FEDERAL COURT OF AUSTRALIA Lucas, in the matter of Filestock Pty Ltd (in liq) [2017] FCA 1425 File number(s): QUD 307 of 2017 Judge(s): DERRINGTON J Date of judgment: 13 September 2017 Catchwords: BANKRUPTCY AND INSOLVENCY – Application for orders to pursuant to s 588FF(3)(b) – reason for the delay absence of litigation funding – where directors impeded attempts to obtain litigation funding Legislation: Corporations Act 2001 (Cth), ss 545(1), 588FB, 588FE, 588FF Cases cited: Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608 New Cap Reinsurance Ltd (in liq) v Reaseguros Alianza SA (2004) 186 FLR 175 Re Richard Walter Pty Ltd (in liq); Ex parte Hall [1999] NSWSC 1179 Date of hearing: 13 September 2017 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 19 Solicitor for the Plaintiffs: Mr C Gear of Taylor David Lawyers ORDERS QUD 307 of 2017 IN THE MATTER OF FILESTOCK PTY LTD (IN LIQUIDATION) (ACN 010 533 436) PETER ANTHONY LUCAS AS LIQUIDATOR OF FILESTOCK PTY LTD (IN LIQUIDATION) (ACN 010 533 436) First Plaintiff FILESTOCK PTY LTD (IN LIQUIDATION) (ACN 010 533 436) Second Plaintiff JUDGE: DERRINGTON J DATE OF ORDER: 13 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The period during which the first plaintiff and the second plaintiff are to make any application pursuant to s 588FF(1) of the Corporations Act 2001 (Cth) in relation to the second plaintiff against any person be extended until 12 March 2018. 2. The plaintiffs' costs of and incidental to this application be costs in the winding up. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J: 1 The application before the court today is for orders pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) to extend the time in which the liquidator of Filestock Pty Ltd (in liq) or that company may commence certain actions in relation to the erstwhile activities of Filestock Pty Ltd (in liq). I will refer to the company simply as "Filestock". The contemplated causes of actions sought to be pursued by the liquidator or Filestock are in respect of certain transactions which the liquidator alleges are voidable by reason of the operation of s 588FE of the Corporations Act. That said, the liquidator also seeks the making of a broad "shelf order" because he is presently uncertain as to the veracity of a number of transactions concerning Filestock. 2 Section 588FF(3) of the Act, in effect, provides that an application by a liquidator seeking relief in respect of voidable transactions may be commenced only during the period beginning on the relation-back day and ending three years after the relation-back day, or 12 months after the appointment of a liquidator, whichever is the latter. That general limitation is afforded some flexibility by s 588FF(3)(b), which provides that the court may order that the proceedings can be commenced within such longer period as the court orders. In the present case, the relation-back day is 24 June 2014. 3 For the purposes of the present proceeding, the limitation period, for want of a better expression, for the commencement of the proceedings under s 588FE relating to any voidable transactions expired on 23 June 2017. This application for an extension of time was filed on 15 June 2017, being within three years after the relation-back day. 4 The discretion contained in s 588FF(3)(b) is unfettered by any statutory criteria which the Court is obliged to consider. However, in the ordinary course of matters, there are various criteria which a court will usually consider in ascertaining whether it is appropriate to extend a time in which such actions might be pursued. They are: (a) The explanation for the delay in not commencing actions within the stipulated time; (b) The formulation of a preliminary view of the foreshadowed proceedings. In general, this is a reference to considering whether there is some merit in the proceedings as opposed to ascertaining that those anticipated proceedings are bereft of any serious prospects; and (c) Whether any actual prejudice resulting from the grant of the extension is sufficiently substantial to outweigh the case for granting an extension. 5 In respect of the winding-up before the Court the parties whose interests might be directly affected by the making of the proposed orders have been served with the application for the extension of time. Whilst there has been some correspondence with legal representatives of some of those persons, none appear on the application today to oppose it. Consequently, there is no reason why the Court should not proceed to act upon the affidavit of the liquidator, Mr Lucas, which contains both the factual background concerning his investigations to date and his concerns about a number of transactions. 6 In an application of this type, the explanation for the delay commencing the proceedings is a principal consideration (Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608 at [13]). It is also well-established that the liquidator bears the onus of showing why it is fair and appropriate that the time limitation imposed by the legislature should not apply (see New Cap Reinsurance Ltd (in liq) v Reaseguros Alianza SA (2004) 186 FLR 175 at [55]). Here, by this affidavit material, the liquidator has satisfied the onus in this respect. 