In the matter of Harrisons Pharmacy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) [2013] FCA 458

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 698 of 2013

PLAINTIFF ROBERT BOYCE MOODIE AND GEOFFREY PHILLIP REIDY IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF HARRISONS PHARMACY PTY LIMITED ACN 121 947 760 (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) AND the companies LISTED IN THE SCHEDULE

JUDGE: FARRELL J DATE: 21 MAY 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 25 March 2013, Commonwealth Bank of Australia trading as Bankwest (Bankwest) appointed Robert Boyce Moodie (Mr Moodie) and Geoffrey Phillip Reidy (the Administrators) as joint and several administrators of Harrisons Pharmacy Pty Limited ACN 121 947 760 (Administrators Appointed) (Receivers and Managers Appointed) and the 8 companies listed in the Schedule to these reasons (the Companies). 2 By originating process filed on 22 April 2013, the plaintiffs sought orders pursuant to s 439A(6) and s 447A(1) of the Corporations Act 2001 (Cth) (Act) to extend the convening period within which meetings of creditors of the Companies (called the "second meeting" for convenience) must be convened and held. But for the extension sought by the plaintiffs, the convening period for the second meeting would expire on 1 May 2013 under s 439A(5). The plaintiffs seek an extension of the convening period up to and including 31 October 2013, a period of 6 months. 3 Mr Moodie swore an affidavit of 22 April 2013 in support of the originating process which was read in these proceedings. 4 Following a hearing on 26 April 2013, I made the orders set out at the commencement of these reasons. These are my reasons for making those orders.

Background 5 At the time the Administrators were appointed, the Companies operated businesses comprising: large, full-service pharmacies typically within major shopping centres with a strong retail presence in addition to the traditional dispensing of medicines; smaller pharmacies located outside of major retail centres, primarily dispensing medicines; medical centres including "bulk billing" medical practices; medicine and pharmaceutical supply contracts to aged care facilities; and a wellness spa. The head office, operated by an administration company, is at Rhodes in Sydney. 6 On 25 March 2013 and 29 March 2013, Bankwest appointed David John Frank Lombe and Jason Mark Tracy (Mr Tracy) (Receivers) as receivers and managers of each of the Companies and Harrisons Orion Pty Limited (Harrisons Orion). Harrison Orion is not a party in these proceedings. The Receivers are partners in the Restructuring Services Group of Deloitte Touche Tohmatsu. 7 Although these proceedings were brought by the Administrators, the Receivers appear to be the driving force behind the application for extension. Mr Moodie deposed as follows: I am informed by the Receivers and Managers that they hope for an extension of 6 months until 31 October 2013 to arrange for the sale of the respective businesses and assets of the Harrison Group as going concerns. 8 The Receivers have taken possession of substantially all of the assets of the Companies and the task of realising those assets to repay the secured creditor, Bankwest, falls to the Receivers. The Receivers support the application for extension of the convening period and Mr Tracy swore an affidavit dated 22 April 2013 in support of the application. That affidavit was read in these proceedings and Mr Tracy gave supplemental evidence at the hearing.

Relevant principles 9 The Court has jurisdiction to make orders extending the convening period under s 439A(6) and s 447A of the Act, and the application has been made within the convening period which ends on 1 May 2013. 10 In exercising this jurisdiction, the Court must have regard to the objects of Part 5.3A of the Act which seeks to maximise the chance of the company, or as much as possible of its business, continuing in existence; or if that is not possible, to achieve a better return for the company's creditors and members than would result from an immediate winding up of the company. 11 The approach to be taken by the Court in applications of this type is well settled. The power to extend the time for convening the second meeting is one that should not be exercised as of course: ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No 5) [2008] FCA 1947 at [8] per Emmett J. The Court must strike an appropriate balance between the expectation that administration will be a relatively speedy and summary matter and 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: Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [10]. 12 The nature of the task faced by administrators having regard to the circumstances of the company under administration is critical to whether and for what period the Court should exercise its discretion to extend the convening period. This is the effect of the useful summary of relevant principles set out by McKerracher J in Mentha, in the matter of The Griffin Coal Mining Company Pty Ltd (administrators appointed) [2010] FCA 30 at [15]-[22]. This judgment quotes extensively from the reasons of Austin J in Re Riviera Group Pty Ltd (admins appted) (recs and mgrs appted) (2009) 72 ACSR 352 [8]-[18], which canvass the case law establishing factors relevant to the exercise of the discretion. 13 Section 439A(4) of the Act requires an administrator to provide to creditors, with the notice of the second meeting, a report about the company's business, property, affairs and financial circumstances. The administrator must also provide a statement of his or her opinion about whether it would be in the creditors' interests for the company to execute a deed of company arrangement, or for the administration to end, or for the company to be wound up. The statement must also provide the administrator's reasons for that opinion and any other information which is known to the administrator and would enable the creditors to make an informed decision among those alternatives. If a deed of company arrangement is proposed, the statement must set out details of the proposed deed. In order for administrators to carry out their function properly, it is necessary that they should have sufficient time to investigate the affairs of the companies under administration and to provide sensible information and advice to the creditors: see Mentha at [16]. See also: In the matter of Pan Pharmaceuticals Limited [2003] FCA 598, in which Lindgren J concluded at [41] that the essential issue is whether the extension is necessary to enable the administrators to arrive at an opinion so as to place creditors in the position to choose between those alternatives.

