Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand

Judgment - ex tempore

1. In two parallel applications the Trust Company (Nominees) Limited ("TCL") and Mr McGrath and others ("Current Receivers") as the joint and several receivers and managers of Banksia Securities Limited (receivers and managers appointed) (in liquidation) ("BSL") seek overlapping orders.
2. The parties to the applications include, in addition to TCL and the Current Receivers, Messrs Lindholm and McCluskey ("Liquidators"), who have been appointed as liquidators to BSL in circumstances to which I will refer below. Mr Laurence Bolitho, who is a plaintiff in certain proceedings in the Supreme Court of Victoria, has also been allowed an opportunity to be heard in the proceedings without opposition by any of the parties.
3. The applications relate to the affairs of a company which had activities in Victoria, BSL, and is presently the subject of three substantial proceedings in the Supreme Court of Victoria, which I have been informed will go to a hearing presently scheduled in the first half of 2016. Those proceedings involve proceedings brought by BSL, by the Current Receivers; proceedings brought by Mr Bolitho against BSL and others; and proceedings brought by the Liquidators against TCL.
4. I should first note two preliminary issues. The first preliminary issue is that there was, and I say this with no criticism, little explanation of why this application had been brought in the Supreme Court of New South Wales. Mr Scerri QC, who appears for the Liquidators, indicated that his client's preference would have been that the application had been brought in the Supreme Court of Victoria. I have given anxious consideration to whether the Court should decline to exercise the jurisdiction which it has, so far as any issue might arise which would more appropriately be dealt with by the Supreme Court of Victoria. I have been concerned whether there may be issues which may not be apparent to me, which would have been apparent to a judge in that Court had the application been brought in that Court. No party has identified any such issue, and Mr Redwood for the Current Receivers indicates that the affidavit which they have filed in support of the application, to which I will refer below, has sought to expose all relevant issues. I consider it preferable not to decline to determine the application, where no party has asked me to do so, and no party has identified any issue as to which the Supreme Court of Victoria would have given attention, to which this Court would not. I should add that, in any event, as matters have developed, orders will not immediately be entered in this application, which is also an interlocutory application, so that it will be open to the parties to address any issue which may arise out of the conclusions that I will reach, and which should be raised in the Supreme Court of Victoria, before orders are made.
5. The second preliminary issue arose because Mr Bolitho indicated that he seeks to be heard in the application, and has sought access to the evidence filed in the application, in case any matter arising in it may affect his interests in the proceedings in the Supreme Court of Victoria. Mr Bolitho indicated a concern that the evidence had only been served upon him on Friday and that he had only had access to the proposed orders this morning. It was perhaps unfortunate that that concern was only raised after all other parties had made extensive and detailed submissions, and incurred the costs of doing so.
6. Mr Coles, who appears with Mr Liondas for TCL, submits that the Court need not address the issue raised by Mr Bolitho, because Mr Bolitho has no relevant interest in the question, who should prosecute the relevant proceedings brought by BSL in the Supreme Court of Victoria, or defend the proceedings brought by Mr Bolitho against BSL. I do not accept that submission in its broad form. It seems to me that Mr Bolitho at least has an interest in the impact of any orders that I may make upon the carriage of proceedings in the Supreme Court of Victoria, and should be afforded an opportunity to be heard in respect to that issue.
7. In the event, it is possible to address this issue, without wasting the costs which have been incurred by the parties in making substantive submissions, by my delivering a substantive judgment, while reserving Mr Bolitho's opportunity to be heard, having reviewed the material which has been provided to him, in respect of the issues raised, and to move to set aside or vary my proposed orders if so advised. Mr D'Arcy, who appears for Mr Bolitho, indicates that his client does not oppose that course on the understanding that it does not affect the "onus" in respect of the application. I do not think this application is likely to be determined by any question of onus, in a strict sense, but, in any event, the reservation of Mr Bolitho's opportunity to apply necessarily reserves his ability to make submissions that any conclusion that I have reached, without submissions from him, should be amended, revised or withdrawn, once I have heard submissions from him. Equally, of course, experience teaches that it may be that, in the event, no matters of concern arise from the material which has been provided to Mr Bolitho, and no such application will need to be brought. There is, in any event, no inconvenience to the other parties by way of delay arising from this course, because one other issue that has arisen in the course of the application means that orders will not be entered immediately in any event.
