Rewards Projects Ltd (Administrators Appointed) v The Ark Fund Ltd

1. Paragraph 6 of the relief sought by the plaintiffs in the originating application is refused.
2. I will hear the parties as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J: 1 The three named as first plaintiffs in this proceeding, David Hardy, James Stewart and James Dampney, were appointed as joint and several administrators of eight corporations known as the Hiro Group of companies, including Greencare Developments Pty Ltd and Aware Environmental Pty Ltd on 2 January 2024. The Hiro Group was in the business of manufacturing consumer products including ranges in skin and sun care, cosmetics, personal care and household cleaning. The manufacturing, warehousing, distribution and administrative operations were undertaken on premises at 282-300 Hammond Road Dandenong South in Victoria. Greencare is the lessee and the landlord is the Trust Company (Australia) Ltd. There is a written lease dated 29 April 2019. The rental and outgoings payable pursuant to the lease are approximately $10,000 per day. The rental is in arrears. The quantum of the arrears is approximately $1.5 million calculated to the date of appointment, and approximately $200,000 from then until 23 January 2024, that being the date of an affidavit made by Mr David Hardy. 2 There is presently stored at the premises a substantial quantity of stock, inventory and plant and equipment owned by various companies within the Hiro Group. The administrators presently have the benefit of the use of the premises without personal liability to pay the rent or the outgoings pursuant to the lease. As is well-understood, s 443B of the Corporations Act 2001 (Cth) provides that where a company subject to administration continues to use or occupy property, under an agreement entered into before the commencement of the administration, the liability of the administrator for rent or other amounts pursuant to a lease is limited as provided at s 443B(2): Subject to this section, the administrator is liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period: (a) that begins more than 5 business days after the administration began; and (b) throughout which: (i) the company continues to use or occupy, or to be in possession of, the property; and (ii) the administration continues. 3 By s 443B(3), an administrator may give notice to a lessor to the effect that the company does not propose to exercise rights in relation to leased property. And then, relevantly for this proceeding, s 443B(8) provides: Subsection (2) does not apply in so far as a court, by order, excuses the administrator from liability, but an order does not affect a liability of the company. 4 The administrators wish to have continued use and occupation of the premises, without incurring a personal liability for rent or outgoings pursuant to the lease for the purpose of realising the value of the inventory, stock and plant and equipment (collectively the group property) by sale. It is the opinion of the administrators that an in-situ sale will likely lead to a higher price being achieved for the benefit of creditors of the corporations in the Hiro Group, than removal to a third-party site in order to effect a sale. In any event, the evidence from the administrators is to the effect that it would be impracticable to remove the group property from the premises, and that if the present application for an order pursuant to s 443B fails, then the group property (or most of it) will simply be abandoned by leaving it at the premises. The administrators are not prepared to accept personal liability pursuant to the lease in order to facilitate a sale of the group property from the premises. 5 To those objectives, the administrators on 15 January 2024, commenced a proceeding in this Court by originating process for, inter alia, orders to the effect that they have no personal liability pursuant to the lease within the period 2 January 2024 to 7 February 2024 and that the five day period at s 433B(3) be extended to 7 February 2024. That application was heard by Anderson J as an urgent duty matter on 16 January 2024. Relevantly, his Honour granted relief to that effect. 6 On 24 January 2024, the administrators commenced the present proceeding in which, relevantly, they seek an extension of the orders made by Anderson J on 16 January 2024. The purpose of that extension is to facilitate an in-situ sale of the group property in an orderly manner. That application is opposed by the landlord. The application was heard before me, on an urgent basis, on 29 January 2024. For the following reasons, I have decided not to grant the relief sought. 7 The administrators rely upon the affidavit evidence of Mr Hardy of 23 January 2024. The landlord relies upon affidavit evidence from Ms Laura Paterson made on 28 January 2024. Each affidavit was read without objection and no application was made to cross-examine. 8 Relevantly, Mr Hardy deposes, and I find accordingly, that: (1) the group property comprises the major portion of the assets of the Hiro Group and is stored at the premises; (2) the firm Gordon Brothers have been engaged to assist with the realisation of the group property. The advice received, in consequence of an initial assessment, is that a period of between 8 weeks at a minimum and "ideally more than 12 weeks", commencing 22 January 2024, is required to prepare the group property for sale, to market it, to conduct an on-site auction and to allow for subsequent removal of purchased items. That advice is expressed, understandably, in advisory language; (3) the book value of the inventory is approximately $7.5 million, which is unlikely to be realised as it includes obsolete and expired stock and the ultimate realisation value of the group property is presently unknown. In addition, the debtors ledger records approximately $4 million in assets, but the recoverability of those debts is presently unknown; (4) there is