FEDERAL COURT OF AUSTRALIA

Car Buyers Australia Pty Limited v Australian Securities and Investments Commission, in the matter of Car Buyers Australia Pty Limited [2020] FCA 599

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (Act), the time specified by:

(a)    cl 6(1)(f) of the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (ASIC Instrument) for the plaintiff to lodge a Form 389 – Opt in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations (Form 389) for the financial year ended 30 September 2018; and

(b)    cll 6(1)(g), (h) and (i) of the ASIC Instrument for the directors of the plaintiff to make certain statements and pass certain resolutions required to obtain the benefit of the ASIC Instrument,

be extended to 21 May 2020.

2.    Pursuant to s 1322(4)(c) of the Act, the plaintiff and its current and former directors, secretaries and officers are relieved from any civil liability in respect of any failure to:

(a)    lodge a Form 389 with the Australian Securities and Investments Commission (ASIC) within four months of the end of the plaintiff’s financial year ended 30 September 2018;

(b)    pass resolutions of the directors of the plaintiff consistent with the requirements under cll 6(1)(g), (h) and (i) of the ASIC Instrument before 30 September 2018;

(c)    lodge a Form 388 Copy of financial statements and reports for the financial year ended 30 September 2018 with ASIC; and

(d)    comply with the notice issued by ASIC under s 1274(11) of the Act dated 4 December 2019.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The plaintiff (Car Buyers) made an ex parte application for relief under ss 1322(4)(c) and (d) of the Corporations Act 2001 (Cth) (Act) arising out of failures to satisfy the requirements of the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (ASIC Instrument).

2    Sections 1322(4)(c) and (d) provides:

(4)    Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

…

(c)    an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);

(d)    an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

3    Car Buyers served the originating process and supporting affidavits on the Australian Securities and Investments Commission (ASIC). On the basis of that information, ASIC neither supported nor opposed the application. Subsequently, Car Buyers served on ASIC additional affidavit evidence in support of its application. ASIC’s position did not change.

4    Car Buyers’ evidence comprised the following affidavits:

(1)    two affidavits of Matthew Sinnamon, Group General Counsel and Company Secretary of Eclipx and a director and company secretary of Car Buyers between 19 December 2017 and 31 July 2019;

(2)    affidavit of Daniel Werzberger, a director of Car Buyers between 18 July 2012 and 31 July 2019;

(3)    two affidavits of Joshua Temkin, Group Legal Counsel of Eclipx and the in-house lawyer responsible for instructing the external lawyers for Eclipx and Car Buyers, Herbert Smith Freehills (HSF), in relation to Car Buyers’ attempts to bring itself within the ASIC Instrument in 2018;

(4)    affidavit of William Hanna, solicitor, affirmed 23 April 2020, annexing the financial report for the year ended 30 September 2018 filed by Eclipse with ASIC on 14 November 2018; and

(5)    affidavit of Phillip McMahon, partner of HSF, affirmed 5 May 2020.

Background to application for relief

5    Car Buyers is a large proprietary company limited by shares. From December 2017 to July 2019, Car Buyers was wholly-owned by Leasing Finance (Australia) Pty Limited (Leasing Finance), which itself was a wholly-owned subsidiary of Eclipx Group Limited (Eclipx).

6    In about September 2009, Eclipx had entered into a deed of cross-guarantee with a number of subsidiaries in its corporate group (deed of cross-guarantee).

7    In the lead-up to the end of their financial year on 30 September 2018 (FY2018), Eclipx and Car Buyers undertook various steps designed to permit Car Buyers to take the benefit of the ASIC Instrument.

8    In late July 2018, Eclipx engaged HSF to prepare the necessary documentation to facilitate the assumption of Car Buyers (and other entities) to the deed of cross-guarantee. HSF duly prepared an “assumption deed,” whereby Car Buyers would be joined as a party to the deed of cross-guarantee and each other party to the deed of cross-guarantee would agree to assume liability and be bound by the deed of cross-guarantee as if Car Buyers had been a party to that deed from its date of execution.

