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[2012] VSC 513
Supreme Court of Victoria
2012-10-22
GARDINER AsJ
Original judgment source is linked above.
CORPORATIONS - External administration under Part 5.3A of the Corporations Act 2001 (Cth) - Applications for extension of convening periods pursuant to Section 439A(6) of the Act and certain ancillary orders in respect of method of provision of notice and other documentation required for second meeting of creditors pursuant to section 447A of the Act - Applications granted.
For the Receivers and Managers, Mark Korda and Bryan Webster
1 The plaintiffs seek orders by an interlocutory process filed 19 October 2012 pursuant to s 439A(6) of the Corporations Act 2001 (Cth) ("the Act") that the convening period defined in s 439A(5)(b) of the Act in respect of each of the Gunns Group of companies ("the Gunns Group") be extended to 31 January 2013.
3 The plaintiffs rely on the affidavits of one of the plaintiffs, Mr Bryant, affirmed on 27 September, 2 October and 22 October 2012. The plaintiffs were appointed the administrators of the Gunns Group under s 436A of the Act on 25 September 2012. On the same day, Messrs Mark Korda and Bryan Webster were appointed as receivers and managers to the Gunns Group, save that their appointment did not extend to Gunns Plantations Limited ("GPL") in that company's capacity as the responsible entity of the managed investment schemes conducted by it.
4 As well as GPL's involvement in the schemes, the Gunns Group carried on Australia's largest integrated hardwood and softwood forest products business. The timber products business involved the manufacture and supply of value added hardwood and softwood products for use in the building industry. The forest products business involved the management of natural forests and plantations, which involved general forest management, road construction and maintenance, timber harvesting and haulage, pulp wood processing and marketing of products for export markets.
5 Since their appointment, the plaintiffs and their staff have begun to undertake an assessment of the managed investment schemes conducted by GPL and commenced investigations into the business, property and affairs of the Gunns Group. This has entailed travelling to Tasmania where the head office of the Gunns Group is located, meeting with key personnel, as well as identifying and reviewing the books and records and financial affairs of the Gunns Group.
6 The first meeting of creditors of the Gunns Group was held on 10 October 2012 in Launceston. Mr Bryant conducted the meeting and informed those present that there may be a need to apply to the Court for an extension of the convening period for the second meeting of creditors of the Gunns Group. There were in excess of 1100 creditors present at that meeting, including growers and lessors, either in person or by proxy, but nobody voiced comment or objection in response to that notification.
7 On 2 October 2012, I ordered pursuant to s 447A(1) of the Act that the plaintiffs were permitted to prepare a single consolidated report under s 439A(4)(a) of the Act for those members of the Gunns Group which were listed as consolidated reporting entities in the second schedule to that order. All of the companies in the Gunns Group are consolidated reporting entities save for GPL and Gunns Holdings Pty Ltd. The need for this arose by reason of the complexity and intermingling of the financial affairs of the Gunns Group. Mr Bryant states that upon the administrators' initial review of the Gunns Group's affairs, he believes that there are approximately 900 trade and secured creditors who are owed in excess of $541 million.
8 GPL is the responsible entity of 21 managed investment schemes listed in the interlocutory process. Under those schemes, GPL operates approximately 230,000 hectares of hardwood and softwood forestry plantations, including nine schemes which it took over management of from the Great Southern Group upon its collapse. The forests are located in each state. GPL is a wholly owned subsidiary of Gunns Limited. Gunns Limited is listed on the Australian Stock Exchange although trading in its shares has been suspended since March 2012.
9 Based on initial investigations into the affairs of GPL, Mr Bryant states his belief that there are approximately 35,000 growers who have invested in the schemes. Investigations are being undertaken as to whether the growers have claims as creditors of GPL or of other entities within the Gunns Group. Mr Bryant says that those investigations will take considerable time and resources to finalise and by reason of the appointment of the receivers and managers to the Gunns Group and its insolvency, there are very limited funds available to the administrators.
10 By operation of s 439A(5)(b)(i) of the Act, the convening period of the Gunns Group will end on 23 October 2012 unless it is extended.
