FEDERAL COURT OF AUSTRALIA

Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Limited

(In Liquidation) [2012] FCA 603

THE COURT ORDERS THAT:

1.    The appellants have leave to proceed nunc pro tunc against the respondents pursuant to s 471B of the Corporations Act 2001 (Cth) provided that the orders made in respect of the respondents not be enforced except with the leave of the judge.

2.    That part of the interlocutory application concerning transfer of the appeal to the Sydney Registry is adjourned.

3.    The first respondent shall notify the appellants within 21 days as to whether the first respondent proposes to appear on the hearing of the appeal, and if so, whether the appeal is to be opposed or whether the first respondent will abide the outcome of the appeal.

4.    The first respondent pay the appellants’ costs of this application.

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

EX TEMPORE REASONS FOR JUDGMENT

1    This is an interlocutory application framed by an amended interlocutory application filed on 27 April 2012 by which Quikfund (Australia) Pty Ltd, Australian Equipment Rentals Pty Ltd and CT 129 Pty Limited seek leave to proceed for the purposes of s 471B of the Corporations Act 2001 (Cth) against the first respondent, a company in liquidation which I will simply call for present purposes Prosperity, and also leave to proceed against the second respondent, a company I will describe as WorldNet, which is also in liquidation. Leave is sought to enable the appellants to progress “a proceeding” in the form of an appeal from a decision of the Court in Prosperity Group International Pty Ltd v Queensland Communication Company Pty Ltd (No. 3) [2011] FCA 1122.

2    The liquidator for WorldNet is a member of the firm Bentleys and that firm has written a letter to the solicitors for the appellants advising that WorldNet will abide by any decision of the Court.

3    The liquidator for Prosperity opposes the application for leave to proceed on the footing that the criteria informing the exercise of a discretion under s 471B are not satisfied and thus leave ought to be refused. Paragraph 3 of the amended interlocutory application seeks an order that the appeal be transferred to the Sydney Registry of the Court, for the prosecution of the Appeal from the primary judge, and that the costs of the interlocutory application be costs in the appeal.

4    The appeal is an appeal from orders made by Logan J on 29 September 2011 supported by reasons for judgment published on that day. On 29 September 2011, orders were made which have not yet, as I understand it, been entered, and those orders, in draft for entry, are slightly different from those which are reflected in the orders published on 29 September 2011.

5    The final orders are different in the sense that the draft orders reflect orders 7, 8, 9 and 10, which appear not to be orders reflected in the orders published on 29 September 2011 although the reasons for judgment contemplate further orders. It is probably not necessary to recite in detail all of those orders. It is sufficient to note that in the proceeding the third respondent, Clear Telecoms (Aust) Pty Ltd, was ordered to pay an amount by way of damages, together with interest calculated at a particular rate from 21 August 2008. A declaration was made that contracts made between Prosperity and Australian Equipment Rentals Pty Ltd and/or Quikfund (Australia) Pty Ltd were declared void ab initio and unenforceable, and other orders were made about enforcement capacity in relation to those matters.

6    Order 7 provided that without prejudice to costs orders already made in the proceedings, save orders reserving costs, the third, fourth and fifth respondents in the proceeding before Logan J pay the applicants’ costs, the applicants in the proceeding being Prosperity and WorldNet, of and incidental to the proceeding to be taxed.

7    Orders were also made in relation to other matters which do not need to be recited any further in these reasons.

8    In the Notice of Appeal, a number of grounds are agitated by the appellants.

9    Three in particular of those grounds are agitated on this application as having merit, at least in the sense of raising a serious question to be determined or a matter of arguable substance on the appeal.

10    The first of those three grounds goes to what I will call the agency point. Ground 1 of the Notice of Appeal contends that the Court erred in finding that Queensland Communications Company Pty Ltd and Technix Pty Limited were agents of or brokers to Quikfund (Australia) Pty Limited and Australian Equipment Rentals Pty Limited, otherwise known as AER. Having read the judgment of the primary judge and, in particular, the paragraphs relied upon by the applicant appellants and having heard oral argument about that ground, I am satisfied that there is at least an arguable question about the agency point.

11    The second ground agitated is that the Court erred in finding that the rental contracts, the subject of the proceedings, were not a “financial service” and that the Court erred in finding that AER and Quikfund were “linked credit providers”. Both those grounds raise questions going to s 73 of the Trade Practices Act 1974 (Cth), provisions of the Australian Securities and Investments Commission Act 2001 (Cth) and Australian Securities and Investments Commission Regulations 2001 (Regulation 2BA).

12    I am satisfied that there is a question about the operation, in the circumstances of the issues in controversy before the primary judge, about the application and construction of the relevant regulation, and thus a substantial, or at least a seriously arguable question about the construction and application of those statutory provisions.

13    A further ground agitated in the Notice of Appeal is that the Court erred in finding that Clear Telecoms Australia Proprietary Limited took both the benefit and burden of the telecommunications contract assigned to it. I am satisfied that the scope and operation of the analytical concept of where the burden and benefits of a contract lie and the extent to which an assignee might take the burden and benefits of a contract is a question which is alive and is at least a serious question to be argued on appeal.

14    It follows from these observations that I am satisfied that at least as to the threshold question of whether there is a substantial or seriously arguable question to be determined in the appeal, that that criterion is satisfied.

