Young, Jr, in the matter of Buccaneer Energy Limited v Buccaneer Energy Limited

THE BOARD, BUCCANEER ENERGY LIMITED ACN 125 670 733

REASONS FOR JUDGMENT 1 By an amended originating process filed on 27 June 2014, made pursuant to s 6 of and Articles 15, 20 and 21 of Schedule 1 to the Cross-Border Insolvency Act 2008 (Cth) and rule 15A.3 of the Federal Court (Corporations) Rules 2000 (Cth), the plaintiffs seek an order under paragraphs 1 and 2 of Article 17 of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (United Nations General Assembly Resolution A/RES/52/158 (1997)) (the Model Law) recognising proceedings 14-60042 in the United States Bankruptcy Court southern district of Texas (the United States proceeding) as a foreign main proceeding, and consequential orders. 2 The United States proceeding concerns a voluntary petition under Chapter 11 of the United States Code (the Bankruptcy Code) in respect of the insolvency of Buccaneer Energy Limited (Buccaneer), brought by the first plaintiff. Buccaneer is an Australian public company listed (although trading of its shares is suspended) on the Australian Stock Exchange (ASX). It has a number of wholly owned subsidiaries incorporated in the United States. The plaintiffs are Buccaneer's Chief Restructuring Officer and board of directors. Chrystal Capital Partners LLP (Chrystal), an unsecured creditor of Buccaneer, opposes the plaintiffs' application on the basis that the United States proceeding is not a foreign main proceeding. 3 Article 17(2) of the Model Law provides that a foreign proceeding shall be recognised: (a) As a foreign main proceeding if it is taking place in the State where the debtor has the centre of its main interests; or (b) As a foreign non-main proceeding if the debtor has an establishment within the meaning of subparagraph (f) of article 2 in the foreign State. 4 Article 16(3) provides that, in the absence of proof to the contrary, the debtor's registered office is presumed to be the centre of the debtor's main interest. The concept of "centre of main interests" is not otherwise defined in the Model Law. However, it has been judicially considered in a number of authorities to which the plaintiffs' and Chrystal's submissions refer. 5 In Moore, as Debtor-in-Possession of Australian Equity Investors v Australian Equity Investors [2012] FCA 1002 at [19], Emmett J said (at [19]-[20]): [19] The centre of main interests is to be determined in the light of the facts as at the relevant time for determination, but those facts may include historical facts that have led to the position as it is at the time for determination. In making a determination, the Court must have regard to the need for the centre of main interests to be ascertainable by third parties, creditors and potential creditors in particular. It is important, therefore, to have regard not only to what the debtor is doing, but also to what the debtor would be perceived to be doing by an objective observer. It is important also to have regard to the need, if the centre of main interests is to be ascertainable by third parties, for an element of permanence. [20] The Court should be slow to accept that an established centre of main interests has been changed by activities that may turn out to be temporary or transitory. There is no principle of immutability (see Shierson v Vlieland-Boddy [2005] EWCA CiV 974, [2005] 1 WLR 3966 at [55]). The centre of main interests should correspond to the place where the debtor conducts the administration of the debtor's interests on a regular basis and that is therefore ascertainable by third parties. It must be identified by reference to criteria that are both objective and ascertainable by third parties. … 6 In Ackers v Saad Investments Company Ltd (in liq) (2010) 190 FCR 285; [2010] FCA 1221, Rares J held (at [49]) that the appropriate test for ascertaining a debtor's centre of main interest was that stated by the European Court of Justice in Re Eurofood IFSC Limited [2006] Ch 508; [2006] All ER(EC) 1078 ("Eurofood") at [33]-[35]. In Eurofood, the Court considered a recital in the Preamble to the corresponding European regulation which stated: "The 'centre of main interests' should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties". At [33]-[35], the Court said: [33] That definition shows that the centre of main interests must be identified by reference to criteria that are both objective and ascertainable by third parties. … [34] It follows that, in determining the centre of the main interests of a debtor company, the simple presumption laid down by the Community legislature in favour of the registered office of that company can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which locating it at that registered office is deemed to reflect. [35] That could be so in particular in the case of a "letterbox" company not carrying out any business in the territory of the member state in which its registered office is situated. 7 The key proposition that emerges from these decisions is that the centre of main interest must be identified by reference to criteria that are objective and ascertainable by third parties. The central difference between the plaintiffs and Chrystal is that the plaintiffs emphasise the operational aspects of the group of companies and Buccaneer as the parent company, those operational aspects being based (according to the plaintiffs) in the United States, whereas Chrystal characterises that evidence as showing that Buccaneer's main centre of interest is in Sydney, Australia, but that it has various subsidiaries incorporated in the United States which conduct oil and gas exploration businesses in the United States. 