11 There are 36 companies in the Gunns Group and it has approximately 500 employees. There are approximately 1100 leases of forest land between GPL and third party lessors upon which the managed investment schemes are conducted. The terms of those leases are various. Mr Bryant says that before the administrators can properly report to creditors of the Gunns Group and growers in respect of GPL, (assuming they are creditors), several matters need to be investigated. These include:
(i) assessing the position of the various leases;
(ii) ascertaining the solvency of the Gunns Group and the reasons for its failure;
(iii) negotiations with insurance brokers to offer growers an opportunity to maintain insurance on the various scheme plantations;
(iv) organising and implementing expressions of interest campaigns for a replacement responsible entity in respect of the schemes managed by GPL;
(v) investigating whether there have been any voidable transactions which might be recoverable by a liquidator of any of the Gunns Group under Part 5.7B of the Act under regulation 5.3A.02 of the Corporations Regulations 2001; the administrators are specifically required to express an opinion in the report to creditors which is required under s 439A(4) of the Act whether there appear to have been transactions of that character;
(vi) investigating the possibility of a restructure or recapitalisation of the schemes and any of the members of the Gunns Group;
(vii) forming the requisite opinion under s 439A(4)(b) of the Act of the matters required, that is, whether it be in the interests of the creditors for any of the Gunns Group companies to execute a deed of company arrangement, whether it be in the creditors' interests for the administrations of the companies to end;
(viii) where it be in the creditors' interests for any of the Gunns Group companies to be wound up.
12 Mr Bryant anticipates it will take a significant time to compile and analyse the results of those investigations for the purposes of the s 439A report.
13 In addition, the directors of the Gunns Group have been asked to provide statements in accordance with s 438B(2) of the Act. They have requested an extension until 9 November 2012 to provide that documentation and the plaintiffs have agreed to grant an extension of time as requested. That information will also need to be reviewed for the purpose of preparation of the s 439A report for the consolidated Group, GPL and Gunns Holdings Pty Ltd.
14 The plaintiffs do not believe it will be possible to complete their investigations and prepare the 439A report within the relatively short time frame of 20 business days provided for in s 439A(5). They anticipate that they can do so by 31 January 2013, being the conclusion of the extended convening period that they have sought in the interlocutory process.
15 Mr Bryant details in his affidavit of 22 October 2012 the expressions of interest campaign for a replacement Responsible Entity for the Managed Investment Scheme to take the place of GPL. The campaign is expected to finish in mid to late November 2012 and assuming that a viable alternative responsible entity is found, it is then intended to give the growers 21 days' notice of a meeting to consider a resolution to remove GPL as responsible entity and appoint its replacement. If a viable alternative is found to replace GPL as responsible entity of one or more of the 18 woodlot schemes the subject of the expressions of interest campaign, representatives of the replacement entity would then meet with the relevant lessors under the leases in respect of the relevant scheme to discuss appropriate arrangements so as to enable the schemes to continue. An extension of the convening period is sought in order to preserve the possibility of restructuring the schemes and to that end, the plaintiffs are conducting an urgent viability analyses of the schemes. It is said that the extension of the convening period sought will provide the necessary time to determine whether a new responsible entity is likely to be appointed in respect of any of the 18 woodlot schemes.
16 Mr Bryant also deposes that if no extension of the convening period is granted and the requisite investigations have not been completed to enable the preparation of the s 439A report by the time of the second meeting of creditors is held, it is likely that this will require an adjournment of the meeting. This will involve the incurring of significant costs for no good purpose, resulting in unnecessary expenditure of the very limited funds available to the plaintiffs at this point.
17 Mr Bryant details in his affidavit the communications that he has had with the various lessors of land on which the Gunns Group's operations and businesses have been conducted. These include communications with the Tasmanian Farmers and Graziers Association. It has also involved communications with the New Forests Trust which is represented by the firm Clayton Utz. The New Forests Trust is apparently owed approximately $4 million by GPL as at 30 September 2012. Mr Chami of Clayton Utz has written to the plaintiffs and requested that the plaintiffs provide New Forests Trust with consent to take possession of the land subject to the New Forest Leases. This is necessary by reason of the provisions of s 440B of the Act. This has been followed up with further demands for payment of rent. The lawyers for the plaintiffs, Arnold Bloch Leibler ("ABL"), have responded to Clayton Utz, informing it that the plaintiffs are presently undertaking a review of the New Forest Leases and until that review is further advanced, the plaintiffs would not be in a position to properly respond to Clayton Utz's enquiries.
