Lubavitch Mazal v Yeshiva Properties No.1 & ors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4436/03 LUBAVITCH MAZAL PTY LTD V YESHIVA PROPERTIES NO.1 PTY LTD & 5 ORS

JUDGMENT 1 HIS HONOUR: Until very recently the defendants before me (Yeshiva Properties Nos 1-6, which I shall call collectively "the Yeshiva Properties companies" or "the companies") were the legal owners of some properties located, principally, in Bondi and Dover Heights. They held the properties as trustees of the Sydney Talmudical College Building & Maintenance Fund. Perhaps this is still the case, although there is some evidence of a recent attempt to change the trustees. The Sydney Talmudical College Building & Maintenance Fund provides funding for various religious and educational activities under the name "Yeshiva" in accordance with the principles of Orthodox Judaism practised by the Lubavitch movement. The properties were used for religious schools, a seminary and a synagogue. The companies were, until a few weeks ago, under the day-to-day control of Rabbi Pinchus Feldman. 2 During the last few years deep animosity has developed between Rabbi Feldman and his wife's brother, Joseph Gutnick. I shall refer to him as "Mr Gutnick" rather than "Rabbi Gutnick", as I was informed during the hearing that he has now been excommunicated because of the attitude he has taken to the matters in dispute. In doing so I mean no disrespect if, in fact, he retains his rabbinical status. 3 Mr Gutnick caused his company, Lubavitch Mazal (the present plaintiff), to lend money to the Yeshiva Properties companies in 1994, secured over some of the properties located in Bondi. Subsequently Rabbi Feldman and Mr Gutnick disagreed as to whether there was any repayment obligation beyond the amount of the original advance. When Lubavitch Mazal took steps to recover the amount it claimed, the Yeshiva Properties companies brought proceedings against it for declaratory orders that it was not entitled to realise the properties as mortgagee until a rabbinical arbitration had run its course, and that it was estopped from realising the properties. 4 In July this year (Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 615), Young CJ in Eq decided to dismiss the proceedings brought by Yeshiva Properties, and to allow a cross-claim by Lubavitch Mazal. The outcome was "total victory" for Lubavitch Mazal, as Meagher JA later observed. In due course judgment was entered against the companies for over $14 million, writs of possession were executed against the properties over which Lubavitch Mazal had security, and Lubavitch Mazal took steps to sell those properties. 5 On 18 August 2003 I was approached on behalf of a company called Nelvet Pty Ltd for the urgent appointment of a provisional liquidator to the Yeshiva Properties companies. Nelvet is a company associated with Richard Scheinberg. It had participated with Mr Gutnick's company in the financial rescue of the Yeshiva operations in 1994. Counsel informed me that his client was concerned that Rabbi Feldman, who was then still in control of the Yeshiva Properties companies, might pay creditors selectively or appoint new trustees of the properties then held by those companies in trust. I declined to appoint a provisional liquidator on an ex parte basis, but I granted leave to Nelvet to commence a winding up proceeding with abridgement of service, returnable on 20 August 2003, together with an application for provisional liquidation. 6 When the matter returned to me on 20 August 2003, counsel for Nelvet told me that on the previous evening Ronald Dean-Willcocks and Nicholas Malanos had been appointed voluntary administrators to the Yeshiva Properties companies, and that his client no longer wished to proceed for the appointment of a provisional liquidator. 7 However, Lubavitch Mazal was also in attendance before the Court, and its counsel made an application either to be substituted as plaintiff creditor in the winding up proceeding, or to initiate its own winding up proceeding with an urgent application for the appointment of a provisional liquidator to the Yeshiva Properties companies. The application was opposed by Nelvet, and there was a spirited contest. 8 I decided to adopt a procedural course that would keep the principal protagonists, Nelvet and Lubavitch Mazal, before the Court, rather than substituting the latter for the former. I therefore granted leave to Lubavitch Mazal to commence its own proceeding for winding up and provisional liquidation, and I granted leave to Nelvet to be heard in that proceeding, under Rule 2.13 of the Corporations Rules. Another creditor of the Yeshiva Properties companies, Meriton Finance Pty Ltd (in which Harry Triguboff has a substantial interest) also sought, and was granted, leave to be heard under Rule 2.13. 9 Section 440D of the Corporations Act 2001 (Cth) states that during the administration of a company, a proceeding against the company cannot be begun or proceeded with except with the administrator's written consent, or the leave of the Court. I made an order under that section granting leave to Lubavitch Mazal to commence its winding up proceeding against the Yeshiva Properties companies, on terms intended to echo s 440A(2) - that is, on terms that the appointment of a provisional liquidator would not be made if the Court was satisfied that it would be in the interests of their creditors that those companies should continue under administration rather than be wound up. The purpose of this order was to put Lubavitch Mazal, which had commenced its winding up proceeding on the day after appointment of the voluntary administrators, in the same position as Nelvet, which had commenced its winding up proceeding on the day before the appointment and was therefore directly subject to s 440A(2). 10 Lubavitch Mazal then proceeded with its interlocutory application for the appointment of a provisional liquidator, notwithstanding that the company was in voluntary administration, contending that the Court could not be satisfied on the facts that it was in the interests of the creditors of the Yeshiva Properties companies to continue under administration rather than have a provisional liquidator appointed. It also applied for interlocutory injunctions to restrain the Yeshiva Properties companies from disposing of their assets. 11 The voluntary administrators first appeared before the Court on 20 August 2003, the day after they were appointed. Their counsel explained, not surprisingly, that his clients had had no opportunity to familiarise themselves with the affairs of the companies, and he submitted that Lubavitch Mazal's application should be adjourned to give them time to deal with it properly. They asked for an adjournment of 7 to 14 days. Counsel for Nelvet and Meriton Finance supported the voluntary administrators, although they submitted that Lubavitch Mazal's application should be further adjourned until the completion of the voluntary administration. 12 The voluntary administrators informed the Court that they had no intention of disposing of any of the real property assets of the companies (including Yeshiva Properties No 7) for the time being. That made it unnecessary for Lubavitch Mazal to seek any interlocutory injunctive relief pending determination of its application for the appointment of a provisional liquidator. 13 Therefore there were two applications before me on 20 August 2003, namely the application by Lubavitch Mazal for the appointment of a provisional liquidator to the Yeshiva Properties companies, and the application by the Yeshiva Properties companies in voluntary administration, for an adjournment of the Lubavitch Mazal application. I proceeded to hear those applications on 20, 21, 22 and 25 August 2003. These are my reasons for judgment. 14 The two applications raise similar though not identical questions under s 440A, which prohibits the Court from appointing a provisional liquidator, and requires it to adjourn a winding up proceeding, if it is satisfied that it is in the interests of creditors for the company to continue in administration rather than to be wound up or put into provisional liquidation. I shall consider the issues raised by s 440A before turning to the general considerations, legal and discretionary, governing the appointment of a provisional liquidator. 15 I have decided that the appropriate course is · to deny the defendants any adjournment, having regard to s 440A(2) and discretionary considerations, and · to appoint a provisional liquidator to each of the Yeshiva Properties companies, having regard to the legal and discretionary considerations that arise in an application for an appointment of that kind, notwithstanding the limitation that arises out of s 440A(3). 16 Before examining any of these matters, it is appropriate to set out some relevant facts regarding the Yeshiva Properties companies, their relationship with the companies that have conducted religious activities on the sites, and the financial history of their dealings with the Gutnick and Scheinberg interests. Corporate structure and financial history 17 Company searches made on 19 August 2003 indicate that the Yeshiva Properties companies have existed under the present names since the early 1990s. The directors of the each of the companies are Rabbi Pinchus Feldman, Mrs Pnina Feldman and their son, Yosef Yitzchak Feldman, and Henry Kinstlinger is the secretary. In each case the shares are equally held by Rabbi Feldman and Chaim Gutnick of Ellwood, Victoria. 18 According to a company search made on 19 August 2003, Yeshiva Properties No 7 Pty Ltd was formed in 1999 and from that time, Rabbi and Mrs Feldman have been directors. Yosef Yitzchak Feldman was appointed a director on 18 June 2003. Mr Kinstlinger became secretary on 16 June 2003. There are two issued shares, held respectively by Rabbi and Mrs Feldman. It appears that the company's name was changed to its present name by resolution on 16 June 2003. 19 Vageta Pty Ltd is a company belonging to the Feldmans. Rabbi and Mrs Feldman each hold one of the two issued shares, and the directors are Rabbi and Mrs Feldman and Yossi Feldman. 20 For many years, certain spiritual and educational activities have been conducted in the Eastern Suburbs of Sydney under the guidance of Rabbi Feldman, who has described himself as Dean and Spiritual Leader of the Yeshiva Centre. The Yeshiva Centre was established in 1956, initially occupying terraced cottages at 34-36 Flood Street, Bondi. 21 By a trust deed made in August 1978, a charitable trust was established to hold a fund, called the Sydney Talmudical College Building and Maintenance Fund, for the acquisition, construction and maintenance of buildings used or to be used as a school or college. The trust instrument stated that the statutory power of appointing trustees was vested in the surviving trustees. Originally the trustees were individuals, but by a series of steps in 1990 and 1991, the Yeshiva Properties companies became the trustees. 