FEDERAL COURT OF AUSTRALIA

McCann v Mawson Restructures and Workouts Pty Ltd, in the matter of Walton Construction (Qld) Pty Ltd (In Liq) [2016] FCA 1152

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth), the time for the making of any application in respect of Walton Construction (Qld) Pty Limited (in Liquidation) under s 588FF(1) of the Corporations Act be extended to 3 April 2017.

2.    Pursuant to s 588FF(3)(b) of the Corporations Act, the time for the making of any application in respect of Walton Construction Pty Limited (Receivers and Managers Appointed) (in Liquidation) under s 588FF(1) of the Corporations Act be extended to 3 April 2017.

3.    Orders 1 and 2 above do not apply to any application under s 588FF(1) of the Corporations Act against the second defendant.

4.    Order 1 above does not apply to any application under s 588FF(1) of the Corporations Act against the Australian Taxation Office.

5.    Pursuant to s 588FF(3)(b) of the Corporations Act, the time for the making of any application in respect of Walton Construction (Qld) Pty Limited (in Liquidation) under s 588FF(1) of the Corporations Act in relation to the Australian Taxation Office be extended to 3 December 2016.

6.    The first defendant pay the plaintiff’s additional costs of the application occasioned by reason of the first defendant’s opposition, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

EDELMAN J:

Introduction

1    This is an application by the current liquidators of Walton Construction (Qld) Pty Ltd (WCQ) and Walton Construction Pty Ltd (WC) to extend the time within which to bring voidable transaction proceedings under s 588FF(1) of the Corporations Act 2001 (Cth). Section 588FF(3) of the Corporations Act essentially provides that unless the Court allows a longer period, any voidable transaction application must be made by the later of three years after the relation-back day or 12 months after the first appointment of a liquidator in relation to winding up.

2    The liquidators of the two Walton Companies, WC and WCQ, seek general, or “shelf”, orders extending the time without specifying any particular potential respondent or transaction in the orders. Initially they sought a 12 month extension of time from 3 October 2016 to 3 October 2017. In submissions following a directions hearing this was reduced to six months.

3    Two interested parties oppose the orders: Mawson Restructures and Workouts Pty Ltd and QHT Investments Pty Ltd. The liquidators have identified possible claims against those parties. The shelf order would permit other potential claims to be made. Mawson Restructures opposed the extension of time with a heavy focus upon submissions about delays by the current liquidators, and the merits of its potential defence. However, I am satisfied that the delays are sufficiently explained, that there is little weight in the consideration about the merits of a possible defence by Mawson Restructures, and that there is sufficient basis for an extension of time. Indeed, the current liquidators lost significant time for reasons about which they are entirely without blame (the termination of the first liquidators due to a conflict of interest and the inability to recover the accounting files of the business until 10 months ago, with all important files not recovered until five months ago). Mawson Restructures also ultimately accepted that it would not suffer any prejudice by the extension of time beyond that of any other person against whom a claim might be brought with an extension of time.

4    Under s 588FF(3)(b) of the Corporations Act, there should be a general extension of time for six months to bring any application in respect of each of WCQ and WC under s 588FF(1). Mawson Restructures should not be carved out from that extension of time.

5    As for QHT Investments, the essential submissions relevant to it were made only in the briefest of terms in response to a question I raised at the conclusion of submissions. The point about QHT Investments was that the transaction in relation to it had been investigated, a claim had already been brought in relation to it, and there was no basis to infer that any new matter might be identified in relation to it. There should not be an extension of time in relation to QHT Investments.

The Walton Companies and the liquidation

6    The Walton Companies operated in the building and construction industry. WC focused on construction projects in Victoria and New South Wales while WCQ focused on Queensland.

7    In April 2013, the Walton Companies retained Mawson Restructures to assist them through what a director of Mawson Restructures described as “some difficult financial circumstances”. Mawson Restructures is a company which provides CFO, business advisory, exit and succession, restructuring, and turnaround services. A director of Mawson Restructures was contacted by the accountant and a director of the Walton Companies who explained that the Walton Companies were under pressure from their bankers. There was concern that the Walton Companies’ bank guarantee facility was going to be frozen or that it would cease.

8    Mawson Restructures performed work between May 2013 and October 2013. The work included initial diagnostic and preliminary investigations, working with the bankers for the Walton Companies, looking for an alternative provider for performance guarantees, and assisting with a trade sale of the Walton Companies.

