Is the Reinstatement Just or Is It Unjust or Futile?
12 That brings me to the second issue. Is the reinstatement just?
13 The ATO submitted that it was just to enable the new liquidators to be appointed to fully investigate the affairs of Rennie Produce and take action on behalf of Rennie Produce in respect of transactions identified by Mr Yeo in an affidavit he filed in these proceedings. The transactions were described by Mr Yeo as follows:
From the records in my possession and my investigations of RPA, I have identified potential equitable claims which would be available to a liquidator of [Rennie Produce] relating to the transfer of [Rennie Produce's]:
(a) business to RPA;
(b) plant and equipment to the P Rennie Equipment Trust; and
(c) land to the P Rennie Land Trust.
My investigations reveal that the consideration received by [Rennie Produce] for these assets was a parcel of redeemable income units in the Rennie Investment Trust (RIT). My investigations indicate that the transfer and trading of units in the RIT may have been a part of a sham arrangement whereby the assets of [Rennie Produce] were intended to be transferred to related entities for no consideration, to defeat creditors of [Rennie Produce]. In this regard, I note the following:
(a) An unregistered charged was initially given by [Rennie Produce] to FTA Finance Ltd, a company incorporated in the British Virgin Islands (BVI). It appears that no consideration was received in respect of this charge. Accordingly, my investigations to date indicate that this charge may not be valid.
(b) In 1998, FTA Finance Ltd then assigned this charge to MEV Finance Ltd (MEV), a company also incorporated in the BVI. MEV proceeded to register its charge over the assets and undertakings of [Rennie Produce].
(c) MEV subsequently purportedly assigned this charge to Trudington Limited (Trudington), a company also incorporated in the BVI.
(d) In 2003, at a time when Trudington had not registered its charge, it purported to enforce its charge over the assets of [Rennie Produce].
(e) Trudington subsequently transferred the units in the RIT (which it had acquired by enforcing its charge over [Rennie Produce's] assets) to Lexington Provident Limited (Lexington), a company incorporated in Guernsey with its sole director and shareholders being entities registered in the BVI.
(f) Shortly before receiving these units in the RIT (previously held by [Rennie Produce]), Lexington had also recently acquired units in the RIT from RPA via a similar arrangement.
(g) The units were redeemed by Lexington.
(h) Rather than receiving a cash payment following this redemption, Lexington was granted a charge and power of attorney over [Rennie Produce], RPA and other entities related to [Rennie Produce] and RPA.
Further details of these transactions had previously been set out in an affidavit sworn by Mr Yeo in December 2010, a copy of which was in evidence.
14 As noted, Mr Rennie opposes the application on the basis any reinstatement would be unjust or futile.
15 The ATO submitted that as a possible defendant to potential legal action by Rennie Produce, Mr Rennie has a limited right to be heard on the application. The ATO submits that Mr Rennie's right is limited to contesting the ATO's standing to make the application (whether the ATO is an aggrieved person). The ATO submitted that Mr Rennie was not entitled to oppose on the basis that he would have a good defence to any potential legal action or because for some other reason Rennie Produce is likely to fail in such a proceeding. In support of this last proposition, it referred to the decision in Piliarinos at [25] - [26] as well as the decision in AMP General Insurance Ltd v Victorian Workcover Authority (2006) 15 VR 175 at [45] and 46]. [Re Peter Conyers Holdings Pty Ltd (1996) 14 ACLC 1,837 at 1,849.]
16 In the end, the question of Mr Rennie's standing to raise issues of futility may be put to one side. As Gillard J went on to say in Piliarinos at [29]:
I think it would be appropriate, also, as a general guideline, that if a judge formed the view on the material that it was proposed to sue the company, and the cause of action was hopeless, it may be appropriate to require notice to be given to the potential litigant. Examples of this would be where there is a clear defence, such as a limitation defence or some statutory defence. However, it would only be in the clearest of clear cases that that should happen. I reiterate that the proper venue for the cause of action to be heard and determined is a court or statutory tribunal. The parties will then have every opportunity to fight the case in a proper setting, to have the advantage of discovery, to test the other party's case, and to properly present their cases.
