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[2010] FCA 1087
Federal Court of Australia
2010-10-05
McKerracher J
Original judgment source is linked above.
GENERAL DIVISION WAD 15 of 2010
IN THE MATTER OF THE GRIFFIN COAL MINING COMPANY LIMITED (ADMINISTRATORS APPOINTED) (ACN 008 667 285), GRIFFIN ENERGY GROUP PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 681 696), CARPENTER MINE MANAGEMENT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 106 053 703), W.R. CARPENTER HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 401 796), CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 122 080 684) AND W.R. CARPENTER AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 032 315) BETWEEN: MARK FRANCIS XAVIER MENTHA, CLIFFORD STUART ROCKE, SCOTT BRADLEY KERSHAW, BRIAN KEITH MCMASTER IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF THE GRIFFIN COAL MINING COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 667 285)
CLIFFORD STUART ROCKE, SCOTT BRADLEY KERSHAW AND BRIAN KEITH MCMASTER IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF GRIFFIN ENERGY GROUP PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 681 696), CARPENTER MINE MANAGEMENT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 106 053 703), W.R. CARPENTER HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED), (ACN 008 401 796), CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 122 080 684) AND W.R. CARPENTER AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 032 315)
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GENERAL DIVISION WAD 15 of 2010
IN THE MATTER OF THE GRIFFIN COAL MINING COMPANY LIMITED (ADMINISTRATORS APPOINTED) (ACN 008 667 285), GRIFFIN ENERGY GROUP PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 681 696), CARPENTER MINE MANAGEMENT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 106 053 703), W.R. CARPENTER HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 401 796), CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 122 080 684) AND W.R. CARPENTER AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 032 315) BETWEEN: MARK FRANCIS XAVIER MENTHA, CLIFFORD STUART ROCKE, SCOTT BRADLEY KERSHAW, BRIAN KEITH MCMASTER IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF THE GRIFFIN COAL MINING COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 667 285)
CLIFFORD STUART ROCKE, SCOTT BRADLEY KERSHAW AND BRIAN KEITH MCMASTER IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF GRIFFIN ENERGY GROUP PTY LTD (ADMINISTRATORS APPOINTED) (ACN 008 681 696), CARPENTER MINE MANAGEMENT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 106 053 703), W.R. CARPENTER HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED), (ACN 008 401 796), CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 122 080 684) AND W.R. CARPENTER AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 032 315)
INTRODUCTION 1 On 17 September 2010, I indicated I would provide short reasons for the orders then made. Those orders appear at the end of these reasons.
BACKGROUND 2 On 3 January 2010, the first plaintiffs were appointed as the joint and several administrators of The Griffin Coal Mining Company Pty Ltd (Administrators Appointed) (Griffin Coal) and the second plaintiffs were appointed as the joint and several administrators of Griffin Energy Group Pty Ltd (Administrators Appointed) (Griffin Energy), Carpenter Mine Management Pty Ltd (Administrators Appointed) (CMM), W. R. Carpenter Holdings Pty Ltd(Administrators Appointed) (WR Carpenter) and Carpenter Mine Management Holdings Pty Ltd (Administrators Appointed) (CMMH). On 21 January 2010, the second plaintiffs were appointed as the joint and several administrators of W. R. Carpenter Australia Pty Ltd (Administrators Appointed) (WR Carpenter Australia) (together, the Companies). 3 By originating process filed on 27 January 2010 the first and second plaintiffs (the Administrators) sought an extension of the convening periods in respect of the Companies until midnight on 1 May 2010 (the First Application) for the reasons set out in the affidavit of Mr Brian Keith McMaster affirmed on 27 January 2010 (the First McMaster Affidavit). In essence, the extension was sought given the complex nature of the structure and business of the Companies and to enable a sale or recapitalisation process to be initiated while preserving the potential for a deed or deeds of company arrangement to be a feature of any sale or recapitalisation. 4 On 28 January 2010, I made orders pursuant to section 439A(6) of the Corporations Act 2001 (Cth) (CA) relevantly extending the convening period for the meeting of creditors of each of the Companies required to be held pursuant to s 439A CA until midnight on 1 May 2010 (the First Orders). 5 On 20 April 2010, the Administrators sought a further extension of the convening periods in respect of the Companies until midnight 28 September 2010 (Second Application) for the reasons articulated in the affidavit of Brian Keith McMaster affirmed on 20 April 2010 (the Second McMaster Affidavit). The further extension was sought to enable the Administrators to progress the possible sale and recapitalisation of the Companies or their businesses as a going concern and to substantially progress their investigations into the Companies' affairs. 