PNR International Pty Ltd v CII Group Pty Ltd

SALIENT FACTS

1. The Provisional Liquidators were appointed as joint and several provisional liquidators of the Crown Group companies by court order on 11 August 2023. The Provisional Liquidators are working on an assets realisations strategy to generate a pool of funds to pay out creditors in full and return funds to shareholders. This has involved reviewing submissions from agents and selecting agents to undertake the sale of real property of the Crown Group, formulating marketing strategies for the sale of the real property, assessing bids and offers of the real property against a valuation report, negotiating with potential purchasers around the terms of the sale of the real property and instructing their solicitors in relation to the preparation of sale contracts.

Contract of sale of land owned by Crown West End and the Termination Deed

1. Crown West End is the registered proprietor of a property located at 117 Victoria Street, West End, Queensland (West End Property). It is the main asset owned by Crown West End.
2. There is a mortgage over the West End Property held by National Australia Bank in the amount of approximately $15.45 million.
3. On 15 December 2023, the court made orders pursuant to s 477(2B) of the Corporations Act approving, nunc pro tunc, the entry by the Provisional Liquidators into a contract for the sale of the West End Property. That contract was dated 24 November 2023 (First West End Contract) with a purchase price of $66 million and stated settlement date of 30 March 2024. That day being a Saturday, and the following Monday being a public holiday in Queensland, settlement was scheduled for the next business day (Tuesday, 2 April 2024).
4. The purchaser (Victoria Riverside Pty Ltd) made several requests for extensions of the time for settlement, some of which were acceded to by the Provisional Liquidators. The details of those requests are as follows: 1. On 2 April 2024, the purchaser requested and the Provisional Liquidators agreed that the date of settlement be extended to 5 April 2024. 2. On 5 April 2024, the purchaser requested and the Provisional Liquidators agreed to a further extension to 12 April 2024. 3. On 12 April 2024, the purchaser requested a further extension to 19 April 2024. The Provisional Liquidators did not consent to that request. 4. On 16 April 2024, the Provisional Liquidators, through their solicitors, issued to the purchaser a notice to complete requiring that settlement take place on 30 April 2024. 5. On 27 April 2024, the Provisional Liquidators received a further request from the purchaser for an extension of time for settlement to 31 May 2024. The Provisional Liquidators did not consent to that request. 6. On 30 April 2024, the solicitors for the Provisional Liquidators wrote to the purchaser and confirmed that settlement would need to proceed that day. 7. At 1:31pm on 30 April 2024, the purchaser emailed the Provisional Liquidators' solicitors stating that it elected to exercise its contractual right to unilaterally extend the settlement period for a further five business days, to 8 May 2024. 8. On 8 May 2024, the purchaser made a further (without prejudice) request that settlement be extended to 22 May 2024, to which the Provisional Liquidators consented.
5. On 15 May 2024, the purchaser's solicitors informed the Provisional Liquidators that the purchaser would not be able to complete the First West End Contract on 22 May 2024. Crown West End has retained the deposit of $6.088 million.
6. On 16 May 2024, the First West End Contract was terminated by way of the Termination Deed. By its terms, the Termination Deed imposes ongoing obligations which apply for a period greater than three months and of no fixed term, including that Crown West End and the purchaser indemnify the Provisional Liquidators against any claims in respect of the Termination Deed and that the parties must keep the terms of the Termination Deed and any preceding negotiations confidential.
7. On 17 May 2024, the Provisional Liquidators caused Crown West End to enter into the Second West End Contract in respect of the West End Property, with 117 Victoria Street West End Pty Ltd as purchaser. The Second West End Contract stipulates a purchase price of $63.5 million and a settlement date of 14 August 2024. The parties' obligations under the Second West End Contract are expressed to be subject to the court's approval of the entry by the Provisional Liquidators into it.
8. The Second West End Contract, like the Termination Deed, imposes ongoing obligations which exceed three months, requiring: 1. that Crown West End and the purchaser indemnify each other and the Provisional Liquidators against any claims which may or have been brought by a tenant of the West End Property; 2. that the parties maintain confidentiality in respect of the terms of the Second West End Contract and any preceding negotiations; 3. releases of the Provisional Liquidators of any claims; and 4. an indemnity by the directors of Victoria Street in favour of the Provisional Liquidators against any claims incurred by Crown West End.