22 Over time, with generous support from prominent individuals and the Jewish community generally, the trust acquired very substantial property holdings. By July 2003 it held properties at 11A, 24-32, 34-36 and 36A Flood Street, Bondi; 37-53 and 55 Anglesea Street, Bondi; 267 Mona Vale Road, St Ives, and Corner Blake and Napier Streets, Dover Heights. A synagogue, a rabbinical college with residential facilities, a pre-school, a primary school, boys' and girls' secondary schools, and administrative facilities, were located on the sites. Rabbi Feldman has said that most of the Jewish spiritual leaders in New South Wales and Queensland have either been students, staff members or otherwise associated with the Yeshiva Centre, which (he says) has been referred to as "the Jewish soul of Sydney". 23 While the properties were held by the Yeshiva Properties companies on the terms of the charitable trust, the schools were conducted by two other companies, Yeshiva College Ltd and Yeshiva Jewish Day School Ltd. The school companies were allowed to occupy the properties without payment of rent or other occupation fee. That arrangement has continued up to the present time. 24 In December 1994 most of the properties were mortgaged to the Commonwealth Bank of Australia. The Yeshiva Properties companies had provided further security by issuing promissory notes to the Bank, payable on demand. The Bank demanded payment of monies owing to it in the sum about $24 million, making it clear that it would seek to take possession of the properties mortgaged to it if it were not paid. 25 After protracted negotiations, the Yeshiva Properties companies entered into two new loan agreements, both dated 29 December 1994, for the borrowing of a total of $10 million, which they used to discharge their loan to the Commonwealth Bank. As Young CJ in Eq said in his judgment of 8 July 2003, "the effect of these transactions was that the Commonwealth Bank had taken what in commercial argot is known as 'a haircut' and taken $10, 000,000 in full satisfaction of its debt of about $24,700,000." 26 One of the loan agreements was with Lubavitch Mazal as lender. It provided for a loan of $5 million by way of 10 equal six monthly instalments of $500,000 each. Lubavitch Mazal took an assignment of promissory notes and securities held by the Bank. The assigned promissory notes had a face value of $10,660,269.23. The securities (excluding properties subsequently sold) were in respect of the following properties: 55 Anglesea Street, Bondi; 267 Mona Vale Road, St Ives; 11A, 24, 26, 28, 30, 32, 34-36 and 36A Flood Street, Bondi. I shall refer to these properties as "the LM Securities". The loan agreement made provision for the payment of interest, and for the payment of the "total outstanding" (defined to include the amount payable under the promissory notes) upon demand by the lender not earlier than five years after the date of the agreement. It also required the Yeshiva Properties companies to reduce the total outstanding by $5 million on or before the fifth anniversary of the agreement, and to make certain earlier payments if demanded. 27 The other loan agreement was with Nelvet as lender. It provided for Nelvet to pay the Yeshiva Properties companies $2,401,335 in consideration for the assignment to it of promissory notes and securities held by the Bank. The promissory notes once again had a face value of $10,660,269.24. The securities (excluding properties subsequently sold) were in respect of properties at 37, 43, 45, 47, 49, 51 and 53 Anglesea Street, Bondi. I shall refer to these properties as "the Nelvet Securities". Nelvet's security is a second mortgage after a mortgage to Permanent Trustees. The loan agreement also provided for a "new advance" by Nelvet of $2,598,665, so that the total funding was $5 million, payable by the lender forthwith. The agreement contained provisions with respect to repayment similar to those of the Lubavitch Mazal loan agreement, except that the Yeshiva Properties companies were required to reduce the debt by two amounts totalling $2 million within the first two years of the loan, and by a further $3 million within five years. 28 It will be noted that the securities were "shared" between the lenders, and that neither of them took security over the property that is currently the most valuable holding, at Dover Heights, presumably because it was not acquired by the Yeshiva Properties companies until 1996. It appears from evidence referred to by Young CJ in Eq in his judgment of 8 July 2003 that there was some "rivalry" between Mr Gutnick and Mr Scheinberg in the negotiations for the loan agreements, each wanting to make sure that the arrangements were no more detrimental to his company than the arrangements made with the other. 29 In his reasons for judgment delivered on 8 July 2003, Young CJ in Eq drew attention to another feature of the arrangements: "It must be noted that the particular loans made by the Bank which made up the $24,000,000 were deliberately kept in separate existence. Thus particular loans, amounting to $4,400,000 which were included in the loan assigned to [Lubavitch Mazal] were loans which attracted interest subsidies from the State Government with its program of assisting schools with capital works. The parties made contact with the Department of Schools Education and cleared with the Department that the subsidies would continue to be payable." 30 Later, his Honour referred to arrangements between the companies and Mr Gutnick by which the companies would pay Lubavitch Mazal interest on the loans in a manner that preserved the government subsidy, and then Lubavitch Mazal would "donate all interest received other than that which was in reality being paid by the Government". 31 Nelvet, Lubavitch Mazal and the Yeshiva Properties companies entered into another agreement dated 29 December 1994, called the "side deed". By that agreement they established a regime with respect to the securities held by the two lenders. Clause 2.1(b) provided that, in effect, notwithstanding any provisions in the mortgages, if the companies were to default in payment of amounts due under the Lubavitch Mazal loan agreements, the lender would be entitled on demand to payment only of the amounts not paid. There was a similar provision in clause 3.1(d) with respect to the Nelvet loan agreement, but in many other respects the arrangements for Nelvet were different from the arrangements for Lubavitch Mazal. 32 The parties to the side deed agreed that each lender would be entitled to recover the amounts not paid to it by selling the mortgaged properties in an order of priority set out in the schedule, and in that case clauses 5.2 to 5.7 of the side deed would apply. Clause 5.2 contained an acknowledgement that the lender would be entitled to sell the properties to recover money payable under its loan agreement as varied by the terms of the side deed. Clause 5.3 provided that if the lender wished to exercise its rights under clause 5.2, the companies agreed that sales might be effected by the lender as agent for the companies, and the companies waived their rights and acknowledged that the lenders would not be answerable or accountable for losses on sale. This was subject to a proviso that the lender was to use all reasonable endeavours to achieve a price consistent with the then "current market value" of the property to be sold. Clause 5.7 gave Lubavitch Mazal a right of first refusal, at current market value, of any properties that the Yeshiva Properties companies might wish to sell. Clause 5.9 provided that the Nelvet loan agreement was not to be amended without the prior written consent of Lubavitch Mazal. 33 In 1999, when the time arrived for repayment of the loan by Lubavitch Mazal, the company required full repayment but Rabbi Feldman contended that Mr Gutnick had made statements inconsistent with his rights of enforcement under the loan agreement. In the proceedings before Young CJ in Eq, Rabbi Feldman gave evidence that Mr Gutnick represented on many occasions that, in the event of default, he would hold the LM Securities for the benefit of the Yeshiva and to protect the Yeshiva, and that Lubavitch Mazal would only be entitled to exercise its rights in respect of properties if the Yeshiva ceased to exist as a result of the imposition of an insolvent administration. Rabbi Feldman said there was an "oral agreement and religious covenant with God". Mr Gutnick gave evidence denying any such representations. After a careful analysis of the evidence, his Honour concluded that Mr Gutnick's version of the events was more likely to be correct than Rabbi Feldman's version. 34 On 13 February 1997 Nelvet had executed a deed of subordination with the Yeshiva Properties companies. The recitals to the deed distinguished between Nelvet's entitlement to be repaid the actual amount of $5 million it had advanced, together with interest, within five years, and the obligation of the companies to pay the balance of the face value of the promissory notes, expressed to be (as at February 1997) $4,450,269.23 (referred to as "the Balance Amount"). The recitals said that, to enable the Sydney Talmudical College Association to conduct its business more effectively, it needed to restructure the consolidated balance sheet of the Yeshiva, by disclosing the Balance Amount as a subordinated loan and therefore part of members' funds, rather than as a non-current liability. Nelvet accordingly covenanted and agreed that the Balance Amount was to be subordinated in favour of all money owing by the companies to anyone else, and agreed not to demand payment if advised by the companies that such payment would mean that the Yeshiva could not meet its liabilities as and when they fell due. It was provided, however, that if there were sufficient "excess or abnormal funds received from fundraising activities", the Yeshiva may cause the companies to repay some or all of the Balance Amounts to Nelvet. 35 Nelvet entered into another deed with the Yeshiva Properties companies on 5 September 2001. This deed recited that by that time, the "total outstanding" under the Nelvet loan agreement, together with interest, was $1,130,598.30. It provided that Nelvet would advance an additional sum of $1,200,000 on the same terms; that the companies would list the Anglesea Street properties for sale, which was to take place before 25 October the 2001; and that the full balance owing would be repaid to Nelvet on or before 14 December 2001. 36 These two deeds have some significance for the relationship between Mr Gutnick and Mr Scheinberg and their respective companies. Counsel for Lubavitch Mazal submitted to me that there was a "red hot dispute" between that company and Nelvet, because the September 2001 deed contravened clause 5.9 of the side deed. He also contended that Mr Scheinberg was not in a position to assert (as he did in his affidavit) that all unsecured creditors would rank equally, having regard to the deed of subordination, which he had not disclosed in his affidavit. Counsel also submitted that the subordination was confirmed by evidence that, in response to inquiries for the purposes of audit, Nelvet to have certified that the debt owing to it in December 2000 and December 2001 was only $1,076,339.02, with a subordinated debt of $4,566,000 in December 2000 and $5,760,710 in December 2001. Interestingly, a similar certificate was given as at 31 July 2003, but on that occasion Mr Martin of Nelvet struck out the words "subordinated debt" by hand and substituted the words "unsecured debt", before certifying that the relevant figure was by that time $7,158,934. 