6 On 21 April 2010 I made orders pursuant to s 447A(1) granting an extension of the convening period of the each of the Companies required to be held pursuant to 439A of the Act until midnight 28 September 2010 (Second Orders). 7 To appreciate a full understating of the task facing the Administrators, a reading of these short reasons should be accompanied by reading those supporting the First Orders (see Mentha, in the matter of The Griffin Coal Mining Company Pty Ltd (administrators appointed) (ACN 008 667 285) [2010] FCA 30) (Mentha No 1) and the Second Orders(see Mentha, in the matter of The Griffin Coal Mining Company Pty Ltd (administrators appointed) (ACN 008 667 285)(No 2) [2010] FCA 499) (Mentha No 2). 8 Relevantly, s 439A CA provides: 439A Administrator to convene meeting and inform creditors (1) The administrator of a company under administration must convene a meeting of the company's creditors within the convening period as fixed by subsection (5) or extended under subsection (6). (2) The meeting must be held within 5 business days before, or within 5 business days after, the end of the convening period. ... (4) The notice given to a creditor under paragraph (3)(a) must be accompanied by a copy of: (a) a report by the administrator about the company's business, property, affairs and financial circumstances; and (b) a statement setting out the administrator's opinion about each of the following matters: (i) whether it would be in the creditors' interests for the company to execute a deed of company arrangement; (ii) whether it would be in the creditors' interests for the administration to end; (iii) whether it would be in the creditors' interests for the company to be wound up; and also setting out: (iv) his or her reasons for those opinions; and (v) such other information known to the administrator as will enable the creditors to make an informed decision about each matter covered by subparagraph (i), (ii) or (iii); and (c) if a deed of company arrangement is proposed - a statement setting out details of the proposed deed. (5) The convening period is: (a) if the day after the administration begins is in December, or is less than 25 business days before Good Friday - the period of 25 business days beginning on: (i) that day; or (ii) if that day is not a business day - the next business day; or (b) otherwise - the period of 20 business days beginning on: (i) the day after the administration begins; or (ii) if that day is not a business day - the next business day. (6) The Court may extend the convening period on an application made during or after the period referred to in paragraph (5)(a) or (b), as the case requires. … 9 At the time the Second Orders were made it was anticipated that an application for a further extension may be made.
APPLICATION FOR A FURTHER EXTENSION OF THE CONVENING PERIODS 10 By interlocutory process filed on 16 September 2010 the Administrators sought a further extension of the convening periods in respect of each of the Companies of up to 150 days, that is, until midnight 25 February 2011. The Administrators relied on the further affidavit of Mr Brian Keith McMaster affirmed on 16 September 2010 (the Third McMaster Affidavit). 11 These reasons rely on the content of the affidavits of Mr McMaster and the submissions of the Administrators. 12 As explained in the Third McMaster Affidavit at paragraphs 37 to 44, the Administrators sought the further extension to enable them to continue to trade the Companies' business and to complete a sale and recapitalisation process that is presently being conducted in relation to that business. 13 The Administrators stated that the convening and holding of the second meeting of creditors in respect of each of the Companies in accordance with the timetable prescribed by the Second Orders would be of limited utility to the creditors of the Companies. This was based on: (a) the Administrators' opinion that it was and is in creditors' best interests that the Companies continue to trade, with a view to realising the maximum value for the Companies' business and assets as a going concern; (b) the consequential desirability of a competitive sale process in relation to the Companies, their businesses and assets, and the time needed to properly conduct such a process given the nature and value of the assets involved; (c) the work and the time needed to complete the possible recapitalisation or sale of the Companies or their businesses; (d) the likelihood that a deed or deeds of company arrangement proposal will be an important feature of the sale process, and that the availability of the option of deeds of company arrangement ought to be preserved pending responses from potential bidders. 14 Mr McMaster has deposed that it was also critical for the continued operation of the business of the Companies and the maximisation of the value on a sale that the Administrators continue to have the benefit of the statutory moratoria and other structural features of Pt 5.3A, and therefore desirable that the administrations continue. For example, most (if not all) mining equipment used by Griffin Coal is leased, and if the Administrators were to lose the benefit of the s 440C moratorium, it is likely that this would have a substantial impact on the operations of Griffin Coal. Section 440C of the Act provides: 440C Owner or lessor cannot recover property used by company During the administration of a company, the owner or lessor of property that is used or occupied by, or is in the possession of, the company cannot take possession of the property or otherwise recover it, except: (a) with the administrator's written consent; or (b) with the leave of the Court. 