Crawford v Oswald Park Pty Ltd

Judgment 1Before me for hearing on 23 February 2011 was an application by Ian James Purchas, as the liquidator of Astarra Asset Management Pty Ltd (in liq) (Astarra), for judicial advice and orders under section 511 of the Corporations Act 2001 (Cth) or alternatively (to the extent that he may be a mere trustee) under sections 63 and 81 of the Trustee Act 1925 (NSW) and pursuant to section 23 of the Supreme Court Act 1970 (NSW) and the inherent or implied jurisdiction of the Court . The judicial advice so sought relates to the manner in which property (in the form of both money and shares) presently held by Astarra (and to which others may have a beneficial entitlement) should be disbursed. 2In particular, the property in question comprises: (a)approximately $453,000 (the Fund ) held in two accounts with St George Bank, respectively being account 553 241 357 (in which there was a balance as at 3 December 2010 of $402,986.42) and account 553 176 663 (in which there was a balance as at 3 December 2010 of $50,391.66); and (b)shares (the Gulf Mines Shares) issued by Gulf Mines Limited, ACN 059 954 317, in the name of "Tailwind Limited c/- Absolute Alpha". 3On this application I read an affidavit sworn by Mr Purchas on 3 December 2010 together with an affidavit sworn on 23 December 2010 by Mr Shawn Darelle Richard, one of the directors of Astarra. The present application arises out of the investigations that have been carried out by Mr Purchas since his appointment as the liquidator of Astarra (formerly known as Absolute Alpha Pty Ltd) on 22 December 2009. 4On the hearing of Mr Purchas' application there was an appearance on behalf of the liquidators of Trio Capital Limited (Trio) who did not contend for any different assessment of the facts than that for which Mr Purchas has contended. 5At the conclusion of the hearing before me, I provided the advice sought and indicated that I would publish my written reasons as soon as I could. These constitute those reasons. Background Facts 6Trio (formerly known as Astarra Capital Limited) was the responsible entity for various registered managed investment schemes, including a scheme known as the Astarra Strategic Fund (formerly known as the Alpha Strategic Fund) (ASF). Astarra (which had been incorporated on 22 April 2005 and was controlled by Mr Shawn Richard and Mr Eugene Liu), was appointed by Trio in September 2009 as the investment manager of those registered managed investment schemes, including ASF. 7Administrators were appointed to Trio and then on 19 March 2010, Palmer J made orders pursuant to s 601ND(1)(c) of the Corporations Act for the winding up of the schemes for which Trio was the responsible entity. In his Honour's reasons for judgment in Trio Capital Ltd (Administrators appointed) v ACT Superannuation Management Pty Ltd [2010] NSWSC 286, published on 16 April 2010, the factual background to the winding up application was summarised. It is fair to say that his Honour was scathing as to the manner in which the schemes had been established and, relevantly for present purposes, emphasised the difficulty encountered by the administrators in ascertaining the assets in which the investment funds had been invested (at [22]) and observed that much of the activity of the schemes had been cloaked in obscurity. 8In his affidavit, Mr Purchas set out the background to the investment schemes and exhibited to his affidavit were copies of the various documents through which investors' funds were to be invested. Broadly, speaking, Trio held itself out as an alternative financial services provider, specialising in the administration and funds management services (and I refer here to the Product Disclosure Statement issued by Trio in August 2009, a copy of which was in evidence before me). Astarra was its investment manager. 9Funds from those investing in the ASF were applied under the terms of a Master Deferred Purchase Agreement entered into on 15 February 2006 between Astarra (in its capacity as the investment manager of the ASF), EMA International Ltd (an entity incorporated in the British Virgin Islands) (EMA) and ANZ Nominees Ltd as custodian for Trio. (The identity of the custodian changed over time but nothing turns on this.) Although recital A to the Master Deferred Purchase Agreement noted that Astarra was the investment manager for the ASF, it is relevant to note that Astarra was also described in the Agreement as the agent for the responsible entity (Trio). 