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[2019] FCA 1861
Federal Court of Australia
2019-05-08
Mr J, Markovic J
Original judgment source is linked above.
ORDERS NSD 612 of 2019 IN THE MATTER OF LUXTOWN PTY LTD (ADMINISTRATORS APPOINTED) ACN 002 114 105 BETWEEN: MARK ROBINSON, RIAD TAYEH AND ANTONY RESNICK IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF LUXTOWN PTY LTD (ADMINISTRATORS APPOINTED) ACN 002 114 105 IN ITS OWN CAPACITY AND AS TRUSTEE OF THE TRUSTS LISTED IN THE SCHEDULE
LUXTOWN PTY LTD (ADMINISTRATORS APPOINTED) ACN 002 114 105
JUDGE: MARKOVIC J DATE OF ORDER: 8 MAY 2019
MARKOVIC J: 1 This proceeding first came before me on 24 April 2019 in my capacity as Commercial and Corporations Duty Judge. Relevantly, the first plaintiffs are Mark Robinson, Riad Tayeh and Antony Resnick in their capacity as joint and several administrators (Administrators) of Luxtown Pty Ltd (administrators appointed) (Luxtown). The proceeding came back before me on further occasions. Relevantly: (1) on 24 April 2019 I made orders pursuant to s 447A of the Corporations Act 2001 (Cth) (Act) in relation to subss 443B(2)(a) and (3) of the Act, in respect of Luxtown, the effect of which was to extend the period during which the Administrators would not be liable for rent and other amounts for property used by Luxtown; (2) on 26 April 2019 (26 April Orders) I made a number of orders including orders pursuant to ss 442C and 447A of the Act and orders pursuant to s 57 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) appointing the Administrators as receivers of the trust property owned by Luxtown as trustee for each of the 2nds World Online Trust (2nds World Trust) and the P.R. & K.M.Hammerman Family Trust (Hammerman Trust); (3) on 8 May 2019 I made orders varying the April Orders by vacating the order that had been made pursuant to s 442C(2)(c) of the Act and making a further order pursuant to that section to operate nunc pro tunc and made further orders including an order pursuant to s 90-15 of the Insolvency Practice Schedule, being Sch 2 to the Act (IPS); and (4) on 10 May 2019 I made orders retiring the court-appointed receivers of the trust property owned by Luxtown as trustee for the 2nds World Trust and for the Hammerman Trust. 2 These are my reasons for making Orders 1, 2 and 3 on 26 April 2019 as varied by Orders 1, 2 and 3 made on 8 May 2019 and for making Order 4 on 8 May 2019. 3 As noted above, orders were made retiring the court-appointed receivers shortly after their appointment when the Administrators had, with the assistance of a director of Luxtown, identified the terms of the relevant trust deeds and ascertained the current terms of the trust deeds for each of the 2nds World Trust and the Hammerman Trust and that the relevant deeds did not contain an ipso facto clause which would terminate Luxtown's appointment as trustee upon appointment of a voluntary administrator.
background 4 Luxtown operated a business known as "Seconds World" which sold electrical goods from five different leased locations across Sydney. The business also leased a warehouse in Auburn. The Administrators were appointed to Luxtown on 15 April 2019. 5 In the period following their appointment to 24 April 2019 the Administrators undertook a number of tasks including general administrative tasks such as holding discussions with Luxtown's directors, securing the books and records of Luxtown and reviewing those records; complying with their statutory obligations; liaising with Luxtown's employees and its creditors; arranging for the businesses and assets of Luxtown to be advertised for sale; and conducting preliminary investigations as required by s 438A of the Act. 6 Based on their investigations, the Administrators had identified that as at 24 April 2019 Luxtown appeared to owe creditors approximately $7m.