15 The steps taken in the administrations of the Companies since the Second Orders were made have been explained as including: (a) substantially progressing the potential recapitalisation or sale of the Companies or their assets, including preparing the data room materials, undertaking modelling and cashflows, planning for the implementation of the sale process, finalising the terms of engagement of certain investment banks, and preparing vendor due diligence materials; (b) progressing the sale of the Emu Downs wind farm; (c) dealing with approaches from interested parties in relation to the recapitalisation or sale of the Companies or their assets; (d) continuing to operate the business of the Companies and dealing with day to day operational issues including retention of title suppliers, finance lease suppliers and insurers and liaison with employees and their union representatives; (e) meeting with Company management; (f) continuing to liaise with creditors including committees of creditors, bondholder creditors, secured creditors, lease creditors and retention of title claimants; (g) resolving litigation commenced by Griffin Coal in the Administrative Appeals Tribunal against the Deputy Commissioner of Taxation in relation to the 2003 tax assessment; (h) instructing lawyers to deal with various legal matters involving the Companies; (i) substantially progressing an investigation into the Companies' business, property affairs and financial circumstances, with particular reference to the cash-flow and the trading position of the Companies in the period leading up to the Administrators' appointment, and potential recovery actions that might be available to a liquidator of the Companies in respect of voidable transactions, breaches of directors' duties and related party transactions; (j) preparing, lodging and progressing various applications with the WA Department of Mines and Petroleum in connection with a number of exploration licenses held by Griffin Coal. (k) communicating with the Environment Protection Authority in relation to environmental approvals issued to Griffin Coal; (l) discussing with the Fremantle Port Authority ongoing access by Griffin Coal to the Kwinana Bulk Terminal; (m) continuing to negotiate a coal supply agreement with Perdaman Chemicals and Fertilisers Pty Ltd; (n) having discussions with the WA Government to keep them informed of developments in relation to the administrations of the Companies; (o) preparing a combined draft Report to Creditors of Griffin Coal and CMM. (p) negotiating the provision of working capital funding from some of Griffin Coal's bondholder creditors to enable the Administrators to continue to operate the businesses of the Companies and preserve value for stakeholders. This included making an application to the Federal Court to obtain orders which were a condition precedent to that funding becoming effective, and involves regular reporting to the relevant bondholder creditors. (q) attending to the sale of the properties subject to St George Bank security; (r) preparing and lodging 6 monthly accounts with ASIC. 16 The dealings with creditors subsequent to the Second Orders have included the following. 17 A Report to Creditors was despatched by the Administrators on 16 April 2010 to all creditors of the Companies (April Report). 18 Since the April Report the Administrators have been preparing a Draft Report dealing on a combined basis with each of Griffin Coal and CMM. The report covers a substantial amount of the content required by s 439A(4) of the Act. In particular it deals extensively with the work done by the Administrators to date, the relevant histories of the Companies, and the outcome of the Administrators' investigations. The Draft Report does not deal with all matters required by s 439A(4), as it is too early for any deed or deeds of company arrangement that the Administrators anticipate will be required by some or all of the bids received pursuant to the sale process to have been proposed. 19 Since the Second Orders, the Administrators have held meetings of the Committees of Creditors as follows: (a) of the Griffin Coal Committee on 4 May 2010; (b) of the Griffin Coal and CMM Committees on 11 June 2010; (c) of the Griffin Coal, CMM, CMMH, GEG and WR Carpenter Committees on 29 June 2010; (d) of the Griffin Coal Committee on 27 July 2010; and, (e) of the Griffin Coal Committee on 2 September 2010. 20 The Administrators have held conference calls with representatives of bondholder creditors on 23 March 2010 and 10 August 2010. All known bondholders were invited to participate in those calls. In addition, the Administrators held presentations on 14 May 2010 and 17 May 2010 in Honk Kong and New York to bondholders and noteholders, all of whom were invited to attend. 21 An update as to the position taken by secured creditors since the Second Orders was also deposed to. That detail does not need to be set out in these reasons. 