approximately $18.5 million owing to secured financiers, of which the major financier is Westpac Banking Corporation and the debt to it is approximately $13.5 million; (5) related corporation liabilities total approximately $4.8 million; (6) trade creditor and supplier liabilities amount to approximately $25 million; (7) commencing on 8 January 2024, the administrators engaged in a campaign to sell the assets and operations of the Hiro Group. Expressions of interest have been received from approximately 100 parties, but only one has expressed interest in proposing a deed of company arrangement; (8) within the period of 9 to 16 January 2024, the asset realisation process was suspended because the administrators were unable to negotiate a rent-free period to use the premises; (9) non-binding indicative offers to purchase the business and/or the assets were due to be provided by 5 pm on 29 January 2024, and if received, short-listed parties will be invited to submit final binding offers by 5 pm on 7 February 2024. In the event that a final binding offer is received on acceptable terms, it is estimated that it would take between two and four weeks to complete a sale process. For these reasons, the administrators do not anticipate that if there is to be a sale of the business and asset realisation, that it will be completed before the middle to the end of April 2024; (10) a substantial amount of work is yet to be undertaken in order to provide a satisfactory report to the creditors; (11) the opinion of the administrators is that the objectives set out at s 435A of the Act "will be best served" by selling the group assets in-situ so as to maximise the potential return to creditors; (12) the administrators do not have sufficient funds to pay the rent or outgoings pursuant to the lease; (13) the approximate daily operating costs amount to $25,000 comprising rent and outgoings of approximately $10,000, wages for retained staff of approximately $8,000, insurance and other operating costs of approximately $3,000 and contingency and professional costs of $4,000. Based on those estimates, if the administrators were to be required to pay rent for the premises for a period of 10 weeks, plus associated trading and insurance costs, would be approximately $1.25 million. That amount "would be a material portion, or even possibly exceed" the net value of the company assets; (14) the administrators are not prepared to accept personal liability pursuant to the lease. There have been negotiations with the landlord in order to obtain either a rent-free period, or the payment of rent at a reduced amount. Those negotiations have not led to any agreement; and (15) if the order presently sought is not made, the administrators will elect to exit the premises and will likely abandon the group property as the cost of relocating and storing it in a third-party location would not be commercial. 9 Mr Hardy also deposes that the administrators are of the view that if the orders sought are made they are not likely to "unduly prejudice the landlord" because, at least in their opinion, "the landlord would not be able to secure a long-term/medium-term tenant in the period to the end of April, particularly on account of the state of the premises." That evidence is significantly disputed in the affidavit of Ms Paterson. As I explain, I accept her evidence in preference to it. 10 Ms Paterson's employment is as an Asset Manager with Charter Hall Asset Services Ltd, which company manages the premises on behalf of the landlord. Relevantly her evidence, which I accept and find accordingly, is: (1) the landlord has the benefit of a bank guarantee from Westpac Banking Corporation in the amount of $2,500,000, to secure the obligations of Greencare pursuant to the lease. No portion of that guarantee has yet been called in by the landlord; (2) there is a history of default by Greencare in its obligations pursuant to the lease, being the failure to obtain an annual essential safety measure report and to provide an updated bank guarantee in the sum of $2,970,177.61; (3) the amount of rent and other outgoings owed by Greencare to the landlord at the date of appointment of the administrators was $1,599,136.98. As at January 2024, the monthly charges payable under the lease total $267,310.56. There is a further contingent liability to pay an amount for the initial fit-out of approximately $1.2 million, which becomes payable upon termination of the lease due to default; (4) various estimates have been made of the likely costs to be incurred by the landlord in the event that the orders sought by the administrators were to be made. The total amount exceeds $10 million, broadly calculated as approximately $430,000 for rectification costs for essential safety measures, between $4 and $5 million for "make good costs" and approximately $5.2 million for re-leasing costs. In addition, the gross rent calculated for the period sought by the administrators is approximately $790,000; (5) the administrators have not provided any information to the landlord as to how they propose to remove certain items of plant and equipment without causing damage to the premises; and (6) the landlord wishes to retake possession of the premises "as soon as practicable so its make good works can commence". If the orders sought by the administrators were to be made, the landlord would not be able to secure an alternative tenant until possession is ultimately delivered. 11 The parties' submissions focus on three main issues, summarised by Mr McAloon for the plaintiffs as: whether the relief sought is exceptional, relative prejudice to the landlord and whether there is any apparent benefit to the creditors of Greencare. In broad terms, Mr Brown SC for the landlord was content to frame the issues in that way. I should add that each counsel filed and relied on helpful written submissions in support of their arguments. 