7 There was no other appearance at the hearing on 17 May, but before the hearing my associate received a copy of the letter from the solicitors for Perpetual Trustee Company Ltd, mortgagee over some properties owned by Nominees and the plaintiff in possession proceedings No 15598 of 2005, saying that their client did not intend to appear, on the basis that the applicants would not seek orders affecting any property mortgaged to their client. I mentioned this letter during the hearing on 17 May and senior counsel for the applicants confirmed that his clients would not seek any such orders. Additionally, a letter was tendered from HBOS Australia Pty Ltd written on behalf of BankWest, stating the bank's understanding that no orders would be sought adverse to its interests and on that basis the bank did not propose to appear. As far as I can see, nothing that is proposed would prejudice the interests of any secured creditor of the Retirement Villages land. Senior counsel for the Liquidators informed me that these mortgages are over parcels of land but not the assets or undertaking of any business conducted on the land. I have proceeded on that basis.
Brief history of the litigation
8 The applications are the latest chapter in a very complex process of litigation involving the Retirement Villages and in particular, their management under an unregistered managed investment scheme referred to in the evidence as "the Peridon Scheme". In proceeding No 2226 of 2004, Mr Warne, who is an investor in the Peridon Scheme, seeks various orders with a view to the winding up of the Scheme. The defendants to that proceeding are GDK Financial Solutions Pty Ltd ("GDK", a promoter of the Scheme), Nominees (who became the registered proprietor after 9 March 2000, the former owner being Peridon Group Pty Ltd), Peridon Management Pty Ltd ("Management", which managed the Retirement Villages from 9 March 2000 until 9 June 2005), and Condor Asset Management Ltd (trustee of the Peridon Retirement Villages Trust).
9 In proceeding No 4462 of 2005 the Liquidators, initially as administrators, seek various orders concerning the priority of their costs. The defendants in that proceeding are Stephen Parbery (an insolvency practitioner who was appointed by the court as an independent accountant to investigate the Peridon Scheme), David Winterbottom (an insolvency practitioner who was appointed by the court to wind up the Peridon Scheme), and Management.
10 On 16 November 2004 there was a preliminary hearing before Gzell J, who made various orders and noted undertakings. The principal thrust of the orders was for the appointment of an independent accountant who would investigate and report to the court on various matters concerning the Peridon Scheme, which was declared to be a managed investment scheme required to be registered under s 601ED of the Corporations Act. Mr Warne gave the usual undertaking as to damages and in return, the defendants in proceeding No 2226 of 2004 gave a series of undertakings to the court, recorded in para 13 of the orders of the court. The undertakings included the following:
"the Defendants ... will not, themselves, or by their directors, officers, servants or agents ... (d) otherwise than in a transaction in the ordinary course of the Business [the business of the Peridon Scheme], deal with or dispose of the assets of the Peridon Scheme."
11 Mr Pogroski and Mr Billingham were appointed administrators of Nominees on 28 April 2005. On 15 August 2005 the creditors of Nominees resolved that the company be wound up, and consequently Mr Pogroski and Mr Billingham became liquidators.
12 On 6 July 2005 the matter came before Young CJ in Eq, who made various consent orders under s 601EE. He ordered that the Peridon Scheme be wound up and he appointed David Winterbottom as "Appointee" to perform functions in the winding up. He directed Mr Winterbottom to provide Mr Parbury's report confidentially to members of the Peridon Scheme and ordered that any party to the proceedings or member of the Scheme was to serve on Mr Winterbottom and ASIC details of any proposal it wished to make for the future of the Scheme. He ordered Mr Winterbottom to convene a meeting of members to consider any such proposal and to file a report on the outcome of the meeting.
13 The defendants in proceeding No 2226 of 2004, including Nominees, gave an undertaking to the court, recorded at para 11 of the orders, relevantly in the following terms:
"until further order each of the Defendants will not itself, or by directors, officers, servants or agents ... (d) otherwise than in a transaction in the ordinary course of the Business [the business of the Peridon Scheme], deal with or dispose of the assets of the Peridon Scheme, other than entering into leases with incoming residents or surrendering, terminating or releasing leases with outgoing residents, without first giving 7 working days notice in writing to the Plaintiff and ASIC."
14 Later, Young CJ in Eq observed that on 6 July 2005 "the parties had sensibly agreed on a commercial solution as to the way forward" (Warne v GDK Financial Solutions Pty Ltd [2006] NSWSC 259 (7 April 2006), at [62]). Evidently the so-called commercial solution was reached on an assumption that it would be possible to resolve the outstanding issues between the parties swiftly. That proved not to be so. Significantly for present purposes, the arrangements reflected in the undertakings and orders of 6 July 2005 implied or assumed that the Retirement Villages would continue to function. The functioning of retirement villages includes turnover of unit occupation, as residents die or go to nursing home accommodation or leave the units for other reasons, and are replaced by new residents, processes that involve payments by incoming residents and payments to outgoing residents.
