FEDERAL COURT OF AUSTRALIA

Worrell, in the matter of regulation 5.6.06 of the Corporations Regulations 2001 (No. 2) [2010] FCA 1257

WORRELL, IN THE MATTER OF REGULATION 5.6.06 OF THE CORPORATIONS REGULATIONS 2001

THE COURT ORDERS THAT:

1.                  The proceeding be listed for the making of final orders on 3 December 2010 consequent upon the parties’ consideration of the draft form of orders and undertakings set out at Annexure One to the reasons for judgment published today. 

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 Federal Law Search on the Court’s website.

WORRELL, IN THE MATTER OF REGULATION 5.6.06 OF THE CORPORATIONS REGULATIONS 2001

REASONS FOR JUDGMENT

1                                             The aspect of the proceeding currently before the Court concerns the orders to be made arising out of the publication on 30 August 2010 of the reasons for judgment in the principal application.  On that day, orders were made adjourning the principal application to a date to be fixed for the making of formal orders.  The parties were directed to file and serve submissions as to the form of final orders within 28 days.  Final submissions were filed on 6 October 2010. 

2                                             There are differences between the parties as to the scope of the final orders.  Accordingly, these reasons address the principles informing the approach to be adopted in framing the orders and the content of the orders. 

3                                             These reasons should be read with the reasons for judgment in Worrell, in the matter of regulation 5.6.06 of the Corporations Regulations 2001 (2010) 117 ALD 110; (2010) 79 ACSR 437;[2010] FCA 934. 

4                                             In the application as originally filed, the applicants sought a declaration that upon the proper construction of Regulation 5.6.06(1) of the Corporations Regulations 2001 (Cth) (“the Regulations”) the applicants are not required to open a separate bank account for each company to which they are, have been or will be appointed as liquidators, administrators or receivers.  In the alternative to such a declaration, the applicants sought an order pursuant to Regulation 5.6.09 of the Regulations authorising the liquidator (of the relevant company) to make payments into and out of a “special bank account” on such terms as the Court might think fit. 

5                                             At the conclusion of the proceedings, the applicants sought relief framed in terms of a declaration concerning the construction of Regulation 5.6.06 to the effect that the conduct of the applicants in operating a single compound account for and in respect of those matters “to which the regulation applies does not contravene the Regulation”. 

6                                             The applicants also sought an order under s 1322(4) of the Corporations Act 2001 (Cth) (“the Act”) declaring that their conduct is not invalid by reason of any contravention of Regulation 5.6.06.  More particularly, the applicants sought to be relieved from any liability under the Act arising out of any failure to comply with Regulation 5.6.06. 

7                                             In the result, the Court found that the conduct of the applicants, as liquidators, in operating a single compound account failed to comply with Regulation 5.6.06.  At [106] of the principal reasons, the Court found that special circumstances had not been made out warranting the exercise of discretion under Regulation 5.6.06.  At [107] and [108] of the principal reasons, the Court said this:

107       Regulation 5.6.09, however, contemplates that the Court may authorise the liquidator of a particular company to make payments into and out of a special bank account.  Having regard to all of the evidence and the practical position that the applicants in good faith have embarked upon establishing a compound account for the conduct of these liquidations which failed at the outset to take account of the specific requirements of the Corporations Act, it seems to me that steps ought to be taken to provide proper authority for the conduct of the compound account in each office, in each liquidation, to enable the administration of each liquidation to be progressed to a conclusion, within the law rather than in contravention of it.

108       Accordingly, an order ought to be made authorising each of the applicants in their capacity as liquidators of a schedule of identified companies (to be attached to the order) to make payments into and out of a special bank account established for the purpose of completing the winding‑up of each entity presently under insolvent administration by any one of the applicants as liquidators.  That order ought to be made upon the undertakings proposed.  The “special bank account” might properly be styled according to the present description adopted in each office for the compound account.  The authority to make the payments is to be limited to the completion of the winding‑up of each company in liquidation.  The declarations sought by the applicants will not be made. 