8. Turning now to the substance of the application, TCL seeks orders under, inter alia, ss 283HA and 283HB of the Corporations Act 2001 (Cth) that the Liquidators now be appointed joint and several receivers over specified property of BSL, namely the rights and entitlements of BSL that are the subject of the proceedings brought by the Current Receivers in the Supreme Court of Victoria and the subject of the proceedings brought by Mr Bolitho in the Supreme Court of Victoria. TCL also provided helpful short minutes of order, which set out the particular orders which it sought, elaborating to some extent the issues raised by the Originating Process, and I will address the issues raised by those short minutes of order below in indicating my views as to the relief which is sought.
9. The Current Receivers in turn sought relief by Originating Process, in proceedings 255957 of 2015, including directions under s 424 of the Corporations Act and in the Court's inherent jurisdiction, for the appointment of the Liquidators as special purpose receivers of BCL for the purpose of conducting the two relevant proceedings in the Supreme Court of Victoria. In the event, Mr Redwood who appeared for the Current Receivers, recognised that the orders they sought, so far as they involved an order for the appointment of the Liquidators as receivers of BSL's rights and entitlements in those proceedings, overlapped with those sought by TCL, and that it was not necessary for the Current Receivers to press those orders. The Receivers also seek two other orders which I will address below.
10. The application is supported by an affidavit Mr Michael Sloan dated 8 September 2015, who is the solicitor acting for the Current Receivers in this application, and also makes that affidavit in support of TCL's application. Mr Sloan sets out the background to the application, including aspects of BCL's history, and the circumstances in which the Current Receivers were appointed to it, and the steps which have been taken in the conduct of the receivership. He points to the appointment of the Liquidators, by orders made by the Supreme Court of Victoria in 2014, in circumstances that it had been recognised that there was what he describes as a "commercial conflict" (as distinct from a legal conflict) in respect of the Current Receivers investigating or pursuing claims against TCL on behalf of BSL, by reason of the fact that they were appointed as receivers by TCL, and the fact that they have occupied that position for a considerable time. Mr Sloan also refers to the circumstances of the three proceedings that exist in the Supreme Court of Victoria, including the claims brought by the Current Receivers on behalf of BSL against various parties, which do not include TCL; the claims brought by the liquidators against TCL; and the claims brought by Mr Bolitho. Those claims have, not surprisingly, in turn generated other claims as between parties to them. Mr Sloan sets out circumstances relating to the funding of the Liquidator's activities to date, and also helpfully sets out the complex interrelationship between the three proceedings in the Supreme Court of Victoria which, he notes, arise out of the same substratum of facts and involve allegations as between various parties to them. He notes steps which have been taken by the Current Receivers, the Liquidators, and their advisers to co-ordinate their activities, in order to seek to minimise costs in the proceedings and conduct them efficiently.
11. Importantly, in paragraph 85 of his affidavit, Mr Sloan again refers to the "commercial conflict" affecting the Current Receivers, and indicates that the Current Receivers consider that any claims brought by BSL against TCL should be brought by the Liquidators, and have drawn that view to the attention of debenture holders and the Supreme Court of Victoria. Mr Sloan also referred to a view which has been formed that it would be preferable that a single party and single set of advisers prosecute all claims by BSL, and that the Liquidators could do so, in circumstances where the Current Receivers could not, by reason of the commercial conflict which they perceive in respect of TCL. He also refers to arrangements which have been reached for future co-operation between the Current Receivers and the Liquidators, if the Liquidators are appointed as special purpose receivers of BSL's rights and entitlements in respect of the relevant proceedings, to address and minimise the risk of wasted costs arising from this development.
