FEDERAL COURT OF AUSTRALIA

Strazdins, in the matter of DNPW Pty Ltd (subject to DOCA) ACN 107 484 711 v Birch Carroll & Coyle Limited [2009] FCA 731

CORPORATIONS – voluntary administration – company subject to a Deed of Company Arrangement seeking order that the lessor not take possession of licensed premises leased by the company – Corporations Act s 444F – material adverse effect on achieving the purposes of the Deed – order subject to conditions

Acts Interpretation Act 1901 s 15AA

Business Tenancies Fair Dealings Act 2003 (NT)

Corporations Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth) s 22

Law of Property Act 2000 (NT) s 138

Federal Court Rules O 11 r 2, O 13 r 2(2), O 14 r 9

Cargill v Bower (1878) 10 Ch D 502 cited

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 cited

Dare v Pulham (1982) 148 CLR 658 cited

Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) (1916) 22 CLR 490cited

Lam Soon Australia Pty Ltd v Molit (No 55) Pty Ltd (1996) 22 ACSR 169 cited

Lewis and Lewis v Durnford (1907) 24 TLR 64 cited

Re Java 452 Pty Ltd (administrator appointed) (No 2) (1999) 32 ACSR 507 distinguished

Renowden v McMullin (1970) 123 CLR 584cited

ANDREJS JANIS STRAZDINS & NICHOLAS DAVID COOPER IN THEIR CAPACITY AS JOINT AND SEVERAL DEED ADMINISTRATORS OF DNPW PTY LTD (SUBJECT TO DOCA) ACN 107 484 711 and DNPW PTY LTD (SUBJECT TO DOCA) ACN 107 484 711 v BIRCH CARROLL & COYLE LIMITED ACN 990 659 643

SAD 170 of 2008

LANDER J

9 JULY 2009

ADELAIDE

IN THE MATTER OF DNPW PTY LTD (SUBJECT TO DOCA) ACN 107 484 711

THE COURT ORDERS THAT:

1.         The applicants bring in minutes of order which should include the appropriate conditions under s 444F(6) of the Corporations Act 2001 (Cth) reflecting these reasons.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE MATTER OF DNPW PTY LTD (SUBJECT TO DOCA) ACN 107 484 711

REASONS FOR JUDGMENT

Introduction

1                          This is an application for an order that the respondent not take possession of or otherwise take action to recover property owned by the respondent which is or was subject to a lease in favour of the second applicant and an application for relief from forfeiture.

2                          On 17 October 2008 the applicants filed an originating process seeking the following orders:

1.         An order pursuant to Section 444F of the Corporations Act 2001 that the Respondent not take possession of the whole of the land comprised and described in Certificate of Title Register Book Volume 634 Folio 348 or otherwise take action to recover such property.

2.         In the alternative an order that the Second Applicant be granted relief from forfeiture with respect to all and any breaches of the lease of the land comprised and described in Certificate of Title Register Book Volume 634 Folio 348 pursuant to the provisions of Section 138 of the Law of Property Act (NT).

3.         In the further alternative the Second Defendant be granted relief from forfeiture in equity with respect to all and any breaches of the lease of the land comprised and described in Certificate of Title Register Book Volume 634 Folio 348.

4.         An order as to costs.

5.         ...

3                          The application was accompanied by an affidavit of the first applicant, Mr Strazdins.

4                          On 10 November 2008 Registrar Christie directed the parties to file Points of Claim and Points of Defence.

5                          On 24 November 2008 the applicants filed their Points of Claim in which the applicants sought orders under s 444F of the Corporations Act 2001 (Cth) (the Corporations Act).  The applicants also included a claim:

22.       In the alternative the second applicant seeks relief from forfeiture pursuant to the provisions of section 138 of the Law of Property Act (NT).

6                          No relief of the kind claimed in paragraph 3 of the application was sought in the Points of Claim.

7                          On 18 December 2008 the respondent filed its Points of Defence in which it pleaded:

27.5      There is disclosed no basis for relief from forfeiture absent fraud, accident, mistake or surprise.  In any event, an order under section 138 of the NT Act can only be made by the Supreme Court of the Northern Territory.

8                          The two issues raised on the pleadings were a claim for relief under s 444F of the Corporations Act and a claim for relief against forfeiture under s 138 of the Law of Property Act 2000 (NT) (the NT Property Act).  The principal relief sought was under the Corporations Act.  No claim for relief against forfeiture in equity was pursued on the pleadings.

9                          If a party does not repeat a claim for relief made in the originating application in the statement of claim, the claim must be taken to be abandoned: Renowden v McMullin (1970) 123 CLR 584; Cargill v Bower (1878) 10 Ch D 502; Lewis and Lewis v Durnford (1907) 24 TLR 64 at 65.

10                        The rule enunciated in those cases is no more than an extension of the general principles of pleading.  There is more than one purpose for pleadings.  One of the purposes of pleadings is to define the issues and to give the opposing party fair notice of the case that that party must meet: Dare v Pulham (1982) 148 CLR 658 at 664.  Order 11 rule 2 of the Federal Court Rules assists to achieve that purpose by requiring a party to plead a statement in a summary form of the material facts upon which the party relies.  Absent any claim for relief in the statement of claim, a respondent may properly assume such a claim is not being pursued.  A court will confine a party to the party’s pleadings if to do otherwise would be unjust to another party.

11                        Pleadings are, of course, only a means to an end.  They are designed to accord the parties procedural fairness.  If the parties choose to ignore the pleadings and fight the case on different issues “it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest”: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) (1916) 22 CLR 490 at 517.

12                        The applicants abandoned their claim for statutory relief against forfeiture under s 138 of the NT Property Act in their written submissions.  It was accepted that the conditions precedent for the operation of the section had not yet occurred.  The only claim therefore arising on the pleadings at trial was the claim for relief under s 444F of the Corporations Act.

The Parties

13                        The first applicants (the administrators) are the joint and several deed administrators of the second applicant, DNPW Pty Ltd (subject to DOCA) (DNPW).  DNPW was incorporated on 23 December 2003 and operated two licensed venues, namely the Ducks Nuts Bar and Grill (Ducks) and the Fox Alehouse (Fox) in Darwin.

14                        The respondent, Birch Carroll & Coyle Limited (BCC) is the registered proprietor of the whole of the land comprised and described in Certificate of Title Register Book Volume 634 Folio 348 (the property).  The property is situate at Mitchell Street, Darwin.  BCC’s business is the public exhibition of cinema and related operations.  The property forms part of BCC’s cinema complex of five auditoriums.

The Lease

15                        On 6 March 2003 BCC granted a lease (the Lease) to Lorlina Pty Ltd (Lorlina) which became the lessee of the property.  The Lease commenced on 1 October 2002 and was to expire on 30 September 2017 with provision for two further terms of five years each.  The Lease was registered at the Registrar-General’s Office.

16                        A term of the Lease was that Lorlina furnish a bank guarantee in the sum of $78,980 as security.

17                        The Lease provides in clause 13.1 for “Events of Default”.  It provides:

An event of default occurs if:

(a)        any instalment of Base Rent or any other amount payable by the Lessee is not paid on the day on which it ought to have been paid (whether or not a demand for payment has been made);

(b)        the Lessee fails or refuses to carry out any repairs properly required by any written notice within the time specified in the notice;

(c)        contrary to the provisions of this Lease the Lessee assigns, sub-leases, grants a licence or otherwise disposes, deals with or parts with possession of the Premises or the Lessee’s interest in this Lease or any interest in them or is deemed to have done so;

(d)        the Lessee fails to duly and promptly perform or observe any of its obligations under this Lease;

(e)        an Insolvency Event occurs in relation to any Lessee; or

(f)        the Lessee ceases or threatens to cease to carry on business in the Premises.

18                        Clause 13.1(e) of the Lease provides that events of default occur if an “Insolvency Event” occurs.  An “Insolvency Event” is defined in clause 1.1 of the Lease to mean:

... a party becoming bankrupt, insolvent, under administration, mentally disabled or ill, imprisoned, dead, in liquidation, administration or receivership, de-registered, or otherwise without full legal capacity (including where an application for bankruptcy or winding up has been presented and is pending or where insolvency is deemed to exist and including where receivership relates only to some of a person’s assets).

19                        Relevantly, an Insolvency Event includes the lessee entering into administration or being wound up.

20                        A further event of default is failure by the lessee to pay any instalment of Base Rent on the day when it ought to have been paid whether or not demand has been made.  The Base Rent is $143,600 per annum subject to variation in accordance with the lease and payable by monthly instalments: clause 3.1.

21                        Clause 13.2 provides that if an event of default occurs the lessor may:

(a)        (subject to any prior demand or notice as is required by law) re-enter into and take possession of the Premises (by force if necessary) and eject or prevent re-entry by the Lessee and all other persons from them, and on the Lessor so doing this Lease shall be absolutely determined;

(b)        by written notice to the Lessee determine this Lease, and from the date of giving of the notice this Lease shall be absolutely determined; or

(c)        by written notice to the Lessee elect to convert this Lease into a tenancy from month to month, in which event from the date of the notice the Lessee will hold the Premises as tenant from month to month under the provisions of this Lease relating to the holding over.

22                        A notice given pursuant to clause 13.2(b) has the effect that the Lease is determined from the date of giving the notice.

23                        By a deed dated 20 June 2005 to which BCC was a consenting party, the Lease was assigned by Lorlina to DNPW.  DNPW was then obliged to provide the bank guarantee in the sum of $78,980.  Since that date, DNPW has conducted the business of Ducks on licensed premises on the property at Mitchell Street, Darwin.  DNPW remains in occupation.

DNPW goes into administration

24                        On 16 April 2008 DNPW was in arrears in respect of payment of rent.  On that day Mr Peter Earl, an employee of BCC, emailed DNPW advising that the existing arrears was $40,421 and advising “... my Directors are asking when this will be paid”.

25                        On 24 April 2008 by resolution of the directors of DNPW, DNPW entered into voluntary administration which resulted in the appointment of the administrators.  At the time DNPW went into administration DNPW had six directors, one of whom was Mr Terence Dowling.  The entry by DNPW into voluntary administration on 24 April 2008 constituted an Insolvency Event for the purpose of clause 13.1.

26                        On 7 May 2008 the first meeting of DNPW’s creditors was held which resolved to ratify the administrators’ appointment.

27                        On 28 May 2008 BCC’s solicitors gave notice to the administrators that it had given notice on 23 May 2008 to the Australian and New Zealand Banking Group Ltd (ANZ) as the issuer of the bank guarantee that default under the Lease had occurred.  The notice to ANZ provided:

We act on behalf of Birch Carroll & Coyle Limited, the owner of premises at 4 Briggs Street Darwin, part of which is leased to your customer, DNPW Pty Ltd.

We note that your bank holds a mortgage over the lease granted by our client to the company.

As you would be aware, DNPW Pty Ltd entered into voluntary administration on 24 April 2008.  There are now a number of events of default under clause 13 of the lease, and we are giving the bank notice of our client’s intention at the expiration of 14 days from the date of this letter to exercise its rights under that clause, including (without limitation or restriction of the lessor’s rights under the lease and the exercise of the discretion of the lessor in all respects) the right to either terminate the lease or convert the lease to a tenancy from month to month.

