relating to "AMP Shareholder Class Action (6084)", and issued each of the AMP Clients with correspondence including an assessment notice and also a remittance notice which confirmed that Maurice Blackburn had made payment of each client's respective settlement amount into the nominated bank account for that client being Westpac Account 2 on 16 May 2024; (d) each of the AMP Clients had entered into a client agreement and a Power of Attorney with the Company (except in one case where the client proceeded on the basis that the Company's agreements with a related company applied to it); (e) each of the AMP Clients entered into a Power of Attorney with the Company; (f) on 22 May 2024, $527,349.61 was debited from the Westpac Account 2 on account of "AMP Commission", and a corresponding credit was received into Westpac Account 1; (g) between the period 16 May 2024 to the date of the appointment of the Administrators, no further withdrawals were made from Westpac Account 2 except for the payment of $527,349.61 on 22 May 2024 referred to above; (h) the Administrators have identified that the commission payable to the Company was miscalculated and should have been $468,841.79 (rather than $527,349.61). 15 The Administrators have calculated each AMP Client's entitlement (AMP Clients' Net AMP Fund Entitlement). The net entitlement includes a deduction on account of commission, calculated according to the percentage set out in the relevant client agreement. 16 The Administrators consider that the amount of each AMP Clients' Net AMP Fund Entitlement in the Administration Account is held on express trust for each AMP Client respectively. 17 Whether or not an express trust arises depends on the intention of the parties, assessed objectively: Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [17] (French CJ), [59] (Gummow and Hayne JJ) and [114]-[115] (Heydon and Crennan JJ). Regard must be had to the language used and all the circumstances of the case: Byrnes v Kendle at [49] (Gummow and Hayne JJ), [105] (Heydon and Crennan JJ); Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493 at [119] (Bell, Gageler and Keane JJ). It has been said that, where the parties have refrained from using the terminology of trust, an intention to create a trust will be imputed to them only if and to the extent that a trust is the legal mechanism which is appropriate to give legal effect to the relationship: Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 62; (2015) 255 CLR 62 at [109] (Gageler J). 18 Here, neither the client agreements nor the powers of attorney expressly indicate that the fruits of any class action settlement are held by the Company on trust. Nevertheless, a conclusion that a trust of any such settlement monies was intended is supported by the following matters: (a) The client agreements contemplate the clients being "entitled" to the settlement monies and require those monies be paid to them directly. A typical clause is as follows: all settlement monies to which the Client may be entitled will be paid and payable to the Client directly without any withholding from GCA (except for fees properly due to GCA) unless agreed by the parties in advance in writing. That language suggests that any money received by the company is regarded as the client's money and not the Company's. (b) The terms of the client agreements and powers of attorney contemplate that the Company acts on the clients' behalf. Language indicating that one person is acting on behalf of another favours the existence of a trust: In the matter of Courtenay House Capital Trading Group Pty Limited (in liquidation) and Courtenay House Pty Limited (in liquidation) [2018] NSWSC 404; (2018) 125 ACSR 149 at [23] (Brereton J). Here, a typical clause in the client agreements provides: Where the Client participates in a Case as a Class Member, CGS will request the client to sign or arrange the signature of the proof of claim forms under guidance from and as per timelines notified to the Client by GCA…GCS will then file all claim forms on the Client's behalf in a timely manner. Further, many of the powers of attorney expressly refer to the Company receiving money on the client's behalf. Thus, four powers of attorney authorise the Company's "receipt of any amounts from any party related to the Services…in respect of payments made to the Client, or through the Attorney on behalf of the Client". Four others refer to the company "reclaiming from any paying agent and/or administrator or any authority in any jurisdiction (as appropriate) amounts in respect of payments made to the [Client], or through GCA on behalf of the [Client]"; and the language of a