Miller Street Pty Ltd v Porter

REASONS FOR JUDGMENT 1 This is an application under s 482 of the Corporations Act 2001 (Cth) ("the Act") for an order terminating the winding up of Taycorp Three Pty Ltd ("the Company"). It is made in unusual circumstances and raises a number of questions as to the exercise of the discretion to make the order sought. 2 The plaintiff in the originating process is Miller Street Pty Ltd ("Miller St"), which is now the trustee for the Tayles Discretionary Trust No 3. However, the application shows that the applicant for the order under s 482 is Mr Ian Tayles. Mr Tayles has filed an affidavit in support of the application. He is the sole director and sole shareholder of Miller Street and of the Company. He is, therefore, a contributory of the company and has standing to bring the application. It may be that the form of the originating process is defective, but it is sufficiently plain that Mr Tayles is the applicant for the order, and I am prepared to disregard any defects in the form of the process. 3 The Company was wound up seven years ago on 27 August 2004. It was wound up in insolvency on an application made by the Chief Commissioner of State Revenue for a debt of slightly in excess of $69,000 for unpaid land tax. The winding up order was made upon the basis of presumed insolvency because of an unsatisfied statutory demand said to have been served on the company by Mr Brian Leslie Carter. Mr Carter swore an affidavit of service which formed part of the evidence relied upon when the winding up order was made. 4 However, in the present application, Mr Tayles claims, in effect, that Mr Carter's affidavit was a false affidavit because the company was not served with the statutory demand. He explains the reasons why this is so in his affidavit of 25 July 2011. Shortly after the winding up order was made, Mr Tayles made payment of the full amount of the debt due to the Office of State Revenue. He did so on 1 September 2004, although the company engaged a solicitor on that date to seek, inter alia, an order setting aside the winding up order no such application was then made. 5 Rather than seeking an order setting aside the winding up, the Company set about negotiating with the liquidator, Mr Richard James Porter, for him to retire as liquidator of the company. The negotiations appear to have been conducted on behalf of the Company by a barrister who seems to have been engaged by the Company's solicitors. A critical part of the negotiations involved the retirement of the Company as trustee of the Tayles Discretionary Trust and the appointment of Miller Street as the new trustee. 6 There was a complexity in the negotiations because the Company, as trustee of the Tayles Discretionary Trust, owned a valuable commercial property which it had purchased in 1996 for $2 million. The property was thought to be worth far in excess of that amount at the time of the winding up order, but it was subject to a mortgage of $1.5 million to the Commonwealth Bank of Australia ("CBA"). The property also secured other borrowings from the CBA which were obtained by the company in its capacity as trustee of the Tayles Discretionary Trust. The CBA was apparently prepared to give the necessary consents for the property to be transferred to the new trustee, but it charged penalty interest while the liquidator remained in office. 7 The complexity of the situation did not stop there. Difficulties ensued with the liquidator about various aspects of the proposal. The liquidator advertised for creditors and two persons claimed to be owed money, but their proofs of debt were ultimately rejected by the liquidator. No appeals were taken against the liquidator's rejection of the proofs of debt. 8 On 31 August 2005 Miller Street filed an application in the Victorian Registry of the Federal Court. The application was made under s 1321 of the Act. The application sought an order that the defendant in the proceeding, who was the liquidator of Taycorp, caused the Company to transfer to Miller Street land and money held by the liquidator on behalf of the Company which land and money was said to form part of the assets of the Tayles Discretionary Trust Number 3 of which Miller Street was then the trustee. The application was heard by Finkelstein J in September 2007. 9 By that time it appears that the legal title to the property had been transferred to Miller Street and his Honour dealt only with a claim against the liquidator for compensation for failure to properly discharge his duties. Finkelstein J was satisfied that the liquidator failed in his duties and ordered to him to pay Miller Street compensation of slightly in excess of $29,000 for failure to make the trust property (that is to say the commercial property) productive: see Miller Street Pty Ltd v Porter [2007] FCA 1830. The compensation consisted of an amount equal to the loss of two months rent. Appeals against Finkelstein Js orders were dismissed on 14 May 2008: Porter v Miller Street Pty Ltd [2008] FCAFC 77. 