                                                                                                [original emphasis]

8                                             Those paragraphs make these things clear. 

9                                             First, the Court accepted, having regard to all of the evidence, that the applicants had acted in good faith in adopting a practical position of establishing a compound account for the conduct of liquidations and those arrangements failed at the outset to take account of the specific requirements of the Corporations Act (and Regulations).  It followed that steps ought to be taken to provide proper authority for the conduct of the separate compound account in each office, in respect of each liquidation, to enable the administration of each liquidation to be progressed to a conclusion in compliance with the law rather than in contravention of it. 

10                                          Secondly, in order to give effect to that principle, an order ought to be made authorising each of the applicants in their capacity as liquidators to make payments into and out of a special bank account, for the purposes of Regulation 5.6.09, established for the purpose of completing the winding up of each corporation then under insolvent administration by any one of the applicants as liquidators of the relevant corporation. 

11                                          Thirdly, the order providing such authority ought to identify by a schedule each corporation then under administration by one or more of the applicants in their capacity as liquidator. 

12                                          Fourthly, the order conferring such authority ought to be made on the basis of the undertakings the applicants said they would give to the Court.

13                                          Fifthly, the “special bank account” to be used for the purposes contemplated by Regulation 5.6.09(1) could, consistent with the order, be styled according to the present description adopted by the applicants in each office for the single compound account then being utilised. 

14                                          Sixthly, the authority to operate a separate compound account as a special bank account was to be limited to the completion of the winding up of each company in liquidation.  The scope of the orders and the temporal limitation contained within them is emphasised by the use of the italics in [108] of the principal reasons. 

15                                          Seventhly, the declarations sought by the applicants would not be made. 

16                                          Regulations 5.6.06 and 5.6.09 fall within Part 5.6 of the Regulations dealing with “Winding Up Generally”.  Those Regulations address at 5.6.06 the things, in relation to a general account, that the liquidator “must” do and, at 5.6.09, the directions a Court may give concerning the subject matter of that Regulation.  These Regulations are not concerned with “arrangements and reconstructions” (Part 5.1) or “receivers and other controllers of corporations” (Part 5.2) or “administration of a company’s affairs with a view to executing a deed of company arrangement” (Part 5.3A).  Any authorisation conferred upon the liquidator in respect of payments “for the time and on the terms [the Court] thinks fit” in relation to a special bank account under Regulation 5.6.09 is to be confined to an authority concerning the conduct of the liquidator of the relevant corporation. 

17                                          It follows that the orders to be made as contemplated by [107] and [108] are confined in that way. 

18                                          It also follows that the orders contemplated by the principal reasons were concerned with conferring an authorisation upon one or more of the applicants in their capacity as liquidator to facilitate the completion of the winding up of each insolvent company to which any one (or more) of them were appointed at the date of the determination of the construction question concerning Regulation 5.6.06 in the principal proceeding.  In the principal proceeding, the Court construed Regulation 5.6.06(1) as requiring a liquidator to open a separate bank account to be known as the liquidator’s general account for each liquidation.  The Court found that special circumstances did not arise warranting the exercise of the discretion to “otherwise direct” conferred by Regulation 5.6.06(1) and that the limitation upon the authorisation to be conferred pursuant to Regulation 5.6.09 was directed to the completion of liquidations under administration, that is, then under administration. 

19                                          In that sense, it is disappointing that the applicants have apparently since 30 August 2010 adopted the use of the separate compound account in acting as liquidators in the case of appointments made after 30 August 2010 notwithstanding the determination of the construction question by that date.

20                                          The question of relief from liability under the Act in respect of a failure to comply with Regulation 5.6.06 is to be confined to conduct in acting as a liquidator when appointed on or prior to 30 August 2010.  For the reasons indicated earlier and as discussed in the principal reasons, the authorisation to be conferred by the orders has no operation in relation to any conduct on the part of the applicants other than in their capacity as liquidators. 

21                                          The principal reasons contemplate that the existing separate compound account styled in the way indicated in the evidence will be used by the applicants as a separate compound account in order to complete the existing liquidations.  No question of any authorisation under Regulations 5.6.06 or 5.6.09 arises in relation to any other matter.  Accordingly, the schedule to the orders should be confined to a list of those companies in respect of which one or more of the applicants are acting as liquidators having been appointed on or prior to 30 August 2010. 

