FEDERAL COURT OF AUSTRALIA

Shanahan (Liquidators), in the matter of Hazelview Investments Pty Ltd (in liquidation) [2014] FCA 866

THE COURT ORDERS THAT:

1.    Pursuant to section 511(1)(b) of the Act, the Court exercises the powers that would be available to it as if the Company were being wound up by the Court.

2.    Pursuant to rule 1.32 of the Federal Court Rules 2011 (the Rules), the requirements of the Liquidators to comply with Rule 7.5 of the Federal Court (Corporations) Rules 2000 (Corporations Rules) be dispensed with.

3.    John Gervase Shanahan and Ginette Dawn Muller as joint and several liquidators of Wheeldon’s Towing Service Pty Ltd (in liquidation) (ACN 082 387 746) be joined as third applicants in these proceedings.

4.    Wheeldon’s Towing Service Pty Ltd (in liquidation) (ACN 082 387 746) be joined as fourth applicant in these proceedings.

5.    Any requirement for the Third or Fourth Applicants, to advertise or give notice of an application for directions pursuant to section 479(3) of the Act be dispensed with.

6.    Pursuant to section 479(3) of the Act, John Gervase Shanahan and Ginette Dawn Muller (the Liquidators), in their capacities as liquidators of each of the Second Applicant and the Fourth Applicant, are entitled to:

6.1    treat the Fourth Applicant as a creditor of the Second Applicant for the sum of $474,897; and

6.2    treat the Second Applicant as a secured creditor of the Fourth Applicant as a result of subrogation to a maximum value of $597,924.00 and allow the Second Applicant to retain funds to the sum of $414,897.00.

7.    Pursuant to rule 1.32 of the Rules, the requirement of the First Applicants to comply with Rule 9.4 of the Corporations Rules be dispensed with and their remuneration for the period 7 May 2014 to 30 September 2014 (inclusive), in addition to remuneration already approved by creditors, be fixed in the amount of 24,475.00 (plus GST).

8.    On 12 August 2014, the solicitor for the applicants is to file and serve on the solicitors for Robert and Joyce Wheeldon and affidavit deposing to whether any creditor has lodged any objection in response to the notice sent to creditors by solicitors for the First and Second Applicants on 18 July 2014.

9.    On 15 August 2014, the First Applicants are to declare and distribute a dividend to the unsecured creditors of the Second Applicant, excluding the Fourth Applicant (in compliance with Order 6).

10.    With effect from the date that the First and Second Applicants comply with orders 6, 8 and 9 herein and in the event that no objection by any creditor is lodged with the applicants:

10.1    Pursuant to section 480(c) of the Act, the First Applicants be released as liquidators of the Second Applicant;

10.2    The winding up of the Second Applicant be terminated pursuant to section 482 of the Act; and

10.3    Pursuant to section 482(3) of the Act, upon termination of the winding up of the Second Applicant, Robert Wheeldon resume as director of the Second Applicant.

11.    In the event that the affidavit referred to in paragraph 8 herein deposes to receipt of an objection, the matter be adjourned for hearing at 9.30am on 15 August 2014 for such issue as is raised by any such objection to be heard.

12.    The First Applicants’ costs and expenses of and incidental to this application are their costs in the winding up of the Second Applicant.

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

REASONS FOR JUDGMENT

1    As originally formulated, this application was made by Mr JG Shanahan and Ms GD Muller in their capacities as joint and several liquidators of Hazelview Investments Pty Ltd (in liquidation) (Hazelview) and by Hazelview, itself. For reasons which will become apparent, the application was, in the course of its hearing amended so as to include as parties, particularly with respect to the giving of directions under s 479 of the Corporations Act 2001 (Cth) (the Act), Messrs Shanahan and Muller, in their separate capacities as joint and several liquidators of Wheeldon’s Towing Service Pty Ltd (in liquidation) (Towing) and Towing, itself. The application entails the seeking of relief pursuant to ss 479, 480, 481 and 511(1)(b) of the Act.

