FEDERAL COURT OF AUSTRALIA
Dickerson, in the matter of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) (No 5) [2021] FCA 431
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT THE ORDERS MADE ON 16 APRIL 2021 BE VARIED TO READ AS FOLLOWS:
1. Pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Exhibit GD8 to the affidavit of Gayle Dickerson sworn on 15 April 2021 is not to be published and/or accessed by any person other than the applicants (and their legal representatives), Calabria Family Wines Pty Ltd (and its legal representatives) and Hunterfields Pty Ltd and Belford Land Corporation Pty Ltd as trustee for the Belford Property No. 2 Trust (and their legal representatives), until the date of resumption of a meeting of the creditors of McWilliam’s Wines Group Ltd (Subject to Deed of Company Arrangement) and Mount Pleasant Wines Pty Ltd (Subject to Deed of Company Arrangement) (together, the Companies), or further order.
2. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act 2001 (Cth) (IP Schedule), the first applicants, Gayle Dickerson, Tim Mableson and Ryan Eagle in their capacity as joint and several Deed Administrators of McWilliam’s Wines Group Ltd (Subject to Deed of Company Arrangement) and Mount Pleasant Wines Pty Ltd (Subject to Deed of Company Arrangement), are justified in proposing to the creditors of the Companies both an alternative deed of company arrangement substantially in the form set out at pages 1 to 38 of Exhibit GD7 to the affidavit of Gayle Dickerson sworn on 15 April 2021 (Alternative DOCA) and a further alternative deed of company arrangement substantially in the form set out at pages 8 to 47 of Exhibit GD9 to the affidavit of Gayle Dickerson sworn on 20 April 2021 (Second Alternative DOCA), so as to permit the sale of the assets and business of the Companies.
3. Pursuant to s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the IP Schedule, Part 5.3A of the Corporations Act 2001 (Cth) is to operate in relation to the Companies as if upon:
(a) resolutions being passed by the creditors of each of the Companies:
(i) to terminate the deed of company arrangement entered into on 3 August 2020 (Existing DOCA); and
(ii) to enter into the Alternative DOCA or the Second Alternative DOCA; and
(b) the execution and coming into effect of the Alternative DOCA or the Second Alternative DOCA,
each of the Companies be subject to and bound by the Alternative DOCA or the Second Alternative DOCA (as the case may be) without being taken to have passed a resolution that each of the Companies be wound up (notwithstanding s 446AA(2) of the Act and cl 21.6 of the Existing DOCA).
4. The applicants’ costs of and incidental to the interlocutory process dated 13 April 2021 be costs in the deed administration of each of the Companies, jointly and severally.
5. There be liberty to apply on 48 hours’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
FARRELL J:
INTRODUCTION
1 On 16 April 2021, the Court made orders to the following effect pursuant to an interlocutory process lodged with the Court on Tuesday, 13 April 2021:
(a) Pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, confidential exhibit GD8 to the affidavit of Gayle Dickerson sworn on 15 April 2021 not be published or accessed by any person other than the applicants (and their legal representatives), Calabria Family Wines Pty Ltd (and its legal representatives) and Hunterfields Pty Ltd and Belford Land Corporation Pty Ltd as trustee for the Belford Property No. 2 Trust (Hunterfields/Belford) (and their legal representatives) until the date of resumption of a meeting of the creditors of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) and Mount Pleasant Wines Pty Ltd (subject to Deed of Company Arrangement) (together the Companies) or further order (confidentiality order);
(b) Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 of the Corporations Act 2001 (Cth)) (IP Schedule), Ms Dickerson, Tim Mableson and Ryan Eagle (the first applicants) are, in the capacity as deed administrators, justified in proposing an alternative deed of company arrangement substantially in the form of that appearing at pages 1 to 38 of exhibit GD7 (Alternative DOCA) to creditors of the Companies;
(c) Pursuant to s 447A of the Corporations Act and s 90-15 of the IP Schedule, Part 5.3A of the Corporations Act is to operate in relation to each of the Companies as if, upon:
(i) resolutions being passed by the creditors of each of the Companies to terminate the Existing DOCA (as defined at [10] below) and to enter into the Alternative DOCA; and
(ii) the execution and coming into effect of the Alternative DOCA,
each of the Companies are subject to and bound by the Alternative DOCA without the creditors being taken to have passed a resolution that each of the Companies be wound up, notwithstanding s 446AA(2) of the Corporations Act and cl 21.6 of the Existing DOCA;
(d) The applicants’ costs of and incidental to this application be costs in the deed administration of each of the Companies, jointly and severally; and
(e) Liberty to apply on 48 hours’ notice.
2 Counsel for the first applicants provided written submissions and appeared at the hearing on 14 and 16 April 2021.
3 Calabria Family Wines was granted leave to appear and appeared at the hearing on both days.
4 A partner of law firm Hamilton Locke, Brit Ibanez, appeared with leave for De Bortoli Wines Pty Ltd at the hearing on 16 April 2021. Ms Ibanez advised that De Bortoli participated in the sale process but was not a preferred purchaser and it was her client’s position that communications with the first applicants and their sales agent concerning bids made by her client had been unsatisfactory. She said that her clients were formulating a deed of company arrangement for consideration by the creditors of the Companies which they should be in a position to provide to the first applicants in the afternoon of 16 April 2021. She advised that De Bortoli proposed that the Court make orders in a form which would accommodate any alternative deed of company arrangement, not just the Alternative DOCA. For reasons explained below, I declined to make an order in the form then proposed by De Bortoli but agreed to make an order allowing leave to apply.
5 The solicitors of the first applicants approached my chambers on Monday, 19 April 2021 requesting that the matter be relisted for the afternoon of Tuesday, 20 April 2021. Written submissions were provided on 20 April 2021 reflecting evidence given by Ms Dickerson in her affidavit sworn on 20 April 2021. Ms Dickerson explained that De Bortoli had proposed a deed of company arrangement (Second Alternative DOCA) which would, if implemented, likely provide a greater return than the Alternative DOCA and provide for retention of more employees, albeit that the terms of sale agreements had not yet been agreed.
6 At the hearing on Tuesday, 20 April 2021, counsel for the first applicants appeared as did Ms Ibanez in support of a proposal to vary the orders to provide for the same relief as that provided on 16 April 2021 if creditors approved the Second Alternative DOCA. Counsel for Calabria Family Wines appeared to oppose variation of the orders and a solicitor also appeared for Hunterfields/Belford.
7 Following the hearing on 20 April 2021, the orders made on 16 April 2021 were varied such that, if the Existing DOCA is terminated and creditors approve either the Alternative DOCA or the Second Alternative DOCA, each of the Companies will be bound by the approved DOCA without the creditors being taken to have passed a resolution that each of the Companies be wound up, notwithstanding s 446AA(2) of the Corporations Act and cl 21.6 of the Existing DOCA.
8 The following affidavits were read and evidence tendered in the proceedings:
(a) Affidavits sworn by Ms Dickerson on 13, 15 and 20 April 2021 and exhibit GD6, exhibit GD7, confidential exhibit GD8 and exhibit GD9;
(b) Affidavits affirmed on 14 and 20 April 2021 by Kathryn Moulden, a solicitor employed by HWL Ebsworth Lawyers in relation to the provision of notice of the interlocutory process to the Australian Securities and Investments Commission (ASIC) and creditors of the Companies. Neither ASIC nor any creditor gave notice of intention to appear at the hearing on any of the days on which it was conducted and no creditor or ASIC in fact appeared.
