Federal Court of Australia

Specialised Welding Australia Pty Ltd v Disselkoen [2024] FCA 1184

ORDERS

THE COURT ORDERS THAT:

1.    The fourth defendant and cross-claimant has leave to amend the Interlocutory Application dated 21 August 2024 in terms provided to the Court on 4 October 2024.

2.    The fourth defendant and cross-claimant is to file and serve the Amended Interlocutory Application at or before 4.00pm today.

3.    The Amended Interlocutory Application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 8 October 2024 the Court made orders disposing of an interlocutory application in this proceeding on an urgent basis. Oral reasons were given on that day. This a written record of those reasons, revised from the transcript.

2    Mr Robert Jacobs and Mr Andrew Smith assert that on 18 July 2024 they were appointed as joint receivers and managers of Specialised Welding Australia Pty Ltd (ACN 105 453 398) (Company) by Mr John Grono. I will refer to Mr Jacobs and Mr Smith together as the Grono Receivers.

3    In their asserted official capacities, the Grono Receivers caused the Company to seek orders to facilitate the receivership, including orders compelling certain persons to deliver up the Company’s books and records and to give up possession of its property. The originating process named the Company as the plaintiff and was filed on 12 August 2024. The Company’s sole director, Mr Mitchell Garbutt, was named as the second defendant.

4    Mr Grono claims to be entitled to appoint the Grono Receivers under the terms of a General Security Deed dated 19 October 2022. He asserts that the General Security Deed created a security interest in respect of a debt owing under a Loan Agreement dated 12 October 2022, as varied by a Deed of Variation made on 26 September 2023. In addition, he relies on a charge created by clause 11.3 of the Loan Agreement itself.

5    On 21 August 2024 a non-party secured creditor, Blackbird First Mortgage Corporation Pty Ltd (ACN 645 782 850), filed an interlocutory application in this proceeding, describing itself as the cross-plaintiff and the Grono Receivers and Mr Grono as cross-defendants. By orders made on 30 September 2024, Blackbird was joined as a fourth defendant and cross-claimant and the interlocutory application (since amended) is treated as a cross-claim.

6    Among other things, Blackbird seeks orders under s 418A of the Corporations Act 2001 (Cth) declaring the appointment of the Grono Receivers to be invalid.

7    Blackbird’s position is that external administrators had previously been appointed and that in the context of that administration, the Company’s creditors resolved to enter into a Deed of Company Arrangement (DOCA). The creditors voting in favour of the DOCA included Mr Grono. Blackbird submits that the combined effect of the DOCA and the provisions of Pt 5.3A of the Corporations Act is that any security interest previously existing under the General Security Deed or Loan Agreement as varied by the Deed of Variation was extinguished, with the consequence that Mr Grono has no entitlement to appoint receivers and managers to the Company.

8    Mr Grono submits that the Deed of Variation gave rise to a new and discreet claim post-dating the DOCA which is validly secured by the General Security Deed, at least.

9    Blackbird’s interlocutory application was originally set down by the docket judge for hearing on 29 October 2024. By orders made on 30 September 2024 that hearing date was vacated and the interlocutory application was expedited to an urgent hearing before me as duty Judge to avoid further damage to the Company’s affairs caused by uncertainty as to its management and control.

Facts

10    The dispute between the parties turns upon the construction of key documents and the application of Pt 5.3A of the Corporations Act to the facts and circumstances. There is very little in factual dispute.

11    Mr Grono was a director of the Company between 13 February 2017 and 19 June 2023. He and the Company entered into the Loan Agreement in September 2022 and the General Security Deed in October 2022. I will refer to the loan monies owing under the loan agreement as originally in force as the initial debt. The security interest created by the General Security Deed was perfected by registration on the Personal Property Securities Register (PPSR) soon afterward and has registration number 202210240000681 (Grono Registration).

12    As at 7 November 2022, the amount owing under the Loan Agreement was $3,998,475.76. On that day, the Company’s directors resolved that voluntary administrators (Mr Clifford Rocke and Mr Jimmy Trpcevski) be appointed to the Company.