18 On 17 October 2012, Clayton Utz indicated to ABL that New Forest Trust would oppose any further extension of the rent free period under s 443B which is beyond the extension granted by the Court in the order dated 2 October 2012. Consent was again sought to New Forest Trust taking possession of the land the subject of the New Forest Leases.
19 On 18 October 2012, ABL wrote to Clayton Utz observing that the growers under the schemes had funded the trees planted on land the subject of the New Forest Leases and that GPL owed duties to those growers. ABL also indicated that the termination of the New Forest leases would have a catastrophic impact on the schemes and the rights of growers under those schemes, therefore, ABL indicated that consent would not be provided to New Forest Trust taking possession of the land the subject of New Forest leases.
20 Clayton Utz have been informed by ABL of the making of this application. Of course, an extension of the convening period will involve a continuation of the moratorium during which the lessors are not able to take possession of the land without the consent of the plaintiffs, or in the alternative, by obtaining leave of the Court pursuant to s 440B of the Act.
21 The plaintiffs have been in communication with the committees of creditors appointed to Gunns Limited and GPL. The members of the committee of creditors for Gunns Limited and GPL represent a cross-section of different creditor interests, including growers, land owners, employees, trade creditors and financiers. Members or their proxies of the committees of creditors for Gunns Limited and GPL were present at the first meeting of creditors described above on 10 October 2012 at which, amongst other things, the plaintiffs notified those present of the intention to make an extension for the convening period. The first meeting of the committees of creditors of each of Gunns Limited and GPL was held on 15 October 2012. It is expected that regular meetings will be held on Monday afternoons during the period of the administration.
22 On 19 October 2012, representatives for the plaintiffs and Mr Bryant telephoned members of the committees of creditors Gunns Limited and GPL to inform them of their intention to seek the orders to extend the convening period. There are 17 members of both committees of creditors in total. The administrators were able to speak with 11 of the committee members and left telephone messages for the six committee members with whom they were not able to communicate. None of the persons that were spoken to objected to the proposal to extend the convening period.
23 In applications of this type, there is always a tension between the goal of voluntary administration, which generally seeks a speedy resolution, and the overall object of Part 5.3A as stated in s 435A, namely, maximising the chances of the company involved or its business continuing in existence or achieving a better result for creditors than would otherwise be achieved in an immediate winding up. It is to be borne in mind that the statutory moratorium on the prosecution of proceedings against the company and the enforcement of rights by owners or lessors should not be prolonged without good cause.[1] It has been recognised, however, that the interests of creditors can be prejudiced not only by delay but also by the convening of premature meetings where the administrator has been unable to obtain information for the preparation of the report and statements required by s 439A(4) in the form on which creditors can make an informed decision.[2]
24 It has been recognised in the authorities that an administrator may need to seek an extension of a convening period to enable a completion of investigations or where the investigations have been complicated.[3] In Re Diamond Press Australia Pty Ltd,[4] Barrett J (as he then was) described the function of the Court on an application under s 439A(6) as being:
... to strike an appropriate balance between, on the one hand, the expectation that administration will be relatively speedy in the summary matter and, on the other hand, the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders.
25 In Re Pan Pharmaceuticals Limited (Administrators Appointed),[5] Lindgren J stated:
Clearly, ss 439C and 439A(4) show that an application by the administrators for an extension of time under s 439A(1) and (6) is to be assessed by reference to whether an extension is necessary to enable the administrators to provide the report and statements and, in particular, to arrive at the opinion, referred to in s 439A(4), in order to inform creditors adequately so that they will be in a position to choose one of the three courses identified in s 439C.
26 In Re Riviera Group Pty Ltd (Administrators Appointed)(Receivers and Managers Appointed) & Ors ("Riviera"), Austin J stated: [6]
[8] It is striking that the voluntary administration provisions set a single statutory timetable for every administration of every company "from the smallest to the greatest": as Young J said in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612 (Mann). The attempt to set a single timetable was bound to create distortions and pressures for relief. The statutory power of courts to extend the convening period is the mechanism for adjusting the statutory timetable to meet the exigencies of the instant case.