(c) Affidavits sworn on 15 and 20 April 2021 by Michael Calabria, the general manager of Calabria Family Wines. Mr Calabria’s first affidavit was in support of the first applicants’ application for the confidentiality order and the second affidavit was in opposition to the variation of the orders made on 16 April 2021 to accommodate the Second Alternative DOCA; and
(d) An affidavit sworn on 16 April 2021 by Grant Whatley, a partner of HWL Ebsworth Lawyers deposing to communications with the solicitors for De Bortoli by letters dated 15 and 16 April 2021 in relation to the first applicants’ interlocutory process and the sale process conducted by the first applicants.
BACKGROUND
9 Mount Pleasant is a wholly owned subsidiary of McWilliam’s. On 8 January 2020, the first applicants were appointed as joint and several administrators of the Companies.
10 Following an extensive sale process, on 3 August 2020, the first applicants entered into a deed of company arrangement with each of McWilliam’s, Mount Pleasant and the deed proponent, MCW BidCo Pty Ltd (MCW) (Existing DOCA). Notwithstanding the fact that conditions precedent to the Existing Deed had been either satisfied or waived (as acknowledged by MCW’s lawyers on 27 November 2020), MCW failed to perform its obligations under the Existing DOCA and the first applicants formed the view that there is no prospect that MCW will do so. As a result, in December 2020, the first applicants recommenced the sale process with a view to offering the Companies’ businesses for sale as a going concern and to explore a possible alternative deed of company arrangement or recapitalisation.
11 As a result of MCW’s failure to complete the Existing DOCA, the first applicants were obliged to call a meeting of the creditors of the Companies which was held on 2 February 2021 and adjourned to 23 February 2021.
12 Having regard to the status of the sale process at 22 February 2021, the first applicants formed the view that:
(a) The optimal outcome for creditors of the Companies was to maintain flexibility in the sale process to complete a sale transaction without the Companies being wound up;
(b) If the Companies were to move immediately into liquidation following resumption of the creditors’ meeting on 23 February 2021, it would have a negative impact on their ability to finalise the current sale process and on the value which could be obtained through the process;
(c) Liquidation of the Companies before a sale of the Companies’ assets and business would trigger the deemed termination of employees pursuant to s 558 of the Corporations Act that would, among other things, crystallise a liability of the Companies for termination payments and that would increase the value of total creditor claims against the pool of available assets; and
(d) In order to extend time to enable a sale of the Companies’ assets and businesses while the Companies remain a going concern, and having regard to the objects of Part 5.3A of the Corporations Act, it was necessary to seek an urgent order from the Court permitting the creditors’ meeting to be adjourned for more than 15 business days. This course was supported by the Committee of Inspection.
13 On 22 February 2021, the Court made orders varying s 75-140 of the Insolvency Practice Rules (Corporations) 2016 (Cth) to permit the first applicants to adjourn the creditors’ meeting until 30 April 2021 and to resume the meeting by giving five business days’ notice: see Dickerson, in the matter of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) (No 4) [2021] FCA 139. The course of the administration leading up to this point is described in that decision and the following judgments: Dickerson (Administrator), in the matter of McWilliam’s Wines Group Ltd (Administrators Appointed) [2020] FCA 57; Dickerson, in the matter of McWilliam’s Wines Group Ltd (Administrators Appointed) (No 2) [2020] FCA 417; and Dickerson, in the matter of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) (No 3) [2020] FCA 1564.
14 On 23 February 2021, Ms Dickerson chaired the meeting of creditors which resumed on that day and, in accordance with the Court’s orders made on 22 February 2021, the meeting was further adjourned to 30 April 2021 or an earlier time upon giving the requisite five business days’ notice (resumed creditors’ meeting). No creditor expressed opposition to this course.
15 Since then, the first applicants have continued to trade the Companies’ businesses and they have conducted a comprehensive sale process. The first applicants have now determined that the greatest return to creditors will be realised by selling certain businesses and real property assets of McWilliam’s and Mount Pleasant separately, as opposed to selling all assets of the Companies to one purchaser.
16 Two preferred purchasers were selected. The preferred purchaser of the McWilliam’s business and land assets located at and around Hanwood is Calabria Family Wines. The preferred purchasers of the Mount Pleasant business and real property assets located at and around Mount Pleasant are Hunterfields/Belford. For convenience, I will refer to Calabria Family Wines and Hunterfields/Belford together as the Calabria/Medich interests.
17 Without first advising creditors of the Companies, on 1 April 2021, the first applicants entered into heads of agreement with Calabria Family Wines and Hunterfields/Belford respectively. Sale Agreements giving effect to the arrangements in the heads of agreement were entered into on 13 April 2021 and copies of those agreements are set out in confidential exhibit GD8. The parties’ obligations under both the heads of agreement and the Sale Agreements will be of no force or effect until the following conditions precedent are met, among others:
(a) The Court makes an order modifying the application of Part 5.3A of the Corporations Act so that the Companies are not wound up if the creditors resolve that the Companies should terminate the Existing DOCA and enter into an alternative deed of company arrangement;
(b) The creditors of the Companies resolve to terminate, replace or vary the Existing DOCA; and
(c) The creditors of the Companies resolve to enter into an Alternative DOCA that facilitates and effectuates the completion of the Sale Agreements without the relevant Company (which is the seller of the relevant assets and business) going into liquidation.
18 The first applicants are concerned that they likely do not have power to sell the Companies’ business and assets under cl 9.2(c) of the Existing DOCA which incorporates by reference the powers conferred under cl 2 of Sch 8A of the Corporations Regulations 2001 (Cth). The chapeau to cl 2 provides that the enumerated powers are “for the purpose of administering this deed”. The Existing DOCA provides for completion of the DOCA by the transfer of all of the shares in McWilliam’s to MCW (or its nominee) pursuant to an order made under s 444GA of the Corporations Act: see Dickerson, in the matter of McWilliam’s Wines Group Ltd (No 3). It does not contain an express power to sell the Companies’ businesses and assets. The first applicants submitted that, for the Sale Agreements to be completed, the Existing DOCA must be terminated and a new deed of company arrangement (in the form of the Alternative DOCA) executed so as to provide them with the power to effect and complete the transactions contemplated by the Sale Agreements.
19 The first applicants submitted that termination of the Existing DOCA would lead to a deemed creditors’ voluntary winding up of the Companies pursuant to cl 21.6 of the Existing DOCA and s 446AA of the Corporations Act.
20 Clause 21.6 of the Existing DOCA contains a clearly erroneous reference to cl 20.2 (which has no sub-paragraphs and deals with GST), rather than cl 21.7. It is useful to set out cll 21.6 and 21.7:
21.6 Consequences of Termination of the Deed otherwise than by effectuation
Upon termination of the Deed under clause 20.2(a), (b) or (d) (and not clause 20.2 (c)):
(a) each Deed Company will be taken to have passed special resolutions under section 491 of the Act that the Deed Companies (respectively) be voluntarily wound up and that the Deed Administrators be the Deed Companies’ liquidators;
(b) section 446AA and section 449(2E) of the Act will apply; and
(c) the Deed Companies will be wound up.
21.7 Early Termination or variation of the Deed
Without limiting the operation of sections 445C, 445E and 445FA of the Act, if the Deed Administrators determine that it is no longer practicable or desirable either to continue or implement or carry out this Deed, the Deed Administrators must on giving two Business Days’ notice to the Deed Proponent convene a meeting of the Creditors for the purposes of passing a resolution that:
(a) this Deed terminates;
(b) this Deed terminates and the Deed Companies be wound up;
(c) the terms of this Deed be enforced; or
(d) any other proposal permitted by the Act be approved.
