Federal Court of Australia

Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (Administrators Appointed) (No 3) [2021] FCA 519

ORDERS

THE COURT ORDERS THAT:

1.    On the date seven days after (but not including) the date of the completion of the tasks identified in paragraph 25 of the affidavit of Jason Bing-Fai Tang sworn 15 March 2021:

(a)    the first plaintiffs forthwith be discharged from their appointment as the Receivers; and

(b)    the first plaintiffs, their firm Cor Cordis and their employees and agents, forthwith be discharged and released from any and all claims whatsoever and however arising out of or in connection with their appointment as the Receivers.

2.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), the formal requirements of r 14.25 be dispensed with.

3.    The first plaintiffs are authorised to maintain all documents held by them in relation to their appointment as the Receivers for a period of seven years from the date of their discharge, following which period they be at liberty to dispose of such documents held by them.

4.    The costs and expenses in respect of and incidental to this application be costs in the receivership of the RB Trust and be paid forthwith from the Trust Assets held by the Receivers and, if they be insufficient, from the property of the second plaintiff.

5.    This proceeding otherwise be dismissed.

In these orders:

(a)    Appointment Order means the order of Foster J made on 16 March 2018 in this proceeding.

(b)    Receivers means the first plaintiffs in their capacity as the joint and several receivers and managers of the Trust Assets appointed by the Court pursuant to the Appointment Order.

(c)    RB Trust means “The Robson & Bennet Family Trust” (formerly known as “The Paul and Vicki Robson Family Trust”).

(d)    Trust Assets means the property, assets and undertakings of the RB Trust.

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

REASONS FOR JUDGMENT

YATES J:

1    As explained in previous reasons for judgment given in this proceeding, the first plaintiffs were appointed as liquidators of the second plaintiff, Ardenberg Pty Ltd (in liquidation) (Ardenberg) on 7 March 2018, following events of default under a deed of company arrangement. Ardenberg is the trustee of The Robson and Bennet Family Trust (the RB Trust). It does not own assets other than in its capacity as trustee of the RB Trust. Moreover, it has traded only in that capacity.

2    On 16 March 2018, the Court appointed the first plaintiffs as receivers and managers of the property, assets and undertaking of the RB Trust, with a power of sale.

3    The first plaintiffs now apply to the Court to be discharged as receivers and managers because the object of their appointment has now been achieved: Lunn v Savage [2006] NSWSC 240 at [8].

4    Jason Bing-Fai Tang, who is one of the first plaintiffs, has made several affidavits in this proceeding in which he has provided details of the course of the receivership and the realisation of the trust assets. When determining the first plaintiffs’ application for remuneration, I summarised the stage at which the realisation process had reached at the end of the period for which remuneration was claimed: Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (Administrators Appointed) (No 2) [2020] FCA 1424 (Reasons 2) at [21] – [28]. As explained at that time, Ardenberg’s principal activity was conducting a supermarket business from premises at 18 Maritana Street, Piccadilly, Western Australia (the Maritana Street property). The Maritana Street property was one of the assets of the RB Trust. Another asset was a property at 102 Brookman Street, Kalgoorlie, Western Australia (the Brookman Street property), which was occupied by three tenants. The principal assets of the RB Trust were the supermarket business and its stock, the Maritana Street property, and the Brookman Street property.

5    On 7 November 2018, the first plaintiffs completed the sale of the supermarket business. On 6 May 2019, they completed the sale of the Maritana Street property. On 23 April 2020, they completed the sale of the Brookman Street property. On 15 August 2020, they received final payment for certain stock sold in connection with the supermarket business.

6    Mr Tang’s evidence is that, so far as he is aware, all property and assets of the RB Trust have now been realised. Australia and New Zealand Banking Group Limited (ANZ) is Ardenberg’s and the RB Trust’s only remaining secured creditor, with an outstanding claim, as at 25 February 2021, of approximately $1,761,145.08. This claim exceeds the amount of the proceeds from the net realisation of the property and assets of the RB Trust. This means that no money is available for distribution to other creditors of the RB Trust, the beneficiaries of the RB Trust, or Ardenberg’s creditors or shareholders. The only tasks that remain for the first plaintiffs, as receivers and managers, is to pay the balance of the net sale proceeds to ANZ and to pay the costs and expenses, including legal costs and court fees, in relation to the present application.

7    Based on Mr Tang’s evidence, I am satisfied that the objects of the receivership have been achieved. It is appropriate that an order be made that the first plaintiffs be discharged from their appointment as receivers and managers, subject to the first plaintiffs completing the remaining tasks to which I have referred.

