FEDERAL COURT OF AUSTRALIA

Sprowles, in the matter of ACN 619 665 628 Pty Ltd (in liquidation) v Rouse [2024] FCA 988

ORDERS

THE COURT DECLARES THAT:

1.    Clauses 6.3 and 6.4 of the Exit Deed dated 8 February 2023 (Exit Deed) are uncommercial transactions within the meaning of s 588FB(1) of the Corporations Act 2001 (Cth) (Corporations Act) and voidable transactions within the meaning of s 588FE(3) of the Corporations Act.

2.    Payments made by ACN 619 665 628 Pty Ltd (in Liquidation) (formerly known as Creativemass Enterprises Pty Ltd) (Company) to the Second Defendant between 13 April 2019 and 14 April 2022 are unreasonable director-related transactions within the meaning of s 588FDA(1) of the Corporations Act and voidable transactions within the meaning of s 588FE(6A) of the Corporations Act.

3.    Payments made by the Company to the First Defendant between 16 July 2020 to 13 January 2023 are unreasonable director-related transactions within the meaning of s 588FDA(1) of the Corporations Act and voidable transactions within the meaning of s 588FE(6A) of the Corporations Act.

THE COURT ORDERS THAT:

4.    Pursuant to s 588FF(1)(h) of the Corporations Act, cll 6.3 and 6.4 of the Exit Deed were void or, alternatively, unenforceable, from 8 February 2023.

5.    Pursuant to s 588FF(1)(a) of the Corporations Act:

(a)    the Defendants pay the Second Plaintiff the sum of $431,665.82 plus pre-judgment interest;

(b)    the First Defendant pay the Second Plaintiff the sum of $1,873,935.74 plus pre-judgment interest.

6.    The Defendants pay the Plaintiffs’ costs as agreed or assessed.

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

REASONS FOR JUDGMENT

SHARIFF J:

INTRODUCTION

1    By Further Amended Originating Process dated 25 July 2024, the first plaintiff, Christian Sprowles and Michael Hogan, as liquidators (Liquidators) of the second plaintiff, ACN 619 665 628 Pty Ltd (in Liquidation) (formerly known as Creativemass Enterprises Pty Ltd) (Company), seeks orders under ss 588FB, 588FDA, 588FE and 588FF of the Corporations Act 2001 (Cth) (Corporations Act) relating to certain alleged uncommercial transactions and unreasonable director-related transactions which they say give rise to voidable transactions.

2    The Company was incorporated on 12 June 2017 and developed an online wealth platform that was licenced to its customers. Its flagship product was known as “WealthConnect”, a wealth management application that was operated on cloud infrastructure. The first defendant (Mr Rouse) was appointed a director of the Company from its inception to 8 February 2023. Mr Rouse was the sole director and shareholder of the second defendant (Stratstone).

3    The Liquidators claim that:

(a)    in the period between 13 April 2019 and 14 April 2022, Mr Rouse caused the Company to make 92 payments totalling $431,665.82 to Stratstone pursuant to an inter-company loan agreement, which the Liquidators contend had no commercial or beneficial purpose to the Company;

(b)    in the period between 16 July 2020 and 13 January 2023, Mr Rouse caused the Company to make 116 payments to himself totalling $1,873,935.74, in respect of which the Liquidators have not been able to locate any loan agreement or any other document which explains why the Company was paying these amounts to Mr Rouse;

(c)    on 8 February 2023, Mr Rouse caused the Company to enter into an exit deed with himself, Stratstone and various other entities (Exit Deed) pursuant to which, in exchange for Mr Rouse resigning as a director of the Company and selling shares that he directly or indirectly held in Creativemass Holdings, Inc. (CM Holdings), the “Group” (as defined in the Exit Deed) agreed to forgive and release the debt owed by Mr Rouse and Stratstone.

4    The Liquidators claim that these and other relevant events occurred against the backdrop of the actual fact of the Company being insolvent or the imminent or likely prospect of insolvency. By reference to these matters, the Liquidators seek, amongst other things, the following orders:

(a)    a declaration that cll 6.3 and 6.4 of the Exit Deed are:

(i)    uncommercial transactions within the meaning of s 588FB of the Corporations Act; and

(ii)    voidable transactions within the meaning of ss 588FE;

(b)    an order under s 588FF(1)(h) of the Corporations Act declaring that cll 6.3 and 6.4 of the Exit Deed were void or, alternatively, unenforceable, from 8 February 2023;

(c)    a declaration that payments made by the Company to Stratstone between 13 April 2019 and 14 April 2022 were unreasonable director-related transactions within the meaning of s 588FDA of the Corporations Act and voidable transactions within the meaning of s 588FE;

(d)    a declaration that payments made by the Company to Mr Rouse between 16 July 2020 to 13 January 2023 were unreasonable director-related transactions within the meaning of s 588FDA of the Corporations Act and voidable transactions within the meaning of s 588FE;

(e)    an order under s 588FF(1)(a) of the Corporations Act:

(i)    that the defendants pay the sum of $431,665.82 plus pre-judgment interest; and

(ii)    Mr Rouse pay the sum of $1,873,935.74 plus pre-judgment interest.