2    The end to which the application is directed is to allow Mr Shanahan and Ms Muller to seek directions from the Court as to the proper conduct of the liquidation of each of Hazelview and Towing in respect of a proposal which was said to effect “an expeditious, cost-effective termination of the liquidation of Hazelview”. That end is said also to serve the interests of Towing in the separate administration of the winding up of Towing, and to do that in a way which does not prejudice any of the creditors of either company.

3    It is necessary to descend to some detail in respect of background facts so as to understand the nature of the proposal and why it is said by the liquidators to have each of the qualities quoted.

4    Before doing that it, should be recorded that an appearance has also been made on behalf of Mr Robert Wheeldon and Ms Joyce Wheeldon. Between them, Mr Wheeldon (as to two ordinary shares beneficially held) and Mrs Wheeldon (as to one share beneficially held) are the members of Hazelview. Mrs Wheeldon is a former director of Hazelview and was once a company secretary. She held those offices between 18 June 1981 and 5 November 2009. Mr Wheeldon became a director on 18 June 1981 and took up the additional office of secretary from 5 November 2009. Mrs Wheeldon is a member of Towing, as is Mr Wheeldon. Mr Wheeldon is the director of Towing.

5    Hazelview was registered on 18 June 1981. It is a corporate trustee. By that I mean it acts as trustee of a trust known as the Wheeldon Family Trust. Towing is also a corporate trustee. It acts as the trustee of a trust known as the Wheeldon’s Towing Service Trust. Both Hazelview and Towing shared the same registered office from 6 February 2009 at 12 Industrial Avenue, Molendinar.

6    On 5 August 2011, there were orders made which placed Hazelview in liquidation and which also placed Towing in liquidation. Hazelview was placed in liquidation as a result of a creditor’s voluntary winding up application. As I have mentioned, Mr Shanahan and Ms Muller were appointed joint and several liquidators of each of the companies. The terms of each trust deed are such that there is no automatic disqualification of either company from continuing to act as trustee of the relevant trust upon being insolvent or being placed in liquidation.

7    There is a recent decision of McKerracher J, namely Kitay, in the matter of South West Kitchens (WA) Pty Ltd [2014] FCA 670, which would suggest that even in a circumstance where a corporate trustee is, under the terms of a trust deed, disqualified, this does not prevent the liquidators, of the insolvent corporate trustee, from exercising a power pursuant to s 477(2) of the Act to sell, dispose or otherwise deal with property of the company held in terms of the trust in the course of the winding up of the corporate trustee.

8    His Honour reached that view after a consideration of a number of authorities. It is not necessary again to explore those authorities in the circumstances of this particular case. That is because, on the evidence before me, there has been no suggestion by any person to Mr Shanahan and Ms Muller in either of their capacities as liquidators that either Hazelview or Towing engaged in action in the administration of the relevant trust such as would disqualify them from the exercise of a right to indemnity in respect of trust assets and income to meet liabilities incurred in the course of acting as trustee. Thus, one way or another, be it either by virtue of a retention of power pursuant to s 477(2) of the Act, or by way of a general right of indemnity under trust law, there is in this case an ability on the part of the liquidators in the course of the administration of the winding up, to have recourse to assets of the company, even if the company holds those assets as a trustee.

9    I therefore proceed on the basis that the liquidators are entitled to cause the respective companies in their trustee capacities to sell, dispose, or otherwise deal with company property, even if that be trust property in the course of the winding up of each company so as to meet liabilities of the company incurred as trustee, or so as to meet proofs in respect of such liabilities lodged in the course of the winding up of each company. It is necessary to record that trustee capacity because, on the evidence, each company has only acquired assets, or incurred liabilities as a corporate trustee.

