White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) (No 6) [2019] FCA 17

1. The Liquidators of the Second Plaintiff ('Company') are justified in treating and having treated: (a) monies held in the Company's Bank Accounts (as defined in Mr White's affidavit sworn 5 March 2018) as at the date of the appointment of Administrators on 21 December 2017 ('Relevant Date') as assets of the Company; and (b) monies received by the Company on or following the Relevant Date as assets of the Company. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an application by the Company's liquidators (previously its administrators) pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (i.e. Schedule 2 of the Corporations Act 2001 (Cth)) for a direction that: 'in circumstances where unpaid vendors were afforded an opportunity to assert a proprietary interest in accordance with the Court's orders on 21 May 2018 and have failed to do so, the Liquidators are justified in treating and having treated: (a) monies held in the Company's Bank Accounts (as defined in Mr White's Affidavit) as at the date of the appointment of Administrators on 21 December 2017 (Relevant Date) as assets of the Company; and (b) monies received by the Company on or following the Relevant Date as assets of the Company.' 2 I have explained the background to the present application in the reasons for judgment I gave when refusing, on 27 November 2018, Messrs Chappell and Hung's application to reopen the present application after this judgment was reserved: White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) (No 5) [2018] FCA 1847 ('Mossgreen (No 5)') at [3]-[8]. These reasons assume a familiarity with those reasons and also with the reasons I delivered on 21 May 2018 in White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) (No 3) [2018] FCA 711 ('Mossgreen (No 3)'). 3 On the application for the above direction the Liquidators read the affidavits of James White of 5 March 2018, Jeffrey Marsden of 19 September 2018 and Andrew Sallway of 2 October 2018. The application was opposed by three sets of unpaid vendors. These were Messrs Chappell and Hung, Ms Asprey and the trustees of the Estate of the late Ms Idelson. The application was supported by the secured creditor, Jadig Investments Pty Ltd ('Jadig'). 4 As I have explained in Mossgreen (No 5) the whole point of Order 4 of 21 May 2018 and the deadline it imposed for the bringing of any trust claims was to facilitate, to the extent possible, the Liquidators being able to proceed with the winding up if no trust claims were made. As matters stand at the moment, no trust claim can be brought against the Company by an unpaid vendor without a grant of leave under s 500(2). Ordinarily where trust claims are involved leave is granted, as I explained in Mossgreen (No 5) at [15]-[16]. However, as I also indicated in the same discussion, this case is not usual and the number of potential trust claimants and the size and variety of the potential claims means that the winding up cannot proceed without the status of those claims being first ascertained. Unless this issue is addressed then so long as a single unpaid vendor claim remains unresolved out of the approximately 500 or so which exist, the Liquidators will not be able safely to deal with the funds which they hold. 5 The point of Order 4 was therefore to find out whether any trust claims were to be brought and, if they were not, to allow the Liquidators to continue with the winding up. The Liquidators now submit that no unpaid vendor claim was made within the time limit stipulated by Order 4; that the Court will not be granting leave under s 500(2) in the future for any unpaid vendor claim to be brought because the deadline for any such claim under Order 4 has expired; and, in those circumstances, the Court should direct them that they may deal with fund with certainty. 6 The trustees of the estate of the late Ms Idelson ('the Estate') opposed the adoption of this course. The Estate's position and its submissions were in essence adopted by Ms Asprey and Messrs Chappell and Hung. The best argument went as follows: first, the Estate had a trust interest in the funds held by the Company arising from the fact that it had sold the Estate's goods for $36,034 but failed to pass on any of that money to the Estate. Plainly, so the argument ran, the money did not belong to the Company and was therefore impressed with an express, implied or constructive trust; secondly, the Court's power to make a direction under s 90-15 was not so extensive as to permit the Court to divest the Estate of its trust property although it was extensive enough to permit the Court to determine whether there was a trust; thirdly, in the alternative, the Court would not make the direction sought as a matter of discretion since it would involve the forfeiture of the Estate's property. 