15 It will be seen that the undertaking given on 16 November 2004 prevented Nominees (and, subsequently, the Liquidators) from entering into any new leases of units in the Retirement Villages unless the granting of leases was "in the ordinary course" of the business of the Peridon Scheme. It may also have prevented dealings with outgoing residents by way of termination of their leases and payment of refunds and capital gains. The undertaking given on 6 July 2005 expressly permitted entry into leases with new residents and termination of leases with outgoing residents unless the requisite notice was given, but left some uncertainty about payment of refunds and capital gains to outgoing residents unless those "transactions" were in the ordinary course of business.
16 The meeting of members was held on 6 September 2005, and the outcome is described in Young CJ in Eq's judgment at [64]-[71]. The majority of the members supported a proposal by TEYS Property Funds Ltd, but as his Honour noted, there is controversy about certain aspects of the meeting.
17 The trial of proceedings No 2226 of 2004 and 4462 of 2005 took place before Young CJ in Eq on 27, 28 and 29 September and 5 October 2005. In proceeding No 2226 of 2004 his Honour had to decide a complex series of questions relating to the precise definition of the Scheme and further steps in its winding up. In proceeding No 4462 of 2005 he had to decide a series of questions, also complex, about the remuneration claims of, respectively, the Liquidators, Mr Parbery and Mr Winterbottom. He listed the issues in a summary way in his judgment at [80].
18 His Honour delivered judgment on 7 April 2006, and made orders on 20 April 2006. The two proceedings were listed before me for directions in the Corporations List on 15 May 2006, when I heard some limited applications by Mr Warne and stood both proceedings over to 22 May, for further directions and the hearing of applications. I arranged for the Liquidators' application for variation of undertakings to be heard on 17 May, together with proceeding No 2559 of 2006. The application was heard as arranged, and is addressed in the present judgment.
19 By a statement of claim filed on 29 November 2005 in proceeding No 15598 at 2005, Perpetual Trustee Company sought orders for possession of certain parcels of land (not the Retirement Villages properties), against Nominees as defendant. By a notice of motion filed on 21 April 2006, Perpetual sought leave to continue the proceedings against Nominees under s 471B of the Corporations Act (but since the liquidation is a creditors' voluntary winding up, the correct section is s 500(2)). The application for leave was heard and determined by me on 15 May 2006. Mr Warne appeared, by leave. I granted leave to Perpetual to continue the possession proceeding, but I suspended the operation of my order for a short period of time. That matter has been sent back to the Possession List.
20 The Liquidators commenced proceeding No 2559 of 2006 for leave to enter into leases and for judicial advice and directions (as summarised above) on 1 May 2006. That proceeding was heard by me on 17 May and is addressed in the present judgment.
Lease and licence arrangements for residents
21 Since it is being asked to authorise and give directions about payments and contractual arrangements, it is a matter of some importance that the court be provided with clear and complete evidence about the arrangements in question. This is particularly so when the arrangements are quite complicated. I have had some difficulty working out the contractual arrangements in the present case, and the payment obligations in particular, because the affidavit evidence of Mr Pogroski is expressed in general terms not obviously correlating with the documents that have been tendered, and because the documentary tender appears to be incomplete.
22 I have decided that there is enough evidence before me to permit a decision to be taken and orders to be made in the urgent circumstances that have been presented to the court. But I cannot emphasise too strongly that the court will expect, in future, that all applications in this matter must pay meticulous attention to detail. The account presented below relies on an amalgam of affidavit and documentary evidence, stitched together by some inferences that should really have been addressed expressly.
23 There are 164 residential units at the Peridon Retirement Village, according to the annexures to Mr Pogroski's affidavit (although Mr Teys has given evidence that there are 104 units). At least some of the current residents occupy their units under long-term lease agreements entered into between the resident and the Owner/licensor (a position occupied by Nominees). These arrangements are governed by the Retirement Villages Act and, subject to that Act, the terms of the individual contracts.