We are instructed to receive all correspondence in relation to this matter, on behalf of our client.

BCC “determines” or “terminates” the Lease

28                        On 12 June 2008 BCC’s solicitors wrote to DNPW giving notice of intention to terminate the Lease effective from the date of service of the notice (the first notice of termination) on the ground that an Insolvency Event had occurred in that DNPW had been placed into administration.  The notice of termination also indicated that BCC intended to take further action for the recovery of rental arrears.  The notice of termination provided:

Lease from Birch Carroll Coyle Limited – registered no. 516196

Premises: Ducks Nuts, 4 Briggs Street, Darwin

We act on behalf of the lessor of the premises.

On behalf of our client and on its instructions, we hereby give notice that the lessor determines the lease under clause 13.2(b), effective from the date of service of this notice.

The grounds of termination are an Event of Default under clause 13.1(e) namely, an Insolvency Event has occurred in relation to the lessee in that on 24 April 2008 voluntary administrators were appointed to the lessee company under Part 5.3A of the Corporations Act and the lessee remains in voluntary administration.

We note that the lessee is also in arrears in the payment of rent as detailed to the lessee by email from the lessor sent on 16 April 2008, and the recovery of those arrears will be the subject of separate action by the lessor.

29                        This notice will have to be considered by reference to s 137 of the NT Property Act.

BCC cannot take possession

30                        Although DNPW was in default and an Insolvency Event had occurred, and BCC claimed the lease had been terminated, BCC was not entitled, because of the provisions of s 440C of the Corporations Act, to take possession of the property.  Section 440C of the Corporations Act provides:

440C    During the administration of a company, the owner or lessor of the property that is used or occupied by, or in the possession of, the company cannot take possession of the property or otherwise recover it, except:

(a)        with the administrator’s written consent; or

(b)        with the leave of the Court.

31                        BCC was therefore unable without the administrators’ written consent or leave of the Court to exercise any rights it may have had to re-enter and take possession of the property during the period of the administration.

32                        Moreover, the respondent was further prevented by s 440D of the Corporations Act from applying to the Supreme Court of the Northern Territory for an order for possession of the property pursuant to the NT Property Act or the Business Tenancies Fair Dealings Act 2003 (NT), except again with the administrators’ written consent or the leave of the Court.

33                        Section 440D(1) of the Corporations Act provides:

440D(1)            During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:

(a)        with the administrator’s written consent; or

(b)        with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

The Administrators actions

34                        On 14 June 2008 the administrators applied to the Federal Court of Australia to extend the period within which they were obliged to convene a meeting of creditors pursuant to s 439A(5) of the Corporations Act.  An order was made extending the period to 15 July 2008.

BCC proposes a new lease

35                        On 25 June 2008 BCC’s solicitors wrote to the administrators advising that BCC was prepared to offer a new lease to DNPW for a term of two years with three one year options, the exercise of which options was subject to a redevelopment clause with all other terms, including rent, to be consistent with the lease.

The Administrators’ Report

36                        On 15 July 2008 the administrators provided their report pursuant to s 439A of the Act.

37                        The administrators’ report included the directors’ opinion as to why DNPW had failed.  They wrote:

CAUSES OF FAILURE

The directors of the company have advised that the company’s failure was caused primarily by the following:

1.         Lack of cash flow;

2.         Differences in business strategies between the existing directors; and

3.         Poor financial management.

In our view the company failed as a result of the above factors.

38                        The administrators observed that in the financial year ended June 2006 DNPW had made a loss of $69,678; in the financial year ended June 2007 a loss of $219,201; and in the period to 23 April 2008 a loss of $141,033.

39                        However, they also observed that in those same periods the two venues trading profits/losses were:

                                                Ducks                         Fox

2006                            $44,606                       ($114,284)

2007                            $50,358                       ($269,559)

2008 (to 23/4/08)         $32,034                       ($173,067)

40                        They offered the opinion:

It is apparent that the Ducks was achieving a minimal net profit for the above periods, however, the profit achieved was insufficient to absorb the significant losses being suffered by the Fox over the same timeframe.

We understand that the losses suffered by the Fox were the result of poor management and lack of sales.  They can also be attributed to the fact that the Fox was closed during the period January 2007 to March 2007 whilst renovations were undertaken for the installation of ten (10) gaming machines.  During this time most of the clientele was lost to other venues within the precinct and re-marketing has taken significant time to take effect.

41                        They concluded after examining the current assets and liabilities of DNPW that DNPW “was unable to pay its debts as and when they fell due from at least 30 June 2006”.

42                        The second meeting of creditors of DNPW which was held on 22 July 2008 was adjourned for 25 days pursuant to s 439B(2) of the Corporations Act to enable further information to be provided to creditors in accordance with the administrators’ recommendation in their s 439A Report to Creditors dated 15 July 2008.

Two proposals for a DOCA

43                        During the course of the administration of DNPW two proposals were made for DNPW to enter into a Deed of Company Arrangement (DOCA); one by NT Pubco Pty Ltd (NT Pubco) and the other by Jalouise Pty Ltd.  The terms of the proposal put by Jalouise Pty Ltd are not relevant.  On 14 August 2008 the NT Pubco proposal was put by Mr Terence Dowling, who was then a director of DNPW, for DNPW to enter into a DOCA.

44                        It was proposed that Mr Terence Dowling become the sole director of DNPW.  Mr Terence Dowling has operated licensed premises for about 40 years in his own right and as a director of companies which have operated licensed premises.  His family have been publicans in New South Wales, Queensland and the Northern Territory since 1932.  An affidavit sworn by Mr Terence Dowling on 21 October 2008 shows he has considerable experience in the hospitality industry.  In a further affidavit sworn on the same day, Mr Dowling deposes that DNPW went into voluntary administration as a result of a lack of cash flow due to the poor trading of Fox and a series of disagreements between directors and shareholders which remained unresolved.  Mr Terence Dowling is also a director of NT Pubco.  He was appointed on 17 November 2008.

45                        NT Pubco has operated two other licensed premises and a bottle shop; the Parap Village Tavern, the Howard Springs Tavern and Winnellie Cellars.

46                        A balance sheet as at 4 January 2009 for NT Pubco was admitted.  As at that date, NT Pubco’s assets exceeded its liabilities by $1,115,329.  Its current assets exceeded its current liabilities by nearly $600,000.

47                        A profit and loss statement for the six months to 28 December 2008 indicates a net income of $571,209.  NT Pubco appears to be in a sound financial position.  So much is confirmed by a letter from its accountants, Merit Partners.  The accountants estimate that the total group turnover for the financial year 2009 will be $20.1 million with net profits of $1.5 million.  A letter from a financier shows an appropriate repayment history.  Mr Daniel Dowling is a director of NT Pubco.  Mr Daniel Dowling is an experienced publican who has been involved in operating licensed premises for approximately 20 years.  Mr Daniel Dowling deposes that NT Pubco is in a position to provide financial support to DNPW and to ensure it has adequate capital.  He said that if this application were granted “the Company will take steps to replace the Bank Guarantee required by the Lease”.

48                        On 18 August 2008 the respondent called on the bank guarantee which had been provided in accordance with the terms of the Lease for the purpose of meeting the arrears of rent and outgoings.  On 22 August 2008 BCC was paid $50,137.16 under the Bank Guarantee which included the actual operating expenses incurred in the period to 30 June 2008 (DNPW was obliged to pay BCC the operating expenses as defined in the Lease each year).  As a consequence of the bank guarantee being called on, all arrears of rent and outgoings owing when DNPW entered into administration were paid.  Since that time, DNPW has not failed to meet its obligations in respect of rent and outgoings.

The Administrators’ Supplementary Report

49                        On 20 August 2008 the administrators provided a supplementary s 439A Report to Creditors recommending the proposal put by Mr Dowling and NT Pubco.  They reported a contract for the sale of the Fox had been prepared and was proceeding to settlement.

50                        They noted that BCC had “purported to terminate the lease on the grounds of the appointment of Administrators”.  They considered the statutory recoveries that might be available against the directors for insolvent trading and offered the opinion:

For the purposes of this report, we estimate that the potential insolvent trading claim may total approximately $500,000 less any associated legal costs.

They advised the creditors of two separate proposals for a DOCA from Mr Dowling and Jalouise Pty Ltd.

51                        After analysing both proposals they advised the creditors that both proposals would offer a better return to both priority (i.e. employees) and unsecured creditors than a winding up of the company.  They offered the opinion:

Although the estimated dividend to unsecured creditors in both the Dowling and Jalouise DOCA proposals as detailed in the table above is virtually the same, it is our opinion that creditors should approve the Dowling Proposal for the following reasons:

▪           There is a greater likelihood of a dividend to unsecured creditors on the basis that there will be an established Deed Fund.

▪           Any return to the creditors will likely occur sooner than the Jalouise proposal.

▪           Administrators’ fees and expenses will be limited as a result of not having to continue to trade the Ducks business.

▪           There will not be any risk of trading losses as all risk associated with the continued trading of the Ducks business will be assumed by Dowling under the license to continue operating the business until settlement of the transfer of the shares and/or acquisition of the business.

▪           The Jalouise proposal will require the Deed Administrators to re-market the business for sale, likely to take 4 – 6 months to identify a purchaser, transfer relevant licenses and reach settlement.

▪           Any purchasers under the Jalouise proposal are likely to require a lease similar to the lease in place prior to our appointment.  Therefore, any potential litigation relating to relief against forfeiture is critical.

▪           Whereas, Dowling will undertake all negotiations with the landlord for the Ducks at his expense and risk.

Please refer to the attached “Statement of Administrators’ Opinion” which provides our opinion as to each of the alternatives available to creditors at the forthcoming reconvened meeting, and our reasons for such opinions.

DNPW executes a DOCA

52                        The adjourned second meeting of creditors was held on 26 August 2008.  A resolution of the creditors present at that meeting was passed for DNPW to execute a DOCA in terms of the proposal put by Mr Dowling.  BCC did not attend and therefore did not cast a vote in favour of DNPW executing the DOCA.

53                        The DOCA was executed by DNPW on 16 September 2008 and by the remaining parties on 22 September 2008.  The administrators were appointed administrators of the DOCA.  It is common ground between the parties that as a result of the DOCA being executed the administration has now ended: s 435C(2) of the Corporations Act.

54                        The administrators were concerned that once the DOCA was executed BCC would attempt to re-enter the property or commence proceedings for possession relying on the notice of termination given on 12 June 2008 because s 440C of the Corporations Act would cease to be a restraint after the administration had ended.  Accordingly, their solicitors wrote to BCC’s solicitors advising that the administrators intended to make application to the Court under s 444F of the Corporations Act or, alternatively, for relief against forfeiture.  They advised that unless BCC was prepared to give an undertaking not to attempt to re-enter or commence proceedings for possession, the administrators would apply to this Court for interim relief.  BCC gave an undertaking that it would not take steps to enter or seek possession of the property without giving the administrators seven days notice in writing.