12. I should pause to note that, while Mr Sloan's affidavit describes the difficulty as a "commercial conflict", it may be that the difficulty extends a little further. At the least, there may be an appearance of lack of independence, which is of course distinct from an actual lack of independence, if the Current Receivers were now to be involved in steps which involved prosecuting claims against their appointor, with which they have dealt for a considerable period or, for example, negotiating resolutions of the proceedings, in circumstances that all parties' claims, including claims by and against TCL, might well need to be addressed in any such resolution. That may perhaps be described as a commercial conflict; it may perhaps be described as a potential conflict of interest, as distinct from an actual conflict of interest; or it may be described as a threat to independence, so far as the Current Receivers are insolvency practitioners. Whatever description is given to the position, it seems to me that the Current Receivers are correct to identify that there is a difficulty with their present role, and that that difficulty warrants an application of the kind that is now brought, notwithstanding that all parties recognise that there may be costs incurred in the steps that are proposed.
13. Returning now to the substance of the applications, TCL seeks an order under s 283HB(1)(d) of the Corporations Act that the Liquidators be appointed as joint and several receivers of the property of BCL defined in a schedule to the orders, being, as I noted above, the rights and entitlements of BSL in respect of the two Victorian proceedings, but excluding the proceedings which have been brought by the Liquidators. Section 283HB(1)(d) of the Corporations Act permits the Court to appoint a receiver of property constituting security for a debenture, if the trustee applies to the Court. I am satisfied, having regard to the trust deed to which BSL and TCL are party, that the mortgaged property, as there defined, includes, relevantly, all rights of BSL whatsoever, both present and future, and includes its rights and entitlements which are the subject of the Victorian proceedings. In those circumstances, I am satisfied that jurisdiction is available for the appointment of receivers under s 283HB(1)(d) of the Corporations Act. I am also satisfied that, given the issues as to conflict or as to independence of the Current Receivers to which I have referred, it is proper to make an order under that section for the appointment of the Liquidators as, in effect, special purpose receivers of BSL's rights and entitlements at issue in the current proceedings.
14. In expressing that view, I have had regard to the fact the Liquidators are the obvious persons who should be appointed to that role, given their familiarity with the relevant proceedings, and the fact that they would already be familiar with many of the relevant facts, by reason of the proceedings they have commenced against TCL. While costs will no doubt be incurred in a transition, they will be minimised by appointing the Liquidators as special purpose receivers, rather than persons who are not familiar with the existing proceedings, and by the co-operation arrangement which the parties have proposed.
15. The second and third orders sought by TCL in turn seek to confirm the scope of the appointment, both as to the matters for which the Liquidators will be responsible, and as to matters for which Current Receivers will have, and not have, continuing responsibility after the appointment of the Liquidators as special purpose receivers in respect of the rights and entitlements in the Victorian proceedings. Each of those orders seems to me to be appropriate.
16. The fourth order is an order under s 532(2) of the Corporations Act permitting the Liquidators to continue to act as the liquidators of BSL, notwithstanding their appointment by the Court as special purpose receivers of the relevant property. That section provides that a person must not, except with the leave of the Court, act as liquidator in specified circumstances, including where that person occupies other offices, one of which is as an officer of a body corporate, or where that person is a creditor of the company in an amount exceeding $5,000. Each of those provisions may apply, in the present case. I am satisfied that leave would properly be granted to the Liquidators under that section, where it appears that there is no conflict between the roles which they will be asked to perform, as liquidators of BCS and in pursuing and defending claims by and against it as special purpose receivers, and where that course has the practical advantages to which I have referred above.
17. An order was sought under s 418A of the Corporations Act to the effect that the appointment of the Liquidators as receivers would be valid notwithstanding s 418(1)(f) of the Act, which restricts the circumstances in which, inter alia, a senior manager of a corporation may be appointed as receiver. It seems to me that the Court does not have jurisdiction to make that order under s 418A of the Act, which is directed to a declaration as to a particular position, and does not confer a discretionary dispensation power on the Court. Section 418(1)(f) of the Act contemplates that ASIC may direct in writing that the paragraph does not apply. It may be that ASIC will take the view that it ought to so direct, in order to promote the advantages to which I have referred above, in respect of the conduct of the proceedings. Since the Court does not have power to make an order in that respect, the Liquidators now propose to approach ASIC in respect of that question, and the making of orders will be deferred until that issue is clarified.
