- Gregorski Investments Pty Ltd (in liq) v 320 Nominees Pty Ltd as trustee of Gregorski Property Trust

Evidence in the proceedings

Turning now to the evidence, the administrators relied on the affidavit dated 7 December 2021 of Mr McCabe, one of the administrators, who refers to his and Mr Hayes' appointment as voluntary administrators of the companies, following a resolution passed by their sole director, DK, under s 436A of the Corporations Act. I will refer below to some criticisms made of that appointment, although no application was brought by the Intervenors to set aside the appointment of the voluntary administrators or challenge the validity of that appointment. Mr McCabe also sets out the background to the four companies, which were incorporated to act as trustees of four trusts, and owned the land on which four hotels operate, with each hotel being held by one of the companies as trustee for one of the trusts. Those hotels are operated by separate operating companies, which it appears are now largely under the control of the Intervenors or some of them, who oppose the relief sought by the administrators.
Mr McCabe refers, in his first affidavit, to the basis on which he has formed the view that the companies conduct businesses as trustee, which does not appear to be controversial, and to the work already done by the administrators in respect of the administrations. He also identifies the companies' major creditors as at the date of the administrators' appointment. The companies together have a very substantial liability, in excess of $38 million, owed to the Commonwealth Bank of Australia ("CBA") as a secured creditor, and statutory creditors including the Australian Taxation Office and the Office of State Revenue in modest amounts. Other creditors and contingent creditors are also identified, although there may be a dispute as to aspects of those claims in respect of the matters in issue in the proceedings between Clear Run and DK.
Mr McCabe in turn refers to disputes between unitholders, or some of them, on the one hand and DK, and to the fact that there are also, it appears, differences of views amongst some unitholders. Mr McCabe also acknowledges that, prior to the administrators' appointment, orders were made by Rein J which restricted dealings with assets of the companies and the trusts, and I will return to the position as to those orders below. Mr McCabe in turn outlines the basis of the application for appointment as receivers and managers of the assets of the trusts, which is conventional in character. He and Mr Hayes seek to control those assets, so as to administer the affairs of the companies which are the former trustees, and which plainly have a right of indemnity against trust assets, so as to meet the claims of trust creditors.
I have been taken to the exhibits to Mr McCabe's affidavit, which include the directors' meetings of each of the relevant companies which appointed the administrators. Those minutes contained a detailed recital of events, including reference to the fact that the operating companies had, at that time, sought retrospective rent relief from the companies, in a manner that would likely adversely affect their cashflow. Mr Kelly, with whom Mr O'Connor appears for the proposed new trustees and the Intervenors, in turn takes me to the cashflow documents which were exhibited to those minutes, which demonstrated that the companies had a positive cashflow, at least while rent was received from the operating companies and it would also have taken a considerable time for their positive cash opening position to be eroded, even if no rent was received. I bear in mind, however, that the circumstances in which a voluntary administrator may be appointed under s 436A of the Act include not only where a company is insolvent, but also where it is likely to become insolvent, and there is in any event no challenge to the administrators' appointment in this application.
Mr McCabe also exhibits several emails from unitholders, who may be a minority of unitholders, who favour the administrators being given responsibility for the sale process in respect of the hotel properties in order to address difficulties between unitholders, and between unitholders and DK, in respect of the affairs of the trusts. Some of those emails are put in strong terms. Mr Kelly in turn submits, and the evidence on which he relies suggests that a majority of unitholders, at least in some of the trusts, favour the alternative proposal advanced by the proposed new trustees, rather than the proposal put by the administrators, but I bear in mind that a minority of unitholders do not do so, and have, in some cases, expressed a lack of confidence in the proponents of that proposal.
There is also correspondence, exhibited to Mr McCabe's first affidavit and in further affidavits, dealing with the CBA's attitude, and it neither consents to nor opposes the administrators' proposed application, on specified terms including that the orders sought do not disturb its security position or its rights to enforce its securities at any time. The orders sought by the administrators do not have any adverse effect on CBA's rights.