55                        In its Points of Defence BCC asserts that by virtue of the Notice of Termination, and the end of the administration BCC presently has a right to possession of the property which may be enforced once this proceeding is determined and “By order for possession given in the Supreme Court of the Northern Territory should the Applicants fail to give vacant possession”: paragraph 25.

56                        The DOCA provides for the establishment of a Deed Fund comprising:

(1)        the net proceeds of the sale of the Fox and any surplus trading and gaming floats, up to the date of completion of the sale of that business;

(2)        all monies from surplus trading of Ducks up to the settlement date;

(3)        stock, cash and gaming floats of Ducks up to the settlement date;

(4)        a cash contribution of $200,000 by NT Pubco; and

(5)        any other company assets other than the assets listed in Recital H.

The assets in Recital H are the business of assets of DNPW which were excluded from the Deed Fund.

57                        The administrators’ obligations under the DOCA are:

5.         Obligations of the Administrators

5.1        The Administrators covenant to pay from the Deed Fund prior to the Settlement Date all arrears and outgoings with respect to the Lease.

5.2        The Administrators covenant to pay from the Deed Fund prior to the Settlement Date any debt due to the Liquor and Gaming Commission of the Northern Territory.

5.3        Prior to the Settlement Date the Administrators covenant to resolve all incidents before the Liquor and Gaming Commission of the Northern Territory with respect to Ducks Nuts, to pay from the Deed Fund the costs of complying with the requirement of a Community Impact Statement for Ducks Nuts and the payment from the Deed Fund the costs of complying with the requirement of a Community Impact Statement for Ducks Nuts and the payment from the Deed Fund of any fines attributable thereto and making good any losses arising from any suspension of the licences where such suspension occurs subsequent to the Settlement Date.

5.4        Upon execution of this Deed the Administrators shall enter into a Management Agreement with the Proposer for the operation the Ducks Nuts and the Fox on terms to be set out in a separate letter (sic).

5.5        The Administrators covenant to use their best endeavours to ensure that the conditions set out in clause 6 are satisfied and that the terms of this Deed are completed.

58                        Clause 5.1 requires the administrators to pay all arrears and outgoings with respect to the Lease out of the Deed Fund.  In fact, there are no arrears and outgoings outstanding as the administrators have continued to meet those obligations.

59                        Clause 4 addresses NT Pubco’s obligations:

4.         Obligations of the Proposer

4.1        The Proposer shall pay all legal fees and disbursements in respect of the proceedings instituted by the Administrators seeking relief pursuant to section 444F of the Corporations Act in relation to the Ducks Nuts’ Lease PROVIDED THAT the Proposer may at any time in its absolute discretion terminate its obligation hereunder PROVIDED FURTHER THAT such termination will not affect the Proposer’s liability to pay legal fees and disbursements incurred up to the date of termination of its obligation.

4.2        Upon all of the conditions in clause 6 being satisfied or waived by the Proposer, the Proposer will contribute the sum of $200,000 within 3 business days.

4.3        Upon execution of this Deed the Proposer shall enter into a Management Agreement with the Administrators for the operation of the Ducks Nuts and the Fox on terms to be set out in a separate letter.

4.4        The Proposer will offer continuing employment to some of the employees of the Company.  In respect to those employees, the Proposer will assume their accrued leave entitlements, namely annual leave and long service leave.

60                        Clause 4.3 provides that NT Pubco will enter into a management agreement with the administrators for the operation of Ducks until the conditions precedent in the DOCA are satisfied.  The management agreement has not been discovered by the applicants despite repeated requests by BCC.  The applicants have maintained that the management agreement is not relevant to any issue raised on the pleadings.

61                        NT Pubco is not obliged to pay the sum of $200,000 into the Deed Fund until the conditions precedent are met: clause 4.2.  Some of DNPW’s employees will continue in employment: clause 4.4.

62                        Clause 6 of the DOCA provides for conditions precedent to the performance of NT Pubco’s obligations  and, in particular, clause 6.3 provides:

6.3       The obligations of the Proposer in clause 4 hereof are conditional on the following:

6.3.1     the Administrators applying to court and obtaining an order for equitable relief or relief pursuant to Section 444F of the Act that the Lease be reinstated and that the Notice of Termination of Lease dated the 12^th day of June 2008 issued by Birch Carroll Coyle be withdrawn; or, alternatively that Birch Carroll Coyle grant a new lease to the Company on terms acceptable to the Proposer.

63                        Clause 6.3.5 provides that NT Pubco will assume and/or satisfy the bank guarantee in favour of BCC.  The DOCA requires all directors apart from Mr Dowling of DNPW to resign.  The shareholders are to transfer their shares to NT Pubco.

64                        Clause 10 provides 24 April 2008 (the date of appointment of the administrators) to be the day on which the creditors’ claims must have arisen.

65                        During September 2008 BCC sought a copy of the management agreement referred to in clause 4.3 of the DOCA but it was not provided at any time before trial.

BCC’s second proposal for a new lease

66                        On 14 October 2008 the respondent’s solicitors wrote to the applicants’ solicitors repeating the previous offer to lease the premises.  They wrote:

We have received instructions from our client to repeat in an open letter the previous offer of a lease of the above premises.

Our client is prepared to offer a lease to your client on the following terms.

Permitted Use:                       Restaurant, Tavern, Coffee Shop

Term:                          5 years

Option:                       Nil

Rent:                           $177,207.63 plus GST for the first year of the term

Rent Review:             Annually by CPI (Darwin)

Outgoings:                  33% (Lessee’s proportion) including but not limited to Council rates, water and sewerage rates, gardening, insurance & security

Bank Guarantee:        $75,000

Personal Guarantee:  Directors of the lessee to provide personal guarantees

Holding over:             Either party to give 1 month’s written notice

Insurance:                  Public liability insurance of at least $10 million

Legal Costs:               Lessee to pay the Lessor’s costs (on a solicitor / own client basis) in respect of the negotiation, preparation, execution and registration of the lease, including costs charged by the Lessor’s mortgagee for consent to the lease

Lessee’s Works:        The Lessee is responsible for its own fit-out and is required to provide the Lessor with details of any planned work.  Any fit-out work is subject to building board, Lessor and any other relevant approvals

Make Good:               Upon lease expiry the Lessee is to remove its fixtures, fittings and equipment and reinstate the premises to cold shell status, unless otherwise agreed with the Lessor

Signage:                      Subject to Lessor, Council and any other relevant approvals

Opening Hours:         Subject to Lessor, Council and any other relevant approvals

Demolition Clause:    Nil

Liquor Licence:          The lease will include a standard clause in relation to the Lessor’s rights with respect to the Liquor Licence in the event of default

Other terms:              Consistent with current leases of comparable commercial premises in NT

Please note that the terms of the proposed lease are subject to final approval of the Board of Directors of our client.  If acceptable to your client, the terms will be put before the Board for approval without delay.

We invite you to respond to this offer in an open letter setting out any counter offer or proposals your client wishes to be considered.

67                        The two attempts in June and October of 2008 by the parties to negotiate the terms of a new lease were not successful.  BCC has since indicated that it no longer wishes to make any further offer for a new lease to DNPW or their nominees.

Finance approved for the proposal by NT Pubco

68                        On 14 October 2008 the ANZ Bank Limited wrote to Dowling Holdings Pty Ltd advising that it was prepared to offer DNPW an Indemnity/Guarantee Facility in the sum of $79,980.

69                        On 12 December 2008 the ANZ Bank Limited wrote “To Whom it May Concern:”

Re NT Pubco Pty Ltd.

I confirm that ANZ has approved finance for NT Pubco Pty Ltd for the purchase of the Lease of Ducks Nuts under their Deed of Arrangements, together with further additional capital finance.

All of the NT Pubco Pty Ltd finance is secured and backed up by the Dowling Family Groups assets.  The Dowling family have banked with ANZ for over 30 years, and would be one of the most experienced and successful hoteliers in the NT over many years.

I have no hesitation in recommending them as the Lessee of the Ducks Nuts premises in Darwin.

If you have any queries regarding the above matter, please do not hesitate to contact me.

BCC gives a second notice to determine or terminate the Lease

70                        On 5 February 2009, the day before trial, because of suggestions by DNPW’s solicitors that the first notice of termination might not be valid, BCC wrote to DNPW (the second notice of termination):

Lease from Birch Carroll & Coyle Limited – registered no. 516196

Premises: Ducks Nuts, 4 Briggs Street, Darwin

Lessee: DNPW Pty Ltd (Subject to Deed of Company Arrangement) (‘Lessee’)

We refer to the letter from Minter Ellison, our solicitors, dated 12 June 2008 (‘the Notice’) giving notice that as lessor of the abovementioned Premises, we determined the Lease under clause 13.2(b), effective from the date of service of the Notice.

Without prejudice to the efficacy, operation and effectiveness of the Notice, we hereby give further notice of the determination of the Lease under clause 13.2(b).

The grounds of termination are an Event of Default under clause 13.1(e) namely, an Insolvency Event has occurred in relation to the Lessee in that on 24 April 2008 voluntary administrators were appointed to the Lessee under Part 5.3A of the Corporations Act 2001 and on 22 September 2008 the Lessee entered into a Deed of Company Arrangement (‘the DOCA’) and remains subject to the DOCA.

We maintain and confirm that the Lease is at an end and demand that you deliver up possession of the Premises.

71                        In the second notice of termination BCC relies upon the same events as in the first notice of termination and, in addition, the fact that DNPW entered into a Deed of Company Arrangement and remained subject to the Deed.  Unlike the first notice of termination, the second notice of termination requires DNPW to deliver up possession of the premises.

72                        Whilst it is suggested that the entry into the DOCA was an event of default because it was an Insolvency Event, the definition of “Insolvency Event” shows the entry into the DOCA is not the event that triggers the event of default.  It is the lessee being placed into voluntary administration.  The notice therefore ought to be understood as relying upon the same event of default as was relied upon in the letter of 12 June 2008.

73                        The manager of BCC’s holding company, Amalgamated Holdings Limited, Mr Jonathan McKenzie said in his affidavit that at the time BCC entered into the Lease with Lorlina the retail market was depressed.  He said the term of the Lease is unusually long.  He said that BCC has plans to develop the Mitchell Street complex “and the termination of the Lease presents the Respondent with the opportunity to take control over the entire site for future development options”.  He has deposed:

57.       The Respondent was and is anxious to avoid the imposition upon the Respondent of a tenant who is not of the Respondent’s choosing, and who might occupy the Property pursuant to a Court order (the terms of which I do not know), rather than in accordance with a commercially negotiated lease on terms acceptable to the Respondent.

58.       The material made available to the Respondent has not given any reason to revise its serious concerns about the commercial viability of the Company, or those associated with its management.  In their report to creditors pursuant to section 439A of the Act (annexure ‘AJS7’) to the First Strazdins Affidavit), the First Applicants have formed the opinion that:

58.1      The Company failed, inter alia, due to lack of cash flow and poor financial management (page 68); and

58.2      The Company traded whilst insolvent from at least June 2008 evidenced by:

(a)        net losses suffered for the 2006 ($69,678) and 2007 ($219,201) financial years and for the period end ending 23 April 2008 ($141,033);

(b)        declining trading creditor position from 30 June 2006 ($441,916) to 23 April 2008 (527,564); and

(c)        adjusted working capital deficiency from 30 June 2006 ($285,816) to 23 April 2008 ($481,444).