12 On the first issue, Mr Brown argues that the "usual rationale" for extending the period at s 443B(2) or exercising the power under s 443B(8) "is because the administrator has had insufficient time to conduct the necessary investigations to decide whether he or she thinks it best to retain or give up possession of leased property": Strawbridge (Administrator), in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472 at [39] (Markovic J). Reliance is also placed on Rewards Projects Ltd (Administrators Appointed) v The Ark Fund Ltd (No 2) [2010] WASC 136 at [8] (Sanderson M) and Silvia, in the matter of Strongbuild Pty Ltd (Administrators Appointed) v Norwest Flexi Pty Ltd [2018] FCA 1957 (Jagot J). 13 The reasoning of Markovic J in CBCH at [39] that is emphasised includes: The usual rationale behind the extension of the five business day period in s 443B(2) and (3) or the exercise of the power in s 443B(8) is because the administrator has had insufficient time to conduct the necessary investigations to decide whether he or she thinks it best to retain or give up possession of leased property. (Citation omitted.) 14 At [45]-[57], her Honour assessed the uncertainty that the administrators then faced in assessing the position of the company, the difficulties faced by the restrictions imposed by the COVID-19 pandemic and the absence of prejudice to the creditors balanced against the detriment to be suffered by the landlords. 15 Her Honour's reasoning was referred to with approval by Middleton J in Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) [2020] FCA 571; 144 ACSR 310 at [44] who was persuaded to grant an extension of time because the administrators were unable to then form a view as to whether the Virgin Companies should continue to remain in possession of leased properties and further time to consider that question was required. On that basis his Honour was satisfied that: "the extension of time is designed to assist in identifying and retaining assets that are necessary to preserve and enhance the value of the Virgin Companies' operations as part of a positive restructure of the business": at [48]. His Honour also referenced the decision of Black J in In the matter of Mothercare Australia Ltd (administrators appointed] [2013] NSW SC 263 who addressed the rationale for the grant of an extension of time for an administrator to decide whether to give notice to a landlord in order to limit personal liability. At [2]-[4], Black J explained that: The first issue which arises is the application for an extension of time in order to give any notice to lessors under s 443B(3) of the Corporations Act. That section broadly deals with the circumstances in which an administrator becomes subject to personal liability for rental or other amounts payable by a company under a lease. In broad terms, the section provides that the administrator is liable for rent payable by a company under administration for the period which begins more than five days after the administration begins, but may avoid that liability by giving notice that specifies the property and states that the company does not propose to exercise its rights in relation to the property. That section will operate in a relatively straightforward manner in circumstances that, for example, a company occupies a single or a small number of properties, and assumes that the administrator will be in a position, by the exercise of appropriate diligence, to form a view as to whether the company should continue to occupy the premises and whether or not to assume personal liability in respect of the premises within that period. However, a situation may arise where there are obstacles to the administrator forming that view within that period. Such a situation was considered in Silvia v Fea Carbon Pty Ltd (ACN 009 505 195) (admins apptd) (recs and mgrs apptd) [2010] FCA 515; (2010) 185 FCR 301, where Finkelstein J noted the policy behind the section and that the section was intended to allow the administrator the opportunity to avoid personal liability for rental payable by giving notice within the five day period, but also recognised the possibility that that period may be too short in a particular case. His Honour noted that the Court can either excuse such liability under s 443B(8) of the Corporations Act or extend the time for investigation under s 447A of the Corporations Act. The Administrators here seek orders under s 443B(8) of the Corporations Act or alternatively under s 447A which, in effect, extend the time for the giving of notice of an intention not to exercise rights in respect of the relevant properties to 5 March 2013, a month from today. A number of factors relevant to making such an order were identified in Silvia v Fea Carbon, including that there may be a large amount of paperwork to review; factual uncertainty in relation to the leases; or the administrators' inability to form a view within the five business days allowed by the section as to whether it was necessary or desirable to exercise rights over the relevant property for the purpose of maximising the chances that some or all of the members of the companies can continue in existence or maximising the return to creditors. 16 In contrast in this case, the extension is not sought to enable the administrators to investigate and form a view as to whether Greencare should continue to occupy the premises and whether or not to assume personal liability: the decision has been made to liquidate the assets and not assume that liability. Nor is there "a large amount" of documentation that requires review in order to make a decision about the lease or any factual uncertainty as to the administrators' intention. The primary purpose of the extension that is sought is to sell the company property in-situ at a higher price. 