37 After delivering his reasons for judgment of 8 July 2003, Young CJ in Eq made final orders on 16 July 2003. They included an order that the Yeshiva Properties companies pay Lubavitch Mazal $14,664,972.74 inclusive of interest to that day, together with costs; and orders for the issue of writs of possession for the LM Securities. He ordered that the orders for payment and possession be stayed up to and including 28 July 2003. Writs of possession were issued on 1 August 2003, notices to vacate those properties were served on 8 August 2003, and the Sheriff took possession of the properties on 13 August 2003. The effect was to suspend or terminate some of the educational and religious operations of the Yeshiva Centre, although the Dover Heights property (being outside Lubavitch Mazal's security) remained operational. 38 Lubavitch Mazal is proceeding to sell those properties to recover some of the money owing to it. The evidence before me does not reveal which properties have been sold, or the purchase prices. The solicitors for the Yeshiva Properties companies have demanded that information in correspondence but it has apparently not yet been provided. 39 According to a letter written by Lubavitch Mazal's solicitors on 7 August 2003, at that stage Lubavitch Mazal estimated that there would be a shortfall after the sale of the LM Securities which might be as much as $6 million. The letter pointed out that the Yeshiva Properties companies would be able to pay the shortfall only from the Dover Heights property. 40 Very recently there have been two further developments. First, the evidence includes a document dated 30 June 2003, entitled "Deed Appointing a New Trustee of the Sydney Talmudical College Building and Maintenance Fund", by which the Yeshiva Properties companies have sought to appoint Yeshiva Properties No 7 as Trustee of all of the properties in their place. The only signatories to it, under the seals of the respective companies, are Rabbi Feldman as a director of each company and Mr Kinstlinger as company secretary. There is nothing to indicate that the deed has been registered as required by s 6 of the Trustee Act 1925 (NSW). There is also some evidence to indicate that by a transfer dated 30 June 2003, the Yeshiva Properties companies transferred their title to the Dover Heights property to Yeshiva Properties No 7, which has subsequently lodged the caveat against the title, although the transfer has apparently not yet been registered. Again, the transfer was signed by Rabbi Feldman and Mr Kinstlinger under the seals of the respective companies. 41 Secondly, Rabbi and Mrs Feldman, Vageta, the Yeshiva Properties companies, Yeshiva Properties No 7 and the two school companies, as well as the Sydney Talmudical College Association, have purportedly entered into a deed described as a "deed of charge" dated 29 July 2003. The only signatories to it, in various capacities, are Rabbi and Mrs Feldman, Rabbi Yossi Feldman and Mr David Slavin. The signatures on behalf of the various companies are not under seal. It is an oddly drafted document. Notwithstanding its title, it purports to record and confirm amounts owing, identify the borrowers, make the loans subject to interest, give a very broad authority for further loans to be made, establish guarantees and identify the guarantors, as well as to charge assets. The charge was provisionally registered with the Australian Securities and Investments Commission on 12 August 2003 in respect of each of the Yeshiva Properties companies and Yeshiva Properties No 7. 42 The deed records that the Lender (Rabbi and Mrs Feldman and Vageta) have lent the Borrower (the Association and Yeshiva Jewish Day School) the sum of $2,734,471.03. The loan is said to be evidenced by minutes of a special meeting held on 22 May 2001, at which various parties agreed that Vageta had lent money to Yeshiva College to pay salaries and wages and for the purchase and maintenance of buildings, and that these monies had been lent against various securities. The amount of the loan was not stipulated, and the minutes are undated. The deed states that part of the money has been repaid, leaving a loan amount of $2,177,066.38 (exclusive of interest) owing as at 31 December 2001. The deed says that the Borrower also owes wages to Mrs Feldman for services rendered. It attaches a document purporting to be an agreement between Yeshiva College Limited and Sydney Talmudical College Association and Mrs Feldman dated 18 December 1996, saying that Mrs Feldman worked as principal of the Yeshiva Girls High School for its first 12 years without being pay any salary, and consequently that a debt of $500,000 is to be recognised for the school and the Association, and that they will pay should they ever be in a financial position to do so. The deed then applies interest to the monies owing and makes provision for further loans. The amount owing is repayable on demand by the Lender. 43 The deed states that by signing the deed, the Yeshiva Properties companies, Yeshiva Properties No 7, the Association and Yeshiva College (called "the Guarantors") are asking the Lender to give or to continue to give credit to the Borrower and are guaranteeing to the Lender the payment of the amount owing and performance of the Borrower's obligations. The Borrower and the Guarantors charge all of their present and future assets and undertaking and unpaid capital as security for the due and punctual payment of the amount owing. The charge is fixed as regards various assets including interests in real property, and a floating charge over the rest of the present and future assets and undertaking. 44 It is obviously not possible for me, in the present interlocutory circumstances, to pronounce upon the validity of the appointment of the new trustee and purported transfer of the Dover Heights property, or of the deed of charge. But there must be some doubts about the efficacy of the appointment of the new trustee and the transfer if the deed of appointment has not been registered. Further, according to s 9(3) of the Trustee Act the Dover Heights property will not vest in the new trustee unless either the transfer is registered or an entry of vesting is made by the Registrar-General. 45 There must be considerable doubt as to whether the deed of charge was validly entered into by the companies as prudent trustees, and as to whether it would survive a challenge by a liquidator under such provisions as ss 588FB and 588FJ of the Corporations Act. Indeed, the prospect of such a challenge is now part of the case for liquidation to be preferred to a deed of company arrangement, in the interests of the creditors as a whole. 46 There is conflicting evidence before me as to the overall financial position of the Yeshiva Properties companies. 47 In his affidavit of 23 July 2003 Rabbi Feldman says that the Properties at 37-53 Anglesea Street, Bondi were valued by Mr Rowan on 23 July 2003 at $8.1 million. He says they are mortgaged to Permanent Trustees Pty Ltd for $2,439,769 and Nelvet for $2,655,966. This apparently leaves out of account all or most of Nelvet's subordinated debt, which apparently stood at $7,158,934 on 31 July 2003. Mr Scheinberg, who is a registered land valuer, has given evidence that the Anglesea Street properties are worth $6.3 million. 48 Rabbi Feldman says that the properties and 11A, 24-32, 36A and 34-36 Flood Street, Bondi, and 55 Anglesea Street, Bondi, were valued by Mr Rowan at $12 million. They are mortgaged to Lubavitch Mazal. The property at 267 Mona Vale Road, St Ives, also mortgaged to Lubavitch Mazal, was valued by Mr Rowan at $550,000. The judgment debt to Lubavitch Mazal is $14,664,972.74 plus continuing interest and costs. 49 Mr Scheinberg's evidence is that he was informed by Rabbi Feldman that 36A Flood Street has been sold for $2.6 million, 11A Flood Street has been sold for $2.2 million, offers have been made for 24-36 Street and 55 Anglesea Street for $6 million, and the Mona Vale Road Property is worth $700,000. That would give a total value of $11.5 million for the Lubavitch Mazal securities. As I have said, Lubavitch Mazal's solicitors have anticipated a shortfall of up to $6 million in fact. Mr Kinstlinger's figures are similar except that he values 26-34 Flood Street at $7.9 million based on Mr Rowan's valuation. 50 There is also a property at Illawong which Mr Scheinberg values at $300,000. 51 The Dover Heights property is, as I have said, the most valuable property. Estimates of its value range between about $15.5 million and about $20 million. The value depends, in part, on whether it is subdividable, and whether the whole or part of it can be re-zoned from its special zoning for educational purposes to a residential zoning. Neither Nelvet nor Lubavitch Mazal has any direct security over it, although on 7 August 2003 Lubavitch Mazal registered a writ of execution against the title. The Dover Heights property is registered in the name of the six Yeshiva Properties companies as joint tenants, subject to a mortgage to Meriton Finance and a caveat to secure money owing to Mrs Joan Marshall. According to Rabbi Feldman's affidavit made on 23 July 2003, the mortgage to Meriton Finance secures a debt of $8,406,921.58, and the caveat by Ms Marshall was in respect of an indebtedness of $520,000. 52 The evidence before me indicates that Meriton Finance is seeking to protect its interests as mortgagee in a normal commercial manner (though without actually exercising its power of sale, so far), even though Mr Triguboff has participated in recent discussions designed to salvage the companies. There is correspondence in evidence relating to some improvements to the school hall and synagogue at the Dover Heights property in 2002, in which Meriton warned the builder that it was entitled to enforce its mortgage security. In 2003 it insisted on a similar warning being made to members of the Jewish community who might apply for "permanent seats" in the synagogue. 53 Mr Scheinberg's overall estimate of the value of the assets of the Yeshiva Properties companies is $36.1 million. Mr Kinstlinger's estimate is $39.4 million and Rabbi Feldman's is similar to that. Mr Scheinberg's estimate of the debts of the companies, taking into account Nelvet's subordinated loan (which he describes in his affidavit as "balance of promissory notes held by Nelvet") and also the legal costs of Lubavitch Mazal and Nelvet, is $39.849 million. Mr Kinstlinger's is $40.83 million. Rabbi Feldman's affidavit does not disagree with these estimates in any substantial way, although he overlooks the subordinated loan and does not mention the debt claimed by himself and his wife and Vageta. 