9    Car Buyers noted that the ASIC Instrument expressly contemplates this mechanism being used and the definition of “deed of cross guarantee” in s 4 of the ASIC Instrument includes a deed of cross guarantee “as varied by … an assumption deed”.

10    On 15 August 2018, the Board of Eclipx resolved that the company and its subsidiaries (including Car Buyers) should execute the assumption deed. The directors of Car Buyers who attended that meeting were Messrs Sinnamon, McLennan and Klotz. Car Buyers noted that, insofar as the resolution referred to actions by Eclipx’s subsidiaries, that is explained by the fact that each of its subsidiary’s constitution permitted its directors to act in the best interests of Eclipx, consistently with s 187 of the Act.

11    On 6 September 2018, Car Buyers, Eclipx and others executed the assumption deed, the effect of which was that Car Buyers was thereafter deemed to be a party to the deed of cross-guarantee.

12    On 28 September 2018, HSF confirmed to Mr Temkin that the assumption deed had been lodged with ASIC as required by cl 6(1)(m) of the ASIC Instrument.

13    Car Buyers then proceeded on the basis that the steps it had taken in 2018 were sufficient to bring it within the terms of the ASIC Instrument. Had that been correct, Car Buyers would have been relieved of certain financial reporting obligations imposed by Pt 2M.3 of the Act. For that reason, Car Buyers did not file any financial report with ASIC for FY2018. Instead, on 14 November 2018, Eclipx lodged its financial report for FY2018 with ASIC. That report included consolidated financials, including for the business of Car Buyers, as well as details of the deed of cross-guarantee (in accordance with cl 6(1)(r) and cl 6(1)(s) of the ASIC Instrument).

14    By letter dated 3 October 2019, ASIC wrote to Car Buyers about lodgement of its 2018 financial statements and reports and noted that, according to its records those documents together with a Form 388 Copy of financial statements and reports (Form 388) had not been lodged. Unfortunately, this letter seems not to have been received by Mr Temkin.

15    In December 2019, Car Buyers received a notice from ASIC notifying a failure by Car Buyers to file financial reports for FY2018 (s 1274 notice). That set in train inquiries which revealed that Car Buyers’ efforts to satisfy the requirements of the ASIC Instrument in 2018 were deficient in two respects:

(1)    Car Buyers had failed to lodge a Form 389 with ASIC as required by cl 6(1)(f) of the Instrument; and

(2)    Car Buyers’ Board had failed before the end of FY2018 to make certain resolutions and statements required by cll 6(1)(g)(i), (h)(i) and (i) of the ASIC Instrument.

16    On 28 February 2020, the Board of Car Buyers passed a circular resolution in which it:

(a)    made the cl 6(1)(g)(i) resolution and the cl 6(1)(i) resolution for FY2018;

(b)    authorised its directors to make the cl 6(1)(h)(i) statement for FY2018;

(c)    authorised Eclipx to bring this proceeding.

17    The affidavit evidence explains that these deficiencies were overlooked because Car Buyers was not advised by its external or internal lawyers of the need to take the necessary steps to comply with the ASIC Instrument. There is no evidence to suggest that Car Buyers deliberately failed to obtain relevant advice. Rather, it appears that the relevant persons within Car Buyers believed that they had sought and obtained all necessary advice to ensure that they could take the benefit of the ASIC Instrument. Through oversight, no one checked whether further steps were necessary so that Car Buyers was able to take advantage of the ASIC Instrument.

18    On this basis, I accept that Car Buyers’ failure to comply with cll 6(1)(f), (g)(i), (h) and (i) of the ASIC Instrument was honest and inadvertent.

19    I am also satisfied that, had the directors of Car Buyers or Mr Temkin appreciated the need for further steps to be taken in order for Car Buyers to gain the benefit of the ASIC Instrument, each of those steps would have been promptly taken.