22 In relation to the timing of the sale and recapitalisation process, the Administrators have engaged UBS and Macquarie Capital Advisers (the Advisers) to jointly advise in respect of the sale process. The Advisers have prepared an indicative timetable for the planning and implementation of the sale process which indicates that final bids with executable transaction documents will be received by 5 November 2010, and it will be at this stage that it will become appropriate for the final successful bid to be put to the Companies' creditors at meetings convened for the purposes of section 439A of the Act. The Administrators noted that an extension of the convening periods until 25 February 2011 would permit completion of any sale or sales, including if a deed of company arrangement is required.
ATTITUDE OF THE CREDITORS OF THE COMPANIES TO THE PROPOSED FURTHER EXTENSION 23 On 8 September 2010, the Administrators caused a staff member to email a circular to members of the Committees of Creditors for each of Griffin Coal, CMM, CMMH, and Griffin Energy seeking the consent of the members of each committee to the Further Application and requesting a response by close of business on 13 September 2010 (the Circular). 24 All of the members of the Committees of Creditors who responded to the Circular consented to the Administrators seeking a further extension of the convening period for up to a further 150 days. 25 All Creditors on the WR Carpenter Committee have resigned. There are just three known creditors of WR Carpenter Australia and two known creditors of WR Carpenter. There was no evidence that those creditors opposed a further extension of the convening period up to 150 days.
EFFECT ON THE COMPANIES' CREDITORS OF ADMINISTRATIONS CONTINUING 26 The Administrators confirmed they are conscious of the impact that the statutory moratoria provided by Pt 5.3A of the Act will have on the Companies' creditors however, they remain of the view that the further extension of the convening period will not unduly prejudice the Companies' creditors. 27 All creditors of the Companies (including secured creditors) have been notified of the application for extension of the convening period by way of communications sent by the Administrators on 14 September 2010. 28 The Companies have several remaining secured creditors whose security is not such as would otherwise enable them to enforce their security during the Companies' administrations. The Administrators have not received a response from the secured creditors in relation to the present application. 29 The Administrators are continuing to cause Griffin Coal and CMM to pay each of the lessor creditors of those Companies in the ordinary course of applicable trading terms for all lease payments relevant to the period of the administrations. 30 None of the lessor creditors has expressed any opposition to the further convening period extension being sought by the Administrators. 31 Griffin Energy, WR Carpenter, CMMH and WR Carpenter Australia do not have any owner/lessor creditors. 32 Negotiations with retention of title claimants have concluded, with the Administrators either purchasing the relevant goods or having returned those goods to the supplier. None of the parties asserting 'retention of title' claims has expressed any opposition to the further extension of the convening period for the administrations of Griffin Coal and CMM. 33 Griffin Energy, WR Carpenter, CMMH and WR Carpenter Australia do not have any counterparties who have asserted 'retention of title' claims. 34 The Administrators are continuing to cause Griffin Coal and CMM to pay those Companies' trade and employee creditors in the ordinary course of applicable trading or employment terms for all goods supplied or services rendered during the period of the administrations. The Administrators consider that, from internally generated cash flows, possibly with the assistance of a third party working capital facility, those payments will continue to be made during the administration of the Companies. 35 Significantly, none of the trade or employee creditors of Griffin Coal or CMM has expressed any opposition to the further convening period extension being sought by the Administrators. 36 Griffin Energy, WR Carpenter, CMMH and WR Carpenter Australia each do not have any trade or employee creditors. 37 Royalty payments are periodically payable to the WA government in connection with the Western Australian mining tenements held by Griffin Coal. All such royalty payments due up until 31 July 2010 have been paid in full by the Administrators. 38 From the Administrators' investigations to date, their appointment has not resulted in any litigation involving the Company being stayed or otherwise postponed which ought otherwise proceed in the interests of protecting either the Companies' assets or the rights of the other party to that litigation (including having regard to the operation of s 451D of the Act in respect of limitation that might apply). 39 Similarly, the Administrators' investigations to date have not revealed any potential claims held by any of the Companies that should be urgently commenced by a liquidator appointed to the Companies in order to preserve the potential fruits of that litigation.