5    In support of the orders sought, the Liquidators relied upon the following evidence:

(a)    Affidavit of Christian Sprowles sworn on 10 May 2024;

(b)    Affidavit of Christian Sprowles sworn on 20 May 2024;

(c)    Affidavit of Christian Sprowles sworn on 5 July 2024;

(d)    Affidavit of Christian Sprowles sworn on 24 July 2024;

(e)    Affidavit of Gerard Martin John Kane affirmed on 24 May 2024;

(f)    Affidavit of Gerard Martin John Kane affirmed on 12 July 2024; and

(g)    Affidavit of Gerard Martin John Kane affirmed on 12 August 2024.

6    The evidence relied upon by the Liquidators addressed the factual and other bases of the contentions that were advanced on their behalf based on their investigations of the Company and its affairs. The evidence also addressed the steps that have been taken by and on behalf of the Liquidators to serve all relevant documents upon Mr Rouse and Stratstone and draw to their attention the hearings that were conducted before me. Despite these steps, neither Mr Rouse nor Stratstone entered an appearance in the proceedings. Nor did they appear at the hearings that were conducted before me.

7    At the hearing before me on 16 July 2024, the Liquidators pressed for broader orders in respect of the Exit Deed. I considered it appropriate that, in circumstances where the Liquidators were seeking orders having the effect of voiding or varying aspects of the Exit Deed, other actual or potentially interested parties should be given notice of the application. I adjourned the hearing of the proceedings to enable this to occur and for the Liquidators to consider the ultimate relief that would be pressed. The Liquidators then revised the relief that they sought in the form of the Further Amended Originating Process. The subsequent evidence relied upon by the Liquidators addresses the steps that have since been taken to notify actual or potentially interested parties of the revised application. Based on that evidence, which it is unnecessary for me to rehearse here, I am satisfied that persons who may have an interest in being heard against the orders sought by the Liquidators have been given the opportunity. In the result, no one came forward to oppose the orders sought.

8    The absence of opposition to the orders sought by the Liquidators is not a basis of itself to grant those orders. It remains necessary for the Liquidators to establish the factual and legal grounds upon which they sought the Court to make the orders that were pressed. For the reasons that follow, I am satisfied that the Liquidators have established the factual and legal grounds necessary for the Court to be satisfied that it has both the power to make the orders that are sought and that the Court’s discretion should be exercised in favour of the making of those orders.

THE FACTS

9    Based on the investigations conducted and enquiries made by them, the Liquidators have concluded that the Company’s cash position deteriorated significantly from on or about 31 January 2022.

10    By at least March 2022, employees of the Company were providing it with loans for the purpose of cashflow. By July 2022, cashflow was so poor that the Company could not pay its employees on time.

11    In September 2022, ten employees including three members of management resigned from the Company due to concerns they had regarding the solvency of the Company.

12    These events during 2022 were occurring in the context where the evidence discloses that the Company was making payments to or on behalf of Mr Rouse and Stratstone from in or about 13 April 2019 to 13 January 2023, as follows:

(a)    payments were made from the Company’s NAB Business Everyday Account to Mr Rouse’s ANZ Access Advantage Account as set out in Annexure A to these reasons. These payments totalled $1,794,032.75;

(b)    additional payments were made from the Company’s ANZ Premium Cash Management Account to Mr Rouse’s ANZ Account totalling $37,233.00 as set out in Annexure B to these reasons;

(c)    a further payment was made from the Company’s NAB USD Account on 8 December 2021 to KPMG Cayman for $6,480.00 and recorded against Mr Rouse’s loan account;

(d)    Mr Rouse also used the Company’s American Express Platinum Credit Card to make payments totalling $36,189.99 as set out in Annexure C to these reasons;

(e)    in the period from 13 April 2019 to 14 April 2022, the Company also made payments to Stratstone totalling $431,665.82 from one or more of the Company’s accounts as set out in Annexure D to these reasons.

13    It is evident that a number of these payments, of not insubstantial value, were being made during 2022 when the Company was hard-pressed for cash and was receiving loans from its employees.

14    By in or about September 2022, the Company had engaged Grant Thornton to advise it about appropriate next steps in view of its parlous cashflow position.