Legal framework

Part 2M.3 of the Act and the Instrument

20    Part 2M.3 of the Act imposes obligations on corporations with respect to financial reporting. Relevantly, for present purposes, those obligations include that:

(1)    a large proprietary company must prepare a financial report and directors’ report for each financial year, and must lodge such report with ASIC;

(2)    a company must generally have its financial reports for each financial year audited in accordance with Div 3 of Pt 2M.3 of the Act and obtain an auditor’s report; and

(3)    a company must provide reports to its members in accordance with s 314 and s 315 of the Act.

21    The Instrument is made under s 341(1) of the Act. Its purpose is to relieve a wholly owned company from its obligations under Pt 2M.3.

22    The rationale for the Instrument is explained in ASIC’s Explanatory Statement for the Instrument (Explanatory Statement):

Part 2M.3 of the Corporations Act requires companies (except most small proprietary companies), disclosing entities and registered managed investment schemes (registered schemes) to prepare and lodge a financial report, directors’ report and auditor’s report for a financial year.

The costs of preparing a financial report and having it audited are significant. Where entities are wholly owned within a group of companies, and there are deeds of cross-guarantee within the group, the information needs of creditors and other stakeholders may be sufficiently met by the consolidated financial statements for the group, rather than individual financial statements for each of the wholly owned entities.

23    The Explanatory Statement summarises the operation of the Instrument, relevantly, as follows:

A wholly-owned company is relieved of its obligations under Part 2M.3 of the Corporations Act provided it enters into a deed of cross-guarantee with its holding entity and other wholly owned entities of the group, and meets certain other conditions. Entities that are not wholly owned may be a party to the deed but are not relieved from the requirements in Part 2M.3.

The deed of cross-guarantee is an instrument under which each entity enters into a covenant with the trustee to guarantee payment in full of any debt to creditors of each party to the deed by each other entity.

The deed of cross-guarantee is required as a protection for creditors of the company that will not have access to the company’s financial report in order to assess its financial position. …

24    As Car Buyers submitted, the principal requirement of the ASIC Instrument is that the company seeking to be relieved of the reporting obligations in Pt 2M.3 must be a party to a deed of cross-guarantee, the rationale being that such a deed protects creditors and other stakeholders from any disadvantage that may arise from an inability to access a company’s financial reports. That obligation is imposed by cl 5 of the ASIC Instrument.

25    Clause 6 of the Instrument then imposes additional requirements that must be met in order for a company to bring itself within the operation of the Instrument. For present purposes, four of those requirements are relevant:

(1)    Clause 6(1)(f) requires that, where the company did not rely on the ASIC Instrument (or the equivalent earlier ASIC class order) in respect of the immediately preceding financial year, or its holding entity was not the same as in the preceding financial year, the company must lodge a Form 389 with ASIC by the relevant time notifying ASIC that it was taking advantage of the ASIC Instrument and identifying its holding entity.

(2)    Clause 6(1)(g)(i) requires that, before the end of the first financial year in respect of which the company takes advantage of the ASIC Instrument (first reliance year), the directors must resolve that the company should obtain the benefit of the instrument (and that resolution must not have been revoked).

(3)    Clause 6(1)(h)(i) relevantly requires that, before the end of the first reliance year, the directors of the company made a statement, signed by at least one director, stating that, in the directors’ opinion, immediately before the execution of the cross-guarantee or assumption deed by the company there were reasonable grounds to believe that the company would be able to pay its debts as and when they became due and payable.

(4)    Clause 6(1)(i) requires that “at or about the end of the relevant financial year”, the directors of the company considered the advantages and disadvantages associated with the company remaining a party to the deed of cross-guarantee and taking advantage of the relief afforded by the ASIC Instrument and relevantly resolved to continue to remain a party to the deed of cross-guarantee.