22                                          A question has arisen as to the definition of the term “Compound Account” for the purposes of the orders.  It seems to me that the appropriate way to define the account is by reference to the seven accounts operated by the applicants in the various locations having regard to the location, the bank and the complete description of the account number (BSB and account number).  A further question has arisen in relation to a proposed undertaking on the part of the applicants to maintain the compound account in such a way as to ensure that all of the features of that account (thus conferring the various advantages) described by Mr Ivor Worrell in his affidavit sworn 11 August 2009 (and filed 14 August 2009) and his affidavit sworn 6 November 2009 (and filed 10 November 2009), are preserved.  The intervener, ASIC, expresses criticism of the content of the undertaking on that issue on the footing that the current form of the proposed undertaking recites an undertaking to “maintain the Compound Account Module of the computerised system called ‘Workbench’ insofar as it applies to the Compound Account[s] in relation to the Current Companies in accordance with the systems set out in the affidavits …”. 

23                                          ASIC contends that limiting the commitment to one of maintaining the “Compound Account Module” of the Workbench system rather than an undertaking as originally formulated to maintain “Workbench” and thus maintain all of the relevant modules which integrate one with the other to ensure that all of the advantages of the accounting system are retained, reduces the level of protection said by Mr Worrell to be part of the attractive force of the Workbench system.  Those integrated advantages arise because the compound accounts are said to be fully integrated within Workbench more broadly thus providing reconciliations of the compound accounts system. 

24                                          It seems appropriate to ensure that the advantages of the integrated system are maintained pending the completion of the liquidations to be enabled through the use of a compound account. 

25                                          By para 1 of the application, the applicants sought a declaration in these terms:

A declaration that upon the proper interpretation of regulation 5.6.06(1) of the Corporations Regulations 2001 the Applicants are not required to open a separate bank account for each company to which they are, have been or will be appointed as liquidators, administrators or receivers. 

26                                          That declaration will not be made. 

27                                          For the purposes of clarification of the position, a declaration will be made that upon a proper construction of Regulation 5.6.06 of the Corporations Regulations 2001 (Cth), Regulation 5.6.06 does not, unless otherwise directed by the Court or the committee of inspection, provide for the payment into an account of all money received by a liquidator of a corporation (not later than seven days after it has been received) operated by the liquidator of that corporation as a single or compound liquidator’s general account into which monies are paid by any one or more of the applicants as the liquidator of more than one company in liquidation.  Further, Regulation 5.6.06 does not provide for the payment into a single or compound account of monies payable to any one or more of the applicants in their capacity as administrators, deed administrators or managing controllers of a corporation. 

28                                          Subject to further information being provided by the solicitors for the applicants so as to enable the orders to be drafted in final form, orders in the following terms will be made upon the undertakings recited in the orders.  The orders (together with the undertakings) are described as draft orders pending the submission of further information necessary to complete the orders.  That material must necessarily be provided by the applicants.  The information ought to be provided to my Associate within seven days with a copy of the material being provided to the Intervener.  Once that information is provided and subject to the question of whether there is any further issue in relation to it, the orders will be put in final form and issued.  The orders operate upon the footing that they record the undertakings given to the Court by the applicants.  The advisers to the applicants are asked to confirm that the undertakings will be given in the form reflected in the draft annexed to these reasons.  The matter will then be listed for pronouncement of the final form of the orders and the giving of the undertakings. 

29                                          A further matter concerns the question of possible changes to the Workbench system.  The applicants have foreshadowed in affidavits that they may wish to make further changes to the Workbench accounting system which, in their view, will not prejudice the inherent protective features of that system which give accuracy and security to the conduct of a single compound account (as reflected in the evidence of Mr Worrell) in completing each liquidation to which one or more of the applicants were appointed on or before 30 August 2010.  The draft orders provide for liberty to apply on the footing that the applicants may wish to make an application supported by an appropriate affidavit should changes be sought to the Workbench system prior to the completion of the liquidations reflected in the list of companies at Schedule 1.  The Court will entertain such an application.  Any such application should also be served upon the Intervener. 