See also Chalker v Clark [2006] VSC 457 at [34] and, on appeal in Chalker v Clark [2008] VSCA 92 at [33].
17 The question which therefore arises is whether this is one of the "clearest of clear cases" that the causes of action are hopeless? Mr Rennie contends that it is. The ATO says that it is not. What then are the competing contentions?
18 It is common ground that any proceeding seeking relief pursuant to the Act (whether under s 588FF or ss 1317H and 1317J(2)) would be statute barred because more than six years has passed since the time of any alleged contravention of the Act: see ss 588F(3) and 1317K of the Act.
19 But as noted above, the potential proceedings are not limited to actions under or involving alleged contraventions of the Act. First, the new liquidators have foreshadowed proceedings seeking equitable remedies. Mr Rennie contends that those actions would also be futile because for limitation purposes, equity acts by analogy to statute: see Knox v Gye (1872) LR 5 HL 656 at 674-5. That is not a complete statement of the relevant principles. Where as here the Limitations Acts does not apply to equitable claims (see the Limitations of Actions Act 1958 (Vic)), equity may act by analogy to statute: see Knox. However, a Court of equity will not apply a statutory period of limitation by analogy if in the circumstances of the case it would be unjust to do so: Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167 at [84]. Consistent with that principle, equity has regard to the time when the plaintiff became aware of the rights, particularly in cases of concealed fraud: see Barker at [105] - [106].
20 In the present case, the evidence disclosed a basis for raising serious questions about the circumstances surrounding the winding up of Rennie Produce, circumstances which have only recently come to the attention of the ATO. Those circumstances include, but are not limited to, the following facts and matters:
1. Rennie Produce was put into voluntary liquidation with the ATO representing 99.5% of the value of its creditors;
2. Rennie Produce transferred its business to a related entity which carried on the business and then subsequently went into voluntary liquidation again with the ATO representing 99.5% of the value of its creditors;
3. The consideration received by Rennie Produce for the following transactions was a parcel of redeemable income units in the RIT, which may have been part of a sham arrangement to defeat the creditors of Rennie Produce, namely the ATO:
3.1 The transfer of Rennie Produce's business and standing stock to RPA in the year ended 30 June 1997;
3.2 The transfer of Rennie Produce's plant and equipment to Agren Pty Ltd as trustee for the P Rennie Trust in the year ended 30 June 1997; and
3.3 The transfer of the Hillston farmland from Rennie Produce to Moora Farming Pty Ltd as trustee for the P Rennie Land Trust registered on 29 March 1999;
4. A charge over Rennie Produce's assets being granted to a BVI vehicle for a tax avoidance scheme.
21 In those circumstances, it cannot be said the proposed causes of action are hopeless or that this is one of the clearest of clear cases that a limitation defence would apply.
22 In addition, another potential action open to the new liquidators is an action to recover the Hillston farmland (see 20(3.3) above) under s 172 of the Property Law Act 1958 (Vic) or the equivalent provision in New South Wales. The limitation period for such actions is 15 years from the accrual of the cause of action in the case of Victoria (see s 8 of the Limitation of Actions Act 1958 (Vic)) and 12 years in New South Wales (see s 27 of the Limitation Act 1969 (NSW)). Both limitation periods are extended in the case of fraud: s 27 of the Limitation of Actions Act 1958 (Vic) and s 55 of the Limitation Act 1969 (NSW).
23 Finally, Mr Rennie referred to the decision in Herbert v Nozala [2006] NSWSC 1,437. In that case, the application for reinstatement was dismissed. White J stated:
40 That foreshadowed claim faces significant difficulties. The first is that it is now almost six and a half years since the transfer of the property occurred. Mr Sexton has foreshadowed, as one would expect, that if any such claim were made, a defence based on the Limitation Act 1969 (NSW), or on the principle that equity would apply the Limitation Act by analogy, would be raised. Prima facie, such a defence would be available to the directors. The same facts as would be alleged in a claim for equitable compensation for breach of the directors' duties as fiduciaries would sustain a cause of action by the company against the directors in tort. That is to say, the claim against the directors, as I apprehend it, is not only that they transferred the property at an undervalue, but that they did not take reasonable steps to obtain a proper price for the property.