13    Mr Grono lodged a proof of debt in the administration for the initial debt, and the proof was accepted. Mr Grono voted in favour of the DOCA at a meeting of creditors on 13 June 2023. The DOCA was executed on 19 June 2023 and the administrators then became Deed Administrators. Managerial control of the Company and its affairs transferred from the administrators to Mr Garbutt as the DOCA Proponent Nominee.

14    In the course of the administration, Mr Grono advanced a loan of $600,000.00 to the Company at the request of Mr Rocke. That loan has been repaid in full and no more need be said about it.

15    Relevantly, Mr Grono deposes that in September 2023 he had a further conversation with Mr Rocke in relation to a further financial contribution. His unchallenged evidence of that conversation is as follows:

24.    On or around 18 September 2023, I received a phone call from Mr Rocke who said words to the effect that the Administrators and First Global (which I understood to be a reference to the DOCA proponent, First Global Capital Partners Pty Ltd) require assistance with the final payment required under the DOCA so that it can be fully effectuated because the proponent First Global has missed the contribution payment required under the DOCA. The sum of $285,000 was needed, and Mr Rocke asked me if I could contribute $75,000 because First Global could pay the balance of $210,000. He said in substance that my security that existed pre administration remained secure and effective for this loan.

25.    During the phone call referred to in the preceding paragraph, Mr Rocke also told me that First Global had not paid the $210,000 and asked me to lend SWA $285,000. I said yes I would pay the $285,000 to SWA, provided that the loan was secured by my security.

16    Mr Grono and Mr Garbutt signed the Deed of Variation on 26 September 2023.

17    The Recitals to the Deed of Variation contained statements to the effect that the parties to it entered into the Loan Agreement and the General Security Deed “the terms of which continue to be binding on the Parties” and that they had agreed to vary the Loan Agreement in the terms there set out. An operative clause in the Deed of Variation was expressed as follows:

3.    Variation of Loan Agreement

(a)    The Parties acknowledge and hereby agree that, with effect from the Effective Date, the Principal Sum contained in the Reference Schedule at page 22 of the Loan Agreement is varied by inserting the words ‘Plus an additional advance of funds which is the equivalent in value to one hundred thousand US dollars (USD $100,000) the exchange rate calculated as at the Effective Date)’.

(b)    Except as varied or amended in this Deed, the Parties confirm that the terms and conditions of the Loan Agreement and its corresponding General Security Agreement are otherwise unaffected and continue in full force and effect.

(emphasis added)

18    The “Effective Date” is defined in the Deed of Variation as the date on which the last of the parties executed the instrument, which appears on the evidence before me, to be 26 September 2023.

19    The DOCA was subject to a condition that secured creditors who had PPSR registrations against the Company remove those registrations. On 28 September 2023 Mr Grono received an email sent on behalf of the Deed Administrators confirming that that condition was waived.

20    Also on 28 September 2023, Mr Grono advanced $200,000.00 to an account held by the Deed Administrators by electronic funds transfer, and a further amount of $85,000.00 to the same account on the following day.

21    On 17 October 2023, Mr Grono received a request from the Company’s then-director for a further advance of money to assist the Company to pay its employees. He deposes as follows (at [33]):

I said I would lend the $50,000 to SWA on the same terms as my previous loans to SWA pre DOCA and on the condition that the further loan was secured by my security. Mr Wittensleger said that was all agreed and that I was ‘covered’.

22    Mr Grono then advanced the sum of $50,000.00 on 20 October 2023. That advance, together with the $285,000.00 earlier advanced, will together be referred to as the relevant debt.

23    In accordance with the DOCA, Mr Grono later received a payment from a creditor’s trust in respect of his proof relating to the initial debt, in the amount of $112,545.54. He then made oral and written requests for repayment of the relevant debt, principal and interest. In response to those requests he received only $15,749.46. When no payment was made he issued a notice of demand for the amount outstanding on 20 March 2024 and appointed the Grono Receivers. Records maintained by the Australian Securities and Investments Commission confirm that the Grono Receivers were appointed as joint and several receivers and managers on and from 22 July 2024.