10    The position as at yesterday in the estimation of the liquidators in respect of the assets and liabilities of the trust administered by Hazelview is as follows:

11    On the evidence, and taking into account anticipated future expenses of Mr Shanahan and Ms Muller as liquidators of Hazelview and without realising any additional assets held by Hazelview, there would, all other things being equal, be a shortfall of some $47,470.50 calculated, according to evidence led on behalf of Mr Shanahan and Ms Muller in the following way:

12    The real property asset at 24 Ereton Drive, Arundel, in the estimation of the liquidators, has a value of $700,000, exclusive of marketing costs. There is some valuation evidence to support that particular estimation. Though somewhat dated, I do take in that valuation evidence has been assessed by the liquidators for the purposes of the present application, and I am prepared to act on the estimation of the liquidators as to that realizable value.

13    More needs to be said about other debts of Hazelview because it is in this, at the essence of the application as originally formulated and amended, is to be found. Hazelview is indebted to Towing for $414,897.

14    The operation of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) is such that Hazelview and Towing are grouped for GST purposes, by the Commissioner of Taxation (Commissioner) in his administration of the GST Act. By s 48-40 of the GST Act, it is provided that the GST payable on a taxable supply is payable by the representative member, which in this case has been Hazelview, not by the supplier. It is further the effect of s 48-40 of the GST Act that a supply by a member of a GST group to another member of the group is treated as if it was not a taxable supply.

15    The effect of s 48-75 of the GST Act, in circumstances where the representative member becomes an incapacitated entity, materially here, Hazelview upon being placed in liquidation, is that the hitherto capacity of the representative member ceases, unless all other members of the group are also incapacitated entities. In those circumstances, the Commissioner is entitled to proceed against individual members of the GST group so as to recover unpaid amounts of GST owed by the individual members respectively. Towing, the other member of the GST group is, as I have mentioned, also in liquidation. Last year, the Commissioner lodged a proof of debt in the winding up of Towing for $421,281.79.

16    That was a running balance account deficit debt in respect of amounts owed by Towing as trustee in respect of various business activity statement declared amounts as at 18 October 2013. Three days later, the Commissioner lodged a proof of debt in Hazelview’s winding-up for that same amount said by the Commissioner to be owing by Hazelview as the “GST group reporter” in respect of Towing’s running balance account deficit debt. The origin of the debt said to be owed to the Commissioner by both Hazelview and Towing is one and the same. In effect, each company is, by virtue of the operation of the GST Act, jointly liable for Towing’s debt.

17    The investigations conducted by Mr Shanahan and Ms Muller, for the purposes of the winding-up of each of the companies have disclosed that the debt of $421,281.79 owed jointly by the companies was incurred ultimately as a result of activities, or rather “supplies”, by Towing.

18    On 10 October 2011, or thereabouts, Hazelview paid out secured debts owed by Towing to the National Australia Bank in the total sum of $597,924 (the NAB debts). Hazelview was guarantor in respect of Towing’s NAB debts.

19    The submission made on behalf of both Hazelview and also, as it came to pass, Towing was that, upon the paying out of this debt of Towing by Hazelview, Hazelview acquired a right of subrogation in place of the National Australia Bank with respect to Towing. It was thereby put that the effect was that Towing was indebted to Hazelview for $597,924. There is a separate indebtedness by Hazelview to Towing in the amount of $414,879.

20    As at the time when Hazelview paid out the secured debts of Towing, Hazelview was on notice that Towing was insolvent. It was, after all, already then in liquidation. The effect of s 553C(2) of the Act was said to be, and I agree, that the existence of that notice of insolvency means that the right of set-off is not open to Hazelview, and that both Hazelview and Towing have to prove in each other’s liquidation for the full amounts of their claims.

21    There is also a right of subrogation arising from Hazelview’s paying out Towing’s debts to the National Australia Bank. What is put is that the right of subrogation exists in respect of both the NAB debt and also, when paid out, the debt owed to the Commissioner of Taxation. That right of subrogation in respect of the NAB debt is said to follow from the operation in the circumstances of s 4 of the Mercantile Act 1867 (Qld), in that Hazelview was:

(a)    a surety for the debt owed by Towing to the NAB;

(b)    paid the debt on behalf of Towing;

(c)    entitled to stand in place of the NAB in relation to the debt.