9    In September 2013, one part of the restructuring was that WCQ and WC entered into Asset Sale Agreements with Peloton Builders Pty Ltd (which later became Tantallon Constructions Pty Ltd) and Lewton Asset Services Pty Ltd respectively. In exchange for the sale of assets, Tantallon assumed liabilities of WCQ, and Lewton assumed liabilities of WC. Tantallon and Lewton are both now in liquidation.

10    On 18 September 2013, also apparently as part of the restructure, WCQ assigned a debt due to it from WC to QHT Investments, which is a company associated with Mawson Restructures. The face value of the debt was $18,876,385. The consideration for the assignment was $30,000.

11    The restructure transactions were considered and adopted by the voluntary administrators. Mawson Restructures says that the benefits of the restructure were that the projects were able to be continued and completed, and creditors paid. Purchasers of assets assumed over $40m worth of Walton Companies’ liabilities for debts to subcontractors and employee entitlements. Mawson Restructures says that specific financial benefits obtained by the Walton Companies included:

(1)    98 of the 115 projects were completed, rather than being terminated (with the losses that would flow), and the relevant bank guarantees expired unexercised;

(2)    debts which were owing to the Walton Constructions Group and which were unlikely to have been paid if the group had gone into liquidation, were paid;

(3)    contractors on transferred projects were paid;

(4)    secured lenders recovered $13.6m;

(5)    120 employees were transferred with the benefit that those employees were not required to be paid their entitlements upon termination of their contracts by the Walton Construction Group; and

(6)    as each project was completed and the performance bonds were returned by the client, part of the term deposit that had been lodged to support the bond was effectively freed from encumbrance and could be released back to the Walton Companies, thus enhancing their unencumbered asset position.

12    In October 2013 there was adverse publicity which alleged that Mawson Restructures had assisted in a phoenix transaction, had misappropriated money, and was the cause of the collapse of the Walton Companies.

13    In response to the allegations, an employee of Mawson Restructures produced a table which compared the financial circumstances of the Walton Companies prior to Mawson Restructures’ engagement with the financial circumstances subsequent to that engagement. That table shows the following:

14    The reference to exposure to secured creditors is concerned with bank guarantees and surety bonds provided by two creditors, one of whom was the National Australia Bank.

15    On 3 October 2013, following a recommendation from Mawson Restructures to the Walton Companies, persons from the accounting firm then known as Lawler Draper Dillon (LDD) were appointed administrators of the Walton Companies.

16    On 8 November 2013, the administrators from LDD were appointed as the first liquidators pursuant to a resolution passed by a meeting of creditors.

The removal of the first liquidators and the appointment of the current liquidators

17    On 13 February 2014, proceedings to remove the first liquidators on the basis of an alleged conflict of interest were dismissed. Those proceedings alleged that the conflict of interest arose between the liquidators’ need to investigate the involvement of Mawson Group (and associated persons and entities) in transactions with WC or WCQ, and the ongoing commercial relationship between the liquidators’ firm and the Mawson Group which generated significant fees for the firm: Australian Securities and Investment Commission v Franklin (liquidator), in the matter of Walton Construction Pty Ltd (in liq) [2014] FCA 68 [4] (Davies J).

18    On 23 May 2014, the first liquidators issued summonses to various officers and advisers of the Walton Companies for examinations in the Federal Court. The public examinations were to be conducted on 18 August 2014.

19    On 18 July 2014, an appeal from the decision dismissing the conflict of interest allegations was allowed. Justice White (with whom Jessup and Robertson JJ agreed on this point) said that there was “a conflict which is more than theoretical between the interest of LDD in not jeopardising the prospect of further remunerative referrals from the Mawson Group, on the one hand, and the proper discharge of their duties as liquidators of [WC] and [WCQ], on the other”: Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85; (2014) 223 FCR 204, 231-232 [124].

20    On 29 July 2014, the Full Court of the Federal Court made orders removing the first liquidators and appointing the current liquidators. Due to the appointment of new liquidators, the 18 August 2014 hearings of the public examinations were vacated.

The obstacles faced by the current liquidators

21    The Full Court recognised that a consequence of the order for removal of the first liquidators was that the order was “likely to be productive of considerable inconvenience and expense in the liquidations”. The Full Court also observed that it “seemed to be common ground that these are large and complex liquidations”: Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85; (2014) 223 FCR 204, 232 [128].