15    I am also satisfied that having regard to at least the observations of Weinberg J in King v Yurisich (2006) 59 ACSR 598 which are consistent with the observations in Skinner v Jeogla Pty Ltd and Others (2001) 37 ACSR 106, that the prosecution of the appeal is a “proceeding” for the purposes of s 471B of the Corporations Act.

16    The next consideration in the exercise of the discretion is whether giving leave to proceed would serve any purpose (utility).

17    It seems to me that where a party is burdened by orders of the Court where there is a seriously arguable question on appeal, that the interests of justice are served by enabling, subject to any prejudicial considerations in the context of a winding up, such a party to agitate the merits of the making of the order and seek to establish to the satisfaction of an intermediate appellate court that the orders ought to be set aside. Thus, entertaining the appeal and giving leave to proceed with the agitation of those issues does serve a purpose, both inter-parties and in the general sense of the interests of justice.

18    The third consideration is whether the proceedings will result in prejudice to the creditors.

19    Mr Blair Alexander Pleash, the liquidator of Prosperity (appointed on 5 April 2011) has filed two affidavits, both of which I have read, and in particular, the most recent affidavit sworn on 6 June 2012. In that affidavit, Mr Pleash explains that Prosperity has the benefit of a costs order which, on advice given to him, suggests that the value of that costs order is $311,061.13. However, some constraints upon the costs order were imposed by Logan J in the sense that some aspects of the costs from a particular moment in time in the litigation were to be determined by reference to the scale of costs applicable in the Federal Magistrates Court of Australia on the footing that the parties might properly have elected to remit the matter to that Court having regard to the amounts ultimately in question.

20    Recognising those constraints upon the costs incurred from 8 February 2010, Mr Pleash deposes that the amount of recoverable costs in the administration would be in the range $230,000 to $250,000. I take that factor into account because it seems to me that that sum is a substantial sum, both in terms of the administration and the amount of the burden which is necessarily cast upon the proposed appellants having regard to the order. Therefore, it follows, it seems to me, that the appellants are seeking to agitate questions which relate to a not insubstantial amount of money.

21    The question of the interests of the creditors is, of course, important, and in some senses, central. In this particular administration, in the circumstances of the orders as they stand at the moment, Mr Pleash says, based upon information given to him by Mr Hedges the solicitor acting on behalf of the liquidator, that an amount of $250,000 if recovered from the appellants would result, on a best case scenario taking into account the quantum of creditors’ claims and other recoveries in the liquidation, in a dividend to priority creditors of about 100 cents in the dollar and a dividend to unsecured non-priority creditors of the order of 43 cents in the dollar. At para 8, Mr Pleash goes on to explain other possibilities in which event the priority creditors would receive a dividend of 45 cents in the dollar and general unsecured creditors would receive no dividend.

22    It seems to me that the true measure of the prejudice to the creditors lies not in an analysis of the dividends which might be made in the circumstances postulated, but in truth, the prejudice is the delay in time the creditors might experience before receiving any dividend that they might be entitled to receive. By that I mean, if leave is refused and the costs orders are met and the liquidator receives the money due under the costs order, the creditors would receive a dividend of the order postulated. If, on the other hand, leave is given, then time passes until the hearing and determination of the appeal, in which event if the appeal is unmeritorious the creditors will then have the benefit of the orders, affirmed on appeal, and the moneys will be paid into the administration at a later moment in time. The appeal is listed to be heard in the August Sittings of the Full Court. So, in truth, the prejudice to the creditors of granting leave is simply a time shifting or time delay prejudice. Whilst that is not insignificant, it may be that the creditors are ultimately in no worse financial position than they might otherwise have been in had leave not been granted and the appellants are shown to be unsuccessful in the appeal. For these reasons, I am satisfied that the criteria to be considered in the exercise of the discretion under s 471B of the Corporations Act ought to be exercised in favour of granting leave to proceed.

23    I should also just mention that in a number of the authorities reference is made to the discretion under s 471B being “unlimited”. I am not quite sure what that means in the context of the observations in some of the cases, but for my part, I would simply say that the discretion under s 471B is not truly “at large” or “unlimited”. Rather, the discretion arising under s 471B is a discretion to be exercised according to settled principle, although, of course, the facts of each case will vary. The settled principles are those reflected in the authorities. Those authorities recognise that the settled principles include the notion of whether there is a substantial question to be tried; whether the action would serve any utility or sufficient purpose; whether the proceedings will result in prejudice to the creditors, however that may manifest itself; and questions going to the seriousness of the claim. There are other considerations informing the exercise of the discretion but it seems to me to be a safer theoretical position to recognise that the discretion under s 471B is to be exercised according to settled principle, and not simply “at large”.

24    Accordingly, I grant leave to proceed and make orders accordingly.

25    A further aspect of the interlocutory application concerns the question of whether the appeal proceeding ought to be transferred to the Sydney Registry of the Court. I propose to adjourn that part of the application pending notification from the liquidator as to whether the liquidator proposes to appear on the hearing of the appeal and whether the liquidator proposes to act as a contradictor or simply abide by the determination of the Court. Appropriate orders dealing with that issue are also made.

Associate:

Dated:    7 June 2012