Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 324 of 2013

IN THE MATTER OF FINPLAS PTY LTD (IN LIQUIDATION) (ACN 111 974 737) SIMON GUY THEOBALD AND JEFFREY LAURENCE HERBERT AS JOINT AND SEVERAL LIQUIDATORS OF FINPLAS PTY LTD (IN LIQUIDATION) (ACN 111 974 737)

JUDGE: SIOPIS J DATE: 4 FEBRUARY 2014 PLACE: PERTH

REASONS FOR JUDGMENT 1 On 24 January 2014, I made orders on the application of the plaintiffs. I said I would give my reasons later. Here are the reasons. 2 Finplas Pty Ltd (Finplas), as trustee for the Finplas Trading Trust, had for a number of years prior to December 2012 carried on a plastics manufacturing business from premises at 26 Midas Road Malaga, Western Australia. The directors and shareholders of Finplas are Mrs Marja Hosseini, Mr Ruzbeh Hosseini and Mr Sayed Hosseini. They are also the beneficiaries of the Finplas Trading Trust. The appointor under the Finplas Trading Trust is Mr Sayed Hosseini. 3 The Midas Road premises were owned by Finira Pty Ltd (Finira). The directors and shareholders of Finira are Mrs Marja Hosseini and Mr Sayed Hosseini. Finira leased the Midas Road premises to Finplas under a lease dated 1 April 2009. Pursuant to that lease Finplas was obliged to pay rent to Finira of $10,500 (plus GST). However, by December 2012, Finplas had ceased paying rent on a regular basis to Finira, and had, on this account, built up a substantial liability to Finira, which was recorded in the books and records of Finira as an intercompany loan of approximately $2.46 million. 4 By 2012, Finira had incurred a liability to the Australian Taxation Office (ATO) of approximately $320,000, and the ATO petitioned the Court to wind up Finira. Acting pursuant to that petition, on 5 December 2012, the Court made a winding up order in respect of Finira and appointed Mr Jeffrey Laurence Herbert as the liquidator of Finira. Mr Herbert is a partner in the firm PPB Advisory. Mr Simon Guy Theobald is also a partner in that firm. Mr Theobald and members of staff employed by PPB assisted Mr Herbert in the liquidation. 5 Each of Finira and a Finplas owned plant and equipment which was located at the Midas Road premises. Shortly after his appointment as liquidator, Mr Herbert contacted Grays Auctioneers and commenced arrangements for the valuation of the plant and equipment owned by Finira, with a view to Grays Auctioneers selling the plant and equipment by way of an online auction. Instructions were subsequently given to Grays Auctioneers to conduct an auction of the Finira plant and equipment. 6 On 4 February 2013, Finira served a statutory demand on Finplas in respect of the outstanding balance of the intercompany loan owed by Finplas to Finira. 7 The Midas Road premises were the subject of a mortgage in favour of the Bank of Western Australia Limited (Bankwest). In February 2013, Bankwest appointed agents for the purpose of effecting a sale of the premises and Bankwest required Finplas to vacate the premises. 8 On 15 March 2013, Mr Herbert and Mr Theobald were appointed as joint and several liquidators of Finplas (the liquidators) by a resolution of the shareholders of Finplas in a general meeting. Mr Theobald arranged for Grays Auctioneers to catalogue the plant and equipment owned by Finplas which was located at the Midas Road premises. Grays Auctioneers duly embarked upon that exercise and provided PPB with a list of the Finplas plant and equipment and a valuation of that plant and equipment at an auction value of $3000. 9 On receiving the list, Mr Theobald instructed Grays Auctioneers to sell the Finplas plant and equipment in the same online auction as the Finira plant and equipment. This auction concluded on 20 March 2013. All of the Finplas plant and equipment was sold in the online auction. Subsequently, in April 2013, the liquidators received in the sum of $36,877 from Grays Auctioneers in respect of the sale of the plant and equipment. 10 On 25 March 2013, the liquidators received for the first time, a copy of the Finplas Trading Trust deed from Mr Sayed Hosseini. Mr Theobald asked Mr Clarke, one of the members of the PPB staff who was working on the Finplas liquidation, to inspect the trust deed for the purposes of determining whether there was an express a right of indemnity in favour of Finplas in the deed. 11 On a 26 April 2013, Mr Clarke, reported to Mr Theobald that in the course of undertaking research in respect of a liquidator's right of indemnity to recover costs from trust assets, he had found a very recent Federal Court decision which might impact upon a liquidators ability to sell trust assets where the trustee's office had been vacated upon the liquidation of the trustee. The case was Re Pleash, in the matter of Suncoast Restoration Pty Ltd [2013] FCA 355 (Suncoast). The judgment in that case had been delivered on 18 April 2013 and has subsequently been reported in (2013) 211 FCR 203. The trustee deed in that case contained a clause which operated to remove the corporate trustee automatically on the appointment of liquidators. 