22    The prediction of inconvenience and expense was accurate. For instance, there were delays in the preparation for the public examinations. Although the current liquidators had initially intended to conduct them in November 2014, only three months after their appointment, the public examinations were not conducted until December 2015 and February 2016. That delay was plainly attributable, at least in part, to the obstacles faced by the current liquidators in relation to the books and records.

The obstacles in relation to books and records

23    As I have mentioned, the Walton Companies had 115 construction projects in Victoria, New South Wales, and Queensland. An exhibit to one of the affidavits said that the documents involved in the liquidation are 1,540 boxes and 6.5 terabytes of electronic data.

24    The obstacles faced by the current liquidators were not limited to the volume of material. They also included:

(1)    the Walton Companies’ server stored its detailed accounting systems but that server was sold in transactions prior to the appointment of the administrators;

(2)    the detailed electronic accounting records had not been imaged effectively by the first liquidators and many of the records could not be accessed by the current liquidators until November 2015 after a lengthy and expensive restoration process; and

(3)    the records of Tantallon and Lewton were not obtained until 4 April 2016.

25    The process of recovering the electronic images of the records from the Walton Companies’ server first involved conferring with the company (Stopline Pty Ltd) that the first liquidators had engaged to image the records. Stopline Pty Ltd told the current liquidators that its imaging services provided to the first liquidators had been incomplete and did not include the electronic data from the Walton Companies’ accounting systems. The current liquidators then entered negotiations with ASIC to obtain funding from external experts to restore the server. They obtained advice from consultants that the cost of repairing the server would be $40,000, and that the attempt to repair might prove unsuccessful. Another consultant was engaged and one of the five back up tapes was recovered. Then the current liquidators engaged a further provider, Jobpac, to restore and migrate the back-up image into their current cloud-based version of Jobpac.

26    Mawson Restructures provided evidence that the current liquidators failed to collect books and records from the previous liquidators for more than a year after the appointment of the current liquidators on 29 July 2014. However, this appears to relate to the hard copy books and records which were put into a storage facility by the first liquidators. The delay in collecting the hard copy records until sometime after July 2015 must be understood in the context that the current liquidators, despite significant cost and effort, were not able to recover much of the relevant material in the 6.5 terabytes of electronic data until between November 2015 and April 2016.

Funding obstacles

27    The current liquidators also faced significant funding obstacles. The current liquidators have incurred substantial fees which have been approved by the Committee of Inspection but which have not been paid in full. They obtained some funding from ASIC to preserve books and records, to recover the electronic accounting records and to prepare s 533 supplementary reports. They also obtained funding from the Queensland Building Construction Commission to conduct the public examinations in December 2015 and February 2016.

28    However, on 13 September 2016, $987,734.13 was paid to the liquidators of WCQ as surplus funds following the retirement of the receiver appointed by one of the secured creditors, the National Australia Bank. That money is now cleared. A further release of $411,000 to them as liquidators of WCQ is expected. Any further distribution from the National Australia Bank is expected to be limited to approximately $50,000.

29    During the oral hearing this morning considerable time was spent by counsel for Mawson Restructures making submissions concerning whether the receivers had incorrectly paid nearly $1 million to WCQ instead of WC. The importance of this issue was that one reason why WC seeks an extension of time in relation to Mawson Restructures is to obtain funding in order to bring the action. A very serious allegation was made orally that the current liquidators might have tailored the payment arrangements in order to achieve this result. This necessitated a further affidavit, obtained over lunch, from the solicitors for the current liquidators explaining the operation of the receivership. Counsel for Mawson Restructures did not ultimately press the issue. He quite properly accepted that in an application for an extension of time, with some urgency, there might not be much utility in a collateral inquiry, based on allegations made orally at the hearing itself, into whether receivers had paid funds to the wrong party. That might be said to be an understatement.

30    The current liquidators intend to apply for other funding for WC from other bodies including under the Fair Entitlements Guarantee Scheme.

The investigations by the current liquidators

31    One of the current liquidators has given evidence, relying upon correspondence at the relevant times and the negative equity position of the Walton Companies at the relevant time, of his opinion that the companies were insolvent at least six months before the relation back day.

