FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Pursuant to s 17F of the Insurance Act 1973 (Cth) (the Act), the scheme for the transfer of the insurance business of the Australian branch of the Applicant to the Australian branch of Compañía Española de Seguros y Reaseguros de Crédito y Caución Sociedad Anonima ARBN 610 834 556 (CYC) (the Scheme) in the form annexed to these orders and marked "A", be confirmed without modification.
2. The Scheme shall take effect from 1 November 2016.
3. The Applicant pay the Australian Prudential Regulation Authority's costs of the proceedings as agreed, or if agreement cannot be reached, as taxed.
4. The orders be entered forthwith.
5. Reasons to be published.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 On 28 October 2016, I made orders pursuant to s 17F of the Insurance Act 1973 (Cth) (the Act) confirming a scheme for the transfer of the totality of insurance business of the Australian branch of the applicant, Atradius Credit Insurance N.V. (Atradius), to the Australian branch of Compañía Española de Seguros y Reaseguros de Crédito y Caución S.A. (CYC). The following are my reasons therefor.
2 The applicant is incorporated in the Netherlands and is registered in Australia as a foreign company. It is authorised by APRA to carry on insurance business through a local branch operation in Australia. Since 2003, the applicant has underwritten trade credit insurance contracts in Australia comprising both direct and intermediated business.
3 CYC is incorporated in Spain and, like Atradius, is registered in Australia as a foreign company and is authorised by APRA to carry on insurance business through a local branch operation in Australia. At the time of the hearing, CYC had not carried on insurance business in Australia and did not have any Australian policyholders.
4 Both Atradius and CYC are wholly owned subsidiaries of Atradius Insurance Holding N.V., a company incorporated in the Netherlands for which the Spanish insurer, Grupo Catalana Occidente S.A., is the ultimate parent.
5 The proposed transfer of scheme arises with a view to giving effect in Australia to a corporate restructure by way of cross-border merger between Atradius and CYC, with CYC remaining as the surviving company. The rationale behind the merger, as described at  in the affidavit of Ms Sharon James, the Senior Controller at Atradius, affirmed 19 October 2016 (the third affidavit of Sharon James), is to achieve a more streamlined organisation of relevant European credit insurance carriers and reduce the number of regulatory environments in which they operate.
6 The applicant indicated its intention, upon confirmation and implementation of the scheme, to apply to APRA for revocation of its authorisation to carry on insurance business, with the effect that the applicant will cease to operate as a general insurer in Australia.
the legislative framework
7 Division 3A of Part III of the Act deals with the transfer and amalgamation of insurance business.
8 Section 17B(1) provides that no part of the insurance business of a general insurer may be transferred to another general insurer or amalgamated with the business of another general insurer except under a scheme confirmed by this Court. Section 17B(3) requires a scheme to set out the terms of the agreement or deed under which the proposed transfer or amalgamation is carried out; and the particulars of any other arrangements necessary to give effect to the scheme.
9 Section 17C sets out the procedural requirements in making an application of this kind as follows:
17C Steps to be taken before application for confirmation
(1) In this section:
affected policyholder means the holder of a policy affected by a scheme.
approved summary means a summary approved by APRA.
(2) An application for confirmation of a scheme may not be made unless:
(a) a copy of the scheme and any actuarial report on which the scheme is based have been given to APRA in accordance with the prudential standards; and
(b) notice of intention to make the application has been published by the applicant in accordance with the prudential standards; and
(c) an approved summary of the scheme has been given to every affected policyholder.
(3) Without limiting the provision that may be made by the prudential standards for the purposes of paragraph (2)(b), the notice referred to in that paragraph must include, in relation to each body corporate affected by the scheme, details of the place and time at which an affected policyholder may obtain a copy of the scheme.
(4) An affected policyholder is entitled, on the person’s request, to be provided by the company with one copy of the scheme free of charge.
(5) The Federal Court may dispense with the need for compliance with paragraph (2)(c) in relation to a particular scheme if it is satisfied that, because of the nature of the scheme or the circumstances attending its preparation, it is not necessary that the paragraph be complied with.