15    On or about 28 September 2022, Grant Thornton provided advice in the form of a report to the Company as to the most appropriate pathway to restructure the business including by way of voluntary administration, deed of company arrangement or informal workout and providing analysis of the risks and benefits of these options. Grant Thornton stated that:

(a)    the Company had developed a “Better Outcome Plan” focused on funding its weekly cash burn of $500,000 but the success of the plan was highly dependent on the following three key factors:

(i)    obtaining short-term cashflow bridging finance from RH Capital Finance Co. LLC (Rocking Horse) of $5.5 million by week 4 to enable it to continue until such a time that an anticipated Research and Development refund was received from the Australian Taxation Office (ATO);

(ii)    receiving the Research and Development refund in full from the ATO by week 10; and

(iii)    the success of a (then) consortium bid process concluding by January / February 2023 which was hoped to provide a significant cash injection together with future support to enable the Company to continue to expand until it was sustainable;

(b)    however, if any of these steps could not be achieved, the Better Outcome Plan would fail and it was Grant Thornton’s opinion that the directors would have no other alternative than to place the Company into formal insolvency proceedings immediately; and

(c)    the critical “no go” date for the Company was 31 October 2022 because wages had been paid up to this date, and, if there was any doubt by this date as to whether the Rocking Horse loan was not to be forthcoming, then, the Company should appoint a voluntary administrator.

16    On 27 October 2022, the Company’s Board considered Grant Thornton’s report and resolved to “seek urgent repatriation of available inter-company loans”. Despite this, there was no demand made of Mr Rouse and Stratstone to repay the substantial amounts that had been paid to them up until that time. The Minutes record that one of the directors, Mr Kirk, moved the Board to appoint certain partners from Grant Thornton as voluntary administrators. Mr Rouse declined to take this course but indicated that if he did not have confirmation from the ATO as to a payment plan and a definitive receipt of Rocking Horse’s preparedness to advance the anticipated loan, then, the Company would be placed into administration by 4 November 2022. Mr Kirk was not content with this course and resigned. This left Mr Rouse as the Company’s sole director.

17    As things came to pass, the key steps which formed the basis of its Better Outcome Plan did not eventuate. The Company knew by:

(a)    15 November 2022 that it would not receive any further funding from Rocking Horse; and

(b)    26 November 2022 that it would not receive the full refund from the ATO.

18    On 26 October 2022, one of the Company’s lenders withdrew its funding and reserved its rights to call on its earlier debt. On 15 November 2022, another lender informed the Company that it would not provide any further funding.

19    Despite these matters not coming to pass, Mr Rouse did not appoint voluntary administrators as he had foreshadowed at the Board Meeting on 27 October 2022. Instead, between 4 November 2022 and 13 January 2023, Mr Rouse caused the Company to make eight further payments to himself in an aggregate amount of $113,331.00.

20    By 10 January 2023, the Company owed USD $8.3 million plus interest to National Nominees Limited ACN 004 278 899 as nominee for The University of Sydney (National Nominees) and USD $729,000 to Equity Trustees Limited ACN 004 031 298 ATF Harvest Lane Asset Management Absolute Return Fund (Harvest Lane), and both of these debts were overdue. The Company could not repay these debts and could not meet its obligations to its employees including its obligations in respect of superannuation and directors’ and officers’ insurance.

21    On 8 February 2023, the Company entered into a document described as a “Binding Term Sheet” (Term Sheet) with Equisolve Consulting Limited (Equisolve), AMP Group Finance Services Limited (AMP), Harvest Lane and National Nominees. Under the Term Sheet, Equisolve and AMP would advance to the Company an initial amount of $1,000,000 on demand and then a second amount of $500,000, and a further facility of $1,000,000 was to be made available by Equisolve, AMP and one of Harvest Lane or National Nominees “at their absolute discretion”.

22    The Term Sheet provided that the advances had to be used solely of the purpose of funding working capital requirements including payment of wages, superannuation and other benefits of employees of the Company and to a maximum of $100,000 to fund the costs of legal, accounting and financial advice for the benefit of the Company in relation to its financial position and its proposed restructuring and for insurance.

23    The Term Sheet stipulated that it was a condition precedent to the funding to be provided that Mr Rouse resign as a director (cl 18). Specifically, cl 18 stated:

Conditions Precedent to each Drawdown

The Borrower’s right to make any Drawdown (defined below), and the Participating Lenders’ obligation to make any Advances (defined below), during the Term is subject to and conditional on:

…

e.    evidence that Michael Rouse has resigned as a director of the Borrower and one or more new directors have been appointed to the board of the Borrower…

24    The Term Sheet provided for the Company, Mr Rouse, Creativemass Hong Kong Ltd (CM HK), CM Holdings and certain other entities to enter into an Exit Deed substantially in the form of a document set out in Annexure C to the Term Sheet. However, entry into the Exit Deed was not a condition precedent to the AMP funding (cl 26). Specifically, cl 26 stated:

Exit Deed

An exit deed to be entered between the Borrower, Michael Rouse and certain other entities substantially in the form in Annexure C on or about the date of this term sheet, noting that this is not a condition precedent under the AMP Facility.

25    To be clear about this, as it takes on some significance, it was a condition of the loans to be advanced to the Company that Mr Rouse resign as a director of the Company but it was not a condition precedent to the advance of the AMP loans that the Exit Deed be entered into.

