Gibbons v Libertyone Ltd

GLEESON J: 1 The plaintiffs (liquidators) are the former administrators of Halifax Investment Services Pty Ltd (company). Background to the administration of the company is set out in Quinlan, in the matter of Halifax Investment Services Pty Ltd (Administrators Appointed) (No 2) [2018] FCA 2115 at [8] and following. See also Quinlan, in the matter of Halifax Investment Services Pty Ltd (Administrators Appointed) (No 3) [2019] FCA 124. 2 On 20 March 2019, a meeting of creditors voted that the company be wound up pursuant to s 439C(c) of the Corporations Act 2001 (Cth) (Act). 3 On 27 March 2019, on the ex parte application of the liquidators, I ordered that the operation of s 446A(2) of the Act be modified in relation to the company to facilitate the efficient and effective conduct of the liquidation. 4 The application was heard urgently to ensure that the liquidators could comply with their reporting obligations arising under s 497(1) and s 506A of the Act and s 70-30 and s 70-35 of the Insolvency Practice Rules (Corporations) 2016 (Cth), being schedule 2 to the Corporations Act 2001 (Cth) (initial reporting obligations). In summary, the orders permit the liquidators to give notices and other communications to the creditors electronically rather than by posting hard copies; and to be relieved of the requirement in s 497 of the Act to send to creditors a list of all creditors. Since it was necessary for the liquidators to take further steps to identify contact details for a large number of creditors, the order also operates to extend the time for compliance with the initial reporting obligations. 5 The liquidators' application was made pursuant to an interlocutory process filed on 27 March 2019 and was supported by an affidavit of Philip Alexander Quinlan affirmed on 27 March 2019. Mr Quinlan's affidavit evidence was supplemented by oral evidence. 6 My detailed reasons for making the order are as follows.

Background to application 7 The issue confronting the liquidators was the potential difficulty and expense of complying with various statutory obligations directed to informing creditors of matters in the course of the liquidation. 8 The issue arose because of the large volume of "investor creditors" of the company, including clients located both in Australia and overseas. Currently, it is estimated that there are 12,500 such creditors. There is a much smaller number of trade creditors. 9 A similar issue arose during the administration that preceded the liquidation. That issue was addressed by orders permitting the administrators to give notices electronically and by publication of information on the three trading platforms through which the company conducted its business: Quinlan, in the matter of Halifax Investment Services Pty Ltd (Administrators Appointed) [2018] FCA 1891 (Halifax No 1). 10 Mr Quinlan noted that the primary business of the company was to deal with financial products through the company's trading platforms. Clients accessed the platforms via a website and used the platforms at their own discretion to conduct their trades. Client access to the platforms has been maintained since the commencement of the company's administration. Clients have been continuing to access the platforms to view account balances and, prior to being appointed liquidators, the administrators published notices on the platforms. 11 In order to access the trading platforms, each client was required to enter into a written client services agreement (CSA) with the company. The form of the CSA was amended by the company from time to time. However, Mr Quinlan's evidence was that each version contains a provision to the following effect: (a) Any notice, demand, consent or other communication (CSA Notice) given or made under a Client Services Agreement: (i) may be given in any manner permitted by the Client Services Agreement and unless otherwise specified or indicated, must be in writing and, if sent by letter or by fax, it must be signed by the sender or a person duly authorised by the sender; (ii) must be addressed and delivered to the intended recipient at the address or fax number set out in the client details form or the address or fax number last notified by the intended recipient to the sender after the date of the Client Services Agreement; (iii) if sent by fax, will be taken to be duly given or made when delivered, received or left at the above fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the CSA Notice is sent or is later than 4pm (local time) at that place, it will be taken to have been duly given or made at the commencement of business on the next business day in that place; (iv) may be given by Halifax by electronic transmission, including by notification through an electronic trading service or telecommunication services; (v) may be given by Halifax by notification on a confirmation, trade contract or account statement; and (vi) unless otherwise provide[d] to the contrary to a civil standard of proof, it will be deemed to be duly given or made: (A) if delivered in person, when delivered to the recipient at the address described above; (B) if by post, 3 business days from and including the date of postage (or, if sent to an address outside Australia, 7 business days from and including the date of postage); (C) if by facsimile transmission, when successfully transmitted to the recipient; (D) if by electronic notification though an electronic trading service or other telecommunication service, when posted to that service by or on behalf of Halifax, whether or not the client has accessed the service or actually seen it; or (E) if by email, when successfully transmitted to the recipient; and (b) a CSA Notice given or made by Halifax under the Client Services Agreement may also be sent by email if: (i) the CSA Notice is sent to the email address set out in the client details form or the email address last notified by the intended recipient to Halifax; and (ii) Halifax keeps an electronic copy of the CSA Notice sent. 12 Mr Quinlan also gave evidence to the effect that the majority of the communications received from creditors of the company since the beginning of the administration have been via email or telephone. Link Market Services (Link) are providing investor management services to the liquidators (and formerly provided services to the administrators). As at 20 March 2019, 6,265 email enquiries and 2,263 telephone enquiries have been received by Link from clients of the company since the start of the administration. In contrast, the liquidators have received only two letters from creditors of the company.