fifth is similar. (c) In the case of one client, QSuper, the client agreement expressly provided that the company must ensure that monies it receives on behalf of QSuper are kept in a separate account. That is a strong indication that a trust is intended: Korda v Australian Executor Trustees (SA) Ltd at [111] (Gageler J); Walker v Corboy (1990) 19 NSWLR 382 at 397 -8 (Meagher JA). (d) More generally, it is not apparent that there is any basis on which the Company (which was not a participant in the AMP class action in its own right) was legally entitled to receive the fruits of any settlement. Those fruits could only have been payable to it as the agent of the respective clients. As has been seen, under the terms of the client agreements, the Company had no entitlement to those monies (beyond the right to deduct its fees). In those circumstances, the following statement from Registrar of Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 3; (1993) 178 CLR 145 at 165-6 (quoted by Bell, Gageler and Keane JJ in Legal Services Board v Gillespie-Jones at [113]) is in point: [U]nless there is something in the circumstances of the case to indicate otherwise, a person who has 'the custody and administration of property on behalf of others' or who 'has received, as and for the beneficial property of another, something which he is to hold, apply or account for specifically for his benefit' is a trustee in the ordinary sense. 19 Further, it appears that the Company directed payment of settlement monies from litigation claims (including the AMP settlement funds) into the Westpac 2 account, which was regarded as the Company's main Australian based Client Account and had the account name "Goal Group Australia Pty Ltd AUD Client". The payment of funds into a separate account entitled "Trust Account" has been treated as a powerful indication that a trust is intended: Re French Caledonia Travel Service Pty Ltd (in liquidation) [2003] NSWSC 1008; (2003) 59 NSWLR 361 at [19] (Campbell J). The Administrators submit, and I accept, that the same follows where the relevant account is described as a "Client" account and a practice is followed of directing monies payable to clients into that account. 20 Finally, I note that correspondence received by the Administrators from two clients, NSW Treasury Corporation and Colonial First State Investments, records their position that settlement monies received from the AMP class action are held by the company on trust for them and are not assets of the Company available to be distributed to its creditors. 21 Accordingly, it is appropriate to direct that the Administrators would be justified in causing the Company to pay the AMP Clients' Net AMP Fund Entitlement to each respective AMP client on the ground that the AMP Clients are respectively beneficially entitled to their respective Net AMP Funds Entitlement.

Entitlement to Appointment Date General Company Money: Para 3 22 The Administrators seek directions that they are entitled to treat, as money owned beneficially by the Company, some $336,087.33 of the funds standing to the credit of the Westpac Account 1 as at the appointment date (defined as the Appointment Date General Company Money). As indicated above, Westpac Account 1 was the Company's main operating account. 23 The amount of $336,087.33 has been ascertained by the following process: (a) The balance of the Westpac Account 1 immediately prior to 22 May 2024 was $37,658.92. It is unclear whether this was money beneficially owned by the Company, so for present purposes the Administrators proceed on the basis it was not. (b) On 22 May 2024, $527,349.61 was paid to Westpac Account 1 from Westpac Account 2 on account of the AMP Commission. (c) Between 24 May 2024 and 26 June 2024, there were 15 debits from Westpac Account 1 totalling $124,908.07. (d) On 26 June 2024, International Transfers of $5,778,150.51 were paid in to Westpac Account 1 from other company accounts. (e) On 27 and 28 June 2024, there were 2 debits from Westpac Account 1 totalling $9,223.90. (f) As at the date of appointment of administrators, the balance of Westpac Account 1 was $6,209,027.07. (g) This fund may be treated as the Company's money save for the following: (i) the balance immediately prior to 22 May 2024 of $37,658.92 - as the Administrators are still investigating the derivation of this balance; (ii) the International Transfers of $5,778,150.51; and (iii) $56,538.32, which is the amount by which the AMP Commission was overpaid. (h) Deducting the last-mentioned items, there is a balance remaining of $336,087.33. 24 It is accordingly appropriate to give the directions sought in para 3.