24 The land upon which the Retirement Villages have been constructed is vested in Nominees as registered proprietor. It appears from the judgment of Young CJ in Eq, at [153]-[165], that Nominees holds the land as trustee, presumably for the purposes of the Peridon Scheme, though there is controversy as to whether Nominees is or is not a "bare trustee". It also appears from his Honour's judgment (at [4]) that the company appointed to manage the Peridon Retirement Village, namely the company I have called "Management", ceased to occupy that role on 9 June 2005. This appears to have left Nominees (then in voluntary administration) in a position in which it had or could assume management functions. There is an issue as to whether Nominees is an "operator" having statutory duties as such under the Retirement Villages Act. After Mr Pogroski and Mr Billingham were appointed administrators, the Office of Fair Trading (which administers that Act) wrote to them expressing the view that Nominees, the registered owner of the land on which the Peridon Retirement Village is located, is an "operator" of a retirement village as defined in s 4 of the Act. Be that as it may, it seems appropriate to conclude that there is no impediment in the structure of the Peridon Scheme to the Liquidators assuming a management role to the extent of granting new leases, receiving ingoing contributions, paying entitlements to outgoing residents and paying expenses for the administration of the Retirement Villages.
25 The sample lease that is in evidence is for a term of 99 years from 27 September 2004, for a unit in the Peridon Retirement Village. The lessor is Nominees, and the lease defines "the Owner" as the lessor or the Manager, depending on the context. There is provision for the lessor to appoint a manager to whom "the rights and obligations of the Owner" may be delegated.
26 Essentially the resident pays the Owner a large ingoing contribution ($310,000 in the sample) at the commencement of occupation. The lease is terminated upon the death of the resident or by the resident giving the Owner notice of intention to permanently vacate the unit, or through a process of application to the Consumer Trader and Tenancy Tribunal. These provisions seem to be consistent with Part 9 of the Retirement Villages Act. When the lease is terminated, the outgoing resident becomes entitled to an "ingoing contribution refund", which the lease agreement describes as repayment of a loan. The amount of the refund depends on the amount received from a new resident upon resale, by a process which involves the Owner estimating the resale value and the marketing of the unit by the Owner or the resident. The resident is entitled to 80% of any capital gain and is responsible for 80% of any capital loss on resale (it appears from other evidence that the percentage shares of capital gain vary from lease to lease). On departure the resident must pay to the Owner various amounts including a departure fee calculated as 3.25% of the resale price adjusted by a factor that takes into account the length of occupation of the unit, so that the fee is 3.25% per annum for a minimum of 3 years and a maximum of 10 years (apparently some leases provide for different percentage rates). There are provisions for refurbishment of the unit upon the outgoing resident's departure and for the resident to pay recurrent charges. The Owner undertakes to manage and operate the village as a retirement village of good standard and keep it in a reasonable state of repair.
27 On another application heard on 15 May, I was told about a "vendor mortgage" which is not in evidence before me on the present applications.
28 There seemed to be 71 residential units at the Wamberal Gardens Retirement Village, according to the annexures to Mr Pogroski's affidavit (although Mr Teys has given evidence that there are only 59 units). Some of the residents are in occupation under leases, apparently of the kind outlined above, and some are in occupation under "loan/licence" contracts not fully documented in the evidence. The sample licence agreement that is in evidence for Wamberal Gardens is a much less elaborate document than the leases for the Peridon Retirement Village. The licensor is not Nominees but I infer that Nominees has assumed that position (note Retirement Villages Act, s 40). Under the licence agreement the resident is granted the right of occupation of the unit from month to month, terminable on one month's notice by either party or the death of the licensee. The licensor is at liberty to terminate only if the licensee fails to comply with the rules and regulations of the village after a request to rectify non-compliance. The licensee pays a weekly occupation fee, and the licensor covenants that the fee will never exceed 27.6% of the single weekly rate Commonwealth aged pension. The licensee covenants to comply with the rules and regulations, a rather more detailed document.
29 I infer that there is also a loan agreement but that is not in evidence before me. The evidence of Mr Pogroski is that the resident pays an ingoing contribution upon entering the village. That is apparently governed by some documentation not provided to me, but it appears from Mr Pogroski's evidence that the terms of payment of that contribution are equivalent to the terms of payment under the leases. Apparently there is also an obligation for the residents of Wamberal Gardens to pay a departure fee like the fee payable by outgoing residents at Peridon Retirement Village, which Mr Pogroski describes (using the outdated terminology of the Retirement Village Industry Code of Practice 1989) as a "deferred management fee".
30 In summary, it appears that if the occupation arrangements are validly terminated:
(a) the outgoing resident is contractually liable to pay a departure fee;
(b) in some cases, where there is a long-term lease, the outgoing resident and Nominees share the capital gain by which the price paid by the incoming resident exceeds the price paid by the outgoing resident;
(c) the outgoing resident is entitled to receive his or her refund under the terms of the lease or licence arrangements (that appears to be an unsecured contractual entitlement) within the timeframe set by the Retirement Villages Act.