32    The current liquidators consider there are at least four further potential voidable transactions:

(1)    $1,637,277.68 and $63,506.88 for fees paid to Mawson Restructures by WC;

(2)    $351,057 and $108,237 for fees paid to Crisp Legal for legal work;

(3)    $92,406 for fees paid to GMK Partners (an accounting firm); and

(4)    $1,553,026.28 for payments to the Australian Taxation Office.

33    The current liquidators also say that they expect that there will be further voidable transactions uncovered when they have the funds to conduct a full examination of the accounts and documents of the companies.

34    Letters of demand were sent to each of the four entities. Each entity was also provided with copies of this application. Of those entities, only Mawson Restructures sought to appear to oppose this application.

35    The letter of demand to Mawson Restructures was written on 24 August 2016. One allegation was that various transactions amounting to $1,637,277.68 were voidable under s 588FE(2) of the Corporations Act. A second allegation was that some of those transactions, amounting to $63,506.88, were voidable as a result of s 588FA(1)(b).

36    As to the first allegation, subsection 588FE(2) provides:

(2)    The transaction is voidable if:

(a)    it is an insolvent transaction of the company; and

(b)    it was entered into, or an act was done for the purpose of giving effect to it:

(i)    during the 6 months ending on the relation-back day; or

(ii)    after that day but on or before the day when the winding up began.

37    The letter of demand alleged that the six month period allegedly ended on the relation back day of 3 October 2013. And, as I have explained, the winding up commenced on 8 November 2013. The transactions with Mawson Restructures that were identified were a series of payments between 30 April 2013 and 20 September 2013. The payments were made from WC to Mawson Restructures. One particularly large payment was a “success fee” of $1,173,807.80 on 20 September 2013. One of the reasons for the allegation that the transactions were voidable transactions was s 588FB(1) which provides:

(1)    A transaction of a company is an uncommercial transaction of the company if, and only if, it may be expected that a reasonable person in the company’s circumstances would not have entered into the transaction, having regard to:

(a)    the benefits (if any) to the company of entering into the transaction; and

(b)    the detriment to the company of entering into the transaction; and

(c)    the respective benefits to other parties to the transaction of entering into it; and

(d)    any other relevant matter.

38    The current liquidators also issued proceedings against QHT Investments (a company related to Mawson Restructures) for $700,000 alleging that the assignment to QHT Investments of the $18,876,385 of face value debt due to WC from WCQ for $30,000 gave QHT Investments the benefit of an uncommercial transaction.

39    A brief submission by the current liquidators, not strongly pressed, was that inferences of broader impropriety might be drawn from this transaction. I do not consider that any inference can be drawn without submissions, about which there were none from the current liquidators, of the nature and detail of that transaction. However, this conclusion does not mean that I accept the submission of counsel for Mawson Restructures about this transaction. Counsel for Mawson Restructures pointed to evidence filed by the current liquidators that WCQ’s loan account to WC was “fully impaired” and that WCQ had a deficiency of net assets. He submitted, without evidence, that this phrase should be understood to mean that, immediately prior to the assignment, the value of the debt from WCQ was such that WC could recover nothing, not even a cent in the dollar, on a winding up. At the very least such a curious proposition would require expert evidence.

Legal principles concerning an application for an extension of time

40    Section 588FF(3) of the Corporations Act provides as follows:

(3)    An application under subsection (1) may only be made:

(a)    during the period beginning on the relation-back day and ending:

(i)    3 years after the relation-back day; or

(ii)    12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b)    within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

41    The principles concerning the operation of s 588FF(3) were not in dispute. They can be summarised briefly.

42    In Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489 the High Court considered whether the subsection permits an extension of time to be ordered in relation to transactions that are not able to be identified at the time of the transaction. The court held that such a “shelf order” could be made. The court also explained (at 505 [24]) that the function of the subsection is to confer a discretion on the court to mitigate, in an appropriate case, the rigours of the time limits imposed by paragraph (a). The High Court explained that the policy underpinning the recommendations in The Law Reform Commission, General Insolvency Inquiry, Report No 45, (1988) (“The Harmer Report”) included the avoidance of transactions by which an insolvent company has disposed of property in circumstances that are regarded by the legislature as unfair to the general body of unsecured creditors. However, as the court also explained, that policy is qualified by a time limitation provision to favour certainty for those who have entered into transactions with the company during the periods in respect of which designated transactions may be voidable.