10 The prudential standards referred to in ss 17C(2)(a) and (b) are contained in Prudential Standard GPS 410, Transfer and Amalgamation of Insurance Business for General Insurers (GPS 410).
11 By interlocutory application dated 1 September 2016, the applicant sought dispensation from the need for full compliance with s 17C(2)(c) of the Act that requires an approved summary of the scheme to be given to every affected policyholder. On 7 September 2016, I made the orders with regard to dispensation sought by the applicant: see Atradius Credit Insurance N.V., in the matter of Atradius Credit Insurance N.V.  FCA 1107.
12 Section 17F deals with the Court’s discretion to confirm a scheme. It provides:
(1) The Federal Court may:
(a) confirm a scheme without modification; or
(b) confirm the scheme subject to such modifications as it thinks appropriate; or
(c) refuse to confirm the scheme.
(1A) In deciding whether to confirm a scheme (with or without modifications), the Federal Court must have regard to:
(a) the interests of the policyholders of a body corporate affected by the scheme; and
(b) if a report relevant to all or part of the scheme has been filed with the Court under section 62ZI—that report; and
(c) any other matter the Court considers relevant.
(2) The Federal Court may make such orders as it thinks fit in relation to reinsurance.
13 In exercising its discretion whether to confirm a scheme of this kind, the Court considers the interests of the policyholders of a body corporate affected by the scheme, as required by s 17F(1A)(a). The Court generally will look to the interests and protection to be afforded to the policyholders in both the transferor and transferee insurers and considers whether implementation of the scheme will materially detrimentally affect the relevant policyholders: see Re Westport Insurance Corporation (No 2)  FCA 1598; 181 FCR 530 at 535  per Lindgren J.
14 In this matter, however, the Court need only have regard to the transferring policyholders of Atradius in light of the fact that, at the time of the hearing, CYC had no policyholders in Australia.
15 As noted, this matter involves a transfer of scheme between the Australian branches of two foreign insurers. It is established that in these circumstances, the Court’s focus will be on the impact of the transfer on the Australian policyholders only. Lindgren J made helpful remarks in Westport 181 FCR at 532 - on the particular circumstances attaching to foreign insurers with branches in Australia and APRA’s supervision of their operations:
11. An Australian “branch” of a foreign general insurer is a notional entity representing the assets and liabilities of that company in Australia. The branch is not a legal entity. However, the Australian Prudential Regulation Authority (APRA) is concerned only with the Australian branch and with the protection of the holders of policies issued by the Australian branch. There is a general requirement under the Act (s 28) that general insurers maintain “in Australia” assets of a value equal to or greater than the value of their liabilities “in Australia”. Other provisions of the Act also express the test of ability to meet a general insurer’s liabilities in Australia from its asset in Australia: see ss 62M, 62ZZC, 62ZZE. The meaning of assets and liabilities in Australia is refined and elaborated upon in s 116A of the Act. Prudential Standards require foreign general insurers to maintain assets in Australia in excess of their liabilities in Australia in an amount at least equal to a variant of a certain Minimum Capital Requirement (MCR) (see Prudential Standard GPS 110 Capital Adequacy, esp para 11). Foreign general insurers must therefore maintain a separate balance sheet in respect of their Australian operations in order to depict the financial condition of the Australian branch.
12. This notional division between a foreign general insurer’s Australian operations and its other operations is reinforced by restrictions that APRA places on a foreign general insurer’s liberty to deal with its assets in Australia. It may not reduce its assets in Australia (save to the extent of repatriation, to a certain extent, of current year profits) without APRA’s approval.
16 While the reference to a Minimum Capital Requirement in the above extract should be substituted with Prescribed Capital Requirement in line with the current Prudential Standard GPS 110 Capital Adequacy (GPS 110), his Honour’s explanation of the way in which foreign general insurers are regulated by the prudential standards and the Act with a view to overseeing the movement of Australian assets and protecting Australian policyholders remains relevant: see, also, Municipal Mutual Insurance Ltd, in the matter of Municipal Mutual Insurance Ltd  FCA 378 at - per Emmett J; Copenhagen Reinsurance Company Ltd, in the matter of the Application of Copenhagen Reinsurance Company Ltd  FCA 23 at - per Edmonds J.