By a second affidavit dated 16 December 2021, Mr McCabe refers to his experience as an insolvency administrator, and to the steps which would be taken to sell the land on which the hotels are located. Mr McCabe contemplates that that would involve liaison with the operating entities, which as I noted above are under the control of the Intervenors or some of them, in order to ensure the necessary approvals were in place, but also, possibly, to facilitate a combined sale of the land and hotel businesses on a going concern basis. Mr Kelly emphasises the desirability of that course, and I will refer below to advice received by the proposed new trustees and those associated with them which favour a sale process in that manner. However, the proposed new trustees also accepted, as logically they must, that, if the orders they seek are not made, and the administrators are appointed as receivers of the trust assets, then it will be no less economically rational in that situation to sell the land and the hotel businesses together as a going concern, and in those circumstances the administrators and the controllers of the operating companies could cooperate in order to achieve that result. The Intervenors and the proposed new trustees obviously do not favour that result, and Mr Kelly pointed to the risk of additional costs in respect of liaison between those parties. Nonetheless, the Intervenors rightly did not suggest that, if the orders they sought were not made, they would act irrationally so as to fail to cooperate in a sale of both land and hotel businesses conducted in a way that would maximise its proceeds.
Mr McCabe's second affidavit also exhibits further correspondence with several unitholders which, rightly or wrongly, expressed concern that those associated with the proposed new trustees may themselves face conflicts in respect of the application. By further correspondence from the CBA, including a letter dated 8 December 2021, the CBA makes clear that it does not presently commit to novate its financial arrangement with the companies (as trustees of the trusts) to the proposed new trustees. That correspondence has continued, as recently as 21 December 2021, but the CBA has been consistent in its position that, first, the appointment of the voluntary administrators itself gave rise to an event of default; any vesting of trust assets in the new trustees would give rise to a further event of default; and, third, not surprisingly, CBA will not commit to enter into finance arrangements with the proposed new trustees without a full review, including complying with know your client requirements. I bear in mind, in that regard, that the proposed new trustees in turn rely on a financing proposal from St George Bank, and I bear in mind the possibility that, even if the CBA appointed receivers or terminated its facility, a negotiated resolution might be achieved with the proposed new trustees, involving a re-financing, although it may be likely that some time would be taken to achieve that result.
The Intervenors in turn rely on voluminous evidence, although significant parts of that evidence appear to be relevant to matters which may be in issue in the other proceedings between Clear Run and DK. They rely on an affidavit of their solicitor, Ms Taylor, dated 16 December 2021, which refers to those proceedings, and to the circumstances in which the administrators were appointed to the companies, and liquidators were appointed to several other companies.
By an affidavit dated 8 December 2021, Mr Leigh Paillas, who had an association with the companies as their former accountant, indicates the consent of the proposed new trustees to be appointed, and notes that the proposed new trustees are newly incorporated special purpose entities that were established in February 2021 for the sole purpose of acting as new trustees. He there states the new trustees will be "appropriately authorised" to provide financial services as relevant to the functions to be undertaken by them, but there is no evidence to which I have been taken as to what authorisation would be required in that respect, or to what authorisation has been obtained in that respect.
By an affidavit dated 7 December 2021, Mr Stuart Waugh expresses the view that Mr Paillas is a person of integrity and competence, and is of good character and repute. There is no reason to doubt that matter in this application, although I will return below to the fact that the proposed new trustees would operate outside, as the evidence stands, the strong regulatory regime which applies to insolvency practitioners, and do not presently have, so far as the evidence goes, any professional indemnity insurance, and that the Court would have limited sanctions, available only after the event, in respect of the breach of any orders which might be made as a term of their appointment.
By a further affidavit dated 16 December 2021, Mr Paillas in turn refers to the view that he has formed, based on evidence to which I have been taken, that it is in the best interests of unitholders in the trusts to proceed with the proposed sale of the hotel properties as soon as possible, and to sell the relevant hotels on a freehold going concern basis, involving a sale of both the land held by the trusts and the hotel businesses operated by the operating companies. It seems to me that there is force in that proposition, having regard to the advice which the proposed new trustees have obtained, including from a real estate agent or hotel broker who has advised as to the potential sale strategy. However, that proposition is ultimately neutral in this application since, as I noted above, the Intervenors accept that the operating companies would not act irrationally, by not cooperating in a process with the voluntary administrators, if they were appointed as receivers, so as to maximise the sale proceeds.