8    There are two other matters I should address.

9    The first matter is the first plaintiffs’ application to be relieved of the formal requirements of r 14.25 of the Federal Court Rules 2011 (Cth). This rule provides that a receiver must file accounts at the times ordered by the Court. The purpose of filing accounts is to achieve the object of passing accounts, so as to verify that all amounts received in the course of the receivership are accounted for and that all payments made in the course of the receivership have been properly made and are evidenced. However, as I explained in Sprowles, in the matter of Triumph N Triumph Pty Ltd (in liq) (No 2) [2021] FCA 405 at [13], courts have readily made orders dispensing with this requirement. This will be appropriate where the benefit obtained by adhering to the standard procedure of passing accounts is outweighed by the significant costs and time involved in undertaking that task: Kerr, in the matter of Angel’s Castle Pre-School Pty Ltd (in liquidation) (No 2) [2012] FCA 57 at [5] – [8]; Gandangara Local Aboriginal Land Council v Gandangara Services Limited [2015] NSWSC 2011 at [12].

10    The first plaintiffs submit that this is the case here. First, there is no extant order requiring the first plaintiffs to file accounts. Secondly, the entire net proceeds of the realisation are to be paid to ANZ. There are no funds left over. Thirdly, Mr Tang has prepared, and annexed to his affidavit of 15 March 2021, a summary of receipts and payments in the receivership for the period 7 March 2018 to 9 February 2021. Fourthly, Mr Tang has deposed to his belief that the cost of preparing and passing formal accounts would be disproportionate to the benefit that might accrue from that process. In the circumstances of this case, I think that that is most likely to be the case. I have no reason to doubt Mr Tang’s assessment in that regard. I am satisfied, therefore, that it is appropriate that an order be made dispensing with the requirement to file and pass accounts in relation to the receivership.

11    The second matter is the first plaintiffs’ application for an order that they, their firm, their employees, and their agents be discharged and released from claims arising out of or in connection with their appointment as receivers and managers. Mr Tang’s evidence is that, apart from ANZ’s claim to be paid the net proceeds of realisation, and the need to make payment for the costs and expenses of the present application, he is not aware of any other claims, or circumstances which may give rise to claims, against the first plaintiffs (or their firm, employees, or agents) arising in connection with the receivership.

12    The first plaintiffs have brought to my attention the statement of principle in Inland Revenue Commissioners v Hoogstraten [1985] 1 QB 1077 by Dillon LJ at 1094 that:

... It has always been recognised that the court has power, by making an order for release and discharge, to protect its officer, whether a sequestrator or a receiver, from all liability for acts done in the course of his duties. As I have indicated earlier in this judgment, it would be wrong to exercise this power without first investigating or making provision for the investigation of claims of which the court has notice. But I do not see that the court is obliged to wait until the end of the limitation period before protecting the court’s officer against a claim, if the claimant, having had ample opportunity to do so, neglects to prosecute the claim.

13    This principle has been applied in this Court in University of Western Australia v Gray (No 30) [2010] FCA 1063 (the release to take effect on discharge of the receivers); Refund Property Fees Pty Ltd v Prime Project Development (Cairns) Pty Ltd [2015] FCA 613 (the release to operate in the absence of a claim being instituted in three months or within such longer period as the Court might allow); and Official Assignee in Bankruptcy of the Property of James Adair Hanna v Hanna [2019] FCA 1934 (the release to take effect forthwith).

14    In the course of the first plaintiffs’ submissions, I raised for consideration whether, as a matter of general approach, the appropriate course might be to grant a release (if otherwise appropriate to be granted) subject to the Court permitting a claim to be raised with the Court’s leave. The benefit of adopting such a course would be to allow some flexibility to enable a genuine and viable claim, of which a receiver is unaware, to be made, having regard to the particular circumstances of the case, including the time when the claim is made and the position in which the receiver then finds himself or herself.

15    After some reflection, I have resiled from adopting that course (if it be appropriate) in the present case. This is because the receivership has been on foot for some time, with the principal assets of the RB Trust having been realised for many months, without further claims made upon the first plaintiffs, other than as noted above. As to the conduct of the receivership, notice of the present application has been given to the defendants who have raised no opposition, and have not appeared. I note, in particular, that the first defendant, Mr Robson, sought to agitate a number of complaints or concerns he had about the conduct of the receivership at a case management hearing on 27 March 2019. However, as I noted in Reasons 2 at [14] – [15], these complaints or concerns did not materialise into any formal application to the Court. They appear to have been addressed in correspondence from the first plaintiffs to Mr Robson. Had these complaints or concerns remained unaddressed, and had they been of substance and otherwise viable, they could, and should, have been raised formally some time ago. They were not pursued.

16    In light of the evidence before me, I am satisfied that it would be appropriate to grant the first plaintiffs the release they seek, and that that release should take effect on the date of their discharge as receivers and managers of the RB Trust.

17    For these reasons, I will make the orders that the first plaintiffs seek.

Associate:

Dated:    19 May 2021

SCHEDULE OF PARTIES