17 By these provisions, the Australian assets are sought to be ‘quarantined’ within Australia. It was put to me that the assessment of the potential risk and relevant advantage or disadvantage involved in a commercial transaction for the transfer of insurance business to the Australian policyholders necessarily only involved an examination of the quarantined assets and liabilities in Australia. I do not agree. If it be the case that the Australian policyholders were being transferred from a stable financially strong insurer with a book of predictable long term risks to an insurer with a weak capitalisation with a book of unpredictable catastrophe risks, the risk profile and risk environment of the transferred business would change. This is not to doubt the efficiency of the provisions of the Act to which Lindgren J referred. Rather, it is to recognise the ever-present risk of the unpredictability of human and commercial affairs, and the need for a principle of prudence. Thus, I required the provision of wider financial information from CYC to understand its financial position and risk profile in its business.
The Pre- and Post-Transfer Solvency Position of Atradius and CYC
18 It is necessary for the Court to examine the relevant actuarial evidence to be satisfied that the interests of the policyholders of Atradius will not be materially detrimentally affected by the implementation of the scheme: see Westport 181 FCR at 353 .
19 In this matter, the applicant appointed Mr Adam Searle of KMPG Actuarial Pty Ltd to prepare an actuarial report for the proposed transfer of scheme (the Actuarial Report). The Actuarial Report summarises the financial position of Atradius and CYC prior to the proposed transfer of scheme and after implementation of the scheme. It also provides an opinion of whether the interests of policyholders will be materially adversely affected by the scheme.
20 In the Actuarial Report, preliminary conclusions were based on figures pertaining to Atradius’ capital position sourced from APRA returns as at 31 December 2015. It should also be noted that the CYC figures take into account the information that CYC will receive a $6.5m capital injection prior to the proposed transfer in order to achieve the minimum prescribed capital required by GPS 110.
21 Later developments based on 30 June 2016 APRA returns were then considered in the Actuarial Report under the heading ‘Subsequent developments’. Based on those latter figures, the applicant prior to the transfer has net assets of $41.6 million and a capital base of $41.4 million. As CYC has no policyholders in Australia, its net assets and capital base reflect the circumstances where it has received the initial $6.5 million capital injection.
22 The comparative capital adequacy positions of the Australian branches of Atradius and CYC prior and subsequent to the proposed transfer are then set out as follows:
(a) Atradius’ pre-transfer capital adequacy multiple is 158% of PCA, with excess capital of $15.2 million
(b) CYC’s pre-transfer capital adequacy multiple is 130% of PCA, with excess capital of $1.5 million
(c) Atradius’ post-transfer capital adequacy multiple is 130% of PCA, with excess capital of $1.5 million
(d) CYC’s post-transfer capital adequacy multiple is 158% of PCA, with excess capital of $15.2 million
23 This makes plain that the effect of the transfer is to invert the financial position of the companies so that, post-transfer, CYC will have the same financial position and capital adequacy as the applicant did prior to the transfer of scheme: see p 11 of the Actuarial Report.
24 The Actuarial Report addresses the financial security of the pre-transfer Atradius policyholders that will become post-transfer CYC policyholders by looking to markers including capital adequacy and indicators of CYC’s ability to pay the proven claims of the transferring policyholders when they fall due.
25 As noted, no change will be experienced in terms of capital adequacy. The Actuarial Report notes that Atradius Credit Insurance N.V has provided capital support to Atradius and capital injections when required. The conclusions in the Actuarial report were based on the understanding that capital support would be provided to CYC on a similar basis if required.
26 In terms of the assessment of the transfer of the entire insurance liabilites of Atradius to CYC, the Actuarial Report notes that continuity will be provided by the proposed continuation of the same appointed actuary between Atradius and CYC and the fact that insurance liabilities will be valued on a constistent basis before and after the transfer.
27 The conclusion of the ‘Subsequent developments’ section of the Actuarial Report read:
Based on our high level examination of financial information as at 30 June 2016 we maintain our preliminary conclusion that the preposed scheme does not materially adversely impact the interests of policyholders of Atradius and CyC.