31 The Retirement Villages Act reinforces the contractual entitlement of an outgoing resident to receive payments or refunds. Under Part 10 an "owner" of residential premises in a retirement village includes a person whose residence contract is in the form of a registered long-term lease (for a term of at least 50 years) which contains a provision entitling the resident to at least 50% of any capital gains in respect of the premises. It appears that residents of the Peridon Retirement Village who occupy their units under 99 year leases equivalent to the sample lease are taken for the purposes of the Act to own their residential premises because, under the lease, their entitlement is to more than 50% of capital gains (80% in the sample). It appears that residents of Wamberal Gardens under loan/licence arrangements may not be owners of residential premises for the purposes of Part 10, though in the absence of full documentation I cannot be sure. Part 10 gives a resident of a retirement village who owns his or her residential premises certain additional rights, including rights under Division 5 relating to the sale or letting of the premises, and the right under Division 6 to receive any payment required to be made following the sale of the premises within 14 days after (approximately) completion of the sale. Division 6 also prescribes a timetable for a refund of the ingoing contribution required under a village contract, in the case of a former resident who does not own the residential premises, which allows payment to be deferred for 6 months if there is no incoming resident.
32 The Liquidators have prepared tables, based on estimated current sales prices, outlining actual and estimated figures for entitlements to receive capital gain amounts and refunds for each current and former resident of the Retirement Villages. The table for Peridon Retirement Village shows the amounts of unrealised capital gains and "equity" that Nominees has in the units as owner, totalling some $9.6 million. It does not calculate the equity of residents. The table for Wamberal Gardens is more complex because of the variety of occupation arrangements. It shows that the total equity of residents is some $12.602 million after deducting departure fees, while the "owner's equity" including departure fees is approximately $2.97 million.
Current position of residents
33 During the period of the administration and liquidation of Nominees (that is, from 28 April 2005 to date), no residential premises in the Retirement Villages have been re-leased. Eight units in the Peridon Retirement Village and five units in the Wamberal Gardens Retirement Village are currently vacant. The Liquidators have prepared a table of "Departed Residents", as at 28 April 2006, for each village. The tables indicate that money has fallen payable to 12 of the 13 outgoing residents, with the remaining payment becoming due on 6 September 2006. In some cases money has been outstanding for many months. For some reason the amounts payable to individual outgoing residents are not shown in the tables, but they appear to amount to many thousands of dollars.
34 One can expect that, in the normal course, more residents will wish to depart. For example, correspondence is in evidence indicating that a married couple occupying one of the units at the Peridon Retirement Village wish to begin the marketing of their unit so they can move to another town where their children and families are residing. The wife is frail and her condition is rapidly deteriorating. The husband is her carer.
35 The Liquidators' solicitors have advised Village Care to tell residents who are contemplating departure that the proceeds of re-leasing a unit will be paid to the liquidator of Nominees, and their claim to receive a refund payment will be an unsecured debt ranking with all the other debts of Nominees, eventually receiving such pro rata distribution as the assets of Nominees allow. The solicitor observes that this situation will dissuade departing residents from assisting the village owner to sell their units.
36 It appears that some expressions of interest to lease the units that had been vacated have been received by Village Care and by the former occupants themselves. Current and former residents are said to be extremely concerned about their inability to make progress with selling and re-leasing units, and the uncertainty regarding payment of the refunds that are now owed or will come to be owed.
37 The delay in re-leasing units and paying refunds to outgoing residents is also detrimental to the ongoing businesses of the Retirement Villages. The delay is preventing the generation of income from departure fees and capital gains sums, and harming the goodwill of the businesses, as well as causing considerable concern and financial uncertainty to current and former residents. The Liquidators are concerned that their continuing inability to ensure that outgoing residents will receive refunds following re-sale is likely to hinder the progress of sales and depress the market prices of Village premises.
38 As registered proprietor of the land, Nominees is the only party with the power to enter into leases or licences for units in the Retirement Villages, but the Liquidators need the approval of the court under s 477(2B) of the Corporations Act, or of a resolution of creditors, before entering into new agreements for a term of more than three months.
Payment of Village Care
39 Nominees and Management entered into a management agreement under which Nominees engaged Management to assist with the day-to-day management and operation of the Retirement villages. This management agreement was terminated on 9 June 2005, in circumstances that need not presently be explored. On 10 June 2005 Nominees engaged Village Care Ltd to assist with the management and operation of the Retirement villages. According to Mr Pogroski, this was made possible by funding given to the administrators by Mr Warne. He says that Mr Warne has ceased to make funds available, and the fees of Village Care for all the services they have provided from November 2005 to date are unpaid. The total amount stood at a little over $76,000 up to 9 March 2006 and appears to be accruing at over $15,000 per month. Mr Warne says, according to the correspondence in evidence, that he agreed to provide only short term funding and has discharged his obligation.