7 There is no doubt that this argument, if it be accepted, undermines the machinery put in place by the orders made on 21 May 2018. The sense that it does so does not, however, excuse the Court from dealing with the argument on its terms. There are some aspects of it that I feel unable to resist. The submission by the Estate that it has a trust interest in the Fund where that claim merely forms part of a contention as to why a direction under s 90-15 should not be made is not, in my opinion, the making of 'claim' within the meaning of s 500(2). The immediate consequence of that observation is that the Estate does not need the Court's leave to pursue its present contention. Another related consequence is that Order 4 of 21 May 2018 does not apply to it since it is apparent that 'claim' in that order means the same as 'claim' in s 500(2). There is, therefore, no direct procedural bar to the Estate now raising the claim that it does in response to the application for the direction sought by the Liquidators. It was for that reason that I permitted the three sets of unpaid vendors to appear and to oppose the making of the direction. 8 The fact that the submission can be made does not mean, however, that the Court necessarily has to entertain it. I am prepared to assume for the sake of argument that s 90-15 cannot be used, by a side wind, to extinguish a trust interest in the Fund belonging to the Estate. But I do not think that the Court is bound to determine whether there is, in fact, such trust property as an aspect of the defence of a claim under s 90-15. I accept that it certainly could decide that the issue was best determined in the Liquidators' application for a direction but I do not think that is the only way the issue could be addressed. 9 I have previously explained why I think that the only rational way for the trust claims to be determined is by means of the bringing of appropriate proceedings by the unpaid vendors. My views on that have not altered. Given that the trust claimants have eschewed the mechanism for determining the trust claims which the Court determined on 21 May 2018, I do not think I would exercise the power in s 90-15 in such a way as to permit the trust issues now to be raised defensively. This is not because they are claims requiring leave under s 500(2) but because the power in s 90-15 is sufficiently ample to permit the mode by which such claims are to be determined to be selected by the Court. I do not doubt, for example, that I could now adjourn the application for the direction under s 90-15 pending the Estate establishing by means of a separate proceeding that it has a trust interest. If the Court can do that I do not see why it may not also determine that it is not going to entertain trust claims which have not been curially established where a regime for curial determination had been previously been put in place but eschewed by the putative trust claimants. 10 I therefore decline to entertain the trust claims which are made by Estate. Since it has established no trust interest in the fund by the mode the Court selected for the determination of that issue, its claims provide no reason not to make the direction sought. No issue about the power of the Court to make the direction arises because no trust interest has been established under the procedure put in place by the Court to determine that issue. It is the Court which controls the mode by which such claims may be pursued, not the Estate. 11 The Estate made some other points too. It said that the Court had been in error in putting in place the regime it did on 21 May 2018. It was submitted that it would have been preferable to use the representative process favoured by the trustees. I gave my reason for rejecting that approach in Mossgreen (No 3) from which no appeal was brought. After the expiry of the deadline set by those orders is not the time to be seeking to have the orders varied, especially where the Liquidators have acted on the basis of the deadline by bringing the present application. 12 The Estate also submitted that the orders had put it in an impossible economic position given the size of its claim (around $36,034) and the costs risk it faced at the hands of the Liquidators and Jadig. That may well be so but I was aware of that fact when I made the orders of 21 May 2018 and it provides no basis for departing from those orders. In any event, the correct course if there were substance in the contention would have been to appeal the orders of 21 May 2018; it certainly was not the correct approach to wait until the deadline had expired and then to seek a variation of the regime nunc pro tunc. To the extent that it is a different point I reject also the submission that the Estate had been expecting another unpaid vendor to bring a claim and had been caught flatfooted when that did not occur. Whilst that explains why the Estate finds itself in its present predicament, it does not provide any basis for departing from the orders of 21 May 2018. 13 Similar submissions were made on behalf of Ms Asprey and Messrs Hung and Chappell. I reject them for the same reasons. 14 In those circumstances, no unpaid vendor claims having been made within the timeframe fixed for their making by the Court, the Liquidators should be at liberty to deal with the fund as an asset of the company. The direction sought by the Liquidator will be made. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.