To borrow the language of Sir Andrew Morritt, Vice Chancellor, as referred to by the High Court in Bofinger v Kingsway Group Limited (2009) 239 CLR 269 at [4]:

The right operates so as to confer on the surety who has paid the debt in full the rights against the debtor formerly enjoyed by the creditor or by imposing on the creditor the obligation to account to the surety for any recovery in excess of the full amount of [the] debt.

22    In the circumstances of this particular case, the effect of subrogation, in respect of the NAB debt and upon payment of the debt to the Commissioner of Taxation, is that:

(a)    Hazelview is required to pay:

(i)    its full liability, namely, $414,897 to Towing as a dividend.

(ii)    the debt to the Commissioner as a dividend.

(b)    Hazelview becomes a secured creditor in the liquidation of Towing for the full amount of the NAB debt paid and an unsecured creditor for the debt to the Commissioner when paid.

23    In summary, on the evidence:

(a)    Hazelview is indebted to:

(i)    Towing for $414,897 as a general unsecured creditor;

(ii)    the Commissioner for $421,287.79.

(b)    Towing is indebted to Hazelview, after subrogation, for $421,287.79 for the debt to the Commissioner, and $597,924 for the debt to the National Australia Bank (as a secured creditor).

24    The nature of the relief sought, pursuant to s 497(3) of the Act, by Mr Shanahan and Ms Muller in their capacities as liquidators of both Hazelview and also, after amendment of the application, Towing is designed to meet the following apprehended burden in each winding up. In the ordinary course of events, and because no right of setoff exists, Hazelview would be required to, and in the following order:

(a)    sell all of the assets of Hazelview;

(b)    pay the full amount of the debt to Towing as a dividend, namely $414,897;

(c)    pay the full amount of the debt to the Commissioner as a dividend, namely $421,287.79;

(d)    claim in the liquidation of Towing for $1,019,211.70, being the subrogated NAB and Commissioner debts.

25    It is put on behalf of the liquidators that this particular process in this case would be detrimental to creditors and creditors of each of Hazelview and Towing in that it will necessarily:

(a)    incur further costs in disposal of assets; and

(b)    delay the making of a distribution.

26    Against this background and in their capacity as liquidators of each of the companies, Mr Shanahan and Ms Muller seek directions from the Court pursuant to s 511(1)(b) and s 479 of the Act so as to enable them to achieve a like end, but in a way which is put by them to be more efficient and more cost effective by:

(a)    not selling all of Hazelview’s assets;

(b)    treating Towing as a creditor of Hazelview for the sum of $414,897;

(c)    offsetting moneys due to Towing by Hazelview in the sum of $414,897 (less any care and preservation costs associated with the assets against any dividend which is payable by Towing to Hazelview.

27    The liquidators, conscious as they are of their separate responsibilities in the winding up of each of Hazelview and Towing, submit that this particular alternative would result in the following occurring:

(a)    Hazelview retaining some of its assets;

(b)    Towing paying Hazelview $597,924, being the amount subrogated in respect of the NAB debt;

(c)    Hazelview paying out the debt to the Commissioner and its other creditors; and

(d)    The offsetting of the debt of $414,897 owed to Towing, such that Hazelview is not required to pay Towing anything other than care and preservation costs.

28    This is said to be a preferable alternative, because it would have the same effect as what would, in the ordinary course, be undertaken, but at much less cost and delay. It is for that reason that, in their capacity as liquidators in each winding up, Mr Shanahan and Ms Muller sought directions from the Court so as to enable the alternative process to be undertaken.

29    In the ordinary course of events, the Court does not give directions to liquidators under s 479 of the Act where all that is entailed is the making of a commercial or business value judgment. The position though is different where that value judgment may additionally entail a legal issue or perhaps a suggestion of a lack of propriety or probity on the part of the liquidators: see for example, Re Rolcross Pty Limited (in liquidation) [2012] NSWSC 846 at [12] (Black J) and the authorities referred to there.

30    There is much which is not only commercially attractive but also innovative but open in law in the alternative proposal.

