Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd

LEGISLATION CITED : Corporations Act 2001 (Cth), ss.477(1), 506(1) and 511

Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 Kassem v Sentinel Properties Ltd [2005] NSWSC 403 Mentha v GE Capital Ltd (1997) 154 ALR 565 Re ACN 004 987 866 Pty Ltd (2003) 21 ACLC 1474 Re Bailey Hay & Co Ltd [1971] 3 All ER 693 CASES CITED : Re Charter Travel Co Ltd (1997) 25 ACSR 337 Re Dean-Willcocks; Alpha Telecom (Aust) Pty Ltd (2004) 208 ALR 414 Re Duomatic Ltd [1969] 2 Ch 365 Re Express Engineering Works Ltd [1920] 1 Ch 466 Re Switch Telecommunications Pty Ltd; Ex parte Sherman (2000) 35 ACSR 172 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131

PARTIES : Riad Tayeh and Anthony De Vries (in their capacity as joint liquidators of The Black Stump Enterprises Pty Ltd, BR Finance Pty Ltd, Carlemos Pty Ltd, Kilanis Pty Ltd, Partoor Pty Ltd, BS Accounting & Consulting Pty Ltd, Filose Pty Ltd, Narera Pty Ltd, Yorkbridge Pty Ltd)) - Plaintiffs

COUNSEL : Mr M.J. Rosenblatt, Solicitor - Plaintiffs

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

2766/05 - APPLICATION OF RIAD TAYEH and ANTHONY DE VRIES JUDGMENT 1 The plaintiffs consider themselves to be the liquidators, under creditors' voluntary windings up arising in consequence of voluntary administration, of each of nine companies which, according to the affidavit filed in support of the present application, "largely share the same directors and shareholders" and owned and operated fifteen Black Stump restaurants in the Sydney area. By an originating process filed on 4 May 2005, the plaintiffs seek: "1. An order pursuant to sections 477(1)(c), 506(1)(b) and 511(1), (2) of the Corporations Act 2001 that the assets of the companies listed in Schedule 'A' be pooled. 2. An order pursuant to sections 477(1)(c), 506(1)(b) and 511(1), (2) of the Corporations Act 2001 that dividends to the creditors of the companies listed in Schedule 'A' be paid from the pool of assets created by order number 1 parri [sic] passu, without regard to which of the companies listed in Schedule 'A' was indebted to each creditor."

The annexed Schedule A refers to the nine companies. 2 The objective of the plaintiffs in seeking these orders appears to be to create a situation in which they may distribute the assets of a particular company among persons some or all of whom may not be creditors of that company, with the claims of the creditors of each company being taken into account along with those of the creditors of each other company and the totality of the distributable assets of all companies being applied in or towards satisfaction of the claims of all such creditors as if those distributable assets were the distributable assets of a single company and all such creditors were together the creditors of that single company. 3 It is the contention of the plaintiffs, specifically confirmed by their solicitor, Mr Rosenblatt, when the application came before me on 9 May 2005, that ss.477(1)(c), 506(1)(b) and 511(1) and (2) of the Corporations Act 2001 (Cth) together empower the court to make the two orders I have set out: hence the words "pursuant to sections 477(1)(c), 506(1)(b) and 511(1), (2)" in the body of each order. 4 Section 477(1) is in these terms:

" Powers of liquidator (1) Subject to this section, a liquidator of a company may: (a) carry on the business of the company so far as is necessary for the beneficial disposal or winding up of that business; and (b) subject to the provisions of section 556, pay any class of creditors in full; and (c) make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging that they have any claim (present or future, certain or contingent, ascertained or sounding only in damages) against the company or whereby the company may be rendered liable; and (d) compromise any calls, liabilities to calls, debts, liabilities capable of resulting in debts and any claims (present or future, certain or contingent, ascertained or sounding only in damages) subsisting or supposed to subsist between the company and a contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the property or the winding up of the company, on such terms as are agreed, and take any security for the discharge of, and give a complete discharge in respect of, any such call, debt, liability or claim." 5 Section 506(1) is as follows: "Powers and duties of liquidator (1) The liquidator may: (b) exercise any of the powers that this Act confers on a liquidator in a winding up in insolvency or by the Court; or (c) exercise the power under section 478 of a liquidator appointed by the Court to settle a list of contributors; or (d) exercise the Court's power under subsection 483(3) (except paragraph 483(3)(b)) in relation to calls on contributories; or (e) exercise the power of the Court of fixing a time within which debts and claims must be proved; or (f) convene a general meeting of the company for the purpose of obtaining the sanction of the company by special resolution in respect of any matter or for any other purpose he or she thinks fit." 6 Section 511 reads:

" Application to Court to have questions determined or powers exercised

(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. (1A) APRA may apply to the Court under subsection (1) in relation to a company that is a friendly society within the meaning of the Life Insurance Act 1995 and which may be wound up voluntarily under subsection 180(2) of that Act.

(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." 7 It is obvious that neither s.477(1)(c) nor s.506(1)(b) confers jurisdiction on the court. Section 477(1)(c) is concerned with court-appointed liquidators. It empowers such a liquidator to make any compromise or arrangement with creditors or other persons there mentioned. By virtue of s.506(1)(b), a liquidator in a voluntary winding up may exercise any power conferred by the Act upon a court-appointed liquidator, including, of course, the power under s.477(1)(c). That power is conferred in terms commencing with the words "Subject to this section". This brings into play a need for court approval in the particular cases mentioned in ss.477(2A) and 477(2B), as well as the controlling power of the court under s.477(6). But there is nothing to suggest that the present case is within s.477(2A) or s.477(2B), nor is the present application under s.477(6) which may be invoked only by a creditor, a contributory or ASIC. For present purposes, therefore, the plaintiffs, if they are liquidators, may resort to the s.477(1)(c) power, via s.506(1)(b), without any approval or other order of the court. 8 It is important to emphasise that s.477(1)(c) goes no further than allowing a liquidator to enter into a consensual compromise or arrangement with such, if any, of the creditors and other persons identified in the section as are minded to become party to the compromise or arrangement. Section 477(1)(c) is not a provision that can cause a compromise or arrangement to be binding on anyone who does not actively assent to it. I repeat, in that connection, what I said in Re Dean-Willcocks; Alpha Telecom (Aust) Pty Ltd (2004) 208 ALR 414 at [19] to [21]: "… Sections 477(1)(c) and (d) are concerned with the form of compromise by which a particular creditor or particular creditors agree to a particular regime with respect to their debts alone. The provisions do not entail any ability for a majority to bind a minority. In the Companies Act 1862 (UK), the general equivalents of today's ss.477(1)(c) and (d) were ss.159 and 160. Those provisions were supplemented eight years later by s.2 of the Joint Stock Companies Arrangement Act 1870 (UK) the effect of which was to cause to be binding on creditors (or a class of creditors), as well as the liquidator and contributories, any compromise or arrangement proposed between a company in the course of winding up and it creditors (or the class) and approved both by a majority in number (representing at least 75% by value) of the relevant creditors voting on the matter and by the court. This 1870 provision was the forerunner of the present Part 5.1. The effect of the provisions as they existed in 1871 was described by Sir W M James LJ in In Re Albert Life Assurance Co (1871) LR 6 Ch App 381: 'The 159th and 160th sections seem to me to provide that a company by its official liquidators, with the sanction of the Court, is to have exactly the same power of compromising both with its creditors and its debtors as an individual would have. It has the power of saying to any class of creditors, 'If you will take so much less than your claim, we will pay you that without raising any question'. And it has a right to say to the contributories who are the companies' debtors as to unpaid calls, 'Pay us so much of your debt, and we will put an end to all questions between us'. But that is a compromise, in the one case, between the company and its creditors who choose to accept it, and in the other between the company and its debtors who choose to accept it. There is nothing in the Act which enables one creditor to bind another creditor to accept a compromise, or which enables one debtor to bind another debtor with respect to paying a composition. And that was the difficulty which was felt when the Act of last session, the Joint Stock Companies Arrangement Act , 1870, was passed, which I cannot help thinking was passed with a view to this and other companies which were being wound up. That Act says that there shall be a power in the majority to bind the minority. But that majority must be a majority of creditors of each company which is compromising, and in order to enable the majority to bind the minority the Court must be satisfied that there is a meeting of creditors the amount of whose debts can be estimated, and that there are three-fourths of the creditors who have assented, before it will interfere to enforce that which the large majority think the most beneficial way for them to get their claims satisfied - merely applying to a winding-up in this Court the same principles as are applied in Bankruptcy to dealings between a bankrupt and his creditors.' This analysis - coupled with the enactment of the 1870 legislation - must, in my opinion, make unreliable earlier cases in which ss.159 and 160 of the 1862 Act (present ss.477(1)(c) and (d)) were seen as possessing some compelling force as against non-assenting creditors: eg, Bank of Hindustan, China & Japan Ltd v Eastern Financial Association Ltd (1869) LR 2 PC 489, Re Commercial Bank Corporation of India and The East (1869) LR 8 Eq 241. To the extent that there are, in some of the modern cases, suggestions that ss.477(1)(c) and (d) may facilitate compromise of the claims of persons who do not actually assent to the compromise, there is, in my view, an attempt to afford to those provisions an operation they are incapable of having." 9 That leaves for consideration s.511 as a potential source of jurisdiction to make orders 1 and 2 sought by the plaintiffs. It was submitted on behalf of the plaintiffs that s.511(1)(a) may be invoked in such a way as to sanction departure by a liquidator from the scheme of application of assets and recognition of debts and claims laid down by the Corporations Act. Mr Rosenblatt relied, in that respect, on three decided cases, viz, Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209, Re Charter Travel Co Ltd (1997) 25 ACSR 337 and Re Switch Telecommunications Pty Ltd; Ex parte Sherman (2000) 35 ACSR 172. 