21 Section 446AA provides as follows:
446AA Administrator becomes liquidator—additional cases
Scope
(1) This section applies if a company has executed a deed of company arrangement and:
(a) the Court, at a particular time, makes an order under section 445D terminating the deed of company arrangement; or
(b) both:
(i) the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up; and
(ii) those circumstances exist at a particular time.
Resolution that company be wound up voluntarily
(2) The company is taken:
(a) to have passed, at the time referred to in paragraph (1)(a) or subparagraph (1)(b)(ii), as the case may be, a special resolution under section 491 that the company be wound up voluntarily; and
(b) to have done so without a declaration having been made and lodged under section 494.
Information about company’s affairs
(3) Section 497 is taken to have been complied with in relation to the winding up.
Notice of resolution
(4) The liquidator must:
(a) within 5 business days after the day on which the company is taken to have passed the resolution, lodge with ASIC a written notice in the prescribed form:
(i) stating that the company is taken because of this section to have passed such a resolution; and
(ii) specifying that day; and
(b) cause the notice to be published, within 5 business days after that day, in the prescribed manner.
Power to stay or terminate winding up
(5) Section 482 applies in relation to the winding up as if it were a winding up in insolvency or by the Court.
Note: Section 482 empowers the Court to stay or terminate a winding up and give consequential directions.
(6) An application under section 482 as applying because of subsection (5) may be made:
(a) despite section 198G (exercise of directors’ powers while company under external administration), by the company pursuant to a resolution of the board; or
(b) by the liquidator; or
(c) by a creditor; or
(d) by a contributory.
Note: See also section 499 (appointment of liquidator).
22 The key terms of the Alternative DOCA, as now set out in exhibit GD7, would be:
(a) The objects of the Alternative DOCA are to:
(i) allow sufficient time to effectuate and carry out the terms of the Sale Agreements; and
(ii) establish separate deed funds in order to pay dividends to creditors of each of the Companies (Deed Funds);
(b) The Alternative DOCA will apply independently in respect of each of the Companies;
(c) Completion of the Alternative DOCA will be subject to a condition precedent. That condition precedent is that creditors of both Companies resolve to terminate the Existing DOCA and to enter into the Alternative DOCA, and the first applicants and the Companies enter into the Alternative DOCA;
(d) Once the Alternative DOCA condition precedent has been met, then on or before the Final Payment Date, being 31 December 2021 or such further or other date as notified by the deed administrators to the creditors of the Companies in writing, the Sale Agreements are to be completed in accordance with their terms and any dividend payable out of the Deed Funds is to be paid in relation to admitted claims;
(e) The Deed Funds are to be distributed to admitted creditors of the relevant Company in accordance with the following order of priority:
(i) first, to the deed administrators of the Existing Deed for expenses and remuneration referable to that Company, to the extent that they remain unpaid at the date the Alternative DOCA is executed by the deed administrators and the Companies;
(ii) second, to the deed administrators of the Alternative DOCA for their expenses and remuneration referable to the relevant Company;
(A) to the extent the Deed Funds reflect proceeds derived from circulating assets, to relevant employees to the amount to which they would be entitled to be paid in priority to the payment of other unsecured claims under s 556 of the Corporations Act if the relevant Company was taken to be in liquidation on 8 January 2020 (being when the first applicants were appointed as administrators of the Companies);
(B) to the extent the Deed Funds reflect proceeds derived from non-circulating assets, and circulating assets, once employee priority claims are paid in full, to secured creditors in respect of their secured claims;
(iv) fourth, to each other creditor with a Claim (as defined), on a pro-rata basis with the dollar value of admitted claims of those creditors;
(v) fifth, interest in relation to the claims of those creditors as set out in (e)(iii) and (iv) above, calculated in accordance with and at the rate prescribed in s 563B of the Corporations Act;
(vi) sixth, any existing shareholder of the relevant Company on a pro-rata basis in accordance with the class and number of shares held by the existing shareholder immediately before 8 January 2020.
23 The first applicants point out that the Alternative DOCA contains a mechanism for the payment of a dividend to all creditors while the Companies remain subject to a deed of company arrangement and it is not intended that the Companies be wound up voluntarily before the effectuation of the Alternative DOCA unless there is a breach. Ms Dickerson says that the effectuation of the Alternative DOCA is intended to occur by 31 December 2021.
24 The first applicants proposed the orders sought in the interlocutory process because, in their view:
(a) There is no reasonable prospect that MCW will complete the Existing DOCA. In her affidavit sworn on 13 April 2021 at [29]-[36], Ms Dickerson gives evidence concerning communications between MCW’s solicitors and the first applicants’ solicitors, including the service of a breach notice on behalf of the first applicants as deed administrators on 10 December 2020. Ms Dickerson also gives evidence of conversations between Mr Mableson and Charles Hunting, described as the principal of MCW, on 30 March 2021 concerning an offer to progress to completion of the Existing DOCA, but that exchange was not followed up by Mr Hunting or MCW. The deed administrators do not consider it to be a viable course of action to obtain an order for specific performance of the Existing DOCA because of MCW’s inability to pay the amount required to complete the transactions. This is against the background that MCW is a shell company and its capacity to fund its obligations under the Existing Deed depends on the willingness of investors to provide funds.
(b) The orders are required to avoid the consequence of winding up if the Existing DOCA is terminated and to ensure the efficacy of the Alternative DOCA;
(c) It is desirable to terminate the Existing DOCA because:
(i) It is likely that the sale of the business and undertaking of the Companies to someone other than MCW is a purpose outside that set out in the Existing DOCA, and there is some (albeit likely remote) risk that MCW could seek to bring a claim against the first applicants in relation to the Sale Agreements now contemplated if the Existing DOCA is not terminated; and
(ii) Terminating the Existing DOCA preserves the possibility of bringing claims against MCW and its director in relation to any loss suffered by the Companies by reason of MCW’s failure to complete the Existing DOCA by paying the required monies; and
(d) Avoiding a winding up under cl 21.6 of the Existing DOCA and s 446AA of the Corporations Act before entering into the Alternative DOCA is for the benefit of creditors of the Companies and it is likely to result in a superior return to them because it avoids potential decline in the value of the Companies’ assets and business and reputational loss because:
(i) It avoids disrupting relationships with customers, suppliers and employees which can lead to counterparties seeking to change the terms on which products and services are sold or purchased by the Companies. In particular, the first applicants are concerned about the possible effect of the Companies’ liquidation on Coles and Woolworths, who account for approximately 55% of sales and who have reduced orders and stock holdings since the beginning of the year. This view is shared by the Companies’ senior management and sales teams;
(ii) It prevents unnecessary crystallisation of employee entitlements which would have the effect of reducing the return to creditors of the Companies;
(iii) The requirement to undergo yet a third sale process in the course of a liquidation is likely to result in a lower return due to market fatigue; and
(iv) By satisfying the conditions precedent to the Sale Agreements, it avoids potential loss of the Sale Agreements which are on more advantageous terms compared to other bids received in the sale process. It is expected that the Sale Agreements will be completed by 30 April 2021 if creditors agree to terminate the Existing DOCA and approve the Alternative DOCA.