12 Mr Theobald then asked Mr Clarke to inspect the Finplas Trading Trust deed to check whether it contained a clause like the one in the Suncoast case, which might have operated to remove Finplas as the trustee of the Finplas Trading Trust upon their appointment as liquidators. Mr Clarke then reported that cl 16.3 of the trust deed appeared to operate in that way. Mr Theobald, having read cl 16.3, determined to seek legal advice in relation to the operation of cl 16.3 of the trust deed. 13 On 1 May 2013, the liquidators obtained advice from Gilbert + Tobin which confirmed that cl 16.3 of the trust deed operated to remove Finplas as trustee of the Finplas Trading Trust with effect from 15 March 2013, when Finplas went into liquidation. 14 In the course of the liquidation of Finplas, the liquidators have recovered monies from trade debtors and also recovered an amount which had been paid to the ATO following their claim that the payment had been a preference payment. These funds have been deposited into the Finplas liquidation bank account which the liquidators opened on their appointment. 15 On 6 June 2013, the liquidators paid the sum of $8,020.10 from the Finplas liquidation bank account to Gilbert + Tobin in respect of legal fees which they had incurred in the course of the liquidation of Finplas. This payment was referred to by Mr Theobald in his affidavit as the "Post-Appointment Payment". Mr Theobald said that when he found out about that payment he arranged for Finplas's bank account to be credited with the sum of $8,020.10. 16 On 26 August 2013, the liquidators commenced a proceeding in this Court seeking the following relief: 1 Declarations that: (a) pursuant to section 1318 of the Corporations Act 2001 (Cth) (Corporations Act), further and alternatively section 75 of the Trustees Act 1962 (WA) (Trustees Act), Simon Guy Theobald and Jeffrey Laurence Herbert (Liquidators) in their capacity as liquidators of Finplas Pty Ltd (in liquidation) (Finplas) as trustee for the Finplas Trading Trust (Trust) acted honestly and ought fairly be excused for any breaches, failures or omissions relating to: (i) the sale, between 14 and 20 March 2013, of the plant and equipment formerly held by Finplas (Finplas Plant & Equipment); and (ii) a payment made by the Liquidators from the National Australia Bank Account titled "Finplas Pty Ltd (In Liquidation)" on 6 June 2013 (Post-Appointment Payment). (b) the Liquidators are entitled to be indemnified out of the Trust assets in respect of any liabilities incurred by Finplas in its capacity as trustee of the Trust, together with the costs and expenses of the winding up of Finplas. 2 An order pursuant to section 89 of the Trustees Act that the sale of the Finplas Plant & Equipment be deemed to be a sale within the power of the Liquidators and Finplas as trustee of the Trust. 3 An order that pursuant to section 479(3) of the Corporations Act and section 89 of the Trustees Act that Finplas through its Liquidators be permitted to realise the Trust assets in the course of the winding up of Finplas. 4 Orders pursuant to section 479(3) of the Corporations Act that: (a) the Trust assets (including the proceeds of sale of any Trust assets) be dealt with by the Liquidators as assets in the winding up of Finplas and accounted for accordingly; (b) the costs and expenses incurred by Finplas and the Liquidators and the Liquidators' remuneration in realising any Trust assets (including the Finplas Plant & Equipment) and otherwise dealing with the Trust be costs in the winding up of Finplas and paid from the Trust assets and in so far as payments have already been made such payments be deemed to be costs in the winding up of Finplas and paid from the Trust assets; and (c) the costs of this proceeding be costs in the winding up of Finplas and paid from the Trust assets. 17 Mr Theobald has deposed that the liabilities of Finplas substantially exceed its assets and that the liquidators anticipate a likely return to creditors of no more than one cent to one and a half cents in the dollar. 18 Each of the ATO and the Australian Securities and Investments Commission (ASIC) was served with this application and each notified the Court that they did not intend to appear to oppose the relief sought.