31    Some authorities describe the responsibility of a liquidator as being analogous to that of a trustee. If all that is meant by that is that a liquidator has a responsibility to act prudently, reasonably and in good faith, then I respectfully agree with the analogy. Here, it seems to me that the liquidators in each of their capacities would act in such a fashion by implementing the alternative proposal which, as I have observed, appears to me to have a sound series of legal premises behind it.

32    That being so, I am prepared to give the requisite directions. In stating that, I note that the application in its original form was notified to the Australian Securities and Investment Commission (ASIC) some time ago. The position which ASIC took in response to the giving of that notice was to advise those acting for Mr Shanahan and Ms Muller in their capacity as liquidators of Hazelview that in the event that ASIC had a particular concern in respect of the application, it would communicate that and inferentially, seek to be heard today.

33    A thought that, as originally formulated, the application was one which also entailed at least implicitly a need for the seeking of direction by Mr Shanahan and Ms Muller in their separate capacity as liquidators of Towing, occurred over the course of the luncheon adjournment. Thereafter that resulted in an application for an amendment of the application. It is only to be expected that such a thought ought, in the course of responsible administration of the Act, to have occurred also to ASIC. The absence of any communicated concern, much less appearance by ASIC, is therefore a factor to take into account.

34    I had the benefit of oral evidence after the luncheon adjournment from Ms Birnie, who is the officer within the firm (FTI Consulting) of which Mr Shanahan and Ms Muller are members with the day to day responsibility for each of the administrations. Her evidence was that there had been no communication by any creditor of Towing or, for that matter, any beneficiary of the trust of which Towing was trustee, of any concern in respect of the conduct of Towing as corporate trustee in the administration of the relevant trust.

35    Seized with that particular evidence and the absence of an appearance by ASIC, it seemed to me that no good purpose would be served by requiring, in the administration of Towing, the creditors to be burdened by the expense of the liquidators sending out notice of the amended application to each of the in excess of 180 creditors in that particular administration. It was for that reason that I dispensed with the giving of such notice, if any as might be necessary, and permitted the amendment of the application to include the seeking of directions by Mr Shanahan and Ms Muller in their separate capacities as liquidators of Towing.

36    There are other elements of responsible value judgment which are evident in the application. By that, I mean that Mr Shanahan and Ms Muller also seek the fixing of their remuneration under s 473(3) of the Act by the Court because of the burden which would fall on the creditors of Hazelview to convene a meeting for the purpose of deciding whether to approve remuneration. Of course, if the remuneration were apparently excessive, then that would be a burden which ought to fall because it would be in the interests of the creditors for that meeting to occur.

37    Here, the liquidators have, quite properly, given notice of their intention to seek approval of the remuneration. No objection has been communicated to them by any creditor, much less has a creditor sought to appear today. The total of the remuneration that has been, and is likely to be, incurred by the liquidators as between 7 May 2014 and the end of September 2014, which takes into account the estimate made by Mr Shanahan and Ms Muller of future fees in finalising the winding up, is $47,475 plus goods and services tax. For that same period, the estimate as disbursements will be between $250 and $500 plus GST.

38    As put on behalf of Mr Shanahan and Ms Muller, that remuneration should be fixed rather than following the alternative set out in r 9.4 of the Federal Court (Corporations) Rules 2000 because of the burden that would fall, expense wise, in the administration. Once again, that seems to me, in the circumstances of this particular case, to be a burden that should not be placed on Hazelview’s creditors.

39    The end result of the administration, when one takes into account a disposition on the part of Mr Wheeldon partially to step aside from a dividend entitlement to an amount equal to expenses and a disposition on the part of Mr Shanahan and Ms Muller to cap their fees in a particular amount, is that there would be no shortfall and payment in full, ie 100 cents in the dollar, of the creditors of Hazelview. Against that background, it is sought that the winding up of Hazelview be terminated.

40    That is a result which is additionally sought by Mr Wheeldon. Mr Wheeldon wishes to resume his control of the company and then to cause the company to resume its business.