Contract of sale of land owned by Crown W

1. Crown W is the registered proprietor of the property located at Units 4 and 5 of 30-36 O'Dea Avenue, Waterloo, New South Wales (Waterloo Property).
2. Commonwealth Bank of Australia (CBA) has a registered mortgage over the Waterloo Property.
3. On 21 September 2023, the Provisional Liquidators engaged an agent for the sale of the Waterloo Property. With the Provisional Liquidators' approval, the agent took steps to market and sell the Waterloo Property, including: 1. posting about the property listing on social media platforms; 2. issuing electronic direct mail to the agent's database of over 7,000 investors advising on details of the Waterloo Property; 3. advertising that the property was for sale on real estate websites; 4. issuing information memoranda to clients of the agent; and 5. canvassing investors and other potential purchasers.
4. In September 2023, the Provisional Liquidators engaged an auctioneer to seek to sell the Waterloo Property via auction, pursuant to advice they had received from a second sales agent engaged by them.
5. On 9 November 2023, the Waterloo Property was passed in at auction, no bids having been received. On that same day, the Waterloo Property was listed for sale via private treaty.
6. On 19 January 2024, Wearwood Pty Ltd made an offer to purchase the Waterloo Property for an amount of $1.55 million with a flexible settlement period.
7. A process of negotiation ensued, involving various offers and counteroffers, culminating in the acceptance by the Provisional Liquidators of an offer by Wearwood to purchase the Waterloo Property for $1.8 million, with a 21-day settlement period. That offer was made by Wearwood on 29 January 2024 and accepted by the Provisional Liquidators, on the advice of their sales agent, on 7 February 2024.
8. The offer-and-acceptance comprising the Waterloo Contract took place against the backdrop of ongoing litigation in this court between the Owners Corporation of the Waterloo Property, Crown W, and Crown Group Construction Pty Ltd (provisional liquidators appointed), relating to claims by the Owners Corporation for compensation for alleged acoustic and cladding defects with the Waterloo Property. I note that those proceedings are presently stayed and a directions hearing is scheduled for 16 August 2024. Wearwood is alive to the existence of those proceedings.
9. As with the Second West End Contract, the Waterloo Contract is subject to the Provisional Liquidators obtaining court approval to enter into it. The Waterloo Contract also contains ongoing obligations without fixed terms, including: 1. an indemnity from Crown W in favour of Wearwood in respect of any claims made against it by a tenant of the Waterloo Property resulting from Crown W's failure to perform or observe any obligations under the lease; 2. obligations of confidentiality concerning its terms; and 3. an indemnity from Crown W and Wearwood in favour of the Provisional Liquidators against any liability or loss occasioned by breach of the Waterloo Contract.

Lease of land owned by Crown Landmark

1. Crown Landmark is the registered proprietor of retail premises at Retail Shop 7, 31-39 Macquarie Street, Parramatta, New South Wales (Parramatta Property).
2. The Parramatta Property is leased by Bayti Pty Ltd, pursuant to a lease for a period of four years commencing on 25 November 2019. The original lease agreement gave Bayti as lessee an option to renew for a further four-year term beginning on 24 November 2023.
3. On 8 September 2022, Bayti served upon Crown Landmark a Notice of Exercise of Option, contractually obliging Crown Landmark to grant Bayti a new lease.
4. The renewed Lease is expressed to be conditional on the Provisional Liquidators obtaining court approval to enter into the Lease.