25 Mr Whatley’s affidavit read at the hearing on 16 April 2021 contained correspondence between the first applicants’ solicitors and the solicitors for De Bortoli. A letter from the solicitors for De Bortoli dated 15 April 2016 expressed concerns about aspects of the sales process conducted by the first applicants and their agent, including that there had been difficulties in access to the data room, general delay and unresponsiveness in the provision of information and in relation to the competitiveness of the De Bortoli offer against that made by the Calabria/Medich interests, denial of an opportunity to put in a best and final offer after hearing that the first applicants had selected another bidder and lack of transparency about the timing of the execution of the heads of agreement and Sales Agreements with the Calabria/Medich interests and a failure to confirm that De Bortoli’s offer would be put to creditors at the resumed creditors’ meeting. That letter sought confirmation that the first applicants would seek orders at the hearing on 16 April 2021 which would extend relief in relation to both the Alternative DOCA and any other deed of company arrangement approved by creditors.
26 By letter in reply dated 16 April 2021 sent by email at 10.55 am, the solicitors for the first applicants set out a timeline which the first applicants contended applied to their dealings with De Bortoli. That letter indicates that the first applicants provided a copy of Ms Dickerson’s affidavit sworn on 15 April 2021 and exhibit GD7 with the letter. It is useful to note (without making any finding) what was said at [2]-[13]:
Your Client's Concerns
2. Our clients deny there has been a lack of communication between your client, our clients or Colliers International Pty Ltd (Colliers) in relation to the sale process concerning the Group. Your client (through Mr Walker) has been in continual contact with either Colliers or our clients from on or around 29 January 2021. Since that time, and up to and including 1 April 2021 your client made at least four (4) ‘offers’ to our clients and/or Colliers concerning the purchase of the business and assets of the Group.
3. In relation to your client’s queries set out at paragraph 2 of the 15 April Letter, we wish to remind you of the sequence of events that has occurred since early this year. In particular:
(a) on 29 January 2021, your client (who was unnamed at the time) advanced an offer through Mr Walker to purchase the whole of the business and assets of the Group for the sum of $28 million excluding GST (First Offer);
(b) our clients and Colliers understood that the First Offer was based on the following:
…
(c) on 21 February 2021, following our clients' provision to you of a copy of a draft Business Sale Agreement and Special Conditions relating to the land at Hanwood/Beelbangera and Mount Pleasant, and our clients advising your client to put your client’s best and final offer on 18 February 2021, your client put forward a revised offer of $36 million excluding GST (Second Offer);
(d) the Second Offer required, among other things:
(i) the exchange of contracts within the following week; and
(ii) that settlement was to occur on or before 31 March 2021 or within 14 days of the exchange of contracts, subject to your client carrying out due diligence on the Group’s inventory;
(e) on 22 February 2021, your client put forward an increased offer of $38.5 million excluding GST (Third Offer) and stated that your client was not willing to increase the Third Offer;
(f) on or about the same day (that is, 22 February 2021), our clients informed you that the Third Offer was behind the then highest offer;
(g) on 5 March 2021, our clients advised your client that any due diligence sought to be undertaken by your client was required to be completed by the close of business on 15 March 2021 and an offer to contract to be submitted;
(h) by 15 March 2021, with the exception of your client, all other bidders had either completed or were in the process of completing their due diligence of the Group's inventory;
(i) on 16 March 2021, you provided our clients with a marked-up version of the draft Business Sale Agreement. However, there were several matters that remained unclear and required further clarification including, but not limited to:
(i) disclosure of the identity of the buying entity;
(ii) the mechanics of the allocation of the purchase price, including the proposed allocation of $6.5 million of it to the proceeds of the wine vintage in the process of being carried out by the Group at the time (Vintage 21) in circumstances where there was no definition of Vintage 21 and no proposed adjustment if the minimum assumed tonnage was not met;
(iii) the process for completion and the role of completion statements;
(iv) refund of the deposit in the event of termination of the Business Sale Agreement owing to the termination of the Land Sale Contracts;
(v) the absence of a dollar value threshold with regard to the prohibition on selling any bulk stock without the consent of your client (or the buying entity);
(vi) the procedure for stocktake of the inventory;
(vii) your client’s request regarding receivables, which placed an obligation on the Group to issue all invoices within 20 business days of completion;
(viii) your client’s carve out from the obligation to perform and satisfy certain assumed liabilities and what disputes your client intended to encompass;
(ix) the deletion of the warranty on conduct by your client (or the buying entity) of enquiries;
(x) more generally, what business contracts/leases your client intended on taking over; and
(xi) your client’s position in respect of the Land Sale Contracts.
(j) on 22 March 2021, you provided a further marked-up copy of the draft Business Sale Agreement, which amended the position in respect of the commercial terms of your client’s proposed purchase and further responses were required concerning certain contracts/leases to be taken over and no comments on the Land Sale Contracts were provided;
(k) on 23 March 2021, you informed our client’s agent, Colliers, that due to an oversight, your client was reducing its offer by approximately $736,000 because your client had not noticed, in the January 2021 stock list that formed the basis of the First Offer (and subsequent Second and Third Offers), that Vintage 21 stock to the book value of $736,000 was included. At that point, no further information concerning the business contracts/leases and Land Sale Contracts was provided;
(l) on 25 March 2021, we are instructed that Colliers advised your client that our clients were still awaiting a response to the Land Sale Contracts. Your client advised Colliers that, despite the deadline imposed by our clients of 15 March 2021, your client was not able to complete its due diligence on the Land Sale Contracts and would amend the draft Business Sale Agreement accordingly to include the completion of your client’s due diligence regarding the Land Sale Contracts as a condition precedent. We understand that Colliers also informed your client that it was necessary for your client to increase its offer as it remained too low; and
(m) despite direct encouragement by our client and Colliers for your client to increase the Third Offer, on 27 March 2021, your client forwarded a further revised Business Sale Agreement (Fourth Offer) in which, among other things, the Purchase Price was expressed as being inclusive of GST (thereby reducing the overall consideration payable). Our clients had understood from Colliers that all such amounts in previous offers were GST exclusive. In addition, consistent with your indication on 23 March 2021, your client revised down the value of the “Assumed Stock Amount” by about $736,000. We also understand that your client stated that it was likely that your client would no longer be in the race to purchase the assets and business of the Group if the Fourth Offer was not accepted.
4. On 31 March 2021, you advised Colliers that your client was aware that the Deed Administrators were negotiating with another party and as such, sought to increase its offer to $42 million exclusive of GST. It is noted that this further offer was provided after you had previously indicated that your client would be no longer be participating in the process if the Fourth Offer was not accepted by our clients. The Fifth Offer was confirmed in writing to our clients on 1 April 2021. However, your client’s terms in relation to the Land Sale Contracts were also still unknown at that time.
5. In any event, the terms of this most recent offer remained below the combined offer by the Calabria/Medich Family Office parties (being Calabria Family Wines Pty Ltd/Hunterfields Pty Ltd and Belford Land Corporation Pty Ltd as trustee for the Belford Property No. 2 Trust, respectively) in terms of both the overall consideration payable along with the anticipated return to creditors.
6. Heads of Agreement were entered into with the Calabria/Medich parties on 1 April 2021.
7. On 6 April 2021, Colliers informed your client that our clients had progressed the purchase of the Group’s business and assets with other bidders. It was only at that point (after the Deed Administrators had entered into Heads of Agreement) that your client provided a further approach to the Deed Administrators that resulted in what the 15 April Letter defines as the Offer.
Interlocutory Process
8. For the avoidance of doubt, and as was expressed by our Counsel on behalf of the Deed Administrators at the hearing on 14 April 2021, our clients do not seek, and have not sought, the Court’s approval in relation to the substance of any proposed sale of the business and assets of the Group.