10 These cases - as well as Mentha v GE Capital Ltd (1997) 154 ALR 565, Re ACN 004 987 866 Pty Ltd (2003) 21 ACLC 1474, Alpha Telecom (above) and Kassem v Sentinel Properties Ltd [2005] NSWSC 403 - recognise five procedural possibilities for giving effect to a pooling or consolidation of the kind sought in this case: 1. a scheme of arrangement between each company and its creditors under Part 5.1; 2. a compromise under s.477(1)(c) which is made applicable to voluntary winding up by s.506(1)(b); 3. an arrangement under s.510 between a company in the course of winding up and its creditors; 4. resort to the extensive jurisdiction created by s.447A, where applicable; and 5. a deed of company arrangement under Division 10 of Part 5.3A where Part 5.3A administration is in progress. 11 The plaintiffs, however, regard observations of Young J in both Soluble Solution and Charter Travel as indicating the availability of an additional course which relies upon s.511(1)(a) as a source of jurisdiction to make orders varying and affecting creditors' rights. In the former case, his Honour said: "It would be possible for the court to advise a liquidator in a court winding up that he should consolidate debts, but it would be unlikely that the court would do so unless every creditor agreed or a regime was put in place for creditors to object." 12 In Charter Travel, Young J expanded on this by saying: "As I indicated in my judgment in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79, administration of two companies in insolvency conjointly is something that can occur only in exceptional cases. As I said at p85, this normally means a scheme of arrangement, but if no creditor objects and it is impracticable to keep the assets and liabilities of different companies separate, and the consolidation is for the benefit of creditors generally, then the Court might advise the liquidators concerned that they would be justified in consolidating the administration. Again, there would be cases where the consolidation could be considered as a compromise between the two liquidators and the various creditors of the companies under s477(1)(c) of the Corporations Law." 13 These statements, to my mind, represent no more than a recognition that a version of the unanimous assent principle which can, at shareholder level, override the need for particular procedures (a concept most often associated with Re Express Engineering Works Ltd [1920] 1 Ch 466 and Re Duomatic Ltd [1969] 2 Ch 365) is also capable of operating at creditor level in a winding up where, as the Court of Appeal confirmed in United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131, creditors' participation rights by way of distribution are in the nature of private rights that the creditors may waive or vary by contract. Central to the possibility referred to by Young J is unanimous assent, express or implied. Section 511 would then be potentially of relevance as a means by which the court might, by way of determination of the question of the efficacy of the assent to achieve that legal result, re-assure the liquidator that creditors had effectively modified their rights in such a way as to make it appropriate for the liquidators to recognise the results of their unanimous assent. 14 It is important to emphasise that s.511(1)(a) is not - and can never be - a source of jurisdiction for the court to alter the incidence of statutory provisions or the rights of creditors or contributories in a winding up. Nor was it so treated in either the Soluble Solution case or the Charter Travel case. In the former case, orders were made under s.447A (the fourth of the possibilities mentioned at paragraph [10] above). In the latter case (as is made clear in the first three paragraphs of the judgment), there was no more than an order that the liquidators would be justified in convening a combined meeting of creditors of two companies to consider a pooling proposal, coupled with an order that, if the creditors "unanimously approved" the proposal, the liquidators would be justified in implementing it. 15 I turn now to the circumstances of this case. The possibility of pooling or consolidation of the nine windings up has been brought to creditors' attention. In a report of the plaintiffs as administrators in advance of what purported to be the second meeting of creditors under Part 5.3A, it was recommended that creditors resolve that each company be wound up. There was a single composite report dated 13 January 2005 in respect of all nine companies. The report said: "As you are aware there are currently nine companies involved in this administration. We note that certain creditors, including some of the group's employees have expressed that they are unaware which company in the group of nine they are indebted by or have executed employment contracts. Accordingly, it is the opinion of the administration that should the company be placed into liquidation, the liquidator would make an application to the Supreme Court of NSW pursuant to section 511 of the Act to seek direction to pool the assets and liabilities of the companies for the purpose of the liquidation process and in particular any dividend to creditors. If any creditors wish to discuss this issue they should contact me directly. At this stage of the administration the group's books and records do not enable us to accurately identify the assets and liabilities of each Company. The costs of reconstructing the accounts of each of entity if this is at all possible would be such that, if this work was carried out, it would be unlikely that there would be a greater return to creditors. In addition, we submit that the pooling proposal would result in a more equitable treatment of creditors. We further submit that the affairs of all the companies in the group are intermingled or inextricably intertwined so that it could be said that creditors have been dealing with the group. It was the impression of the creditors and employees that they were at all times dealing with the Black Stump or the Black Stump Group of companies and accordingly most invoices were addressed in that manner." 16 Mr Tayeh, one of the plaintiffs, deposes that no creditor took up the invitation in the last sentence of the second paragraph of the above extract from the report. 17 Apparently with a view to compliance with the statutory requirement with respect to the second meeting of creditors under Part 5.3A, there was held on 20 January 2005 what is described in the minutes as "second meeting of creditors of Black Stump Group of Companies (administrators appointed)". This appeared under a list of nine companies' names. The minutes record six persons as having been present in person and 24 as having been represented by proxies. Mr Tayeh is recorded as having acted as chairman. The minutes record the passing of a resolution: "That the Company be wound up."