Costs, Expenses and Administrators' Remuneration: Paras 4 to 6 25 Paras 4 to 6 are sought to enable the Administrators to have recourse to funds which may not be owned beneficially by the Company for the purpose of paying their remuneration and costs and expenses of the administration, in circumstances where it is anticipated that the funds beneficially owned by the Company will not be sufficient to cover those costs. 26 Whilst the Administrators are continuing to investigate which clients, if any, are entitled to the other monies they hold in the Administration Account, there is at least a real prospect that all of those funds may be trust money having regard to the very large number of claims that exist (over $43m) in respect of litigation recoveries and the analysis undertaken in respect of the AMP Clients' Net AMP Fund Entitlement considered in relation to the claim made in para 2. 27 If the Administrators are confined to using only the Appointment Date General Company Money of $336,087.33, that will not be sufficient to enable them to recover their remuneration approved to date (in the sum of $197,405.52 up to 24 July 2024), the legal and professional fees of their lawyers, and the Company's ongoing trading expenses. In respect of the last matter, the Company's trading expenses for the months of July and August 2024 are estimated at $153,391. Further, the Administrators propose to have recourse to part of the Appointment Date General Company Money to meet priority creditor claims. 28 The Administrators' most recent calculations show that, after deducting their approved remuneration plus GST ($217,146.07) and other expenses of the administration from the Appointment Date General Company Money of $336,087.33, there would remain only $9,116.76. The Administrators have earned further remuneration which is subject to creditor approval, and future remuneration and expenses will continue to be incurred. 29 It is possible that the funds beneficially owned by the Company will subsequently be supplemented if further litigation recoveries are received and commission becomes payable in respect of those recoveries, or there is a sale of the Company or its assets. A confidential affidavit filed at the hearing of this application confirms that further steps have been taken towards a sale process which, if successfully consummated, may produce additional money for the Company. However, it is not clear whether there will be sufficient money for the Company to satisfy the Administrators' remuneration as well as the ongoing costs and expenses of the Administration. As matters currently stand, there is a real prospect that the Administrators will not have funds to proceed with the administration. 30 The Court has an inherent jurisdiction to allow a trustee remuneration, costs and expenses out of trust assets: Re MF Global Australia Ltd (in liq) (No 2) [2012] NSWSC 1426 at [55] (Black J). The principles according to which this jurisdiction will be exercised to allow a liquidator remuneration, costs and expenses from funds held on trust by a company in liquidation were summarised relevantly by Brereton J in Re AAA Financial Intelligence Ltd (in liq) [2014] NSWSC 1004 at [13] (omitting citations): (1) Where the company is trustee of a trading trust and has no other activities, the liquidators are entitled to be paid their costs and expenses, whether for administering the trust assets or for "general liquidation work", out of the trust assets. (2) Where the company does not act solely as trustee, costs and expenses referable to work done in relation to trust assets which may nonetheless be considered as having been done for the purpose of winding up the company ought ordinarily be borne primarily by the (non-trust) property of the company, to the extent that the assets permit. (3) At least where the non-trust assets do not permit that course, and perhaps even when they do, a liquidator is entitled to be indemnified out of trust assets for his costs and expenses, but only to the extent that they are referable to administering the trust assets. This is pursuant to the court's equitable jurisdiction to allow a trustee remuneration costs and expenses out of trust assets, which extends to a person such as a liquidator who is, for practical purposes, controlling a trustee. (4) In principle, where the liquidator does work which would entitle him both to remuneration as liquidator by the company, and recovery from the trust assets, there are two funds liable and there should be contribution between them. However, where there are no assets of the company available, it is unnecessary to consider the question of contribution. If a liquidator has done work which is attributable equally to the winding up of the company and the administration of trust assets, and there are no assets of the company at all to meet his expenses in doing so, the expenses are payable solely from the trust assets. 31 These principles have been applied to allow administrators to have recourse to trust funds in the course of a voluntary administration: Re Quinlan, in the matter of Halifax Investment Services Pty Ltd (Administrators Appointed) (No 3) [2019] FCA 124 at [56]-[57] (Gleeson J); Re Baixin Group Pty Ltd (administrators appointed) [2022] NSWSC 88 at [26] (Williams J). 