Should the convening period be extended? 14 Factors relevant to the exercise of the Court's discretion in favour of granting an extension of the convening period are set out below.

Task of the Administrators 15 Mr Moodie says that the Administrators are unable at this time to finalise their report to creditors required under s 439A(4) or to provide meaningful recommendations about the future of each of the Companies because of the factors listed below. He says that extension of the convening period is in the best interests of the creditors of the Companies, essentially for the same reasons as suggested by the Receivers, and it would give the Administrators the opportunity to do the work required for their report and provide recommendations to the creditors in a meaningful way. 16 Based on Mr Moodie's affidavit and Mr Tracy's evidence and the factors below, the Administrators' opinion appears to be well founded and reasonable.

Assets in the control of receivers 17 Bankwest, the secured creditor, has lodged a draft proof of debt for $28,206,723. Security for this debt is cross-collateralised by the Companies notwithstanding that they operate separate businesses. Accordingly, the Receivers have control of substantially all of the assets of all of the Companies and access by the Administrators to books and records is restricted. Further, the Administrators do not have control over the timeframes in which assets will be sold. In ABC Learning at [9], Emmet J thought this a particularly relevant factor in favour of an extension of time.

Complexity 18 The Companies are not related bodies corporate under the Act, but there are administrative and ownership links between them. 19 Mr Tracy deposed that the Companies, Harrisons Orion, Mr W G Harrison, Mr A D Langman and Mr M L Langman (who are each directors and shareholders of some of the Companies), together operate 20 businesses (Businesses) which include 13 pharmacies, 6 medical practices and 1 day spa. They are located in Queensland (7), New South Wales (6), South Australia (4) and the Northern Territory (3). 20 Together the Businesses employ approximately 412 staff (238, if casual staff are excluded). They comprise 312 pharmacy staff, 73 medical practice staff (of which 46 are doctors), 12 day spa staff and 15 head office staff. Although both Mr Moodie and Mr Tracy addressed the issue of the Businesses owned by the Companies in their affidavits, it was not clear to the Court exactly what proportion of staff were employed or assets owned by the Companies and Harrison Orion respectively. Counsel advised the Court at the hearing that all of the Businesses are operated by the Companies and Harrison Orion has sold the only pharmacy it owned. 21 Based on conversations with the directors of the Companies, Mr Moodie understands that there are a total of about 1580 creditors of which 6 have registered interests on the Personal Property Securities Register. Mr Moodie annexed to his affidavit a schedule summarising amounts owing to creditors of the Companies and Harrisons Orion, showing a grand total of $9,210,186.36, of which $962,265.01 relates to Harrisons Orion. Mr Moodie describes this schedule as a work in progress because of his difficulty in accessing books and records of the Companies.

Nature of the Businesses 22 The Receivers say that the sale of some or all of the Businesses as a going concern is more likely to maximise the returns available to all classes of creditors than an immediate liquidation of the Companies. 23 The Companies do not own land or substantial plant and equipment. There appears to be finance leases for telephone equipment and partitioning in some pharmacies. The main assets of the Businesses are goodwill and stock and if these assets are not sold as a going concern, sale prices would be substantially lower and unlikely to cover the amount of the secured creditor's claimed debt in excess of $28 million. 24 There are 17 leases and at least 11 subleases with other ancillary health care professionals such as pharmacists, pathologists, physiotherapists and dental clinics. If the Companies are wound-up, they will lose the benefit of the restrictions placed on landlords by virtue of s 440B of the Act and all of the leases may be terminated by the landlords. The Businesses could not then be sold as a going concern.