(I make no finding on the question whether the gathering of 20 January 2005 was in truth a s.439A meeting of the creditors of any company or whether the above resolution was effective in relation to any company.) 18 The minutes also record: " QUESTIONS: The Chairperson advised the meeting that it was the intention of the liquidators to seek an order of the court to pool all nine companies into one entity for the purposes of this administration. The Chairperson asked if there were any further questions. CLOSURE: There being no further points for discussion or resolution the Chairperson declared the meeting closed at 10:45am." 19 The matter of pooling was referred to again in a letter to creditors dated 3 March 2005 signed by Mr Tayeh. After reporting sale of the restaurant business, the letter said: " Pooling of Assets and Liabilities It would appear from an examination of the books and records of the Black Stump Group that the companies assets have been so intermingled that their separation is impossible and if undertaken, the time and costs to rebuild the accounts would delay any distribution to creditors considerably as compared to pooling of the assets and liabilities in liquidation. Issues involved in the separation of the companies would include the following: 1. Recalculation and determination of the value of inter-company loan accounts. 2. Determine a method for the distribution of funds between the companies. 3. The Group operated from the central bank account with Westpac Bank Ltd and trading proceeds were banked into the central account. The Group operated its central merchant facility with St George Bank Ltd. In addition payments were made for assets, inventories, employee's wages etc from the central bank account. 4. The Group employed over 300 staff and frequently staff would be transferred between stores in the ordinary course of business and at short notice. No loan accounts were set up between the entities to account for the transfer of staff. Their employment contracts stipulated that they were employed by 'Black Stump Enterprises'. 5. Inventories were frequently transferred between stores when particular restaurants ran out of stock. No loan accounts were set up to account for these inter-store transfers. 6. Each individual company was the lessee for the restaurant(s) under its control. All payments made in relation to rental and outgoings were made from the central bank account. 7. The Group essentially traded as 'Black Stump Restaurant' resulting in the majority of trade creditors' claims being against an entity that may not exist. In the absence of any tracing rights, it is likely that certain creditors who can identify the particular store or company as debtor will be entitled to claim against that company. The majority of creditors including the employees will not be able to identify the particular entity that they traded with or who substantially employed them. As the value of assets of each entity differs between individual companies, employee claims will be disproportionately satisfied. This will result in differing treatment of creditors in the same class of creditors across the Group. In our view this is inequitable insofar as the priority creditors of Black Stump Group of Companies are concerned. 8. Pooling of assets will result in more equitable treatment of creditors. In this regard, please find the attached Notice to Creditors requesting that should any creditor oppose our intention to pool the companies' assets and liabilities to please provide same in writing by 14 March 2005. Please note that in the absence of any opposition, we will be progressing our application to pool the companies' assets and liabilities. Should you have any queries in relation to this matter, please do not hesitate to contact Mr. Randall Joubert or Mr. Neil Christofis of this office." 