26    On the same day, the Company entered into the Exit Deed. The Exit Deed:

(a)    required Mr Rouse to resign as a director from all “Group” companies (which included the Company and CM Holdings);

(b)    provided for CM HK to sell all of its shares in CM Holdings. The evidence disclosed that Mr Rouse directly or indirectly held shares in CM HK and, in turn, that entity held shares in CM Holdings which in turn held shares in the Company; and

(c)    provided that, in consideration for these matters, the Group would forgive and release the debt owed by Mr Rouse and Stratstone.

27    Specifically, cll 6.3 and 6.4 of the Exit Deed provided as follows:

6.3    First Debt Forgiveness

Subject to, and with effect from, satisfaction of the First Debt Forgiveness Conditions, each Group Company forgives, and unconditionally and irrevocably releases and discharges the Executive from repayment of, the First Debt Forgiveness Amount.

6.4    Final Debt Forgiveness

Subject to, and with effect from, satisfaction of the Final Debt Forgiveness Conditions, each Group Company forgives, and unconditionally and irrevocably releases and discharges the Executive and Stratstone from repayment of, the Final Debt Balance.

28    Pausing here, as addressed further below, cll 6.3 and 6.4 are of considerable significance to the evaluation of whether those terms as contained in the Exit Deed were an uncommercial transaction. That is because the terms of the Exit Deed relating to the disposal of shares did not alter the (then) perilous financial position of the Company and the release in favour of Mr Rouse and Stratstone only worsened that position as it involved forgiving the debts that they respectively owed to the Company. The only potential benefit to the Company was that the Exit Deed made provision for Mr Rouse to resign as a director and this was a condition precedent to the advance of the loans contained in the Term Sheet, but, as discussed further below, the resignation of Mr Rouse could have been secured without the Company agreeing to forgive the debts owed by Mr Rouse and Stratstone.

29    On 8 February 2023, Mr Rouse ceased to be a director of the Company.

30    On 9 February 2023, Mr Ashley Hasforth became a director of the Company. Between 10 February and 7 March 2023, some funding was advanced by Equisolve, AMP and Harvest Lane to the Company.

31    On 15 March 2023, the Company appointed the Liquidators as voluntary administrators.

32    On 28 April 2023, the Liquidators were appointed liquidators of the Company.

APPLICABLE STATUTORY PROVISIONS

33    Section 588FB of the Corporations Act sets out the circumstances in which a transaction entered into by a company will be considered uncommercial. “Transaction” in this context is defined broadly in s 9 of the Act to include a release or waiver by the company.

34    Section 588FB provides as follows:

588FB Uncommercial transactions

(1)     A transaction of a company is an uncommercial transaction of the company if, and only if, it may be expected that a reasonable person in the company’s circumstances would not have entered into the transaction, having regard to:

(a)     the benefits (if any) to the company of entering into the transaction; and

(b)     the detriment to the company of entering into the transaction; and

(c)     the respective benefits to other parties to the transaction of entering into it; and

(d)     any other relevant matter.

35    Section 588FDA of the Corporations Act outlines when a transaction entered into by a company will be considered an unreasonable director-related transaction. It relevantly provides as follows:

588FDA Meaning of unreasonable director-related transaction

(1)     A transaction of a company is an unreasonable director-related transaction of the company if, and only if:

(a)     the transaction is:

(i)     a payment made by the company; or

(ii)     a conveyance, transfer or other disposition by the company of property of the company; or

(iii)     the issue of securities by the company; or

(iv)     the incurring by the company of an obligation to make such a payment, disposition or issue; and

(b)     the payment, disposition or issue is, or is to be, made to:

(i)     a director of the company; or

(ii)     a relative of a director of the company; or

(iii)     a relative of a spouse of a director of the company; or

(iv)     a person on behalf of, or for the benefit of, a person of a kind referred to in subparagraph (i), (ii) or (iii); and

(c)     it may be expected that a reasonable person in the company's circumstances would not have entered into the transaction, having regard to:

(i)     the benefits (if any) to the company of entering into the transaction; and

(ii)     the detriment to the company of entering into the transaction; and

(iii)     the respective benefits to other parties to the transaction of entering into it; and

(iv)     any other relevant matter.

(2)     To avoid doubt, if:

(a)     the transaction is a payment, disposition or issue; and

(b)     the transaction is entered into for the purpose of meeting an obligation the company has incurred;

the test in paragraph (1)(c) applies to the transaction taking into account the circumstances as they exist at the time when the transaction is entered into (rather than as they existed at the time when the obligation was incurred).

(3)     A transaction may be an unreasonable director-related transaction because of subsection (1):

(a)     whether or not a creditor of the company is a party to the transaction; and

(b)     even if the transaction is given effect to, or is required to be given effect to, because of an order of an Australian court or a direction by an agency.

36    Uncommercial transactions and unreasonable director-related transactions may be voidable in certain circumstances. Section 588FE sets out the circumstances in which a transaction will be voidable, as follows:

588FE Voidable transactions

(1)     If a company is being wound up:

(a)     a transaction of the company may be voidable because of any one or more of subsections (2) to (6) if the transaction was entered into on or after 23 June 1993; and

(b)     a transaction of the company may be voidable because of subsection (6A) if the transaction was entered into on or after the commencement of the Corporations Amendment (Repayment of Directors’ Bonuses) Act 2003; and …

(2)     The transaction is voidable if:

(a)     it is an insolvent transaction of the company; and

(b)     it was entered into, or an act was done for the purpose of giving effect to it:

(i)     during the 6 months ending on the relation-back day; or

(ii)     after that day but on or before the day when the winding up began.