9. Rather, the application concerns a proposed variation of Part 5.3A of the Corporations Act 2001 (Cth) to provide for a regime by which McWilliam’s Wines Group Limited (Subject to Deed of Company Arrangement) and Mount Pleasant Wines Pty Ltd (Subject to Deed of Company Arrangement) may terminate the existing deed of company arrangement with MCW BidCo Pty Ltd and, in its place, enter into a new deed of company arrangement that permits the Deed Administrators to sell the business and assets of the Group (without a winding up of those companies necessarily occurring in the interval period).
10. The position of our clients has always been that it is for the creditors to determine the future of the Deed Companies at the expected meeting of creditors to be held on or before 29 April 2021.
11. As set out at paragraphs 67-68 of the Fifth Affidavit of Gayle Dickerson sworn on 13 April 2021, it is in the best interests of creditors for the Deed Companies to avoid liquidation (if possible).
12. In that context, the application before Justice Farrell seeks to facilitate a mechanism for the creditors to resolve that the Group enter into a deed of company arrangement that, among other things, may provide for the sale of the business and assets of the Group contemplated by the conditional sale agreements entered into with Calabria Family Wines Pty Ltd and with Hunterfields Pty Ltd and Belford Land Corporation Pty Ltd as trustee for the Belford Property No. 2 Trust (Sale Agreements).
Request for Information
13. In relation to your specific queries set out at paragraph 6 of the 15 April Letter our clients say as follows:
(a) as set out at paragraph 6 above, the Heads of Agreement were executed on 1 April 2021;
(b) your client's Offer (as defined in the 15 April Letter) was received well after the Heads of Agreement had been entered into and in circumstances where commercial terms remained the subject of negotiation (including but not limited to the Land Sale Contracts); and
(c) due to the present deed of company arrangement being unable to be effectuated, the Deed Administrators have called, and adjourned, a meeting of creditors to determine the future of the Group. In order for the creditors to be able to make an informed decision as to the future of the Group at any such meeting it is appropriate for the Deed Administrators to provide a report to creditors that accompanies the notice of meeting. As a part of any such report the Deed Administrators will, among other things, provide an outline of the sale process, a broad summary of offers received as well as an outline of the successful bid. Your client’s latest offer that was received after the heads of agreement had been entered into will be referred to and explained in any such report.
27 At the hearing on 16 April 2021, counsel for the first applicants advised the Court that a circular would be formulated and sent to creditors of the Companies about mid-week in the week commencing Monday, 19 April 2021 to facilitate a resumption of the resumed creditors’ meeting on Thursday, 29 April 2021. At the hearing on 20 April 2021, counsel for the first applicants advised that they now proposed to hold that meeting on 28 April 2021.
28 In her affidavit sworn on 20 April 2021, Ms Dickerson deposed that in the evening of 16 April 2021, the first applicants received from De Bortoli a proposal for the purchase of the businesses and assets of the Companies by way of deed of company arrangement (Proposal). The terms of the Proposal are set out in GD9 at pages 1-7. Among other things it provides for payment of total cash consideration of $47,000,000 exclusive of GST (before adjustments following a stocktake and some other matters), including payment of a deposit of $4.7 million, in addition to an assumption of liability for employee entitlements valued at $826,053.49. Mr Mableson and Ms Dickerson indicated to De Bortoli that creditors would expect to have a deed of company arrangement in final form ready to be executed prior to the creditors’ meeting which they expected would be resumed on 28 April 2021.
29 The terms of the Second Alternative DOCA proposed by De Bortoli following negotiation and as at the time Ms Dickerson swore her affidavit were set out in GD9 at pages 8-47. Ms Dickerson summarised the terms of the Second Alternative DOCA in her affidavit at [21]-[23]. Matters of note are:
(1) The objects of the Second Alternative DOCA are the same as for the Alternative DOCA and the first applicants will be the deed administrators of the Second Alternative DOCA;
(2) The DOCA is to operate independently with respect to the Companies;
(3) Completion of the Second Alternative DOCA is subject to the following conditions precedent being satisfied:
(a) a meeting of creditors resolving that the Existing DOCA be terminated,
(b) the Companies executing the Second Alternative DOCA and it becoming effective;
(c) payment of a deposit of $4.7 million on 28 April 2021;
(d) before the creditors’ meeting is resumed, De Bortoli, McWilliam’s and the first applicants enter into a sale agreement in a form and on terms and conditions satisfactory to each of them, and as to deposit and purchase price, consistent with relevant terms of the Proposal; and
(e) completion of the sale of McWilliam’s business, the shares in Mount Pleasant and certain other assets of McWilliam’s occurs under the sale agreement by 14 May 2021.
(4) As soon as practicable after entry into the Second Alternative DOCA the deed administrators must establish two deed funds:
(a) With respect to Mount Pleasant, the deed fund would comprise $15 million in cash received under the sale agreement; and
(b) With respect to McWilliam’s, the deed fund will comprise the proceeds received under the sale agreement and certain other excluded assets (such as cash at bank and receivables to be collected by the deed administrators on behalf of the Companies);
(5) The deed administrators will adjudicate the Mount Pleasant creditors first. The waterfall for payment of Mount Pleasant creditors is essentially the same as is the case for the Alternative DOCA and any surplus funds after distribution to those creditors being paid into the McWilliam’s deed fund; and
(6) The waterfall for payment of McWilliam’s admitted creditors is essentially the same as is the case for the Alternative DOCA save that any surplus funds after distribution of the McWilliam’s deed fund to its creditors will be returned to De Bortoli.
30 If the Alternative DOCA is approved and the Sale Agreements with the Calabria/Medich interests are completed, the first applicants estimate that Mount Pleasant’s creditors will obtain a return of 100 cents in the dollar and McWilliam’s creditors will obtain a return between 46 cents and 71 cents in the dollar. An estimated 37 of the Companies’ employees will be retained in employment.
31 If the Second Alternative DOCA is executed and transaction documents are entered into and completed, then approximately 42 of McWilliam’s and Mount Pleasant’s current employees will be retained in employment. The first plaintiffs estimate that Mount Pleasant’s creditors will obtain a return of 100 cents in the dollar and McWilliam’s creditors will receive a return of between 55 cents and 82 cents in the dollar.
32 Although the first plaintiffs may, prior to the resumed creditors’ meeting, make a recommendation as to which of the Alternative DOCA or the Second Alternative DOCA should be approved, they considered it to be more advantageous to creditors of the Companies as at 20 April 2021 that the orders made on 16 April 2021 be varied, on the basis that either proposal is a viable alternative to winding up the Companies. They propose to advise creditors of each of the proposals and permit the creditors to decide which alternative is preferable so that they can determine the future of the Companies.
33 Ms Dickerson gave evidence as to certain practical issues that arise if creditors of the Companies were to pass a resolution that the Second Alternative DOCA should be entered into because steps have been taken to advance the Sale Agreements with the Calabria/Medich interests. Those issues include: shutting down the business to conduct a stocktake before the resumed creditors’ meeting and another stocktake after it; transferring Mount Pleasant stock from the Hanwood winery (in the Hunter Valley region) to Mount Pleasant (in the Riverina region); arranging two sets of releases from secured creditors and novation of existing contracts to allow completion of the transaction documents; and potentially retaining some employees who were notified on 15 April 2021 that their employment would be terminated on 30 April 2021.
34 These matters will be canvassed in a report giving notice of the resumed creditors’ meeting. However, as at 20 April 2021, the first plaintiffs did not wish to express any final view as to whether or not they would recommend that creditors resolve in favour of the Alternative DOCA or the Second Alternative DOCA.