18. Next, an order is sought that the Liquidators, in their capacity as special purpose receivers to the relevant property, be allowed such remuneration and expenses as may be fixed by the Court or Supreme Court in Victoria. I am satisfied that that order is justified, and no party contended to the contrary. It is necessary, as Mr Coles pointed out, in order to secure a right to remuneration to the newly appointed receivers, which would otherwise not necessarily be available, without a specific order for it.
19. An order is sought that TCL's costs, as remuneration and expenses of the application be costs incurred under the trust deed and paid in accordance with its terms. It does not seem to me that such an order is necessary or appropriate, since it seems to me to be simply a restatement of a consequence that either does or does not follow from the terms of the trust deed. I have not been taken to the relevant provisions of the trust deed and do not consider I should express a view as to their application in the present circumstances. If they authorise the payment of these costs and expenses, in accordance with their terms, then no further order from the Court is necessary.
20. Next, an order is sought that TCL is justified in seeking the appointment of the Liquidators as joint and several receivers. I do not consider that it is appropriate to make such an order at this point, although I will express the reasons for that course briefly, given the urgency of the application. The Court's power to make such an order, in respect of a trustee, arises under s 63 of the Trustee Act 1925 (NSW) which is directed to resolving legitimate doubts held by a trustee as to the proper course of action in protecting the trust and those involved: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [70]-[71]. Generally, an order will not be made under that section where a question involves disputed facts, and an order under that section will be made on the basis of assumed facts, such that it only protects the trustee if the matters drawn to the Court's attention reflect the true factual position. The Court has traditionally had a degree of reluctance in granting directions under s 63 of the Trustee Act and corresponding provisions, such as ss 477 and 511 of the Corporations Act as to questions of commercial judgment, although it may be that reluctance is less in present times than it used to be and the Court may be more inclined to make such a direction where there is a significant risk of legal dispute.
21. In the present case, it seems to me that the difficulty with the direction sought is that both the factual matters which are sought to be addressed by it, and the uncertainty that is sought to be addressed by it, are unclear. It might perhaps be suggested that TCL should have sought such an appointment earlier. It might perhaps be suggested that it should have sought such an appointment later or not at all. No one has presently made such a suggestion, and no one has opposed the application brought by TCL in this application. My judgment indicates that the order sought by TCL should be made on it merits. It seems to me that a direction under s 63 of the Trustee Act is either unnecessary because there is no present doubt as to which the trustee requires such a direction, or inappropriate because that doubt has not been exposed in a way that allows me to make a direction that would properly make clear the factual circumstances in which it did or did not have effect to protect the trustee.
22. Next, an order was sought in paragraph 10 of TCL's proposed orders, as to which there was some debate, providing for the manner in which any application by the Liquidators, in their capacity as special purpose receivers, for remuneration would be undertaken. Mr Scerri made clear that the Liquidators did not press for such an order to be made at this point. Mr Coles promoted this order on the basis that it was desirable that the receivers' remuneration would be subject to supervision. It seems to me that an order in the detail of paragraph 10 is not necessary for that purpose, because paragraph 6 of the orders sought by TCL already makes clear that the special purpose receivers' remuneration will be subject to supervision, so far as it will be fixed by this Court or the Supreme Court of Victoria.
23. I should note that paragraph 10 seems to set out sensible steps which the Liquidators might well take in any application for remuneration, whether or not an order is made requiring them to do so. Having said that, it does not seem to me necessary that I now make detailed directions as to, for example, what is to be dealt with by an affidavit in support of such an application and how it may be served. It also seems to me to be presumptuous for me to do so so far as the orders contemplate that such an application may be brought in the Supreme Court of Victoria in any event. It seems to me that the preferable course is for me to assume the Liquidators will act sensibly as to what is contained in such affidavit and how it is to be served. Any difficulties that arise in that regard can readily be dealt with by this Court or the Supreme Court of Victoria, whichever is dealing with such an application.
