FEDERAL COURT OF AUSTRALIA

McKinnon, in the matter of Specialised Concrete Pumping Victoria Pty Ltd (Administrators Appointed) [2016] FCA 325

ORDERS

THE COURT ORDERS THAT:

1.    The convening period for the purposes of the meeting of the creditors of the Companies referred to in the schedule (‘Companies’) under section 439A of the Corporations Act 2001 (Cth) (‘Act’) is extended to midnight on 1 May 2016.

2.    Pursuant to s 447A of the Act Part 5.3A of the Act is to operate in relation to the Companies as if:

(a)    the meeting of creditors of the Companies required by s 439A of the Act may be held at any time during the period comprising the convening period as extended by paragraph 1 above and the period of five business days thereafter, notwithstanding the provisions of s 439A(2) of the Act.

(b)    the personal liability of the Plaintiffs under s 443A of the Act excluded any liability for loans or other debts between Companies in the group created after the Appointment Date in course of trading the Companies.

3.    Pursuant to s 447D(1) of the Act, the Plaintiffs are justified, and would otherwise be acting reasonably, in causing the Companies to continue to trade as a single business in the manner set out in paragraph 44 of the affidavit of Stephen Robert Dixon sworn on 15 March 2016.

4.    By 25 March 2016, the Plaintiffs:

(a)    upload a copy of these orders onto the Grant Thornton website; and

(b)    send a circular letter to creditors of the Companies (by email in respect of those Creditors who have informed the Plaintiffs that email is their preferred method of communication and by post in respect of all other known Creditors) informing them of the substance of these orders.

5.    Liberty is reserved to any person affected by these orders to make application to modify or discharge them on not less than 48 hours' notice to the Plaintiffs.

6.    The Plaintiffs' costs of the application are costs in the administration of the Companies.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    The plaintiffs (‘administrators’) are administrators of the companies set out in the Annexure to these reasons (‘Companies’). The administrators seek:

(a)    orders pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (‘Act’) further extending the convening period to 1 May 2016, and an order under s 447A of the Act having the effect that the second meeting of creditors could be held during the extended convening period or the period of five business days thereafter (notwithstanding the effect of s 439A(2));

(b)    directions pursuant to s 447D of the Act as to whether they are justified and would otherwise be acting reasonably in causing the Companies to continue to trade as a single group and a single business; and

(c)    orders pursuant to s 447A of the Act to relieve them from personal liability for intercompany loan accounts created by the trading of the Companies as a single group and a single business.

2    The administrators rely on the affidavits of Stephen Robert Dixon sworn 19 February 2016, 15 March 2016, 21 March 2016, and 23 March 2016.

APPLICATION FOR ORDERS EXTENDING CONVENING PERIOD

3    The administrators seek orders further extending the convening period to the period ending 1 May 2016, in the nature of a Daisytek order (see Re Daisytek Australia Pty Ltd (admin apptd) (2003) 45 ACSR 446).

4    The relevant principles are well-known. They were summarised in Algeri; Re Colorado Group Ltd [2011] VSC 260. Justice Judd stated (at [24] – [25]) as follows:

When an application is made for an extension of time to convene a meeting, the court will attempt to strike a balance between the expectation that the administration will be conducted relatively speedily and summarily, and the need to ensure that undue speed will not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders. Where the relevant business group is large and complex, or there is a prospect of successful realisation of assets through negotiations with third parties, as in the present case, the administration process is often given more time. There is no place for a predisposition against granting an extension. In Re FEA Plantations Ltd [2010] FCA 468, at para 19, Dodds-Streeton J said:

Relevant authorities recognise that strict compliance with the tight timeframes for convening the second meeting (statutorily imposed to avoid the prolongation of the voluntary administration procedure and its concomitant moratorium and impact on rights) may not be feasible in large and complex administrations, if the administrators are to produce informed recommendations based on adequate investigations, and a sufficiently comprehensive and detailed report capable of providing meaningful assistance to the creditors in deciding the fate of the company.