[9] When the voluntary administration provisions were introduced into the corporations legislation, by the Corporate Law Reform Act 1992 (Cth), it was contemplated that extensions of the convening period would not be given frequently; that is, there was thought to be a predisposition or a kind of factual presumption against an extension. The explanatory memorandum to the Corporate Law Reform Bill 1992 said (para 507):
The court will be given a power to extend these periods...though it is not expected that this power would be exercised frequently, since it is an important objective of the new provisions for creditors to be fully informed about the company's position as early as possible and to have an opportunity to vote on its future as soon as possible.
[10] As is noted in Ford's Principles of Corporations Law, LexisNexis, loose-leaf, at [26.201], an additional reason for reluctance to extend the convening period is that the statutory moratorium on the prosecution of proceedings against the company and on enforcement of rights by chargees and owners or lessors of property during administration should not be prolonged without good cause.
[11] Some remarks in early cases on s 439A(6) applications appeared to reflect the sentiment expressed in the explanatory memorandum. For example, in Mann, Young J (at 612) expressed the opinion that "it would be quite contrary to the whole spirit of [Part 5.3A] to allow administration to be unduly extended or, indeed, to over-encourage administrators to apply to the court". In Re Witta Coola Pastoral Co Pty Ltd [1999] NSWSC 148 the same judge expressed the view that the voluntary administration regime required an accelerated program of work on the part of the administrator; see also Allbuild Construction Co Pty Ltd; Ex parte Featherby [2000] WASC 227 (Allbuild Construction).
[12] However, if one looks more closely at these cases it is less clear that there was any significant leaning against granting an extension, provided that adequate reasons were given in support of the application for extra time. In all three cases, extensions were granted as requested on grounds equivalent to those accepted in later cases. In Mann, for example, although Young J spoke in the manner indicated above about not allowing an administration to be unduly extended, he granted the extension sought on the grounds that the administration was complicated by the appointment of a receiver, the evidence indicated that the administrator was doing his best to deal speedily with negotiations that would enable the company to go back into survival mode, there was no evidence of prejudice to creditors or members in granting the extension, and if the meeting were convened without the extension the administrator would not have sufficient material to give a meaningful account of his administration.
27 In Riviera at paragraph 13, Austin J grouped the grounds for granting an extension into several categories of cases. In my view, the following categories to which his Honour has referred are particularly appropriate for consideration in this case.[7]
(i) the size and scope of the business;[8]
(ii) large number of employees with complex entitlements;[9]
(iii) complex corporate group structure and intercompany loans;[10]
(iv) time needed to execute an orderly process of disposal of assets;[11]
(v) the time needed for thorough assessment of a proposal for deed of company arrangement;
(vi) more generally, that additional time is likely to advance the return for unsecured creditors.
The cases show that where a substantial issue in any of these categories is established (a fortiori, where the facts fit more into more than one category), the Court tends to grant an extension, and the extension tends to be for the time sought by the administrator provided that the evidentiary case has been properly prepared, that there is no evidence of material prejudice to those affected by the moratorium imposed by an administration, and the court is satisfied that the administrator's estimate of time has a reasonable basis.
29 It seems, unless an accommodation can be reached with the lessors of the New Forest Leases, those lessors may make application to protect their interests under s 440 of the Act. On the present state of the evidence before me, I consider that any prejudice flowing to those lessor creditors is outweighed by the need for an extension of the convening period based on the application of the Riviera criteria.
30 I consider, on the evidence and on application of the principles referred to above, that these are substantial grounds to support the granting of the extension of time sought by the plaintiffs.
31 Section 439A(3) of the Act requires, among other things, that the plaintiffs provide written notice of the second meeting of creditors to as many of each of the Gunns Group companies' creditors as is reasonably practical, at least five business days before such meeting to take place. Accordingly, this notice must be provided by 23 October 2012 at the latest. It is said that because of the intermingling of the Gunns Group companies' affairs, the orders made on 2 October 2012 permitting the plaintiffs to prepare a consolidated s 439A report and in the interests of promoting the efficient conduct of the administration of the Gunns Group, it is intended to hold the second meetings of creditors of each of the companies concurrently.
32 The concurrent first meeting of creditors was held on 10 October 2012 and at that meeting, the growers were admitted as contingent creditors of GPL for voting purposes for only $1, having regard to their status as creditors of GPL. The same course is intended to be adopted for the second meetings of creditors.
33 By operation of the provisions of s 439A of the Act, the plaintiffs would ordinarily be required to send a written notice to each grower, accompanied by the s 439A report in respect of GPL. Having regard to the complexity of the affairs of GPL and the investigations conducted by the plaintiffs to date, it is anticipated that s 439A report in respect of GPL will be voluminous and extend to at least 90 pages.
