FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation v Polcarp Pty Ltd [2011] FCA 1142 Citation: Deputy Commissioner of Taxation v Polcarp Pty Ltd [2011] FCA 1142 Parties: DEPUTY COMMISSIONER OF TAXATION v POLCARP PTY LTD File number: NSD 824 of 2011 Judge: PERRAM J Date of judgment: 29 September 2011 Catchwords: CORPORATIONS – Winding Up – Application to adjourn winding up – Corporations Act 2001 (Cth) s440A Legislation: Corporations Act 2001 (Cth) ss 440A, 467 Cases cited: Creevey v Deputy Commissioner of Taxation (1996) 32 ATR 632 cited Deputy Commissioner of Taxation v Bradley Keeling Management (2003) 44 ACSR 377 cited Date of hearing: 29 September 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Solicitor for the Plaintiff: Mr C Bavin of Hunt & Hunt Counsel for the Defendant: Mr JT Johnson Solicitor for the Defendant: Beazley Singleton Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 824 of 2011 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: POLCARP PTY LTD Defendant JUDGE: PERRAM J DATE OF ORDER: 29 SEPTEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The orders of the District Registrar given on 29 September 2011 be set aside. 2. In lieu thereof, the proceedings be adjourned to Wednesday 5 October 2011 at 2:15pm before the District Registrar. 3. There be no order as to costs, whether before the District Registrar or Perram J. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 824 of 2011 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: POLCARP PTY LTD Defendant JUDGE: PERRAM J DATE: 29 SEPTEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court is an application by the plaintiff to wind up the defendant, Polcarp Pty Ltd, in insolvency. When the matter came before the District Registrar, the defendant – who, by then, was in administration – applied for an adjournment of the winding up. The basis for the adjournment was that there would be, at 10:30am on Friday 30 September 2011, the second meeting of creditors contemplated under Part 5.3A of the Corporations Act 2001 (Cth) and the gravamen of the application was that the winding up proceedings should be adjourned in order to give the creditors the benefit of an advantage accruing with a proposed deed of company arrangement. 2 The Registrar was not disposed to accede to the application and it was refused during the course of the afternoon of Thursday 29 September 2011. The defendant was entitled as of right to have the matter reheard by a judge and that right was exercised immediately by the defendant which brought the matter, at length, before me late this afternoon. Mr Johnson of counsel, who appeared for the defendant, pursued the application for the adjournment before me orally. It became clear during the course of the application that it was pressed upon two distinct bases. The first was that provided for in s 440A(2) of the Corporations Act, which provides as follows: 440A Winding up company … (2) The Court is to adjourn the hearing of an application for an order to wind up a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. 3 Secondly, the application was pursued under the Court's more general powers in relation to winding up proceedings pursuant to s 467(1) of the Corporations Act, which provides that on the hearing of a winding up application the Court may, relevantly: (b) adjourn the hearing conditionally or unconditionally 4 The pertinent difference between those two provisions for present purposes is as follows: s 440A(2) has attached to it a precondition which, in the event that it is met, requires the Court without any further exercise of discretion simply to adjourn the proceedings. By contrast and in contradistinction the power conferred by s 467(1)(b) is not mandatory in terms and may be exercised as the discretion needs to be. As Campbell J pointed in Deputy Commissioner of Taxation v Bradley Keeling Management (2003) 44 ACSR 377 at [14], the positive duty of the Court under s 440A(2) does not deny and does not denude the continuing existence of the discretionary power otherwise to adjourn the proceedings. Put another way, perhaps more shortly, the mere fact that the requirements of s 440A(2) are not satisfied does not deprive the Court more generally of its jurisdiction to adjourn the proceeding if it be thought necessary in any event. 5 On the application for the adjournment, three affidavits were read. The first was the affidavit of Mr David Anthony Hurst, sworn on 28 September 2011. Mr Hurst is a registered liquidator and has practised as an administrator. Annexed to his affidavit was the report to creditors which had been prepared by him and circulated to the creditors of Polcarp Pty Ltd in advance of the meeting of creditors scheduled for tomorrow. 6 The second affidavit was an affidavit of Mrs Karen Polley also sworn on 28 September 2011. It deposed to the value of two items of real property, a boat and some home contents. It also annexed some valuations of the real property involved. The burden of the affidavit was to establish that the net equity of Mrs Polley and her husband, Mr Tony Polley, was in the order of $506,040.40. I shall return to the relevance of that in due course. The third affidavit was the affidavit of Mr Polley of 29 September 2011 and he confirmed that deposed to in Mrs Polley's affidavit, namely that together they undertook to provide a guarantee to the deed administrator, if necessary, guaranteeing a figure of $100,000, the relevance of which will shortly appear. 7 The administrator's report to creditors sets out the history to and background of the company in question. Very shortly, the defendant trades as Cessnock Carpet Court, which is a carpet vendor; the business is conducted as part of a franchise; and the franchisor is known as Carpet Court Australia Limited. The franchisor is a creditor of the company and has indicated that it supports the proposed deed of company arrangement. One consequence of the company being wound up in insolvency would be that the franchise arrangement would come to an end. 8 The report to creditors sets out the recent trading history of the company between 30 June 2008 and 30 June 2011; the administrator's preliminary investigations into the affairs of the company; and, having considered questions of cash-flow, the author of the report expresses the opinion that the likely return to creditors in the event of a winding up will be zero. If the matter proceeds under the proposed deed of company arrangement it will be instead, at least according to the report, 4.8 cents in the dollar. 