…

(3)     The transaction is voidable if:

(a)     it is an insolvent transaction, and also an uncommercial transaction, of the company; and

(b)     it was entered into, or an act was done for the purpose of giving effect to it, during the 2 years ending on the relation-back day.

…

(5)     The transaction is voidable if:

(a)     it is an insolvent transaction of the company; and

(b)     the company became a party to the transaction for the purpose, or for purposes including the purpose, of defeating, delaying, or interfering with, the rights of any or all of its creditors on a winding up of the company; and

(c)     the transaction was entered into, or an act done was for the purpose of giving effect to the transaction, during the 10 years ending on the relation-back day.

…

(6A)     The transaction is voidable if:

(a)     it is an unreasonable director-related transaction of the company; and

(b)     it was entered into, or an act was done for the purposes of giving effect to it:

(i)     during the 4 years ending on the relation-back day; or

(ii)     after that day but on or before the day when the winding up began.

37    The “relation-back day” is the date from which a transaction may be considered void. The relevant relation-back day is determined in accordance with s 91 of the Corporations Act. Generally, the relation-back day will correspond with the date that a company entered administration or an application for winding up was filed.

38    Section 588FC of the Corporations Act sets out the circumstances in which a transaction will be considered to be an insolvent transaction. It relevantly provides as follows:

588FC Insolvent transactions

A transaction of a company is an insolvent transaction of the company if, and only if, it is an … uncommercial transaction of the company, and:

(a)     any of the following happens at a time when the company is insolvent:

(i)     the transaction is entered into; or

(ii)     an act is done, or an omission is made, for the purpose of giving effect to the transaction; or

(b)     the company becomes insolvent because of, or because of matters including:

(i)     entering into the transaction; or

(ii)     a person doing an act, or making an omission, for the purpose of giving effect to the transaction.

39    In the event that the Court is satisfied that there is or are voidable transactions, s 588FF empowers the Court to make orders about voidable transactions, including as follows:

588FF Courts may make orders about voidable transactions

(1)     Where, on the application of a company’s liquidator, a court is satisfied that a transaction of the company is voidable because of section 588FE, the court may make one or more of the following orders:

(a)     an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction;

…

(e)     an order releasing or discharging, wholly or partly, a debt incurred, or a security or guarantee given, by the company under or in connection with the transaction;

…

(g)     an order providing for the extent to which, and the terms on which, a debt that arose under, or was released or discharged to any extent by or under, the transaction may be proved in a winding up of the company;

(h)     an order declaring an agreement constituting, forming part of, or relating to, the transaction, or specified provisions of such an agreement, to have been void at and after the time when the agreement was made, or at and after a specified later time;

(i)     an order varying such an agreement as specified in the order and, if the Court thinks fit, declaring the agreement to have had effect, as so varied, at and after the time when the agreement was made, or at and after a specified later time…

VOIDABLE UNCOMMERCIAL TRANSACTION

40    By reason of the above statutory provisions, the ultimate questions to be determined in relation to the orders that the Liquidators seek in relation to the Exit Deed is whether it has been established that:

(a)    entry into cll 6.3 and 6.4 as contained in the Exit Deed was an uncommercial transaction within the meaning of s 588FB;

(b)    if so, whether it is a voidable transaction within the meaning of s 588FE, which, in turn, requires consideration as to whether it was an insolvent transaction within the meaning of s 588FC;

(c)    if so, whether the Court is empowered to make orders that seek to void or vary the relevant clauses by which the debts owed by Mr Rouse and Stratstone were forgiven and released (being cll 6.3 and 6.4 of the Exit Deed) from when they were entered into.

Applicable principles

41    In Capital Finance Australia Ltd v Tolcher [2007] FCAFC 185, Gordon J stated at [126] that for a transaction to be voidable on account of it being uncommercial:

(a)    it must be entered into, or an act must be done giving effect to it, during the relation back period: s 588FE(3)(b);

(b)    at the time of the transaction or when something was done to give effect to it, [the Company] must have been insolvent (s 588FC(a)); and

(c)    it may be expected that a reasonable person in [the Company’s] circumstances would not have entered into the transaction taking into account the benefits for [the Company], the detriment to [the Company], the respective benefits to other parties to the transaction and any other relevant matters: s 588FB(1).