The Administrator Mr Strazdins’ cross-examination

74                        It is not necessary to identify the various affidavits that were relied upon by the parties other than what has already been done, except to say that the applicants relied upon affidavits of Mr Andrejs Janis Strazdins.  BCC required Mr Strazdins to attend for cross-examination: O 14 r 9.  Mr Strazdins was cross-examined about the existence of the management agreement that was to be entered into between NT Pubco and the administrators for the operation of Ducks pursuant to clause 4.3 of the DOCA.

75                        The cross-examination was directed to establishing that the management agreement might be a breach of the prohibition in the Lease against assigning the licence.  The difficulty with the cross-examination was that the issue was not one that was raised in the Points of Defence.  It was not BCC’s case on the pleadings that after the Lease had been terminated BCC had acquired some further right to terminate the Lease.  The applicants objected to the cross-examination on the ground that it was not an issue on the pleadings.

76                        BCC contended that the conduct of DNPW and the administrators in executing the DOCA which contained such a term was relevant to the exercise of the Court’s discretion in considering an order under s 444F.

77                        However, even if that were the case, the issue needed to be addressed on the pleadings.  Mr Livesey QC sought leave to amend the Points of Defence.  The applicants objected contending that BCC should be confined to its pleading at trial.  I refused the application.  BCC had been aware of the terms of the DOCA since shortly after it was executed and before this proceeding was commenced.  It knew that the DOCA contemplated an interim management of the business pending the conditions precedent in the DOCA being addressed.  So much is apparent from clause 4.3 of the DOCA.  Indeed, it sought a copy of the agreement on a number of occasions.  There was no satisfactory explanation as to why the issue had not been addressed in the Points of Defence.

78                        The issue was raised for the first time at trial.  The applicants contended that they would need to obtain further instructions in relation to the relationship which was raised by the DOCA.  The application to amend therefore, if granted, would have necessitated an adjournment.  That would have prejudiced the applicants.  The applicants therefore were successful in confining BCC’s case to the case it pleaded.

79                        It seemed to me that by refusing the application BCC would not be disadvantaged because, even if the application were granted, BCC had not terminated the Lease for the reason sought to be cross-examined on.

80                        Mr Strazdins was also cross-examined on the opinion the administrators offered to DNPW’s creditors that it was in the creditors’ interests for the company to execute the DOCA.  In particular, Mr Strazdins was asked about his opinion regarding claims that might be available against DNPW’s directors for insolvent trading having regard to the administrators’ expressed opinion that DNPW was insolvent as at 30 June 2006.  He agreed that the administrators expressed an opinion in their report that any return on a claim for insolvent trading, estimated at $500,000, would be to the benefit of the secured creditor.  He agreed that assumption was contrary to s 588Y of the Corporations Act.

81                        Mr Strazdins agreed that the administrators should have left out of account the interests of the secured creditors.  He also agreed that the administrators’ analysis wrongly assumed that the directors could prove for any payment they would make to the company as a result of any insolvent trading claim.  He agreed that such an assumption was only relevant in an unfair preference claim.  He also agreed that the report wrongly assumed the total of the administrators’ fees in the event of liquidation.  Lastly, he agreed that the directors’ loan accounts may have been taken into account twice.

82                        It was put to him that having regard to the concessions he made he could not be sure that the return to the creditors would be less disadvantageous than the two proposals for the DOCA.  He said that was possibly right.

83                        I accept, as BCC demonstrated in cross-examination, that the administrators have made errors in the calculation of the benefits that may flow from a DOCA and that those errors raise a question as to whether it was in the creditors’ interests to have DNPW execute a DOCA.  However, that is not the issue in this proceeding.  The creditors are not challenging the administrators’ opinion.  I cannot see how the administrators’ errors might be relevant in determining whether an order should be made under s 444F.

The parties’ contentions

84                        The applicants contend that the termination of the Lease and recovery by BCC of the property would have a material adverse effect on achieving the purposes of the DOCA because NT Pubco would be discharged from its obligations under the DOCA and DNPW would inevitably be wound up in insolvency.

85                        They contend that BCC’s position would be adequately protected because:

(1)        all arrears of rent and outgoings have been paid;

(2)        Mr Dowling who will become DNPW’s sole director under the terms of the DOCA is experienced in DNPW’s business;

(3)        NT Pubco is a financially viable company which is experienced in the conduct of the type of business conducted by DNPW;

(4)        DNPW will in any event be required pursuant to the terms of the Lease to provide a bank guarantee.

86                        BCC contends that the Corporations Act does not prevent BCC from terminating the Lease and the Lease was terminated by the notice given on 12 June 2008.

87                        BCC contends that no order can be made under s 444F because the Lease has been terminated.  Alternatively, no order should be made because such an order would be inconsistent with BCC’s right to agree the terms of any lease arrangements over its property and to select a tenant of its own choosing rather than to have a tenant which is insolvent.  It argues that its position could not be satisfactorily protected.  It also contends that no order can be made under s 444F that has effect after the expiration of the DOCA.

88                        The competing contentions require this Court to consider the construction of s 444F.  I am told that the section has not previously been the subject of judicial determination in respect to the issues raised.

Section 444F of the Corporations Act

89                        Section 444F is contained in Part 5.3A of the Act, which sets out the statutory regime for the appointment of administrators to companies and the subsequent execution of deeds of company arrangement.  It provides:

444F(1)            This section applies where:

(a)        at a meeting convened under section 439A, a company’s creditors have resolved that the company execute a deed of company arrangement; or

(b)        a company has executed such a deed.

         (2)           Subject to subsection 441A(3), the Court may order a secured creditor of the company not to realise or otherwise deal with the security, except as permitted by the order.

         (3)           The Court may only make an order under subsection (2) if satisfied that:

(a)        for the creditor to realise or otherwise deal with the security would have a material adverse effect on achieving the purposes of the deed; and

(b)        having regard to:

(i)       the terms of the deed; and

(ii)       the terms of the order; and

(iii)      any other relevant matters;

the creditor’s interests will be adequately protected.

         (4)           The Court may order the owner or lessor of property that is used or occupied by, or is in the possession of, the company not to take possession of the property or otherwise recover it.

         (5)           The Court may only make an order under subsection (4) if satisfied that:

(a)        for the owner or lessor to take possession of the property or otherwise recover it would have a material adverse effect on achieving the purposes of the deed; and

(b)        having regard to:

(i)       the terms of the deed; and

(ii)       the terms of the order; and

(iii)      any other relevant matter;

the interests of the owner or lessor will be adequately protected.

         (6)           An order under this section may be made subject to conditions.

         (7)           An order under this section may only be made on the application of:

(a)        if paragraph (1)(a) applies – the administrator of the company; or

(b)        if paragraph (1)(b) applies – the deed’s administrator.

90                        The context in which s 444F finds itself must be examined to determine the construction of the section.  The context not only includes the enactment itself but also the existing state of the law and the mischief which the enactment was intended to address and remedy: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408.

Part 5.3A of the Corporations Act

91                        Part 5.3A of the Corporations Act, which contains s 444F, was enacted in 1993 following the Harmer Report and provided at that time for a wholly new regime for the administration of companies apart from the existing forms of external administration and especially winding up in insolvency.

92                        Section 435A identifies the objects of the Part:

435A   The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:

(a)        maximises the chances of the company, or as much as possible of its business, continuing in existence; or

(b)        if it is not possible for the company or its business to continue in existence – results in a better return for the company’s creditors and members than would result from an immediate winding up of the company.

93                        Section 435A recognises that a company which is to be administered with a view to executing a DOCA is insolvent.  The powers which are given in the Part are predicated on the assumption that the company which is to be subject to a DOCA is insolvent, and the company by entering into a DOCA will maximise its chances of existence, or the company’s creditors will obtain a better return than if the company were wound up.

94                        Section 444F should be construed with those objects in mind and should be given a construction that would promote those purposes rather than a construction that would not: s 15AA of the Acts Interpretation Act 1901 (Cth); Lam Soon Australia Pty Ltd v Molit (No 55) Pty Ltd (1996) 22 ACSR 169.

95                        The scheme of Part 5.3A is to empower the creditors to determine the future of the company.  It does so by allowing the company to appoint an administrator in circumstances where the directors are of the opinion that the company is insolvent or likely to become insolvent at some future time and resolve that an administrator should be appointed: s 436A.  The administrator is entrusted with the administration of the company and after his or her appointment has control of the company’s business, property and affairs and has the power to carry on the company’s business and manage its property and affairs, and to perform any function that the company or any of its officers could have performed if the company were not under administration: s 437A.  The administrator’s appointment stays the powers of any officer or a provisional liquidator of the company: s 437C.  After his or her appointment, only an administrator can deal with the company’s property: s 437D.  The administrator’s appointment also impacts upon the members in that the members cannot, during the administration of the company, transfer shares in the company, except if the administrator consents or the Court permits: s 437F.

96                        The administrator must convene a meeting of the company’s creditors within eight business days of the beginning of the administration in order to determine whether to appoint a committee of creditors: s 436E.

97                        The administrator must, as soon as practicable after entering into the administration of the company, investigate the company’s business, property, affairs and financial circumstances, and form an opinion as to whether it would be in the interests of the company’s creditors for the company to execute a DOCA or whether it would be in the creditors’ interests for the company to be wound up: s 438A.

98                        The administrator is obliged to convene a meeting of the company’s creditors within the period provided for in s 439A(5) or such further extended period under s 439A(6).  The purpose of s 439A is to require the administrator to inform the creditors as soon as possible about the affairs of the company, so that the creditors can decide whether the company should execute a DOCA or be wound up: s 439C.

99                        Division 6 of Part 5.3A provides for the protection of the company’s property during the period of administration.  Whilst the company is under administration a number of things cannot happen.

100                      First, the company cannot be wound up voluntarily, except if the creditors so decide pursuant to s 439C(c) or the company contravenes s 444B(2) or if at a meeting convened under s 445F the company’s creditors pass a resolution terminating the DOCA and also resolve for the company to be wound up: s 446A and s 440A.

101                      Secondly, a person cannot enforce a charge on the property except with the administrator’s written consent or with the leave of the Court: s 440B.

102                      Thirdly, as I have already observed, during an administration the owner or lessor of property that is used or occupied by the company or in the possession of the company cannot take possession of the property, except with the administrator’s written consent or with the leave of the Court: s 440C.

103                      Fourthly, again as already observed, a party cannot commence a proceeding in Court against the company or proceed with an existing proceeding, again, except with the administrator’s written consent or with the leave of the Court: s 440D.

104                      Fifthly, no enforcement process in relation to the property of the company can be begun or proceeded with during the administration of the company, except with the leave of the Court and on such terms as the Court may impose: s 440F.