relief under s 89 of the trustees act 1962 (WA) 19 I deal firstly with the application for relief under s 89 of the Trustees Act (WA). 20 The application for relief under this section of the Trustees Act (WA) is founded on the liquidators' concern that they lacked the power to sell the Finplas plant and equipment in March 2013. 21 The liquidators' application mirrors applications which have been made by liquidators in similar circumstances in the cases of Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 (Caterpillar), Re Starrit Pty Ltd [2012] FCA 803 and Suncoast. 22 The authorities relevant to this issue have, with respect, been well canvassed in the cases referred to in the preceding paragraph. This relieves me from the necessity of having to embark upon that exercise in this case. 23 In brief, the position in relation to Finplas and the liquidators is as follows: (a) As the trustee of the Finplas Trading Trust, Finplas had a right of indemnity and/or exoneration in respect of any liabilities which it incurred in the conduct of trust business. This right entitled the trustee to resort to the trust assets in order to meet any liabilities which it had or may incur in the conduct of trust business. Finplas was also entitled to the benefit of an equitable lien over the trust assets as a means of securing its rights of indemnity and/or exoneration. (b) The trustee's equitable lien in support of its right of indemnity and/or exoneration is enforceable by the trustee only by judicial sale or the appointment of a receiver and not by foreclosure, or by sale out of court (Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550). (c) Pursuant to the operation of cl 16.3 of the Finplas Trading Trust deed, Finplas was removed as trustee of the Finplas Trading Trust on the appointment of the liquidators on 15 March 2013. The consequence was that from that date Finplas held the trust assets as a bare trustee. (d) Mr Sayed Hosseini, the appointor under the Finplas Trading Trust, gave evidence to the effect that it had never been his intention on 15 March 2013, nor at any time thereafter, to appoint a replacement trustee of the Finplas Trading Trust. Mr Hosseini said that his intention from 15 March 2013 onwards has been for the liquidators to liquidate the affairs of Finplas and the Finplas Trading Trust. (e) Notwithstanding its removal as trustee of the Finplas Trading Trust, Finplas continued, thereafter, to have the benefit of its right of indemnity and/or exoneration in respect of liabilities which Finplas had incurred in the conduct of the trust business. Finplas also enjoyed the continuing benefit of the equitable lien over the trust assets in support of its rights of indemnity and/or exoneration. (f) Furthermore, by reason of its equitable lien, Finplas had a right to retain possession of the trust assets as against the beneficiaries of the Finplas Trading Trust, even after its removal as trustee of that trust. However, in this case, the beneficiaries had no residual entitlement to the trust assets. This is because the trust assets were the subject of Finplas's right to indemnity and/or exoneration and the liabilities incurred by Finplas in respect of which the right of indemnity and/or exoneration operated, exceeded the value of the trust assets. (g) On their appointment, the liquidators acquired the benefit of the trustee's right of indemnity and/or exoneration and the equitable lien which supported these rights. However, as a bare trustee of the trust assets, the Finplas did not have a power to sell trust assets. Nor, as I have mentioned, did Finplas have the right to sell the assets by reason of its entitlement to an equitable lien over the assets, save with the assistance of a court. This is because Finplas's rights pursuant to its entitlement to an equitable lien was confined to applying to court for a judicial sale of the assets, or for the appointment of a receiver. (h) It follows, therefore, that in March 2013, when they arranged for Grays Auctioneers to sell the Finplas plant and equipment, the liquidators did not have the power to sell those assets in that manner. 24 Section 89 of the Trustees Act (WA) provides as follows: (1) Where in the opinion of the Court any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, retention, expenditure or other transaction is expedient in the management or administration of any property vested in a trustee, or would be in the best interests of the persons, or the majority of the persons, beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the disposition or transaction without the assistance of the Court, or it or they cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument (if any) or by law, the Court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions (if any) as the Court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne, and as to the incidence thereof between capital and income. (2) The Court may from time to time rescind or vary any order made under this section, or may make any new or further order; but such a rescission or variation of any order shall not affect any act or thing done in reliance on the order before the person doing the act or thing became aware of the application to the Court to rescind or vary the order. (3) An order may be made under this section, notwithstanding anything to the contrary contained or expressed in the instrument creating the trust. (4) An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust. 25 In Caterpillar, Gordon J granted relief under s 63 of the Trustees Act 1958 (Vic) (the equivalent section in Victoria to s 89 of the Trustees Act (WA)) in respect of the sale by a liquidator of a corporate trustee of a BMW motor vehicle at a time when the corporate trustee had been removed as the trustee of a trading trust and, therefore, lacked the power of sale. Gordon J held that in those circumstances, it was appropriate for the court to confer upon the corporate trustee under s 63, and so upon the liquidator, the power of sale. The effect of Gordon J's order was retrospectively to empower of the trustee and so the liquidator to sell the BMW vehicle. 26 Likewise, in Suncoast, Reeves J in similar circumstances made an order having the same effect under the equivalent section, s 94 of the Trusts Act 1973 (Qld), in respect of a sale of trust assets which had already occurred. Reeves J at [62] recognised that the Act permitted an order to be made under that section which operated retrospectively to empower the trustee to sell the trust property. 27 In each of those cases, as in this case, the appointor under the trust deed had declined to appoint a trustee to replace the removed trustee. 28 I am also of the view that it is appropriate to make the orders sought by the liquidators under s 89 of the Trustees Act (WA). This is because it is plain that the sale of the Finplas plant and equipment was expedient in the administration of the property vested in Finplas and that the assistance of the Court is necessary to effect the disposition of the property.