28 Such a conclusion clearly favours the Court exercising its discretion to implement the scheme.
Comparing the risk profiles of the parent companies
29 As I have already identified, at the confirmation hearing, I raised with the applicant and APRA the issue of understanding and comparing the risk profiles of the transferor and transferee companies beyond their Australian branches. In particular, I was interested in how the quarantined body of business in the Australian “branch” of the insurers stands in relation to the balance sheet and profile of all of the business of the foreign insurers.
30 Basic financial metrics directed to these questions allow the Court to gain some sense of whether the transferee has an entirely different cross-section of risk and profile of business to the transferor insurer.
31 To compare the risk profiles of foreign insurers, it is necessary for the Court to have some awareness of the overall risk profile of the parent company of each of the entities concerned. In certain circumstances, another risk factor, for example, could include a change in the regulatory environment in which the insurers operate.
32 Mr Cornelius Boertje, Senior Manager of Finance and Control Asia-Pacific at Atradius Credit Insurance N.V., gave evidence at the confirmation hearing that assisted the Court in its understanding of the risk profile of Atradius Credit Insurance N.V. and Compañia Española de Seguros y Reaseguros de Crédito y Caución, S.A.
33 During the course of giving evidence, one of the documents handed up by Mr Boertje was a detailed Solvency II balance sheet, together with a document containing financial projections of the combined merged entity for December 2016, 2017 and 2018 in terms of gross assets and liabilities, net assets, solvency ratio etc. These documents originally were produced with regard to the framework of prudential risk in the European Union, although it should be noted that as at the date of the hearing, they had not yet been submitted to the European regulators. The Solvency II balance sheet showed the total assets of the consolidated entity at €2,561,964,000 and total liabilities at €1,568,729,000. A further document handed up by Mr Boertje contained extracts of the balance sheets of the Dutch and Spanish parent companies, Atradius Credit Insurance N.V. and Compañia Española de Seguros y Reaseguros de Crédito y Caución, S.A., respectively, as at 30 June 2016. The total assets of Compañia Española de Seguros y Reaseguros de Crédito y Caución, S.A are recorded at approximately €820 million, its liabilities at approximately €460 million, with the net assets of the company at approximately €360 million. The total assets of Atradius Credit Insurance N.V. are approximately €1.7 billion, with total liabilities of appropriately €1.1 billion.
34 Mr Boertje also handed up a letter dated 24 August 2016 from Mr Christian van Lint, Chief Risk Officer of Atradius Credit Insurance N.V. and Mr Jörg Stensinski, Director of Group Risk Management at Atradius Credit Insurance N.V.. Mr van Lint and Mr Stensinski state that Atradius Credit Insurance N.V. and CYC manage risk in the same manner with risk identification, measurement, management and reporting, review and control being aligned throughout both entities. Their letter states that the risk profile of the merged entity will not change, noting the similar legal and regulatory environments that exist in the Netherlands and Spain as well as the fact that risk management processes will remain essentially unchanged.
35 Ms Neumueller, who represented APRA at the hearing, also noted that APRA has no concerns about the comparative risk profiles of business in the new arrangement as compared with the former arrangement and provided the following statement from APRA for the purposes of the transcript:
By letter, dated 27 July 2016, APRA inquired with the Spanish regulator of CYC as to the key risks and related supervision activities for CYC, among other issues. By phone call on 25 August 2016, a Spanish regulator confirmed that it has no issues on the establishment of a CYC branch in Australia. No material risks were identified for CYC and no barriers to transferring capital from CYC Spain to the Australian branch were identified.
36 This evidence provides further comfort to the Court that transferring policyholders are not entering an international risk or international regulatory environment of a different character from that to which they had previously been a part.
Claims management and policy terms and conditions
37 The affidavit of Mr Cornelius Boertje, affirmed 19 October 2016, contains information at  and  regarding claims handling and operations. Following the effective date of the scheme, the claims management policies, processes and staff of Atradius will be maintained by CYC. This encompasses aspects of management including IT systems, underwriting, policy administration and investment policies.
38 Further, all insurance contracts and assumed liabilities are to be transferred from the applicant to CYC, resulting in no changes to the policy terms and conditions of the transferring contracts: see Actuarial Report p 14.