41    Mr Shanahan and Ms Muller also seek an order of release under s 480 of the Act. There is something of a conflict on the authorities as to whether such release can be granted if there is yet a distribution of surplus or final return to be made: see FAI Car Owners Mutual Insurance Company Pty Ltd (2009) 235 FLR 434; James (Liquidator), in the matter of Woodgamia CDEP Aboriginal Corporation (in liq) [2013] FCA 950 (James).

42    The way that particular conflict, if indeed it be that, can be resolved, in my view, is by making an order such as was made in James. That would take effect from the date when the liquidators comply with the requirement to pay out a final dividend. Conditioning an order in that way would then achieve the end to which s 480 is materially directed, in the sense that the liquidator will have realised the property of the company, also much the same as can be realised without needless protraction, and distributed a final dividend and made such adjustments of the rights of contributors as is necessary to require a staged series of applications when a particular program of events is not just planned but likely, on the evidence to occur, would be to burden unnecessarily creditors with the expense of a further application. If the condition is not met, then the release will not occur. If it is met, then the application will have been well made.

43    There remains, though, a question as to whether the winding up should be terminated. A judgment delivered by Master Lee QC, as his Honour then was, in Re Warbler Pty Ltd (1982) 6 ACLR 526 at 533 (Re Warbler) is something of a root authority for the reminder which it offers of considerations which are relevant as to whether to terminate a winding up. Those considerations are not, of course, exhaustive. Further, what is required in the end is the making of a value judgment by the Court.

44    In this particular case, given that I am disposed to give directions which would see the alternative proposal described put into effect and which would result in the payment of 100 cents in the dollar to the creditors of Hazelview and no apparent prejudice to creditors of Towing, the question becomes very much whether Hazelview is to be regarded as solvent and even then whether there is a public interest, particularly having regard to commercial morality, in the termination or not of the winding up.

45    In relation to the exercise of the value judgment, the matter is not one for the liquidators to determine for themselves but the Court is entitled to expect and receive from the liquidators their considered view on that subject. In this regard, I have the benefit of such a view from the liquidators of Hazelview. They do not raise any particular concern in respect of the termination of the winding up. It is apparent from the relevant affidavit that the liquidators have turned their minds to the very considerations described by Master Lee in Re Warbler.

46    The concern which I had myself in relation to the termination of the winding up arose from the presence of substantial debts to the Commissioner of Taxation and also, it must be said, the Queensland Office of State Revenue. These comprise far and away the bulk of the unsecured creditors of Hazelview. There is always a concern that there be no suggestion of what one might, however inelegantly, term phoenix-like behaviour on the part of those who stand behind corporations with respect to amounts owed to the consolidated revenue of the Commonwealth or a state or territory. Truly, neither the Commonwealth, a State nor a Territory ought to be regarded or treated as a financier in respect of business operations. In this particular case, however, there is evidence, and eloquent evidence at that, that whatever history Mr Wheeldon caused Hazelview to have as to non-compliance with revenue responsibilities has been well and truly addressed, not just by the payment of primary tax liability, but also interest and the expense of insolvency administration. I am confident that that particular lesson will have resonance with him in relation to future administration of the company if the winding up is terminated.

47    The position would be different if there were something other than a complete return with interest to the public revenue. I also take into account that the result of a complete return will be achieved in this case by Mr Wheeldon foregoing a particular part of a distribution which would otherwise come to him. That latter consideration, in particular, gives me some confidence in relation to future behaviour.

48    Finally, it is a moot point as to whether a 21-day notice period has expired today. If only out of an abundance of caution, I propose to add an additional condition to the orders that are sought which will require the filing of an affidavit by or on behalf of the liquidators of Hazelview as to whether by close of business on Monday, 11 August 2014 they have received any objection to the granting of orders in respect of the s 479 direction, the s 480 release, the winding up of the company pursuant to s 482 and the order that Mr Wheeldon upon termination resume as director of the company.

Associate:

Dated:    9 October 2014