24    Mr Stewart Wilkinson is the sole director of Blackbird. He deposes that Blackbird appointed Messrs Richard Albarran and Brent Trevor-Alex Kijurina as joint and several receivers and managers of the Company on 25 July 2024. I will refer to them as the Blackbird Receivers. On 1 August 2024, they retired their appointments as managers but retained their appointments as receivers. Their appointments were made pursuant to the terms of a secured guarantee arrangement between Blackbird and the Company, the details of which need not be set out here.

25    The Blackbird Receivers wrote to the Grono Receivers raising concerns about the validity of their appointment. They allege that the underlying security interest perfected by the Grono Registration was extinguished when the Company underwent external administration and Mr Grono voted in favour of the DOCA.

The Corporations Act

26    A deed of company arrangement has the effect provided for in Div 10 of Pt 5.3A of the Corporations Act.

27    Section 444H of the Corporations Act provides that a deed of company arrangement releases a company from a debt to the extent that the deed provides for its release and the relevant creditor is bound. There is no dispute that the Company was released from the initial debt by virtue of that and other provisions.

28    Section 444D(1) of the Corporations Act provides that a deed of company arrangement binds all creditors of the company, “so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i)”. That day for present purposes is 7 November 2022 (Relevant Date).

29    Section 444D(2) is as follows:

(2)    Subsection (1) does not prevent a secured creditor from realising or otherwise dealing with the security interest, except so far as:

(a)    the deed so provides in relation to a secured creditor who voted in favour of the resolution of creditors because of which the company executed the deed; or

(b)    the Court orders under subsection 444F(2).

30    A deed of company arrangement binds a company, its officers and members and the deed’s administrators:  Corporations Act, s 444G.

General Security Deed

31    As I have mentioned, the General Security Deed was made on 19 October 2022 and registered on and from 24 October 2022. It applies to all of the Company’s present and after acquired property and secures the payment of money and performance of obligations under any “Transaction Document”. The Deed of Variation is a Transaction Document for that purpose.

32    In addition, clause 11.3 of the Loan Agreement created a security in respect of obligations arising under it in the following terms:

11.3    Charge over assets

In addition to the Borrower’s other Obligations, the Borrower charges in favour of the Lender, all of its Rights, title and interest in all of its property, including both its real property and PPSA Personal Property and whether existing or acquired after the Agreement Date, with the repayment of the Debt.

Relief sought by Blackbird

33    Section 418A of the Corporations Act provides that where there is doubt on a specific ground about whether the purported appointment of a person as receiver of property of a company is valid, the Court may, on application, declare whether or not the appointment was valid, whether on the ground specified in the application or some other ground.

34    By its Interlocutory Application (as amended), Blackbird seeks declarations to the effect that the appointment of the Grono Receivers was invalid, together with declarations that any security interest arising from the Loan Agreement as varied by the Deed of Variation, and/or the General Security Deed, is unenforceable. Alternatively, it seeks orders that Mr Grono be restrained from realising or otherwise dealing with any security interest arising from the Loan Agreement and/or the General Security Deed.

35    It was common ground that on an application of this kind, Mr Grono has the onus of satisfying the Court that the appointment of the Grono Receivers was supported by a valid and presently enforceable security interest, being an interest that survived the DOCA and the creditor’s trust created by it.

DOCA

36    The DOCA provided for the making of a Deed Payment in the sum of $970,000.00, to be made by the Proponent to the Deed Administrators under clause 10.

37    Clause 1 contains a number of definitions relevant to the dispute as follows:

“Claim” means:

… a debt payable by … the Company … being a debt or claim any of the circumstances giving rise to which occurred on or before the Relevant Date that would be admissible to proof against the Company in accordance with Division 6 of Part 5.6 of the Corporations Act 2001 (Cth), if the Company had been wound up and the winding up is taken to have commenced on the Relevant Date …

“Relevant Date” means:

… the appointment of the Administrators to the Company, being 7 November 2022.

“Admitted Claims” means:

… any Claim by a Participating Creditor against the Company that is admitted to proof by the Administrators in accordance with this deed.