Contact information for creditors 13 Mr Quinlan's affidavit stated that the company's records in a readily accessible form, that is, in a client register or database include email addresses for at least 90% of the investor creditors. Those records do not include postal addresses for 10,687 of the investor creditors, being approximately 85% of those creditors. 14 Mr Quinlan gave affidavit evidence that the proof of debt form sent, in the course of the administration, to all creditors of the company by Link included a request that the creditor elect whether to receive all communications from Link electronically. As at 26 March 2019, Link had received 3,429 proofs of debt. Mr Quinlan was unable to say how many creditors had elected to receive all communications from Link electronically. However, of a sample of 40 proofs of debt, 32 creditors elected to receive all communications from Link electronically. 15 During the course of the application, it emerged that the records "in a readily accessible form" included neither a postal nor an email address for 1,314 creditors. The proposed orders had the effect of relieving the liquidators of the necessity of complying with the relevant notice requirements in relation to those creditors. 16 However, Mr Quinlan gave oral evidence that there were steps that the liquidators could take to search for more contact information for the company's creditors. In particular, the liquidators could conduct a search of the CSAs for each "investor client" for the purpose of identifying additional postal or email addresses of creditors. The liquidators could also review all of the proofs of debt for the same purpose, as well as some spreadsheets that have been located in the company's records. 17 Finally, Mr Quinlan explained that he had been informed by the company's staff that, historically, the company's ordinary mode of communication with the general body of investors was via the online trading platforms themselves. Specifically, a "pop-up" box would be created as investors logged into the platform. Mr Quinlan stated that the primary method by which clients can see their equity balances and trade is by logging into a platform. Mr Quinlan gave evidence that the liquidators could create a similar "pop-up box" on the trading platforms, which would request email addresses and postal addresses from investors who have not already provided those details as they logged into the platform. Such a communication would be directed to all investor creditors. 18 Mr Quinlan's oral evidence was that he did not know of any other ways of communicating with the 1,314 creditors for the purpose of obtaining their contact details.

Proposed mode of compliance and costs of alternatives 19 Mr Quinlan's opinion was that the most expedient and cost-effective way to send notices in compliance with the initial reporting obligations was to use the methods specified in the interlocutory process dated 27 March 2019, being: (1) cause the notices to be published on the ASIC "published notices" website to the extent that that website remains existent and to the extent that such publication is possible; (2) publish the notices on a website maintained by the liquidators; (3) publish the notices on the websites of the company, at www.halifax.com.au and www.halifaxonline.com.au ("company websites"); (4) alert clients of the company, who use the electronic trading platforms provided by the company, namely, "Halifax Plus", "Halifax Pro" and "Trader Workstation", to the publication of the notices on the company websites, via a message published on those electronic trading platforms; (5) send a hyperlink to the notices published on the company websites, by email to the email address of each creditor at such (if any) email address as is recorded in the books and records of the company or otherwise notified to the liquidators by any creditor; and (6) where no email address is recorded in the books and records of the company, or otherwise notified to the liquidators by any creditor, but a postal address is recorded, send the notices by post to the postal address of such creditors at such postal address as is recorded in the books and records of the company. 20 Mr Quinlan's expectation is that the liquidators are likely to be required to provide further information to the creditors pursuant to one or more provisions of the Act and the Insolvency Practice Rules (Corporations) 2016 (Cth), being schedule 2 of the Corporations Act 2001 (Cth) (Rules). The liquidators contended that any relevant notice requirements should be permitted to be satisfied using the same methods as for the initial reporting obligations. 21 Mr Quinlan estimated that the postage cost of complying with these requirements (which I assumed was based on locating postal addresses for all creditors), on each of occasion, is just under $100,000, with the bulk of that amount being referrable to the costs of sending a document to overseas creditors. 22 By contrast, Mr Quinlan estimated that the cost of sending a notice by email is approximately $12,000.