42    As to the third requirement, that relating to what may be expected of a reasonable person, Gordon J summarised the principles to be applied in determining this issue as follows:

(a)    as the express words of s 588FB make clear, it is an objective standard to determine if a transaction is uncommercial: see also Lewis (as liquidator of Doran Constructions Pty Ltd (in liq) v Doran (2005) 54 ACSR 410 at [156] and Tosich Construction Pty Ltd (in liq) v Tosich (1997) 78 FCR 363 at 366-367;

(b)    four criteria are to be considered – the benefits enjoyed by the company (s 588FB(1)(a)), the detriment to the company (s 588FB(1)(b)), the respective benefits others received (s 588FB(1)(c)) and any other relevant matters (s 588FB(1)(d));

(c)    the objective criteria are not considered in some vacuum but by reference to “the company’s circumstances” which must include the state of knowledge of those who were the directing mind of the company, such as its controlling director or directors: Tosich Construction at 367; and

(d)    for a transaction to be “uncommercial” it must result in “the recipient receiving a gift or obtaining a bargain of such magnitude that it [cannot] be explained by normal commercial practice” or where “the consideration … lacks a ‘commercial quality’”: see Peter Pan Management Pty Ltd v Capital Finance Corp (Aust) Pty Ltd (2001) 19 ACLC 1392 at [43], Lewis v Cook (2000) 18 ACLC 490 at [45]-[46] and Demondrille Nominees Pty Ltd v Shirlaw (1997) 25 ACSR 535 at 548 and the Explanatory Memorandum, Corporate Law Reform Bill 1992 at [1044].

43    These principles are assessed in the context of the settled proposition that the powers of the directors of a company must be used for the purposes of that company. This does not preclude the exercise of a power with a view to an advantage received by another company if the transaction is one for the benefit of the company entering into it. The benefit need not be direct but can be indirect: Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2001] NSWSC 448; 38 ACSR 404 at [192]. It is also relevant to observe that the directors of a company which is a member of a corporate group owe their duties to the particular company, and not to the group as a whole: Walker v Wimborne (1976) 137 CLR 1 at 6-7 (Mason J, with whom Barwick CJ agreed). It is the interests of that particular company alone which are to be considered: In Re McGrath: HIH Insurance Ltd [2010] NSWSC 404; (2010) 266 ALR 642 at [39] (Barrett J).

44    In Lewis, the New South Wales Court of Appeal considered a debt restructuring within a group of three companies. One company “Holdings” paid $4.1 million to a related company “Constructions”, in part repayment of prior indebtedness and Constructions lent $4.1 million to a third related company. The Court concluded that the transaction was uncommercial. Giles JA said at [148]:

It was necessary for the directors to consider the interests of Constructions, as a separate legal entity, in deciding whether to participate in the debt restructuring … It has nonetheless been recognised that a transaction benefiting one company in a group may have derivative benefits for another company in the group, even if the companies are not parent and subsidiary. In Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 Brennan J observed (at 183) that “it may be for the benefit of solvent companies in a group to guarantee the liabilities of a holding company in order to benefit the guarantor companies as well as other members of the group”. In Equiticorp Finance Ltd (In Liquidation) v Bank of New Zealand Clarke and Cripps JJA said …

“It may be accepted, therefore, that actions carried out for the benefit of the group as a whole may, in particular circumstances, be regarded as benefiting as well one or more companies in the group. This may occur even where, for instance, a company is providing a guarantee for its holding company or another company in the group. Similarly a transaction carried out for the benefit of one of the companies in the group, company A, may be seen to be for the benefit of another company in the group, company B.”

(Emphasis added).

45    It is therefore necessary for the Court to consider the interests of the company as distinct from the group as a whole to ensure that companies are not sacrificed for the good of other companies in the group: see Lewis at [149].

46    Relevant to the present case, in Sparks v Berry [2001] QSC 251; (2001) 19 ACLC 1430 (Chesterman J), the liquidator brought an application seeking the repayment of the debt owed to the Company by a director on the ground that the resolution forgiving the debt was voidable under s 588FE of the Corporations Act. The Court found that the release of a director’s debt was an uncommercial transaction. The Court observed that the Company received nothing and lost its only substantial asset: see [14].

47    If the Court is satisfied that there is a voidable uncommercial transaction, the Court may exercise powers under s 588FF to void or vary the transaction. In Campbell Street Theatre Pty Ltd (In Liq) v Commercial Mortgage Trade Pty Ltd [2012] NSWSC 669, Black J exercised the powers under s 588FF to declare that entry into various agreements was an uncommercial transaction, an insolvent transaction and a voidable transaction, and ordered that the documents giving effect to the transaction “be released or discharged insofar as it might require any payments by the First Plaintiff to the First Defendant; be released or discharged insofar as it secures payments to the First Defendant.”: Campbell Street at [44].

Consideration

48    For the reasons set out below, I am satisfied that entry into cll 6.3 and 6.4 as contained in the Exit Deed was a voidable uncommercial transaction. I pause to note that the plaintiffs sought declarations that it was these terms that were uncommercial transactions and voidable transactions. They did not otherwise challenge the validity of the Exit Deed or its terms. By reference to the definition of the word “transaction” in s 9 of the Corporations Act, it is the release or waiver effected by entry into the deed on the terms in cll 6.3 and 6.4 which constitutes the relevant transaction. It may be that the “transaction” could be differently characterised as being the whole of the transaction reflected in the full suite of terms contained in the Exit Deed, but that is not the case that the plaintiffs ultimately put to me, and for present purposes, I do not think it much matters.