In Re Riviera Group, Austin J noted that extensions had been granted in cases falling within the following broad categories:

The reasons given for an extension in subsequent cases can be grouped into the following broad categories:

•    the size and scope of the business: Re Lombe; Babcock & Brown Ltd (admins apptd) [2009] FCA 349 (Re Lombe); Re Worrell; Storm Financial Ltd (recs and mgrs apptd) (2009) 69 ACSR 584 ; [2009] FCA 70 (Re Worrell); Re ABC Learning Centres Ltd; Application by Walker (No 5) [2008] FCA 1947;

•    substantial offshore activities: Re Lehman Bros Australia Ltd [2008] NSWSC 1132;

•    large number of employees with complex entitlements: Re S & D International Pty Ltd (in liq); Malhotra v Tiwari [2005] VSC 496; Re Ansett Australia Ltd and Korda; sub nom Ansett Australia Ltd (No 3) (FCR) (2002) 115 FCR 409 ; 40 ACSR 433 ; [2002] FCA 90;

•    complex corporate group structure and intercompany loans: Re Lombe; Re Octaviar Ltd (admins apptd) (recs and mgrs apptd) (ACN 107 863 436) [2008] QSC 272; Re LED Builders Pty Ltd (admin apptd) [2008] NSWSC 633; Hall; Re Australian Capital Reserve Ltd (admins apptd) [2007] FCA 1328;

•    complex transactions entered into by the company (for example securities lending or derivatives transactions): In Re Lift Capital Partners Pty Ltd (admin apptd) [2008] NSWSC 446 (Re Lift Capital);

•    complex prospects of recovery proceedings: Re Worrell; Coal Developments (German Creek) Pty Ltd v Cmr of Taxation (2007) 241 ALR 667 ; [2007] FCA 1324;

•    lack of access to corporate financial records: Re Sims; Destra Corp Ltd [2008] FCA 2002; Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192 ; [2007] NSWSC 363;

•    the time needed to execute an orderly process of disposal of assets: Re Carter, SFM Australasia Pty Ltd (admin apptd) (ACN 105 317 333) (No 2) [2009] FCA 419; Re ABC Learning Centres Ltd; Application by Walker (No 7) (2009) 71 ACSR 560 ; [2009] FCA 454;

•    the time needed for thorough assessment of a proposal for a deed of company arrangement: Silvia, Re Austcorp Group Ltd (admin apptd) [2009] FCA 636;

•    where the extension will allow sale of the business as a going concern: Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110; Stewart, Re Kleins Franchising Pty Ltd (admin apptd) [2008] FCA 721; Re Uni-Aire Security Pty Ltd (admin apptd) [2006] FCA 1423;

•    more generally, that additional time is likely to enhance the return for unsecured creditors: Deputy Commissioner of Taxation v Scottsdale Homes No Pty Ltd (No 2) [2009] FCA 190; Re Fitzgerald; Primebroker Securities Ltd (admin apptd) (recs and mgrs apptd) [2008] FCA 1247; Re Vouris; Marrickville Bowling and Recreation Club Ltd [2008] FCA 622.

5    The extension is sought for the following purposes:

(a)    to provide time for the director to finalise a deed of company arrangement (‘DOCA’) proposal;

(b)    to provide time for the administrators to report on a DOCA proposal;

(c)    to facilitate the continued trading of the business with a view to:

(i)    a DOCA; and

(ii)    sale of the business as a going concern if this is possible,

and thereby to “maximise… the chances of the company, or as much as possible of its business, continuing in existence”: s 435A of the Act.

6    I accept that, without an extension, there is an increased likelihood of:

(a)    the Companies going into liquidation;

(b)    the Companies ceasing to trade, resulting in:

(i)    job losses;

(ii)    an increase in employee claims;

(iii)    a reduction in the realisable value of assets; and

(iv)    a lower return to creditors.