9 After the preparation of the report to creditors, however, the administrator revised his estimates and there was tendered before me as Exhibit 1 a document which set out the estimated return to creditors on three different scenarios. Under the deed of company arrangement scenario the likely return would be 7.9 cents in the dollar; under the two liquidation scenarios the return to creditors would be zero. On that basis, the administrator was of the view that it was in the interests of creditors that the deed of company arrangement be adopted for the obvious reason that creditors would receive more money under the deed than they would if the company was wound up. 10 The proposed deed included as one of its features the formation, as is not uncommon, of a deed fund which would consist of $100,000. That $100,000 would be engendered, so it appeared, by the company continuing to trade from its premises under the franchise arrangement. In effect, it would be produced from the cash-flows of the business. The administrator expressed in his report the view that this was not an unreasonable position to adopt. 11 Before me, it was said that the administrator had agreed to take security for the formation of the deed fund from Mr and Mrs Polley, who are the directors of the defendant. Doubts were expressed by the plaintiff as to the value of that assertion and consequently evidence was put before the Court to which I have already made reference which shows, if the evidence is accepted, that Mr and Mrs Polley have equity in excess of $500,000 in their real property. Further, they indicated in their affidavits their willingness to accept to guarantee the deed fund and in light of the administrator having informed me that he will extract the security from them, I see no reason not to proceed upon the basis that that security will not be advanced. 12 The Deputy Commissioner of Taxation opposes the adjournment of the proceedings, broadly speaking, for two reasons. First, he attacks the report of the administrator as being largely speculative. Secondly, he says in any event that the security contemplated by the provision of the guarantees by Mr and Mrs Polley is itself an asset which is sufficiently uncertain, both in its form and also in its possibility of being realised, that the Court ought not to be satisfied that the adjournment of the winding up petition is a useful, or at least utile, venture. 13 Insofar as the principles to be applied it seemed to be accepted that the proper approach was set out by the Full Court in Creevey v Deputy Commissioner of Taxation (1996) 32 ATR 632 at 633, where it was said by McPherson JA that in an application under s440A(2): … there would have to be some persuasive evidence to enable it to be seen that there were assets which, if realised under one form of administration rather than the other, would produce a larger dividend, or at least an accelerated dividend for the creditors. Of course, as has been accepted on a number of occasions, that test is not to supplant the language of the statute – so much is plain. 14 The burden of the Deputy Commissioner's first argument, when one turned to the terms of the report to creditors, was that it was apparent that what was involved was really a process of speculation in which little confidence could be placed. The particular point which the Deputy Commissioner took issue with was the cash-flow projections which appeared attached to the administrator's affidavit. The cash-flow projections were not prepared by the administrator himself. They were instead prepared by Mr Stephen Davidson, who is the company's accountant. 15 The covering letter for the cash-flow projections made plain that the cash-flow forecasts were based upon assumptions which themselves were sourced in the information which had been provided to the accountant by the company. The cash-flow projections were subject to two criticisms by Mr Bavin, who appeared for the Deputy Commissioner. First, although they assumed correctly that the income for the previous financial year had been $2,063,443, they assumed without any explanation that there would be a five per cent increase in that income in the following year. There was said to be no reasoning disclosed or explanation given for why that five per cent figure should be correct. 16 I do not think that too much time should be spent upon the five per cent figure. The particular estimates in the cash-flow indicated that figures in the range of about $17,000 through to $74,000 were expected to be the monthly figures which would be paid. Five per cent of $2,063,000 is $103,150 and if one divides the $103,150 over each month one will see that the cash-flow effect is less than $9000, which is not sufficient to take any of the figures in the cash-flow into the red. I do not think, therefore, that the five per cent matter raised by Mr Bavin takes matters terribly far. 17 Secondly, Mr Bavin criticised the size of the expenses which were being contemplated by the cash-flow projections. The annual expenses contemplated under the cash-flow projections appeared to be $600,742. A comparison, according to Mr Bavin, of the $600,742 figure with the prior financial records showed, so he submitted, that this was one of those cases of unjustified optimism. The total expenses for the four proceeding financial years were, starting in 2008: $615,556, $492,695, $489,862 and $973, 511. The particular point which was made was that the expenses in the prior financial year