7 The essential reason for not having commenced proceedings within the statutory time limit is identified as being an absence of litigation funding. The funding of any anticipated causes of action is a necessary consideration for any liquidator intending to commence proceedings of the nature contemplated in this case. Whilst the benefits to unsecured creditors of pursuing actions to avoid insolvent or uncommercial transactions might be substantial, so is the risk to a liquidator were an action to fail. In this respect, it is noted that under s 545(1) of the Corporations Act, a liquidator is not obliged to incur an expense in a winding up unless there is sufficient available property which might be utilised to meet the expense. It could not be suggested that a liquidator ought to courageously embark upon litigation in the hope of securing funding at some time in the future. 8 There are conflicting authorities as to whether the unavailability of litigation funding for pursuing a recovery action is a sufficient reason for a liquidator failing to commence voidable transaction proceedings within the statutory time period. However, in this case, there is no need to resolve those differing views. Here, a rather significant factor is that one of Filestock's directors, Mr Tardrew, has apparently actively impeded the attempts by the liquidators to secure litigation funding. In particular, late in 2016 the liquidator had obtained an offer from an entity called Pretium Funding for the funding of litigation against Mr Tardrew and others. The liquidator took that offer to a meeting of creditors on 20 December 2016 seeking their approval for him to enter into an agreement with Pretium Funding. On that occasion, Mr Tardrew voted against, and thereby defeated, the resolution that the liquidator enter into an agreement. 9 Mr Tardrew remains a target respondent of the anticipated insolvent trading action which the liquidator has indicated he might pursue. He is also intimately involved in the potential voidable transactions which the liquidator has highlighted and which are subject of the proposed litigation. In particular, that proposed litigation is directed to Ms Mitchell who was also a director of Filestock at some period of time, was associated with Mr Tardrew in a business sense and has been actively involved in transactions with him. 10 Where the target of proposed litigation engages in positive steps which have the effect or the likely effect of interfering with the liquidator's attempts to commence proceedings and, as a result, the time in which action under s 588FF might be commenced expires, a strong presumption arises that good reason has been shown for the delay in commencing any relevant action in respect to which the target has an interest. 11 In an application of this nature, it is appropriate to review the merits of the potential causes of action which the liquidator seeks to pursue if an extension of time is granted. Such a review is, necessarily, only on a preliminary basis for the purpose of satisfying the court that the proceedings justifies the continued exposure of the defendant to the potential action (see Re Richard Walter Pty Ltd (in liq); Ex parte Hall [1999] NSWSC 1179). 12 Here there are a number of causes of action which the liquidator has identified as being voidable transactions, although his review of all the relevant matters is not yet complete. Despite that, the first major identified cause of action is one which relates to a loan which was owed by the Boathaven Trust to Filestock. The financial records of Filestock indicate that as at 30 June 2013 the Boathaven Trust owed it $180,553.52. Subsequent yearly financial records of Filestock showed that the loan was reduced to nil. Slightly similar entries appear in the financial records of the Boathaven Trust, albeit that as at 30 June 2014 the Boathaven Trust records record that it owed Filestock $196,441.01. That liability was reduced to nil in the financial records ending 30 June 2015. 13 Ms Mitchell, who was a director at the relevant times of Airlie Boathaven Investments Pty Ltd, which quite possibly was the trustee of the Boathaven Trust, has apparently not been able to shed any light on the transactions. At present, the liquidator is not able to ascertain the veracity of the reduction of the liability of the Boathaven Trust to Filestock. If it were the case that the loan was, in effect, forgiven, there would be good reason for believing that such a transaction was a voidable one because it was an insolvent and uncommercial transaction under s 588FB, an insolvent transaction entered into with a related party within the meaning of s 588FE(4), an insolvent transaction for the purposes of defeating or interfering with a company's creditors within the meaning of s 588FE(5) of the Act or, simply, an insolvent transaction which is voidable under s 588FF. 14 The other major transaction identified by the liquidator concerns certain dealings with an entity called Make Metal Pty Ltd. That company apparently acquired the business name of Filestock being "Allterrain Engineering & Fabrication". The alleged consideration was the sum of $4000. It does not appear that any other consideration moved from Make Metal to Filestock. Make Metal seems to have then commenced business at the Caboolture property from which Filestock had previously operated. Importantly, the sole director of Make Metal is Ms Mitchell who had previously been a director of Filestock. She is also the sole director of Airlie Boathaven, which is the owner of the Caboolture premises. 