Rupert Co v Chameleon Mining

Supreme Court of NSW|2006-05-08|Before: Austin J

CITATION : Rupert Co v Chameleon Mining [2006] NSWSC 415

CATCHWORDS : CORPORATIONS - winding up - termination of winding up after completion of deed of company arrangement - deed and accompanying creditors' trust provide for recapitalisation of company and payment of subscription amount into a trust for the benefit of participating creditors, while releasing the company from its obligation to pay them - interests of existing and future creditors, contributories and the public - relevant considerations in a case involving a creditors' trust

LEGISLATION CITED : Corporations Act 2001 (Cth), s 482

Mercy & Sons Pty Ltd v Wanari Pty Ltd (2000) 35 ACSR 70 Re Gympie Gold Ltd (2006) 56 ACSR 690 CASES CITED : Re Nardell Coal Corporation Pty Ltd (2004) 49 ACSR 110 Sutherland v Rahme Enterprises Pty Ltd (2003) 46 ACSR 458 Vero Workers Compensation v Ferretti [2006] NSWSC 292

Rupert Company Ltd (P) PARTIES : Chameleon Mining NL (in liq) (D) John Vouris, as liquidator of Chameleon Mining NL (in liq) (A) Centrebright Pty Ltd (contributory, by leave)

SOLICITORS : Dibbs Abbott Stillman (A) Deacons (contributory)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

4822/04 RUPERT COMPANY LTD V CHAMELEON MINING NL (IN LIQ)

1 HIS HONOUR: Mr Vouris, the liquidator of the defendant company, Chameleon, has applied by interlocutory process for an order under s 482 of the Corporations Act terminating the winding up of the company. He has standing to make the application, under s 482(1A)(a). At the hearing of the application, a contributory called Centrebright Pty Ltd appeared by leave, and supported the application. The creditor that applied for and obtained the order for the winding up of Chameleon, Rupert Company Ltd, has provided a letter supporting the application. The Australian Securities and Investments Commission has informed the court by letter that it neither consents to nor opposes the application.

2 Chameleon was a listed public company. On 30 September 2004 its shares were suspended from trading on the Australian Stock Exchange, and on 22 December 2004 this court made an order for the winding up of the company and the appointment of Mr Vouris as its liquidator. At that time Chameleon was in the process of acquiring tenement assets for the purpose of gold exploration in Australia and Fiji, as well as the acquisition of a producing copper mine in Chile.

3 Mr Vouris called for proofs of debt, eventually receiving proofs totalling about $5.8 million. In January and February 2005 he advertised for expressions of interest in the assets of Chameleon, receiving some 91 expressions of interest, some of which were confidential. He convened a meeting of creditors, which was held on 31 March 2005, at which a Committee of Inspection was appointed.

4 On 11 April 2005 the Committee of Inspection met and considered the expressions of interest for acquisition of Chameleon's assets. The Committee resolved to accept an offer from Centrebright to recapitalise Chameleon by subscribing $1.53 million in return for a majority shareholding, by a process involving voluntary administration and the deed of company arrangement, and a trust for creditors.

5 On 10 June 2005 a subscription agreement was entered into between Centrebright and Chameleon. Under the terms of that agreement, Centrebright was required to pay Chameleon $1.53 million in three tranches, subject to the satisfaction of a number of conditions. The conditions included the court's approval to appoint the liquidator as voluntary administrator, a resolution of the creditors of Chameleon to enter into a deed of company arrangement ("DOCA"), and the appointment of a new board of directors of Chameleon comprising nominees of Centrebright. There were also conditions directed to resolving a dispute between Chameleon and various parties associated with a company called Chalceus Ltd, arising out of Chameleon's announcement of the takeover bid for Chalceus, which need not be further particularised here. According to the subscription agreement, the subscription amount was to be used to pay the costs of the recapitalisation, and to repay creditors of Chameleon pursuant to the proposed DOCA and a contemplated Creditors' Trust, under which the subscription amount would be held for the benefit of creditors of Chameleon.

6 On 18 June 2005 this court granted leave to Mr Vouris to be appointed administrator of Chameleon. At that time Mr Vouris gave evidence to the court estimating that, if the subscription agreement could be completed by the process of administration it contemplated, the unsecured creditors of Chameleon would receive a dividend of approximately 57% of the value of their debts. The current estimate, noted below, is lower.