Section 600G of the Act and reg 5.6.11A of the Corporations Regulations 2001 (Cth) 23 Mr Quinlan referred to s 600G of the Act and reg 5.6.11A of the Corporations Regulations 2001 (Cth) (Regulations), which make provision for giving or sending certain notices electronically, including the majority of the notices that the liquidators presently contemplate they will or may be required to send. 24 Mr Quinlan expressed concern regarding the ability of the liquidators to meet their initial reporting obligations. According to Mr Quinlan, there are a large number of clients who have not yet elected to accept communications electronically following up the sending of the proof of debt form by Link. As a result, and given the constraints imposed by the reporting obligations, there was insufficient time for the liquidators to email those clients to seek their consent to receive electronic communication pursuant to s 600G of the Act and reg 5.6.11A of the Regulations. Mr Quinlan noted that, even assuming that 80% of those who have submitted a proof of debt elected to accept communications electronically (based on the sampling exercise mentioned above), there would still be some 9,800 creditors who had not made any such election.

Client list 25 Section 497(1)(a)(ii) of the Act requires the liquidators to send to each creditor a list setting out the names of all creditors, their addresses and the estimated amounts of their claims as shown in the company's records. As appears above, in this case such a list would identify approximately 12,500 investor creditors, as well as the trade creditors. 26 Mr Quinlan's evidence is that the company's client list is a valuable asset and an integral part of the company's business. Since their appointment as administrators, the liquidators have undertaken investigations to determine whether it would be suitable to conduct a sale process of the client list and related aspects of the company's business. 27 Further, as at 26 March 2019, the liquidators had received 14 unsolicited enquiries from third parties who have expressed an interest in purchasing the client list and related aspects of the company's business. 28 Mr Quinlan's opinion, which I accepted, is that it would be potentially damaging to any process for sale of the client list to disclose it, in effect, by complying with s 497(1)(a)(ii).

Distribution of dividends 29 Regulation 5.6.67(3) of the Regulations provides: If the liquidator declares a dividend, he or she must send a notice of that declaration, in accordance with Form 549, to every person entitled to receive payment of the dividend. 30 Form 549 includes the words: A dividend at the rate of _____ in the dollar has been declared for the company and a cheque is attached for $ _____ calculated at that rate on your debt as admitted to rank for dividend for $______. 31 In the event of such a declaration, the liquidators sought to be relieved of the necessity of fully complying with reg 5.6.67(3), to the extent that they would otherwise be required to attach a cheque to the Form 549 required to be delivered to creditors and relieved of any necessity to deliver a Form 549 in its prescribed form, on the following three provisos: (1) the only alteration to the prescribed form of the Form 549 would be to remove any reference to a cheque being attached and to require account details to be provided for a funds transfer in respect of the dividend; (2) the payment of the dividend would be made by electronic funds transfer to any account the details of which are provided; and (3) in respect of any creditor who does not provide the required account details, a cheque in the amount of the dividend payment would be sent by post to the last known address of the creditor.