32 In Re Primespace Property Investment Ltd (in liq) [2016] NSWSC 1821, Black J allowed general liquidation remuneration and costs to be paid from trust funds where his Honour was satisfied (at [18]) that: the work done by [the liquidators] in both the administration and the liquidation cannot be funded from the assets presently available to [the company] in its own right and that their remuneration for that work is properly paid out of trust assets. 33 It is appropriate here for the Administrators to have recourse to funds likely to be held by the Company on trust for its clients to fund the ongoing conduct of the administration, to the extent that funds beneficially owned by the Company are insufficient for that purpose, for the following reasons: (a) the Client creditors account for over 99% of the creditor claims according to the books and records of the Company. The administration is thus overwhelmingly for the benefit of the Client creditors. That was a factor treated as being of some significance by Beach J in Ozifin Tech Pty Ltd (in liq) v AGM Markets Pty Ltd (in liq) [2022] FCA 1478 at [242]; (b) further, a substantial amount of the work that needs to be done by the Administrators involves ascertaining the entitlement of individual Clients to funds held or to be held by the Company. Thus: (i) it is necessary for the Administrators to reconcile Client claims as recorded in a "Claims spreadsheet" maintained by the Company against receipts of funds by the Company and its related entities across various accounts; (ii) it will be necessary to ascertain the entitlement of various Clients to two recent sets of payments, being a set of 54 payments totalling $3,249,788.99 received on 30 July 2024, and a payment of $98,947.65 received on 2 August 2024; and (iii) the Company is involved in significant ongoing claims across various jurisdictions, and the Administrators will need to ascertain the entitlements of Clients to any future recoveries which flow from these claims. 34 Para 6 provides a process for the approval of the Administrators' remuneration. Such an order is necessary because, where remuneration is to be paid out of trust assets, the principles for approval of remuneration of an external administrator in the IPS Div 60 do not apply of their own force. That said, the Court treats work done by an insolvency practitioner in administering the trust as an incident of the external administration and approaches an application for remuneration as analogous to one by an external administrator for approval of remuneration: Re Houben Marine Pty Ltd (in liq) [2018] NSWSC 745 at [20] (Gleeson JA). 35 In essence, the proposed regime utilises the structure of the existing committee of inspection, which will be asked to approve remuneration just as it would do if the remuneration were to be paid from funds beneficially owned by the Company (compare IPS s 60-10). Further, there is a process by which any creditor dissatisfied with the committee of inspection's approval of the remuneration can seek to have the Court determine the matter (compare IPS s 60-11). Remuneration cannot be paid unless 14 days has lapsed from the time of creditors being advised of the committee of inspection's approval and no written objection has been received. 36 The Administrators submit, and I accept, that such a regime would be appropriate in this case because: (a) there is a small number of creditors in the Administration, and those creditors with the greatest interest by value in the Administration are the Client creditors, which are limited in number and are all sophisticated financial institutions; (b) a committee of creditors has been formed at the first meeting of creditors, whose representatives comprise Client creditors; (c) there has been no issue as to remuneration to date, with the Administrators' remuneration for their first month being approved unanimously by creditors at the second creditors' meeting; and (d) it would not be an efficient use of the resources of the Court, or the funds available to the Administrators, to require the Court itself to approve every remuneration application, where a process that retains a mechanism for oversight by the Court can be implemented. 37 I note that the proposed orders specify in advance the rates for remuneration, following the practice which I adopted in two recent decisions approving regimes for approval of the remuneration of liquidators and administrators respectively appointed by the Court as receivers of a trust: Chou, in the matter of APR Detailed Joinery Pty Ltd (in liq) [2024] FCA 798 at [10]-[16]; Xu, in the matter of Sydney Carlingford Pty Ltd (Administrators Appointed) [2024] FCA 799 at [11]-[13].

Notice to Creditors and ASIC 38 A copy of the Interlocutory Process and supporting affidavit has been served on ASIC. 39 The Administrators have also given notice to the Company's creditors in accordance with the order made on 27 August 2024, by email sent on 28 and 29 August 2024, with the exception of one creditor, Australian Retirement Trust Pty Ltd as trustee for the Australian Retirement Trust (ART). Due to an accidental omission, the notice to ART was not sent at the time the other notices were sent. On 4 September 2024, ART was given notice of this Application. ART has confirmed that it has no objection in relation to the amount of notice given to it.

Conclusion 40 Accordingly, I make the orders and directions sought in the Interlocutory Process. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Trustee Act 1925(NSW)ss 63, 81

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