Section 1322(4): Relevant principles

26    Section 1322(4) of the Act provides a wide power to validate non-compliance by companies in certain circumstances. It reflects a “broad legislative policy that the law should not inflict unnecessary liability or inconvenience or invalidate transactions because of non-compliance with its requirements where such non-compliance is the product of honest error or inadvertence and where the court can avoid its effects without prejudice to third parties or to the public interest in compliance with the law”: Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418 at [29] (French J); Re Solco Ltd [2015] FCA 635; (2015) 106 ACSR 591 at [23] (McKerracher J); Re Murray River Organics Ltd [2019] FCA 931; (2019) 138 ACSR 365 (Murray River Organics) at [26] (Anderson J).

27    The powers in s 1322(4)(c) and (d) may only be exercised in the circumstances described in ss 1322(6)(b) and (c):

(6)    The Court must not make an order under this section unless it is satisfied:

…

(b)    in the case of an order referred to in paragraph (4)(c)—that the person subject to the civil liability concerned acted honestly; and

(c)    in every case—that no substantial injustice has been or is likely to be caused to any person.

28    In Re Murray River Organics at [28]-[30], in dealing with factual circumstances closely analogous to this application, Anderson J set out the relevant principles governing the exercise of the Court’s powers under ss 1322(4)(c) and (6)(b):

[28]    Section 1322(4)(c) permits the Court to make an order relieving a person from civil liability for a broad range of contraventions or failures, subject to the conditions in s 1322(6) that the person concerned acted honestly and that no substantial injustice has been or is likely to be caused to any person: Australian Securities and Investments Commission v Lewski (2018) 362 ALR 286; 132 ACSR 403; [2018] HCA 63 at [60]. The word “contravention” is to be construed broadly: Re Lock (as former joint and several administrators of Cedenco JV Australia Pty Ltd (in liq)) (No 2) [2019] FCA 93 (Re Lock) at [86], quoting [Weinstock v Beck (2013) 251 CLR 396] at [41]–[42].

[29]    An order may be made under this provision to relieve a company, and its current and former directors and officers, from any civil liability in respect of any contravention by reason of a failure, inter alia, to lodge forms with ASIC: see, for example, Re Phylogica Ltd (2004) 52 ACSR 159; [2004] FCA 1768.

[30]    No order may be made under s 1322(4)(c) unless the relevant person “acted honestly”: s 1322(6)(b). When determining whether someone has acted honestly for these purposes, the court looks to an absence of evidence of dishonesty: Re G8 Communications Ltd (2016) 112 ACSR 22; [2016] FCA 297 at [35]; Re iCandy Interactive Ltd (2018) 125 ACSR 369; [2018] FCA 533 (Re iCandy) at [54]. The court will also take into account whether the applicant has taken prompt action to remedy the error: Re iCandy at [54], citing Re Sprint Energy Ltd [2012] FCA 1354 (Re Sprint Energy) at [44]; Re Golden Gate Petroleum Ltd (2010) 77 ACSR 17; [2010] FCA 40 (Re Golden Gate) at [48]. Additionally, the concept of “acting honestly” can embrace:

(a)    active but incorrect consideration of an issue: Re Golden Gate at [47];

(b)    inadvertence and oversight: Re 5G Networks Ltd [2019] FCA 698 at [13]; and

(c)    a failure to turn one’s mind to the relevant issue or to give any consideration to the issue at all: Re Sprint Energy at [43], citing Re Golden Gate at [47].

29    His Honour ultimately made orders under s 1322(4)(c) relieving a company and its current and former directors and officers from civil liability for failure:

 (a)    to lodge a Form 389 within the time required by the ASIC Instrument;

(b)    to comply with certain reporting requirements under Pt 2M.3 of the Act; and

(c)    to comply with a notice issued by ASIC under s 1274(11) of the Act.

The relief granted by Anderson J under s 1322(4)(c) in that case was, in substance, identical to the relief sought in this proceeding.

30    As to s 1322(4)(d), the power conferred by that provision is sufficiently broad to empower the Court to extend the period of time in which a company is required to do a thing required by the ASIC Instrument. Thus, in Murray River Organics, Anderson J made an order under s 1322(4)(d) extending the time for a company to lodge a Form 389 under the ASIC Instrument.