Statutory provisions

1. Section 477(1) and (2) of the Corporations Act set out the powers of a liquidator as follows: (1) Subject to this section, a liquidator of a company may: (a) carry on the business of the company so far as is, in the opinion of the liquidator, required for the beneficial disposal or winding up of that business; and (b) subject to the provisions of section 556, pay any class of creditors in full; and (c) make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging that they have any claim (present or future, certain or contingent, ascertained or sounding only in damages) against the company or whereby the company may be rendered liable; and (d) compromise any calls, liabilities to calls, debts, liabilities capable of resulting in debts and any claims (present or future, certain or contingent, ascertained or sounding only in damages) subsisting or supposed to subsist between the company and a contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the property or the winding up of the company, on such terms as are agreed, and take any security for the discharge of, and give a complete discharge in respect of, any such call, debt, liability or claim. (2) Subject to this section, a liquidator of a company may: (a) bring or defend any legal proceeding in the name and on behalf of the company; and (b) appoint a solicitor to assist him or her in his or her duties; and (c) sell or otherwise dispose of, in any manner, all or any part of the property of the company; and (ca) exercise the Court's powers under subsection 483(3) (except paragraph 483(3)(b)) in relation to calls on contributories; and (d) do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents and for that purpose use when necessary a seal of the company; and (e) subject to the Bankruptcy Act 1966, prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act; and (f) draw, accept, make and indorse any bill of exchange or promissory note in the name and on behalf of the company; and (g) obtain credit, whether on the security of the property of the company or otherwise; and (h) take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or his or her estate, that cannot be conveniently done in the name of the company; and (k) appoint an agent to do any business that the liquidator is unable to do, or that it is unreasonable to expect the liquidator to do, in person; and (m) do all such other things as are necessary for winding up the affairs of the company and distributing its property.
2. Section 477(2B) of the Corporations Act imposes a limitation on the power of a liquidator to enter into an agreement on the company's behalf, stating: Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not enter into an agreement on the company's behalf (for example, but without limitation, a lease or an agreement under which a security interest arises or is created) if: (a) without limiting paragraph (b), the term of the agreement may end; or (b) obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance; more than 3 months after the agreement is entered into, even if the term may end, or the obligations may be discharged, within those 3 months.