Stock 7 As at the date of the Administrators' appointment Luxtown's books and records indicated that Luxtown held stock with an at cost value of approximately $2m. Based on a stocktake undertaken following the Administrators' appointment, there were approximately 10,000 items of stock primarily consisting of different kinds of electrical goods of different brands. 8 A search of the Personal Property Securities Register (PPS Register) conducted on 28 March 2019 showed that there were 213 security interests registered against the ACN of Luxtown and three securities registered against the ABN of Luxtown, including 126 Purchase Money Security Interests (PMSI) against the ACN of Luxtown and two PMSIs against the ABN of Luxtown, in favour of a total of 47 secured parties. 9 Based on a search of Luxtown's books and records undertaken at the request of Mr Robinson, one of the Administrators, Mr Robinson identified 32 secured parties who appeared to have amounts owing to them, for whom it was possible that Luxtown was holding unsold stock and who had PMSI registrations in their favour (Potential PMSI Holders). 10 On 16 April 2019 Mr Robinson sent two emails to the Potential PMSI Holders in which he invited them to: (1) confirm whether Luxtown had any debt owing to them and whether they asserted any security interest over Luxtown's assets; and (2) attend Luxtown's premises and identify any stock in which they claimed a security interest. 11 On 18 April 2019 Mr Robinson was contacted by Hugh Evans of Moneytech Finance Pty Ltd (Moneytech), which according to Mr Robinson held several PPS registrations against Luxtown. Mr Evans' email included: We hereby instruct that NO stock should be released back to vendors/suppliers (as we have paid for a significant portion of that stock) and that stock is subject to our PPSR registrations. Please refer attached invoices related to our PMSI interests. In the absence of identification from others, it is safe to assume that all stock branded as per the invoices/statements is ours as we have paid the suppliers(s) in full. 12 Following Mr Evans' email, Mr Robinson notified the Potential PMSI Holders of Moneytech's position and informed them that, in light of that, he would not be in a position to allow property to be collected by parties asserting PMSIs. 13 On 23 April 2019 Mr Robinson met with a representative of Samsung. In that meeting Mr Robinson was informed that Samsung was owed approximately $1m by Luxtown and that Samsung had identified stock of approximately $35,000 at cost to which it believed its PMSIs attached. 14 Also on 23 April 2019 Mr Robinson met with Mark Cameron from Moneytech. During that meeting Mr Robinson was informed that Luxtown owed Moneytech approximately $500,000 and that Moneytech had no objection to the Administrators selling the stock in which they claimed an interest provided that its claim was converted into a claim against the proceeds of sale of the stock. 15 As at 24 April 2019: (1) Mr Robinson had not yet received responses from many of the Potential PMSI Holders and was of the opinion that there may be further instances of competing claims to stock beyond those already known to him; (2) 15 Potential PMSI Holders had attended Luxtown's premises to attempt to identify stock that may be subject to their asserted PMSIs; (3) only three to four of the Potential PMSI Holders had confirmed that they were no longer creditors of Luxtown; and (4) critically, with the exception of Samsung, none of the secured creditors had provided Mr Robinson with a list of stock in which they claimed a security interest which included the unique serial number identifiers of those stock items. Rather, the claims of other secured parties referred to stock by brand and model number. In light of that Mr Robinson believed that it would be extremely difficult, if not impossible, to determine whether there were multiple claims over the same stock. 16 Mr Robinson had intended to move the stock to a central location for processing of PMSIs and secured claims against it, provided that the secured parties agreed to bear the costs of that exercise. However, upon making the relevant inquiries not all secured parties responded or agreed to the proposal. According to Mr Robinson the Administrators had no funding available to them to move the stock and, in the absence of consent from all interested secured parties, it would not be possible for them to identify stock owned outright by Luxtown which they may be entitled to sell for the benefit of Luxtown's creditors generally. 17 Between 26 April 2019 and 7 May 2019 the Administrators had further communications with three further suppliers of stock and/or Potential PMSI Holders and a further conversation with Mr Cameron from Moneytech.
Leased premises 18 On 18 April 2019 Mr Robinson wrote to the landlords of the six premises leased by Luxtown (Landlords). In that correspondence Mr Robinson sought an extension of time for which the Administrators would not be personally liable to pay rent pursuant to s 443B of the Act until 3 May 2019. A summary of the correspondence that was sent and responses received compiled by Mr Robinson appears below: 19 Between 26 April and 7 May 2019 there was further communication with a number of the Landlords. Relevantly, on 3 May 2019 the Administrators gave up possession of the Auburn warehouse. 20 The Administrators did not hold sufficient cash or other readily realisable assets in the name of Luxtown to fund the rent payable under the leases to the Landlords. Mr Robinson's evidence was that if the Court was not minded to extend the time available to the Administrators to disclaim leases without incurring personal liability under s 443B of the Act, they would have no option but to disclaim the leases. This would likely result in the Landlords exercising a lien over any stock located at the various premises and an increase in the amounts owing to the creditors of Luxtown, such as suppliers and holders of security interests. Mr Robinson also noted that potential priority disputes in relation to abandoned stock would cause inconvenience and cost to suppliers and secured parties.