43    Section 588FF(3)(b) does not prescribe any criteria for the exercise of the discretion. An approach commonly applied was to ask what is “fair and just in all of the circumstances”: BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322, 357 [187] (Spigelman CJ; Mason P and Handley JA agreeing). However, this did not mean that the exercise of discretion was idiosyncratic. In Walker v CBA Corporate Services (NSW) Pty Ltd [2012] FCA 328; (2012) 88 ACSR 153, 161 [43] Nicholas J described three matters which will usually be considered: (1) the explanation for the delay in commencing the proposed proceedings within the period provided for by the statute; (2) any prejudice likely to be suffered in the event the extension sought is granted; and (3) a preliminary view of the merits of the proposed proceeding. As his Honour explained, and I accept (at 161 [44]):

The preliminary review of the merits of the proposed proceedings is “an investigation as to whether such proceedings would be so devoid of prospects that it would be unfair, by granting an extension, to expose the other party to the continuing prospect of suit”… However, a review of the merits may be unnecessary if the purpose of the application for an extension of time is to allow the liquidator time in which to properly decide whether or not to bring the proposed proceedings…

44    In relation to “shelf orders”, the High Court in Fortress Credit (at 506 [25]) described a number of considerations which might inform the approach to the exercise of the court’s discretion:

(1)    disadvantage to potential defendants not identified in a shelf order;

(2)    the encouragement to liquidators not to identify potential defendants, thereby reducing the prospect of opposition at initial application;

(3)    the risk of a multiplicity of litigation by successive defendants applying to reagitate extension applications of which they had not been given initial notice;

(4)    the risk of inconsistent outcomes on applications to set aside extension orders by respective defendants;

(5)    no finality, as claims by defendants that they were identifiable, but not identified, might cause ongoing challenges to any extension granted;

(6)    want of certainty for liquidators and prospective defendants who might seek to have leave revoked after it had been granted and after proceedings had commenced;

(7)    the potential for wasted costs to be incurred contrary to the interests of creditors; and

(8)    the determination of applications by reference only to evidence that the liquidator elected to put before the court.

Consideration of relevant factors

Delay

45    In the New South Wales Court of Appeal in Fortress Credit, Macfarlan JA observed that a reason for the extension of time was that the liquidators had significantly less than two years to conduct their investigations and make applications. In contrast, in many other cases the relation-back day would be much closer to the date of appointment of the liquidator, giving the liquidator close to three years to investigate and to make applications: Fortress Credit Corporation (Australia) Pty Ltd v Fletcher [2014] NSWCA 148; (2014) 87 NSWLR 728, 749 [123]).

46    The unfortunate circumstances which led to the removal of the first liquidators due to their conflict of interest meant that the current liquidators were not appointed to their position until approximately two years and two months ago. They have not had the three-year period that would often apply.

47    In addition, the difficulties with records and funding has been substantial. I do not accept the submission of Mawson Restructures that it was necessary in this case for the current liquidators to descend into detail of each step and the time of it since their appointment, especially in circumstances in which they did not obtain accounting records, despite efforts to do so, until November 2015 and April 2016. In some cases it would be prudent for a liquidator applying for an extension of time to provide a broad chronology of steps taken. But in this case I do not consider it fatal to the application. Nor is it a substantial impediment to the current liquidators’ submissions about delay for four reasons.

48    First, at least 10 months of delay, and time lost by the current liquidators, are wholly explained by matters which were beyond their control (the removal of the first liquidators).

49    Secondly, despite the absence of a chronology of steps that have been taken by the current liquidators in the months since obtaining the accounting records (10 months since obtaining the bulk of the records and 5 months since obtaining the records relating to Tantallon and Lewton), I do not accept that they have been dilatory. The evidence establishes that the current liquidators have performed considerable work, in relation to a huge amount of material, with limited funding. They have conducted public examinations in a very short period of time after obtaining some of the electronic records, and they have investigated the transactions within 6.5 terabytes of data, to the extent of forming opinions which permitted them to issue four substantial letters of demand.

50    Thirdly, the volume of evidence on this application for an extension of time was considerable. The submission by Mawson Restructures would effectively require the current liquidators to descend to the precise detail of the timing of their investigations and each step taken in relation to an insolvency involving 6.5 terabytes of data and 1,540 boxes of documents. Obvious inferences can be drawn in the context of such huge volumes of material. If such minute detail were required it would lose the wood for the trees. It would do little more than considerably increase the costs of an already expensive application where the current liquidators have deposed to financial struggles and the release of funds only very recently.