Authorities

1. The principles pursuant to which the court exercises the discretion under s 477(2B) are well settled.
2. In In the matter of Kevin Jacobsen Pty Limited (in liquidation) [2016] NSWSC 538, Black J at [27]-[32] collected the authorities in the following way: [29] In Re HIH Insurance Ltd [2004] NSWSC 5 at [15], Barrett J in turn referred to the purposes of s 477(2B) of the Corporations Act, noting that: "Although [ss 477(2A)-(2B) of the Corporations Act] deal with different aspects of a liquidator's powers, both are concerned to ensure that the court exercises some oversight of the liquidator's actions and, in effect, confers or completes the necessary power only where it sees that a case for exercise of the power in the particular circumstances has been sufficiently shown. The court's assessment must be made in light of the purposes for which liquidators' powers exist. One overriding purpose is to serve "the interests of those concerned in the winding up - here the creditors" (Re Spedley Securities Ltd (1992) 9 ACSR 83 per Giles J); the other is to do whatever needs to be done "for the proper realisation of the assets of the company" or to assist its winding up (Re G A Listing & Maintenance Pty Ltd (1994) 15 ACSR 308 per Young J). The court does not concern itself with the commercial desirability of the transaction. As Giles J said in the Spedley Securities case (above): The court pays regard to the commercial judgment of the liquidator. That is not to say that it rubber stamps whatever is put forward by the liquidator but, as is made clear in Re Mineral Securities (Australia) Ltd [1973] 2 NSWLR 207 at 231-2, the court is necessarily confined in attempting to second guess a liquidator in the exercise of his powers, and generally will not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct. Although this was said in relation to s 477(2A), I consider the statement to be equally applicable to s 477(2B). As Austin J observed in Re United Medical Protection Ltd [2003] NSWSC 237, the considerations arising under both provisions are "much the same", although I would add that s 477(2B) focuses particular attention on the need to ensure that contractual provisions as to timing do not cut across the general expectation that winding up will proceed in as expeditious a fashion as circumstances allow: Re G A Listing & Maintenance Pty Ltd (above), Re CIC Insurance Ltd (2001) 38 ACSR 181." [30] It was common ground between the parties that the Court should have regard to whether the liquidators' judgment has been "infected by a lack of good faith or error of law or principle, or whether there are real or substantial grounds for doubting the prudence of [their] conduct" in respect of entry into the relevant agreement: Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85-86; Re Gerard Cassegrain & Co Pty Ltd (in liq) [2014] NSWSC 1292 at [6]. The Court is not concerned, in granting approval to the Deed of Assignment, with matters of commercial judgment but is concerned to be satisfied that the entry into that agreement is a proper exercise of power and not ill-advised or improper on the part of the liquidator: Re McGrath (in their capacity as liquidators of HIH Insurance Ltd) [2010] NSWSC 404; (2010) 78 ACSR 405. [31] In Re FAI Film Distribution Pty Ltd [2014] NSWSC 1904 at [16]-[17], Brereton J in turn noted: "The role of the court is to grant or deny approval to the liquidator's proposal, not to reconsider every issue considered by the liquidator, nor to develop some alternative proposal which might seem preferable. In reviewing the liquidator's proposal, the court pays due regard to his or her commercial judgment and knowledge of all of the circumstances for the liquidation, but satisfies itself that there is no error of law or grounds for suspecting bad faith or impropriety, and evaluates whether the proposal is consistent with the expeditious and beneficial administration of the winding up. Importantly, the court's approval is not an endorsement of the proposed agreement, but merely permission for the liquidator to exercise his or her own commercial judgment in the matter. Thus the approval completes the liquidator's power to enter into the transaction, but does not amount to the court approving the transaction itself …". [32] His Honour also there noted (at [18]) that: "Section 477(2B) is concerned with long term agreements which might protract the liquidation and has the effect that the liquidator cannot enter such agreements without the approval of the committee of inspection, the creditors, or of the court. Its rationale is that the interests and wishes of those affected, particularly creditors, should be highly influential in determining whether the liquidator should assume a contractual obligation which would interfere with the expeditious completion of the winding up [Re GA Listing and Maintenance Pty Limited (1994) 15 ACSR 308; Re CIC Insurance Ltd (provisional liquidator appointed) [2001] NSWSC 438; Re HIH Insurance Ltd, [15]]. Thus in considering giving approval under s 477(2B), the main consideration is the impact of the agreement on the duration of the liquidation and whether that is in all the circumstances reasonable in the interests of the administration [Re Opel Networks Pty Ltd [2013] NSWSC 1245; in the matter of Re One.Tel Ltd, [30]] …".
3. Approval nunc pro tunc can be given under s 477(2B) of the Corporations Act, the emphasis of the provision being on promoting the interests of the liquidation and the creditors, not the exercise of disciplinary functions over liquidators who delay seeking approvals under the section: Kevin Jacobsen, Black J at [74]-[75].
4. In In the matter of Milgerd Nominees Pty Ltd [2019] NSWSC 311, Black J dealt with an application for approval made pursuant s 477(2B) in respect of a contract for sale of land, saying at [18]-[20]: [18] The Court's power under s 477(2B) of the Act provides for oversight of a liquidator's actions and an order under that section confers or completes the necessary power to enter into an agreement where obligations of a party may be discharged by performance more than three months after the agreement is entered into, where it can be seen that a case for exercise of the power in the relevant circumstances has been established: Re HIH Insurance Ltd [2004] NSWSC 5 at [15] and see the other authorities cited in Austin and Black's Annotations to the Corporations Act at [5.477]. The Court's role is not to substitute its judgment for the liquidator's judgment on the commercial merits of the transaction, but instead to satisfy itself that there is no error of law or suspicion of bad faith or impropriety and determine whether there is any good reason to intervene in the transaction, having regard to the beneficial administration of the winding up. [19] Here, the evidence is that the liquidators have proceeded with the transaction, which has realised a value for the Revesby property that is at, or in the region of, the valuation advice that he has obtained; that the period negotiated for completion of that transaction had been set before the liquidators' appointment, so the choice facing them was to go ahead with that transaction, or run the risk that it would lapse; and there is nothing to suggest that there is any element of impropriety or any error of law in respect of the transaction. The transaction will, in practical terms, likely not extend the winding up, where there are other steps to be taken, having regard to the liquidator's evidence, in the winding up of the Companies in any event. [20] For these reasons, I am satisfied that an order should be made, nunc pro tunc, under s 477(2B) of the Corporations Act, conferring power on the liquidators to complete the relevant transaction, and the making of such an order will promote the interests of the external administration of each of the Companies.
5. In Alfonso, in the matter of Pinnacle Fire Protection Pty Ltd (in liq) v Woods (2021) 157 ACSR 217; [2021] FCA 1402, Cheeseman J at [14] set out the lengthy analysis of those principles developed by Brereton J in In the matter of One.Tel Limited [2014] NSWSC 457; (2014) 99 ACSR 247 at [26]-[30], and then at [15] summarised them as follows: … [I]n considering whether to grant approval under either ss 477(2A) or (2B): (1) the Court is not to second guess the liquidator's judgment but rather to satisfy itself that there is no error of law, bad faith or impropriety, and ensure that the proposal is consistent with the expeditious and beneficial administration of the winding up. (2) it must be borne in mind that (unlike in an application for judicial advice), the Court's approval does nothing more than empower the liquidator to proceed as he or she proposes - the Court is not approving the underlying transaction itself, such that the approval does not exonerate the liquidator from any liability he or she may have in respect of the transaction. (3) where only approval under s 477(2B) is sought, the consideration is whether it is reasonable and in the interests of the liquidation to permit the liquidator to enter into an agreement that will not be completed within 3 months (though it is still necessary for the Court to be satisfied that the transaction is a proper realisation of the assets of the company or otherwise assists its winding up): Re Stewart (in his capacity as official liquidator of Newtronics Pty Ltd (recs and mgrs apptd) (in liq)) [2007] FCA 1375 at [26(6)] (Gordon J).