7    I am also influenced by the fact that the administrators have formed the preliminary view that the proposed DOCA is in the interests of creditors of the Companies because it includes contributions from future trading, permits the orderly realisation of assets and is likely to result in an outcome preferable to liquidation.

8    I will make orders under s 439A(6) of the Act extending the convening period until 1 May 2016, and under s 447A(1) of the Act allowing the administrators to hold a second meeting any time within the convening period as extended and the period of five business days thereafter.

APPLICATION FOR DIRECTIONS UNDER Section 447D

9    Section 447D of the Act provides:

(1)    The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers.

(2)    The administrator of a deed of company arrangement may apply to the Court for directions about a matter arising in connection with the operation of, or giving effect to, the deed.

10    In Re Idoport Pty Ltd (in liq) [2015] NSWSC 1412, Black J set out the relevant principles (at [5] – [7]) in the following terms:

Section 479(3) of the Corporations Act allows a liquidator to apply to a Court for directions in relation to a matter arising under a winding up. The function of the liquidator’s action for direction under this section is to give the liquidator advice as to the proper course of action for him or her to take in the liquidation: Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115 at 117; Re Ansett Australia Ltd (Admins Apptd) and Korda [2002] FCA 90; (2002) 115 FCR 409 at [46]. The Court will typically not give directions where a matter relates to the making and implementation of a business or a commercial decision, where no particular legal issue is raised and there is no attack on the propriety or reasonableness of the decision, but may do so where a legal issue or attack on the propriety of the decision is raised: Sanderson v Classic Car Insurances Pty Ltd above at 117; GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 686–687; Re Ansett Australia Ltd above at [65]. An example of such a direction in liquidation is that given in Re Addstone Pty Ltd (in liq) (1997) 25 ACSR 357, in respect of the liquidator’s decision to discontinue appeals in litigation.

It is important to recognise that the Court’s reluctance to give directions in respect of commercial matters is qualified in respect of matters which are capable of giving rise to legal controversy. In an application concerning the corresponding section applicable to voluntary liquidators, s 511 of the Corporations Act, in Handberg (in his capacity as liquidator of S & D International Pty Ltd (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373, Warren CJ, in considering whether to approve a compromise of litigation, observed that the liquidator in that case was:

“Not seeking commercial advice from the Court. He has already made what he regards as the appropriate and reasonable commercial decision. It is contained in the settlement deed. Having made that decision, he now asks the Court to protect him from the potentially unreasonable behaviour of other parties involved in these proceedings. He is seeking the protection which the Court is able to provide him in light of the difficult and litigious circumstances in which he finds himself, and the risk that they pose to his continuing ability to effectively and equitably wind up the second plaintiff.”

It seems to me that this case, like Handberg, is not one where the liquidator is seeking to have the Court make a commercial judgment for him. As will emerge below, he has made a commercial judgment, based on a series of factors which are identified in the evidence before me. As in Handberg, he has formed a view as to what is an appropriate and reasonable commercial decision, namely to enter into the Deed of Release. In the particular circumstances, which involve an extraordinarily long history of litigation, by any standards, it is not surprising that the liquidator is concerned as to the possibility that his decision might be attacked, and here, like in Handberg, it seems to me that he is seeking the protection which the Court may provide, in confirming that his decision is justified, having regard to the matters which he has indicated he has taken into account. The importance of such a direction is that a liquidator is then protected against a claim for breach of duty if he acts in accordance with that direction and he has made full disclosure to the Court in the relevant application.

(emphasis added)

11    The administrators seek directions pursuant to s 447D(1) of the Act that the administrators are justified, and would otherwise be acting reasonably, in:

(a)    causing the Companies to continue to trade as a single group and a single business; and

(b)    causing the Companies to continue to trade in the manner set out in paragraph 44 of the affidavit of Stephen Robert Dixon sworn on 15 March 2016.

12    I accept that in practical terms, the administrators have two choices:

(a)    continuing to trade the Companies as a single group and single business; or

(b)    closing the business and ceasing to trade the Companies.