Employees 25 The Receivers are and intend to continue paying employees in the ordinary course of their employment terms during the receivership. The Receivers say that the continuation of the Businesses as a going concern maximises the likelihood that the employees' employment will be retained upon sale of the Businesses. Mr Moodie says that liabilities for transferring employees' entitlements will likely be transferred to new owners. That will limit redundancy claims on the Companies and under the Fair Entitlements Guarantee Act 2012 (Cth). 26 The Receivers advised Mr Moodie that the combined superannuation contributions outstanding by the Companies from October 2012 amount to about $319,000 and the Administrators have not yet ascertained whether this is the actual amount owing. Mr Moody calculates that if the Companies were wound-up as at 16 April 2013, then employee claims could be about $1.5 million in respect of redundancy and long service leave; holiday pay entitlements have not yet been calculated.

Trade creditors 27 The Receivers are and intend to continue paying "trade", lease and employee creditors during the receivership. The sale of the Businesses on a going concern basis would likely yield a better result for those creditors because they will have the opportunity to continue supply or negotiate new terms with purchasers of the Businesses.

Pre-appointment claims 28 While pre-appointment claims are, and will remain, subject to statutory moratorium, Mr Tracy says that the continuation of the administration for a further period is unlikely to cause the Companies to incur additional costs which would not be incurred in any event if the Companies are placed in liquidation. He says it is accordingly unlikely that the continuation of the administration will adversely affect any amount which unsecured creditors might receive by way of a distribution in a liquidation of the Companies.

Sale process 29 The Receivers commenced the marketing process for the sale of the Businesses, with advertisements being placed in national newspapers and on a website on 28 March 2013, three days after their appointment. Interested parties were invited to submit offers by 15 April 2013 and due to the level of interest that date was extended to 17 April 2013. 30 The Receivers received 136 final non-binding offers from 60 sets of interested parties, with none of the parties in the final round seeking to buy all 20 of the Businesses. 31 Mr Tracy says it had been hoped to select a preferred bidder by 22 April 2013 with a period allowed for due diligence and negotiation of contracts with a view to settlement occurring by June 2013. However, this is not now possible in view of the complexities arising from the number of interested parties, the need for a period of due diligence and the requirement for regulatory approval for the sale of the pharmacy businesses which, in at least one State, may take up to 6 and 8 weeks. In oral evidence, Mr Tracy said he had not appreciated the differences between States in the timeframes experienced in getting approval of the regulatory boards when setting the original timetable. 32 The timetable may also slip for the usual reasons which might include difficulty in agreeing to final terms with preferred bidders and arranging for assignment of existing leases or negotiation of new terms with lessors.

Difficulty of access to books and records 33 Mr Moodie says he cannot accurately assess the assets and liabilities of individual Companies because he does not have access to all of the books and records of the Companies. The books and records of the Companies were not well maintained and the Administrators are having considerable difficulty interrogating those records. Records are held in many locations, some are mixed up between Companies and some are held by the Receivers with the result that the Administrators' employees have had limited access to them. The Companies do not use common accounting software. The software they use is incompatible with the Administrators' system and this is inhibiting preparation of financial statements and reconciliations. Inadequate or disorganised creditor records make trading relationships with third parties hard to establish. It is possible that there has been an intermingling of employees between various Companies which was not properly documented and some Companies may have utilised labour hired from Mr W G Harrison, a director of some but not all of the Companies.

Difficulty of assessing value of the Businesses 34 The Receivers have not completed their valuation or sales of the Businesses. The Administrators have therefore not received a final valuation of the assets of the Companies from the Receivers and they do not think they will receive such a report because the Receivers consider that information to be commercially sensitive. The sale of some or all of the Businesses, and the prices they achieve, impact on the recommendations which might be made in the Administrator's report pursuant to s 439A(4). 35 As at the time Mr Moodie swore his affidavit, the directors had not provided reports as to affairs (although they may now have been received).

Inability to provide proposal for deed of company arrangement 36 The directors of the Companies have not provided any detailed proposals for a deed of company arrangement. 37 The Administrators had been unable to assist in the formulation of a deed of company arrangement because of delays in: financial analysis due to the complexity of the financial systems and records, securing the books and records, and liaising with lessors. Furthermore, the Receivers control the sale of the Businesses.