The Intervenors also read the affidavit dated 15 December 2021 of Mr Ben McMillan, which is one of numerous affidavits in substantially similar form, which indicate their opposition to the appointment of the voluntary administrators as receivers and managers and their support for the appointment of the proposed new trustees. I bear in mind that a number of unitholders expressed that view, in affidavits of substantially the same form, although they were rightly not read where they would have simply duplicated Mr McMillan's affidavit. Equally, however, I recognise that not all unitholders share that view and that unitholders are not the only stakeholders in this matter, where other stakeholders include creditors who have a prior claim to unitholders upon the assets of the trusts.
By an affidavit dated 16 December 2021 of Mr Rowan Hookway, he in turn refers to matters involving the structure of the relevant trusts, and he also indicates his opposition to the appointment of the administrators as receivers of the relevant trust assets. By a further affidavit dated 10 October 2021, Mr Hookway addresses the history of the various trusts, and the investments in the hotels, supported by voluminous exhibits. These matters, it seemed to me, are relevant only to the background to the application, and I bear in mind that they at least establish Mr Hookway's perception that he and other unitholders have reason to be aggrieved with DK's conduct, and that DK in turn appointed the voluntary administrators. I bear that matter in mind, but its relevance is limited by the fact that the voluntary administrators are independent insolvency practitioners, and there is no suggestion that any step that I will take today will return the companies to DK's control, or put them under his influence.
The Intervenors in turn rely on the affidavit of Ms Su dated 7 December 2021, which in turn annexes materials relating to the trusts, including unit trust registers and resolutions. I assume, without deciding, that those materials establish the support of a majority of unitholders in the trusts for the appointment of new trustees, while noting that a number of other unitholders have indicated their opposition to that course.

Submissions

I turn now to the parties' submissions. The voluntary administrators, for whom Mr Krochmalik appears, put submissions which are in conventional terms for an application for the appointment of administrators as receivers to trust assets. Mr Krochmalik addressed attention to the incorporation of the companies and the circumstances in which they were appointed as trustees of the relevant unit trusts, and the evidence that they have only operated as trustees of the relevant trusts. He refers to the various unitholders of the trusts and to the fact that, as I have noted above, there is at least a degree of disagreement between unitholders as to the steps which should be taken. He refers to an earlier proposal for the trustee companies to retire as trustees of the relevant trusts, which was not implemented, and to the development in the proceedings brought by Clear Run against DK, and the making of freezing orders in those proceedings which restrain the trustee companies from dealing with trust assets other than as to specified matters. He also refers to the rent relief sought by the operating companies, and to the subsequent appointment of administrators as voluntary administrators of each of the trustee companies.
Mr Krochmalik draws attention to s 67 of the Supreme Court Act 1970 (NSW) which provides that the Court may, at any stage of the proceedings, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient to do so. He points to the many authorities in which the Courts have made such an appointment in favour of insolvency practitioners in respect of trust assets. He draws attention to a former trustee's right of indemnity and exoneration in respect of trust assets, which is available here, even where a trustee's office is vacated (as in the case of one trust) by reason of the appointment of voluntary administrators. He refers to the view of the relevant principles by Brereton J in Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FCR 17; (2014) 103 ACSR 401; [2014] NSWSC 1484, and to my subsequent review of those principles in Re Glenvine Pty Ltd (in liq) [2020] NSWSC 866. He also refers to the observations of Gleeson J (sitting in this List) in Re Double Bay Property Management Pty Ltd (in liq) [2020] NSWSC 203 as to the orthodox application of these principles in respect of trust assets. Mr Kelly in turn fairly recognises these authorities and does not contest that, absent a more compelling proposal by the Intervenors, an order could or would be made in favour of the voluntary administrators appointing them as receivers of the assets of the trust. Mr Kelly, as I note below, submits that there is a more compelling proposal put by those Intervenors.