Associate:

Dated:         18 November 2010

ANNEXURE ONE

Draft Proposed Orders

In this Order:

“Australian Bank” has the meaning defined by section 9 of the Corporations Act 2001;

“Continuing Applicants” means Ivor Worrell, Rajendra Kumar Khatri, Michael John Griffin, Michael Richard Peldan, Morgan Gerard Lane, Paul Eric Nogueira, Christopher Cook, Susan Carter, Jason Bettles, Christopher Darin, Nicholas Malanos, Paul Burness, Con Kokkinos, Matthew Jess and Wayne Lamb;

“Workbench” means the computerised accounting system utilised by the Applicants as described in the affidavits of Ivor Worrell sworn on 11 August 2009 and 6 November 2009 and filed in this proceeding;

“Worrells’ Compound Accounts” means the following bank accounts operated by the firm known as Worrells Solvency & Forensic Accountants:

(a)           in the office in Brisbane:

(i)         the account with the National Australia Bank styled “Worrells Corporate Insolvency Account Bris” (BSB 084-004, account number 79 173 0295) held in the name of M.J. Griffin & R.K. Khatri & M.G. Lane and I. Worrell;

(ii)        the 30 day term deposit account with the National Australia Bank styled “[to be inserted upon receipt of details from the Applicants]” (BSB 084-004, account number 82 234 8508) held in the name of “[to be inserted upon receipt of details from the Applicants]”;

(iii)       the 12 month term deposit account with the National Australia Bank styled “[to be inserted upon receipt of details from the Applicants]” (BSB 084-004, account number 17 819 4367) held in the name of “[to be inserted upon receipt of details from the Applicants]”;

(b)           in the office on the Sunshine Coast, the account with the National Australia Bank styled “Worrells Corporate Insolvency Account Nth Coast” (BSB 084-004, account number 85 530 9951) held in the name of The Trustee for Worrells Solvency and Forensic Accountants (North Coast) Unit Trust; and

(c)           in the office on the Gold Coast, the account with the St George Bank styled “Worrells Corporate Administration Account” (BSB 334-056, account number 55 293 9307) held in the name of The Trustee for BCW Trust; and

(d)           in the office in Sydney, the account with the National Australia Bank styled “Worrells Corporate Insolvency Account Syd” (BSB 084-004, account number 79 639 3574) held in the name of The Trustee for Sydney Insolvency Trust; and

(e)      in the office in Melbourne, the account with the National Australia Bank styled “Worrells Corporate Insolvency Account Mel” (BSB 084-044, account number 86 735 8136) held in the name of The Trustee for Worrells Solvency & Forensic Accountants (Vic) Pty Ltd.

UPON EACH OF THE CONTINUING APPLICANTS UNDERTAKING TO THE COURT THAT:

(a)                Until the conclusion of the winding-up of each of the companies listed in Schedule 1 to this Order:

(i)                  Workbench will be maintained in accordance with the systems set out in the affidavits of Ivor Worrell sworn on 11 August 2009 and 6 November 2009 and filed in this proceeding;

(ii)                In the event of change in constitution of any partnership between the Continuing Applicants, or the resignation or other removal of any of the Continuing Applicants from the register of liquidators, to apply upon notice to ASIC to this Honourable Court for a variation of this Order;

(iii)               The Continuing Applicants will, for each financial year ending 30 June:

(A)       procure an external auditor or auditors to audit the Worrells’ Compound Accounts and to produce, within 60 days after the end of the financial year, a written report in relation to the results of such audit;

(B)       advise ASIC in writing of the name of the external auditor or auditors nominated to undertake the audits referred to in subparagraph (A) above, no less than 10 business days prior to the commencement of the audit in respect of which the auditor is nominated;

(C)       permit ASIC a period of 3 business days from the date of ASIC’s receipt of the notification referred to in (B) above, to object to the appointment of the nominated external auditor.  If ASIC does not object to the appointment within the stated period, the nominated external auditor shall be deemed to be confirmed as the auditor to conduct the audit for which that auditor was nominated.  If ASIC objects to the appointment within the stated period, the Continuing Applicants will advise ASIC in writing within 3 business days of the name of an alternative external auditor nominated to undertake the audits, to which nomination the process described in this paragraph (C) shall apply; 

