Corporate Affairs Commission v ASC Timber Pty Ltd

1. Pursuant to subs 477(2B) of the Corporations Act 2001 (Cth), the Court grants approval nunc pro tunc for Vincent Pirina in his capacity as liquidator of Aircraft Support Industries Engineering Pty Ltd (in liquidation) (the company) to enter into, and to cause the company to enter into, a Deed of Settlement and Release, a copy of which is annexed and marked "A" to the affidavit of Simon Gallant affirmed 19 October 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 Mr Vincent Pirina has commenced proceedings in this Court, in his capacity as liquidator of Aircraft Support Industries Engineering Pty Ltd (in liquidation), against Mr Mark Calvin Langbein and ASI Global Private Limited. Mr Langbein is the director of Engineering, and Global is Engineering's parent company. Mr Pirina alleges, in short, that Mr Langbein and Global are liable, pursuant to various provisions of the Corporations Act 2001 (Cth), for debts incurred by Engineering during a certain period of time before it was wound up. Those debts total approximately $2.3 million. 2 The matter was listed for hearing to commence at 10.15 am today, 19 October 2020. At 11.45 am, following what may be regarded as some last minute manoeuvring or, perhaps, brinksmanship, between the parties, I was advised that, subject to one condition, the proceeding had settled. 3 The relevant condition was that the terms of settlement were conditional on the Court approving the settlement, nunc pro tunc, pursuant to s 477(2B) of the Act. The reason the liquidator requires the approval of the Court under that section is that the obligations of Mr Langbein and Global under the agreement are to be discharged by performance at a time which is more than three months after the agreement was entered into. The settlement could also be approved by resolution of the creditors under the terms of s 477(2B). The difficulty if that course were to be pursued, however, is the hearing would have to be adjourned for a period of some weeks for that to occur. If the creditors for some reason or other did not approve the settlement, the result would be that the matter would no longer have settled and would have to be relisted for hearing at some time in the future, most likely next year. 4 The relevant principles in relation to the Court's approval of such settlements under s 477(2B) of the Act are well settled. In Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375, Gordon J described the task of the Court in the following terms (at [26(4)], quoting Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1642 at 1650): … simply to review the liquidator's proposal, paying due regard to his or her commercial judgment and knowledge of all of the circumstances of the liquidation, satisfying itself there is no error of law or ground for suspecting bad faith or impropriety, and weighing up whether there is any good reason to intervene in terms of the "expeditious and beneficial administration" of the winding up. … 5 In In the matter of 7 Steel Distribution Pty Limited (in liquidation) (receivers and managers appointed) [2013] NSWSC 669; 31 ACLC 13-021, Black J (at [17]) described the approach of the Court in the following terms: The Court is not concerned, in granting an approval under s 477(2B) of the [Act], with matters of commercial judgment but is concerned to be satisfied that the entry into the agreement is a proper exercise of power and not ill-advised or improper on the part of the liquidator … In Pascoe; Re Matrix Group Limited (in liq) [2011] FCA 1117 at [14], Jacobson J noted that the question for the Court in such an application was whether the liquidator's judgment had been infected by a lack of good faith, or an error of law or principle, and whether there was a real or substantial ground for doubting the prudence of the Liquidator's conduct in seeking to enter into the funding agreement. That question arises, in the context of s 477(2B), in the context of entry into a longer term agreement, the performance of which might otherwise delay the completion of the winding-up. 6 It has been repeatedly held that while a liquidator should ordinarily seek approval before entering into a long-term agreement, the Court can give approval nunc pro tunc in appropriate circumstances: Goyal (liquidator), in the matter of OLI 1 Pty Ltd (in liq) [2020] FCA 450 at [16]; Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) (No 2) [2017] FCA 755 at [27]; In the matter of Kevin Jacobsen Pty Limited (in liquidation) [2016] NSWSC 538; 113 ACSR 277 at [75]; and Hamilton, in the matter of ACN 101 634 146 Pty Ltd (in liq) [2014] FCA 687 at [4]. 7 The application for the Court's approval pursuant to s 477(2B) of the Act was supported by affidavit evidence from Mr Pirina's solicitor, Mr Simon Gallant. That affidavit annexes a copy of the Deed of Settlement and Release. 8 The key terms of the Deed are that Mr Langbein and Global are to pay Engineering the sum of $1.35 million, though they can pay the lesser sum of $1.25 million provided that the sum is paid on or before 15 April 2021. It is also agreed that Mr Langbein, Global and related companies will not make any claim as either a secured or unsecured creditors in the liquidation of Engineering. As would be expected, the Deed also provides for mutual releases. As already indicated, the Deed does not become operative until the settlement is approved pursuant to s 477(2B) of the Act. 9 Mr Gallant's affidavit evidence advances the following reasons why the Court should approve the settlement. 10 First, given that the settlement was only reached on the first day of the hearing, it is not practical for Mr Pirina to seek the approval of Engineering's creditors. 11 Second, Mr Pirina's acceptance of the terms of the Deed constitutes a proper exercise of his powers and there is nothing to suggest that it was or is an ill-advised or improper act. It was explained, in this context, that the reason for the six-month settlement period is that Mr Langbein and Global do not presently have $1.25 million to discharge their obligations under the Deed and will be required to raise those monies either by obtaining finance or selling a property. That will take some time. 12 Third, Mr Pirina believes and accepts that the six-month period in which to obtain the relevant finance is reasonable in all the circumstances, particularly given the general impact of the COVID-19 pandemic, the intervention of the Christmas holiday period and various other matters. 13 Fourth, and perhaps most significantly, Mr Pirina believes, not unreasonably, that the interests of Engineering's creditors will not be prejudiced by allowing Mr Langbein and Global six months to obtain finance to pay the settlement amount. The critical consideration in that regard is that the obligations of Mr Langbein and Global to pay monies under the Deed are effectively secured by a mortgage over a property. 14 Having considered the terms of the Deed and the evidence of Mr Pirina's solicitor, I consider that it is appropriate in all the circumstances for the Court to approve the settlement under s 477(2B) of the Corporations Act. There is nothing to suggest that the exercise of Mr Pirina's power, as liquidator, to settle the proceeding on the terms set out in the Deed was or is anything other than a proper exercise of power or was in any sense ill-advised or imprudent. Nor is there anything to suggest that allowing Mr Langbein and Global six months to pay the settlement amount is likely to result in any prejudice to the creditors or the winding up generally. Indeed, Mr Pirina's reasons for accepting that period of time for the settlement to be completed appear to be sound and reasonable in all the circumstances. I accordingly propose to approve the settlement. 15 The Court will make the following order: (1) Pursuant to subs 477(2B) of the Corporations Act 2001 (Cth), the Court grants approval nunc pro tunc for Vincent Pirina in his capacity as liquidator of Aircraft Support Industries Engineering Pty Ltd (in liquidation) (the company) to enter into, and to cause the company to enter into, a Deed of Settlement and Release, a copy of which is annexed and marked "A" to the affidavit of Simon Gallant affirmed 19 October 2020. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.