17 Mr McAloon argues, largely by reference to the same authorities, that the broad power conferred by s 433B(2) permits the making of orders that excuse administrators from liability to pay rent if it is in the interests of the creditors to do so. He frames that argument by reference to cases that are said to be presently analogous. One is the decision of Robson J in Re Gunns Plantations Ltd (No 1) [2012] VSC 655, where several extensions had been granted between 2 October 2012 and 10 December 2012, and his Honour ultimately determined to grant a further extension to 31 January 2013. That application concerned managed investment forestry schemes, involving many landowners and approximately 226,000 ha of plantation timber. Approximately 1,000 leases were affected. The extension was opposed by a substantial landowner. The requested extension coincided with the date on which the administration was scheduled to end. The purpose of seeking the extension was to: "allow the administrators to progress an expression of interest campaign" to sell the assets: [54]. At [55], his Honour identified the need to balance the potential prejudice to the creditors of not granting the extra period against the prejudice likely to be suffered by the landowners, who would, in the event of an extension, be "kept out of enjoying their rights as land owners". However, what is clear from that case at [62] is that the extension was sought in order to reasonably ascertain the position of the lessee in respect of the leases, which were central to the business of the company in Gunns and where the position was complex and involved a substantial volume of documentation. 18 Ultimately, in assessing the respective interests, his Honour concluded that "the balance of prejudice favours the period being extended" in that the administrators were endeavouring to best realise or reconstruct the business of the company in Gunns for the benefit of its creditors and members when contrasted with the absence of evidence that the landlord would be able to obtain rent within the extended period. 19 That case is not analogous. Here the administrators perfectly understand the obligations and benefits of the lease, are well aware of their potential personal liability if they seek to obtain the benefit of use and occupation of the premises in order to realise the value of the company property and, having undertaken that assessment, are not prepared to accept personal liability for the rent and other obligations pursuant to the lease. 20 The other case said to be analogous is the decision of Davies J in McAllum, in the matter of TM Lewin Australia Pty Ltd (Administrator Appointed) [2020] FCA 992, where her Honour granted an extension of the s 443B notice period for a number of retail premises to sell stock at maximum value or sell the business as a going concern or promptly take steps to wind up the company. The administrators expressed the view that the first or second options would most likely maximise the returns to creditors and be consistent with the objectives of Pt 5.3A of the Act. The landlords were given notice of the application (a period that her Honour described as "very short" at [16]) but did not appear in opposition. Her Honour identified five reasons which supported the exercise of discretion to grant the extension at [18]-[22]. They were: the lease liabilities were significant and approximately $215,000 per month, and the administrators were not willing to incur personal liability; the purpose of the extension was to facilitate the sale of the business as a going concern whilst concurrently attempting to liquidate the present inventory stock (a strategy that would likely maximise the returns to creditors); acceptance of the opinion of the administrators that the landlords would not be significantly disadvantaged by the extension and the fact that none had appeared to oppose it; on the facts the extension of time sought maximised the prospect of preserving the business with a view to sale as a going concern, (which her Honour accepted would be in the best interests of the creditors) and the orders were framed so as to permit adversely affected landlords to apply for a variation. 21 That case is obviously distinguishable on the facts. This application stands apart from the "usual rationale" identified by Markovic J in CBCH. The administrators well understand the lease, the obligations of Greencare pursuant to it and their potential personal liability if the present application is not granted. What is clear from the evidence of Mr Hardy is that the likely quantum of lease liabilities will exceed the net recoverable value of the company property even if there is an in-situ sale at the premises. They do not have sufficient available resources to meet that liability. That is why they have decided not to accept personal liability for the lease obligations of Greencare. In that regard I accept the submission framed by Mr Brown that this is not a consideration which favours the grant of the extension. Although a favourable exercise of the statutory discretion is not preconditioned by satisfaction that this application sits within the "usual rationale", the fact that it does not is a significant consideration in undertaking the balancing exercise that is required and is not, in the circumstances of this case, supportive of the extension that is sought. 22 Clearly, the administrators have decided that it is in the best interests of the creditors of the Hiro Group to continue to occupy and use the premises to effect a sale of the group property, which ordinarily requires acceptance of the liability for rental and outgoings under the lease. Justice Jagot reasoned similarly in Strongbuild at [5]-[8], with which I agree. 23 The second and third issues are inter-related and call for an assessment of relative prejudice: creditors on the one hand and the landlord on the other. A problematic aspect of this application is that although the Hiro Group conducted business operations on the premises, Greencare is not the owner of most of the group property. The evidence of Mr Hardy is that those assets are owned by other group companies, in particular Aware Environmental. There is no evidence as to the likely benefit to the creditors of Greencare, if the extension were to be granted. As correctly submitted by Mr Brown, potential benefit to the creditors of one or more of the group companies is a matter for a potential pooling and distribution of the net proceeds, not the relief sought in this application. 