Robinson v BMF Pty Ltd

MORTIMER J: 1 This interlocutory application for leave to proceed against the first respondent, BMF Pty Ltd, being a company in liquidation, was filed on 22 June 2021.There was some initial uncertainty on the part of the applicant and his legal representatives about the appropriate way in which to bring this application, but that has been resolved. 2 The originating application in the substantive proceeding was filed on 16 December 2020. It sought a variety of relief including payment of salary and employment entitlements said to be owed to Mr Robinson, damages, and declarations regarding BMF's alleged misconduct under the Fair Work Act 2009 (Cth) and the involvement of the second respondent Mr Wright. Mr Wright was at least for some material time the managing director of "BMF Construction", said by the applicant to be the trading name of BMF. Mr Robinson claims to have been an employee of BMF, to have worked to the direction of Mr Wright in terms of his duties of employment, and to be owed unpaid salary and other employment entitlements he seeks arising from that employment. 3 A case management hearing was held on 8 February 2021, at which the Court was informed that BMF was placed into liquidation on 2 February 2021. The proceeding as against BMF was accordingly stayed by operation of s 500(2) of the Corporations Act 2001 (Cth). BMF did not appear at the case management hearing. Mr Robinson's legal representative indicated that there had been some uncertainty as to the appropriate entity to name as respondent in the proceeding, as Mr Wright controlled a number of entities. He foreshadowed that the applicant may seek to join the Wright Family Trust as a third respondent. Counsel for Mr Wright noted that this was a fundamental issue with the proceeding, and Mr Robinson's contract named an entity other than BMF. He indicated at the case management hearing that he was instructed that BMF had not been Mr Robinson's employer. 4 On the same date, the Court made orders giving leave for the applicant to file and serve any amended originating application, including in relation to the joinder, removal or substitution of any respondents, and amended statement of claim. The orders contemplated that after this had occurred, the respondents (including any new respondents) would be given time to file a defence and the applicant a reply, and then the proceeding would be referred to mediation. The time for the applicant to file an amended application was extended twice, by joint application of the parties but, I infer, principally on the request of the applicant. 5 The applicant ultimately did not exercise the opportunity to amend the originating application. On 13 May 2021, Mr Wright filed a defence to the statement of claim. In that defence he expressly pleaded that BMF was not Mr Robinson's employer, but that another corporation, Brandmet Pty Ltd, was Mr Robinson's employer. 6 On 26 May 2021, the applicant filed an originating process in a new proceeding. However the new proceeding solely related to an application for leave to proceed against a company in liquidation under s 471B of the Corporations Act. On 10 June 2021, a second case management hearing was convened jointly in both proceedings. The outcome of that case management hearing was an order that the applicant be given leave to file any interlocutory application for leave to proceed against BMF under s 500 of the Corporations Act, which was eventually agreed to be the correct provision. 7 The present application was subsequently filed, accompanied by an affidavit affirmed by Mr Robinson, and an affidavit of Mr Glen Robert Bartlett, Mr Robinson's legal representative, both affirmed on 21 June 2021. The separate proceeding seeking leave to proceed against BMF was discontinued by the applicant on 1 July 2021. 8 BMF, by its liquidators, opposes the interlocutory application, as does Mr Wright. By consent of the parties, the application was determined on the papers.