51    Fourthly, although counsel for Mawson Restructures went further and submitted that the current liquidators did not give evidence as to the precise timing, in the one year and three months between 29 July 2014 and November 2015, of each of the steps taken to retrieve the accounting records, the current liquidators did provide evidence of their steps taken. These included investigations to discover the situation in relation to the accounting records, conferring with Stopline Pty Ltd, negotiating with ASIC to obtain funding for recovery of the files, obtaining advice from consultants, approaching alternative consultants, recovering a back up tape, and engaging Jobpac to restore and migrate the back-up image into their current cloud-based version of Jobpac. It is not a difficult inference to draw that none of these matters was simple and I am satisfied in all the circumstances that the delay of a year and three months was satisfactorily explained.

Prejudice

52    Mawson Restructures asserts that if the current liquidators are given an extension of time, it will suffer “further harm to its reputation” as well as a need to become reacquainted with an event that took place three years ago.

53    The “further” harm to reputation is expressed in general and abstract terms. That harm to reputation is even more abstract when the period of extension is reduced from 12 months to six months as the current liquidators have accepted. It is also difficult to determine the extent to which any further harm to reputation is associated with any extension of time rather than, for instance, the transactions which might be the subject of a proceeding.

54    The need to become acquainted with an event that took place three years ago will only become a prejudice if proceedings are commenced. Indeed, Mawson Restructures’ primary argument is that any proceedings should be commenced in any event before the expiry of the time period. This point was not pressed in submissions by Mawson Restructures.

55    Ultimately, counsel for Mawson Restructures conceded, quite properly, that Mawson Restructures would not suffer any prejudice beyond the general prejudice of delay which is suffered by any other party against whom a claim might be brought following an extension of time.

Merits of the claims

56    As I have explained above at [13], Mawson Restructures alleged that there were significant financial benefits to the Walton Companies, to its employees, and to the National Australia Bank from the work performed by Mawson Restructures such that a reasonable person in the company’s circumstances would not have entered into the transaction. This was described by both counsel as a “defence”. I will also use that language without expressing any view as to the issues concerning onus of proof.

57    There are a number of difficulties with the submissions by Mawson Restructures.

58    First, the merits of a claim will weigh more heavily as a factor where the extension of time is sought in order to bring a claim which has been identified as one which will be brought. However, the merits can be a less substantial consideration when the very reason for the extension is to investigate, consider and to obtain the advice of counsel as to whether a claim should be brought: see also Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608 [15] (Austin J). There will often be little benefit even in a high level assessment by the court of the merits of a claim in such circumstances where the very reason why the extension is sought is to investigate the merits of an existing or possible claim.

59    Counsel for Mawson Restructures properly accepted that the question of merits was only relevant in this case in relation to the identified transactions which are potentially voidable. The current liquidators have obviously investigated and considered those claims for which they issued letters of demand. However, the current liquidators say that although they have undertaken substantial work in relation to investigating each of the identified potential voidable transactions, they have not had the funds to obtain counsel’s advice, to finalise their investigations, or to commence the actions.

60    Counsel for Mawson Restructures pointed to affidavit evidence filed by the current liquidators that “[s]ubject to funding becoming available the Liquidators expect to be able to commence proceedings [against Mawson Restructures] prior to the end of September 2016”. Whether this ability to commence a claim is acted upon might depend upon the final investigations and the advice of counsel. Nevertheless, I accept that the merits of the claim is a real factor to be considered given the extent to which the four identified transactions have been investigated and considered.

61    Nevertheless, there is an irony created by the lengthy and comprehensive submissions made by counsel for Mawson Restructures concerning a defence to a claim based upon s 588FE(2). The affidavit evidence about the defence from Mawson Restructures, and the submissions from its counsel, could not have been a bolt from the blue for the current liquidators since examinations of some of the officers of Mawson Restructures were conducted late last year and early this year. But the irony arising from the detailed legal submissions, based on those factual matters, is that many of these arguments may properly need to be considered by the current liquidators. Indeed, as senior counsel for the current liquidators submitted, one of the reasons why they seek an extension of time is to obtain counsel’s advice before commencing an action.