54 Concerns have recently been expressed as to dealings with the Dover Heights property. Lubavitch Mazal's solicitors wrote to the solicitors for the companies on 7 August 2003 expressing their concern about press reports that the property had been put into the hands of a real estate agent for sale, and seeking undertakings to protect their client's prospect of recovery of any shortfall after exercise of its securities. 55 Mr Scheinberg gave evidence of a conversation he had with Rabbi Feldman on 8 August 2003, in which Rabbi Feldman said he wanted to sell the Dover Heights property for $18 million, and use the money to pay off the balance owing to Lubavitch Mazal, and use the rest of the money to pay off his home mortgage and the loan to Mrs Marshall, and the debts of the school. He said that Nelvet's secured loan would be paid but he did not reply when Mr Scheinberg asked where his proposals would leave Nelvet's unsecured loan. Mr Scheinberg recommended the appointment of a voluntary administrator to the school and that the proceeds of sale of Dover Heights should not be applied to the school's creditors because it was a separate entity. Rabbi Feldman disagreed. 56 Mr Scheinberg also gave evidence that on 30 June 2003, at a function in Bondi, Rabbi Feldman showed him a cheque for $430,000 made out to Vageta. He asked why the cheque was made out to Vageta, and Rabbi Feldman said, "I want to control the money". The appointment of voluntary administrators 57 In the early part of the hearing before me, counsel for Lubavitch Mazal challenged the assertion that voluntary administrators had been appointed to the Yeshiva Properties companies. The basis for the challenge was a medical report by Dr Roberts, a consulting forensic psychiatrist, that he attended Rabbi Feldman at his home on the evening of Monday 18 August 2003 and found him in a distraught state, incapable of addressing any serious matters. On the recommendation of Dr Roberts, Rabbi Feldman was subsequently admitted to hospital for complete rest and isolation. 58 Mr Kinstlinger gave oral evidence in chief with respect to the decision to appoint voluntary administrators, supplementing his affidavit. Although counsel for Lubavitch Mazal did not return to the issue in final submissions, it is appropriate for me to make findings, limited of course to the present interlocutory purposes. 59 At the hearing the defendants tendered a set of documents each purporting to be minutes of a meeting of the board of directors of one of the six Yeshiva Properties companies, together with minutes for Yeshiva Properties No 7. The minutes are in identical form except for the name of the company, and purport to record a meeting held on 19 August 2003 at 67 Penkivil Street Bondi. As I have said, the directors of each of the seven companies are Rabbi and Mrs Feldman and their son Yosef Feldman. 60 The minutes each record resolutions that · in the opinion of the directors the company was likely to become insolvent at some future time; · administrators of the company should be appointed; · noting the consent in writing of Mr Dean-Willcocks and Mr Malanos to act as administrators, they be appointed as the administrators of the company; · an instrument of appointment being tabled, the instrument be executed in writing in accordance with s 436A of the Corporations Act. 61 In each case the instrument of consent and the instrument of appointment, each dated 19 August 2003, is attached to the minutes. The minutes are in each case signed by Mrs Feldman as chairman, and the instrument of appointment is signed by Mrs Feldman and Yosef Feldman. 62 Mr Kinstlinger gave evidence that on the evening of Tuesday 19 August, Mrs Feldman and Yosef Feldman met at the Bondi address identified in the minutes, in his presence. Mr Kinstlinger said that he telephoned Rabbi Feldman, who was in hospital but was able to take the call on his mobile telephone. The minutes were in draft form at that stage. Mr Kinstlinger read the minutes for Yeshiva Properties No 1 to Rabbi Feldman and asked him, "Is this the manner in which you wish to proceed?" Rabbi Feldman replied, "That is fine." Mrs Feldman and Yosef Feldman also read the minutes for Yeshiva Properties No 1, as well as the appointment letter. They took the documents for all seven companies and signed them, Yosef Feldman saying words to the effect "It's a shame that it has come to this." Mr Kinstlinger told Rabbi Feldman that the documents were being signed. Once they had been signed, Mr Kinstlinger faxed copies of them to the administrators' firm. 63 On their face, the documents comply with s 436A. The evidence indicates that all three directors turned their minds to the question at hand, and agreed on the substance of the resolutions contained in the minutes for each of the seven companies. It appears from Mr Kinstlinger's evidence that Rabbi Feldman understood the substance of the resolutions, notwithstanding his distraught state on the previous day. It has not been contended that the constitutions of any of the companies prohibited the participation of a director at a meeting by telephone. Since there appears to have been no substantial discussion, the fact that there was no "open line" to permit the directors to communicate directly with one another does not seem to me to be a problem. 64 I am therefore satisfied, for the purposes of the present interlocutory applications, that Mr Dean-Willcocks and Mr Malanos were appointed voluntary administrators of the Yeshiva Properties companies, and Yeshiva Properties No 7, by their directors under s 436A of the Corporations Act. The evidence does not allow me to say whether the directors' decision might or might not be open to challenge on some such basis as fraud on the power of appointment. 65 I should note that a voluntary administrator was appointed to Yeshiva College Limited and Yeshiva Jewish Day School Limited on 14 August 2003, and subsequently the creditors of those companies have appointed Mr Dean-Willcocks and Mr Malanos as voluntary administrators in substitution for the person originally appointed. "Interests of the company's creditors" under s 440A(2) and (3) 66 Section 440A of the Corporations Act is as follows: "(1) A company under administration cannot be wound up voluntarily, except as provided by section 446A. (2) The Court is to adjourn the hearing of an application for an order to wind up a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. (3) The Court is not to appoint a provisional liquidator of a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than have a provisional liquidator appointed." 67 The adjournment application must be considered in light of s 440A(2). The application for the appointment of a provisional liquidator raises the question whether the order is prohibited by s 440A(3). I shall consider, first, the principles by which the Court proceeds under s 440A(2), and the similar principles applicable under s 440A(3). I shall then consider the application of the principles to the instant facts. Since my conclusion is that an adjournment should not be granted, notwithstanding s 440A(3), and that s 440A(3) does not prevent the appointment of a provisional liquidator, I shall then consider whether such an appointment should be made. 68 Section 440A(2) requires the Court to adjourn Lubavitch Mazal's winding up proceeding if two conditions are satisfied. The first condition is that the Yeshiva Properties companies are under administration. I have concluded that they are. The second condition is that, before I grant the adjournment, I must be satisfied that it is in the interests of the creditors of the Yeshiva Properties companies for them to continue under administration rather than be wound up. 69 The latter condition was considered by Santow J in Waste Recycling and Processing Services of New South Wales v Local Government Recycling Co-operative Ltd (1999) 32 ACSR 194. After referring to the objects of Part 5.3A set out in s 435A, his Honour said (at 195): "Whether adjournment is as required by s 440A(2) 'in the interests of the company's creditors' must be affected by the length of adjournment envisaged, where the adjournment is only for a limited time. It is also affected by the envisaged purpose and likely consequences of such adjournment. This must frequently be judged in circumstances where outcomes are not susceptible of certain prediction, with the onus nonetheless remaining with the administrator. A short adjournment may in some cases permit a greater level of assurance of salvageability or otherwise to be assessed in the interests of creditors by an independent administrator, without adverse countervailing consequences from such a short delay. On the other hand to grant such an adjournment there must be a sufficient possibility, as distinct from mere optimistic speculation, that such a deferment for the envisaged time is in the interests of creditors: see Deputy Commission of Taxation v Yates Security Services Pty Ltd (1997) 26 ACSR 69; 16 ACLC 448. On that question, views may legitimately differ. Often to be weighed is the certainty of adverse consequence for creditors if liquidation ensures as against the prospect of a better outcome, but no certainty, under administration, provided a deed of company arrangement can be successfully negotiated with creditors to underpin that outcome." 70 One of the factors mentioned by his Honour in that case, and considered in other cases, is whether the relation-back period will be substantially different if the company proceeds through voluntary administration rather than into immediate winding up. The liquidator of a company in liquidation may recover unfair preferences or payments in uncommercial transactions where the transaction was entered into or effectuated during the six months ending on the relation-back day: ss 588FE and 588FF. If a winding up follows a period of voluntary administration, the relation-back day is usually the date of appointment of the voluntary administrator, while if a winding up order is made by the Court, the relation-back day is usually the date of the filing of the originating process for winding up: ss 9 (definition of "relation-back day"), 513A, 513B and 513C. 71 In the present case it has not been suggested that differences in the relation-back period are a factor that I should take into account. Nelvet's winding up application was filed on 18 August 2003, voluntary administrators were appointed on 19 August 2003, and Lubavitch Mazal's winding up application was filed on 20 August 2003. 72 The length of the period of delay is a significant factor in some cases. In the Waste Recycling case Santow J allowed an adjournment for only a few days, to permit the new administrator to develop and give the Court the benefit of a preliminary view as to the company's prospect of continuing to trade and the practical likelihood that there might be a larger dividend for creditors than if the company were immediately wound up. In Australian Guarantee Corporation Ltd v Agapei Pty Ltd [2002] NSWSC 1034 (24 October 2002), Barrett J declined an application for an adjournment of about a week after there had already been several earlier adjournments of the winding up proceeding. In GIO Workers Compensation Ltd v Primbee [2003] NSWSC 591 (12 June 2003) I granted an adjournment for a period of about 13 days when the evidence indicated that there was a well-developed proposal to place before creditors. 