“Admitted Creditor” means:

… a Participating Creditor who has an Admitted Claim.

38    Clause 2.4(b) relevantly provides that on Effectuation:

(i)    Participating Creditors are to obtain entitlements under the Trust Deed in substitution for their Claims against the Company and their entitlements under this deed prior to that time;

(ii)    the Claims of all Participating Creditors will be released and discharged in consideration of their participation in the Trust in accordance with clause 3.4 of this deed and the Terms of the Trust Deed; and

…

39    Clause 4 is titled “Secured Creditors”. It provides:

(a)    Subject to:

(i)    any Court order pursuant to section 444F(2) of the Corporations Act; or

(ii)    the provisions below,

nothing in this deed:

(iii)    shall bind a Secured Creditor; or

(iv)    shall restrict in any manner whatsoever any right that a Secured Creditor has to lawfully enforce, realise or otherwise deal with its security interest over all or any part of the property of the Company at any time, including during the course of this deed,

to the extent permitted by section 444D(2) of the Corporations Act and except where the Secured Creditor votes in favour of the resolution to approve this deed.

(b)    For the avoidance of doubt, a Secured Creditor will not be entitled to participate in any distributions from the Creditors’ Trust and unless specified in this deed such Secured Creditor’s Claim shall not be affected by this deed.

40    The conditions for Effectuation included the following (clause 1.1):

…

(g)    all of the Secured Creditors either:

(vii)    providing written consent to release their Security Interests; or

(viii)    voting in favour of the resolution approving this deed at the Meeting,

(h)    the Secured Creditors who have PPSR registrations against the Company removing such registrations;

…

Meaning of “Claim”

41    The statutory context of Pt 5.3A was summarised succinctly by Vaughan J in Smith v Sandalwood Properties Ltd (2019) 344 FLR 278 (at [68] – [85]). In addition, his Honour summarized (at [91]) the principles stated by the High Court in Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509, as follows:

In Lehman Bros Holdings Inc v City of Swan French CJ, Gummow, Hayne and Kiefel JJ made a number of observations as to the operation of s 444D(1):

(1)    It is s 444D(1) alone that makes a DOCA binding on creditors ([52]).

(2)    Section 444D(1) identifies who is to be bound by the DOCA (all creditors) but then proceeds to limit the extent to which those creditors are bound (so far as concerns identified claims) ([50]).

(3)    Creditors are bound so far as concerns claims against the company that arose before a specified date [52]. Creditors cannot be bound by operation of a DOCA beyond the limit stated in s 444D(1) ([53]).

(4)    In the application of s 444D(1) effect must be given to the words ‘so far as concerns claims arising on or before the day specified in the deed’ ([55]). (In a separate judgment Heydon J referred to the words ‘so far as Concerns’ in s 444D(1) as being ‘elastic’ words of connection but suggested that they bore a narrow meaning in the context of s 444D(1) ([71])).

42    Vaughan J went on to observe the obvious congruence between the phrases “claims the circumstances giving rise to which occurred before the relevant date” in s 553(1) and “claims arising on or before the day specified” in the DOC in s 444D(1) (at [78]). His Honour said that nothing of significance was “to be derived from s 553(1)’s use of ‘debts’ and ‘claims’ compared to s 444D(1)’s reference only to ‘claims’”. His Honour said it was accepted that the word “claims” was used as a single expression to what s 553 divides into debts and claims in the context of a winding-up.

43    In clause 1 of the DOCA, the phrase “any of the circumstances giving rise to which” is wider than the meaning in s 444D and s 553 of the claim because it requires only that a single fact or circumstance be in existence whether or not that single fact or circumstance could, considered alone, constitute a claim.

44    The contesting parties acknowledged that the task of the Court was to identify whether the facts and circumstances said by Mr Grono to give rise to the relevant debt and the associated right to appoint receivers meet the definition of a claim in the DOCA, and that the definition itself must be construed in accordance with the Corporations Act. More specifically, I will construe the definition of a claim to conform with the concept of a claim in s 444D and s 553 of the Corporations Act as explained by the High Court in Lehman Brothers.