Potential sale of stock and other assets of Luxtown 21 On 17 April 2019 the Administrators caused the business of Luxtown to be advertised for sale in the Australian Financial Review. 22 Based on the responses received as at 24 April 2019 Mr Robinson believed that: (1) there was a prospect of the Administrators being in a position to sell Luxtown's stock in one line to an interested party or otherwise in piecemeal fashion on a break-up basis; (2) there was a prospect of finding a purchaser to take an assignment of some of the leases, which if achieved would result in a possible realisation of the value of any fixtures in the leased premises and a possibility that the Landlords may have lower creditor claims against Luxtown upon disclaimer of the leases; and (3) there was a prospect of selling certain other assets of Luxtown such as intellectual property. 23 Mr Robinson's preliminary view was that the interests of Luxtown's creditors would benefit from a sale of Luxtown's stock in a single line as that would minimise holding, transport and storage costs for the stock, including rent payable to the Landlords. It was also Mr Robinson's preliminary view that the Administrators would be in a position to complete a sale of Luxtown's stock in one line by 3 May 2019 unless that stock became inaccessible to the Administrators because it was retained in leased premises to which they had lost their right of access. 24 On 2 May 2019 the Administrators accepted an offer from Harvey Norman to acquire certain assets of Luxtown. As part of the arrangements with Harvey Norman a non-refundable sum was paid to the Administrators without any obligation for it to be deducted from the ultimate sale price. The Administrators notified the Landlords of their intention to pay rent on a daily basis for their occupation of the premises from 4 May 2019.
Administrators' proposal in relation to sale proceeds from sale of stock 25 In the event that the Court was minded to authorise the Administrators to sell Luxtown's stock, Mr Robinson proposed that the following should occur in relation to the sale proceeds: (1) the Administrators' costs and disbursements of this proceeding be paid out of the sale proceeds; (2) the Administrators' costs and disbursements, including legal fees and stocktake costs, in dealing with and selling the stock the subject of security interests be paid out of the sale proceeds in an amount agreed between the secured parties and the Administrators or approved by the Court; (3) any amounts which the Court sees fit to order are paid out of the proceeds of sale to the Landlords; and (4) the balance of the sale proceeds be held by the Administrators in a controlled monies account pending agreement between the secured parties and the Administrators or determination by the Court as to respective entitlements to those sale proceeds of those parties having an interest in the stock or its proceeds.
