Plaintiffs v Plaintiffs

(a) Victoria Station Corporation Pty Ltd ('VSC');

2 On 22 May 2017, the administrators made application by originating process under ss 439A(6) and 447A(1) of the Corporations Act 2001 (Cth) ('the Act') for orders extending the convening periods for the second meetings of creditors of the companies. The administrators rely on the affidavit of Mr Carrafa, one of the administrators, affirmed 22 May 2017.

3 The originating process sought the following orders:

(1) An order pursuant to s 439A(6) of the Act to extend the convening periods for the companies

(2) An order pursuant to s 447A(1) of the Act, that notwithstanding s 439A(2) of the Act, Part 5.3A of the Act operate in relation to the companies so that the second meeting of creditors of the companies pursuant to s 439A of the Act may be held at any time during or 5 business days before or after the end of the convening periods as extended.

(3) An order that notice of the extension of the convening period be provided to all creditors of the companies.

(4) An order that the administrators' costs of the application be costs in the administrations of the companies and be paid out of the assets of the companies.

4 Unless extended, the convening periods of the administrations of the companies would have expired on 30 May 2017. At the hearing of the application, the administrators sought extensions of the convening periods of 125 days.

5 On 24 May 2017, I made orders extending the convening periods to 2 October 2017 and indicated that I would publish my reasons for doing so which I now do.

6 MH and PH are partners in a retailing business. The partnership is known as The Victoria Station Corporation Partnership ('the partnership') and trades under the business names "Victoria Station", "Kate Hill" and "Victoria Station Clearance." The partnership operates sixty four retail outlets selling luggage and women's handbags and accessories in locations around Australia.

7 The companies perform the following respective functions:

(a) MH and PH are the members of the partnership, each with a 50% entitlement to its property and capital. As partners they hold the assets of the partnership;

(b) VSC is the manager of the partnership appointed by MH and PH; and

(c) VSS, as agent of VSC, is the lessee of the head office and retail leases from which the business trades on behalf of the partnership.

8 At the time of the administrators' appointment, the companies employed 383 employees at its retail outlets and head office. The employment of 276 employees has been terminated because of retail outlet closures. The administrators have retained the remaining 107 employees at its head office and some of the retail outlets to maintain its existing business operations.

9 Since the appointment of the administrators, they have continued to operate the partnership's business and to maintain the lease of the head office at Keysborough in Victoria. Prior to their appointment, the companies traded from 65 stores. The administrators have determined that for the time being, trading will be continued from 15 stores while their investigations continue. The remaining 49 stores are to be closed.

10 There are no significant external secured creditors of the partnership, as the indebtedness to the only major secured creditor, Westpac Banking Corporation, was discharged before the administrations commenced.

11 Early investigations into the partnership's affairs indicate the existence of inter-company loans between VSC, VSS, MH and PH, some of which are subject to a security interest. The extent of these securities is still being investigated by the administrators.

12 On 12 May 2017, the companies held their first meetings of creditors pursuant to s 436E of the Act consecutively ('the first meetings'). Mr Carrafa was the duly appointed chairman of each of the first meetings.

(a) the administrators' appointment as the joint and several administrators of each of the companies was confirmed; and

(b) no committee of creditors was formed for any of the companies.

14 Since their appointment, the administrators have commenced investigations into the activities of the partnership and each of the companies respectively. The investigations are ongoing.

15 As at the date of Mr Carrafa affirming his affidavit, the investigations included:

(a) undertaking an analysis of the companies' books and records of account on an individual and collective basis in respect of:

(i) the overall financial position of the partnership as a whole and of each company;

(ii) the corporate structure and the partnership structure used by the companies;

(iii) the distribution of assets and liabilities within the partnership and as between the companies;

(iv) the legal and beneficial ownership of the assets being held in the names of each company;

(v) the legal relationship between each company including the functions of each entity in relation to each other and the partnership's business;

(vi) the financial structure of the companies, the primary liability for creditors' claims, intercompany rights of indemnity, intercompany indebtedness and intercompany security;

(vii) the different corporate entities within the partnership, and the role of each corporate entity;

(viii) the role and significance of the trusts present in the structure, their effect on the beneficial ownership of assets, and the manner in which any distribution of surplus amongst creditors ought to be made in due course;

(ix) the manner in which the books and records have been kept and clarifying the content and need for adjustment of those records;

(x) ascertaining the claims of each of the lessors of the 65 retail outlet leases;

(xi) consideration of the employment of 383 employees, the various legal implications concerning the Enterprise Bargaining Agreement ('EBA') and the 107 employees currently employed by the companies.