Application for leave to proceed 9 Section 500 of the Corporations Act provides: 500 Execution and civil proceedings (1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void. (2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes. (3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled. 10 There is no guidance given in the Act as to what factors may be considered in determining the appropriateness of a grant of leave to proceed under s 500(2). The parties were largely in agreement about the correct approach to an application for leave to proceed under s 500(2), citing variously BBY Ltd (Recs and Mgrs Apptd) (in liq); Re BBY Holdings Pty Ltd (Recs and Mgrs Apptd) (in liq) [2019] NSWSC 352; 135 ACSR 36 at [9]; Palace v RCR O'Donnell Griffin Pty Ltd (in liq) [2021] QCA 137 at [40]; Commonwealth v Davis Samuel Pty Ltd (No 5) [2008] ACTSC 124; 68 ACSR 336 at [30]; Seeley International Pty Ltd v Millennium Electronics Pty Ltd (in liq) (No 2) [2020] SASC 211 at [38] and Oceanic Life Ltd v Insurance and Retirement Services Pty Ltd (in liq) (1993) 11 ACSR 516 at 520. For consideration of these principles in this Court, see also Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) [2020] FCA 718 at [9]-[10], where Katzmann J quotes the judgment of Black J in Re DSHE Holdings Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 82 at [18]: Broadly, the purpose of this section is to prevent a company's assets being dissipated by unnecessary litigation, and an applicant for leave will be required to show why it should not be left to prove its debt in the winding up: Re Gordon Grant & Grant Pty Ltd [1983] 2 Qd R 314; (1983) 7 ACLR 669; (1983) 1 ACLC 742; HFPS Pty Ltd (Trustee) v Tamaya Resources Ltd (in liq) (No 1) [2016] FCA 442 at [18]. The claimant must establish that the claim has a solid foundation and gives rise to a serious question to be tried; factors relevant to the exercise of the court's discretion may include the degree of complexity of legal and factual issues and the prospect that a proof of debt will be rejected; and the power to grant leave is discretionary and other factors may be relevant to its exercise… Leave under this section will more readily be granted where a claim is likely to be, or is arguably, covered by insurance… 11 Mr Robinson also notes correctly that the decision to grant leave is a discretionary one, citing BBY Holdings, Seymour Whyte Constructions Pty Ltd v Ostwalk Bros Pty Ltd (in liq) [2018] NSWCA 139 and Eopply New Energy Technology Co ltd v EP Solar Pty Ltd [2013] FCA 356 at [22(b)]. 12 However, while apparently in agreement as to the approach, as becomes apparent in the summary below, each of the parties focussed more heavily on some factors than others. 13 A considerable amount of affidavit material was filed in support of the parties' positions on the application for leave to proceed: (a) An affidavit of Mr Robinson affirmed 21 June 2021; (b) An affidavit of Mr Glen Robert Bartlett affirmed 21 June 2021; (c) A supplementary affidavit of Mr Bartlett affirmed 29 June 2021, annexing the attachments to several emails that appeared as annexures to his earlier affidavit, and had been mistakenly omitted; (d) An affidavit of Mr Jason Glenn Stone, the liquidator appointed to BMF, affirmed 23 July 2021; (e) An affidavit of the second respondent, Mr Ian Wright affirmed 23 July 2021; and (f) An affidavit of Mr Robinson in reply, affirmed 30 July 2021.

Is there a serious issue to be tried? 14 BMF accepts that Mr Robinson has shown there is sufficient merit in his case to warrant the grant of leave, although I infer it intends this concession to be understood in relation to this factor alone. 15 Mr Wright alleges there is no serious issue to be tried because Mr Robinson has brought proceedings against the wrong company. This has been Mr Wright's position consistently, and as noted above, this contention appears in his filed defence. Mr Wright submits that Mr Robinson was never employed by BMF, and was in fact an employee of Brandmet. Mr Wright submits that if this contention is accepted, there is no case against BMF. 16 In support of this contention, Mr Wright submits that: (a) Mr Robinson's employment contract, which is before the Court as an annexure to Mr Robinson's affidavit in support of the interlocutory application, is "unambiguously with Brandmet Pty Ltd". (b) On his own affidavit evidence, Mr Robinson made an informed decision when he entered into the employment contract with Brandmet, and had had the benefit of legal advice on the contract, which was drafted by Mr Robinson's lawyer. (c) The tax records and payslips in evidence reflect that Brandmet was his employer. (d) Mr Robinson's employment for Brandmet involved providing services to various associated entities, of which BMF was only one. This was consistent with express terms of Mr Robinson's contract with Brandmet. (e) Contrary to Mr Robinson's affidavit evidence, Brandmet has only ever existed as a single legal entity. Mr Wright was a director of Brandmet until 1 May 2020, but this did not affect Brandmet's legal status or Mr Robinson's employment. This is evidenced by the fact that Mr Robinson continued to be paid by Brandmet after 1 May 2020 and was issued a written warning by Brandmet in October 2020. 17 In circumstances where Mr Robinson seeks leave to proceed against the wrong entity, and has previously been given an opportunity to amend his application to join the correct entity as a respondent, there is no serious issue to be tried in relation to BMF and the alleged employment dispute with Mr Robinson. 18 Mr Robinson contends that Brandmet was not his employer "under the Fair Work Act 2009 (Cth) and at common law", relying on the judgment of Black J in Re Branded Media Holdings Pty Ltd (in liq); Re Brand New Media Pty Ltd (Subject to A Deed of Co Arrangement) [2020] NSWSC 557. Mr Robinson submits: Brandmet neither controlled nor directed the employees, and importantly, Brandmet had neither assets nor revenue to meet its obligations. Brandmet was nothing more than bank account with an ABN. 19 Mr Robinson also made submissions based on his own affidavit evidence that the liquidator's report included "a number of discrepancies" relating to "current assets and revenue streams available to BMF". He submits that the existence of these "revenue streams", which appears from the affidavit evidence to be a reference to debts owed to BMF for work completed, was not contested by the respondents. The liquidator ought, therefore, to investigate and recoup any funds owed to BMF. Mr Robinson submits that "leave to proceed against the First Respondent should be granted on that basis alone". I note that in his affidavit filed in opposition to the grant of leave, Mr Stone explains why he is not presently persuaded that there are other funds available to BMF which have not yet been identified, and even if it is possible there might be, the costs involved in investigating and then likely litigating in relation to such claims are not sustainable in relation to BMF. Mr Stone also refers to other prospective impediments such as likely applications for security for costs if he were, as liquidator, to seek to investigate and litigate about other funds which Mr Robinson alleges rightly belong to BMF.