Jurisdiction 32 The orders proposed were in terms that, pursuant to s 447A(1) of the Act and s 90-15(1) of the Rules, s 446A(2) of the Act would operate in relation to the company hereafter as if it were amended by the addition of provisions relieving the liquidators from certain requirements of the Act, the Regulations and the Rules. 33 Section 446A(1)(a) provides relevantly that s 446A applies if the creditors of a company under administration resolve at a particular time under s 439C(c) that the company be wound up. Pursuant to s 439C(c) of the Act, at a meeting convened under s 439A, the creditors may resolve that the company be wound up. As noted above, such a resolution was passed on 20 March 2019. 34 Section 446A further provides relevantly: (2) The company is taken: (a) to have passed, at the time referred to in paragraph (1)(a) … a special resolution under section 491 that the company be wound up voluntarily; and (b) to have done so without a declaration having been made and lodged under section 494. (3) Section 497 is taken to have been complied with in relation to the winding up. … (6) Section 482 applies in relation to the winding up as if it were a winding up in insolvency or by the Court. Note: Section 482 empowers the Court to stay or terminate a winding up and give consequential directions. … 35 Section 447A provides relevantly: (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. 36 The liquidators' application was based on the decision of Barrett J in Re One.Tel Ltd; Walker and Sherman (as liqs) [2002] NSWSC 1081; (2002) 43 ACSR 305 (One.Tel). In that case, the company in liquidation had a large number of creditors with potential claims of $1.00 or less. As in this case, the company was subject to a creditors' voluntary winding up that arose as a consequence of voluntary administration under Pt 5.3A of the Act. The form of the order sought appears at [39] of the judgment, and reflects the form of the order sought by the liquidators in this case. Broadly, the liquidators of One.Tel and its subsidiaries sought to be relieved of the necessity of complying with specified notice requirements with respect to creditors having claims of $100 or less. At [41], Barrett J noted that the liquidators' aim, in seeking to be exempted from the requirements, was to avoid the costs of mailing, processing and handling in those cases where, according to the indicated rate of dividend, the amount involved was $40 or less. 37 Barrett J concluded that the Court had jurisdiction to make an order of the kind sought. 38 At [44], his Honour stated that s 447A could not be the source of the order sought unless the order, as made, could properly be described as an order about how Pt 5.3A, as distinct from Pt 5.6 (which concerns winding up generally), "is to operate in relation to" the relevant companies. 39 After examining s 446A, at [49] and [50], Barrett J concluded that s 446A, once activated, becomes the source of a winding up regime different from the regime that comes to apply by the taking of the steps dispensed with by s 446A. His Honour said: [49] … One may therefore properly regard s 446A as having and ongoing and sustaining operation for the duration of the winding up it has created. It is not, as it were, exhausted and spent once the winding up regime is in place. [50] In Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756; (2000) 35 ACSR 70, Austin J referred to the decision of Gummow J in Brown v Carpet Design Group Pty Ltd [1994] FCA 1118; (1994) 50 FCR 526 as demonstrating that s 446A supplants, pro tanto, the general statutory provisions dealing with voluntary winding up. As a result of that supplanting - and particularly in light of the modified ongoing regime based on s 482 that it imposes - s 446A must continue to sustain the winding up until it reaches its natural conclusion. It is therefore both permissible and appropriate to regard a winding up of that kind as continuing to be referable to its sustaining source in Pt. 5.3A. 40 At [56], Barrett J concluded that "because s 446A - a Pt. 5.3A provision - is the continuing source of the modified winding up regime, s 447A is available to modify the future operation of s 446A in this case". In reaching this conclusion, his Honour applied the reasons of Austin J in Gibbons v Libertyone Ltd [2002] NSWSC 274; (2002) 41 ACSR 442 at [30], applied in Re Application of Walker (as Liquidator of One.Tel Ltd) [2002] NSWSC 705. 41 Mr Leopold SC submitted that there is no case that does not follow, or criticises, Barrett J's reasoning in One.Tel on this point. Mr Leopold SC noted that similar relief, allowing for notification of creditors by email, was granted by Black J in Re MF Global Australia Limited (in liq) [2013] NSWSC 779 (MF Global). 42 Based on the reasons in One.Tel, I am satisfied that this Court has jurisdiction to modify the future operation of s 446A in relation to the winding up of the company. 43 Section 90-15(1) provides that the Court may make such orders as it thinks fit in relation to the external administration of a company. A company is taken to be under external administration, if, among others, a liquidator has been appointed in relation to the company: s 5-15(c), Sch 2. By s 90-15(4), without limiting the matters which the Court may take into account when making orders, the Court may take into account: (1) whether the liquidator has faithfully performed, or is faithfully performing, the liquidator's duties; and (2) whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and (3) whether an action or failure to act by the liquidator is in compliance with an order of the Court; and (4) whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and (5) the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group. 44 In In the matter of Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481 at [8], Gleeson JA observed that s 90-15 accommodates the determination of substantive rights but said that the Court would not do so without affording potentially affected parties an opportunity to be heard. 45 Noting the breadth of s 90-15(1) and the breadth of the considerations set out in s 90-15(4), I was satisfied that this provision provided an alternative source of power for the relief sought.