(b) responding to enquiries from unsecured creditors;

(c) obtaining information related to the secured creditors' claims so as to assess their validity;

(d) obtaining information relating to internal partnership transactions, including the arrangement between VSC and VSS in relation to retail leases held by VSS;

(e) obtaining information regarding intercompany loans and security arrangements, including evaluating the amounts secured under securities held by MH and PH and the validity and enforceability of those securities;

(f) obtaining information in relation to the companies' other related entities and their role and effect on each of the companies, including but not limited to the unsecured liability totalling approximately $6.6M to Victorian Travel Goods and Handbags Pty Ltd, apparently an entity related to the directors, which previously conducted the business before it was transferred to MH and PH,;

(g) protecting the position of employees including assessing outstanding employee entitlements and liabilities; and

(h) considering all potential outcomes of the administration of the companies, including but not limited to, the utility of the companies entering into a pooled Deed of Company Arrangement ('DOCA').

16 Mr Carrafa deposes that there are a large number of complex issues to determine and investigate prior to the second meetings of creditors, which by operation of s 439A of the Act, are due to be convened by 30 May 2017 and held on or before 6 June 2017.

17 The administrators seek that the time in which to convene the second meeting of creditors be extended to 2 October 2017, an extension of 125 days. The reasons for the extension of time are described in Mr Carrafa's affidavit as follows.

Completion of Investigations to prepare s 439A report and to make recommendations regarding anticipated Deed of Company Arrangement Proposal

18 Mr Carrafa states that in order for the administrators to produce a report that complies with their obligations pursuant to s 439A(4) of the Act, including the requirement to form an opinion about whether it is in the creditors' interests to accept or reject any DOCA proposal, they will require additional time to complete the investigations outlined in paragraph 15 above.

19 Based on his current knowledge of the companies and their books and records, Mr Carrafa considers an extension of 125 days to be necessary to enable those investigations to be properly completed and to use the results in evaluating any DOCA proposal in comparison to liquidation. He states that there is no prospect that the companies will be returned to the control of the directors.

20 Mr Carrafa contends that the administrations are of such a nature that a DOCA proposal is likely to be made and has potential to be a means of maximising the return to the creditors of the companies. To properly enable the administrators to assess the benefits or otherwise of any DOCA proposal, he states that the administrators will require additional time to conduct a detailed analysis of the financial position of the companies so as to make a recommendation to the creditors regarding that prospect.

21 On 15 May 2017, Mr Carrafa received correspondence from Michael Raiter and Paul Raiter, the directors of each of the companies, advising that they were considering submitting a formal proposal for the companies to enter into a DOCA.

22 The administrators have assessed the viability of the business and, based on their preliminary enquiries, have determined that it may be appropriate to sell the companies' business assets that make up the retailing businesses trading under the names Victoria Station and Kate Hill.

23 The administrators have sought expressions of interest relating to the companies' business assets by way of an advertisement placed in the Australian Financial Review on Saturday, 6 May 2017. The advertisement sought expressions of interest for the purchase of the companies' business assets by 16 May 2017.

24 Mr Carrafa deposes that the administrators are currently dealing with 15 parties who have registered expressions of interest.

25 The administrators have forwarded an Information Memorandum to the interested parties. They will require time to negotiate and, if a sale proceeds, prepare a sale agreement for the purchase of the companies' business assets. Once the sale has been settled, the administrators will be able to ascertain and finalise the amount of funds available to creditors.

26 The companies' available assets, including plant and equipment, leaseholds and intellectual property are still required to be assessed and their value determined. The administrators are yet to consider competing claims for both secured and unsecured interests on the assets of the companies.