Sale of Luxtown's stock 26 As was apparent from the evidence before me there was a contest between the secured creditors as to their interests in the stock and it was not clear to the Administrators, based on the PPS Register, whose interest attached to which item of stock. Accordingly, the Administrators sought an order pursuant to s 442C(2)(c) of the Act to sell the entirety of the stock and create a fund in order that the parties' respective interests could subsequently be determined. 27 Section 442C of the Act relevantly provides: (1) The administrator of a company under administration or of a deed of company arrangement must not dispose of: (a) property of the company that is subject to a security interest; or (b) property (other than PPSA retention of title property) that is used or occupied by, or is in the possession of, the company but of which someone else is the owner or lessor. (2) Subsection (1) does not prevent a disposal: (a) in the ordinary course of the company's business; or (b) with the written consent of the secured party, owner or lessor, as the case may be; or (c) with the leave of the Court. (3) The Court may only give leave under paragraph (2)(c) if satisfied that arrangements have been made to protect adequately the interests of the secured party, owner or lessor, as the case may be. … (7) If: (a) a company is under administration or is subject to a deed of company arrangement; and (b) property of the company is subject to a security interest; and (c) the administrator disposes of the property; the disposal extinguishes the security interest. (Notes omitted.) 28 Based on the evidence before me I was satisfied that the order sought by the Administrators pursuant to s 442C(2)(c) of the Act should be made. That was so for the following reasons: (1) it appeared from the state of the PPS Register that a substantial quantity of Luxtown's stock was encumbered; (2) the Administrators and, indeed, the secured creditors were unable to identify the stock to which particular secured creditors' interests attached; (3) the Administrators had advertised the business for sale in one line or otherwise in a piecemeal fashion. Mr Robinson was of the opinion that Luxtown's creditors would benefit from a sale of the stock of Luxtown in a single line and, if sold, the balance of the sale proceeds, after payment of various costs associated with their sale, would be held in a controlled monies account pending agreement between the secured parties and the Administrators or determination by the Court as to their respective entitlements; (4) those proposed arrangements for the preservation of the proceeds of sale provided adequate protection for the secured parties' interests; and (5) to proceed to sell the stock in the absence of such an order may have exposed the Administrators to a claim for damages for having disposed of property contrary to s 442C of the Act: see THC Holding Pty Ltd v CMA Recycling Pty Ltd (Administrators Appointed) (2014) 101 ACSR 202; [2014] NSWSC 1136. 29 I note two further matters. First, the order initially made on 26 April 2019 pursuant to s 442C(2)(c) of the Act was subsequently vacated on 8 May 2019 and a new order made which operated nunc pro tunc pursuant to that section. That was because the order when first made did not refer to the different capacities in which Luxtown might hold the stock. The order made on 26 April 2019 permitted the Administrators to dispose of the relevant property while the subsequent order made on 8 May 2019 permitted the Administrators to dispose of the relevant property whether held by Luxtown in its own right or in its capacity as trustee of any of the identified trusts. 30 Secondly, consequential orders were sought in relation to the payment of costs of this proceeding and of the sale process, including preserving a fund for payment to Landlords if a valid substantiated claim was made, from the proceeds of sale and in relation to the way in which the net proceeds of sale were to be held pending the resolution of the competing claims to those proceeds. I was satisfied that the orders sought were appropriate in the circumstances and should be made.
Order under s 447A of the Act 31 Section 447A of the Act relevantly provides: (1) The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company. … (3) An order may be made subject to conditions. (4) An order may be made on the application of: (a) the company; or (b) a creditor of the company; or (c) in the case of a company under administration - the administrator of the company; or (d) in the case of a company that has executed a deed of company arrangement - the deed's administrator; or (e) ASIC; or (f) any other interested person. 32 The power conferred by s 447A is broad. 33 The Administrators sought an order under s 447A in relation to the operation of s 442C(7) of the Act (see [27] above) to preserve the rights of security holders despite the sale of the stock. In that regard, the Administrators submitted that the order was sought to avoid any doubt and to give effect to the Administrators' proposal that the respective positions and rights of the creditors as against one another are preserved pending the determination of each secured creditor's interest in the property. The Administrators said that was so because most, if not all, of the PMSI holder registrations referred to proceeds and would therefore remain secured for the purpose of s 32 of the Personal Property Securities Act 2009 (Cth), notwithstanding a sale of the underlying property. 34 Having regard to the Administrators' submissions and the evidence before me, I was satisfied that the order sought by the Administrators pursuant to s 447A of the Act should be made.