13    The trading of the Companies as a single group and single business is the only practical way of proceeding, despite raising questions concerning the appropriateness of partially overlooking separate legal personality. This is an appropriate case for the Court to give directions, and I propose to give a direction, based on the material before me, that pursuant to s 447D of the Act the administrators are justified and would otherwise be acting reasonably in causing the Companies to continue to trade as a single group and a single business.

APPLICATION FOR ORDERS UNDER SECTION 447A

14    Section 443A of the Act provides:

(1)    The administrator of a company under administration is liable for debts he or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:

…

(d) the repayment of money borrowed; or

(e) interest in respect of money borrowed; or

(f) borrowing costs.

(2)    Subsection (1) has effect despite any agreement to the contrary, but without prejudice to the administrator's rights against the company or anyone else.

15    Section 443C of the Act provides:

The administrator of a company under administration is not liable for the company's debts except under this Subdivision.

16    Section 447A of the Act provides:

General power to make orders

(1)    The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.

(2)    For example, if the Court is satisfied that the administration of a company should end:

(a)    because the company is solvent; or

(b)    because provisions of this Part are being abused; or

(c)    for some other reason;

the Court may order under subsection (1) that the administration is to end.

(3)    An order may be made subject to conditions.

(4)    An order may be made on the application of:

…

(c)    in the case of a company under administration—the administrator of the company…

17    The exercise of power under s 447A of the Act must be consistent with the object of Pt 5.3A as set out in s 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.

18    In Re Ansett Australia (No 1) (2002) 115 FCR 376, Goldberg J made orders under s 447A which were designed to ensure that retrenched employees would receive their entitlements in a timely manner rather than having to wait until assets were realised by the administrators over time. His Honour concluded (at [49]) as follows:

The purpose of the advances is to assist a substantial body of the creditors of the Ansett Group who would otherwise suffer great hardship if the advances were not made as soon as is practicable. The administrators consider that it is in the interests of the Ansett Group and its creditors that the transaction under the scheme be entered into, and it does not appear that they have taken into account matters irrelevant in relation to the administration of the Ansett Group. I am satisfied that the aims which the administrators are seeking to achieve fall within the object of Pt 5.3A, expressed in s 435A of the Act …

19    In Re Carter; SFM Australasia Pty Ltd (Administrators Appointed) [2009] FCA 360, administrators obtained orders modifying their personal liability under an agreement to obtain funding to trade on a company’s business and also sought directions that they were justified in entering into the agreement. Justice Mansfield made the orders sought in relation to the initial drawdown under the relevant loan facility, notwithstanding that it was at least possible that the directions might be detrimental to unsecured creditors. At [28], his Honour noted that this would be so if it transpired that:

the agreement and acceptance of the monies advanced under it is imprudent and causes loss or dilution of the assets of [the company] available for the unsecured creditors. That may obviously prejudice the unsecured creditors. They would have no recourse to the administrators, and would have their debts subordinated to the financier by reason of s 443D of the Act.

20    In Re Mentha (2010) 82 ACSR 142, Gilmour J took into account, in considering an application for orders under s 447A to vary the liability of administrators under s 443A, whether the creditors of the company were prejudiced or disadvantaged by the types of orders sought, and whether they stood to benefit from the administrators entering into the arrangement.