27 The administrators anticipate that the negotiations and the sale process of the business and assets may, if successful, take up to two months to finalise, and may involve the transfer of leases, which will require lessors' consent.

28 Because of the high media attention that the administrations have received, sales within the stores have actually increased above pre-appointment levels as awareness of the Victoria Station brand has been heightened and with it a perception of the opportunity to buy at lower prices has arisen. For this reason, stock levels are rapidly diminishing and it is unlikely there will be any stock available in the event of any sale of the business assets.

29 The administrators have not placed any orders for any additional stock, as any new stock would not arrive until a significant period of time after the trading on of the business has concluded.

30 Furthermore, Mr Carrafa contends that ordering more stock at this stage of the administrations would incur unnecessary liabilities without any certainty as to the anticipated profits of selling such stock.

31 In terms of employee entitlements, the administrators' review of the companies' books and records and discussions with the directors reveal that employees are owed at least $957,412.08 in entitlements as at the date the administrators were appointed. The estimate of wages and notice and redundancy amounts calculated at that date is as follows:-

This estimate is subject to change as it does not include:

(a) the ongoing fortnightly payment of wages for the remaining employees;

(b) a current calculation of superannuation contributions for the month of May 2017 onwards; and

(c) the notice and redundancy figures, as these amounts will not crystallise until the employment contracts of all employees have been terminated.

There may also be other factors that will cause the estimate to change in due course.

32 Mr Carrafa states that the priority of the employees as a collective creditor of the companies' is unclear at this juncture as the administrations involve several bodies corporate that are in partnership and which are also trustees of family trusts. If the distribution of surplus assets among creditors is governed by the Act, the employees are afforded priority of payment pursuant to ss 556, 560 and 561 of the Act, and the benefit of access to the Commonwealth Fair Entitlements Guarantee ('FEG') if the companies are placed into liquidation. However, if the administrations are governed pursuant to the Partnership Act 1958 (Vic), the employees become unsecured creditors without priority and will only be entitled to pari passu distributions.

33 The administrators are presently undertaking investigations and seeking independent advice to clarify the position of the employees' rights. Once received, the administrators will require further time to consider that advice, how best to conduct the administrations in light of it including the form that any DOCA proposal ought to take, and if necessary, recalculate the amounts likely to be paid to the employees. The administrators expect this process to take at least one to two months. They anticipate that an application to the Court for directions is likely to be required.

34 Based on the records of the companies, and the advice received from the companies' creditors to date, it appears that unsecured creditor claims are of the order of approximately $8.9M. This amount includes:

(a) estimated related party claims totalling approximately $6,597,878.29, not including intra-partnership loans; and

(b) 112 trade creditor claims totalling in excess of $2,300,000.00.

35 Further, the administrators are continuing to receive invoices from overseas suppliers, preventing them from determining the actual current liability of each of the companies.

36 Mr Carrafa states that the quantum of known secured creditor claims does not, at this stage, include an estimate for any residual liabilities to which the companies may be exposed to in connection with the tenancies of the retail premises leased around Australia. There are 66 tenancies including for the lease of head office and the administrators estimate the contingent liability to be in excess of $20,000,000.00 on a worst case scenario. This figure will decrease as lessors mitigate their losses by reletting premises.

37 The administrators are in the process of making enquiries with the lessors of the premises as to whether the companies have any contingent liability under any lease arrangements and are presently reviewing and awaiting responses from the lessors. Given the number of leases and lessors, Mr Carrafa considers they will require additional time to obtain and consider responses. VSS has issued 38 notices stating that it does not propose to exercise property rights in relation to various leased premises.

38 Mr Carrafa states that the administrators believe that an extension of time in which to convene the second meeting of creditors to 2 October 2017 is the minimum period of time required to complete the investigations into the companies' and the partnership's financial affairs, settle any sale of the business assets, quantify and consider employees' and unsecured creditors' rights and consider any proposal for a DOCA.