Order under s 90-15 of the IPS 35 On 8 May 2019 the Administrators also sought an order pursuant to s 90-15 of the IPS that they would be justified in disposing of Luxtown's stock and dealing with the proceeds of that sale in accordance with their proposal. The Administrators sought that order because their decision related to encumbered stock, there had been some pushback from secured creditors about the proposal to sell and they were selling in their capacity as administrators. They submitted that, while they were satisfied with their decision to sell the stock and the steps they had taken to notify secured creditors of their proposal and satisfy themselves that they could sell in their capacity as administrators, the decision was not entirely uncontroversial. 36 Section 90-15(1) of the IPS empowers the court to make such orders as it thinks fit in relation to the external administration of a company. Section 90-15(4) sets out a non-exhaustive list of the matters which the court may take into account in exercising the discretion under s 90-15(1). 37 In GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 at [33] Farrell J said the following about the operation of s 90-15(1): The power to make orders conferred by s 90-15(1) contains no equivalent of s 511(2) which permitted the Court to accede to an application "if satisfied that … the exercise of power will be just and beneficial". The power is, in its terms, unconstrained. Section 90-15(4) lists some matters the Court is entitled to take into account but that list is expressed to be "[w]ithout limiting the matters which the Court may take into account when making orders". In Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486, Gleeson J observed at [41] that the question of whether to exercise the power under s 90-15 of Sch 2 can be answered by reference to principles that applied to the exercise of the discretion under the provisions previously contained in ss 479(3) and 511. I agree that those cases can be a useful guide. Despite the breadth of the power conferred by s 90-15(1), it is difficult to envisage circumstances where the power would be exercised if the Court could not be satisfied that it would be just and unless the applicant had demonstrated sufficient utility to the external administration. 38 In Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486 at [35]-[36], in considering a submission that the Court's supervisory powers under the then newly introduced s 90-15 of the IPS were as broad or broader than under previous provisions including s 479(3), Gleeson J observed that: 35 In Re Ansett Australia Ltd and Korda [2002] FCA 90; 115 FCR 409, concerning s 479(3), Goldberg J explained at [44]: When liquidators and administrators seek directions from the Court in relation to any decision they have made, or propose to make, or in relation to any conduct they have undertaken, or propose to undertake, they are not seeking to determine rights and liabilities arising out of particular transactions, but are rather seeking protection against claims that they have acted unreasonably or inappropriately or in breach of their duty in making the decision or undertaking the conduct. They can obtain that protection if they make full and fair disclosure of all relevant facts and circumstances to the Court. In Re G B Nathan & Co Pty Ltd (1991) 24 NSWLR 674, McLelland J said at 679-680: The historical antecedents of s 479(3) …, the terms of that subsection and the provisions of s 479 as a whole combine to lead to the conclusion that the only proper subject of a liquidator's application for directions is the manner in which the liquidator should act in carrying out his functions as such, and that the only binding effect of, or arising from, a direction given in pursuance of such an application (other than rendering the liquidator liable to appropriate sanctions if a direction in mandatory or prohibitrary form is disobeyed) is that the liquidator, if he has made full and fair disclosure to the court of the material facts, will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by him in accordance with the direction. ... Modern Australian authority confirms the view that s 479(3) 'does not enable the court to make binding orders in the nature of judgments' and that the function of a liquidator's application for directions 'is to give him advice as to his proper course of action in the liquidation; it is not to determine the rights and liabilities arising from the company's transactions before the liquidation': [cases cited omitted]. 36 At [65], Goldberg J concluded: [T]he prevailing principle adopted by the courts, when asked by liquidators and administrators to give directions, is to refrain from doing so where the direction sought relates to the making and implementation of a business or commercial decision, either committed specifically to the liquidator or administrator or well within his or her discretion, in circumstances where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought. There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator's or administrator's unease. There must be an issue calling for the exercise of legal judgment. 39 The Administrators submitted that they were seeking protection from claims that they had acted unreasonably or inappropriately in the circumstances, that the evidence shows that the decision to sell the stock was not unreasonable or inappropriate and that the Administrators did not seek to protect a commercial decision but sought protection from a claim of impropriety on their part. I accepted those submissions and was satisfied that I could make the order sought.
conclusion 40 For those reasons I made the orders referred to at [2] above on 26 April 2019 and 8 May 2019. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.
SCHEDULE NSD 612 of 2019 1 2nds World Penrith Trust ABN 83 083 750 132 2 2nds World Auburn Trust ABN 18 902 495 787 3 2nds World Online Trust ABN 28 499 430 658 4 2nds World Caringbah Trust ABN 62 710 376 637 5 Appliance Solutions Direct Family Trust ABN 89 470 390 196 6 Savvy Appliances Family Trust ABN 64 950 077 894 7 2nds World Castle Hill Trust ABN 73 132 635 471 8 Bargain Appliances Online Trust ABN 19 943 691 502 9 P.R & K.M.Hammerman Family Trust ABN 39 832 104 571
GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq)
Umberto Pty Ltd