39 Reinsurance is managed by a team of internal specialists which obtains reinsurance for the whole of the Atradius/CYC group. Outwards reinsurance contracts that run from 1 January 2016 to 31 December 2017 were executed between a panel of reinsurers and various entities in the Atradius Group, including the applicant and CYC. CYC signed endorsements to the reinsurance contracts, which had an endorsement effective date of 1 November 2016, and amended each reinsurance contract on the following terms:
It is hereby noted and agreed that following the merge of Atradius Credit Insurance NV and Compañia Española de Seguros y Reaseguros de Crédito y Caución, S.A. reference to Atradius Credit Insurance NV, Australia branch shall be replaced to read as Compañia Española de Seguros y Reaseguros de Crédito y Caución, Australia branch.
All other terms, clauses and conditions remain unchanged.
40 As noted in the Actuarial Report, as Atradius’ rights under the reinsurance contracts will transfer to CYC as a result of the scheme, reinsurance recoveries will be identical before and after the transfer, and the security afforded to policyholders will therefore remain unchanged.
Assessment of Evidence as to Effect on Policyholders
41 The Actuarial Report, in conjunction with the evidence provided at the confirmation hearing regarding the risk profiles of Atradius Credit Insurance N.V. and Compañia Española de Seguros y Reaseguros de Crédito y Caución, S.A., and APRA’s statement on the transcript satisfies me that the transferring policyholders of Atradius will experience no material detriment as a result of the transfer.
42 It is necessary to examine the extent to which the applicant complied with the procedural requirements that attend the making of an application of this kind.
APRA’s approval of the scheme summary and notice
43 Section 17C(2)(a) of the Act requires the applicant, before making an application for confirmation of scheme, to provide to APRA a copy of the scheme and any actuarial report on which it is based in accordance with the prudential standards (see GPS 410 at ).
44 I am satisfied from the evidence contained in the third affidavit of Sharon James at  that the applicant complied with this requirement by providing to APRA the document evidencing the scheme; a summary of the scheme document, the notice of scheme; the Actuarial Report and transfer deed pursuant to which the applicant and CYC propose to effect the scheme. In discussions with APRA, some modifications were made to the documents, and on 12 September 2016, an updated final version of the scheme document was provided to APRA. Further, on 15 September 2016, an updated final version of the Actuarial Report was provided to APRA: see third affidavit of Sharon James at  and .
The distribution of the approved summary
45 On 7 September 2016, I made the following orders with regard to the distribution of the approved summary of the Scheme:
2. The applicant, before the Scheme is released for public inspection under order 8 below, cause a copy of the summary of the Scheme approved by the Australian Prudential Regulation Authority (Approved Summary) to be sent:
(a) by email to each of the policyholders identified in the Current Policies list and the Cancelled Policies list of the Final Policyholder Register as described in the affidavits of Sharon James, sworn 1 and 6 September 2016 (the James affidavits). Where a policy of insurance has co-insureds, the email to the primary named insured being the policyholder identified in the Current Policies list must include, in the accompanying correspondence, details of the identity of the co-insureds under that policy, requesting the policyholder to provide a copy of the Approved Summary to each co-insured;
(b) by registered post to each of the policyholders identified in the Current Policies list and the Cancelled Policies list in the Final Policyholder Register for which Atradius receives notification of a failed email delivery;
(c) by email to each of the brokers listed in the Broker Register, as described in the James affidavits; and
(d) by registered post to all financiers to whom the proceeds of an Atradius insurance policy has been assigned as listed in the Assignees for Current Policies list in the Final Policyholder Register.
46 The third affidavit of Sharon James outlines the procedures undertaken by Ms James to bring the scheme to the attention of the policyholders in the Current Policies list of the Final Policyholder Register.
47 Following finalisation of the Final Policyholder Register, an e-mail was sent to each of these policyholders attaching a copy of the scheme summary. In accordance with Order 2(a), where a policy had co-insureds, the e-mail to the primary named insured was accompanied by a request to provide a copy of the scheme summary to each co-insured listed in an attached appendix containing details of the relevant co-insured including its policy number, customer name and country.