39 In particular, he considers that additional time is required for the following steps:

Completion of Investigations to prepare s 439A report

Investigation of employee entitlements, advice regarding priority and directions application

Investigation of Unsecured claims generally and in relation to retail premises landlord claims

40 The creditors of each of the companies were informed at the first meetings that the administrators would consider the need to make this application to the Court for orders extending the convening period of the second meeting of creditors by approximately four months, specifically in order to facilitate further investigations into the companies' dealings and to formulate a course of action that would yield a maximum return to the creditors. There was no dissent from any of the creditors present in respect of the extensions sought for any of the administrations.

41 Mr Carrafa states that the administrators require further time to consider and prepare the reports about the companies' business, property, affairs and financial circumstances. The administrators also require further time to determine the standing of the employees as priority or unsecured creditors.

42 Prior to the second meeting of creditors, s 439A(4) of the Act requires the administrators to make a report recommending and provide reasons for such recommendation to the creditors as to whether it would be in the creditors' interests:

(a) for the companies to execute a deed of company arrangement ('DOCA'); or

43 Mr Carrafa is of the opinion that if the time for the convening of the second meetings of creditors were not extended the administrators will not be in a position to make any recommendation to the creditors other than a recommendation to wind up the companies and the partnership. He believes that an extension of time in which the administrators must convene the second meetings of creditors:

(a) provides the time and opportunity to explore other options that may result in a significantly better return to the creditors of the companies and the partnership, than any return achieved by the liquidation of the companies and the dissolution of the partnership; and

44 Section 439A is found within Part 5.3A of the Act. Pursuant to s 439A(6) of the Act, the Court has a very broad jurisdiction to extend the time for convening the second meeting of creditors.

45 The object of Part 5.3A, which is headed 'Administration of a company's affairs with a view to executing a deed of company arrangement', is stated in s 435A as follows:

The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:

(a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or

(b) if it is not possible for the company or its business to continue in existence - results in a better return for the company's creditors and members than would result from an immediate winding up of the company.

46 Section 439A(1) of the Act requires the administrator of a company under administration to convene a meeting of creditors within the convening period as fixed by s 439A(5), unless extended by the Court under s 439A(6). Further, as provided by s 439A(2), the meeting must be held within five business days before, or within five business days after, the end of the convening period.

47 The purpose of the second meeting of creditors required by s 439A is to consider the company's future. Section s 439C of the Act prescribes that, at the s 439A meeting, the creditors may resolve that:

(a) the company execute a deed of company arrangement;

48 Subsection 439A(4) of the Act requires an administrator to provide a report to creditors about the company's business, property, affairs and financial circumstances to assist the creditors with making their decision at the s 439A meeting. The provision also prescribes the matters that must be addressed by the administrator in that report.

49 Where an application is made under s 439A(6) of the Act for an extension of time, the Court attempts to strike a balance between the expectation that the administration be conducted relatively speedily and summarily and the need to ensure that undue speed will not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders through a properly conducted administration.[1]

50 Section 447A of the Act provides the Court with a general power to make such orders as it thinks appropriate about how Part 5.3A is to operate in relation to a particular company. In the present context, it enables the Court to make what has become known as a 'Daisytek' order enabling the administrators, if they see fit, to hold the second meeting of creditors at any time during or five business days before or after the end of the convening periods as extended by the Court under s 439A(6).

51 Some of the relevant considerations for granting an extension of time, (which factors are to be weighed against the parliamentary intention of speed), have been summarised by Austin J in Re Riviera Group Pty Ltd.[2] Relevantly in this case they include:

(a) the size and the scope of the business in a voluntary administration;

(b) that there are a large number of employees with complex entitlements;

(c) a complex corporate group structure and intercompany loans;

(d) complex transactions entered into by the company;

(e) the time needed to execute an orderly process of disposal of assets;

(f) the time needed for thorough assessment of a proposal for a deed of company arrangement;

(g) where the extension will allow for the sale of the business as a going concern; and

(h) more generally, that additional time is likely to enhance the return for unsecured creditors.

52 The proposition that a balance should be struck is supported by the decision of Lindgren J in Re Austcorp Group Ltd (Administrators Appointed),[3] which considered the above factors and the resulting dichotomy. Lindgren J confirmed the basis upon which the intention of a speedy administration process reflected in Part 5.3A of the Act can be adjusted.