Notification of creditors 38 The first meeting of creditors of each of the Companies was held on 8 April 2013. There was no Creditors Committee appointed at the meeting. The Administrators told the creditors of the possibility of an application to the Court for an extension of the convening period for 2 to 3 months. No objection was raised to that proposal. 39 Since 5 April 2013, the Administrators have notified in writing or by telephone all known lessors and each of the top 10 creditors by value of each of the Companies of the proposal to apply for an extension of the convening period. A letter was also sent to lessors and some creditors on 17 April 2013. At the date he swore his affidavit, Mr Moodie had not received any indication of objections. By a circular dated 22 April 2013, Mr Moodie notified all known creditors and employees of the Companies of the application. No objections had been received at the time of the hearing. 40 The Australian Securities & Investments Commission was given notice of the application on 22 April 2013 and it has advised that it did not intend to intervene to oppose the application.

Conclusion 41 Each of these factors militate in favour of the Court exercising its discretion to grant an extension of the convening period, and the opinion of the Administrators, supported by the Receivers, that it is in the best interests of the creditors that the Businesses be sold as a going concern appears to be well founded and reasonable. 42 No evidence was provided to the Court as to the likely value of the Businesses and there is some lack of clarity of the total liabilities. However, the evidence of Mr Tracy that if the Companies are wound-up now even the secured creditor will not be fully satisfied for the amount of its draft proof of debt is compelling, having regard to the fact that the Businesses comprise substantially goodwill and the leases. Mr Tracy's evidence of the substantial number of non-binding offers which have already been obtained for the Businesses suggest that at this time there is a reasonable prospect that the Businesses can be sold within a reasonable time frame after which the Administrators would be in a position to complete the task required of them by s 439(4). The statement of intention from the Receivers that they will continue to pay employees and trade creditors in the ordinary course mitigates potential prejudice to them, notwithstanding that pre-administration liabilities may be subject to a moratorium.