Mr Krochmalik submits that, here, the office of the trustee of the Peak Unit Trust was automatically vacated upon the appointment of the voluntary administrators, but the office of trustee has not been vacated in respect of the other trusts. He notes that the voluntary administrators are presently not permitted to realise the assets of those trusts, including to take up the sale process which all parties now appear to accept is necessary, because of the operation of the freezing orders made by Rein J in the other proceedings. Mr Krochmalik also submits that an order for the appointment of the receivers is necessary for them to deal with or realise the assets of the trusts, and that it will also be necessary to make an order releasing the freezing order, so far as the assets are now not under DK's control as the former director of the trustee companies, but instead under the control of the voluntary administrators as independent insolvency practitioners.
Mr Kelly and Mr O'Connor addressed a range of matters in written submissions, although it seemed to me that Mr Kelly, in oral submissions, rightly focused upon a narrower range of issues than those which were addressed in written submissions. In written submissions, Mr Kelly articulated a proposal that had been put by the Intervenors and the proposed new trustees, described as the "pub sale proposal", in a form annexed to Ms Paillas' affidavit dated 16 December 2021. That contemplated that the proposed new trustees would be appointed, and would service existing debt, and establish a fund sufficient to meet and pay disputed debts, and would keep the voluntary administrators informed of progress in relation to the sale of the pubs and the businesses, with all parties having liberty to apply. Mr Kelly indicated that the proposed new trustees would also submit to any orders that the Court may impose, or any undertakings that it may extract, in order to seek to do equity in respect of that proposal, without offering any precise formulation of what orders or undertakings may be required.
Mr Kelly, in turn, fairly accepted the relevant principles in respect of the appointment as a receiver, as I have noted above, but submitted that there was no need to make an appointment of receivers in order to protect the trust assets because the proposed new trustees' alternative proposal would do so.
Mr Kelly also submitted that there was no risk of insolvency in any of the trusts or other risk to trust property. There are at least two difficulties with that submission. The first is that it is a collateral attack on the appointment of the voluntary administrators, when no attempt to challenge that appointment has been made, and they are in fact in place in the companies until the voluntary administration is set aside. The second is that, while there is plainly evidence that suggests there is a substantial surplus of assets in the relevant trusts, it is by no means clear that the trustee companies were solvent, or that they were not likely to become insolvent such as to support the appointment of a voluntary administrator, where there was both a claim by the operating companies to the moratorium in respect of rent payments during the COVID-19 pandemic, and freezing orders which constrained their payment of debts falling outside the exceptions to those orders. It is not necessary to form a final view as to that matter where, as I have noted, no application to set aside the appointment of the voluntary administrators is made.
Mr Kelly also submits that all necessary protection to trust property was put in place by Rein J, when his Honour made the earlier freezing order. While that proposition would be true while the freezing orders were in place, it is displaced where both parties contemplate that the properties will now have to be sold, and that can only occur if the freezing orders made by Rein J are dissolved. Whether the voluntary administrators are appointed as receivers, or the proposed new trustees are appointed as new trustees of the relevant trusts, the protection provided by the freezing orders will be lost, or at least significantly diluted, when those parties are permitted to deal with the relevant assets in a sale process and particularly when the cash surplus of a sale process is in their hands.
Next, Mr Kelly seeks to impugn the application on the basis that DK, as sole director of the trustee companies, passed the relevant resolution for the purposes of s 436A of the Act and did not give the unitholders notice of his intention to do so. It is sufficient to note that, first, s 436A of the Act permits the appointment of a voluntary administrator of a trustee company, at least where that company is likely to become insolvent, and it is not strictly necessary to give the beneficiaries of the trust notice of such appointment. Second, any criticism that can be made of DK's conduct in that regard cannot be visited upon the voluntary administrators.
Next, Mr Kelly submits that it is in the best interests of the trusts and all parties that the hotel businesses now be sold in the most cost-effective way and for the best possible price, and that will best be done without the expense of receivers, upon the basis that the proposed new trustees will not seek to be remunerated for their work. That is plainly a relevant consideration, although it seems to me that it needs to be balanced against the question of expertise of the insolvency practitioners in realising the relevant assets, the regulatory regime that attaches to them and the fact that they will hold professional indemnity insurance, which the proposed new trustees likely would not hold, and the benefit which all unitholders obtain from the integrity of the sale process undertaken under the control of independent insolvency administrators.