49    For the purposes of s 588FE(3)(b) of the Corporations Act, I am satisfied that the Company entered into the Exit Deed during the relation-back period being within the two years ending on relation-back day which is 15 March 2023.

50    For the purposes of s 588FC(a), I am further satisfied that as at the time of entry into the Exit Deed, the Company was insolvent. It is to be borne in mind that insolvency is a question of fact to be ascertained from a consideration of the company’s financial position taken as a whole and having regard to the commercial realities: Lewis at [93], quoting Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at 224 [54].

51    On the facts here, the Company was insolvent by the time of the entry into the Exit Deed. This is consistent with the advice given by Grant Thornton. Based on the facts which I have set out above, by the time the Exit Deed was entered into:

(a)    the Better Outcome Plan had failed:

(i)    Rocking Horse had declined to advance the funding required to keep it afloat;

(ii)    the ATO had not provided the full refund;

(b)    over USD $10 million in debt was due and payable to various lenders, and other lenders had indicated that they would cease funding the Company;

(c)    the Company could not meet its immediate working capital needs including paying its employees, superannuation or insurances.

52    Next, for the purposes of s 588FB(1), I am satisfied that entry into cll 6.3 and 6.4 as contained in the Exit Deed was an uncommercial transaction. On an objective view of the facts and circumstances that prevailed at the time of the entry into the Exit Deed and its terms, a reasonable person in the Company’s circumstances would not have entered into the Exit Deed taking into account the benefits for the Company, the detriment to the Company, the respective benefits to other parties to the transaction and any other relevant matters: s 588FB(1).

53    It may be accepted that the Exit Deed was entered into in the context of the Term Sheet by which certain lenders were to advance funds to the Company. However, by reference to the express terms of the Term Sheet, the relevant matter that was being insisted upon by those lenders as one condition precedent to the advances was the resignation of Mr Rouse as a director of the Company. As I have already stated, entry into the Exit Deed was not a condition precedent of the advances to be made by AMP under the terms of the Term Sheet.

54    Thus, whilst it may be accepted that the Exit Deed provided some benefit to the Company in that it provided for Mr Rouse to resign as a director of the Company, which satisfied the condition precedent to the Term Sheet, this was a situation that was tied in the Exit Deed to other terms and conditions which, in my view, had no objective benefit to the Company and, in fact, were detrimental to the Company.

55    Specifically, cll 6.3 and 6.4 of the Exit Deed provided that the debts owed by Mr Rouse and Stratstone would be forgiven and released. This was of no benefit to the Company and was detrimental to its interests. The quantum of those debts was approximately $2.3 million which was a substantial amount at the time, especially in the circumstances of the perilous financial position of the Company. This was money that the Company could have put to commercial purposes, which it gave away.

56    There was no reciprocal benefit to the Company in forgiving the debts owed by Mr Rouse and Stratstone. To the extent that they secured Mr Rouse’s resignation as a director of the Company, there was no need, let alone any obligation upon the Company, to agree to such a term to secure his resignation. On all the facts, it would appear that it was well known that unless Mr Rouse resigned, the lenders would not advance any funds under the Term Sheet. The result of that would have been the effective administration and liquidation of the Company (as came to pass) but these events would have occurred without foregoing the right to recover debts owed by Mr Rouse and Stratstone.

57    To the extent that the Exit Deed also provided for Mr Rouse giving up the shares he held directly or indirectly in the Group, that aspect of the transaction did not give rise to any benefit to the Company. That is because, putting to one side whether the shares at the time had any value or a value commensurate with the value of the debts that were forgiven, such a transaction was as between an existing shareholder and an incoming one. That transaction did not involve the Company and did not advance its interests. There was nothing in the Exit Deed that provided that any incoming shareholder would be injecting capital into the Company. Thus, this part of the transaction did not alter the Company’s financial position, other than that an aspect of that transaction was that the Company forgave the debts owed by Mr Rouse and Stratstone.

58    It is also relevant that at the time of the Exit Deed, Mr Rouse was the only director of the Company. In my view, it is palpable that Mr Rouse preferred his interests to those of the Company. He secured for himself a sale of his shares and a forgiveness of the debts that he and Stratstone owed with no objective benefit flowing to the Company.

59    For these reasons, and in line with the principles set out above, I am satisfied that entry into cll 6.3 and 6.4 as contained in the Exit Deed was a voidable uncommercial transaction within the meaning of s 588FE(3) of the Corporations Act.