8 In support of its characterisation, Chrystal emphasised two documents. The first is an ASIC company extract in respect of Buccaneer which shows Buccaneer's state of registration as Queensland, its current registered office and principal place of business as being an address in Sydney, and that its current and recent former company officers are predominantly (but not exclusively) located in Australia. 9 The second document is Buccaneer's 2013 annual report (the annual report), which in various places refers to Buccaneer as an "Australian listed company" and identifies Australian directors as well as disclosing the activities of its subsidiaries. Chrystal also pointed to references, in the section of the annual report dealing with Buccaneer's compliance with the ASX Corporate Governance Council's principles of corporate governance, to the board of Buccaneer operating under a charter which reserves to the board various matters that might loosely be characterised as the overall control and direction of the parent company. 10 I am not persuaded that the annual report has the effect for which Chrystal contends. The annual report does more than merely identify Buccaneer as an Australian listed company. The very words relied upon by Chrystal do not appear in isolation but, rather, describe Buccaneer as "an Australian listed company focused on developing its 100% owned oil and gas assets in Alaska". Read in its entirety, the annual report discloses that: (1) The main activity of Buccaneer is what is described on the cover page as "Leading the oil & gas revitalisation of the Cook Inlet, Alaska". (2) Buccaneer's wholly owned subsidiary, Buccaneer Resources, is an upstream oil and gas company based in Houston, Texas. (3) Buccaneer's "vision and strategy" as parent company is "Focussed on developing its oil and gas assets in Alaska". (4) "[t]he Group's flagship projects are a series of onshore and offshore developmental and exploration prospects in Alaska's Cook Inlet". (5) Buccaneer has numerous subsidiary companies which are identified as being involved in the exploitation of various oil and gas assets. (6) From early July 2013, following a management restructure, Buccaneer's key management personnel consisted of executives who, together with the directors, comprised "the named relevant consolidated group executives who make or participate in making decisions that affect the whole, or a substantial part, of the business, or who have the capacity to significantly affect the Group's financial standing". While the domiciles or areas of operations of those named executives are not identified in the annual report, the annual report itself makes reference to some of those executives each being paid in US dollars. There is also other evidence, dealt with below, which indicates that it was objectively ascertainable by creditors, that the activities of those key management personnel took place in the United States. 11 The statements in the annual report about Buccaneer's board charter and compliance with corporate governance principles do not displace the effect of the other material in the annual report which discloses that the parent company's real activities, and not merely those of the subsidiary companies, are focussed on the development of oil and gas assets in Alaska through the activities of a group of key executives who are paid in United States dollars. The overall effect of the annual report is that Buccaneer's operations are in substance solely or primarily concerned with activities in the United States; namely, the exploitation of oil and gas assets in Alaska. 12 Leaving aside the ASIC company extract and the annual report, the plaintiffs have adduced a wealth of evidence, material which I consider to be objectively ascertainable, that confirms the centre of main activity of the parent company to be, in substance, Houston, Texas. A list of the relevant circumstances and corresponding evidentiary references was provided by the plaintiffs during oral submissions. It is not necessary for me to refer to each and every item identified by the plaintiffs. It is sufficient to note the following factors, some of which are also drawn from the plaintiffs' written submissions, which are of particular importance: (1) It was objectively ascertainable that Buccaneer maintained only a very small office in Australia which, as the plaintiffs submitted, appeared to be nothing more than a "letterbox" premises. In evidence are photographs of the entry to the premises at Buccaneer's registered address in Sydney which show that the company name appears in a list of many other entities on the front door to the premises. (2) Business cards for a number of Buccaneer's key executives in the United States identify them as representatives of Buccaneer (irrespective of the fact that in other documents at least one of them, Mr Rike, appears to have been employed by a subsidiary of Buccaneer), with Buccaneer's address being identified as a Houston office address. (3) There is evidence that Buccaneer held itself out as having various office