SUBMISSIONS

1. The Provisional Liquidators submit that orders pursuant to s 477(2B) of the Corporations Act are appropriate in respect of each of the Second West End Contract, the Termination Deed, the Waterloo Contract, and the Lease Agreement, on the basis that those four transactions are in the best interests of the creditors of each of the relevant companies.
2. In respect of the Second West End Contract, the Provisional Liquidators assert that entry into that contract without recommencing the sales process serves the interests of Crown West End's creditors for the following reasons: 1. A sale to Victoria Street avoided diminishment of the net sale proceeds from the sale of the West End Property which otherwise would have occurred through the costs of a new sales process. 2. A sale of the West End Property to Victoria Street could be conducted swiftly, thereby minimising the accrual of interest on a secured mortgage over the West End Property. 3. The fact that the diminution in the purchase price was offset by the retention of the deposit held by Crown West End following termination of the First West End Contract. 4. The sale price is greater than that set out in the valuation obtained by the Provisional Liquidators, the sale proceeds will be applied to discharge the registered mortgage over the West End Property, the terms of the Second West End Contract are reasonable and represent commercial terms, and any surplus funds will be retained and applied in the provisional liquidation. 5. The Second West End Contract was entered into after the Provisional Liquidators took advice from an experienced real estate agent.
3. In terms of the appropriateness of entering into the Termination Deed, the Provisional Liquidators submit that: 1. The First West End Contract was not able to be completed in a reasonable time, putting at risk equity in the West End Property. 2. Pursuant to the Termination Deed, Crown West End retained the deposit paid by Victoria Riverside in the amount of $6.088 million, which the Provisional Liquidators consider to be compensation for any potential loss to Crown West End, including in respect of interest, fees, holding costs and as explained above, any diminution in value on resale.
4. In respect of Crown W's entry into the Waterloo Contract, the Provisional Liquidators contend: 1. A competitive sales process was undertaken, the purchase price was within the range of market value expressed in the valuation obtained by the Provisional Liquidators in respect of a bespoke property, and the purchase price represented the highest bid obtained. 2. The sale proceeds will be applied to discharge a mortgage over that Waterloo Property. 3. The terms of the Waterloo Contract are reasonable and represent commercial terms. 4. Any surplus funds will be applied in the provisional liquidation. 5. No prejudice to the purchaser or creditors generally has been identified in relation to the extant defects proceedings, and the potential consequences of those proceedings have been taken into account in the contract.
5. In terms of the Lease entered into by Crown Landmark with Bayti, the Provisional Liquidators submit: 1. The Lease represents a significant increase in rental compared to that previously paid and is within $500 per week of market rent. 2. The Lease terms are reasonable and represent reasonable commercial terms. 3. The Lease continues to provide revenue for Crown Landmark to meet its liabilities. 4. The Lease was, based on the advice of a sales agent engaged by the Provisional Liquidators, likely to result in greater opportunities in the sale of the Parramatta Property. 5. The Lease was entered into pursuant to a contractual right to renew on the part of the lessee, Bayti.