60    The next question that arises is whether I should exercise the power under s 588FF(1) to order that cll 6.3 and 6.4 should be deleted from the Deed. I note that differing views have been expressed as to whether s 588F(1) confers a discretion (as opposed to jurisdiction) to make or not make one or other of the orders set out in s 588FF(1)(a)-(j): see Great Investments Ltd v Warner [2016] FCAFC 85; (2016) 243 FCR 516 at [141]. For my part, the better view appears to be that the power is discretionary, but must be exercised judicially in light of the purpose and object of Part 5.7B of the Corporations Act: see Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) v Edenborn Pty Ltd [2020] FCA 715; (2020) 145 ACSR 20 at [203] ff (Davies J). In the present case, it does not matter as I am satisfied on the evidence before me that the power is enlivened and, to the extent that a discretion is involved, I consider it appropriate to exercise that discretion to make such orders for the reasons I have stated above.

VOIDABLE UNREASONABLE DIRECTOR-RELATED TRANSACTIONS

61    As noted above, s 588FE(6A) makes an unreasonable director-related transaction voidable for the benefit of the Company’s creditors:

(a)    if it was entered into during the four years ending on the relation-back day; and

(b)    it was unreasonable, objectively assessed by reference to what a reasonable person in the Company’s circumstances may be expected not to do.

Applicable principles

62    The principles applicable to the unreasonable director-related transaction provisions of the Corporations Act were considered in Crowe-Maxwell v Frost (2016) 91 NSWLR 414 at [67]-[92] by Beazley P (with whom Macfarlan and Gleeson JJA agreed). Beazley P at [70] referred to the judgment of Gleeson J in Smith (in his capacity as liquidator of Action Paintball Games Pty Ltd) (in liq) v Starke (No 2) [2015] FCA 1119; (2015) 109 ACSR 145 and adopted the following principles from her Honour’s judgment:

(a)    impropriety or breach of director’s duty is not necessary to establish an unreasonable director-related transaction (at [104]);

(b)    the inquiry under s 588FDA(1)(c) is concerned with the reasonableness of the company’s conduct, objectively assessed (at [104]-[105]);

(c)    the inquiry under s 588FDA(1)(c) is conducted by reference to the company’s circumstances, encompassing all relevant matters (at [107]);

(d)    normal commercial practice is a relevant but not determinative matter in conducting the s 588FDA(1)(c) inquiry (at [108]); and

(e)    a transaction of derivative benefit only can still be for the benefit of the company (at [110]).

See also D Pty Ltd (in liq) v Calas (Trustee), in the matter of D Pty Ltd (in liq) [2016] FCA 1409 at [61]-[72].

63    Further, in Crowe-Maxwell [89]-[92], Beazley P considered the onus of proof in relation to unreasonable director-related transactions. Her Honour stated at [89]:

A common thread in the uncommercial transaction cases is that, where there is limited evidence of the nature or purpose of a transaction, but the surrounding circumstances show it to be a departure from normal commercial practice and to raise inferences as to a lack of benefit to the company, detriment caused to the company, or benefit accruing to other parties, absent some commercial explanation, courts may infer the transaction was uncommercial, without requiring the liquidator to prove its precise uncommercial nature. The same may be said with respect to the identification of unreasonable director-related transactions.

(Emphasis added).

Consideration

64    As noted above, in the period between 13 April 2019 and 13 January 2023, the Company made payments to Mr Rouse and Stratstone.

65    The Liquidators have not been able to locate any documents which support or otherwise explain the payments made to Mr Rouse. These payments made to Mr Rouse are not explained as salary. Mr Rouse’s salary payments appear separately in the bank statements that were tendered into evidence. Many of the payments appear from their descriptions alone to warrant further explanation. For example, Mr Rouse appears to have paid himself superannuation, but superannuation is not paid directly to an individual. Similarly, Mr Rouse continued to make payments to himself even when the Company seemingly had no available cash and was obtaining loans from its employees, and otherwise seeking to obtain loans from third parties and raise capital elsewhere.

66    In the case of Stratstone, the Liquidators have located an inter-company loan agreement between the Company and Stratstone. On its face, the inter-company loan agreement is startling in that it offered a $100 million line of credit on an interest free and unsecured basis. The Liquidators submitted, and I accept, that it is difficult to imagine any rational explanation as to why a small proprietary company with less than $6 million in turnover would be offering a company controlled by Mr Rouse a $100 million line of credit.

67    The Liquidators also submitted, and I accept, that the absence of written documentation for the supposed loans is more unusual given that shareholders are required to approve such loans and there is an absence of written documentation as required under Division 7A of the Income Tax Assessment Act 1936 (Cth).

68    In line with the principles stated above, the overwhelming evidence satisfies me that the amounts advanced to Mr Rouse and Stratstone were unreasonable director-related transactions within the meaning of s 588FDA(1) and that they are voidable transactions within the meaning of s 588FE(6A). I am satisfied that I should so declare. I am also satisfied that I should make orders for Mr Rouse and Stratstone to make payment of the monies reflecting these transactions pursuant to s 588FF(1)(a).

DISPOSITION

69    For the foregoing reasons, I am satisfied that I should make the orders that are sought.

Associate:

Dated:        29 August 2024

ANNEXURES

Annexure A

Annexure B

Annexure C

Annexure D