53 In addition to the factors that are mentioned in Riviera, in this case, the administrators also propose making applications for directions to the Court in respect of the position of the employees. This will be a complex application which will take some 60 to 90 days to finalise and the outcome of it will affect the formulation of the terms of any DOCA.

54 In Re Harrisons Pharmacy Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed),[4] Farrell J noted the necessity of the administrators having enough time to properly perform their function and adopted the comment made of Lindgren J in Re Pan Pharmaceuticals Ltd[5] that 'the essential issue is whether the extension is necessary to enable the administrators to arrive at an opinion so as to place the creditors in the position to choose between those alternatives.'[6]

Matters Supporting Extension of the Convening Period

55 The following matters are put forward by Mr Carrafa in support of the administrators' belief that it is in the best interests of the creditors of the companies that the convening period be extended by 125 days:

(a) the complex corporate and partnership structure of the companies within the partnership,

(b) a large number of employees (385) employed by the partnership at the time of the commencement of the administrations and the determination of the position as to priority of payment;

(c) the existence of intercompany loans and securities between VSC, MH and PH;

(d) the large number of leases entered into by VSS as an agent of the partnership and the involved discussions and negotiations relating to the exercise of the rights of the lessee and the lessor in respect of each of those leases, the determination of those leases and the closure of stores;

(e) a potential sale of the partnership business assets, including but not limited to the sale of the partnership business itself including any remaining leasehold assets;

(f) the time required for the administrators to consider and analyse the affairs of each of the companies in administration in isolation and in the context of the activities of the partnership so as to determine whether a pooled Deed of Company Arrangement is appropriate; and

(g) by reason of the above matters, the prospects that a pooled Deed of Company Arrangement is likely to enable a more substantial return to the creditors than liquidation. I consider that the extension sought, of four months, is a reasonable one in the circumstances.

56 The administrators contend that an extension of the convening periods is necessary to enable the administrators to arrive at an opinion so as to place the creditors in the best position to choose between the alternatives and to deliver a substantially better return to creditors than liquidation.

57 No objection has been raised by creditors at the first meetings when the prospect of applications seeking extensions of the convening periods were mentioned.

58 The administrators consider that the extension sought is the minimum period required by them to:

(a) complete investigations into the Companies and partnership's financial affairs. This is complex and involves the examination of a partnership of trusts;

(b) negotiate and enter into any sale of business and/or assets to interested parties, including assessing prospective multiple offers;

(c) assess and consider all employee claims and entitlements;

(d) consider unsecured creditors' rights and the impact of any secured interest impacted by PPSA registration; and

Whilst each task is being conducted concurrently, the final outcomes and possible recommendations cannot be delivered until all the steps are completed.

59 If the administrators are unable to obtain an extension, they are unlikely to be in a position to make a recommendation for a pooled Deed of Company Arrangement. The only feasible outcome would then be liquidation.[7]

60 As I indicated at the hearing of this matter on 24 May 2017, there are substantial and abundant reasons to make the orders sought by the administrators. Like many complex administrations, of particular relevance in the context of these companies' administrations are that the proposed extensions will allow sale of the businesses of the companies as going concerns and provide the time required to undertake an orderly process of the disposal of the companies' assets. The companies as a group operate a sizeable trading concern. It is clear that time is needed for a thorough investigation of the companies' affairs to present the required comprehensive report to the creditors of the companies at the second meetings. Furthermore, the position of the large number of employees will need to be carefully considered and be the subject of proposed applications for directions to the Court. The formulation of the terms of a DOCA, which apparently may take the form of a pooled DOCA will involve considerable negotiation and finalisation if the interests of creditors are to be best served. In addition, because of the existence of intercompany transactions between VSC, MH and PH which are of a complex nature, time will be required for a comprehensive investigation. As has been indicated, the group operated from a large number of stores with numerous leases. The administrators will be required to conduct negotiations with the lessors of each of those stores in order to finalise the closure of the stores.