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION 40 The Australian Securities and Investments Commission (ASIC) was provided with notice of this application. At the time of the hearing it had not indicated whether it would seek to intervene in the proceedings, although there was no evidence that it opposed the application. I note that a copy of the orders made on 17 September 2010 were delivered to ASIC and that it has liberty to apply on 48 hours notice should it wish to do so. It has not sought to intervene.
POWER TO GRANT A FURTHER EXTENSION OF THE CONVENING PERIOD 41 Prior to amendments to the Act that commenced their operation on 31 December 2007, section 439A did not extend to authorising a further extension under s 439A(6) of the Act: Henry Walker Eltin Group Ltd, Re (2005) 54 ACSR 383 (per Hely J at [1]), and Chamberlain, Re; South Wagga Sports and Bowling Club Ltd (admin apptd) [2009] FCA 25 (per Jacobson J at [2]). 42 Jacobson J in Chamberlain held that the power to grant a subsequent extension of the convening period exists in s 447A(1) of the Act which empowers the Court to 'make such order as it thinks appropriate about how [Part 5.3A] is to operate in relation to a particular company': see also Lombe, Re; Australian Discount Retail Pty Ltd [2009] NSWSC 110 (at [32] per Barrett J).
ANALYSIS 43 The relevant legal principles applicable to an application to extend the convening period were largely summarised Mentha No 1 (at [15]-[22]) and Mentha 2 (at [39]- [41]). I will not repeat them all. 44 However, one presently relevant principle is that the statutory period within which to convene a second creditors meeting was fixed by the legislature to cover companies of all sizes, in straightforward and difficult situations. Hence, there is no presumption against an extension of time being granted, so long as the complexity of an administration (supported by admissible evidence) warrants it in order to enable administrators to properly carry out their functions: Re Riviera Group (2009) 72 ACSR 352 at 354-357, [8]-[18]. 45 Where an extension of the statutory period is sought, it is appropriate that, from time to time, the administrators should be required to inform the Court of what as occurred during an extension period. That is so the Court may ensure that an extension continues to be justified and to maintain a supervisory role. However, where (as here) it has always been anticipated that a number of extensions will be required in order to properly deal with the affairs of companies under administrations, in the absence of valid opposition and providing valuable progress is being made in the administration, the extension should be granted for a period necessary to ensure the statutory objects may best be achieved. 46 There are recent instances in which the Court has granted a further extension of the convening period, in circumstances similar to the present, involving complex sale processes of substantial assets. See Re ABC Learning Centres Ltd (No 7) [2009] FCA 454 and Re ABC Learning Centres Ltd (No 8) [2009] FCA 994, Re Windimurra Vanadium Ltd and Midwest Vanadium Pty Ltd [2009] WASC 71; Re Windimurra Vanadium Ltd and Midwest Vanadium Pty Ltd (No 2) [2009] WASC 182; Re Windimurra Vanadium Ltd and Midwest Vanadium Pty Ltd (No 3) [2009] WASC 203 and Re Windimurra Vanadium Ltd and Midwest Vanadium Pty Ltd (No 4) [2009] WASC 373. 47 For the reasons relied upon by the Administrators in support of this application for a further extension and as set out above, (particularly at [16] to [40]), the extension sought is appropriate, as is the reservation of liberty to apply. 48 For those reasons I ordered as follows:
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
[2009] WASC 71
[2009] WASC 182
[2009] WASC 203
[2009] WASC 373