Mr Kelly also points to the possibility that orders may be made by the Court which, for example, provide for a fund to be separated and abide the determination of disputes. That submission seems to me to have the fundamental difficulty that, while the Court can make orders, it cannot undertake real-time supervision of compliance with them, and the only sanction that is available for breach of them, after the fact, is a sanction in contempt against a party that remains within the Court's jurisdiction. I pointed out above that there is no reason to question the integrity of the entities sought to be appointed as new trustees or the persons associated with them. It remains that human experience suggests that persons dealing with a surplus of some $72 million might well be exposed to temptation and it would be unfortunate, to say the least, if the Court was left with its sanctions in contempt, after that money had been transferred overseas, particularly if the persons who had transferred it overseas had themselves left for overseas immediately after that occurred.
I do not, of course, infer for one moment that the new trustees or persons associated with them would take that course. Having said that, it seems to me that unitholders, including those who presently support the proposal for the appointment of new trustees, would have real cause for disappointment if the Court had given effect to that proposal and that result ultimately arose. It may be that the Court, which regularly deals with circumstances in which substantial sums of money are lost in that manner, should be a little more cautious in dealing with these matters and a little more sceptical of human nature than the unitholders may themselves have reason to be.
I should address one further submissions made by Mr Kelly which it seemed to me was not well founded. Mr Kelly submits that the appointment of the voluntary administrators was made in breach of the injunction granted by Rein J and that the Court would not accede to any application for the appointment of the voluntary administrators as receivers of the trust assets for that reason, and indeed he goes so far as to submit that the voluntary administrators, or at least the present trustee companies, should not be heard in the application for that reason. It seems to me that that submission is not well-founded. The orders made by Rein J restricted dealings with the trust assets, and there have been none. The appointment of a voluntary administrator to the trustee companies was a step authorised by the Corporations Act in respect of a company that is insolvent or likely to become insolvent, and did not bring about any change in title to the relevant assets which remained with the companies and under their control. There was no breach of the injunction, still less one which was capable of being visited upon the voluntary administrators as persons appointed to that office in accordance with the Act. So far as Mr Kelly repeats the submission that the trustee companies were not insolvent or likely to become insolvent at that time, I have dealt with that submission above, and noted that there is no application to set aside the voluntary administrations.
Mr Krochmalik, in turn, responds to aspects of the proposal put by the new trustees and the Intervenors, noting, rightly in my view, that it is not apparent how the proposed new trustees would actually deal with the process of realising the hotel assets, or protecting the interests of the creditors of the trustee companies or distributing the proceeds from the sale of the hotel properties. I recognise that Mr Kelly invites the Court to make orders in respect of that process, but that invitation has limited weight where there is no definition of the orders that are sought. Second, Mr Krochmalik points, with considerable force, to the experience of insolvency administrators in realising assets of this character, including dealing with regulatory bodies such as the Independent Liquor and Gaming Authority, and there is no evidence as to the extent to which the proposed new trustees or persons associated with them have similar experience.
Third, perhaps more optimistically, Mr Krochmalik submits that the appointment of the voluntary administrators as receivers and managers would not increase costs in any substantial manner. It seems to me that there is a real prospect that the costs involved would be increased by such an appointment, although I will find below that that is a price worth paying for the increased integrity of a sale process undertaken by experienced insolvency practitioners, and the protection which unitholders will obtain by, inter alia, the disciplinary regime that attaches to them and the fact that they will have professional indemnity insurance in respect of steps taken in what will be a substantial transaction.
Mr Krochmalik also points, importantly, to a level of distrust between groups of unitholders, even if the majority of unitholders are in the group represented by the Intervenors. This seems to me to be a significant matter, because the proposal contemplates that new trustees would be companies controlled by one unitholder, and there is a real risk that, if there is later a divergence of interest between that unitholder and other unitholders, then any existing consensus amongst any majority of unitholders who support the appointment of the proposed new trustees will fragment. There would be a real risk to the sale process if that occurred at some point in that process, for example, because of differing views as to what should be done or any change of mind by that unitholder as to whether it should be remunerated for the significant efforts it plans to devote to the sale process.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (4)