31    Section 1322(6)(c) imposes a requirement that, before the Court exercises the power in either s 1322(4)(c) or s 1322(4)(d), the Court must be satisfied that “no substantial injustice has been or is likely to be caused to any person”. This requires the Court to consider the effect of the irregularity sought to be cured, and the effect of the proposed order: An v Joo [2019] NSWSC 39 at [34]. For there to be “substantial injustice”, there must be a real and not insubstantial or theoretical prejudice: Elderslie Finance Corp Ltd v Australian Securities Commission [1993] WASC 465, (1993) 11 ACSR 157 at 160. Whether there is real injustice, the Court must weigh any prejudice that would be suffered if the order is made against the prejudice suffered by the corporation and its directors and officers if an order was not made: Gangemi v Osborne [2009] VSCA 297 at [62].

32    Finally, even if the above preconditions in s 1322(4) and s 1322(6) are satisfied, the Court has a residual discretion to refuse to grant relief under s 1322(4): Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd (No 2) [2018] WASC 357 at [35]. The public interest is a relevant consideration in the exercise of that discretion: Lock, Re Cedenco JV Australia Pty Ltd (in liq) (No 2) [2019] FCA 93 at [98]–[99].

Consideration

Extension of time relief: s 1322(4)(d)

33    I accept that the Court should extend the time for Car Buyers to comply with cll 6(1)(f), (g)(i), (h)(i) and (i) of the ASIC Instrument for the following reasons:

(1)    The failure by Car Buyers to comply with those provisions was inadvertent and unintentional. Mr Temkin, Mr Sinnamon, Mr Werzberger and Mr McMahon all gave evidence in support of that conclusion. The conclusion is corroborated by the steps Car Buyers in fact took to comply with the ASIC Instrument, including, most significantly, entering into the assumption deed.

(2)    Car Buyers’ inadvertence to the requirements of cll 6(1)(f), (g)(i), (h)(i) and (i) of the ASIC Instrument was not the product of any imprudence or carelessness on the part of its directors. Eclipx commenced the process of trying to comply with the ASIC Instrument over two months before the end of its financial year and engaged external lawyers to assist it to that end. This is not an instance of a company remaining wilfully ignorant of the law.

(3)    The steps Eclipx and Car Buyers took to comply with the ASIC Instrument in FY2018 were likely sufficient, in substance, for the ASIC Instrument to achieve its object. By the end of FY2018, Car Buyers was a party to the deed of cross-guarantee, which gave its creditors protection of exactly the kind that was intended by ASIC in making the ASIC Instrument. Moreover, Eclipx filed consolidated accounts with ASIC in November 2018 which included the business of Car Buyers and disclosed the fact that Car Buyers was party to a deed of cross-guarantee with Eclipx (and others). I accept that there is no real prospect that any creditor or outsider was left in a position of uncertainty regarding the affairs of Car Buyers, despite its failure to comply with cll 6(1)(f), (g)(i), (h)(i) and (i) of the ASIC Instrument.

(4)    When Eclipx and Car Buyers discovered their error in December 2019, they moved to remedy it, including by notifying ASIC that these proceedings would be brought. This proceeding was subsequently commenced in early March 2019.

(5)    With respect to the failures to comply with cll 6(1)(g)(i), (h)(i) and (i) of the ASIC Instrument, the Board of Car Buyers has already passed a resolution making the necessary resolutions and authorising the relevant statement in respect of FY2018. The Board of Car Buyers has therefore satisfied itself that the resolutions and statements required by cll 6(1)(g)(i), (h)(i) and (i) of the ASIC Instrument can properly be made in respect of FY2018.

(6)    There is no evidence that any “substantial injustice” will be caused to any person by the making of the order. Mr Sinnamon has given evidence that he is not aware of any prejudice that would be caused, or that any person or entity would be adversely affected, if the Court granted the relief sought.