21    In Re Nexus Energy Ltd [2014] NSWSC 1041 at [14], Black J stated:

The next issue which arises is the limiting of the administrators’ liability under s 443A of the Corporations Act so far as the borrowings under the funding agreement are concerned. The administrators’ submissions draw attention to the case law in this area, including the often-cited decision in Mentha Re Griffin Coal Mining Company Pty Ltd (admin apptd) [2010] FCA 1469: (2010) 82 ACSR 142 at [30] which set out the relevant principles, in a summary which has been followed frequently both in the Federal Court and this Court, and which I followed in Systems Advisers Group Pty Ltd (admin apptd) above. Turning to the relevant factors in this case, it seems to me that the proposed arrangements to limit the administrators’ liability are necessary to the proposed funding arrangements, because they could not be expected to personally accept liability for a substantial borrowing in these circumstances, and the borrowing itself is in creditors’ interests and consistent with the objectives of Pt 5.3A of the Corporations Act so far as it seeks to maximise the recoveries that are likely to be made from the sale of the Company’s assets, and indeed preserve an opportunity to sell those assets which might otherwise be lost to the Company. It does not seem to me that there is significant prejudice or disadvantage to creditors of the Company from entry into the arrangement. The secured lender obtains security, as might be expected, for the additional moneys that are advanced, but that does not give rise to prejudice to other creditors, so long as those moneys are likely to generate at least the value which is the subject of that security, as is established in the present case so far as they preserve an opportunity for the sale of the Company’s assets. It seems to me that notice has been given to those who are affected by the order, both by drawing attention to it at the first creditors’ meeting and by a subsequent release to Australian Securities Exchange Ltd, albeit that notice has been given shortly prior to this application, given the urgency of the application. In any event, the administrators have indicated that they have no objection to the Court making an order reserving liberty to other interested persons to apply.

(emphasis added)

22    The administrators seek orders pursuant to s 447A of the Act that Pt 5.3A of the Act operate in relation to the Companies as if s 443A of the Act is modified so that the administrators will not be personally liable for loans between Companies in the group after the appointment date in course of trading the Companies.

23    One of the administrators has deposed to the potential creation of liabilities through the continued trading of the Companies as a single group or single business. In order to continue to operate the business of the group as a going concern, it has been necessary for the administrators to continue the group’s pre-existing practice of using the cash resources of one company to pay the debts of another company in the group. Continuation of that practice is likely to be regarded as the administrator causing the second company to borrow money from the first. Administrators are personally liable for money borrowed pursuant to s 443A(1)(d) of the Act.

24    The administrators make the following submissions:

Unless Part 5.3A of the Act is modified as sought, the administrators may be exposed to personal liability where there is no practical way to determine whether there is an asset against which they can seek indemnity. The difficulty in making that determination arises because the inter-group loan accounts do not reflect a division of all revenue and expenses amongst the individual companies in the group. Several large groups of expenses - fuel, employees and certain plant and equipment such as trucks – are particularly problematic. Many companies in the group have benefitted from the incurring of those expenses, but have not contributed to the payment of the expenses. Nor have the loan accounts reflected the extent to which particular companies have benefitted derived from expenses paid by other companies.

So, for example:

(a)    Fuel cards and accounts are held in one entity (Entity 1) but paid by another entity (Entity 2). This payment is recorded as a loan in the administrators’ records of both Entity 1 and Entity 2. The actual fuel however, may be used by a number of other entities. This is not recorded and would be extremely difficult (likely impossible) to trace accurately to the correct entity that used the fuel.

(b)    Employees are employed by Entity A (an employing-only entity), but the wages are paid by Entity B (a trading entity). This payment is recorded as a loan in the administrators’ records of both Entity A and Entity B. Entity A however, may supply the workforce for a number of entities (not just Entity B), and this could change week to week as employees are used on different contracts, which are in different trading entities’ names. This level of detail is not recorded and would be extremely difficult (likely impossible) to trace accurately on an employee by employee basis as to who worked on which project in each week and which trading entity held the project contract.

(c)    Lease payments on truck leases held by Entity X are paid by Entity Y. This loan is recorded in the administrators’ records. The trucks may be utilised by a number of trading entities (not just Entity Y) and this part is not recorded and would be extremely difficult (if not impossible) to trace.

If each company is wound up separately, and there is no order pooling the assets and liabilities of the companies, a considerable amount of work will be necessary to determine the precise assets available for creditors of each company in the group. That is because the loan accounts between each company will need to be reviewed and reconstructed so that all expenses are properly apportioned among the companies in the group that benefitted from the expenses.

25    The administrators could avoid the above risks by ceasing to trade. But this is likely to have a detrimental effect on creditors (particularly employees) and will not maximize the chance of the business continuing to exist.