61 For completeness, I will recite here the orders that I made on 24 May 2017:

1. Pursuant to section 439A of the Corporations Act 2001 (Cth) ('the Act'), the time for the convening the second meeting of creditors is extended up to and including 2 October 2017 for the following bodies corporate:-

1. Victoria Station Corporation Pty Ltd ACN 104 082 797 (in its own capacity and in its capacity as the partnership manager of "The Victoria Station Corporation Partnership" (trading as 'Victoria Station', 'Kate Hill' and 'Victoria Station Clearance'))(Administrators Appointed); 2. Victoria Station Services Pty Ltd ACN 074 633 533 (as trustee for 'Victoria Station Services Trust')(Administrators Appointed);

1. Michael Hartz Pty Ltd ACN 104 083 598 (as trustee for 'The Michael Raiter Family Trust')(Administrators Appointed);

1. Paul Hartz Pty Ltd ACN 104 084 693 (as trustee for 'The Paul Raiter family Trust')(Administrators Appointed);

1. Pursuant to section 447A(1) of the Act, Part 5.3A of the Act operate in relation to each of the Companies so that, notwithstanding section 439A(2) of the Act, the second meeting of creditors of the Companies pursuant to section 439A of the Act may be held together or separately at any time during, or within five business days after the end of, the convening period, as extended by the Court, provided that the Plaintiffs have given notice of the meeting.
2. As soon as practicable, the Plaintiffs give notice to the creditors of the Companies of the terms of these orders by email, if the Plaintiffs have an email address for the creditor, or by way of correspondence sent to the creditor's last known address.
3. The plaintiff's costs of and incidental to this Application be costs in the administration of the Companies and be paid out of the assets of the Companies.

IN THE MATTER of VICTORIA STATION CORPORATION PTY LTD

IN THE MATTER OF MICHAEL HARTZ PTY LTD (ACN 104 083 598)

IN THE MATTER OF PAUL HARTZ PTY LTD (ACN 104 084 693)

MICHAEL CARRAFA, PETER GOUNTZOS and RICHARD JOHN CAUCHI IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF VICTORIA STATION CORPORATION PTY LTD (ACN 104 082 797) (in its own capacity as the partnership manager of the 'VICTORIA STATION CORPORATION PARTNERSHIP' (trading as 'VICTORIA STATION, 'KATE HILL' and 'VICTORIA STATION CLEARANCE') (Administrators Appointed)

MICHAEL CARRAFA, PETER GOUNTZOS and RICHARD JOHN CAUCHI in their capacity as joint and several administrators of VICTORIA STATION SERVICES PTY LTD (ACN 074 633 533) (as trustee for 'VICTORIA STATION SERVICE TRUST') (Administrators Appointed)

MICHAEL CARRAFA, PETER GOUNTZOS and RICHARD JOHN CAUCHI in their capacity as joint and several administrators of MICHAEL HARTZ PTY LTD (ACN 104 083 598) (as trustee for 'THE MICHAEL RAITER FAMILY TRUST') (Administrators Appointed)

MICHAEL CARRAFA, PETER GOUNTZOS and RICHARD JOHN CAUCHI in their capacity as joint and several administrators of PAUL HARTZ PTY LTD (ACN 104 084 693) (as trustee for 'THE PAUL RAITER FAMILY TRUST') (Administrators Appointed)

[1] Algeri; Re Colorado Group Limited [2011] VSC 260, Judd J at [24]; see also Re Pan Pharmaceuticals Ltd [2003] FCA 598; (2003) 46 ACSR 77, Lindgren J at [41]-[42]; Re Austcorp Group Ltd [2009] FCA 636, Lindgren J at [18]; Re Midas Australia Pty Ltd [2009] FCA 38, Kenny J at [11]; Re Dimidium Group Pty Ltd [2010] NSWSC 1086, Barrett J at [15].

[2] [2009] NSWSC 585; (2009) 72 ACSR 352 at [13], approved by Judd J in Re Colorado Group at [25]; see also Parbery, in the matter of NewSat Limited (Administrators Appointed) (Receivers and Managers Appointed) [2015] FCA 435 at [63] per Beach J.

[3] [2009] FCA 636 at [18].

[4] [2013] FCA 458 at [13].

[5] [2003] FCA 598.

[7] Carrafa affidavit dated ?, paragraph 42.