73 In the present case, the voluntary administrators initially sought an adjournment for at least seven days. In highly contentious circumstances, the evidence evolved and the issues in the case became more complex, over the period to 25 August 2003, and then judgment was reserved for a week. Consequently the voluntary administrators have had an additional 12 days by default. More importantly, they have had an opportunity, admittedly a limited one, for investigation and report to the Court. Mr Dean-Willcocks was able to provide some preliminary information in his affidavit made on 25 August 2003. The real question that presents itself now is whether to grant an adjournment that would allow the voluntary administration to take its course, by the voluntary administrators reporting to the creditors and convening a meeting under s 439A, at which the creditors would decide whether to resolve that the company execute a deed of company arrangement, or be wound up, or be returned to its directors. 74 The most influential factor disclosed by the cases is whether, on the evidence before the Court, there is a prospect that a deed of company arrangement might emerge that would give the creditors a quicker or better dividend than a winding up. In the Waste Recycling case the hearing of the winding up application was close to completion before the application for an adjournment was made. Santow J had before him some substantial evidence about the company's solvency and prospects, and was persuaded that a short adjournment was justified to give the new administrator the chance to form a preliminary view for the benefit of the Court. In the Primbee case, the director had put forward a detailed formal proposal for a deed of company arrangement and the administrator had prepared a draft report pointing out that under the proposal creditors would receive a distribution, whereas in his opinion liquidation would provide no distribution for creditors. I granted an adjournment to permit the creditors to consider the proposal. In the Agapei case Barrett J had some substantial evidence about the assets of the company and a negotiated sale of the company's real property, proposed to take place in the following week. He also had evidence of a loan approval letter to the purchaser. After carefully analysing all of the evidence, he concluded that he had not been satisfied that it was in the interests of the company's creditors for the company to continue under administration rather than to be wound up. 75 The level of real information available to the Court in these three cases stands in stark contrast with the speculative opinions upon which the defendants and Nelvet rely in the present case. I shall discuss the evidence below. 76 In Creevey v Deputy Commission of Taxation (1996) 19 ACSR 456 the Queensland Court of Appeal addressed the issue in this way: "The question of whether an administration should continue, rather than that there be a winding up, is obviously closely related to the further question of whether the creditors could hope to get more by way of payment of their debts from one form of process or administration than from the other. In order to satisfy the Court of the matter referred to in s 440A(2) of the Corporations Law, one would expect that there would have to be some persuasive evidence to enable it to be seen that there were assets which, if realised under one form of administration rather than the other, would produce a larger dividend, or at least an accelerated dividend for the creditors." 77 The requirement for "persuasive evidence", if considered in isolation from the facts and decision in that case, could set the barrier fairly high. In Waste Recycling, Santow J ( at 199) noted that a less stringent formulation has been adopted in an unreported case in the Federal Court, although he later applied the Creevey dictum in Re First Netcom Pty Ltd (2000) 35 ACSR 615. Campbell J applied the Creevey test in Deputy Commissioner of Taxation v Bradley Keeling Management Pty Ltd (2003) 44 ACSR 377. For present purposes, it is not necessary to decide upon the precise standard of proof. Whatever be the correct formulation, it is plain that if the evidence points to nothing more than "mere optimistic speculation" that a proposal might emerge (to use Santow J's words), the case has not been made out. For the reasons I shall explain, my view is that the evidence in the present case amounts to nothing more than this. 78 These cases deal with the question of adjournment under s 440A(2). Section 440A(3) requires the Court, when confronted with an application for the appointment of a provisional liquidator of a company in administration, to consider whether it is in the interests of the company's creditors for it to continue under administration rather than to have a provisional liquidator appointed. The choice is between administration and the appointment of a provisional liquidator, rather than (under s 440A(2)) between administration and winding up. Subject to that difference, however, it appears to me that the investigation is essentially the same, and the principles governing it are those stated in the cases to which I have referred. Under subsection (3), as under subsection (2), the person resisting winding up or the appointment of a provisional liquidator has the onus of satisfying the Court that the interests of the company's creditors are better served by administration. The question (or at any rate, the main question) will be whether there is on the evidence any real, practical prospect, as opposed to mere optimistic speculation, that the creditors will receive a better or quicker dividend if administration is permitted to continue, than they would eventually hope to receive if a provisional liquidator were appointed. The evidentiary case for continuing the voluntary administration 79 As I have said, Nelvet's application, launched ex parte on 18 August 2003, returned to me on a contested basis on 20 August 2003, when Lubavitch Mazal and Meriton Finance were heard, in addition to the defendant companies by their newly appointed voluntary administrators. It took some time to sort out the procedure by which the matter would go forward, and in the result Lubavitch Mazal's application for the appointment of a provisional liquidator, and the defendants' application for an adjournment, were both adjourned part heard until the next day. On 21 August, after the remainder of the affidavit and documentary evidence of the parties (and those heard by leave) had been taken and the company secretary of the Yeshiva Properties companies (Mr Kinstlinger) had been cross-examined, I proceeded to hear final submissions. 80 Counsel for Meriton Finance submitted that his client appeared before the Court to support, in the strongest possible terms, the proposition that the voluntary administration be permitted to take its course. He said there was "a prospect that under voluntary administration a proposal might emerge" for continuation of the companies and the school at Dover Heights. I pressed him to identify the evidence to support that proposition, and he conceded that the proposition was merely a submission without any specific evidence to support it, other than the fact that his client chose to be present and make the submission. When I indicated that I would find it difficult to attach any weight to such a submission, in the absence of evidence, both the defendants and Nelvet foreshadowed applications to re-open in order to provide some evidence as to the prospect that a proposal might emerge. The applications to re-open were opposed by Lubavitch Mazal but they were successful, and in the result Mr Gary Cohen and Mr Dean-Willcocks gave affidavit evidence, and Mr Cohen was cross-examined. Lubavitch Mazal led some further evidence in response. 81 I now confirm that I am unable to draw any significant inference, with respect to the prospect that a proposal might emerge during the administration process, from the mere fact that Meriton Finance has appeared by leave, or the fact that Mr Scheinberg now opposes the appointment of a provisional liquidator and wishes the voluntary administration to take its course. Even if some vague inference could be drawn from those facts, to the effect that people of financial substance in the Jewish community do not want the schools to close permanently and may be prepared to put together some sort of rescue package, the prospect would be too shadowy and evanescent to be capable of being given rational consideration. 82 In my opinion it is only the evidence of Mr Cohen and Mr Dean-Willcocks that provides any foundation for the submission that there is any real prospect that a proposal might emerge out of voluntary administration. 83 Mr Cohen has had a career in corporate law and investment banking and was the corporate adviser acting for the Yeshiva Properties companies when the financial arrangements of 1994 were put together. On about 15 August 2003 he was contacted by a number of members of the Jewish community in Sydney to assist in the rescue of the schools. He called a meeting at his home on Sunday 17 August, to discuss a way forward that would involve restructuring and refinancing the schools. Rabbi and Mrs Feldman were present, with Mr Triguboff, Mr Scheinberg, three people representing parents of children of the schools, Stephen Rothman SC as president of the New South Wales Jewish Board of Deputies, Peter Wise as chairman of the Jewish Communal Appeal (an umbrella organisation of the Jewish community comprising approximately 18 charitable organisations, which raises a significant amount of money on an annual basis), and two Rabbis representing the Sydney rabbinate. 84 After a long discussion, those present agreed that steps should be taken to ensure that the schools continue to operate, recognising that it would be necessary to restructure the debts of the schools and the Yeshiva Properties companies and to raise fresh capital for them. It was agreed that Rabbi and Mrs Feldman would resign from all their directorships of companies associated with the schools, a voluntary administrator would be appointed to the Yeshiva Properties companies (and that person would also become the voluntary administrator of the two school companies, Yeshiva College Limited and Yeshiva Jewish Day School Pty Ltd, which were already in administration), and Rabbi Feldman would in future have only a spiritual and educational role. Mr Scheinberg agreed to work with the parents' committee to restructure the schools, and Mr Cohen agreed to work with the administrator to restructure the debts of the Yeshiva Properties companies. That would involve investigating potential realisations of assets so as to retire some of the outstanding debts, and the possibility of resettling the assets of the trust for the benefit of the schools once the debts had been restructured. 