(D)       lodge each audit report prepared by each external auditor in relation to each audit referred to in subparagraph (A) above with ASIC within 5 business days of the release of the report to any of the Continuing Applicants;

(iv)              The Continuing Applicants will, in relation to each company for which they are authorised (as set out below) to continue to operate the Worrells’ Compound Accounts from 28 days after the date of this Order:

(A)       cease to utilise such account if directed to do so by a resolution of creditors, an order of any Court, or a Committee of Inspection;

(B)       within 14 days of the date of this Order, give notice in writing to each creditor of the company of the use of the account in relation to the company;

(C)       propose a resolution at the next meeting of creditors of the company that the creditors ratify the use of the account in relation to the company; 

(D)       not exercise a casting vote in relation to such resolution;

(E)       notify ASIC in writing of the result of the resolution;

(F)       in the event of a contrary direction in accordance with subparagraph (A) above, upon the need to commence any banking in relation to the company:

(1)        immediately take all necessary steps to open a separate bank account with an Australian Bank; and

(2)        within 28 days of the contrary direction, transfer all monies belonging to the company held in any of the Worrells’ Compound Accounts to the separate bank account referred to in subparagraph (1).

(v)                The Continuing Applicants will, immediately upon any Continuing Applicant becoming aware of the making of an order by any court restricting the use by any of the Continuing Applicants of any or all of the funds held in any of the Worrells’ Compound Accounts:

(A)       notify ASIC of such order and provide a copy of such order to ASIC if such a copy is in the possession or control of any of the Applicants;

(B)       take all necessary steps to open a new bank account with an Australian Bank and, immediately upon the opening of such account, pay into it a sum of money equal to the amount of the funds which are the subject of the court’s order;

(vi)       The Continuing Applicants will, within 1 business day of any of the Continuing Applicants becoming aware of any circumstance relating to a defalcation or potential defalcation in relation to the operation of any of the Worrells’ Compound Accounts, notify ASIC in writing of such circumstance;

(b)               The Continuing Applicants will give written notice to ASIC of the occurrence of the following events, within 2 business days of their occurrence:

(i)                  the conclusion by the Continuing Applicants of the winding up of each of the companies listed in Schedule 1 to this order; and

(ii)                the cessation of the use by any of the Continuing Applicants of each of the Worrells’ Compound Accounts.

THE COURT DECLARES THAT:

1.         Upon a proper construction of Regulation 5.6.06 of the Corporations Regulations 2001 (Cth), Regulation 5.6.06 does not, unless otherwise directed by the Court or the committee of inspection, provide for the payment into an account of all money received by a liquidator of a corporation (not later than seven days after it has been received) operated by the liquidator of that corporation as a single or compound liquidator’s general account into which monies are paid by any one or more of the Continuing Applicants as the liquidator of more than one company in liquidation. 

2.         Regulation 5.6.06 does not provide for the payment into a single or compound account of monies payable to any one or more of the Continuing Applicants in their capacity as administrators, deed administrators or managing controllers of a corporation. 

THE COURT ORDERS THAT:

1.         From 28 days after the date of this Order, the Worrells’ Compound Accounts shall be used by the Continuing Applicants solely in their capacity as liquidator of the companies listed in Schedule 1 to this Order and for the purpose of completing the liquidation of those companies.

2.         Pursuant to regulation 5.6.09(1) of the Corporations Regulations 2001 (“Regulations”), the Continuing Applicants are authorised to make payments into and out of the Worrells’ Compound Accounts, in their capacity as liquidator of the companies listed in Schedule 1 to this Order, for the sole purpose of completing the winding up of such companies.

3.         Pursuant to section 1322(4)(c) of the Corporations Act 2001, the Applicants are relieved from any liability under the Corporations Act 2001 arising up until the date of this Order in respect of their failure to comply with regulation 5.6.06 of the Regulations for any company to which they had been appointed as liquidator on or prior to 30 August 2010.

4.         The Application is otherwise dismissed.

5.         There be no order as to costs.

6.         The parties have liberty to apply on three days’ notice. 

SCHEDULE 1

Companies to which the ContinuingApplicants have been appointed as Liquidator or Provisional Liquidator as at the date of delivery of reasons for judgment on 30 August 2010

[Applicants to provide this Schedule]