What period should the extension be for? 43 The Administrators sought an extension of the convening period of 6 months up to 31 October 2013. While it is clear that this is an appropriate case for an extension of the convening period having regard to the factors set out above, an extension of 6 months is a long time. 44 The Court's attention was drawn to ABC Learning Centres in which the convening period was extended in total in the order of approximately 18 months (see Re ABC Learning Centres (No 8) [2009] 73 ACSR 478). Extensions for 6 months were granted in Re Chemeq Ltd (Administrators Appointed) (Receivers and Managers Appointed), ex parte McMaster [2007] WASC 154; Re an application by Horne & Vrsecky [2010] VSC 657; Strawbridge (Administrator) v Retail Holdings Pty Ltd (Administrators Appointed), In the Matter of Retail Adventures Holdings Pty Ltd (Administrators Appointed) [2013] FCA 151. In this last case, Jagot J said the following: [8] This is consistent with the observations of Austin J in Re Riviera Group Pty Ltd (2009) 72 ACSR 352; [2009] NSWSC 585, in which his Honour explained the development of the law against a predisposition not to grant extensions of time, having regard to the need for swift resolution of such matters, in favour of what he described in shorthand as the "balancing test". Austin J identified at [13] a series of circumstances or categories in which courts have granted extensions of time, one of which is particularly relevant in the current matter, namely, whether the extension will allow sale of the business as a going concern. At [16] his Honour identified the nature of the balancing exercise in question, saying that: If the approach is to balance the expectation of speedy administration against the risk of prejudice, there cannot be any predisposition in favour of speedy administration for that would skew the balancing process. Rather, the cases suggest that where the administrator proves a substantial ground in any of the categories set out and there is no specific evidence of prejudice, an extension commensurate with the administrator's task will be granted, notwithstanding that the explanatory memorandum suggested that extensions would not be granted frequently. [9] This approach is also consistent with the statement to which my attention was drawn of Shepparton J, Commissioner of Taxation v Comcorp (1996) 70 FCR 356, in particular, at [364], where his Honour referred to the objects including: …maximisation of the chances of the company or its business continuing in existence, or, if that not be possible, better returns for creditors and members than would result from the immediate winding up of the company… 45 In Re Riviera Group Pty Ltd, Austin J also said that the longer the extension that is sought, the more important it is for the Court to be given a clear and complete explanation of the state of the administration, the grounds for the extension and any potential prejudice that would flow from granting it: at [18]. 46 While it is true that the discretion to be exercised by the Court should not have a predisposition in favour of speedy administration that would skew the balancing process, the issue of the extent to which the Court should maintain a supervisory role remains relevant to the period for which any extension requires consideration. This is so notwithstanding that there are a slowly growing number of precedents for extensions in the order of 6 months. An alternative approach was used in Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935 in which the Court granted an extension of one month with leave for reconsideration of a further period. 47 The Court should consider the appropriateness of the length of the extension sought, having regard to the availability under s 447A of the Act of further extensions in appropriate cases, so that the Court is in a position to monitor the manner in which the administration and any associated receivership is being conducted. Relevant considerations might include: (a) The extension should be for no longer than is required for a diligent exercise of the powers of the administrators and where relevant, as here, the receivers and managers. While successive applications to the Court involve cost, there are also fees incurred by administrators, receivers and managers which mount up over time and these are unnecessary expenses if the administrators or receivers and managers are not diligent. While it is true that, as here, it is possible for creditors to approach the Court during the period of the extension, the occasion of an application for an extension provides a forum for the creditors to have their voices heard, for example, in the subsequent applications in the case of ABC Learning: see Re ABC Learning Centres (No 8) (2009) 73 ACSR 478. (b) It is undesirable for claims which are subject to a moratorium to be extant any longer than necessary. (c) Where the primary asset of the business is goodwill, an overly protracted administration is unsettling to staff who may leave for more certain employment, diminishing the value of the business of the company in administration. (d) Unnecessary delay in prosecuting an administration exposes the assets of the company to market risk. (e) The longer the administration and the receivership, the greater potential there is for the interests of the secured creditor and the unsecured creditors to diverge, to the detriment of the unsecured creditors. (f) It was the intention of the legislature that administrations be conducted expeditiously: Explanatory Memorandum to the Corporate Law Reform Bill 1992 (Cth) at [507], as mentioned by Austin J in Re Riviera Group Pty Ltd at [9]. 48 In this case, I was satisfied that both the Administrators and the Receivers have acted diligently to date. The fact that there are 136 non-binding offers for the 20 Businesses conducted across 4 States, with a requirement for contracts to be negotiated, due diligence conducted and multiple lessor and regulatory approvals obtained indicate that an extension of 6 months is justified. In addition the plaintiff has sought an order, which I will make, which permits the second meeting of creditors to be held earlier where that is achievable. 49 There is one last issue. Although the evidence provided by Mr Moodie and Mr Tracy was very extensive and generally addressed all relevant factors, I had some concern over the nature of the evidence dealing with communications with creditors. 50 Mr Moodie's affidavit attached draft minutes of the first creditors meeting but no evidence was provided as to how many creditors attended. Further, his affidavit indicated that even though the creditors who attended the meeting had been told of the potential for an application to extend the convening period for a period of 2 to 3 months, the Receiver who had attended the meeting told Mr Moodie immediately after it that in fact a period of 6 months would be required. It was not clear from file notes of telephone conversations with some creditors which occurred after 5 April that they had been told that the period would be 6 months, although Mr Moodie's affidavit suggested that they had been told. Mr Tracy gave evidence that the first creditors meeting had been regarded as the Administrators' meeting and that it was not appropriate to raise in that venue the Receivers' view that an extension of 6 months would be required at a time when the view had not been communicated to the Administrators. I accept Mr Tracy's evidence and that there was no intention to mislead or deceive creditors. However I consider it would have been more appropriate for this issue to have been discussed by the Administrators and the Receivers before the first creditors meeting so that the Administrators were in a position to advise creditors properly. I note also that a circular was sent to all creditors on 22 April 2013 advising of the 6 months extension proposal. 51 Mr Moodie has undertaken to advise creditors of the orders made today and in any event the Administrators have indicated no opposition to an order requiring that notification by 5 pm on 1 May 2013. In addition the orders expressly provide leave for any interested person, including any creditor of the Companies, to make an application to vary or discharge these orders upon 48 hours notice to the plaintiffs. This adequately addresses my concerns on the notice to creditors issue. 52 Accordingly I am satisfied that it is appropriate, having regard to the objects of Part 5.3A, for the convening period to be extended to 31 October 2013 and to make the other orders sought. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

All with Administrators appointed and Receivers and Managers appointed

GROUP ADMIN PTY LTD acn 007 670 715 GROUP WESTSIDE PTY LIMITED ACN 000 754 003 HARRISONS NORTH PTY LIMITED ACN 113 840 841 HARRISONS SERVICES PTY LIMITED ACN 104 154 958 LANGMAN NORTH PTY LIMITED ACN 114 334 253 LANGMAN TOWNSVILLE PTY LIMITED ACN 139 382 853 PHARMAFIN PTY LIMITED ACN 072 816 981 W. G. HARRISON PTY LIMITED ACN 007 623 010