85 According to Mr Cohen, Mr Triguboff (who is a well-known property developer) said to him at the meeting, "I believe there is a possibility of subdividing Dover Heights and selling off some land which would retire some of the debts". Richard Scheinberg expressed the opinion that the Flood Street Properties had been sold at a significant undervalue which would be potentially recoverable for the benefit creditors if it could be proved. 86 Mr Wise said: "Provided that the steps we have agreed to are put in place and the constitution of the schools are restructured to fit with the JCA's guidelines for corporate governance then I will support and promote within the JCA the admittance of the schools as part of the JCA community. A major stumbling block was the way the schools were administered and if it is addressed then the JCA would certainly look to assist." 87 Mr Moss, one of the representatives of the parents, said: "On the basis that steps are taken as we discussed and the Feldmans are removed from the management and finance of the schools the parents will work to raise significant sums of money to recapitalise and restructure the schools." 88 Mr Cohen gave evidence that on the morning of 18 August he received a telephone call from Mrs Feldman, who expressed concern about the financial position of herself and her husband, and said until that was resolved, she did not want to appoint an administrator to the Yeshiva Properties companies. Mr Cohen reported this conversation to Mr Scheinberg, and subsequently Mr Scheinberg caused Nelvet to make its application, on the same day, for the appointment of a provisional liquidator and other relief. 89 On the morning of Tuesday 19 August 2003 Mr Cohen received a facsimile from Mrs Feldman, in which she said she would appoint a voluntary administrator as requested. Then on the evening of 19 August Mr Cohen had a meeting with Mr Scheinberg and Mr Triguboff, in which Mr Scheinberg said that he would support voluntary administration. 90 Mr Scheinberg said: "If a new trust is put in place I am prepared to donate my unsecured debt for the benefit of the community". Mr Triguboff said: "Well this is good. Do I have that in writing?" Mr Scheinberg said: "No but you have my word." 91 Mr Cohen has expressed the conclusions, based upon these discussions, that - now that the Yeshiva Properties companies and the schools are under voluntary administration and Rabbi and Mrs Feldman no longer have management or financial control - there are good grounds to believe that the proposal discussed on 17 August 2003 will lead to significant fresh donations from the Jewish community in Sydney, which will allow for the schools to continue to operate and for the Yeshiva Properties companies to restructure the debts. 92 I allowed this evidence to be read, notwithstanding objections, because I wanted to make sure, in urgent interlocutory circumstances, that everything that could be said in favour of the prospects of salvageability was said, without the normal constraints of the rules of evidence regarding form, hearsay and other matters. Mr Cohen was cross-examined on his evidence, and adhered to it. For the purposes of the present application, I accept his evidence (except on one point, mentioned below). Nevertheless, when listening to his oral evidence I was frequently reminded Santow J's phrase, "mere optimistic speculation". 93 The evidence amounts to no more than that certain representative elements of the Jewish community are interested to work towards saving the schools by exploring the possibility of reconstituting them and restructuring the debt of the Yeshiva Properties companies. A source of funds may be opened up in the future if the schools are admitted into the Jewish Community Appeal, but there is no evidence as to how much money might be made available and no timeframe is given. The parents may be prepared to make donations in future, but again no attempt is made to quantify the prospect or put it within a timeframe. Mr Scheinberg has promised Mr Triguboff that he will donate his unsecured debt for the benefit of the community, but I find it impossible to give any practical significance to this promise, because the conditions upon which it undoubtedly depends are not stated and the "community" to receive the "benefit" is not specified - quite apart from the facts that Mr Scheinberg declined to put the promise in writing and did not give any direct evidence of it. 94 When one compares the vague and unspecific evidence of future prospects that emerges from Mr Cohen's evidence with the material before the Court in the Waste Recyclers, Agapei and Primbee cases, the difference is very striking. But there are two additional problems with this evidence. 95 The first is that everything about it suggests a lengthy process, not dissimilar from the refinancing process of 1994, which took about six months to put together. What seems to be contemplated, by way of exploring the addition the schools to an established annual donation program, conducting a fund-raising amongst parents, and having Mr Scheinberg forgive part of his debt in due course, hardly warrants description as a "rescue", a process which seems to imply some immediacy. One has the impression that here, the victim will have drowned before rescue helicopter has taken off. 96 Secondly, apart from the statements by Mr Scheinberg, Mr Wise and Mr Moss, which had the difficulties that I have identified, there appears to be nothing new about the matters discussed over recent days. As Mr Cohen conceded in cross-examination, there were discussions about the arrangements needed for repayment of the debt to Mr Gutnick's company in 1999. More recently, over the past nine months there has been a series of attempts to delay the exercise by Lubavitch Mazal of its power of sale over the LM Securities, and on some of those occasions the prospect of a "white knight" coming forward to relieve the companies of their immediate difficulties has been floated, but it appears that no realistic prospect has emerged. 97 Thus, in an application to restrain exercise of the power of sale pending the hearing before Young CJ in Eq, heard by Bergin J in December 2002, an affidavit by a person called Roland Bloch, said be a property developer, was read. He gave evidence on 9 December 2002 that he was prepared to make an offer of $5 million to purchase the properties at 28-32 Flood Street Bondi, provided that the dispute between Rabbi Feldman and Mr Gutnick was resolved by the Court, as he did not want his money to be tied up for a lengthy period. He gave further evidence on 19 December 2002 that he would accept an obligation to purchase the properties at 11-11A, 24-26 and 28-32 Flood Street Bondi and 55 Anglesea Street Bondi "to preserve their important use in the Jewish community", for the same price that had been offered at that time to Lubavitch Mazal, in effect agreeing to make the purchase through his company if Vageta Pty Ltd, the company of Rabbi and Mrs Feldman, did not enter into their proposed contract to purchase the properties within a stated period. On 20 December 2002, when the application before Bergin J was listed for judgment, the Yeshiva Properties companies applied for deferral of the delivery of the judgment so they could make an application to call further evidence. Bergin J acceded to the application and on 23 December 2002 Mr Bloch gave oral evidence. She delivered her judgment of the same day, granting interlocutory injunctive relief in terms which effectively encouraged Mr Bloch to come forward and negotiate. However, nothing concrete emerged. 98 After Young CJ in Eq delivered his reasons for judgment on 8 July and made orders on 16 July 2003, an appeal was lodged, and an application was made to Meagher JA on 28 July 2003 for orders to preserve the status quo pending determination of the appeal. That was the very last day before the stay of Young CJ in Eq's orders would be lifted. His Honour rejected the application, essentially on the ground that it had identified no arguable error of fact or law in Young CJ in Eq's judgment. During the course of argument Meagher JA described the submission of counsel for the companies as having "a very unattractive sound to it", and he continued: "Because it gives the appearance very much as if you are saying 'I have not made out our case for any new relief at the moment but if I have a further delay I will see if I can discover one'." 99 After Meagher JA delivered his reasons for judgment, counsel for the Yeshiva Properties companies made a further application to his Honour, which appears to have involved a proposed sale of some of the properties to an unidentified third party and payment of the Lubavitch Mazal debt within 60 days. Meagher JA did not accede to the application for time to pay, and suggested that a concrete proposal be put to the solicitor for Lubavitch Mazal. A similar application was made to Windeyer J, and denied, on the same day. 100 There was also an unsuccessful application made to Mason P, in which an affidavit by Mrs Feldman made on 11 July 2003 was read, which annexed a letter from Rabbi Boruch Shlomo Cunin of Los Angeles dated 7 August 2003, in which the Rabbi described his "Herculean effort" to make Mr Gutnick whole for the actual money lent (presumably as opposed to the face value of the promissory notes), not surprisingly rejected. The Rabbi offered a personal guarantee of a litigation bond or similar security to protect Lubavitch Mazal should the appeal or settlement negotiations fail. Nothing concrete emerged. Two applications were made to Gzell J, to restrain Lubavitch Mazal from exercising its power of sale. They were unsuccessful: see Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 755. Throughout the process, no unqualified "cash on the table" offer has emerged. 101 In my opinion it is appropriate to take into account this history in assessing Mr Cohen's evidence of recent conversations. The evidence tends to reinforce the view presented by a dispassionate evaluation of Mr Cohen's own evidence, that it amounts to no more than "mere hopeful speculation". 102 Mr Dean-Willcocks has also given evidence relevant to the salvageability of the Yeshiva Properties companies. However, Mr Dean-Willcocks has been able to identify no other "prospect" than a degree of willingness on the part of the teachers and representatives of the parents to co-operate in arrangements by which the teachers would receive part of their overdue wages, and confirmation by Mr Scheinberg and of his willingness to donate his unsecured debt for the benefit of the community, an offer which according to Mr Dean-Willcocks might be incorporated by way of forgiveness of debt under any proposed deed of company arrangement. After reviewing evidence as to the state of the indebtedness of the companies, Mr Dean-Willcocks concluded: "For me to form an opinion that any deed proposed is in the interest of creditors, logically such deed must offer the creditors a result better than would be available in the event of liquidation if liquidation was to offer less than 100 cents in the dollar, or alternatively if liquidation was to offer 100 cents in the dollar then any deed would likely need to offer 100 cents in the dollar on the basis that participating creditors were not prejudiced." 