Blackbird submissions

45    For Blackbird, it was submitted that the source of the legal obligation to repay the relevant debt was the Loan Agreement, specifically clauses 3.1 and 3.2. That is because, Blackbird submitted, the Deed of Variation did nothing more than to vary the definition of the principal sum in clause 3(b) which defined the sum owing under that existing agreement. Blackbird submitted that the terms and conditions under the Loan Agreement otherwise remained unaffected and continued in full force and effect.

46    There was, Blackbird submitted, no new contract. Applying a phrase drawn from the authorities, the basal fact was the entry into the Loan Agreement itself which occurred in 2022. Blackbird submitted that the advance of future monies was contemplated by the Loan Agreement, and that at the time of the DOCA the advance of future monies was in contemplation. There was, it submitted, a liability to pay future advances contingent upon the advances in fact being made. Blackbird submitted that whilst apparently counter intuitive, a creditor in Mr Grono’s position had other remedies, specifically an application under s 445D or s 447A if invoked in time.

47    Blackbird further submitted that clause 4 of the DOCA operated to extinguish the security interest of its own force and in its own terms. On its terms, clause 4 does so in relation to claims that are affected by the DOCA, but not claims that are not affected by the DOCA. And so it remains necessary to identify whether Mr Grono has a claim that is not affected by the DOCA.

48    Blackbird accepted that if the money had been advanced pursuant to a newly drawn contract and not by way of variation to an older contract, then the legal obligation to repay the money would have arisen after the Relevant Date and the security interest could and would operate in respect of it. Blackbird accepted more generally that the General Security Deed could attach to legal obligations coming into existence after the Relevant Date, and that the security interest is preserved for the purpose of enforcing present claims or debts.

49    Blackbird’s ultimate submission was that the claim for repayment of the relevant debt is a contingent claim, in the sense that, as at the Relevant Date, there was a contingent liability to repay future money to the extent that future money was advanced.

Contingent Claims

50    The effect of the authorities is that a person may be a contingent creditor of a company in respect of claims for future breach of a contractual obligation existing at a relevant date whether in the context of a winding up or in the context of a deed of company arrangement. The cases demonstrate that it is necessary to construe the contract said to be the source of the creditor’s rights and the Company’s obligation. A possible future breach of an existing contractual obligation may constitute a claim that is affected by a deed of company arrangement, if the contractual obligation exists before a relevant date and the breach occurs afterward. In addition, a contingent claim may be one comprising a pre-existing obligation to pay or perform, where the time for payment or performance depends on the occurrence of a fact or event which may or may not occur. In such cases, there may be a claim for the purposes of a deed of company arrangement, provided that the contingent obligation exists at the relevant date, even if the factual event of the contingency does not occur until afterward.

51    The principles concerning contingent claims are otherwise conveniently summarised at [49] of Mr Grono’s submissions, extracted verbatim here:

(a)    A contingent claim is one that is sourced in an existing obligation out of which, on the happening of a contingency which may or may not occur, there will be present liability to pay.

(b)    A contingent creditor is a person to whom a corporation owes an existing obligation out of which a liability on its part to pay a sum of money will arise in a future event, whether that event be one which must happen or only an event which may happen.

(c)    The essential feature of a contingent debt or claim is ‘its source in some existing obligation or state of affairs that may or may not mature into a present debt’.

(d)    It is necessary to identify the elements of the substantive obligation which the claim represents and assess whether the circumstances reveal the existence of a basal fact (in place on or before the relevant date) necessary to bring that substantive obligation into being. [footnote 35:  Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1567 [57]-[58]]

(e)    An important factor in considering the nature of any possible basal contract is whether it involves a ‘continuing obligation to supply or perform an ongoing service or benefit’ and whether it, in fact, carried the seed or provided the genesis of the eventual claim. [footnote 36:  Re One.Tel Ltd; Ex parte Walker [2007] NSWSC 1478; (2007) 215 FLR 428 [20]-[23]]

(f)    Examples of such ongoing basal contracts are leases and guarantees.

consideration

52    I draw the following conclusions in accordance with the principles stated in the authorities and the text of the Corporations Act.