24 There is evidence from Mr Hardy that the administrators have already realised approximately $1.1 million from the sale of inventory that was located at the premises. However, it is not said that this sum, or some portion of it, may be set aside in order to meet any personal liability that the administrators may incur pursuant to the lease. 25 The evidence is that an in-situ sale of the group property would not likely result in realisation of it all. Mr Dampney advised in an email of 3 January 2024 to Ms Paterson that "our preferred strategy" is to market the group property in-situ, but with the caveat that: Whilst we acknowledge this request is significant, we see major benefit to the landlord being the proposed removal of significant quantities of [group property] that would alternatively remain once the site is handed back to you. … Our expectation is that whilst we will endeavour to sell as many assets as possible there will be residual [group property] that will remain on the site when it is ultimately handed back to you. Our strategy is designed to clear some of the assets, but we want to be clear from the onset that there will likely be obsolete assets for you to deal with irrespective of when the site is handed back. 26 Mr Brown submits, and I accept, that this undermines the absence of prejudice arguments relied upon by the administrators. The likelihood is that even if the company property were to be sold in-situ, the landlord would be left with a significant quantity of abandoned company property, at its cost of disposal. 27 The bank guarantee will not be sufficient to compensate the landlord for unpaid rent if the extension were to be granted. The approximate quantum of rent for an extended 12-week period is $790,000. The accumulated liability for unpaid rent and outgoings under the lease to 23 January 2024 is approximately $1.7 million. The estimated rectification, make-good costs and re-leasing costs may exceed $10 million. Mr McAloon submits that these costs will not be caused by the extension: rather they will be delayed by a 12-week period. That is not quite correct. If a 12-week extension is granted, the landlord will ultimately lose the benefit of possession with the ability to re-lease at an earlier time. The landlord will likely suffer prejudice due to delay, in addition to lost rent. 28 There is no real prospect that an in-situ realisation, facilitated by grant of the extension sought, will be of material benefit to all creditors of Greencare or indeed, the Hiro Group. In submissions, Mr McAloon candidly conceded that "there is an element of uncertainty about the benefit to creditors of Greencare, along with other creditors in the group", a matter that is made more complex by the fact that there are identified creditors who claim the benefit of secured interests, notably Westpac and various creditors with interests registered pursuant to the Personal Properties Security Act 2009 (Cth). Further in correspondence from the plaintiffs' solicitors to the solicitors for the landlord dated 26 January 2024 it is said: What is apparent from the Administrators' ongoing investigations to date is that: (a) this is a complex administration with difficult legal issues, and one in which the Hiro companies appear hopelessly insolvent, with very little assets of value; (b) accordingly, it is unlikely that returns will be material for creditors (if the application is not granted, it is certain that the returns will be lower and quite possibly nil); (c) your client should therefore proceed on the assumption that, unfortunately, the ultimate recoveries may be insufficient to enable any rent to be paid in the (sic) priority… 29 Accordingly, I am not satisfied on the evidence that there is any real prospect of maximising the benefit to the Greencare creditors by an in-situ sale. In oral submissions, I raised with Mr McAloon the issue of fairness which underpins the balance sought to be struck by these provisions and which Finkelstein J identified in Silvia v FEA Carbon Pty Ltd [2010] FCA 515; 185 FCR 301 at [10]-[12]. The quid pro quo for continued use of leased property by an administrator is personal liability for the payment of rent. Mr McAloon submitted that the requested extension is based on the administrators' assessment that an in-situ sale is the pathway to achieving the maximum return to the creditors of all of the companies within the Hiro Group. There are at least two difficulties with that submission. One, this application concerns an extension of time in relation to Greencare and the potential liability of the administrators pursuant to the lease. The other, is that the administrators upon making their assessment, have decided not to accept personal liability for the obligations of Greencare to pay rent and outgoings because they calculate that the likely realisation will not be sufficient to cover their potential liability during the extended period that is sought. Whilst it is ordinarily the case that this Court should place great weight upon an administrators' assessment of the likely benefit to the creditors as a whole, in the particular circumstances of this case the evidence establishes that the benefits will not be material to the creditors of Greencare, including in particular the landlord. 30 In conclusion, and taking all of these matters into account, I am not persuaded that the extension applied for should be granted. I therefore refuse the relief sought in paragraph 6 of the originating application. I will hear the parties as to costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.