105                      Sixthly, a court officer, including a Sheriff or Registrar or other like officer of the court cannot take action to sell property of the company under a process of execution; or pay to a person other than the administrator the proceeds of selling property or of money of the company seized; or take action in relation to the attachment of debt due to the company; or pay to a person money received because of the attachment of such debt: s 440G.

106                      Seventhly, a guarantee of a liability of the company cannot be enforced against a director of the company or a spouse or relative of that director, except with the leave of the Court: s 440J.

107                      Other rights which secured creditors and owners and lessors would otherwise have are curtailed by the appointment of an administrator.  For example, the administrator can deal with any property secured by a floating charge which has been created in favour of a creditor, but later becomes a fixed or specific charge, as if it were still a floating charge: s 442B.  Although an administrator must not dispose of property that is subject to a charge or property which is used by or occupied by the company of which someone else is the owner or lessor, the administrator may dispose of that property in the ordinary course of the company’s business or with the written consent of the chargee, owner or lessor, or with the leave of the Court: s 442C.

108                      Thus, the appointment of an administrator interferes with rights that secured creditors, owners and lessors have against the company.  The Division protects the company from the enforcement of those rights during the period of administration in order to allow the administrator to make his or her enquiries and offer his or her opinion to the creditors whether it would be in the company’s best interests to enter into a DOCA or whether it would be in the creditors’ interests for the company to be wound up.

109                      Division 6 is designed to allow the company time to consider its position through its creditors and gives the company a breathing space to enable that to occur.

110                      Division 7 addresses the rights of a secured creditor and an owner or lessor during the period of administration.  Sections 441A and 441B preserve some of a secured creditor’s rights.  Section 441E preserves a secured creditor’s right to give a notice under the charge.  Section 441F provides that where before a company goes into voluntary administration and a receiver or any other person has entered into possession or assumed control of property used or occupied by or in the possession of the company for the purpose of enforcing a right of the owner or lessor of the property to take possession of the property or otherwise recover it, that s 437C and s 440C do not prevent the receiver or other person from performing a function or exercising a power in relation to the property.  Section 441F therefore allows an owner or lessor who has taken possession or otherwise recovered property before a company went into administration to continue in possession and take whatever steps in relation to the property which it is entitled to take.  Section 441J provides that s 437C and s 440C do not prevent a person giving notice to a company under an agreement relating to property that is used or occupied by or is in the possession of the company.  A lease is an agreement relating to property and therefore a lessor can give notice under the lease terminating or determining the lease during the period of administration.  The purpose of s 441J is to preserve to an owner or lessor who wishes to rely upon a provision of an agreement relating to property the right to give whatever notice is necessary to trigger that provision, although s 440C prevents that owner or lessor taking possession or otherwise recovering the property.

111                      The object of the Part is to freeze certain rights enjoyed by secured creditors, owners and lessors during the short period of administration so that the unsecured creditors can make a decision whether the company should execute a DOCA or should be wound up.  The intention of the legislation is that that period be as short as necessary to allow the administrator to make his or her investigations and to reach his or her opinion, and to inform the creditors accordingly, so that the creditors can make the appropriate decision.

112                      Division 10 of Part 5.3A comes into operation if the company’s creditors resolve that the company should execute a DOCA: s 444A(1).  The execution of a DOCA brings the administration to an end: s 435C.  The administrator who was appointed by the directors is no longer entrusted with the company’s affairs.  That administrator will instead become the administrator of the DOCA unless the creditors otherwise resolve: s 444A(2).  After the DOCA is executed, the administrator’s duties are to ensure compliance with the terms of the DOCA.  Division 10 provides for a new and different regime to that which governed the company, its officers, its secured and unsecured creditors and lessors during the period of the administration.  This Division contemplates the continued existence of the company in accordance with the DOCA.

113                      The company will only have entered into administration because it was, in the opinion of its directors, insolvent or likely to become insolvent.  The creditors must have, after receiving the administrator’s opinion, resolved that the company execute a DOCA rather than be wound up.  In that regard, the creditors, it might be expected, were of the opinion that it would be in the creditors’ interests that the company execute a DOCA.

114                      If such a resolution is passed and unless the creditors resolve otherwise, the administrator becomes the administrator of the DOCA and must prepare an instrument setting out the terms of the DOCA: s 444A.

115                      A DOCA binds all creditors of the company so far as any creditors’ claims arise before the day specified in the DOCA under s 444A(4)(i), which will be the day when the creditors’ claims are admissible under the deed: s 444D(1).  Usually that day would be the date upon which the company went into administration.  A DOCA has the effect of releasing the company from a debt insofar as the DOCA provides and the creditor concerned is bound by the deed: s 444H.

116                      A DOCA also binds the company, its officers and members, and the deed’s administrator: s 444G.

117                      A DOCA does not prevent a secured creditor from realising or otherwise dealing with his or her security or affect a right of an owner or lessor of property in relation to that property, except so far as the DOCA provides, and where the secured creditor or owner or lessor has voted in favour of the resolution or otherwise unless the Court so orders under s 444F: s 444D.

118                      Section 444E applies to those persons who are bound by the deed.  They will be, of course, unsecured creditors (s 444D) and any secured creditors, owners or lessors who are otherwise bound by reason of s 444D.  Those persons cannot, until the DOCA terminates, make or proceed with an application for the winding up of the company; and begin or proceed with a proceeding against the company in relation to its property or begin or proceed with an enforcement process in relation to that property, except with the leave of the Court: s 444E.

119                      Section 444F, which is set out above, has been enacted to address the circumstances where s 444D has no application and orders of the kind provided for in the section are necessary.  Before addressing the section I will mention further provisions in this Part.

120                      Division 11 deals with the variation, termination and avoidance of a DOCA.  Section 445C is relevant.  That section provides that the DOCA terminates if an order is made by the Court terminating the deed or the company’s creditors resolve to terminate the deed or if the deed specifies circumstances in which it is to terminate and those circumstances exist: s 445C.

121                      Division 13 of Part 5.3A empowers the Court to make orders as it thinks appropriate about how the Part is to operate in relation to a particular company: s 447A(1).  It may, on the application of the company or a person, described in s 447A(4) and if satisfied that the administration of a company should end make an order that the administration is to end.  The Court is empowered to make a declaration as to whether a person has been validly appointed as administrator: s 447C.  An administrator may seek directions from the Court about a matter arising in connection with the performance or exercise of any of the administrator’s functions and powers: s 447D.  The Court is empowered to remove an administrator of a company under administration or of a DOCA if the Court is satisfied that the administrator has managed the company’s business in a way that was prejudicial to the interests of the company’s creditors or done an act or made an omission that would be prejudicial to such interests: s 447E.

Can an order be made under s 444F after a lease has been terminated?

122                      BCC contends that it was entitled to and has terminated the Lease.  The consequence of termination is that the purpose of the DOCA cannot be effected because the DOCA depends upon there being a lease.  It contends that s 444F has no application when there has been a determination of the lease before the DOCA has been executed.  That raises for consideration the proper construction of s 444F and in particular a determination of the purpose of s 444F(4).

123                      BCC also contends that the Court cannot make an order under s 444F to restrain an owner or lessor from taking possession or recovering property after the DOCA has been performed.

124                      The applicants contend that an order can be made even if the Lease has been terminated.  They also contend that an order can be made under s 444F to restrain the owner or lessor after the completion of the DOCA.  They argue that the Court can attach conditions under s 444F(6).  They contend that the section provides for conditions to be imposed by the Court when making an order under s 444F to further protect the lessor’s position whilst also preventing the lessor from taking possession or recovering the property.

125                      It is right as BCC contends that it gave its notice of termination whilst DNPW was in administration and before the DOCA was terminated.  However, that does not mean that the DOCA cannot come into effect as was contended by BCC.  Clause 6.3.1 of the DOCA expressly recognises that a notice of termination has been given and makes a grant of relief in equity or the making of an order under s 444F a condition precedent to the DOCA becoming effective.  The giving of the notice of termination could not ipso facto mean that DNPW could not enter into a DOCA which assumes relief from forfeiture or an order under s 444F.  If it did, it would mean that a company in the circumstances of DNPW would not be entitled to equitable or statutory relief merely by a lessor giving notice of termination.

126                      A DOCA binds all creditors whose claims have been admitted before the day when the administration began: s 444D(1).  Secured creditors, however, are only restrained from dealing with their security if they voted in favour of the resolution of creditors which gave rise to the DOCA or if the Court makes an order under s 444F(2): s 444D(2).  A DOCA also does not effect an owner or lessor’s rights in relation to their property, except where the owner or lessor has voted in favour of the resolution of creditors which has given rise to the DOCA or if the Court makes an order under s 444F(4): s 444D(3).

127                      Section 444F therefore only comes into play where a company has been placed in administration because its directors believed it to be insolvent or likely to become insolvent; where during the administration there has been a meeting of creditors who have resolved to have the company execute a DOCA; and where the company has secured creditors or owners or lessors who have not voted in favour of the resolution and who wish to realise on their security or deal with their property.  Section 444F therefore assumes that the secured creditors or owners or lessors do not consent to the loss of any rights which they might have to deal with their security or property.

128                      Section 444F only applies where the creditors have resolved to have the company enter into a DOCA and the company has either executed the DOCA or proposes to do so: s 444F(1).  Section 444F also only empowers the company’s administration to make the application before the DOCA has been executed or, if the DOCA has been executed, the administrator of the DOCA to make the application: s 444F(7).  That precludes other interested persons such as directors, unsecured creditors or DOCA proposers from making the application.  The relevant administrator must therefore think it to be in the company’s best interests to make the application.

129                      The Court is only empowered to make an order that the secured creditor not realise or otherwise deal with his or her security if the Court is satisfied that if the secured creditor did realise or deal with the security it would have a material adverse effect on the purposes of the DOCA and the secured creditor’s interests can be adequately protected by the DOCA or by Court order or in some other way: s 444F(2) and (3).

130                      The Court is also empowered to make an order preventing an owner or lessor of property that is used or is occupied or in the possession of the company from taking possession of the property or otherwise recovering it: s 444F(4).  Again, like in the case of a secured creditor, an order restraining an owner or lessor from taking possession of the property or otherwise recovering the property may only be made if the Court is satisfied that, if the owner or lessor took possession or otherwise recovered the property, it would have a material adverse effect on achieving the purposes of the DOCA.  The Court must also be satisfied that the owner or lessor’s interests would be adequately protected by the terms of the deed or the terms of the order or in some other way: s 444F(5).

131                      The power in s 444F(4) is limited to preventing an owner or lessor from taking possession or recovering the property.  The Court cannot otherwise interfere with any other rights that the owner or lessor might have in relation to the property.  For example, the Court cannot, if there has been a valid termination of a registered lease by the lessor, prevent the lessor seeking to set aside the registration of the lease.  Nor can the Court prevent the lessor from exercising any other rights the lessor might have under the lease.  In particular, s 444F(4) does not allow the Court to make an order preventing the lessor from terminating the lease.   The absence of that power is consistent with the earlier regime when the company was in administration.  Section 440C prevented the owner or lessor from taking possession or recovering the property.  However, the owner or lessor was not prevented from giving any notice to the company under an agreement relating to property: s 444J.