53    As at 7 November 2022 there existed no varied Loan Agreement. The Loan Agreement existing at that time was exhausted in the sense that the Company had no contractual right to any further loan money and Mr Grono had no contractual obligation to advance it. It was, as counsel for Mr Grono correctly submitted, an exhausted facility.

54    The variation to the Loan Agreement occurred in actual fact in September 2023. That is, the date upon which Mr Grono and the Company formed the intention to be legally bound in relation to new rights and obligations that had not previously existed in relation to the relevant debt, each exchanging promises in consideration for the other. Mr Grono then, and only then, promising to advance the money giving rise to the relevant debt in consideration for the Company then, and only then, promising to both repay, and to provide the Company’s assets as security for the repayment obligation.

55    The mere circumstance that the Loan Agreement was made or recorded by way of the variation to an instrument bearing the earlier date does not create a friction that the agreement to advance the money giving rise to the relevant debt came into existence on the date of the Loan Agreement, or that it ever existed at any time prior to the Relevant Date. That is reinforced by the terms of the Deed of Variation itself. On its terms, it creates obligations coming into existence on and from the Effective Date, namely 26 September 2023. It speaks prospectively, not retrospectively.

56    At the time of voting on the DOCA the relevant facts and circumstances were that the Company had no contractual right to demand the advance of any money under the Loan Agreement as it then existed, unvaried. The Deed of Variation was necessary for that to occur. Expressed another way, the money giving rise to the relevant debt was advanced not pursuant to the Loan Agreement as in contractual force between the parties immediately prior to the Relevant Date, but in accordance with the terms of a varied Loan Agreement that did not in fact exist until it was entered into after the Relevant Date.

57    Accordingly, I conclude that the entering into the Deed of Variation was not a contingency that triggered any obligation previously existing under the Loan Agreement in its original form. To adopt words from the authorities, in its original form the Loan Agreement did not supply the “source” or “seed” of the obligation to pay the relevant debt. That obligation was first created by the Deed of Variation. Nothing in that construction is inconsistent with the DOCA construed in accordance with the Corporations Act, nor inconsistent with the Corporations Act itself.

58    A creditor in Mr Grono’s position was entitled to ask what claims he had against the Company as at the Relevant Date, including contingent claims, and that is all that he compromised when voting on the DOCA.

59    It is not necessary to ask whether money advanced under the Loan Agreement could validly be secured, whether under clause 11 of the Loan Agreement itself or separately under the General Security Deed, either will suffice.

60    Nor is it necessary to find that condition (h) for Effectuation of the DOCA was waived only for the purpose of enabling the General Security Deed to operate in respect of the advance of the money giving rise to the relevant debt under the Varied Loan Agreement.

61    Nor is it necessary to consider arguments about election between inconsistent rights. The controversy can be resolved by identifying the rights that were compromised and extinguished by the DOCA.

62    I have considered arguments advanced by Blackbird to the extent that the relevant debt was one that was created by way of a variation to a written instrument first created at an earlier time, and its acknowledgement that Mr Grono would have been protected had he secured a debt that was recorded in a new and different instrument. It is difficult to see how the objectives of Pt 5.3A could be promoted by drawing such a fine distinction. That is especially so when Pt 5.3A requires that a secured creditor be in a position to make a choice based on facts and circumstance that are knowable at the time, or at least predictable. Here the knowable and predictable facts and circumstances were that Mr Grono had performed all of his obligations under the Loan Agreement on its terms as presently then in force between the parties and he had claims against the Company for breach. It was those claims that were extinguished by the DOCA.

63    It is not correct to describe the possibility of a variation to that Loan Agreement made at a later time as a contingent claim existing at an earlier time. As at the Relevant Date, there was no claim to be repaid against the relevant debt in accordance with the definition of “claim” under the DOCA, whether contingent or otherwise.

64    Accordingly, I conclude that the claim that formed the foundation of the appointment of the Grono Receivers was not affected by the DOCA nor by the creditors’ trust established under it. It follows that Blackbird’s amended interlocutory application must be dismissed.

Associate:

Dated:    8 October 2024

SCHEDULE OF PARTIES