locations in the United States. In particular, a number of contractual and other important documents such as insurance, fundraising and guarantee documents, consistently refer to Buccaneer as being located in, and carrying out its business in, the United States. Through these documents, Buccaneer held itself out to the world at large, and the people with whom it was dealing when it created or executed the documents, as being a company whose activities were focussed on, and based in, the United States. Further, a number of registered tax returns in respect of Buccaneer which, although not themselves objectively ascertainable, record Buccaneer's address as being in Houston, Texas. I am satisfied that the United States office locations referred to in these documents would have been objectively ascertainable by a creditor or other third party through the ordinary course of locating an entity. (4) Chrystal itself, when it agreed to act as Buccaneer's financial advisor and assist in raising funds, addressed its letter of appointment, as well as its invoices, to the Houston office of the parent company. When Chrystal introduced potential investors to Buccaneer, it procured their signature to a confidentiality agreement executed on behalf of Buccaneer by Mr Huff (who is identified in the annual report as one of the key executives paid in US dollars) and nominated Buccaneer's Houston address for the purposes of the agreement. (5) Buccaneer conducted its technical evaluation, engineering design, operational and logistical preparation and execution for the company's oil and gas assets from the United States offices. (6) Buccaneer performed its accounting functions and payment of accounts and employees from the US offices and appointed US accountants to prepare its US tax returns. (7) In Buccaneer's tax returns filed in the United States, it declared that it earned its income from trade or business in the United States. (8) Aside from the fact of being listed on the ASX and the creation of compliance procedures and documents necessary to fulfil Buccaneer's legal obligations in Australia, there is very little evidence of its actual activities, if any, in this country. While there are some communications showing that a director based in Australia, Mr Gallegos, was involved in dealings with, amongst others, Chrystal at the time concerns arose as to Buccaneer's solvency, the bulk of the communications point to more extensive dealings with Buccaneer's United States representatives. In those communications, the United States key executives held themselves out to the addressees as being the representatives of Buccaneer, with whom it was necessary to deal in relation to Buccaneer. Mr Rike's evidence (which, in my view, there is no reason to doubt) is that, insofar as he is aware, there are no employees in the Sydney office. 13 The plaintiffs submitted, and I accept, that the overall effect of this evidence was to show that Buccaneer's head office was located in Houston from which it administered its interests on a regular basis. While not every aspect of these matters was objectively ascertainable by third parties (for example, the details of income disclosed in tax returns), it seems to me that the totality of the evidence points to it having been objectively ascertainable by a third party that the centre of main interests of Buccaneer was the United States, notwithstanding that Buccaneer was a company registered in Australia and listed on the ASX. The same conclusion is borne out by a fair reading of the annual report. As the plaintiffs submitted, a review of that document would "leave the reader with no doubt that Buccaneer's business operations were the exploitation of oil and gas reserves in Alaska (and, conversely, that the parent company conducted no other business in Australia)". 14 As the plaintiffs submit, Chrystal's contentions "seek to ignore the commercial realities which the Model Law attempts to address by ignoring the group structure… of which [Buccaneer] was the ultimate parent company". Chrystal's submissions seek to place almost conclusive weight upon the fact of registration as an Australian company and listing on the ASX and ignore the overwhelming evidence that the substance of Buccaneer's activities is in the United States. Although it does seem to me that article 16(3) places the onus of proof upon the plaintiff as Chrystal submitted, it is not necessary to resolve the question whether article 16(3) continues to operate once any potential proof to the contrary has been adduced into evidence or continues to operate so as to place an onus upon the plaintiffs, in effect, to prove that the centre of Buccaneer's main interests was not Australia. This is because the overwhelming weight of the evidence, in my view, constitutes proof to the contrary within the meaning of article 16(3) of the Model Law. The more onerous standard accepted by Rares J in Ackers v Saad Investments Co Ltd [2010] FCA 1221 has been met in this case. 15 I am satisfied that the centre of main interests in respect of Buccaneer was the United States. I am also satisfied as to the other matters required by Article 17(1) of the Model Law. It follows that the plaintiffs are entitled to have the United States Proceeding recognised as a foreign main proceeding. I make orders accordingly. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.