132                      BCC argued that no order could be made after the Lease was determined or terminated.

133                      The power to make an order under s 444F(4) is not dependent upon a valid lease being in place but is dependent upon the property being used or occupied by the company or by the company being in possession of the property.  Because the power is given to the Court in relation to property “that is used or occupied by or is in the possession of the company”, it also does not matter whether if the company had a lease over that property the lease has terminated so long as the property continues to be used or occupied by the company or the company remains in possession.  That point is reinforced by the Part referring to “owners and lessors”.  If the section required the existence of a valid enforceable lease, the section would not need to include the power to make orders directed to owners.  Therefore, whether the lease has or has not been validly terminated prior to the company entering into the DOCA is immaterial to the exercise of the power, except perhaps as to the exercise of the Court’s discretion.

134                      An application by an administrator under s 444F for relief against an owner or lessor assumes that the owner or lessor has a right to take possession or otherwise recover the property that is used or occupied by or in the possession of the company.  Where there is or has been a lease the section assumes that the lease has been validly terminated.  That must be so because otherwise the lessor would not be entitled to possession or recovery of the property.  It also assumes that a receiver or other person has not entered into possession or recovered the property before the company went into liquidation: s 441F.  It also assumes that the owner or lessor does not consent to the company retaining the use, occupation or possession of that property.  Lastly, it assumes that the owner or lessor does not favour the DOCA.  Otherwise, the owner or lessor would have voted in favour of the resolution and s 444D would apply.

135                      Those assumptions must be borne in mind in considering whether an order should be made under s 444F.

136                      BCC argued that Re Java 452 Pty Ltd (administrator appointed) (No 2) (1999) 32 ACSR 507 was authority for the proposition that an order cannot be made after the lease is determined.

137                      I do not agree.  The application with which the Court was concerned in Re Java 32 ACSR 507 was by a lessor for an order that it have leave to take possession of leasehold premises pursuant to s 440C of the Corporations Act or, alternatively, a declaration under s 441F of the Corporations Act.

138                      In Re Java 32 ACSR 507 the landlord, Permanent Trustee, gave notice of default under the lease for non-payment of some four months rent.  The notice stipulated that if the breach were not remedied Permanent Trustee would re-enter the premises 14 days later.  Five days later Permanent Trustee gave a notice said to be under s 146 of the Property Law Act 1958 (Vic) in relation to interest and legal costs said to be owing and warned that unless the breaches were remedied within 14 days Permanent Trustee would re-enter without further notice.  About a week after the second notice the directors of the lessee company appointed administrators to the company under s 436A.  The company was then still in possession of the leasehold property but the breaches in the two notices had not been remedied.  During the administration two offers were made to purchase the company’s business and for the purchaser to take an assignment of the lease.  The administrators recommended that the creditors approve the arrangement.  However, Permanent Trustee insisted that the lease had been terminated and that it was not prepared to negotiate with the prospective purchaser but had found another prospective tenant.  The administrators recommended to the company’s creditors that a deed of company arrangement be executed pending the sale of the business and the assignment of the lease.

139                      Permanent Trustee commenced the proceeding in the first place seeking leave to enter into possession pursuant to s 440C in case the creditors resolved that the company enter into a deed of company arrangement that day because Permanent Trustee would be at risk under s 444F if such a proposal were made.

140                      The application therefore before the Court was in relation to a company in administration, not a company subject to a deed of company arrangement.

141                      Permanent Trustee contended that the lease had been terminated and that the company had no right to possession.  It put forward four separate bases for that contention.  First, for the non-payment of rent; secondly, for the other breaches in the second notice; thirdly, for going into administration; and fourthly, by Permanent Trustee accepting the company’s repudiation of the lease.

142                      It was argued that Permanent Trustee had not taken possession.  The parties accepted that the requirements of a re-entry were a physical re-entry or the commencement of a proceeding for ejectment or some other unqualified demand for possession.  The Court held that Permanent Trustee had not taken physical possession.  The Court held that an application under s 440C of the Corporations Act was not the equivalent of an action for possession because an order under s 440C would not give the applicant possession but merely entitle the applicant to take steps to take possession.  An order under s 440C would remove a barrier standing in the Permanent Trustee’s way.

143                      The Court held there had been no re-entry by physical demand.  It also held that the lessor had not, by failing to pay rent, repudiated the lease.  For all of those reasons, s 441F did not come into play because Permanent Trustee had not gone into possession before the administration began.  The demand for possession took place after the administration began.

144                      The Court then considered Permanent Trustee’s application under s 440C which it dismissed.  In doing so it said (at [40]):

It may be, however, that the attitude of the court to the resolution of these problems and conflicts will differ depending on whether they arise in the implementation of an executed deed, in an application under s 444F(1)(b), or before the creditors have resolved that a deed be executed, in an application under s 440C or s 444F(1)(a).  In the latter case the restraint is only temporary.  It is clear, however, that it is for the lessor wishing to take possession to satisfy the court on an application under s 440C that this is the appropriate course.  It may be appropriate where it is shown that the taking of possession will not in any practical way affect the availability of the options which the creditors must consider or their decision on those options.  This, in effect, was the position adopted by the applicant before me.

On behalf of Permanent Trustee it was put that the interests of the lessor were more compelling than those of the Company or its creditors.  Permanent Trustee had negotiated an agreement with a new tenant and that tenant was waiting to take possession and ready to carry out substantial renovations to the premises.  To refuse the relief sought would be to impose a hardship on the landlord and the proposed tenant.  The force of this submission is somewhat diminished by the fact that these negotiations with the proposed tenant were undertaken, or at least consummated, at a time when the attitude of the administrators was known.  And knowing this attitude, Permanent Trustee delayed bringing this application until 17 June, two months after the refusal of consent.  I interrupt myself to note that the reason given on that date for the urgency which, I was told required the making of an order under s 440C forthwith was an apprehension that a deed of company arrangement might be proposed at the meeting of creditors to be held later that day.  An examination of the scheme of Pt 5.3A shows that, far from being a reason for granting the leave sought, the imminence of the creditors’ meeting and the prospect that they might be asked to consider a proposal for a deed of company arrangement, was a powerful reason not to disturb the status quo.  The intention of the legislation is that creditors should be given every opportunity to consider such a proposal and s 440C is to prevent the lessor from pre-empting their decision by disturbing the company’s possession of premises which may be essential to the success of the proposal contained in the deed.

145                      I do not understand that decision to be contrary to the construction which I have placed upon s 444F.  It was put that the Court talked of a “temporary” restraint under s 444F.  However, that was said in the context of the case before the Court and not by reference to an application under that section.

146                      I reject BCC’s contention that an order cannot be made in relation to property which was subject to a lease which has been determined or terminated.

Would BCC taking possession have a material adverse effect on the purpose of the DOCA?

147                      An order to restrain an owner or lessor from taking possession or otherwise recovering property cannot be made unless the Court is satisfied first, that if the owner or lessor took possession or otherwise recovered the property it would have a material adverse effect on achieving the purposes of the DOCA; secondly, that the owner’s or lessor’s interests will be adequately protected by the DOCA itself, by any order of the Court or in some other way: s 444F(4) and (5); and if those two matters are made out, thirdly, whether the orders should be made in the exercise of the Court’s discretion.  The discretion is unfettered but must, of course, be exercised judicially. 

148                      Where as here it is a condition precedent to the DOCA coming into existence that an order be made under s 444F or if it has come into existence the DOCA terminating (s 445C(c)), then the condition in s 444F(5)(a) is satisfied.  It is satisfied because if BCC takes possession of or recovers the property it will have a material adverse effect on the purposes of the DOCA.  Put another way, if an order were not made, BCC would be entitled to take possession; DNPW would go into liquidation; and there would be no business to sell.

149                      There will be no DOCA if BCC takes possession of the property.  Indeed, the DOCA will terminate before that event.  It will terminate if the Court refuses to make an order under s 444F(4).  The main purpose of the DOCA is to continue and maintain Ducks’ business which is conducted on the premises.  If that purpose is achieved, two other purposes will also be achieved.  First, DNPW will continue to trade and secondly, some of DNPW’s employees will continue in employment.  If BCC were to take possession of or otherwise recover the property, there would not only be a material adverse effect on those purposes but those purposes would be entirely frustrated.

150                      The pre-condition to the exercise of the power, except for a consideration as to whether BCC’s interests will be adequately protected, have therefore been met by the administrators of the DOCA.  The administrators of the DOCA have made the application: s 444F(7).  DNPW is also an applicant but I think it has no standing to seek relief under s 444F, although it would have standing to seek relief from forfeiture in equity.  The only persons who can apply are the relevant administrators.  The administrators have established that the company has entered into a DOCA which will terminate unless an order is made under s 444F(4) restraining BCC from taking possession or otherwise recovering the premises occupied by DNPW on which it conducts its business of licensed premises (Ducks).  The administrators have established that the purposes of the DOCA would be materially effected if BCC were free to take possession of or otherwise recover the property.

Can BCC’s interests be adequately protected?

151                      The questions remaining for determination are first, whether if an order were made under s 444F(4) BCC’s interests would be adequately protected and secondly, if the Court is satisfied those interests will be adequately protected, whether in the exercise of the Court’s discretion the order should be made.

152                      The section envisages that the owner’s or lessor’s interests could be protected by the DOCA or by the Court’s order which by reason of s 444F(6) may be made subject to conditions or some other way.  The section does not give any guidance as to what other relevant matter might protect the owner’s or lessor’s interests.  It would be a relevant matter in determining whether the owner or lessor’s interests were adequately protected if, for example, the company’s obligations to the owner or lessor or some of them were guaranteed by a director or some other person or indeed a bank.

153                      However, before I address the question whether the DOCA, the order or some other relevant matter will adequately protect BCC’s interests, it is first necessary to identify the interests which must be adequately protected.

154                      Prior to DNPW going into administration and prior to BCC terminating the lease, BCC’s interests were those given to it by the Lease which remain unchanged by reason of DNPW entering into administration.

155                      The interests that the Court must consider in determining whether BCC’s interests are adequately protected are the interests that BCC has as lessor of the property.  Therefore, if the Court can be satisfied that BCC’s interests under the Lease can be adequately protected, an order might be made in the exercise of the Court’s discretion under s 444F(4) subject to such conditions as are necessary to protect those interests.

156                      BCC contends that it wishes to have a tenant of its choosing.  It chose DNPW when it consented to Lorlina assigning the Lease.

157                      It also contends that it should be allowed to exercise its commercial rights to enter into a lease with a shorter term and on perhaps more advantageous terms.  They are interests that BCC did not have when DNPW entered into administration.  Its interests were those given it as lessor by the Lease.  BCC seeks to take advantage of DNPW entering into administration to further commercial interests it did not enjoy immediately before that time.  Whilst BCC cannot be criticised in attempting to turn the events to its commercial advantage, the interests which it claims and which it says cannot be adequately protected are not those that s 444F seeks to address.