had been $973,511 and, therefore, the cash-flow projections assumed expenses of $600,742 was optimistic. I do not accept that submission for two reasons. First, although the $600,742 figure is less than the $973,511 figure, it is broadly in line with the figures for the three proceeding years. I do not see it, therefore, as particularly being out of trend. Secondly, and more importantly, regardless of my views the fact of the matter is that the administrator, who is an experienced accountant, himself examined these matters. At para 7B of his report he said as follows: I have requested a monthly cashflow budget by the Company's external accountant for the next twelve months in order to determine whether the Company can trade on a cash positive basis after the Administration has been finalised. I have reviewed the various cashflow budgets and projections that have been provided to me in order to establish whether they may be both reasonable and also achievable. This analysis involved: • Reviewing past trading performance and comparing the same to projected results; and • Considering the impact of changes to the Company's accounting systems, the engagement of new external accountants and information systems being implemented by the Company's directors. Accordingly, I am of the view that under a DCA arrangement, the Company will likely be able to continue to trade and generate sufficient funds to continue to trade and meet its obligations under the DCA proposal. 18 It is to be particularly emphasised, therefore, that the administrator had not just picked up, as a matter of assumption, the contents of the cash-flows, but actually applied his mind to them in the form of analysis. In that circumstance, I am not prepared to say that the adoption of the $600,742 figure represents unjustified optimism. Those two reasons are also more than the sum of their parts. My view that the current figure proposed appears to be in line with the three previous years dovetails, to an extent, to the administrator's own opinion. Therefore, I do not accept, as Mr Bavin submits, that the cash-flow position contemplated in the administrator's report is an exercise in unjustified optimism. 19 Mr Johnson submitted that although it had been open to the Deputy Commissioner on the present adjournment application to cross-examine Mr Hurst upon his report, and although Mr Hurst had been brought to Court so that that could be done, that opportunity had been not been taken up. In those circumstances, so he submitted, it was not open to the Deputy Commissioner to attack the correctness of the report, particularly in light of the expertise of its author. Without deciding that question finally it does seem to me that it would be rather difficult in current circumstances, with a report which, on its face, appears to be properly reasoned and roughly in line with the figures which are appearing in the cash-flows, to proceed other than on the basis of what the report says. This is not one of those cases where what appears in the report is imaginative or largely speculative. This, to the contrary, seems to me to be a case where there has been an application of thought and thoroughness to the process. 20 Mr Bavin's second point was that the $100,000 to constitute the fund was, itself, beset with difficulties. Those difficulties consisted of complexities in the mechanics of obtaining the guarantee. One submission was that the guarantee might not be able to be available because the first mortgagee on Mr and Mrs Polley's real property might not give its consent. The first mortgagee's documents were not before me and it is not possible for me to express a view upon whether there is any such limitation in the mortgage, nor is it obvious to me whether any such limitation in the mortgage would, in any event, be effective for present purposes. I do not see that as a reason for putting at nought what appears to me to be a serious undertaking to give a guarantee. 21 The second point made in relation to the guarantee was that there could be, in a real sense, mechanical difficulties in its realisation should the moment arrive when the $100,000 fund needed to be called upon and had not been satisfied out of current cash-flows. It may be accepted, I think, that the enforcement of a second mortgage in order to supplement the deed fund will not necessarily be a straightforward process. However, it is not the case, as I understand it, that the deed fund is going to be constituted each month by a $10,000 payment. Although the cash-flow projections contemplated a $10,000 payment per month, I did not apprehend that the proposed deed of company arrangement itself would stipulate that that payment had to be made by the company each month. Rather, and more ordinarily, I propose to proceed on the basis that at a point in time in the future, the deed fund will need to be realised to the creditors. It is at that time that questions of a default by the company may arise. Accepting that there may be some complexities about that, I do not think that those complexities provide a sufficient reason, at this stage, to come to the view that there is not a real possibility that this deed of company arrangement will be effective. 22 Accordingly, on the material before me, I accept that there is sufficient persuasive evidence to justify the conclusion that the creditors may do somewhat better under the deed of company arrangement than they will under the liquidation scenario. The consequence of that conclusion, so it seems to me, is that s 440A(2) requires me to adjourn the proceedings. 23 For those reasons, I accede to the adjournment application. 24 The orders I make are: 1. The orders of the District Registrar given on 29 September 2011 be set aside. 2. In lieu thereof, the proceedings be adjourned to Wednesday 5 October 2011 at 2:15pm before the District Registrar. 3. There be no order as to costs, whether before the District Registrar or Perram J. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 29 September 2011