Why the applicant should not be left to prove his debt in the winding up 20 Mr Robinson submits that refusing the grant of leave to proceed and requiring him to pursue his debt through the proof of debt process would "greatly prejudice" him. He contends that if it is true that the liquidator does not have funds to investigate the existence of an insurance policy or potential revenue streams, it cannot be expected to properly assess Mr Robinson's claims through the proof of debt process. 21 Mr Robinson further submits that, as the liquidator's report shows the amount owed to Mr Robinson as "significantly lower" than the amount he claims in this proceeding, participating in the proof of debt process will result in the applicant appealing the decision in this Court in any event. The cost and delay of this would cause further prejudice to the applicant. 22 BMF submits that there is no good reason why Mr Robinson should not be required to lodge a proof of debt in the liquidation of BMF. It is a claim for payment of money, and could be resolved via the proof of debt procedure. While Mr Robinson has asserted he will be prejudiced if forced to participate in this process, there is no identification of the prejudice he will suffer. There is no evidence that Mr Robinson's claim would be rejected through this process, although BMF accepts it is too early to know what the outcome would be. 23 Despite Mr Robinson's direct submissions, Mr Wright similarly submitted that there is no basis for suggesting that if the liquidator were to reject Mr Robinson's claim in a proof of debt process, that would bring about an appeal to the Court.

Prejudice to the liquidator and/or other creditors 24 Mr Robinson contends that any prejudice to the liquidator in granting leave to proceed is "self-inflicted" because the liquidator could have chosen to consent to the orders sought in the interlocutory application. Mr Robinson appears to suggest that, as Mr Wright has engaged with the proceeding and filed a defence to the statement of claim, there is no need for the liquidator to participate in the proceeding. Accordingly, a grant of leave to proceed would not cause BMF's limited funds to be depleted. In this submission, it appears that Mr Robinson takes Mr Wright to be acting "on behalf of the Wright group of companies", in this proceeding and otherwise, and he appears to assume Mr Wright's defence of the proceeding will encompass what needs to be said on behalf of BMF in the proceeding. 25 The applicant also contends that the liquidators "chose" to engage legal representatives and oppose the proceeding, and that the resources required for this position could have been used to investigate an issue raised by the lawyers for the applicant to the liquidators by letter dated 24 May 2021. This letter appears as annexure BRG14 to Mr Bartlett's first affidavit. That letter contained several allegations of improper financial conduct on the part of entities apparently related to BMF and Mr Wright. Mr Robinson contends that the liquidator's opposition to the application for leave, and a refusal to grant leave to proceed, would "greatly prejudice all creditors". Mr Robinson's position appears to attribute some improper purposes to the liquidators' conduct in the liquidation process. 26 BMF by its liquidators submits that granting leave to proceed will prejudice creditors other than Mr Robinson, because either BMF will use its limited resources on the legal costs of defending the proceeding, or be unable to defend the proceeding despite the possible existence of defences to the claims. BMF and Mr Wright also submit that Mr Robinson, in his conduct prior to filing this proceeding and in filing the application for leave to proceed against BMF, has already caused significant prejudice to BMF's other creditors by putting BMF to the cost and expense of participating in the leave to proceed application. 27 While any defence raised by Mr Wright may be consistent with a defence that BMF might raise, the liquidator submitted BMF should not be bound by a proceeding it does not have the resources to defend. Mr Wright agreed with this submission. 28 Mr Wright made a similar submission about the prejudice likely to be caused to creditors by the costs of the proceeding, and noted that BMF's recourses are extremely limited, with an expected net deficiency in the accounts of $640,000.