48 On 17 October, it was brought to Ms James’ attention that one of the 804 policyholders, namely policy number 943846 being the policy of the ‘BANK OF TOKYO MITSUBISHI-UFJ, LTD NEWYORK BRANCH’, had been overlooked in the sending out of the scheme summary. Ms James made contact with that policyholder, directing it to Atradius’ webpage which contained links facilitating access to the relevant scheme documents.
49 As is to be expected, some of the e-mails on the Policyholder List are no longer up-to-date. The third affidavit of Sharon James notes at - that 51 e-mails from policyholders on the Current Policies List of the Final Policyholder Register bounced or were returned with out-of-office notifications. In these cases, Ms James caused hard-copies of the scheme along with a covering letter introducing the scheme to be sent to those policyholders by registered mail.
50 While order 2(a) made on 7 September 2016 envisaged e-mailing each of the policyholders identified in the Cancelled Policies list of the Final Policyholder Register, the third affidavit of Sharon James affirms that only the postal addresses were available for this group of policyholders. As a result, Ms James caused hard-copies of the scheme and a covering letter to be sent to the 192 entries contained in the Cancelled Policies list.
51 Twenty-five of those envelopes were returned, and through a process of internet searches on relevant company websites, Ms James sent the required material by e-mail to those 14 policyholders on the Cancelled Policies list for whom alternative details had been located. Of the remaining eleven policyholders, seven had ceased trading or were insolvent.
52 On 17 October 2016, Ms James caused ASIC extracts to be obtained for these seven policyholders and, on 18 October 2016, caused a copy of the Approved Summary and covering letter to be sent to the ASIC registered addresses of the policyholders. These policyholders were directed to the Atradius website for access to the relevant documents.
53 For the other policyholders on the Cancelled Policies list in relation to which searches for alternative contact details were undertaken, four policyholders had not been re-sent a copy of the approved scheme. Two of those policyholders’ businesses had come under the control of other entities, which were existing policyholders already in receipt of a copy of the required documents. The remaining two policyholders, one of whom had been restructured and was trading under another name and another for whom an ASIC registered address could be found, were sent the relevant documents on 18 October 2016 and were further directed to the website.
54 The third affidavit of Sharon James affirms that all of the 48 brokers listed in the Broker Register were e-mailed, with none of the e-mails sent recorded as bouncing.
55 Upon compiling a list of the Assignees for Current Policyholders in the Final Policyholder Register, i.e. the financiers, and removing duplicate addresses, Ms James caused 32 envelopes to be sent containing the relevant documents, 29 of which were sent by registered post through Australia Post and the remaining three sent by international courier through Toll Priority. Two envelopes sent by international courier were pending delivery so that Ms James obtained the e-mail addresses of these financiers to send them a copy of the relevant documents.
Compliance with Order 2 made on 7 September 2016
56 The evidence contained in the third affidavit of Ms James therefore satisfies me that the applicant took the relevant steps to comply with Orders 2(a)-(d) regarding the distribution of the scheme documents to the relevant policyholders. Where certain policyholders could not be reached from the details on the Final Policyholder Register, Ms James applied a systematic approach to ascertaining current details for those policyholders.
Online Publication of the scheme
57 A further order made on 7 September 2016 following the dispensation hearing was that the applicant cause a page to be created on its website (accessible at www.atradius.com.au) containing a statement indicating that an application has been made to the Court for the approval of the scheme and a link to the scheme, the scheme notice, the approved summary and the Actuarial Report.
58 The third affidavit of Sharon James affirms that to the best of Ms James’ knowledge and belief, the required documents were available for public viewing and downloading from the website from 16 September 2016. Ms James affirmed that the each of the documents would remain available for public viewing and downloading until 31 October 2016. Annexed to Ms James’ affidavit was a screenshot of the home page and landing page at which the documents were accessible. The documents were also made available on IGrain’s online platform from 23 September 2016.