20 The notice accompanying the letter said: "NOTICE IS HEREBY GIVEN that the Liquidators intend to make an application to the Supreme Court, New South Wales for an order pooling the assets and liabilities of the above mentioned companies (the 'Companies') for the purposes of the liquidation process and particularly the payment of dividends to creditors, as more fully explained and for the reasons stated in the 13 January 2005 Report to Creditors (the 'Pooling Application'). Any Creditor who is opposed to the Pooling Application must indicate this opposition in writing to the Liquidators, which must be RECEIVED by no later than 14 March 2005 at 5:00 pm at the following address: de Vries Tayeh Level 3, 95 Macquarie Street, Parramatta NSW 2150 Attn: Black Stump Pooling Application" 21 It is important to note the messages regarding "pooling" conveyed by these communications. The report dated 13 January 2001 referred to the possibility that the plaintiffs might "make an application to the Supreme Court of NSW pursuant to section 511 of the Act to seek direction to pool the assets and liabilities of the companies for the purpose of the liquidation process and in particular any dividend to creditors". While there was an invitation for any creditor wishing to discuss the matter to contact Mr Tayeh, nothing was said about any need for consent of creditors. The impression created was merely that the court had some form of power to allow "pooling" and might do so upon application made by the plaintiffs. 22 The statement by the chairman of the purported meeting of 20 January 2005 referred to an intention of the plaintiffs "to seek an order of the court to pool all nine companies into one entity for the purposes of this administration". Again, nothing was said about any need for unanimous assent of creditors and the persons at the meeting (six creditors and six other persons as proxies) would again have been left with the impression that the court might allow "pooling" if asked to do so. 23 The letter to creditors dated 3 March 2005 conveyed a general message that, for reasons stated, Mr Tayeh considered it equitable that each creditor's claim be treated as a claim against the totality of the assets of all companies, instead of any individual company, and that the assets should be consolidated accordingly. There was then a reference to the attached notice to creditors (which referred to an intention to seek from the court "an order pooling the assets and liabilities of the abovementioned companies" as more fully explained in the 13 January 2005 report) and a statement that, if the addressee had "any queries in relation to this matter", he or she should contact one of two named persons in Mr Tayeh's office. There was also an indication that the plaintiffs' application to the court would not be initiated if there was any objection from creditors. The accompanying notice concluded by saying that any creditor "opposed to the Pooling Application must indicate this opposition in writing to the Liquidators" by a specified deadline. There was in neither the letter nor the accompanying notice any indication that there was any need for the assent of creditors, the message again being, in effect, that the court had some general and unexplained power to make a "pooling order". 24 Mr Tayeh deposes that no creditor has expressed to him any negative opinion or attitude of opposition so far as the making of the so-called "pooling order" is concerned. That, however, cannot be treated as evidence that every creditor favours the proposal. The creditors as a body have never been given any clear opportunity to make a positive expression of their views. An invitation to make a one-on-one approach to ask questions or to indicate opposition is quite different from an invitation to express approval. Silence in answer to the question "Do you disagree?" is in no sense the equivalent of a positive answer to the question "Do you agree?". There may be circumstances in which silence, coupled with surrounding circumstances , is tantamount to assent. An example will be found in Re Bailey Hay & Co Ltd [1971] 3 All ER 693 where it was necessary to decide whether, where there had been no duly passed resolution to wind up, an equivalent result had arisen from unanimous assent. Brightman J said (at p.701): "I consider that on the particular facts of this case all the corporators ought to be treated as having assented on 9 December 1965 to the company being wound up on that day. In my judgment, the case falls within the principle of the decisions in the two cases I have mentioned [ie, Re Express Engineering Works Ltd and Parker and Cooper Ltd v Reading [1926] 2 All ER Rep. 323]. Admittedly three of the five corporators did not vote in favour of the resolution, but they undoubtedly suffered it to be passed with knowledge of their power to stop it. The true quality of the acts of such corporators on 9 December is not to be judged exclusively by reference to what they did or did not do on that day, but is also to be judged in the light of what they did and did not do thereafter.