35 At the hearing on 20 April 2021, counsel for Calabria Family Wines submitted that the Court should not make orders varying the orders made on 16 April 2021 because of De Bortoli’s conduct as outlined in Mr Whatley’s evidence (which was also the subject of evidence in Ms Dickerson’s affidavit sworn on 20 April 2021). Although counsel referred to cl 3.2(a) of the asset sale agreement with Calabria Family Wines, which requires the parties to use their best endeavours to ensure that each of the conditions (which include approval of the Alternative DOCA at the resumed creditors’ meeting) is satisfied as soon as reasonably practicable, he did not submit (when asked by the Court) that the course now proposed would breach either the heads of agreement or the Sale Agreements with the Calabria/Medich Family interests, ultimately seeking to reserve his client’s position on that matter. Instead, his submissions pointed to the matters addressed in Mr Whatley’s affidavit set out at [26] above and the steps taken by the Calabria/Medich interests in accordance with the sale process and under the heads of agreement and Sale Agreements entered into on 13 April 2021. Counsel also asserted that it was necessary for the first applicants to express a recommendation as to which of the Alternative DOCA and the Second Alternative DOCA the creditors should approve.
RELEVANT PRINCIPLES
Objects to be served by orders
36 Section 435A of the Corporations Act sets out the objects to be served by Part 5.3A (in which s 447A falls) and the IP Schedule (including s 90-15) to the extent that it relates to Part 5.3A.
37 Section 435A provides as follows:
435A Object of Part
The object of this Part, and Schedule 2 to the extent that it relates to 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.
Note: Schedule 2 contains additional rules about companies under external administration.
Section 447A
38 Section 447A(1) provides that “The Court may make such order as it thinks appropriate about how [Part 5.3A] is to operate in relation to a particular company”. Section 447A(4)(d) empowers deed administrators to make an application where a deed of company arrangement has been executed.
39 The powers of the Court under s 447A of the Corporations Act are very wide but not entirely without limit: Australasian Memory Pty Limited v Brien [2000] HCA 30; (2000) 200 CLR 270. An order under s 447A must have a nexus with how Part 5.3A is to operate in relation to a particular company: Honest Remark Pty Limited v Allstate Explorations NL [2006] NSWSC 735; (2006) 201 FLR 456 at [66] (Brereton J); Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1154; (2004) 210 ALR 270 at [7] (Nicholson J). The power should also only be used to achieve one of the purposes for which it was conferred: see e.g. BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton [2011] NSWCA 414; (2011) 82 NSWLR 336 [1], [207] (McColl JA, Campbell JA).
40 In Calabretta v Redpen Developments Pty Ltd (in liq) [2010] FCA 81; (2010) 183 FCR 47 at [37], Yates J explained that:
The discretion whether to exercise the power [under s 447A] is undoubtedly a plenary one, to be exercised having regard to all the circumstances of the case that have been brought to the Court’s attention by the applicant for relief and by those who have an interest in the matter and who may be affected by the granting of that relief.
41 As noted by counsel for the first applicants in their written submissions, although they could not find a case which is on all fours with the factual circumstances now before the Court, there are cases in which s 447A has been used to avoid the consequences of a deemed winding up, both prospectively and retrospectively, for example:
(a) Where a company has failed to execute a deed of company arrangement within the requisite period: see Re Edward Gem Pty Ltd [2005] FCA 74; (2005) 141 FCR 408 (Merkel J); Willi Kruger re Kruger Engineering Pty Ltd [2006] NSWSC 1063; (2006) 60 ACSR 191 (Barrett J); Lord, In the matter of WPG Resources Ltd (Receivers and Managers Appointed) (in liquidation) [2019] FCA 1173 (Jagot J); and In the matter of Mediacloud Pty Ltd [2021] NSWSC 357 (Ward CJ in Eq); and
(b) Where a deed of company arrangement has terminated and its terms otherwise provide that the company be taken to have been wound up: see Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (Subject to Deed of Company Arrangement) [2020] FCA 250 (Moshinsky J).
42 In Gibbons v LibertyOne [2002] NSWSC 274; (2002) 41 ACSR 442, Austin J explained the breadth of the power conferred by s 447A at [29]-[33] in light of the High Court’s decision in Australasian Memory Pty Ltd v Brien as follows:
29 Their Honours held that there was nothing on the face of s 447A suggesting that it should be read down (at 279). They found that it could be used to make orders departing from or varying, for the future, other express provisions of Part 5.3A. Its use was not to be confined to curing defects or remedying the consequences of some departure from the scheme set out in the other provisions of Part 5.3A. The section permits orders to be made that alter how Part 5.3A is to operate in relation to a particular company in particular circumstances, not how the Part does operate in relation to that company (at 280).
30 In their Honours’ view, s 447A is an integral part of the legislative scheme provided for by Part 5.3A (at 281). It is not right to characterise the section as a general source of power to which resort cannot be had to “circumvent” the more limited and particular powers contained in other provisions of Part 5.3A (such as s 439A (6), which empowers the Court to extend the convening period for a meeting, but does not allow the Court to validate a meeting held too early). The legislative intention was to allow s 447A to be used to alter the way other provisions of Part 5.3A operate.
31 The High Court’s observations on these matters suggest that there is power under s 447A to make the kind of order sought by the plaintiff in this case. The plaintiff seeks an order in relation to a particular company in particular circumstances, altering the effect of a provision of Part 5.3A, namely s 446A. The existence of the power to make such an order arises from the broad literal words of s 447A (1) and from the fact that s 447A is integral to Part 5.3A, one of the provisions of which is s 446A.
32 In their Honours’ view, s 447A may be used where the subject company has been under administration, but by the operation of other provisions of Part 5.3A the administration has come to an end (at 282). I observe that one of the ways the administration of a company comes to an end is by the company’s creditors resolving under s 439C(c) that the company be wound up (s 435C(2)(c)), and in that event s 446A applies and the winding up proceeds as a creditors’ voluntary winding up subject to the modifications imposed by the latter section. Importantly for present purposes, their Honours’ observations at 282 mean that s 447A may be used to modify a provision of Part 5.3A, such as s 446A, notwithstanding that the Company is now in a creditors' voluntary winding up by virtue of the earlier operation of s 446A.
33 Although their Honours regarded the powers conferred by s 447A as wide, they recognised that the powers were subject to some limitations. The principal limitation is that the expression “how this Part is to operate” is an expression that looks to the future, not the past. However, the temporal requirement is satisfied if the orders made under s 447A have effect only from the time of their making. The section can be used to make an order with future effect, in respect of past matters or events (at 282).
Section 90-15(1)
43 It is important first to note that s 1-1(2) of the IP Schedule provides as follows:
1-1 Object of this Schedule
…
(2) The object of this Schedule is also:
(a) to regulate the external administration of companies consistently, unless there is a clear reason to treat a matter that arises in relation to a particular kind of external administration differently; and
(b) to regulate the external administration of companies to give greater control to creditors.
44 Section s 90-15 of the IP Schedule relevantly provides that:
90-15 Court may make orders in relation to external administration
Court may make orders
(1) The Court may make such orders as it thinks fit in relation to the external administration of a company.
Orders on own initiative or on application
(2) The Court may exercise the power under subsection (1):
(a) on its own initiative, during proceedings before the Court; or
(b) on application under section 90-20.
Examples of orders that may be made
(3) Without limiting subsection (1), those orders may include any one or more of the following:
(a) an order determining any question arising in the external administration of the company;
…
Section does not limit Court’s powers
(7) This section does not limit the Court’s powers under any other provision of this Act, or under any other law.
45 The first applicants as deed administrators of the Existing DOCA may apply for orders under s 90-15(1) having regard to ss 90-15(2)(a), 90-20(1)(a), 5-30(a)(iii) and 5-20(b) of the IP Schedule .