10 By May 2009 the liquidator was still in office. On 19 May 2009 the liquidator filed an application seeking determination of his remuneration. There seems to have been some delay in the presentation of the application, and it was finally settled on 8 June 2011. 11 In the meantime, on 14 March 2010, Miller Street filed the present application for an order terminating the winding up. The hearing of that application seems to have been delayed as a result of the need to determine the quantum of the liquidator's remuneration agreement as to that matter and payment of the remuneration are, of course, some of the usual prerequisites for an order setting aside or terminating a winding up. The liquidator does not oppose the termination of the winding up, and as I've said earlier, the petitioning creditor has been paid. 12 There is evidence to satisfy me that there are no creditors, and it appears that the Company is no more than a shell company, that is to say it has no assets and no liabilities. Mr Tayles' affidavit in support of the present application concludes with the following three paragraphs: 49. I beg this Court to terminate the winding up of Taycorp in order that it may pursue claims for damages against Carter and its former advisors. 50. Losses sustained by myself, Taycorp and Miller Street from Taycorp being placed in liquidation exceeded $500,000. 51. Miller Street as trustee of the Trust has substantial assets. As director of both Taycorp and Miller Street I will ensure sufficient funds are made available to Taycorp for it to pursue these claims and maintain the solbency of Taycorp. 13 There is no other evidence in support of the application, other than a formal affidavit of service of the notice of the application on the Australian Securities and Investments Commission ("ASIC"). 14 The affidavit discloses that the relevant material was only served on ASIC yesterday. A question arises as to whether the provisions of Rule 2.8(3) of the Federal Court (Corporations) Rules 2000 (Cth) are satisfied. However for reasons which I will explain below I do not need to consider that question. 15 The essential question which arises in the application is whether I ought to exercise my discretion to terminate the winding up of a company seven years after the order was made in circumstances in which the company is now a shell with no assets and no creditors. 16 The essential reason why the Company or Mr Tayles wishes to have the liquidation terminated is that it claims to have contingent assets, namely a chose in action consisting of rights of action against Mr Carter and the former advisers of the Company. 17 The jurisdiction to terminate a winding up is discretionary. The court usually has regard to a range of factors known as the "Warbler factors" because they are based upon a decision of Master Lee in Re Warbler (1982) 6 ACLR 526. However, as Santow J observed in Dubolo Pty Ltd v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723, the factors are not to be rigidly applied. 18 Barrett J stated in Metledge v Bambakit Pty Ltd [2005] NSWSC 160 at [5] ("Metledge") that the so-called Warbler factors provide useful guidance in the exercise of the court's discretion. Barrett J set out the eight Warbler factors at paragraph eight of his reasons for judgment in Metledge. The factors which are of particular relevance to the present application are the first, fourth, fifth, seventh, and eighth factors. 19 The first factor is that the granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay. In my view, no such positive case has been established. Mr Justice, who appears for Mr Tayles, submits that a positive case has been established upon the basis which he summarised in his submissions. 20 The effect of his summary of the nature of the positive case is that the liquidation is almost complete, there are no creditors of the company and there are no assets other than a contingent asset in the form of the rights of action against Mr Carter and the former solicitors. 21 Mr Justice also relies on the fact that there is no opposition to the order from the liquidator and there is evidence from Mr Tayles that either he or Miller Street will provide financial accommodation to the company to meet the claims of any future creditors. Those persons are likely to be solicitors and others who are retained to pursue the proposed litigation. 22 I am not satisfied that this is a sufficient basis to support a winding up for the following three reasons. First, and most importantly, the company does not propose to trade and there is also no evidence to satisfy me as to the value of the asserted rights of action. In particular there is no evidence as to whether any such rights of action have what may be described as real or arguable prospects of success. The alleged claim against Mr Carter is based inter alia on s 52 of the former Trade Practices Act 1974 (Cth) or its successor provision, s 18 of sch 2 of the Competition and Consumer Act 2010 (Cth). 