What these corporators did and did not do after 9 December 1965 down to 12 December 1969 when they swore their affidavits disclosing this defence points, in my view, to one conclusion only. The conclusion is that they outwardly accepted the resolution to wind up as decisively as if they had positively voted in favour of it. If corporators attend a meeting without protest, stand by without protest while their fellow-members purport to pass a resolution, permit all persons concerned to act for years on the basis that that resolution was duly passed and rule their own conduct on the basis that the resolution is an established fact, I think it is idle for them to contend that they did not assent to the purported resolution.

In the circumstances I have set out I see no injustice in treating them as having agreed to the liquidation." 25 It is not possible to draw any parallel here. In the present case, creditors were told that the liquidators proposed to ask the court to make "a pooling order". They were not informed of the basis on which the court might make "a pooling order" or the considerations that might influence its decision, apart from the intermingling of the companies' financial affairs. In particular, they were not told that any evaluation of the existence or non-existence of creditors' unanimous approval of what was proposed might play a part in the court's decision making. Having received the messages they received, the creditors would have had the impression that the court would, in some undefined way, look after matters on its own and without regard for their wishes or attitudes. 26 As I have said, Charter Travel was a case in which what was effectively a clearance for the liquidators to implement a specific pooling arrangement if "creditors unanimously approved the proposal" was given by Young J in a context where his Honour made an order that the liquidators would be justified in convening a combined meeting of the creditors of two companies. There was thus to be a forum for the positive statement of opinions and wishes actively sought, no doubt by way of proposed resolution in relation to a specifically identified proposal. The lack of objection contemplated there (as well as in Soluble Solution which involved a s.447A application) was in a context quite different from the context involved in the present case. Here, there has been no attempt to engage any of the statutory provisions under which rights in a winding up may be varied. In the absence of any such attempt and of any showing of unanimous assent of creditors, I am not satisfied that there is, in terms of s.511(1)(a), any "question arising in the winding up of the company" (that is, any of the nine companies) a positive determination of which by the court would cause creditors' legal rights to be varied. 27 It follows that, although in a general sense the situation appears to be one which would benefit from some form of consolidation and pooling, orders 1 and 2 as sought in the originating process will not be made and that that originating process will be dismissed. **********

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