should the liquidators be excused pursuant to s 1318 of the corporations act 2001 (Cth)? 29 The joint liquidators submit that in their capacity as liquidators of Finplas as trustee for the Trust they acted honestly and ought to fairly be excused for any breaches, defaults or omissions relating to the sale of the plant and equipment formerly held by Finplas. 30 Section 1318 of the Corporations Act empowers the Court to grant such relief. Section 1318 provides as follows: Power to grant relief (1) If, in any civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity as such a person, it appears to the court before which the proceedings are taken that the person is or may be liable in respect of the negligence, default or breach but that the person has acted honestly and that, having regard to all the circumstances of the case, including those connected with the person's appointment, the person ought fairly to be excused for the negligence, default or breach, the court may relieve the person either wholly or partly from liability on such terms as the court thinks fit. (2) Where a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, breach of trust or breach of duty in a capacity as such a person, the person may apply to the Court for relief, and the Court has the same power to relieve the person as it would have had under subsection (1) if it had been a court before which proceedings against the person for negligence, default, breach of trust or breach of duty had been brought. (3) Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge after hearing the evidence may, if he or she is satisfied that the defendant ought pursuant to that subsection to be relieved either wholly or partly from the liability sought to be enforced against the person, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge thinks proper. (4) This section applies to a person who is: (a) an officer or employee of a corporation; or (b) an auditor of a corporation, whether or not the person is an officer or employee of the corporation; or (c) an expert in relation to a matter: (i) relating to a corporation; and (ii) in relation to which the civil proceeding has been taken or the claim will or might arise; or (d) a receiver, receiver and manager, liquidator or other person appointed or directed by the Court to carry out any duty under this Act in relation to a corporation. 31 The liquidators' application is made pursuant to s 1318(2). This is because no civil proceedings had been commenced against the liquidators in relation to their conduct in selling the Finplas plant and equipment, and so s 1318(1) has no application to the circumstances of this case. 32 The first question is whether s 1318 (2) applies. This requires consideration of whether the liquidators have reason to apprehend that a claim arising from the sale of the Finplas plant and equipment "will, or might, be made against them". 33 In Suncoast, Reeves J observed that the words "has reason to apprehend" in s 1318(2) imported a requirement for an objective basis for the apprehension. Reeves J (at [30]) also observed that in this context, the use of the word "might" contemplated an apprehension which was "a real, not fanciful or remote possibility". 34 Mr Theobald deposed that he believed it was possible that a claim may be brought by one or more of the creditors of Finplas or the beneficiaries of the Trust. Mr Theobald deposed that the possibility that such a claim may be brought, was real, given that it was his intention to have a copy of the application and his affidavit served on ASIC and the ATO, and the primary beneficiaries of the Finplas Trust were aware that Finplas had no power to sell the Finplas plant and equipment. 35 In my view, for the following reasons, Mr Theobald's evidence does not demonstrate a sufficient objective basis for the apprehension entertained by Mr Theobald. 36 First, the evidence does not disclose any real possibility of an application for breach of trust being brought by the beneficiaries of the Finplas Trading Trust. As mentioned, the beneficiaries of the Finplas Trading Trust are also the shareholders of Finplas who appointed Mr Herbert and Mr Theobald as liquidators at a general meeting of shareholders of the company. Further, the evidence of Mr Hosseini is that, in appointing the liquidators to wind up Finplas, the shareholders intended that the liquidators should wind up the affairs of the trustee company and the Trading Trust. Accordingly, in selling the assets, the liquidators were giving effect to the beneficiaries and shareholders' purpose in appointing the liquidators in the first place. 37 Secondly, Finplas is hopelessly insolvent. The consequence is that there are no assets in the Finplas Trading Trust in respect of which the beneficiaries would have any beneficial interest. There is, therefore, no incentive for the beneficiaries to commence any litigation from which they would derive no benefit. 