59 Serv@Net is the online portal of Atradius. At the dispensation hearing, I made an order to the effect that the notice of intention, the scheme, the approved summary and the Actuarial Report be made accessible on this online platform. The third affidavit of Sharon James affirms that the required documents were available for viewing and downloading from the login page to the platform. The reason that these were not on the platform themselves was that, if they were, they would have been available to worldwide users of the platform and thereby interfered with the legal notification processes of other jurisdictions. It made good sense therefore to publish on the login page to the platform, thereby making viewing of the documents available to all local users. The third affidavit of Sharon James contained a screenshot of the login page to the platform.
Publication of the Approved Notice
60 Order 6 of my orders following the dispensation hearing required publication of the approved notice in the Government Gazette, The Australian as well as a range of metropolitan newspapers.
61 I am satisfied that this order was complied with as evidenced by the tear sheets of the publication in those newspapers on 16 September 2016: see third affidavit of Sharon James at -.
Public inspection period and enquiries
62 Order 7 at the dispensation hearing was made in the following terms:
7. The applicant make a copy of the Scheme, Approved Summary and Actuarial Report available for public inspection from 9.00am to 5.00pm (local time) every day, except weekends and public holidays, for a period of at least 15 days at locations approved by APRA in each State and Territory in which an affected policyholder resides
63 The public inspections were to be hosted at the Sydney and Melbourne offices of the applicant and the offices of various law firms in the other Australian state capitals. In the third affidavit of Sharon James, Ms James affirmed that following her enquiries, she received information that no one attended any of the inspection sites to request access to documentation on the Scheme.
64 From the period commencing 14 September 2016, the applicant received a number of queries canvassing issues such as the impact of the Scheme on the policyholder, clarification of the Scheme, the rationale of the merger between Atradius and CYC and questions pertaining to whether any further action was required on the part of the relevant policyholders. The third affidavit of Sharon James contains as annexures the log of enquires received (as at the date of the affidavit 18 enquires had been logged) coupled with the e-mail correspondence relating to those enquiries.
Approved Summary to New Policyholders
65 Order 9 arising from the dispensation hearing read:
9. The applicant provide a copy of the Approved Summary to proposed policyholders with any offers for new business, or offers of renewal which are made from the date of the dispensation hearing until the transfer effective date (as defined in the Scheme)
66 The third affidavit of Sharon James affirms that Ms James e-mailed new business underwriters and account managers at Atradius, advising them of the requirement to provide a copy of the Summary with all new business and renewal offers up until the effective date of the scheme and noting that this was ‘imperative’ in order to comply with the Court’s orders.
67 At the hearing, I asked that Ms James be called to explain in some further detail the quantity of new business offers made since 14 September 2016, and whether the underwriters and account managers at Atradius had complied with the instructions of Ms James.
68 Ms James explained that approximately 200 offers of new business had been made, and that her instructions of the underwriters and account managers was to blind carbon copy her into e-mails sent by them pertaining to new business.
69 Following the confirmation hearing, Ms James e-mailed all the Australian account managers to confirm that the scheme summary had in fact been distributed by them in accordance with her instructions.
70 The outcome of Ms James’ inquires was contained in an affidavit affirmed 27 October 2016. There were eight offers of new business and eight offers of renewal in respect of which Ms James was not bcc’d in by the relevant business underwriter or account manager, but for which copies of the approved summary were attached to the offers. In addition, there were four new business offers in respect of which Ms James was not bcc’d in by the relevant business underwriter or account manager, and for which the Approved Summary was not attached. The approved summary was subsequently e-mailed to the prospective policyholders on either 25 October 2016 or 27 October 2016. A further 28 renewals had been sent, where Ms James was not bcc’d in and for which a copy of the Approved Summary was not attached. These policyholders had in fact received a copy of the Approved Summary as part of the e-mails sent to the policyholders on the Current Policies list of the Final Policyholder Registry.
71 From this evidence, I am satisfied that the Approved Summary reached all but four prospective policyholders, who were swiftly provided with the relevant documents following the confirmation hearing.
72 Overall, Atradius was diligent in fulfilling the procedural requirements attached to the application and I am satisfied that the relevant steps were taken with regard to bringing the scheme to the attention of the identified policyholders.
73 On the basis of the actuarial evidence provided by the applicant, the evidence of compliance with the procedural requirements attending to the application and the evidence of the financial position of the entities in question, it was appropriate to make orders confirming the scheme.