Whether the matter is likely to be covered by insurance 29 BMF submits that there is no reason to believe that Mr Robinson's claims against BMF will be indemnified by an insurance policy. Mr Wright similarly submits that there is insufficient evidence regarding the existence of an insurance policy for it to be a relevant factor to the grant of leave. 30 Mr Robinson submits that it is his belief that the Liquidator refuses to investigate the matter of an insurance policy because it is contrary to their position to object to this application.

Other factors in favour of refusing leave to proceed 31 BMF and Mr Wright between them also make the following submissions: (a) The proceeding was in its early stages at the time BMF commenced to be wound up on 2 February 2021, the time for the respondents to file a defence having not yet passed; (b) Refusal of leave to proceed would not prevent Mr Robinson pursuing Mr Wright through this proceeding. (c) The liquidators appointed to BMF's winding up have established that there is insufficient available property to cover the expense of defending this proceeding should leave be granted. This is established by the affidavit of Mr Stone affirmed on 23 July 2021 at [56]-[57]. (d) The grant of leave to proceed would serve no utility, as BMF does not have sufficient funds to provide relief even in the event leave were granted and Mr Robinson were successful in the substantive claim.

Resolution 32 It can be accepted that there is a serious question to be tried about Mr Robinson's ability to recover the payments and entitlements which he contends are owing to him. From the success of those claims will flow, if at all, some of the other relief he claims. There will need to be a detailed factual investigation of the way Mr Wright behaved, and no doubt a detailed factual investigation of his corporate arrangements, at least as part of resolving the employer issue to which I refer below. 33 Mr Robinson contends BMF was his employer; Mr Wright contends (and indeed has positively admitted) that Brandmet was Mr Robinson's employer. Despite the encouragement in Mr Wright's submissions for the Court to determine this question on this interlocutory application, that would not be appropriate. That will be a question for trial, as will the way in which a particular conclusion on that issue may affect Mr Wright's liability. Noting the approach taken by Edmonds J in Gothard v Davey [2010] FCA 1163; 80 ACSR 56, to which Mr Wright's submissions referred, I find there is a sufficiently serious question to be tried about whether or not BMF was Mr Robinson's employer. That said, the position advanced on behalf of Mr Wright has force, so my finding should be taken as no more than that Mr Robinson's contention cannot be said to be fanciful or unrealistic, and is not a vexatiously made allegation. It is arguable. However it faces the evidentiary and legal obstacles to which Mr Wright's submissions have pointed. I note also that Mr Robinson has steadfastly refused to join Brandmet, despite Mr Wright's admission, and despite being given several opportunities to do so. 34 While Mr Robinson has submitted that he apprehends he will not recover much if anything through the proof of debt process, that is not because the nature of his claims are not recoverable in that way (cf Palace at [40] and the cases there referred to). Rather, it is because he apprehends there will be little or no funds available for distribution to unsecured creditors. That indeed is the position foreseen by Mr Stone in his affidavit. There is force in the contention of the respondents that whatever funds might have been available have been dissipated to a considerable extent by the conduct of Mr Robinson and his legal representatives, and the need for Mr Stone as liquidator to engage with voluminous correspondence, this proceeding and for a period of time another proceeding, and now this leave application. 35 However there is no basis for the Court to find that the liquidator is likely to reject Mr Robinson's proof of debt, other than on the question about which entity was his employer. It would seem unlikely the liquidator would reject the proof of debt on that basis prior to the determination of this Court in this proceeding, the question of which entity employed Mr Robinson being a central issue in the proceeding. 36 I accept the submissions of the liquidator that the choices which a grant of leave would present to the liquidator are inimical to the proper conduct of the liquidation. Either the liquidator allows the proceeding against BMF to go ahead undefended, and forgoes any available defences (including the obviously live issue of which entity was Mr Robinson's employer), or it expends significant funds in actively defending the proceeding, which as the liquidator has submitted would appear to contravene s 545(1) of the Corporations Act. While Mr Robinson makes a range of assertions in his affidavit material about further funds being available to the liquidator, I accept Mr Stone's evidence on this matter: The Company does not have sufficient funds or property to fund a defence of this proceeding. I have not received any funding, or any offer of funding, to be provided to the Company to fund its defence of this proceeding. If leave to proceed is granted, any remaining amount of the Retention Recovery (again, on the assumption it is recovered) will be entirely exhausted on legal costs of solicitors and barristers well prior to any final hearing in the proceeding at which point the Company will not be able to be legally represented and will not be able to defend the proceeding. 