23 However Mr Justice was unable to point to any authority to satisfy me, at least on an arguable basis, that the swearing of a false affidavit is conduct in trade or commerce. In my view, I am unpersuaded that the relevant conduct was undertaken in the course of carrying on an activity or carrying out a transaction of a trading or commercial character: see Concrete Constructions v Nelson (1990) 169 CLR 594. Certainly, Mr Justice failed to satisfy me to the requisite level that the swearing of a false affidavit (even if it is proved to be false) was in trade or commerce in accordance with the usual principles. 24 Second, as to the claim of fraud, the evidence fails to satisfy me that there is a sufficiently arguable basis for finding that Mr Carter deliberately swore a false affidavit, even assuming that this could give rise to a cause of action for damages: cf Oaths Act 1900 (NSW), s 29. 25 Third, Mr Justice was unable to satisfy me that the Company, as trustee of a Discretionary Trust, could have suffered any damage as a result of any of the conduct of which complaint is made, including the alleged claim in negligence against the former solicitors. This is particularly so where the advice which was given and followed was that the company retire its trustee and be replaced by Miller Street as the new trustee of the trust. Any loss which was apparently suffered was suffered by the trust and was dealt with in the order for compensation made by Finkelstein J in 2007. 26 As to the fourth of the Warbler factors, namely, the attitude of creditors, contributors and the liquidator, it is true that this factor may in isolation support Mr Justice's submissions. But it cannot be considered in isolation. In my view, it is outweighed by the other factors referred to in my judgment. 27 The fifth factor is solvency. I am not satisfied on the evidence that the company has been proved to be solvent. It is said to be a shell company but the evidence fails to meet the standard which requires proper verification: see Gematech Pty Ltd v Bardi Investments Pty Ltd [2008] NSWSC 196 at [26]-[27] ("Gematech"); see also Metledge at [33]. 28 The seventh Warbler factor is the general background of the circumstances which led to the winding up order. These have been explained in what appears to be a satisfactory way but the explanations are outweighed by the other factors to which I refer in these reasons. Moreover, there has been considerable delay in bringing this application and that seems to me to be a factor I can take into account as part of the general background. 29 The eighth Warbler factor is "commercial morality" or "public interest". As Mason JA said in Re Data Homes Pty Ltd [1972] 2 NSWLR 22 at 26-27, there is little reason for confining consideration of commercial reality to the investigation of misconduct in the affairs of a company as there is for restricting the public interest to the pecuniary interests of existing and future creditors: see also Gematech at [28]-[31] per Hammerschlag J. 30 In the present case, the situation is not so much one of commercial morality but of the public interest, although on one view, both considerations are relevant. It is often said that the court should not countenance the return of insolvent companies to the mainstream of commercial life: Re Data Homes Pty Ltd [1971] NSWLR 338 per Street J. Here not only is the Company not planning to return to trading activities, whether as the trustee of a trading trust or otherwise, there is insufficient evidence to satisfy me that it can meet the claims of future creditors. By its own actions in retiring its trustee of the Discretionary Trust and transferring the legal title to all of the assets to Miller Street, it has put itself in a position where it is reliant upon the support of others to meet the claims of any future creditors. I am not satisfied on the evidence that there is a sufficient degree of certainty that this support will be forthcoming. This, and the delay in bringing the present application, are reasons why it is not in the public interest to terminate the winding up. 31 I therefore propose to dismiss the present application. It is possible that the order I will make may not rule out the ability of the company to apply for an order under s 601AH of the Act for reinstatement once the company is deregistered. I make no comment as to the merits of such an application save to say that at very least it would be for the Company to establish the prospects of success in any proposed proceedings against Mr Carter or the former solicitors so as to make good its standing as a person aggrieved. The reason an application under section 6O1AH would be required is that the liquidation is almost complete. It will then be for the liquidator to file the usual form with ASIC on completion of the winding up and the company will then be deregistered. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.