62    Secondly, counsel for Mawson Restructures made no reference in his submissions to any possible defence to the foreshadowed potential claim for $63,506.88, based upon s 588FA(1)(b). It does not currently seem to be disputed that it is arguable that the auditors, lawyers, restructuring advisers and the ATO who are presently identified as potential respondents received payments during the period of the insolvency, and were aware of the financial circumstances of Walton.

63    Thirdly, in an application of this nature it will be rare for the Court to be in a position to reach conclusions about the merits in terms as confidently asserted by counsel for Mawson Restructures. There seems to be force in the submission that work done by Mawson Restructures led to millions of dollars of liabilities being discharged as contracts were paid out, as well as the avoidance of calls on bank guarantees. But these are intensely fact rich questions. The enquiries might involve considering the particular actions taken by Mawson Restructures. Even more fundamentally, the legal basis upon which those actions were taken would need to be considered. Curiously, despite making very detailed submissions about this defence, Mawson Restructures did not provide any evidence of the contract that it had with the Walton Companies and the terms by which payments were made. For instance, there was no evidence about any legal duty upon WC to pay a “success fee” of $1,173,807.80 on 20 September 2013, or the terms and conditions of that duty.

64    Fourthly, some of the assertions made by Mawson Restructures would, at least, need to be investigated. For instance, the assertion that priority creditor exposure for employee wages decreased from $4.8m to $1.8m may require consideration of whether the companies to which the employees were transferred (Tantallon and Lewton) actually paid those entitlements prior to entering liquidation, and whether their acceptance of the obligation to pay those entitlements is indefeasible. Further, as senior counsel for the current liquidators explained, there may be live questions whether a reasonable person would have entered the transactions taking the risk that some would be paid and some not, if the effect was simply to have public funds used or called upon under the umbrella of one liquidation rather than another.

65    The same points might be made about the number of uncompleted projects and the amount due to unsecured creditors. The effect of the transactions was to assign projects to Tantallon and Lewton, entities subsequently placed in liquidation, and, importantly, entities with an entitlement under the transactions to exclude construction contracts after a process of due diligence. Again, these points may raise live issues and, at least, may require consideration and an advice by counsel before commencing an action.

66    Fifthly, the identified claims against Mawson Restructures do not exhaust all possible claims against them. The current liquidators submit that there is the possibility of additional claims relating to the period of insolvency once the liquidators have had a chance to properly investigate the records. However, given the extent of the investigation which has been directed to Mawson Restructures and the letter of demand made against it, I do not consider that this unsupported speculation has any significant weight.

Conclusions

67    The current liquidators seek a general shelf order extension of time of six months. In light of all of the matters discussed above, including factors concerning the undesirability of shelf orders (at [44] above) I am satisfied that the current liquidators should be given six months to investigate, consider, and bring any further claim based on s 588FF(1) of the Corporations Act.

68    Although there are four claims which might be able to be brought in a much shorter period of time, the current liquidators do not presently have funding for WC to bring three of those claims. The funds of WC are limited to around $45,000. The cleared funds from the National Australia Bank relate only to WCQ. Although $45,000 might permit counsel’s advice in relation to these three claims, those claims could not sensibly be brought if there were no funds to progress them. As I have explained, the current liquidators are seeking funds for WC in relation to possible claims. In all the other circumstances I have described, including the explanations provided for the current liquidators’ delay, the limited prejudice to Mawson Restructures, and the issue of the merit of the claims, I am satisfied that these three claims should be included in the general extension of time for six months. However, senior counsel for the current liquidators accepted that the fourth claim by WCQ against the Australian Taxation Office is not subject to these funding issues. The Australian Taxation Office was notified of this application but did not seek to be heard. Nevertheless, the period in relation to any claim against the Australian Taxation Office should be considerably shorter than six months, perhaps in the order of eight weeks, in circumstances in which WCQ now has funds. I will hear from senior counsel for the current liquidators as to the terms of that order as this matter was not directly raised with senior counsel this morning.

69    Finally, there is the question of the costs of this application. My preliminary view is that the current liquidators have been entirely successful in their orders sought as against Mawson Restructures and, in the circumstances of this case, they should have their costs of the application against Mawson Restructures. They were not successful in relation to QHT Investments, although the specific issues in relation to that party were not agitated in any written submissions and occupied less than a minute at the conclusion of the hearing. I will hear from counsel but my preliminary view is that there should be no order as to costs in relation to QHT Investments.

Associate:    

Dated:    23 September 2016