CONSIDERATION

1. On the evidence before me, I am satisfied that I should grant approval nunc pro tunc to the Provisional Liquidators' entry into each of the Second West End Contract, the Termination Deed, the Waterloo Contract and the Lease.
2. I am mindful that I am not to second guess the commercial judgment made by the Provisional Liquidators in relation to each of these transactions. None of the transactions exhibit any sign of error of law, bad faith or impropriety. They are each reasonable and in the interests of the liquidations because they are consistent with the expeditious and beneficial administration of the winding up of Crown West End, Crown W and Crown Landmark respectively. The evidence also reveals that the Provisional Liquidators have acted swiftly in relation to each transaction.
3. In granting the approval, I make it clear that I am not approving the underlying transaction itself. The Provisional Liquidators have formed the view that each of the transactions is in the best interests of the creditors of the respective companies. I accept the submissions of the Provisional Liquidators as to why this is the case for each transaction.

ORDERS

1. Accordingly, for the reasons stated above, I am minded to make the following orders: 1. The Interlocutory Process filed on 31 May 2024 be returnable ex parte and instanter. 2. Pursuant to s 477(2B) of the Corporations Act 2001 (Cth), leave is granted, nunc pro tunc, for Andrew Sallway and Duncan Clubb as joint and several provisional liquidators of the Thirteenth, Fourteenth and Twenty-Sixth Defendants (Provisional Liquidators) to enter into: 1. a contract for the purchase and sale of land between Crown West End Pty Ltd (Provisional Liquidators Appointed) (ACN 616 219 722) (CWE) and 117 Victoria Street West End Pty Ltd (ACN 672 851 679) dated 17 May 2024 in the form appearing at pages 1 to 135 of Exhibit AS-20 to the Affidavit of Andrew Sallway affirmed 31 May 2024 in support of this application (Sallway Affidavit); 2. a termination deed between CWE and Victoria Riverside Pty Ltd (ACN 672 990 760) dated 16 May 2024 (Termination Deed) in the form appearing at pages 136 to 143 of Exhibit AS-20 to the Sallway Affidavit; 3. a contract for the purchase and sale of land between Crown W Pty Limited (Provisional Liquidators Appointed) (ACN 155 463 237) (Crown W) and Wearwood Pty Ltd (ACN 144 948 881) dated 22 May 2024 in the form appearing at pages 144 to 929 of Exhibit AS-20 to the Sallway Affidavit; and 4. a lease between Crown Landmark Pty Limited (Provisional Liquidators Appointed) (ACN 138 194 608) (Crown Landmark) and Bayti Pty Ltd (ACN 633 979 478) dated 30 May 2024 in the form appearing at pages 930 to 983 of Exhibit AS-20 to the Sallway Affidavit. 1. The Provisional Liquidators' costs of and incidental to this application be paid out of the assets of CWE, Crown W and Crown Landmark in equal shares.

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: 07 June 2024