10Under the Master Deferred Agreement, Astarra had the contractual right to receive certain Delivery Assets at a future time. The value of those assets was based upon the performance of specific offshore funds into which EMA invested the purchase price paid to it. In particular, under the Master Deferred Purchase Agreement, Astarra agreed to purchase from time to time the "Delivery Asset Parcel" from EMA "on a deferred basis" for the "Purchase Price" in accordance with the agreement (clause 1.1). Correspondingly, clause 1.3 provided that, in consideration of the Purchase Price, EMA agreed to sell from time to time the "Delivery Asset Parcel" to Astarra (again "on a deferred basis" in accordance with the agreement). The term "Delivery Asset Parcel" was defined as meaning "the actual Delivery Assets delivered by EMA ... on the relevant Settlement Date in completion of the relevant portion of this Agreement". The term "Delivery Asset" was defined by reference to the meaning given in the relevant Supplemental Agreement. 11Each time an investment was made, a Supplemental Agreement between EMA, Astarra and Trio was to be executed under which the underlying investment was identified (and defined as "Underlying"), together with the Purchase Price and Subscription Date. (In the event of inconsistency between the Master Deferred Purchase Agreement and the Supplemental Agreement the latter was to prevail - clause 1.2.) 12Under clauses 2.1-2.3, the Purchase Price was to be payable by Astarra to EMA in Australian dollars within 3 business days of the relevant Subscription Date and EMA undertook to use all of that to acquire interests in the "Underlying" (but was entitled to use such portion of the funds as necessary to acquire a portion of the Delivery Assets to be held for the benefit of Astarra under clause 9 of the agreement - under which it was to acquire a beneficial interest in a portion of the assets on the relevant Issue Date and to hold such interest until completion). 13The procedure for completion was set out in clause 3 of the Master Deferred Purchase Agreement. Relevantly, Astarra was entitled to request Completion of Contracts (the cut-off date for a Completion Request being the 15 th day of each calendar month) and EMA was obliged to complete "a corresponding portion of the relevant Underlying within 60 business days thereafter". Clause 3 .6 provided that, upon delivery of the Delivery Asset Parcel to Astarra in accordance with clause 3, EMA's obligations to Astarra in respect of the relevant Completion under the agreement were fully satisfied and discharged. 14In fact, the procedure followed in relation to the investment of the ASF funds was not exactly in accordance with the provisions of the Agreement. Apart from anything else, EMA had no bank account into which the purchase price could be deposited. According to Mr Purchas' investigations and Mr Richard's recollection as set out in his affidavit, the scheme was to involve the following steps: investors would invest monies in the ASF; the Custodian for ASF (first ANZ, then the National Australia Bank and then Trio itself) would pay some of those monies to Astarra for "placement" with EMA; Trio would then complete a supplemental agreement in accordance with the Master Deferred Purchase Agreement, which nominated the amount which would be paid on behalf of the ASF; 3 days later EMA became entitled to the ASF funds quantified in the Supplemental Agreement; EMA was then required to Invest the funds in the "Underlying [asset]"; and thereafter either Astarra or EMA could request Completion of the Supplemental Agreement (which then required EMA to deliver the "Delivery Asset Parcel", being the value of the investment less fees and expenses). 15In fact, it appears that what happened after the execution of the Supplemental Agreement was that Astarra deposited the ASF monies into a brokerage account with a United States company, Interactive Brokers LLC, and Mr Richard and/or Mr Liu then commenced securities trading with those monies. In order to trade through Interactive Brokers, Astarra established a deposit account (the Interactive Brokers account) with it (the application form dated 12 March 2009 being completed by each of Mr Richard and Mr Liu). 16The relevant investments (to which the Fund the subject of the present application relates) were investments in the Tailwind Investment Fund (Tailwind). That fund was established in the Cayman Islands as an "exempted limited duration company". Astarra was a ppointed as the investment manager of Tailwind. It was described (in the application form for the Interactive Brokers account) as the Tailwind fund adviser and administrator. 