158                      Section 444F requires the Court to consider the interests in the case of a lessor that the lessor enjoys by reason of the lease with the company subject to the DOCA.  Those interests primarily are in this case that DNPW comply with all its obligations under the Lease whether the Lease has been terminated or not.  One way of helping to adequately protect those interests would be to make the restraining order under s 444F subject to the condition that DNPW comply with all of the terms and conditions of the Lease as if the Lease had not been terminated.  That by itself would not be enough unless the Court were first satisfied that it was likely that DNPW was in a position to comply with those conditions.

159                      DNPW will, if this DOCA is performed, become solvent.  It will be supported by other companies in the group.  The incoming shareholder (NT Pubco) has considerable experience in the industry in which DNPW has and will operate.  The director of DNPW also has considerable experience.  The business (Ducks) which has been conducted on the premises appears to have always been profitable.  The company has sold the non-profitable business (Fox) which was conducted on other premises.  The company’s obligations for rent and outgoings have been met.  BCC will be in receipt of a bank guarantee in the sum of $78,980 in respect to DNPW’s obligations under the Lease. 

160                      DNPW has offered an undertaking to meet its obligations under the Lease.  BCC will  have the advantage of the bank guarantee.  BCC was prepared to offer DNPW a lease but on different terms.  It therefore cannot have any objection to DNPW as lessee.  BCC will be, when the DOCA is performed, in exactly the same position as it was prior to the Insolvency Event, except it will now have a solvent rather than an insolvent tenant.

Conditions of the order

161                      Provided it were a condition of the order that the order only operate to restrain BCC whilst DNPW observes all its obligations under the Lease, BCC’s interests will be adequately protected.  Those conditions must include the obligation in the Lease to provide guarantees.

162                      If the Court were to make an order under s 444F of the kind mentioned above it will not have the effect of reinstating the Lease.  Section 444F does not contemplate such an order.  However, the order will have the effect of requiring DNPW to comply in all respects with the Lease as if it were on foot.

163                      If the order is conditional upon DNPW observing its obligations under the Lease, including the obligation to provide a bank guarantee, BCC will be protected against any further default by DNPW to the extent that it would not thereafter be prevented from entering into possession of the property.  The parties have not addressed me as to the precise conditions which should be imposed if an order were made.  They should be given that opportunity.  In particular, I have not been addressed as to what other conditions should be imposed while DNPW complies with its obligations under the Lease.

Can an order under s 444F be made that will operate after the DOCA?

164                      BCC contended that if an order were to be made under s 444F(4) it could not operate to extend past the operation of the DOCA.

165                      BCC contended that there will be a moratorium period which operates during the term of the DOCA which will end upon the termination of the DOCA.  It was contended that at that time the substantive rights of the parties would be governed by the terms of the DOCA itself.

166                      BCC contended that if an order of the kind to which I have referred were made it would permit the Court to confer a right of occupation on DNPW and any failure by BCC to comply with the Court’s order might amount to a contempt.  It contended that it was unlikely that Parliament intended that the Court would put itself in a position that it would supervise the right to occupation in the future, yet that would follow if the Lease had been determined and the Court’s order was the source of the right of occupation.

167                      I think it is right that if an order of the kind to which I have referred were made it would amount to a contempt if, contrary to the terms of the order, BCC took any steps to take possession or otherwise recover the property.

168                      That, however, is no reason for denying the construction which I have placed upon s 444F.  Nor does it seem to be any reason to think that Parliament did not intend that the Court would supervise the right to occupation in the future.  The Court always supervises its own orders.  There is nothing unusual in the fact that the Court might be called upon to consider whether a party had acted in contumacious disobedience of its orders.

169                      I do not agree that the operation of Part 5.3A presupposes that there will be a moratorium period which operates during the term of the DOCA but which ends upon the termination of the DOCA.

170                      If that were the case, s 444F would have no utility.  It would mean that the unsecured creditors would be bound by the terms of the DOCA but the secured creditors and the owners and lessors could, as soon as the DOCA has been performed, exercise all of the rights which they have to the disadvantage of the unsecured creditors.  If that were the case the purpose of the DOCA would often, if not invariably, be frustrated.  If a secured creditor could after the DOCA has terminated realise upon its security the unsecured creditors’ resolution to put in place an arrangement whereby the company would continue to trade would not be realised.

171                      The purpose of the legislation is otherwise and contemplates that an order could be made under s 444F, which will operate well past the time within which the terms of the DOCA are to be performed.

172                      The intention of Division 10 of Part 5.3A is to give effect to the DOCA.  That can be done by binding all parties by their agreement under s 444D including in that case secured creditors (s 444D(2)) and owners and lessors (s 444D(3)).  Unsecured creditors are bound by the resolution of the unsecured creditors which resolved to have the company execute the DOCA: s 444D(1).

173                      If the secured creditors or the owners or lessors are not prepared to agree to the terms of the DOCA in accordance with s 444D, the administrators can effectively have them bound by an application under s 444F.  It would be contrary to the purpose of the Division and the Part to bind unsecured creditors for all time, but to only allow the Court to bind the secured creditors or the owners or lessors for the period of the DOCA.  Section 444F does not have the construction propounded by BCC.

Is s 444F the practical equivalent of relief against forfeiture in equity?

174                      The applicants submit that an order under s 444F is the practical equivalent of relief against forfeiture.  For the reasons already given, an order under s 444F does not reinstate the Lease.  The order will prevent the owner or lessor taking possession or otherwise recovering the property during the operation of the order.  However, if an order is made upon condition that the applicant DNPW observe all of the terms and conditions of the Lease, then the order will have the practical effect of an order relieving DNPW from the forfeiture of the Lease.

Application to amend to claim relief from forfeiture in equity

175                      In their first written submissions, DNPW argued that the Court need only consider the question of relief from forfeiture if the Court rejected DNPW’s submission that s 444F was the equivalent of relief from forfeiture or were of the opinion that relief should either not be granted under s 444F(4) or should only be granted on terms that an order was also made giving relief from forfeiture.

176                      Indeed, the Points of Claim did not include a claim for relief from forfeiture in equity and at trial the claim for statutory relief was abandoned.  At trial BCC did not consent to the applicants pursuing a claim for equitable relief.  Indeed, it opposed the applicants departing from their pleaded case.

177                      Although the applicants had successfully opposed an application by BCC to amend its Points of Defence, the applicants sought to amend the Points of Claim.  I ordered the applicants to provide the Court and BCC with a copy of any Proposed Amended Points of Claim and written submissions in support of any application to amend.

178                      In the Proposed Amended Points of Claim the applicants pleaded that BCC had given notice of intention to terminate the Lease on 12 June 2008 (the first notice of termination) and again on 5 February 2009 (the second notice of termination).  The second notice of termination was not pleaded in the Points of Claim.

179                      In the Proposed Amended Points of Claim the applicants relied upon the effect of clause 13.2(b) which is set out at [21] of these reasons.

180                      The applicants’ Proposed Amended Points of Claim contain a claim for relief sought in “the inherent power of the Court”.  Paragraph 24 reads:

24.       In the alternative the second applicant seeks relief from forfeiture pursuant to the inherent power of the Court.

24.1.     Both the Notice of Termination and the Second Notice of Termination were a valid notice under clause 13.2(b) of the Lease, with effect from the dates upon which they were respectively served on the second applicant.

24.2.     By operation of clause 13.2(b) of the Lease, each Notice ‘absolutely determined’ the Lease.

24.3.     Each Notice constituted a sufficient act of forfeiture or threat of forfeiture (for the purposes of the doctrines of equity) notwithstanding that the respondent has not re-entered the demised premises or unequivocally demanded that the second applicant deliver up possession of the demised premises to the respondent.

24.4.     The Court in its discretion should relieve against the consequences of each Notice.

24.5.     The applicants rely on the matters set out at paragraph 20 herein.

181                      The application to amend the Points of Claim was opposed by BCC.

182                      The applicants contended that BCC was always aware that the applicants were seeking relief against forfeiture.  They said that BCC’s Points of Defence contained a pleading in answer to the claim for relief against forfeiture in equity.  The pleading in paragraph 27.5, which is set out in [7] of these reasons, relates only to the claim for statutory relief against forfeiture under s 138 of the NT Property Act.  Notwithstanding the first sentence in paragraph 27.5, the use of the words “In any event” in the second sentence shows that the plea in paragraph 27.5 addresses the claimed statutory relief against forfeiture.  I reject this submission.

183                      Next they contended that the Court was informed at a directions hearing on 11 December 2008 that the applicants sought relief against forfeiture in equity.

184                      There was a reference at that directions hearing to the applicants seeking relief from forfeiture in equity but it would not be right to say that counsel at that time indicated that relief was being sought , only that the applicants would consider their position in relation to a claim for relief against forfeiture in equity because of the difficulties in establishing a claim for statutory relief.  The exchange with counsel on that occasion could not have put BCC on notice that the applicants were making a claim for equitable relief.  Indeed, in the exchange counsel implicitly acknowledge the absence of a claim for equitable relief.

185                      The applicants contended that in their first written submissions in abandoning the claim for statutory relief they made it clear that they claimed relief “solely on the inherent or equitable power of the Court”.  That is so.  However, the applicants wrote that their primary submission was that relief under s 444F(4) is the practical equivalent of relief against forfeiture and that if that submission were accepted the Court need not rule upon the alternative application for relief against forfeiture.  As well, of course, the written submissions did not address the absence of any claim for relief against forfeiture in equity in the Points of Claim.

186                      Next they contended that the respondent’s submissions served on the morning of the hearing addressed both directly and comprehensively the equitable principles of relief against forfeiture.  The respondents did address both relief under s 138 of the NT Property Act and relief against forfeiture in equity but, in doing so, said that no grounds for equitable intervention had been asserted or could be established.

187                      The applicants further contended that the issue was addressed by counsel for the respondents in his submissions at the first hearing.  That is so but the respondent’s counsel made it clear that BCC relied upon the failure of the applicants to plead a case for equitable relief against forfeiture as a ground for dismissing any application for relief of that kind.  In written submissions filed after the first hearing, BCC made it quite clear that it opposed any relief of that kind because the applicants had not pleaded any case for relief against forfeiture in equity.  BCC also contended in those written submissions that no grounds had been raised by the applicants upon which equity might intervene to relieve against forfeiture.

188                      BCC announced that the submissions it made were, as it said, premised on the Court permitting the applicants to depart from their pleaded case.

189                      The applicants contended that O 13 r 2(1) of the Federal Court Rules empowers the Court to allow a party to amend a pleading “at any stage of any proceeding” and that leave might be given even after the close of evidence provided there is no irremedial prejudice to the other side.  The applicants contended that the proposed amendment would not inflict any prejudice on BCC because the claim for relief arises out of substantially the same facts as those relevant to relief under s 444F.

190                      In the alternative, the applicants contended that the Court has an obligation to ensure that all matters in controversy between the parties are completely and finally determined and all multiplicity of proceedings concerning those matters is avoided: s 22 of the Federal Court of Australia Act 1976 (Cth).

191                      It was contended that O 13 r 2(2) of the Federal Court Rules requires the Court to allow amendments which are to be made for the purpose of determining the real questions raised or otherwise, depending on the proceeding or of avoiding multiplicity of proceedings.