(7)    ASIC was given notice of the application and did not oppose the relief sought.

(8)    On the available evidence, there are no other discretionary factors that suggest that the Court should withhold relief.

Relief from civil liability: s 1322(4)(c)

34    Car Buyers submitted that the relevant parties acted honestly in that they genuinely believed that Car Buyers had satisfied all of the requirements of the Instrument. That being so, and having regard to the matters referred to in [(1)]-[(5)] above, it is appropriate that they be relieved of any liability for civil liability by reason of the failures to comply with cll 6(1)(f), (g)(i), (h)(i) and (i) of the ASIC Instrument in a timely manner.

35    On this basis, Car Buyers sought the following relief:

2.    Pursuant to section 1322(4)(c) of the Act, Car Buyers and its current and former directors, secretaries and officers are relieved from any civil liability in respect of any failure to:

a.    lodge a Form 389 — Opt in/change of holding entity notice by wholly-owned company relieved from financial reporting obligations with the Australian Securities and Investments Commission within four months of the end of the company's financial year ending 30 September 2018;

b.    pass resolutions of the directors of Car Buyers consistent with the requirements under sections 6(1)(g), (h) and (i) of the ASIC Instrument before 30 September 2018;

c.    comply with section 292 of the Act;

d.    comply with section 301(1) of the Act;

e.    comply with section 314(1) of the Act;

f.    comply with section 319(1) of the Act;

g.    lodge a Form 388 Copy of financial statements and reports for the financial year ending September 2018 with the Australian Securities and Investments Commission; and / or

h.    comply with the notice issued by the Australian Securities and Investments Commission under s 1274(11) of the Act dated 4 December 2019.

36    Car Buyers candidly acknowledged that it has not, on this application, set out to prove that, leaving aside cll 6(1)(f), (g)(i), (h)(i) and (i), Car Buyers otherwise satisfied each and every requirement of cl 6(1) of the ASIC Instrument in respect of FY2018. The reason Car Buyers has not sought to prove those matters is that some of them could only be proved by adducing evidence from third parties that would be difficult and costly to obtain.

37    Car Buyers observed that the Court may be concerned that prayers 2(c)-(f) are framed too broadly because their effect would be to immunise Car Buyers and its current and former directors, secretaries and officers from civil liability arising from matters unrelated to Car Buyers’ failure to comply with cll 6(1)(f), (g)(i), (h)(i) and (i) of the ASIC Instrument in a timely manner. In other words, the Court may apprehend that there is at least a possibility that Car Buyers may have failed to bring itself within the ASIC Instrument on some other basis for which it ought not be immunised under s 1322(4)(c).

38    Car Buyers’ primary submission is that the Court ought not be troubled by that hypothetical possibility. It argued that, for the reasons advanced in [33] above, the Court can be satisfied that Car Buyers discharged the fundamental obligations of the ASIC Instrument in respect of FY2018. While the possibility of some further technical non-compliance cannot be completely excluded on the evidence before the Court, the Court can nevertheless be satisfied that Car Buyers (and its directors, etc.) ought not face a civil liability for any technical non-compliance with the ASIC Instrument having regard to the fact that:

(1)    the company was a party to the assumption deed (and corresponding deed of cross-guarantee) within the time required by the ASIC Instrument, which afforded creditors the protection which the ASIC Instrument was intended to secure; and

(2)    Eclipx filed consolidated financials with ASIC in November 2018, which included the business of Car Buyers and details of the deed of cross-guarantee, so that creditors and outsiders could relevantly ascertain the financial position of Car Buyers at all relevant times.

39    Car Buyers submitted in the alternative that the Court should grant the s 1322(4)(c) relief in prayer 2(a), (b), (g) and (h).

40    Based on the factors set out in [33] above, I am satisfied that it is appropriate to grant the relief sought by Car Buyers in the alternative.

Conclusion

41    I will make orders accordingly.

Associate:

Dated:    14 May 2020