7 Mr Vouris reported to creditors as administrator, and convened a meeting under s 439A. The report addressed negotiations for the sale of the business/corporate shell and the subscription agreement with Centrebright, a copy of which was annexed to the report. The report noted that an application was contemplated to this court to permit the company to be placed into administration. There was some relatively detailed analysis of potential actions against directors and for recovery in respect of voidable transactions. The report recommended that the creditors approve the DOCA and Creditors' Trust, and stated why the proposed DOCA would involve a Creditors' Trust (essentially, to permit the immediate resumption of trading on the ASX, since the creditors' claims would be commuted into claims against the trust, by force of the DOCA). The report also gave an account of the administrator's attempt to ensure that the DOCA and the Creditors' Trust were in compliance with ASIC's guide for registered liquidators appointed under Part 5.3A, External administration: Deeds of company arrangement involving a creditors' trust (May 2005).

8 On 13 September 2005 the creditors resolved to approve the proposed DOCA and the attached form of Creditors' Trust. In the usual fashion, the DOCA purported to bind participating creditors, whose claims related to circumstances occurring before Mr Vouris' appointment as administrator. Under clause 4.4 of the DOCA, participating creditors were required to accept their entitlements under the Trust in full satisfaction and discharge of their debts. Under clauses 11 and 32, the company was required to pay to the Trust the proceeds of the issue of shares to Centrebright under the subscription agreement, and the participating creditors were entitled to prove their claims against the Trust as beneficiaries in accordance with the terms of the trust deed. Clause 14 provided that the DOCA would terminate within 2 business days of satisfaction of the conditions for payment prescribed by the subscription agreement, and the payment of the subscription amount accordingly.

9 A general meeting of shareholders of Chameleon was held on 11 January 2006, to approve the issue of shares to Centrebright and certain other parties, and to appoint new directors of Chameleon. The proposals that were put to shareholders were supported by an independent expert's report by BDO Corporate Finance Pty Ltd, which attached an appraisal of mineral assets by a firm of consulting geologists. The shareholders approved the proposals.

10 It appears from the minutes of the meeting that there were some heated exchanges which might lead to litigation involving the company and/or Mr Vouris. Mr Vouris exhibited to his affidavit of 27 April 2006 a letter threatening legal proceedings arising out of the meeting, but said that at the date of swearing his affidavit, he had not been served with any originating process. The evidence regarding those matters does not appear to me to affect the issues raised by the proposed termination of the winding up. Any cause of action that may have accrued against the company will continue to be available after termination of the winding up.

11 The Creditors' Trust contemplated by the DOCA was established on 4 April 2006, with Mr Vouris as trustee. In the period from 5 April to 26 April 2006, Mr Vouris as trustee received the balance of payments due from Centrebright, and after deduction of his costs and expenses, he transferred the net proceeds of $1,010,373.48 into the Creditors' Trust account. According to the terms of clause 14 of the DOCA, to which I have referred, the deed automatically terminated on 28 April 2006.

12 It appears that the company has not engaged in any trading activity since the commencement of its voluntary administration. It has, however, incurred some debts (in addition to the cost of administration) during that period, which would not be claims of participating creditors for the purposes of the DOCA and the Creditors' Trust. However, I was informed from the bar table that these debts are of relatively minor amounts, such as recurrent fees for the preservation of mining tenements. Additionally there is the prospect that the company will incur debts in the course of its re-establishment as a listed entity. In a letter dated 5 April 2006 directed to Chameleon's liquidator, Centrebright refers to the present application for termination of the winding up and says: "As disclosed in the Short Form Prospectus [not in evidence, but perhaps prepared in connection with the application for admission of Chameleon's new shares to quotation on the ASX], Centrebright Pty Ltd shall pay any debts of the Company after the termination of the liquidation as and when they fall due, until the Company is able to do so on its own behalf."