26    In my opinion, it would not be reasonable for the administrators in the present case to accept the personal risk for the trading of the Companies in the group. The situation confronting the administrators is one brought about by the way in which the Companies operated prior to their appointment, including the limitations on the Companies’ bookkeeping, records and systems.

27    Obviously, there is some risk that some unsecured creditors might be disadvantaged by the continued trade and the administrators’ being freed of personal liability for inter-group borrowing. However, this risk is outweighed by the adverse consequences of the Companies ceasing to trade, including for creditors as a whole.

28    I accept the submissions of the administrators that an individual creditor will only be prejudiced in the unlikely event that:

(a)    the company that owes the creditor (company A) lends money during the administration to meet expenses incurred by other Companies in the group;

(b)    company A is wound up;

(c)    no order for pooling is made;

(d)    the cost incurred by the liquidators in reconstructing the loan accounts of each company in the group does not exhaust company A’s assets that would otherwise have been available to meet the debt owed to the creditor;

(e)    the other Companies in the group are not able to repay to company A the amount of money borrowed from it during the administration; and

(f)    the dividend paid to the creditor is less than the dividend that would have been paid if company A had been wound up at the time the group was put into liquidation.

29    In respect of an order made under s 447A relieving the administrators of personal liability for some debts under s 443A, disadvantage or prejudice to creditors is an important discretionary consideration, but it is not a decisive factor. An inflexible approach (such as being satisfied that there must be absolutely no disadvantage or prejudice to creditors) may limit the potential for Pt 5.3A to achieve its stated objectives.

30    In any event, I observe that Stephen Robert Dixon in his affidavit sworn on 23 March 2016 deposed:

The Administrators believe that creditors are likely to receive a greater return under a DOCA rather than if the Companies are wound up, given that:

(a)    this would enable an orderly realisation of the plant and equipment, as the DOCA is likely to allow a period of time for the sale of the plant and equipment thereby avoiding the saturation of the market with over 200 items of similar nature;

(b)    a winding up would jeopardise receipt of payments in the immediate future and will have a major impact on debtor collections; and

(c)    a winding up would affect the ability to obtain future trading contributions.

31    Finally, I observe that the orders will grant liberty to any person who can demonstrate sufficient interest to modify or discharge the orders. That will enable any unsecured creditor who believes that he or she is disadvantaged by the orders to have them varied or discharged.

32    The orders sought relieving the administrators from personal liability are appropriate in the particular circumstances of this application.

Associate:

Dated:    6 April 2016

SCHEDULE OF PARTIES

ANNEXURE

Specialised Concrete Pumping Victoria Pty Ltd (Administrators Appointed)

(ACN 153 660 827)

TKS Titan Pty Ltd (Administrators Appointed) (ACN 126 037 401)

TKS Enterprises Pty Ltd (Administrators Appointed) (ACN 089 747 320)

QJV Pty Ltd (Administrators Appointed) (ACN 117 896 723)

Meales Concrete Pumping & Placing (Qld) Pty Ltd (Administrators Appointed)

(ACN 104 264 039)

Meales Concrete Pumping Pty Ltd (Administrators Appointed) (ACN 111 269 366)

Project Civil Pty Ltd (Administrators Appointed) (ACN 111 269 366)

Gladstone Concrete Pumping Pty Ltd (Administrators Appointed) (ACN 113 822 996)

Contractor Services (Queensland) Pty Ltd (Administrators Appointed) (ACN 165 755 644)

Pump Corp High Rise Pty Ltd (Administrators Appointed) (ACN 166 502 236)

Pump Corp Concrete Pumping Pty Ltd (Administrators Appointed) (ACN 169 010 664)

MCP (Qld) Pty Ltd (Administrators Appointed) (ACN 120 413 676)

Specialised Concrete Pumping Pty Ltd (Administrators Appointed) (ACN 009 330 303)

Meales Concrete Pumping (NT) Pty Ltd (Administrators Appointed) (ACN 156 308 717)