38 Thirdly, there is no real possibility that the creditors will commence any action in respect of the sale of the Finplas plant and equipment. This is because by selling the Finplas plant and equipment, the liquidators were able to generate funds to be used in meeting the creditors' claims in the liquidation of Finplas. The evidence is that the sale of the plant and equipment realised more than the valuation of the Finplas plant and equipment. Albeit that the anticipated dividend to the creditors is very low, there is no incentive for the creditors to commence any litigation in respect of conduct by the liquidators which has provided a benefit to the creditors. Also, the major creditor by far is Finira, a related company, of which Mr Herbert is a liquidator. There was no evidence from Mr Herbert in his capacity as a liquidator of Finira, to the effect that he was considering bringing litigation against himself and Mr Theobald in their capacity as liquidators of Finplas. Likewise, the ATO which appears, in effect, to be the second largest creditor, was served with this application, and has not appeared to oppose the granting of relief on the basis that it was intending to bring a claim against the liquidators. 39 Fourthly, the liquidators' application was also served on ASIC. ASIC did not appear to oppose the relief sought by the liquidators on the basis that it intended to commence litigation against the liquidators in their capacity as liquidators of Finplas in its capacity as a bare trustee of the trust assets. 40 It follows, that the Court will not grant the relief sought by the liquidators under s 1318 (2) of the Corporations Act.

should the liquidators be excused pursuant to s 75 of the trustees act (WA)? 41 Further and in the alternative, the liquidators sought relief under s 75 of the Trustees Act (WA). 42 Section 75 permits the Court to relieve the trustee from personal liability for breach of trust. It reads as follows: If it appears to the Court that a trustee, whether appointed by the Court or otherwise, is, or may be, personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed the breach, then the Court may relieve him either wholly or partly from personal liability for that breach. 43 The section does not contain the same limitation in relation to the apprehension of the commencement of legal proceedings against the liquidators as does s 1318(2) of the Corporations Act. In Caterpillar, Gordon J granted relief under the equivalent provision of the Trustees Act (Vic) on the basis of evidence that of the liquidators in that case had acted honestly. 44 Mr Theobald deposed that as at 20 March 2013, being the time of the sale of the plant and equipment, neither he nor anyone in his office had yet received a copy of the Finplas Trading Trust deed. Mr Theobald also said that at no stage was he informed by any of the directors of Finplas about the existence or effect of clause 16.3 of the trust deed, which removed Finplas as trustee of the Trust upon the appointment of liquidators. For these reasons Mr Theobald said that he genuinely and honestly believed that as liquidator of Finplas, he had the power to realise the trust assets in the liquidation of Finplas. Had he been aware of clause 16.3 of the trust deed, Mr Theobald says he would not have proceeded with the sale in the manner which he did. 45 Mr Theobald also deposed that he believed that the Finplas plant and equipment was sold for a reasonable and fair value and his action in directing the sale of the Finplas plant and equipment has not resulted in any net loss to the Trust. 46 In my view, the evidence of Mr Theobald demonstrates that the liquidators acted honestly in relation to the sale of the Finplas plant and equipment. Like Gordon J in Caterpillar, I will, therefore, on the basis of that evidence make the declarations sought by the liquidator by reference to s 75 of the Trustees Act (WA).

the post-appointment payment 47 The liquidators also sought relief under s 75 of the Trustees Act (WA) in relation to a payment made on 6 June 2013 to the liquidators' solicitors, Gilbert + Tobin. This payment was referred to above as the "Post-Appointment Payment". 48 In my view, this payment was made in the course of the winding up of Finplas pursuant to the right of indemnity in respect of the assets of Finplas which the liquidators would have in respect of the incurring of expenses in the liquidation of Finplas. Finplas's major asset is its right of indemnity and/or exoneration in respect of the trust assets. It was in respect of that asset that the liquidators' right of indemnity operated. In my view, therefore, the liquidators were entitled pursuant to their right of indemnity to have resort to the trust assets in respect of the expenses they incurred in the winding up. The payment of legal fees, therefore, in my view, falls outside of the limitations referred to above, which attended the liquidators in seeking to sell trust assets. There is, therefore, in my view, no need for any order to be made under s 75 of the Trustees Act (WA).

other orders 49 It follows from what I have said that I will also make the other orders sought by the liquidators. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.