46 In Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 at [42]-[44], I said the following and I consider those principles to be applicable in this case:
42 Section 90-15(3)(a) confers a broad power on the Court to make “an order determining any question arising in the external administration of the company”. Where judicial advice is sought in the context of an administration, the only statutory constraint on the exercise of that power is the need to consider whether or not the provision of that advice advances the objects of Part 5.3A set out in s 435A of the Corporations Act and is not inconsistent with the objects of the IPSC set out in s 1-1(2) with respect to administrations.
43 Courts commonly take some guidance from principles applied to the provision of judicial advice under previous regimes. It is uncontroversial that powers of this kind are intended to facilitate the performance of an external administrator’s functions and should be interpreted widely to give effect to that intention where it is advantageous to the administration, but Courts will generally be reluctant to give directions concerning the making or implementation of a business or commercial decision: see In the matter of Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 (Black J) at [9]. Further, the protection afforded by such an order must be predicated on the external administrator having made full and fair disclosure of all relevant facts and circumstances to the Court: see Re Ansett Australia Ltd (No 3) [2002] FCA 90; (2002) 115 FCR 409 at [44] (Goldberg J).
44 Some care should be taken with the application of principles derived from the statutory predecessors of ss 90-15(1) and (3)(a) to ensure that the power conferred by those provisions is not constrained by limitations imposed by no longer enacted requirements. As noted by Gleeson JA in In the matter of Hawden Property Group Pty Ltd (in liq) (ACN 003 528 345) [2018] NSWSC 481; (2018) 125 ACSR 355 at [8], unlike the now repealed ss 479(3) and 511 of the Corporations Act, s 90-15(3)(a) accommodates the determination of substantive rights, provided appropriate notice has been afforded to potentially affected parties. Having said that, as I remarked in GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 at [33]: “despite the breadth of s 90-15(1), it is difficult to envisage circumstances where the power would be exercised if the Court could not be satisfied that it would be just and unless the applicant had demonstrated sufficient utility to the external administration”.
Rule 39.05 of the Federal Court Rules 2011 (Cth)
47 Rule 39.05 of the Federal Court Rules 2011 (Cth) provides as follows:
39.05 Varying or setting aside judgment or order after it has been entered
The Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in a judgment or order; or
(h) there is an error arising in a judgment or order from an accidental slip or omission.
CONSIDERATION OF APPLICATION FOR ORDERS UNDER SECTION 477A AND SECTION 90-15(1)
48 Having regard to the relevant principles set out above, I was satisfied on 16 April 2021 that the Court has power to, and should, make orders broadly of the kind sought in the originating process under s 447A(1) of the Corporations Act and s 90-15(1) of the IP Schedule on the application of the first applicants as deed administrators of the Existing DOCA. Further, I was satisfied on 20 April 2021 that the Court had power to, and should, make orders varying the orders made on 16 April 2021 to accommodate the Second Alternative DOCA to provide creditors with a choice between the proposed DOCAs, as well as a the choices contemplated by s 439C of the Corporations Act.
49 I note that I was not satisfied that I should make the orders on 14 April 2021 and determined to stand the matter over until noon on 16 April 2021 because:
(a) Notice of the hearing of the interlocutory process was given to ASIC and creditors for whom the first applicants had email addresses after the close of business on the day before that hearing was to be conducted at 10.15 am. I was not satisfied that that was sufficient notice or that the issue could be appropriately addressed by granting creditors leave to apply after the substantive orders had been made. Although the Court often makes orders of that kind, it does not give creditors an adequate opportunity to consider the material sent to them and to participate in the hearing so that they may hear oral submissions made by counsel for the applicants or contradictors and the Court’s attitude to them. Further, granting liberty to apply to creditors is a more inefficient process. It requires any creditor who wishes to raise an issue before the Court in an interlocutory proceeding to make a further application and risk incurring not only their own costs but also the relevant administrator’s costs of participating in that application. In circumstances where the first applicants had known since 22 February 2021 that the resumed creditors’ meeting must be held by 30 April 2021, urgency was not a sufficient explanation for giving creditors such short notice of the hearing of the application.
(b) The evidence before the Court as to the nature of the “sale arrangements” with the Calabria/Medich interests was insufficient. Neither the heads of agreement nor the Sale Agreements (which, it transpired, were executed on 13 April 2021) were before the Court on 14 April 2021. The Court was not able to consider for itself the terms of the conditions precedent and the first applicants did not give evidence as to all of the conditions precedent. Further, in circumstances where it was proposed that there be only one deed fund out of which the creditors of the Companies would be paid pro rata, there was no evidence before the Court as to whether all creditors of the Companies would be paid in full or the creditors of Mount Pleasant would suffer detriment. That issue arose in circumstances where Ms Dickerson’s evidence on prior applications had indicated that amounts received on the sale of Mount Pleasant’s assets would likely be sufficient to satisfy all of its creditors in full and return a surplus to its shareholder, McWilliam’s, but it was not at all clear that McWilliam’s creditors would be satisfied in full.
50 As it transpired, Ms Dickerson gave evidence in her affidavit dated 15 April 2021 that a common deed fund would not have been satisfactory to the Australian Taxation Office, a significant creditor of McWilliam’s, with the result that the draft Alternative DOCA now makes provision for two Deed Funds. Further, the Court has now been apprised of the likely return to creditors of McWilliam’s and Mount Pleasant if the Alternative DOCA is approved and the Sale Agreement completed. It is also clear that one third of current employees of the Companies would have continuing employment if the Sale Agreements are completed.
51 This is a case where there is a clear benefit to creditors of the Companies in altering the operation of Part 5.3A of the Corporations Act in its application to the Companies to avoid an immediate winding up upon termination of the Existing DOCA for the reasons given by Ms Dickerson.
52 At the hearing on 16 April 2021, I was not satisfied that it was appropriate to make an order by reference to any new deed of company arrangement, rather than an order specific to the Alternative DOCA. I was satisfied that making orders in the form proposed by the first applicants, which made it clear that it was the Alternative DOCA that would be put before creditors of the Companies, served the objects of Part 5.3A in its application to the Companies having regard to all of the evidence then before the Court. That evidence included the scope of the Sale Agreements having regard to the assets and liabilities covered by them, the future employment of employees and the likely return to creditors.
53 Despite any cost that might be incurred in bringing a deed of company arrangement proposal by De Bortoli before the Court when it had been formulated, in the absence of any evidence or opinion from the first applicants that adoption of such a deed of company arrangement would be in the interests of creditors (or even that it was a proposal that should be put before creditors), it was more appropriate to grant De Bortoli liberty to apply. Having regard to the interlocutory nature of the relief given on 16 April 2021on the application of the first applicants, if De Bortoli produced a deed of company arrangement or a proposal that the first applicants considered should be considered at the resumed creditors’ meeting, that could be addressed by orders made on a new application or by variation to the orders made on 16 April 2021.
54 I was satisfied that it was appropriate to vary the orders made on 16 April 2021 because essentially the same rationale applies to the Second Alternative DOCA as that which applied to the Alternative DOCA and Sales Agreements for the purpose of orders which might be made under s 447A of the Corporations Act. Although the Proposal may have problematic elements as described by Ms Dickerson (including the course of conduct of De Bortoli in and around the sale process), it also offers the prospect of a higher return to the Companies’ creditors and retention of a greater number of employees in the Companies’ businesses. In that context, I note that the terms of any sale agreements contemplated by the Second Alternative DOCA must be agreed before the resumed creditors’ meeting so that there will likely be greater clarity as to the choices the creditors will be called upon to make at the meeting.