17Memoranda prepared by Astarra for ASF record that on 3 March 2009, 6 April 2009 and 2 June 2009, respectively, ASF invested $3.45 million into the 'Tailwind Investment Fund'. In evidence were copies of three Supplemental Agreements into which Astarra entered in relation to investments in Tailwind (dated, respectively, 3 March 2009 (for $AUSD 700,000, with a subscription date of 6/3/09; p277 Ex A); 6 April 2009 (for AU$750,000, with a subscription date of 9/3/09 [sic]; p273 Ex A); and 2 June 2009 (for AU$2,000,000, with a subscription date of 15/6/09; p281 Ex A)). 18Also in Exhibit A were copies of St George Bank transaction history reports and bank statements which mirror (or substantially mirror) those three deposits into the Astarra account (for EMA) totalling approximately $3.415m, and the transfer of corresponding funds ( approximately $3.29m) to the account number referable to Interactive Brokers. 19Also in evidence were reports from a valuation company (JC Consulting) on a monthly account summary basis showing the total subscribed value in Tailwind ($3,405,193.58) and the current account value (which deteriorated over time), ending up as at 30 April 2010 at a value of $397,858.55. 20Trio was placed into liquidation on 22 June 2010. 21Between 10 May 2010 and 13 October 2010, Interactive Brokers paid to Astarra's account $425,327.29. Those monies have been placed into interest bearing accounts and, as at 3 December 2010, the value of the Fund was approximately $453,000. 22Subject to some minor qualifications (relating to fees and expenses referable to the Tailwind investment), it is submitted by Counsel for Mr Purchas (Mr Stack) that the Fund belongs either to EMA or to ASF (although if the former then it seems that EMA would have obligations under the Master Deferred Purchase Agreement in relation to the due completion of the deferred purchase in due course). The fees and expenses to which reference is made comprise fees due to JC Consulting of $806.45 in relation to the valuation work carried out by that organisation, referred to in paragraph 39(b) of Mr Purchas' affidavit and p 346 of Exhibit A, and management fees of $10,000.02 claimed to be due to Astarra from ASF/EMA/Tailwind, referred to again in paragraph 39 (b) of Mr Purchas' affidavit, pp 31, 36, 92,124 & 347 of Exhibit A.) (There is no objection by Trio's liquidators to the retention by Astarra of sums out of the Fund for the payment of those fees.) 23On 30 June 2010, the then solicitors for the liquidators of Trio wrote to Mr Purchas' lawyers contending that the Fund was the property of EMA and seeking payment of the Fund to the liquidators of Trio pursuant to a power of attorney granted by EMA. On 31 January 2011, the current solicitors for the liquidators of Trio wrote to Mr Purchas' lawyers contending that the Fund belonged to ASF rather than EMA. (As noted above, Trio's liquidators appeared on the application before me.) EMA has itself asserted no rights in relation to the Fund (and would, under the Master Deferred Purchase Agreement, have been liable to deliver the Delivery Asset Parcel constituted by the underlying investment in Tailwind if called upon to do so). 24As far as EMA is concerned, I was informed by Mr Stack that it does not appear to be under the control of anyone at the present (having formerly been under the control of an entity in Hong Kong controlled by an entity associated with a Mr Jack Flader or in which he has an interest - the GCSL Group of Companies - and having at one time been under administration in the British Virgin Islands). (Some of the background in relation to the GCSL Croup of Companies was considered by me in a different context last year when the liquidator of Trio was seeking the production of documents in connection with an investigation into the affairs of the company.) The liquidators of Trio have raised concerns as to the distribution of funds ultimately referable to the ASF into the hands of a company no longer effectively controlled by any identifiable person or entity. 25As to the Gulf Mines Shares, in the course of his enquiries as liquidator of Astarra Mr Purchas has discovered that some 1,009,886 shares in Gulf Mines Limited ACN 059 954 317 are recorded as being owned by "Tailwind Limited c/- Absolute Alpha" (Absolute Alpha being the former name of Astarra). In evidence as part of Exhibit A are copies of an InvestorServe online account search, together with a copy of a Gulf Mines share purchase application form apparently issued to Tailwind Limited as a shareholder of the company (pp 333, 334). 26There is no Australian company by the name of "Tailwind Limited". Mr Stack surmises that this is a reference to the Tailwind Fund, the acquisition having been sourced from funds obtained through the monies invested in the ASF. 27Mr Richard, in his affidavit, deposes to the purchase by him of the Gulf Mines Shares with monies of Astarra. He asserts that EMA has no entitlement to the Gulf Mines Shares and disclaims any interest in the shares for himself. Mr Richard says that he has no documentation relating to this purchase, but annexes copies of documents relating to the sale of 994,370 shares in Gulf Mines Limited, executed by him, on behalf of 'Tailwind Limited'. 28Mr Purchas now seeks judicial advice as to the manner in which as liquidator he should deal with the Fund and the Gulf Mines Shares. 29The Originating Process also includes a claim for an order that Mr Purchas' costs and expenses be paid out of the Fund and the Shares. In this regard, Mr Stack relies on the authorities in which it has been said that where, as here, work has been done in recovering, realizing and preserving property, those costs are ordinarily payable from that fund (referring generally to Re Universal Distributing Co Ltd (1933) 48 CLR 171 ; Shirlaw v Taylor (1991) 31 FCR 222 ; Re Application of Sutherland (2004) 50 ACSR 297 ; and Grossman v E Katz Manufacturing Jewellers (2004) 213 ALR 373 at [6]) . 30Mr Purchas thus contends that the Fund should be subjected to the following charges, before the balance is otherwise remitted to Trio: the fees due to JC Consulting of $806.45; the claimed management fees of $10,000.02 due to Astarra by ASF/EMA/Tailwind; and the costs and expenses incurred by Mr Purchas relating to his work in recovering the Fund and the Gulf Mines Shares (quantified from 22 December 2009 to 30 November 2010 in the sum of $41,928.50 and estimated by way of ongoing costs to be not more than $16,500). Mr Purchas also claims the legal costs of and incidental to his work and for this application out of the Fund. (Again, the payment of the liquidators' claimed fees, costs and expenses is not objected to by the Trio liquidators.) Legal Principles 31As noted above, Mr Purchas was appointed by the sole shareholder of Astarra as liquidator of Astarra on 22 December 2009. Hence this application is made under s 511 (rather than under section 479 (3)) of the Corporations Act. 32Section 511 relevantly provides as follows: (1) The liquidator, or any contributory or creditor, may apply to the Court: (a) to determine any question arising in the winding up of a company; or (b) to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court. (2) The Court, if satisfied that the determination of the question or the exercise of power will be just and beneficial, may accede wholly or partially to any such application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just. 33Mr Stack notes that, although there are some differences (and in this regard I note that the Court's power to give directions in a court ordered winding up is not limited by the requirement that it be satisfied it is 'just and beneficial' to do so as is the case under s 479(3)), applications made under s 511 in a voluntary winding up are determined in much the same way as applications in a court ordered winding up under s 479(3) of the Corporations Act ( citing Dean-Willcocks v Soluble Solution Hydroponics (1997) 42 NSWLR 209 at 212 ; Crawford v Oswald Park Pty Ltd (in liq) [2006] NSWSC 987 at [10] ; and S & D International v MIG Property Services [2010] VSC 336 at [7]) . 34The requirement that the Court be satisfied that it is "just and beneficial" to determine the question or exercise the power the subject of the application is said to involve a similar concept to that comprised by the expression "just and equitable" (Austin & Black's Annotations to the Corporations Act [5.511]), allowing the Court a discretion whether to make such an order by reference to whether the relief sought by the liquidator is "of advantage in the liquidation" ( Soluble Solution Hydroponics at [212] ; S&D International at [7]). 35Austin & Black further note that although a number of cases suggest that an application for determination of a question in a winding up under s 511(1)(a) should not be brought ex parte, that rule is not an inflexible one (referring to Shiraz Nominees (in liq) v Collinson (1985) 10 ACLR 7; 3 ACLC 706 and Soluble Solution Hydroponics at [21]). 36Mr Stack acknowledges that "a determination under s 511 cannot, of itself, bind anyone except the liquidator and the persons entitled to participate under the winding up. Its effect within that group is merely to sanction a course of conduct on the part of the liquidator so that he or she may adopt that course free from the risk of personal liability for breach of duty" (citing Re Anglican Insurance Ltd [2008] NSWSC 41 at [38]; and S & D International at [7]). 37Pausing there, the advantage identified for the liquidation of the relief now sought is twofold - to permit the distribution of property in which Astarra claims no interest (the Fund) and to bring into the liquidation property disclaimed by Mr Richard and in which no other entity has an evident interest (the Gulf Mines Shares) thus permitting the sale of those shares and distribution of the proceeds in the ordinary course of the winding up. 38The alternative basis on which the application is brought is on the assumption that Astarra is a bare trustee of the property in question; in which case the application is made under section 63 of the Trustee Act or otherwise under the inherent or implied jurisdiction of the Court. 39Section 63(1) permits a trustee to apply to the Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument, and here it is said that the questions arise in the management or administration of the trust property. Mr Stack referred to the statement of general principles relevant to applications of under s 63 to be found in Macedonian Orthodox Community Church v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese (2008) 237 CLR 66 at [54] to [75] and, in particular, to the recognition by the High Court (at [70] to [71]), that the proper purpose for seeking judicial advice includes relief aimed at resolving legitimate doubts held by the trustee as to the proper course of action and protecting the trust and those entitled to it. 40As a general rule (see Jacobs' Law of Trusts in Australia (7 th edn) [at 2134]), however, where the question concerns the respective rights of beneficiaries or their identity, it is not considered appropriate to give a trustee opinion or advice under s 63; rather the proper procedure is by way of originating summons where all parties are served and have the opportunity to be heard (the authors there referring to Re Kirkegaard [1950] St R Qd 144; Re Petersen [1920] St R Qd 42). 41In the Macedonian Church case, in the Court of Appeal [2006] NSWCA 277, Beazley and Giles JJA said that: (viii) An application for judicial advice is an inappropriate process to resolve disputes between trustees or to settle disputes between parties to a trust. If the Court is of the view that determining an application would determine a dispute it may refuse the application outright. ( Harrison v Mills [1976] 1 NSWLR 42, [44 - 45]; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 ) 42Here, there seems to me to be a distinction between the two types of property in question. The issue on which the liquidator seeks advice in relation to the Gulf Mines Shares does not seem to me strictly to involve a determination as to the rights of competing claimants to the property (or competing beneficial entitlements to trust property) - rather, it is a question as to whether (Mr Richard having disclaimed any interest in the shares) the liquidator can properly treat the Gulf Mine Shares as the property of the company, in circumstances where the liquidator has no other information to suggest an alternative claimant to the property. In those circumstances I consider that (had I not been of the view that the matter could properly be determined under s 511 of the Corporations Act) this would have been an appropriate exercise of the power under s 63 to make such a determination. 43There seems to me more doubt as to the appropriateness of exercise of the power under s 63 where there is at least a potential claim on the part of EMA to the Fund (in opposition to that of Trio as responsible entity of the ASF). The potential for dispute in that regard places the liquidator in a difficult practical position where there is apparently no ready contact for EMA (the only other potential claimant to the Fund) and there must be an understandable reluctance to permit the Fund to be placed outside the immediate reach of the investors whose funds were the source of the Tailwind investment. In the event, I consider that the matter can properly be determined under s 511 of the Corporations Act (having regard to the fact that EMA seems to be for all intents and purposes defunct and where in its hands EMA would have a contractual obligation to deliver the Delivery Asset Parcel if called upon to do so). Perhaps more importantly, the receipt of the funds in the hands of Astarra arguably discharges the obligation to deliver the Delivery Asset Parcel, as Astarra can be said to have received the funds in its capacity as agent for the responsible entity. Conclusion 44Here, I accept that there is little doubt that the Fund does not belong to Astarra but that it does belong to one of two other entities. In the case of the Gulf Mine Shares, there are legitimate concerns that they may not be the property of Astarra. Hence the need for direction as to how to distribute the Fund and as to how to resolve the doubts as to the ownership of the Gulf Mine Shares. 45In my view, it is to the clear advantage of the liquidation to provide the judicial advice sought so as to facilitate the orderly winding up of the company - including the determination of issues as to the treatment of assets in respect of which there are legitimate doubts as to the entitlement of Astarra to deal with that property. 46In the case of the Fund, there is no reason to doubt that it represents the net proceeds of the investment of funds of the ASF under the investment management of Astarra. The real question before me was whether the distribution of the Fund (less the appropriate deductions for fees, expenses and costs) should be made to the liquidators of Trio, as responsible entity for the ASF (to be distributed in accordance with their obligations on the winding up of the company) or should be distributed to Trio as the agent for EMA (EMA having appointed Trio as its agent under the Power of Attorney to which the Trio liquidators' lawyers had referred in mid 2010). In either event, the entity to which the Fund should be distributed must be Trio. It cannot be in the interests of the investors in the ASF (whose funds were the source of the Tailwind investments) to have the moneys now recovered from those investments placed in the hands of an apparently defunct entity under uncertain (if any) control (having regard to the observations made by Palmer J when the schemes were initially placed into liquidation on the just and equitable ground) and especially having regard to the fact that EMA's obligation was to transfer back to Astarra (as investment manager and agent for the responsible entity, Trio) the Delivery Asset Parcel on completion. (Any claim that EMA might have for fees for its role in the transaction would not be precluded by the direct distribution of the underlying assets to Trio's liquidators.) 47Furthermore, the Master Deferred Agreement itself provides (clause 3.6) that delivery to Astarra (on completion) discharges EMA's obligations. Here, where Astarra was acting (informally if not otherwise) as the repository of funds on behalf of EMA (which had no bank account) it seems to me that there is a reasonable argument that (on the receipt of the moneys from Interactive Brokers) Astarra has held them on account of EMA and for delivery back to the ultimate recipient of those funds under the Master Deferred Purchase Agreement (namely Trio as responsible entity for the ASF). 48On that basis when the matter was before me on 23 February 2011, I formed the view that the liquidator of Astarra would be justified in distributing the Fund (less the JC Consulting and Astarra management fees and less the liquidator's own fees costs and expenses as quantified in the materials provided to me and itemised in the orders sought from me) to Trio. I note that the liquidator has undertaken to refund any balance, left from the amount provided for his fees and expenses, on completion of his work in relation to the distribution of the Fund and the Gulf Mines Shares. 49As to the Gulf Mines Shares, in the absence of any identified claimant to the shares and having regard to the circumstances in which Mr Richard says he acquired them out of the funds held by Astarra, I think it appropriate to confirm that it is in order for the liquidator of Astarra to treat those shares as the property of the company and to be dealt with in the ordinary course of the administration of the company. 50Having formed that opinion at the conclusion of the hearing on 23 February 2011, I made orders in the terms of the Short Minutes of Order handed up to me by Mr Stack.