41 That directors owe a duty of care to a company is now established (Daniels v Anderson (1995) 37 NSWLR 438). Accordingly, equity would, at least prima facie, apply the Limitation Act by analogy to a claim for equitable compensation arising from the same facts (see Belan v Casey (2003) 57 NSWLR 670 at [149], 712-713). However, I cannot say that this is clearly an absolute bar to any such proceeding as equity retains a discretion as to whether or not to apply the statute by analogy (see Brightwell v RFB Holdings (2003) 171 FLR 464; (2003) 44 ACSR 186).
48 … I am nonetheless not satisfied that it would be just to reinstate the company's registration. …
50 Moreover, even if a claim by the company against the directors would not be barred on the principle of the application of the Limitations Act by analogy, the passage of time since May 2000 is likely to have affected, adversely, the ability for there to be as fair a trial of any action against the directors as could have been available if any such claim had been brought promptly. As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551:
"... The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed."
51 In my view, after the long period of delay which this present application exhibits, it would not be just that the company's registration be reinstated in order for there to be the inquiries or claims brought which have been foreshadowed.
24 As Mr Rennie put it, the grounds for the present application principally concern conduct that resulted in the disposition of the property of Rennie Produce in the 1997 financial year - events more than 14 years ago. In addition, the liquidator of Rennie Produce has died and given the passage of time, relevant documents may reasonably be expected to have been lost or destroyed. So much may be accepted.
25 But on the other side of the ledger sits the following facts. In Nozala, the applicant did not have standing to bring the action. White J found that he was not a person aggrieved. Here the ATO has standing: see Nozala at [47]. Secondly, in Nozala (unlike the present case) there was no material that suggested fraud or the concealment of fraud: see Nozala at [36]. Thirdly, in Nozala the foreshadowed claim was "speculative at best" (see Nozala at [46]). That is not the present case. Finally, in Nozala, there were lengthy delays of 11 years and then a further four years for which the applicant provided no satisfactory explanation of the delay: see Nozala at [48]. Here, the delay as been explained: see [9] above.
26 In all the circumstances, it cannot be said that the reinstatement of Rennie Produce is unjust or futile. On the contrary, it is just that the company is reinstated. As the ATO submitted, the new liquidators should be given an opportunity to investigate and pursue the necessary and appropriate legal actions on behalf of Rennie Produce.
27 That leaves the "additional reason" relied upon by Mr Rennie as to why reinstatement of Rennie Produce would be unjust. In general terms, Mr Rennie's solicitor has sworn an affidavit in which he states that he considers a criminal prosecution of Mr Rennie is "on the cards" and is likely to relate to the same alleged conduct of Mr Rennie - his alleged involvement in the various transactions in and after 1997: Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487 at [59]. In short, Mr Rennie submitted that because there was a real prospect that the prospective action by Rennie Produce against Mr Rennie would be stayed before the criminal proceedings could be heard and determined, the reinstatement would be futile. In support of the latter contention, Mr Rennie referred to the decision of Whelan J in AMP General Insurance Ltd v Victorian Workcover Authority [2006] VSC 312 at [29]. I reject this contention. First, AMP was concerned with a permanent stay on the basis that the proceeding was an abuse of process. That is not this case. AMP was not concerned with a temporary stay on the basis of concurrent criminal proceedings. This latter category was considered most recently in Re AWB Ltd (No 1); Australian Securities and Investments Commission v Flugge (2008) 21 VR 252.
28 In the present case, it is premature to consider this latter category. No civil proceedings have been commenced - it is therefore not possible to consider a stay of potential civil proceedings. And no criminal proceedings have been commenced or are certain. As the ATO submitted, if a stay of the civil proceedings pending any criminal proceedings is to be considered, then such an application can be made once the proceedings have commenced. That preserves the parties' rights and, equally importantly, does not prejudice any party's rights.