37 I should add that I do not accept Mr Robinson's allegations of any improper conduct by, or the improper purposes which he attributes to, Mr Stone. While again, it might be readily understood that this proceeding is of great personal importance to Mr Robinson, that is no excuse for intemperate allegations of the kind made by him and apparently by his legal representatives. 38 Mr Robinson appears to submit it would be rational for the liquidator to elect that BMF should take no active part in the proceeding, because of the active participation of Mr Wright, and the nature of the defence he has filed. That submission ignores the content of Mr Robinson's own pleadings, many of which are only against his employer, which he contends is BMF. Further I accept that BMF should not be placed in a position where it is compelled to be bound by an outcome of a proceeding because there are insufficient funds to defend it. 39 While Mr Robinson's pursuit of BMF is explained in detail in his affidavit evidence, and the conviction of his belief about the correctness of his position on the employer issue is apparent, there does seem to be a sense in which Mr Robinson is simply not prepared to accept the reality of BMF having been placed into liquidation, and the consequences which may flow from that. Again that is understandable at a human level, but it does not justify a departure by the Court from the appropriate approach to the discretion to grant leave to proceed against a corporation in the position of BMF. 40 On the issue of the alleged insurance policy, the liquidator submits: There is no proper basis at present for thinking that an insurance policy exists which is likely to provide an indemnity to BMF in respect of specific claims which Mr Robinson brings against it, such as might benefit Mr Robinson by operation of section 562 of the Act. Mr Robinson has identified the existence of a "Management Liability" policy in the name of BMF which appears to have been current between 31 August 2018 and 31 August 2019. But the terms of the policy are unknown, and Mr Stone has deposed that he does not yet have a copy of the policy, let alone are the nature of its terms yet known. Accordingly, the potential existence of such a policy is, for present purposes, not a relevant factor in respect of the Leave Application. 41 I accept the liquidator's submissions on this matter. There is insufficient proof about the nature of this policy for this to be a factor weighing in favour of the exercise of the Court's discretion to grant leave. 42 I also accept the liquidator's submissions that there is a likely prejudice to the creditors of BMF if leave to appeal is granted, because any remaining amount of retention recoveries from Stockland Development Pty Ltd (funds to which the liquidator agrees BMF is entitled) may be applied to the legal costs involved in participating in this proceeding, instead of being applied "carefully towards improving the chances of making further recoveries in the liquidation for the benefit of all creditors of BMF". Mr Stone's evidence, and the liquidators submissions, do not foreclose investigations about recoveries of further funds (including from the kinds of sources alleged by Mr Robinson), but as they point out, some initial funds must remain available for this option to be pursued. This is the reality of a liquidation process, which Mr Robinson's submissions tend to ignore. 43 The proceeding is still at an early stage, and in that sense there is no prejudice to Mr Robinson in relation to the conduct of the proceeding to this point if leave is not granted - in the sense that it is not as if BMF has engaged in substantial conduct of the proceeding to a point where resources would be wasted if leave were not granted.

Conclusion 44 For these reasons, leave to proceed against BMF will be refused. The liquidator sought in his written submissions to be heard on the question of costs. A substantial part of this proceeding is covered by the terms of s 570 of the Fair Work Act. I would not at present be inclined to see that Mr Robinson's conduct to this point falls within the terms of s 570(2), but the liquidator may wish to be heard on that matter. 45 As I have observed, the subject matter of this proceeding is of great importance to Mr Robinson and his concern at the corporate contortions which appear to have occurred, at least to some extent at the instigation of or with the involvement of Mr Wright, is understandable. It may turn out to be the case that there is nothing impermissible or unlawful in anything that has occurred - all these matters may be explored at trial (or may not). However, Mr Robinson's concern is understandable. While he and his legal representatives may have been over-zealous, and sometimes somewhat misguided, in how various issues have been pursued, I would not at present be inclined to see that sounding in any order for costs. However, the parties will be given an opportunity to be heard on this question if they so wish, and their submissions will be fully considered. 46 The Court's conclusion means the mediation in the proceeding - now between Mr Robinson and Mr Wright, should proceed. The present mediation referral has been extended several times at the request of the parties, and it is now more appropriate for a new referral to be made, reflecting the Court's decision, so that the mediation will occur only between the applicant and the second respondent. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.