34 As there are approximately 35,000 growers, the plaintiffs did not believe that it is practically feasible or economical to send a written notice in the s 439A report to each grower. On the assumption that the notice of the meeting and the s 439A report in respect of GPL would extend to at least 100 pages, it is estimated it will cost approximately $300,000 inclusive of GST to post a written notice of the second meeting of creditors of GPL and the accompanying s 439A report of GPL to each of the 35,000 growers recorded in the books and records of GPL.
35 It is proposed that in the alternative, the growers be provided with notice of a second meeting of creditors by GPL by the following means:
(a) sending notice of the meeting to the personal electronic addresses of each grower as such addresses are recorded in the books and records of GPL;
(b) causing notice of the meeting to be published in the Australian newspaper; and
(c) placing notice of the meeting on the Gunns website, ABL's website and the website maintained by PPB Advisory.
36 Based on present investigations, the plaintiffs estimate that they have email addresses for some 25,500 growers representing approximately 75% of the total number. It is said that in the interests of minimising costs to creditors of giving notice of the second meeting of creditors that an additional order should be sought, that is, rather than sending the voluminous s 439A report in respect of GPL to the 35,0000 growers by email or post, that the report be made available for download on the website. It is estimated that the costs of notifying growers of the meeting of creditors of GPL and making the s 439A report in the manner proposed will be only approximately $5,000 to $10,000.
37 Pursuant to s 439A(4) of the Act, the notice of the second meeting of creditors must be accompanied by the s 439A report and it is anticipated by reason of the complexity of the administration of the Gunns Group that report, so far as it relates to each of the consolidated group and Gunns Holdings Pty Ltd will also be voluminous, extending to at least 90 pages.
38 Mr Bryant estimates that there are approximately 900 trade and secured creditors of the Gunns Group (excluding the growers who may be creditors of GPL). The cost of providing a hard copy of the s 439A report to the creditors of the applicable Gunns Group is estimated to be approximately $6,100 plus GST. In those circumstances, the plaintiffs seek orders permitting them to provide creditors with the s 439A reports by referring to the s 439A reports in the notices provided to creditors pursuant to s 439A(3) of the Act and notifying creditors that the report is available for download from the websites. The cost of making the s 439A report available for download will be modest. It will only involve PPB Advisory and ABL staff time involved in uplifting the reports onto the websites.
39 I consider it is clearly appropriate to make orders of the type sought. The form of order sought in respect to the provision of notices and other documentation to the creditors was made in Lindholm, in the matter of Munday Group Pty Ltd (Administrators Appointed) (Receivers and Managers appointed)[13] by Gordon J. The orders of that type are designed to curtail the cost of compliance with the provisions of the Act requiring hard copies of lengthy documents to be provided to creditors of the Gunns Group in advance of the second meeting, in particular the s 439A reports to creditors.
(ALL ADMINISTRATORS APPOINTED) (THE 'GUNNS GROUP')
[1] See Re Pan Pharmaceuticals Limited (Administrators Appointed) [2001] FCA 598; (2003) 21 ACLC 1144.
[2] See, for example, Re Brash Holdings Limited (Administrators Appointed) (1994) 13 ACSR 793; Re Pan Pharmaceuticals [2001] FCA 598; (2003) 21 ACLC 1144.
[3] See, Re Evans and Tate Limited (Administrators Appointed) (Receivers and Managers Appointed) (2007) WASC 235.
[4] [2001] NSWSC 313, [10].
[5] [2003] FCA 598, [41].
[6] [2009] NSWSC 585; (2009) 72 ACSR 352, [8]-[12] ("Riviera").
[8] Re ABC Learning Centres Limited; Application by Walker (No 5) [2005] FCA 1947.
[9] Re S & D International Pty Ltd (in liquidation); Malhotra v Tiwari [2005] VSC 496.
[10] Re Lombe; Re Octaviar Limited (Administrators Appointed) (Receivers and Managers Appointed) [2008] QSC 272.
[11] Re ABC Learning Centres Ltd; Application by Walker (No 7) (2009) 71 ACSC 560.
[12] [2009] NSWSC 585; (2009) 72 ACSR 352, [8]-[12] ("Riviera").