103 All things considered, my view is that the evidence as to prospects of salvageability through allowing the administration to proceed falls a long way short of satisfying me that it is in the interests of the company's creditors for the company to continue under administration rather than to be wound up, or for it to continue under administration rather than have a provisional liquidator appointed. Therefore I am not required to adjourn the winding up proceeding by Lubavitch Mazal, and I am not prevented from appointing a provisional liquidator, by s 440A(2) and(3). The grounds for appointment of a provisional liquidator 104 The originating process filed by Lubavitch Mazal seeks winding up orders under s 459P (winding up in insolvency, here on the application of a creditor) or s 461 (winding up on other grounds). Although the originating process does not specify the particular "other grounds" relied upon, counsel for Lubavitch Mazal indicated in submissions that reliance was placed on the "just and equitable" ground in s 461(1)(k). 105 The principles to be applied in considering whether to appoint a provisional liquidator are not in dispute. In Zempilas v JN Taylor Holdings Ltd (No 2) (1990) 3 ACSR 518, King CJ (with whom Cox and Olsson JJ agreed) observed (at 520) that "the usual, although not the only, purpose for which a provisional liquidator is appointed is to preserve the assets of the company and the status quo in relation to its affairs." Thus, the primary duty of a provisional liquidator is to preserve the status quo so as to ensure the least possible harm to all concerned and to enable the Court to decide, after a proper final hearing, whether the company should be wound up: Re Carapark Industries Pty Ltd (in liq) [1967] 1 NSWR 337; Wimborne v Brien (1997) 23 ACSR 56, at 582 per Dunford AJA. In Zempilas King CJ remarked (at 522) that "the appointment of a provisional liquidator pending adjudication upon the petition for winding up, is a drastic intrusion into the affairs of the company and is not to be contemplated if other measures would be adequate to preserve the status quo." The latter observation was applied by Kirby P (with whom Meagher JA agreed) in Constantinidis v JGL Trading Pty Ltd (1995) 17 ACSR 625, at 635. 106 Subject to these observations, which relate to the special nature of provisional liquidation, there is a broad analogy between the considerations relevant to the appointment of a provisional liquidator and to the appointment of an interim receiver, or other forms of interlocutory relief to protect assets. The Court should only appoint a provisional liquidator where it is satisfied that there is a reasonable prospect that a winding up order will be made: ASC v Solomon (1996) 19 ACSR 73, at 80 per Tamberlin J. Where the ground for winding up is alleged insolvency, the Court must adopt "a realistic assessment" (Constantinidis, at 635-636 per Kirby P). In addition to considering whether there is an arguable case to establish a ground for winding up, the Court should consider the degree of urgency, the need established by the applicant creditor, and the balance of convenience: Re Club Mediterranean Pty Ltd (1975) 11 SASR 481, at 484 per Bright J; ASC v Solomon at 80 per Tamberlin J. 107 Reference to the balance of convenience naturally raises the question whether the plaintiff should be required to give the usual undertaking as to damages as a condition of the relief. Here the undertaking has been offered, if needed, by Lubavitch Mazal. 108 In the Zempilas case King CJ left open the question (at 522) whether the predecessor of s 472(2) prevented the Court from requiring that the undertaking be given. He continued: "There appears to be no requirement of law or practice to extract such an undertaking as a condition of the appointment of a provisional liquidator. The observations of the High Court in National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 1 ACSR 722 in relation to undertakings as to damages as a condition of the appointment of a receiver and manager pending trial, were made in very different circumstances and have no application to the present situation. On the material before the court there is a strong prima facie case that the respondents have been victims of improper and oppressive conduct by the directors and that the need to protect the company's assets and position has been brought about by such conduct. It is difficult to envisage how the appointment of a provisional liquidator could cause damage to JN Taylor Holdings Ltd, which is not carrying on business, whatever effect it might have upon the prospects of the Bond group's securing approval of the proposed scheme of arrangement. I do not think that an undertaking as to damages should be required." 109 I am inclined to think that in an appropriate commercial case, an undertaking as to damages should be required, otherwise consideration of the balance of convenience might be rendered meaningless. I do not understand the argument which says that the Court's normal discretion to require such an undertaking has been taken away by s 472(2), which does no more than to confer on the Court the statutory power to make the appointment. 110 Here, however, the Yeshiva Properties companies are either the trustees of the properties, or they have disposed of one or more of the properties while presumably retain a right of indemnity out of any properties disposed of. By far the most valuable asset, the Dover Heights property, is being used for educational and religious purposes by an entity which does not pay any rent or occupation fee to the trustees. In those circumstances, like King CJ in admittedly very different circumstances, I find it hard to see how the appointment of a provisional liquidator could cause damage to the Yeshiva Properties companies, even if the effect of the appointment of a provisional liquidator were to be to cause the school to be closed forever. I shall therefore not require Lubavitch Mazal to give the undertaking. 111 The evidence satisfies me that the interlocutory threshold has been crossed, both for winding up on the insolvency ground and for winding up on the just and equitable ground. As far as insolvency is concerned, I have referred to some inconsistent evidence with respect to the value of the assets and liabilities of the companies, but there is consistency on two points. First, any overall surplus of assets over liabilities depends upon the net value of the Dover Heights property, which, being real estate already subject to a mortgage, caveats and a registered writ, would not be readily realisable to provide funds to meet the debts owed by the companies as and when they fall due. There are very substantial debts, including the debt to Lubavitch Mazal, which has not been paid notwithstanding the execution of a writ of possession and steps being taken to sell up the mortgaged properties. There is clearly an arguable case, and on the evidence rather more than this, that the Yeshiva Properties companies are insolvent for the purposes of the Corporations Act. 112 So far as the just and equitable ground is concerned, the evidence indicates that the people attending the meeting at Mr Cohen's house on 17 August 2003 no longer had confidence in Rabbi Feldman as day-to-day controller of the Yeshiva Properties companies. Those individuals represented some influential constituents of the Jewish community connected with the operations of the Yeshiva Centre. The evidence has not taken me into the reasons for this lack of confidence, but the fact that it exists would provide at least an arguable case that it would be just and equitable to wind the companies up, if there were no other way of removing the companies from Rabbi Feldman's control. That conclusion is reinforced by evidence of the potential recoveries for a liquidator (including the evidence concerning the deed of charge). 113 Were it not for the appointment of the voluntary administrators, there would be circumstances of urgency justifying the appointment of a provisional liquidator to preserve the assets of the companies. Mr Scheinberg's evidence is particularly pertinent. It provides a ground for concern (obviously no more than that, at this interlocutory stage) that in the absence of intervention by an external administrator, Rabbi Feldman might have used his position of day-to-day control to treat creditors unequally and unfairly inter se, should the Dover Heights property be sold and the proceeds of sale distributed. It also provides ground for concern that, in the absence of external administration, he might not keep properly separate the financial affairs of the companies and his own financial affairs (a matter that attracted comment by Young CJ in Eq in his judgment of 8 July 2003, paragraph 134). Additionally, especially when considered together with the evidence of the deed of appointment of the new trustee and the memorandum of transfer of the Dover Heights property to Yeshiva Properties No 7, Mr Scheinberg's evidence provides ground for concern that the six Yeshiva Properties companies might, in the absence of intervention, lose their direct control over the assets against which they may exercise their right of indemnity as trustees. Although a former trustee may be able to assert its right of indemnity against the trust assets in the hands of the new trustee, transfer of the legal title away from the existing trustee may create a practical impediment to doing so. 114 Therefore, were it not for the appointment of the voluntary administrators, I would have concluded that adequate circumstances of urgency exist to justify the Court's intervention by appointment of a provisional liquidator to the companies to preserve their assets. The appointment of voluntary administrators removed the need for intervention by the Court on grounds of urgency and protection of assets, and the question has become whether it is preferable, in the interests of the creditors, to proceed by voluntary administration rather than by the appointment of a provisional liquidator. Having concluded under s 440A(3) that I am not satisfied that it is in the interests of creditors for the companies to continue under administration rather than to have a provisional liquidator appointed, I now hold that, on the evidence before me now, provisional liquidation followed by winding up appears to be the better course in the creditors' interests. I have reached this conclusion for the following reasons. 115 Counsel for Lubavitch Mazal submitted (assuming that there will be a shortfall in the realisation of the LM Securities, leaving Lubavitch Mazal as an unsecured creditor for the excess) that there are reasonable grounds for apprehension that if the administration continues and a deed of company arrangement is proposed, the proposal will be unfairly disadvantageous to that company. I agree with the submission. 