Notice requirements 46 I accepted that it is in the nature of the business conducted by the company that its investor creditors have habitually dealt with the company online, as this was the place where trades could be conducted, and was therefore their main point of contact with the company. Accordingly, the most practical way of communicating with investor creditors is likely to be by email addresses provided by the relevant creditor or, in the case of a creditor who has provided a postal address, by communications sent to that address. 47 Thus, I accepted Mr Quinlan's opinion that the most expedient and cost-effective way to send and publish notices in the manner set out at [19] above. In Halifax No 1 at [14], Yates J noted that orders permitting the administrators to give notices electronically and by publication of information would save costs and time, and thus conserve the limited assets of the company for the benefit of creditors. In MF Global at [10], Black J noted that: … The issues arising from the making of an order for notices to be given by email, in the course of a voluntary administration, are not different in kind from those arising in respect of the giving of such notices by similar means in a creditors voluntary liquidation which continues from the voluntary administration. 48 However, I considered that the liquidators should take reasonable steps to identify additional email and postal addresses for investor creditors to ensure that, as far as practicable, all creditors are informed by notices sent to them directly of matters affecting them in connection with the liquidation as contemplated by the Act and the Regulations. Mr Quinlan gave evidence as to all the steps which, in his view, the liquidators could take to collect email and postal addresses for the investor creditors. I accepted that those steps were appropriate and sufficient. Mr Quinlan did not suggest that the steps identified by him would impose an unreasonable cost upon the liquidation. 49 Accordingly, the orders made provide for the liquidators to take all reasonable steps to obtain contact details for the investor creditors for whom they currently do not have such details. The orders also extend the time for compliance with the initial reporting obligations for a short time, so that the liquidators may comply with the initial reporting obligations in respect of each creditor, to the extent that it is reasonably possible to do so.

Client list 50 Section 446A(3) provides that s 497 is taken to have been complied with in relation to the winding up. In One.Tel at [48], in describing the species of winding up brought about by s 446A, Barrett J noted that "there is no meeting of creditors under s 497". 51 Mr Leopold SC submitted that s 446A(3) is a mistake, overlooked in the 2016 amendments to the Act. Mr Leopold SC noted that, prior to 2016, s 497 concerned a first meeting of creditors. Now, it is concerned with the provision by the liquidator of information about the company's affairs. 52 It is the liquidators' view that they are obliged to comply with s 497 notwithstanding the terms of s 446A(3). For the purposes of the application, I proceeded on the basis that the liquidators are correct. Having regard to Mr Quinlan's evidence, I was satisfied that it was appropriate in the context of this liquidation to relieve the liquidators from the requirement to supply creditors with a client list, in order to protect what is considered by Mr Quinlan to be a valuable asset of the company so that the liquidators may attempt to sell the list for the benefit of all creditors. In reaching this conclusion, I accepted Mr Leopold SC's submission that there is no obvious prejudice to the creditors in not providing them with the client list.

Distribution of dividend 53 In MF Global at [13] and following, Black J considered whether to make an order directed to modifying the operation of reg 5.6.67(3). The proposed modification would have provided for payment by electronic funds transfer rather than by cheque. It did not provide for any alternative mechanism. 54 At [15], his Honour raised a concern that the proposed modification might cause difficulty where an unsecured creditor has not previously provided bank account details so as to permit electronic funds transfers, and, for whatever reason, was not prepared to provide such details. 55 I accepted Mr Leopold SC's submission that the order sought by the liquidators sufficiently addressed the concern identified by Black J, by modifying the obligation under reg 5.6.67(3) in the case of any creditor who does not provide the required account details so that a cheque in the amount of the dividend payment is sent by post to the last known address of the creditor.

Conclusion 56 For the reasons set out above, I was satisfied that I should make the orders that were made. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.