24. Further orders are sought in paragraphs 11 and 12 which would be consequential upon the order for appointment of the Liquidators as special purpose receivers if such an order is made.
25. In summary, I would therefore be prepared to make the primary order sought by TCL, in respect of the appointment of the Liquidators as special purpose receivers of the relevant rights and entitlements, and several of the consequential orders which it had sought as I have noted above. The making of those orders should be deferred both for the Liquidators to seek any necessary consent to their appointment from the Australian Securities and Investments Commission and for Mr Bolitho to make any further submissions in that respect.
26. I should note that Mr Scerri, who appeared for the Liquidators, had indicated, as I noted above, that the Liquidators' preference would have been that this application had been brought in the Supreme Court of Victoria, although the Liquidators did not see any difficulty with this Court determining the matter, once the application was brought in this Court. The Liquidators also indicated that a further application may be brought by them, in the Supreme Court of Victoria, seeking their appointment as special purpose receivers in respect of the proceedings brought by them as liquidators of BSL. I do not presently fully understand the subtleties involved in an order by which those who are conducting proceedings, as liquidators, are appointed as receivers of the cause of action which they bring, but I need not understand that matter since that application is not brought in this Court. I should make clear, however, that it seems to me open to the Liquidators to bring such an application in the Supreme Court of Victoria, and there was no reason in the circumstances why any such application had to be brought in this application, or this application delayed in order for such an application to be added to it. I also do not consider there is any reason of logic or otherwise which requires that this application now be brought in this Court, rather than in the Supreme Court of Victoria which is dealing with the other proceedings, by reason of any matters which I have dealt with in this Judgment. This Judgment can no doubt be brought to the attention of the Supreme Court of Victoria to the extent it might be relevant to any application made in that Court.
27. Finally, the Current Receivers sought two other orders, which I will deal with briefly, without any disrespect to them. The first order was a direction that the Current Receivers were justified in applying to the Court under s 424 of the Corporations Act for directions and obtaining the relief sought in paragraphs 2 and 4 of their Originating Process. It may be that little ultimately turns on such direction since it was not necessary for the Current Receivers to press that application. It may well be that this judgment indicates that there was merit in that application. However, for the reasons I have indicated in respect of TCL's similar application, I do not consider I should make such a direction, either because there is no identified controversy as to the issue, or, if there is such a controversy, it has not been exposed in a way that would allow the Court fairly to make a direction about it.
28. Next, the Current Receivers seek a direction that they were justified in paying an amount to the Liquidators, in their capacity as liquidators, in respect of fees and disbursements. It seems to me that the preferable course, both where orders are not to be taken out at this time and where that matter has been dealt with only briefly in submissions, and TCL opposed it being dealt with, is to defer that application, with liberty to the Current Receivers to renew it if they seek to do so. I should indicate, however, as a matter of first impression, that this application may well have much the same difficulties as the directions sought by TCL under s 63 of the Trustee Act and the Current Receivers under s 424 of the Corporations Act, so far as there is either no identified controversy as to that payment, or the nature of any such controversy has presently not been deposed to as to allow the Court sensibly to make a direction in respect of the merits of any party's position in it.
29. In this matter I make the following orders:
30. Reserve liberty to Mr Bolitho to bring any application, in respect of the matters dealt with in the judgment of Black J, including any application to vary or withdraw any aspect of that judgment, within seven days.
31. Reserve liberty to the parties to apply.
32. Reserve liberty to the parties to bring in agreed Short Minutes of Order to give effect to this judgment or, if there is no agreement between them, to advise the Associate to Black J of the need for a relisting of the matter.
33. Exhibits to be returned.

Amendments 24 September 2015 - Removed certification at end of judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2015