116 I regard it as improbable that a deed of company arrangement would be proposed that would treat Lubavitch Mazal on equal terms with all other unsecured creditors. If the purpose of a deed of company arrangement would be to enlist the aid of a "white knight" to salvage the properties and the operations of the Yeshiva, it is hard to see why a deed would be needed, unless the funding that is offered is insufficient to pay the whole of the debt owing to Lubavitch Mazal. Depending on the precise figures, there is a real prospect that other creditors may be able to outvote Lubavitch Mazal at any meeting to approve the execution of a deed of company arrangement. In this regard it would appear that Nelvet's debt would be likely to be admitted for voting purposes at its full value, notwithstanding the deed of subordination. 117 At the heart of the dispute between Rabbi Feldman on the one hand, and Mr Gutnick on the other, is an apparently strongly held view on the part of the former that Mr Gutnick has acted immorally in insisting upon the literal terms of his entitlement to payment under the loan agreement. Mr Cohen gave evidence to similar effect at the hearing before Young CJ in Eq on 6 May 2003, saying that he believed it would be "unethical and improper" for Mr Gutnick to receive back more than he had lent. The transcript was tendered at the hearing before me. Mr Cohen explained how he had negotiated the financing of December 1994 as a transfer of the Bank's existing securities, rather than as a retirement of the Bank's debt and its replacement with a smaller debt to Lubavitch Mazal and Nelvet, in order to maintain the government subsidy to the Yeshiva. 118 The following appears in the transcript of Mr Cohen's evidence: "Q. It was certainly your understanding at the time that what you had documented were loans that had to be repaid; correct? A. They were loans. In the form of the documents, the loans had to be repaid. Q. That was your understanding at the time? A. It was my understanding at the time. Q. You say in paragraph 22 of your affidavit you said to Mr Gutnick, 'Surely you are not going to ask the Yeshiva to pay back any more than you have lent'? A. Correct. Q. Can we take it from that that you understood Mr Gutnick had lent money to the Yeshiva; correct? A. He had lent money to the Yeshiva by the assignment of securities. Q. Thank you. He had entered into a transaction which had created such liability; correct? A. Correct. Q. And you understood that that money had to be repaid? A. I understood some money had to be repaid, yes. Q. At least the money that was advanced to the Commonwealth Bank? A. At least the money that was advanced to the Commonwealth Bank. Q. Why did you think it would be unethical and improper for Mr Gutnick to receive back more than he had advanced? A. I think there are many reasons for that. Firstly this was totally being done as a charitable act or deed. It was being done as a favour. So, leaving aside any familiar relationship issues, there was certainly an understanding that existed that the construct of the loans and the face value of the loans which remained in place as a result of the assignment from Commonwealth Bank were of my construction and as I put it to both Richard Scheinberg, Rabbi Feldman and Joseph Gutnick back in December 1994, that once the full face - amount advanced had been repaid, all security should be released and the balance of the debt should be extinguished or transferred for a nominal amount. Q. That is what you put to Mr -- A. -- to Gutnick - Rabbi Gutnick. Q. -- and Rabbi Feldman? A. -- Feldman and Richard Scheinberg. I did so in a letter. Q. Mr Scheinberg certainly didn't agree with that proposition; did he? A. He did. Q. What he said was that he would receive interest, but would make donations back in the same amount; did he? A. Yes, but I am saying to you is that the clear understanding that was reached between the parties, despite all the negotiations in - preceding the time, by the time it reached late December, before we documented it, it was clearly understood that the loans, the face value of the loans, which had been assigned from the Commonwealth Bank through to both Nelvet and Lubavitch Mazal were done for the purposes of maintaining the interest subsidy." 119 It must be remembered that Mr Cohen negotiated the financing arrangements of December 1994 between Mr Gutnick and Mr Scheinberg; that he called the meeting of influential members of the Jewish community on 17 August 2003; and that he also brought Mr Scheinberg and Mr Triguboff together for a discussion on the evening of 19 August. There is at least a reasonable ground for apprehension that Mr Cohen's attitude to the morality of Mr Gutnick's demand for repayment may be shared by Mr Scheinberg and Mr Triguboff, and perhaps other influential members of the Jewish community. The Court should therefore be concerned that, as creditors in a voluntary administration, they would be in a position to use their voting power and the deed of company arrangement mechanism in a manner that would deny Lubavitch Mazal the recovery that they believe to be unjust. 120 Voluntary administration will lead either to the winding up of the companies (in which case the winding up process will simply have been delayed), or to the adoption of a deed of company arrangement over the opposition of Lubavitch Mazal. The latter outcome would lead, in all probability, to further litigation in which Lubavitch Mazal would seek, with some prospect of success, to set aside the deed on grounds relating to oppression or unequal treatment, or to set aside the appointment of the voluntary administrators as a fraud on the directors' power, or to challenge the creditors' resolution to execute the deed. The unappealing prospect of further litigation about the affairs of the Yeshiva Centre is reduced if the external administration of the Yeshiva Properties companies proceeds by the appointment of a provisional liquidator to preserve the assets with a view to winding up. 121 There are three advantages of winding up that are especially pertinent here. One is that in a winding up the claims of creditors are treated equally and rateably. The second is that liquidation is a better environment than voluntary administration for the pursuit of recoveries on behalf of the companies. In the present case, there are (as I have said) issues about the validity of the deed of appointment of Yeshiva Properties No 7 as the new trustee, the memorandum of transfer of the Dover Heights property to that company, and the deed of charge in favour of Rabbi and Mrs Feldman and Vageta. If, when the facts are known, there are grounds for believing that Lubavitch Mazal has realised the LM Securities at an undervalue, that matter can also be pursued by the liquidator. The third advantage is that, as the "red hot dispute" between Mr Gutnick and Mr Scheinberg is likely to lead to disputes about the admissibility of the debts of their companies, it is preferable for that dispute to be worked through in a liquidation than in the more pressured environment of creditors' meetings in a voluntary winding up. 122 Mr Cohen has given evidence expressing his opinion, based on his experience as a corporate adviser, that it will cause significant harm and detriment to the chances of raising fresh capital for the schools if a provisional liquidator is appointed to the Yeshiva Properties companies. He says that is because the schools depend upon their arrangements for occupation of the properties to continue, and the appointment of a provisional liquidator might destroy the goodwill and co-operation of the teachers; he also says that the ability of the Yeshiva Properties companies and the schools to raise funds will be rendered more difficult if a provisional liquidator is put in place. 123 I find this part of Mr Cohen's evidence implausible, and I reject it. One can understand that the appointment of a provisional liquidator might have a very damaging effect on the business of a trading company, which needs to continue to obtain credit in the course of carrying on its business. But the Yeshiva Properties companies are in a different position. The fresh capital contemplated by Mr Cohen seems to be funding from "insiders" within the Jewish community, who ought not to be influenced by the fact that, for the time being, the companies are in provisional liquidation rather than under administration. If any real proposal for salvage by deed of company arrangement emerges, a provisional liquidator (or for that matter a liquidator) may appoint an administrator under s 436B to investigate the proposal and, if it stands up to scrutiny, recommend it. In the meantime, a provisional liquidator has the advantage over a voluntary administrator of being able to take appropriate steps to preserve the assets of the companies and consider the way forward without being bound by the voluntary administration timetable. 124 Not far from the surface during the whole of interlocutory hearing was the issue of the welfare of the pupils and teachers in the schools and the rabbinical college of the Yeshiva Centre. At times during the hearing, submissions were made which implied that the decision for the Court to make was whether to close down the Yeshiva's operations. Two things must be said about this. First, the appointment of a provisional liquidator does not entail that the operations of the company concerned must be brought to an end. The provisional liquidator's main task is to preserve the assets while the proceeding for winding up moves forward to final hearing. Secondly, the activities that take place on the trust properties are activities in the hands of the two school companies, and the Sydney Talmudical College Association. The companies under consideration in the present applications are the companies that hold, on charitable trusts, the properties on which those activities are undertaken. The Court is required to consider the interests of the creditors of the property companies rather than the school companies and the Association. In this sense the continuation of the Yeshiva Centre's operational activities is irrelevant to the applications. 125 The Court's decision to appoint a provisional liquidator to the Yeshiva Properties companies is not necessarily an obstacle to the continuation of the Yeshiva's activities. Salvage can take place, if funding is obtained to pay the creditors in full. If they are paid, the problem is solved without any need for a deed of company arrangement. But if a real and fair proposal emerges, for the implementation of which a deed of company arrangement is appropriate, the provisional liquidator is able to act under s 436B. Conclusions 126 In the urgent but complex circumstances presented by these applications, I decided to deliver summary ex tempore reasons for judgment on I September 2003, after I had concluded my review of the evidence that had been given in partial hearings over four days in the Duty List. I then made an order under s 472(2) of the Corporations Act for the appointment of Mr Dean-Willcocks as provisional liquidator. I dealt with costs on 3 September 2003. I indicated that I would publish my full reasons for judgment in chambers as soon as they were ready. I now do so. 127 I have made no order with respect to Yeshiva College, Yeshiva Jewish Day School or Yeshiva Properties No 7, which (as far as I know) remain in voluntary administration. **********

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