192                      Lastly, it was put that courts ought to decide the rights of parties and not punish them for mistakes in the conduct of their case, and an amendment should be refused only where bad faith is demonstrated or where the consequential injury or prejudice to the other parties is incapable of remedy.

193                      BCC opposed the application on four separate grounds.  First, it contended that the applicants had failed to give any explanation for their failure to plead the case in the Points of Claim notwithstanding its repeated warnings.  Secondly, the claim which is sought to be advanced merely concerns an alternative claim.  Thirdly, the claim which is sought to be pleaded in its terms is untenable because it does not contain the material facts sufficient to warrant a finding that would give rise to relief in forfeiture in equity.  Fourthly, BCC will be prejudiced by the amendment because the evidence has been closed and the parties have made tactical decisions based upon the material facts which were pleaded.  It was contended that had the case been pleaded in the terms of the Proposed Amended Points of Claim the course of the case may well have been different.

194                      As early as 10 November 2008 when Registrar Christie made the orders to which reference has been made, BCC said in support of its submission that pleadings should be ordered:

It would be regrettable ... if, despite a wealth of affidavit material, the true grounds upon which it is asserted that there should be relief from forfeiture only emerge at a final hearing of this matter.

195                      BCC also in its written submissions, as I have said, argued that no relief could be made because no ground had been asserted or established.  Moreover, again as I have said, BCC’s counsel at the first hearing argued that a plea for equitable relief against forfeiture was not contained in the Points of Claim.  BCC relied upon Gaudron J’s remarks in The Commonwealth v Verwayen (1990) 170 CLR 394 at 482:

When a party to litigation deliberately chooses not to take a point or fails to take a point when it comes to notice, the Courts may adopt a more stringent attitude, treating the point as being irrevocably abandoned.  Usually the party that has failed to take this point is said to have waived it.

196                      The applicants have given no explanation for their failure to give any explanation for the absence of this plea in the Points of Claim delivered on 24 November 2008 or any explanation as to why this application was not made when BCC made it clear that it opposed the applicants relying upon this ground in the absence of any pleading.  The applicants are seeking an indulgence from the Court.  It behoves the applicants to inform the Court why the applicants did not include a claim for equitable relief in the Points of Claim.  A deliberate omission would be a factor going to the exercise of the Court’s discretion.  It might be inferred that the applicants did not plead the relief now sought to be added because the applicants were of the opinion, as they have submitted, that if an order were made under s 444F that order would have the practical effect of an order for relief from forfeiture.

197                      It is unsatisfactory that no explanation has been given but, if I were of the opinion that it was in the interests of justice that I allow the amendment for the purpose of ruling upon the applicants’ claim for relief against forfeiture in equity, the absence of an explanation would not mean that the amendment should not be allowed.

198                      I do not think, with respect, there is any merit in the second ground raised by BCC in opposition to the application to amend.  The fact that this is an alternative claim to that relied on under s 444F would not be by itself a ground for refusing the application.

199                      As I have said both at the trial and during the argument in relation to this application to amend, senior counsel for the applicants, Mr McNamara QC, submitted that this application was only made in case I were of the opinion that the applicants’ case under s 444F should fail.

200                      I put to him that it was my tentative view that the applicants should succeed in relation to the claim under s 444F for the reasons which I have given.  He said if that were the case then I should allow the amendment but not rule upon whether or not an order for relief from forfeiture in equity ought to be made.

201                      The applicants seemed thereby to be maintaining the primary submission which they made, which was that an order under s 444F would obviate the need to consider whether relief against forfeiture in equity should be ordered.

202                      Mr McNamara contended that I should allow the amendment in case on appeal the Full Court disagreed with my opinion, in which case the matter could be remitted to me for a consideration of the alternative claim which is now sought to be advanced.

203                      I do not think, with respect, that the course proposed could be adopted.  If the amendment were allowed, it would seem to me that I should consider whether an order should be made relieving against forfeiture in case the Full Court disagreed with my opinion in relation to the relief available under s 444F of the Corporations Act.  Although the amendment could not be disallowed simply because it is, as BCC suggests, merely an alternative claim, the applicants’ proposal suggests an absence of prejudice to the applicants in the event that the amendment were refused.

204                      The third and fourth grounds have, with respect, more substance.  Apart from paragraphs 24.1, 24.2 and 24.3 which give sufficient material facts to suggest that forfeiture in equity has occurred, the plea which is sought to be made does not contain any material facts which would support the making of an order for relief against forfeiture.  The plea merely claims the right to relief because of the forfeiture without identifying the facts and circumstances upon which the applicants rely for the order, unless it could be said that the reference to paragraph 20 in paragraph 24.5 was, of itself, sufficient material facts to warrant the making of an order.

205                      Paragraph 20 provides:

The termination of the lease and recover of the property by the respondent would have a material adverse effect on achieving the purposes of the DOCA in that the obligation on NT Pubco to perform its obligations would not arise and accordingly the DOCA would terminate and the company would go into liquidation.

206                      The only ground relied upon for the order would seem to be that contained in paragraph 20, which does not seem to me to be relevant in determining whether the applicants would be entitled to relief against forfeiture in equity.  Moreover, the plea in paragraph 24.4 is unsupported by any material facts.

207                      Paragraph 24 does not give BCC fair notice of the applicants’ claim in that it does not identify the facts and circumstances upon which the applicants rely for the purpose of the relief sought in equity.  Nor does it identify the facts and circumstances which would bear upon the exercise of the Court’s discretion to make such an order.

208                      I therefore accept the respondent’s third argument that the proposed plea in paragraph 24 does not contain the material facts upon which the relief is sought.

209                      An amendment will not be allowed where the plea would be futile.  The plea would be futile if it were allowed in circumstances where it would be liable to be struck out because it failed to provide sufficient particulars.  If this plea had been contained in the Points of Claim, the applicants would have had to give particulars of the plea if those particulars had been sought by BCC.  If the applicants could or would not give particulars, the plea would be struck out.

210                      In my opinion, it would not be appropriate to allow an amendment so late in the day which does not in any event comply with the pleading rules.

211                      BCC contended that it would suffer prejudice because it might have conducted its case differently at trial if the plea had been raised prior to trial.

212                      Counsel for BCC contended that he may have conducted BCC’s case differently if this plea had been contained in the Points of Claim before trial.  The day before the trial BCC served the second notice of termination in which it claimed to be entitled to possession of the property.  The second notice of termination is now relied upon by the applicants for its claim that there has been a forfeiture for which relief should be granted.  Counsel said it was a tactical decision taken in the context of an argument under s 444F in the light of the decision in Re Java 452 Pty Ltd (Administrator Appointed) (No 2) (1992) 32 ACSR 507 where forfeiture of the lease was held to be significant in a consideration of an application under the Corporations Act.

213                      It was submitted that if there had been a further plea that the applicants be granted relief from forfeiture in equity, BCC might not have given the second notice of termination because it might have argued that the first notice of termination did not amount to a forfeiture.  It might have argued, absent the second notice of termination, that the application for equitable relief was premature.  That argument is no longer available.

214                      Next BCC argued that it was precluded from cross-examining Mr Strazdins regarding additional breaches of the Lease and the wilful nature of those breaches.  I have already referred to the cross-examination of Mr Strazdins and why I thought that aspect of the cross-examination was irrelevant in a consideration of s 444F.  However, BCC contends, and I think rightly, that if it established there had been further wilful breaches of the Lease which were continuing, that might be a matter which would be taken into account in a consideration of the exercise of the Court’s discretion in relation to a claim in equity.

215                      It was further argued that, if the plea had been included in the Points of Claim, the respondent would have been entitled to discovery of the management agreement, which was entered into by the administrators under which the business of the licensed premises had been conducted since the DOCA was entered into.  The respondent might have been able to argue that the management agreement evidenced a sub-letting, licence or a parting with possession in breach of clauses 11.1 and 11.2 of the Lease.  If that management agreement evidences further ongoing breaches of the Lease, that might be a relevant consideration in an application for equitable relief.  BCC has lost the opportunity to explore those issues.

216                      Mr Livesey contended that if he asserted that BCC may have conducted its case differently, the Court ought to accept that assertion and accept that BCC has been prejudiced by the late plea.  I do not think that the Court is bound to accept counsel’s assertion that the party which counsel represents is prejudiced.  In the end, it is for the Court to determine whether the party has been prejudiced and the Court is not bound to simply accept an assertion made by counsel that prejudice exists.

217                      That is not to say that the Court would not have regard to an assertion of prejudice made by senior counsel, as was the case on this application.  But in the end result, I think it is for the Court to determine whether there has been prejudice of the kind asserted.

218                      I have concluded that if this application were allowed BCC would suffer prejudice because of the way in which it has conducted its case.

219                      I accept that the respondent made a tactical decision in giving the notice which it did of 5 February 2009 in which it claimed possession of the leased premises.  By doing so, it probably put the applicants in a position where they were able to argue that forfeiture had occurred.  It certainly put the applicants in a more favourable position in that regard.

220                      I also accept the contention that BCC has not been able to advance a case that there have been further wilful breaches of the Lease, which might be a reason why in the exercise of the Court’s discretion the Court would refuse to make an order for relief from forfeiture in equity.  BCC was precluded from cross-examining Mr Strazdins in respect of those further breaches because they were thought not to be relevant in relation to a claim for relief under s 444F.

221                      The prejudice which BCC has suffered in relation to the giving of the second notice of termination cannot be remedied.  The notice has been given and that is that.  The second item of prejudice, namely BCC’s failure to obtain discovery of the management agreement and BCC being precluded from cross-examining Mr Strazdins in relation to further wilful breaches, could be remedied by ordering the discovery of that document and by re-opening the trial to allow the relevant cross-examination to take place.  The prejudice could therefore be partly remedied.

222                      Whilst ordering discovery and re-opening the trial would obviate the prejudice suffered by BCC in relation to that second claim, it would do so at some cost to BCC.  I think it would be unfair to BCC to submit it to a further trial on this alternative claim.

223                      It would not be unfair to the applicants to disallow the amendment because that would not preclude the applicants from litigating that issue in conjunction with a claim for statutory relief under s 138 of the NT Property Act.  Because an order under s 444F of the Corporations Act has the practical effect that the applicants assert, the applicants would only need to agitate a claim for relief against forfeiture in equity in the event that the applicants committed some further breach of the Lease.  At that stage the orders made under s 444F would be discharged by the further breach.  The applicants could then seek relief in respect of the breaches, the subject of this proceeding and any further breach.

224                      In my opinion, having regard to all of the circumstances of the case, it would be appropriate to dismiss the applicants’ application to amend the Points of Claim to include paragraph 24 as proposed and the reference in the proposed Points of Claim to the second notice of termination.

Conclusion

225                      In those circumstances the applicants will have to content themselves with an order under s 444F, which will mean that BCC will not be entitled to take possession of the licensed premises and the DOCA will be performed.  I will hear the parties as to the conditions that should be imposed under s 444F(6).

226                      I will also hear the parties as to costs.

Associate:

Dated:         9 July 2009