13 The evidence includes some correspondence between Mr Vouris' solicitors and a firm of solicitors called MJ Woods & Co, whose client is MGG Capital Pty Ltd. It appears that MGG alleges an entitlement to 15 million shares in Chalceus Ltd. As mentioned above, Chameleon made a takeover bid for all the issued shares in Chalceus before the commencement of its winding up. On 3 April this year MJ Woods & Co wrote to Mr Vouris threatening an urgent application to the duty judge for interlocutory injunctive relief. On 5 April Mr Vouris' solicitor replied, saying that Mr Vouris did not accept MGG's asserted entitlement, and claiming that even if there was such an entitlement, MGG would now be estopped from pressing the assertion in the face of its delay, and the prejudice it would cause other creditors of Chameleon, in view of the steps taken by Mr Vouris towards recapitalisation of the company and the establishment of the Creditors' Trust for the benefit of creditors. Subsequently on 7 and 11 April MJ Woods & Co wrote to Mr Vouris' solicitors putting to them a series of "requisitions" seeking information with respect to their client's claim. On 12 April 2006 Mr Vouris' solicitors replied, asserting that Mr Vouris was under no obligation to provide the information or documents requested in declining to do so. In his affidavit made on 27 April 2006, Mr Vouris said that at that date, MGG Capital had made no application to any court in relation to the allegations contained in the correspondence. On the basis of the limited evidence that is before me, I can see no foundation in the correspondence for the court declining to deal with the application for termination forthwith.

14 Because of the effect of the DOCA and Creditors' Trust, Chameleon presently has no significant body of creditors. It still holds assets (apart from the value of its capital) in the form of mining tenements to an approximate value of $1.843 million, according to BDO Corporate Finance's valuation. It is therefore solvent. Mr Vouris has advertised for creditors to lodge their claims against the Trust. He says that total creditors' claims, after adjudication has been completed, will be somewhere between $2,142,095 62 and $2,709,630.50. The estimated dividend to creditors is between 40.73% and 25.43% of the total creditors' claims.

15 In my opinion the case for termination of the winding up has been made out. In the exercise of its discretion whether to terminate the winding up, the court considers in the interests of creditors (including future creditors), the liquidator, contributories and the public: generally, see Mercy & Sons Pty Ltd v Wanari Pty Ltd (2000) 35 ACSR 70, Re Nardell Coal Corporation Pty Ltd (2004) 49 ACSR 110, Sutherland v Rahme Enterprises Pty Ltd (2003) 46 ACSR 458.

16 Here the interests of the company's creditors at the time of Mr Vouris' appointment as administrator had been addressed by the DOCA and the Creditors' Trust, which were approved by the creditors at their meeting. The evidence is that these creditors will receive a substantial distribution from the Trust, whereas if the company had remained in liquidation, they would have received little or no return. There is no significant body of post-administration creditors.

17 The interest of future creditors, if the company were permitted to resume trading and incur future debts, was an important criterion in cases such as Mercy v Wanari, Re Nardell Coal, Sutherland v Rahme Enterprises, Re Gympie Gold Ltd (2006) 56 ACSR 690 and Vero Workers Compensation v Ferretti [2006] NSWSC 292. In those cases, there was a deed of company arrangement which had not yet been concluded, and there were creditors of the company who would remain as creditors if the winding up was terminated (although the creditors, typically related creditors, were subject to various forms of purported subordination or deferral). Because of the continued existence of substantial debts which might prejudice their prospects of recovery, the court was not satisfied that it was in the interests of future creditors that the winding up be terminated.

18 Here, on the other hand, the effect of the DOCA and the Creditors' Trust is to transfer the creditors' claims to the Trust and release the company from liability to pay those debts. The arrangements appear to me to conform to ASIC's guidelines for creditors' trusts, and ASIC chose not to appear to oppose the application. I can see no reason for regarding the relevant provisions as ineffective. Therefore the concern over the interests of future creditors, if a company with substantial existing debts is permitted to resume trading, is not a relevant concern in the present case. Moreover, creditors whose debts arise in the short term have the protection, such as it is, of Centrebright's letter of 5 April 2006.

19 Termination of the winding up is not contrary to the liquidator's interests, as he is the applicant and his evidence is that his fees have been fully paid. Any costs he incurs in acting as trustee of the Creditors' Trust are to be borne by the Trust rather than the company. As to contributories and the public, if the liquidation were to continue Chameleon would be unable to lift the suspension on trading of its shares on the ASX. This would be to the disadvantage of its shareholders, including Centrebright, and would prevent investors on the ASX from buying and selling Chameleon's shares. The contributories have approved the issue of new shares for the purpose of recapitalising the company. In these circumstances, and in the absence of any identifiable prejudice, it is in the public interest, as well as the interests of contributories, that the winding up be terminated.

20 Therefore the appropriate course is to order that the winding up of Chameleon be terminated.

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