40 I was informed from the bar table that the work done by Village Care includes things such as cleaning, mowing lawns and other maintenance. It is essential work for the ongoing operation of the Retirement Villages. Village Care does not deal with more complicated matters such as outgoing residents and dealings with vacant land, which are currently matters left for the Liquidators (Transcript page 3.20). This supports the conclusion reached above, that it is open to Nominees by its Liquidators, under the structural arrangements of the Peridon Scheme, to carry out the management functions proposed in the applications, if the orders sought in the applications are made.
The Liquidators' proposals
41 The Liquidators wish to use money provided out of ingoing contributions by new residents to pay the amounts due to outgoing residents and Village Care. Mr Pogroski says that part of the ingoing contribution paid by a new resident of a unit is to be used as the source of funds to pay the refund due to the former resident of the unit that is to be occupied by the new resident. That does not appear to be correct, because it does not take into account the proposed payment to Village Care. Doing the best I can to understand the proposal, I take it to be that, out of the total ingoing contributions to be received if the 13 vacant units are re-leased, an amount will be deducted by the Liquidators sufficient to pay all monies owing to the outgoing residents (whether they became entitled to be paid before or after the commencement of the administration) and owing to Village Care.
42 Mr Pogroski has expressed the opinion in evidence that it would be prudent, from an economic point of view, to pay out all outgoing residents in full, notwithstanding that at the date of the commencement of the administration those residents were unsecured creditors. He draws attention to s 40 of the Retirement Villages Act, according to which a village contract between a resident and a former operator of a retirement village may be enforced against any subsequent operator. Although proceedings do not lie against the owner of the land in the retirement village, the purchaser of a retirement village business will become an operator and be subject to liability under existing contracts by force of s 40. Therefore, says Mr Pogroski, any future purchaser and operator of the Retirement Villages is likely to pay a higher price if those liabilities are discharged than would be paid if the liabilities remained.
43 The Liquidators have made their proposals in circumstances where, according to their submissions, the financial position of Nominees is uncertain. Although there is no direct evidence of this, I was informed in submissions that the Liquidators have not yet completed their determination of the position of creditors, owing to the ongoing litigation and uncertainty as to the legal position. I was told that they had undertaken some work disclosed in their report as voluntary administrators (not in evidence on the applications), but it was not submitted that this report would be of any particular use to the court in determining the financial position of Nominees at this stage.
Particulars of proposed payments
44 For the purposes of the applications, the Liquidators rely on an affidavit by Michael Teys, chief executive director of Teys Property Funds Ltd, which is proposing to acquire the Peridon Scheme. He has caused valuations to be prepared for the properties that are the subject of the Scheme. The total valuation of the owner's interest in the units at Peridon Retirement Village and other land held by Nominees is said to be $9.49 million. The owner's interest in Wamberal Gardens is said to be $2.3 million. These figures are a little lower than the figures given in the annexures to Mr Pogroski's affidavit. It is not necessary for me to make any precise finding as to the value of the owner's interest in the Retirement Villages.
45 According to Mr Teys, "departed residents" of Peridon Retirement Village are entitled to be paid $1,713,195 "less 80% finance available on these properties" (a deduction not explained to me), leaving a net figure of $342,639. In the case of Wamberal Gardens, the amount payable is $191,500 "less 80%", leaving a net figure of $178,200. Taking those figures at their face value, the Liquidators need $531,139 to pay departed residents. The amount needed to pay Village Care till the end of May 2006 is estimated by Mr Teys to be $107,000. Therefore $641,139 is needed to make the payments proposed in the application. All of this money is intended to be paid out of ingoing contributions.
Application for approval of leasing
46 The Liquidators propose to procure new residents for the 13 vacant units in the Retirement Villages and, in some or all cases, to grant long-term leases to them in the same or similar terms to the sample leases in evidence. I infer that they may wish, in some cases, to enter into other occupation arrangements of the kind illustrated by the evidence, and that those arrangements would also fall within s 477(2B). Their proposal raises four legal issues: first, whether the Liquidators have the power to grant leases or make the other occupation arrangements; secondly, whether the court should approve such agreements under s 477(2B); thirdly, whether an order should be made having the effect of removing any obstacle to leasing contained in Nominees' undertakings to the court; and fourthly, whether (assuming there is power) the court should give the Liquidators advice or directions about what they propose to do.