15 The liquidator has also identified that it appears that after Make Metal took over the operation of the business at the Caboolture property, Filestock continued to pay expenses, or at least became liable for expenses, which appear to be business expenses from the operation of the business by Make Metal, despite not receiving any revenue from the business. Whilst the evidence surrounding these transactions is, at present, a little vague, it is more than necessary to reach a preliminary view that the transactions involving the sale of the business name and the transfer of the business are uncommercial transactions, insolvent transactions entered into with a related party, insolvent transactions for the purposes of defeating or interfering with the company's creditors, or an insolvent transaction which is voidable under s 588FF. 16 The above actions are not the only causes of actions which are identified in the material before the Court. Other potential causes of action are mentioned although they are not elucidated in any great detail. That is a consequence of the fact that the material presently available to the liquidators is limited. The material also raises a concern about the transfer of certain shares from Filestock; in particular, 49,999 shares which Filestock owned in the company Airlie Boathaven Investments Pty Ltd. It seems that those shares were transferred to Mr Tardrew and to Ms Mitchell. The transfer of those shares is "recorded" as having been on 15 August 2014, being approximately 11 months prior to the lodgement of the 484 notice with ASIC, which date is within the relation back period. However, the lodgement of the form 484 occurred approximately nine months following the appointment of the liquidator. The liquidator deposes that the books and records of Filestock, which were provided by Mr Tardrew to the liquidator makes no mention of the transfer of the shares in Airlie Boathaven. It is noted that Airlie Boathaven owns the Caboolture property from which the metal fabrication business formerly operated by Filestock operates. That property is presently publicly listed for sale with an asking price of $4.07 million. It is, obviously, a valuable property, and one might think that such a substantial transaction via the shareholding in Airlie Boathaven Investments would have been recorded. 17 The liquidator seeks a blanket extension order in relation to possible future actions which he or the company might have against Mr Tardrew and/or Ms Mitchell or any other person. This order is sought on the basis that there has been a failure by Mr Tardrew and Ms Mitchell to assist the liquidator in any meaningful way in ascertaining the true nature of the transactions of Filestock. As a consequence, he holds concerns that there may be further voidable transactions discovered in the course of the public examination or further investigations which have not yet been completed. In this case, given the nature of the transactions which are, prima facie, very questionable and the inability of Ms Mitchell to provide any explanation for them and the failure of Mr Tardrew to provide useful information, good grounds are established for this Court making the shelf orders sought pursuant to s 588FF(3)(b). This conclusion is strongly buttressed by the existing level of suspicion relating to the abovementioned transactions. 18 The parties who might have been affected by the making of the orders have been served with the application and have chosen not to appear on this hearing. They have not adduced any evidence as to any possible prejudice which they might suffer if the orders were made. There will, however, be the obvious prejudice in that they will be at risk of proceedings being commenced outside of the statutory time limit. However, that is something which is recognised by the legislature in granting the Court the discretion under s 588FF(3). 19 It follows that the liquidator has established good grounds for a favourable exercise of the discretion in s 588FF(3)(b), and it is appropriate that the orders be made. That order ought be in the form of a "shelf order", given the circumstances of this case, where the director or other persons included in the transactions have been particularly unhelpful in assisting the liquidator to identify the nature of the transactions in respect of which he has concerns. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate: Dated: 13 September 2017