55 I note that the matters to be addressed at the resumed creditors’ meeting are those contemplated by cl 21.7 of the Existing DOCA (see [20] above), not s 439C of the Corporations Act. I am not satisfied that the authorities cited in the first applicants’ written submissions relating to circumstances governed by s 439C are relevant since the first applicants are deed administrators, not administrators of the Companies who have obligations under ss 438A and 439A. Having said that, in granting relief under s 447A, I am influenced by the fact that the first applicants appear to me to be acting properly, in the interests of creditors of the Companies and in pursuit of the objects set out in s 435A.
56 Here, as:
(1) There is no reasonable prospect that the Existing DOCA will ever be able to be completed, notwithstanding satisfaction of all conditions precedent;
(2) The Alternative DOCA relates to a formulated agreement that the first applicants (experienced liquidators) are satisfied will provide a better return to unsecured creditors than a liquidation and results in the continuation of businesses of the Companies and provides for the continued employment of about one third of all of the Companies’ employees;
(3) It is a condition precedent to the Second Alternative DOCA that transaction documents be signed before the resumed creditors’ meeting and all indications are that such arrangements will provide an even better return to creditors and secure the employment of more employees of the Companies than the Alternative DOCA, albeit that there may be some difficulties associated with carrying any such agreements into effect as identified by Ms Dickerson; and
(4) There is no contention put by the Calabria/Medich interests that it would breach the terms on which the sales process was conducted, or the heads of agreement or the Sales Agreements to which they are parties for the first applicants to put the Second Alternative DOCA to the resumed creditors’ meeting,
it is entirely consistent with the objects of Part 5.3A for the first applicants to proceed in the manner proposed and for the Court to make the orders made on 16 April 2021 and to vary them in the manner proposed on 20 April 2021.
57 Importantly, the orders sought by the first applicants, including the variation of the orders made on 16 April 2021, give a voice to the creditors of the Companies in determining their future course and that is one of the express objects of the IP Schedule and consistent with the purpose of Part 5.3A (as demonstrated by s 439C).
58 I note that the first applicants do not seek directions that they are justified in proceeding with the sale agreements with the Calabria/Medich interests or with De Bortoli, which they acknowledge to be plainly commercial matters. I accept their submission that the orders that they seek under s 90-15(1) and (3)(a), that they are justified in proposing the Alternative DOCA and the Second Alternative DOCA to permit the sale of the assets and business of the Companies, should be made given the potential uncertainty as to the legal architecture for that process.
59 For completeness, I did not accept the submission made by counsel for Calabria Family Wines that it was necessary for the first applicants to make a recommendation to creditors as to which of the Alternative DOCA and the Second Alternative DOCA they should approve in relation to a meeting convened for the purposes of cl 21.7 of the Existing DOCA. In my view, while the first applicants would be free to make such a recommendation, it would be sufficient for the first applicants to inform the creditors of the material terms of the respective DOCAs and of their opinion concerning whether entry into either DOCA was preferable to any of the other alternatives contemplated by cl 21.7.
CONFIDENTIALITY ORDERS
60 As indicated above, the Court sought evidence of the Sale Agreements which I accept contain commercially sensitive information. The Sale Agreements are set out in exhibit GD8.
61 In Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [6]-[9], Perram J conveniently set out principles relevant to applications for orders under ss 37AG and 37AF and they bear repetition:
3. Principles
6 This Court has recently set out the principles to be applied when it is considering whether or not to make a suppression or non-publication order: Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited (No 4) [2017] FCA 1532 (‘CEO of AUSTRAC v TAB (No 4)’) at [9]-[12]. The present application does not call for any greater elaboration of those principles but they may be distilled as follows:
(1) the FCAA contains Part VAA which relates to suppression and non-publication orders;
(2) the power of the Court to make such orders is contained in s 37AF and the grounds for making them are to be found in s 37AG which includes within it that ‘the order is necessary to prevent prejudice to the proper administration of justice’: s 37AG(1)(a);
(3) such an order is not lightly to be made. It must be necessary to prevent prejudice to the proper administration of justice and not merely desirable: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 666 [39]; Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] per Edelman J;
(4) the Court may make any other order necessary to give effect to the primary order: s 37AF(2) of the FCAA;
(5) the order, once made, must remain in place no longer than is reasonably necessary to achieve its purpose: s 37AJ(2); and
(6) the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE) but no balancing exercise need be carried out between the utility of the order and the interest which open justice assumes under the FCAA: Australian Competition and Consumer Commission v Air New Zealand (No 12) [2013] FCA 533 at [21].
7 In CEO of AUSTRAC v TAB (No 4), the Court concluded that disclosure of the confidential information in that case would have undermined the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) which was apt to prejudice the proper administration of justice. This was significant in the context of an Act of Parliament which had amongst its purposes the thwarting of terrorism financing.
8 It might be thought that the mere protection of commercial-in-confidence information, which is essentially what Hytera seeks in this case, fits less comfortably within the statutory words ‘necessary to prevent prejudice to the proper administration of justice’. But this Court has held in a number of cases that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 235 per Bowen CJ; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23] per Greenwood J; Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [7] per Jacobson J; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (‘Air New Zealand (No 3)’) at [35]; Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 (‘Origin Energy’) at [148] per Katzmann J; ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [93] per Markovic J.
9 There are cogent reasons for this which have variously been described in those cases, but they are generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit. That said, it is important to recall that the order must be necessary to protect the administration of justice. It can readily be imagined that a carte blanche approach to applications for s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court. As I have explained at [6(6)] of these reasons above, the safeguarding of that interest as a primary objective of the administration of justice is a mandatory consideration for the Court. Particularly is that so in cases such as the present, where the Agreement, and its interpretation, may become a central plank in the ultimate resolution of the proceeding, and thus, to the intelligibility of future reasons delivered by the Court.
62 As I remarked at the hearing, I am satisfied that it is necessary in the interests of justice in proceedings such as these that the Court have available to it commercially sensitive material which persons who are not parties to the litigation may be unwilling to provide, or enter into the arrangement in the first place if it will be exposed to the public gaze in short order. That latter impact would not serve the due administration of insolvent estates as envisaged by the Corporations Act. In those circumstances, I am satisfied that it is necessary to make the order sought by the first applicants and supported by the counterparty to one of the Sale Agreements, the person most likely to suffer detriment by the disclosure of the information. I note that they do not seek the order for a long period, merely for the period until the information can be considered by creditors at the proposed meeting or further order. This allows the Court to consider the situation if circumstances change, requiring the further protection of the information or its earlier disclosure.
63 It may be that not every word of exhibit GD8 requires protection; for instance, boilerplate clauses. As has been recognised in a number of cases, it would not serve the interests of justice to require the first applicants to spend time and money necessary to identify particular portions of the material that should be the subject of the order under ss 37AF and 37AG of the Federal Court of Australia Act and it is unlikely that anyone would benefit from the production of redacted versions. In such circumstances, the Court have generally taken the position that the external administrator should not be required to do so: see Deputy Commission of Taxation, in the matter of Italian Prestige Jewellery Pty Limited (in liq) ACN 116 031 022 v Italian Prestige Jewellery Pty Limited [2018] FCA 983 at [57]-[63] (Markovic J) relying on Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) (No 2) [2017] FCA 755 at [37]-[42] (Gleeson J); Vickers, in the matter of J M Kelly Builders Pty Ltd (in liquidation) (No 2) [2019] FCA 1789 at [7] (Farrell J).
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell. |
Associate:
