Federal Court of Australia
Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 4) [2020] FCA 1252
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The second respondent provide the applicants with ‘administrator access’ to the MT4 and MT5 Platforms forthwith.
2. The second respondent be restrained, until further order, from impeding, varying or revoking the ‘administrator access’ provided pursuant to Order 1.
3. The second respondent’s Interlocutory Process filed 7 August 2020 is adjourned indefinitely with the second respondent having leave to seek to relist it.
4. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
STEWART J:
1 Previous reasons for judgment in this matter document the relevant history: Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 1) [2020] FCA 1110; Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 1111; and Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 3) [2020] FCA 1109. These reasons assume familiarity with those reasons and adopt the same abbreviations.
2 There are two applications that come before me urgently in the duty list.
3 The first is brought by the first applicant, the administrators of Union Standard International Group Pty Ltd. They seek an order requiring the second respondent to provide them with ‘administrator access’ to the MT4 and MT5 platforms forthwith, and an order restraining the second respondent from impeding, varying or revoking that administrator access.
4 The second respondent, USG Holdings, has filed an interlocutory process seeking an order restraining the administrators from using ‘administrator access’ to delete or alter any of the information stored on the platforms or the servers, and an order requiring the administrators to remove the trading restrictions they have imposed on the platforms or servers. USG Holdings also seeks an order that the administrators be restrained from closing out the contracts of clients other than clients of the company in administration.
5 In order 2 of the orders made on 31 July 2020, I noted the undertaking by the administrators that they will not use administrator access to change, delete or otherwise alter or use any of the records, information or data of any company other than the second applicant, and I ordered that:
[B]y no later than 2:00pm AEST on 1 August 2020, the second respondent is to provide (and to cause any entities controlled by it to provide) to the first applicant such passwords, digital keys or other information as would provide immediate ‘administrator access’ to the first applicant to the MetaQuotes MT4 and MT5 trading platforms (Platforms) and the Servers on which the platforms are hosted (Servers).
6 Administrator access was provided during the course of 1 August 2020 and the administrators then enjoyed access to the platforms for a period of time. However, on about 5 August the second respondent took the view that the administrators had acted in breach of their undertaking by closing out certain forms of trades for clients of companies in the group other than the company under administration, and on that basis then exercised self-help by denying or revoking the administrators the administrator access that they had been given. It is not up to the second respondent to take matters into its own hands. If the second respondent took the view that the administrators were in breach of their undertakings, the remedy was to come back to court, not to take it upon itself to in effect reverse the order that I made on 31 July.
7 Accordingly, I have little hesitation in restoring that order, and ordering the second respondent to immediately again provide the administrators with administrator access to the MT4 and MT5 platforms, noting the continuation of the undertaking by the administrators in the terms in which it was given on 31 July. Indeed, it justifies the second order sought by the administrators, which is an injunction restraining the second respondent from impeding, varying or revoking the administrator access which they are to restore.
8 I should note that I am satisfied that there is a very real risk to the company if administrator access is not restored, and, therefore, it must be restored.
9 That will deal with the orders that the administrators seek today.
10 Accordingly, I will make the orders set out in the administrators’ short minutes of order. I will reserve the costs, because the question of costs may be affected by the question of whether the undertakings were breached or not, which is the subject of USG Holdings’ application.
11 In relation to USG Holdings’ application, the first relief to consider is the order that the administrators forthwith remove the restraints imposed by them on trading by clients of entities other than the clients of the company in administration. The difficulty that I have is that the evidence on this point is conflicting. USG Holdings says that the administrators have used their access to the servers to prevent clients of companies other than the company under administration from trading. The administrators say that they have not done that and that they have only made changes to the status of clients identified on the interface as being clients of the company in administration. They also say that they cannot reopen the trades without the risk that Mr Soe will shift certain clients to different companies, or shift money to offshore accounts.
12 I do not have sufficient evidence to resolve this particular issue today. I am also not satisfied that there is no risk of very substantial prejudice to the company if the currency pairing trades are restored across the board.
13 USG Holdings’ application also seeks the following:
An order, pursuant to ss 447A and 447B of the Corporations Act and section 90-15 of the Insolvency Practice Schedule, that pending further order of the Court, the administrators be restrained from closing out contracts of the kinds described in the company’s product disclosure statement of 20 June 2019 with clients which remain open and have not been closed out.
14 Mr Burchett on behalf of USG Holdings submits that if the administrators close out the contracts with clients of the company today or soon thereafter, the company may face very significant losses. In particular, he refers to cl 16.1 of the company’s Product Disclosure Statement at the foot of paragraph 27 of that document, where it states:
We reserve the right to suspend the operation of our website and online facility or any part or sections of them. In such an event we may at our sole discretion with or without notice close out your open positions at prices we consider fair and reasonable.
15 Mr Burchett makes the point that if the administrators close out the contracts, either they or the company will be liable for the fair and reasonable cost (on the assessment of the administrators) of the clients’ positions at that time. Against that is the possibility that closing out the contracts will, in fact, save the company from losses. The administrators have made the assessment that closing out the trades is the best way of protecting the company’s position on the present information available to them and, in particular, the conflicting views in relation to what is in the company’s best interests.
16 I am not in a position to make an assessment as to whether the administrators’ action will cause loss or whether, instead, it will save the company from loss or at least prevent substantial risk of loss. And I am not prepared, in the urgent circumstances in which this application has come before me on the duty list this afternoon and on very limited evidence, to intervene in the exercise of the administrators’ discretion as to what they should do in fulfilment of their obligations and responsibilities as administrators of the company. It is safer to leave them to act on their assessment than to second guess them on the current evidence.
17 It may be that with more time and with better evidence, a case justifying the Court intervening in the manner that is sought, or in a similar manner, can be made out and justified. For those reasons I will not simply dismiss order 3 of USG Holdings’ application.
18 I will therefore adjourn USG Holdings’ interlocutory process and grant it liberty to apply to relist the interlocutory process. The parties will then have the opportunity to supplement the evidence in order to put the Court in a position to properly deal with the questions that it raises.
19 I make the following orders:
(1) The second respondent provide the applicants with ‘administrator access’ to the MT4 and MT5 Platforms forthwith.
(2) The second respondent be restrained, until further order, from impeding, varying or revoking the ‘administrator access’ provided pursuant to Order 1.
(3) The second respondent’s Interlocutory Process filed 7 August 2020 is adjourned indefinitely with the second respondent having leave to seek to relist it.
(4) Costs reserved.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. |
