Supreme Court New South Wales Medium Neutral Citation: In the matter of Ovato Print Pty Ltd [2020] NSWSC 1683 Hearing dates: 13 November 2020; 18 November 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Orders made convening meetings for the creditors' scheme and member's schemes. Explanatory memorandum approved for despatch. Catchwords: CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Applications under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of creditors and members to consider and if thought fit to agree to proposed schemes of arrangement Single member schemes to obtain ancillary relief under s 413 of the Corporations Act – Basis for assumptions in explanatory memorandum – Where certain creditors wrote letters of objection but did not appear – Where objections to terms of scheme reserved for second Court hearing Legislation Cited: - Corporations Act 2001 (Cth), ss 411, 412, 413 - Corporations Regulations 2001 (Cth), r 5.1.01 - Fair Entitlements Guarantee Act 2012 (Cth) - Supreme Court (Corporations) Rules 1999 (NSW) Cases Cited: - Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 - Centro Properties Ltd v PricewaterhouseCoopers (2011) 86 ACSR 584 - F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 - First Pacific Advisors LLC v Boart Longyear Ltd [2017] NSWCA 116; (2017) 121 ACSR 136 - Nicron Resources Ltd v Catto (1992) 8 ACSR 219 - Re Atlas Iron Ltd (2016) 112 ACSR 554 - Re BIS Finance Pty Ltd [2017] NSWSC 1713 - Re Boart Longyear Ltd [2017] NSWSC 567 - Re Centrebet International Ltd [2011] FCA 870 - Re CSR Ltd (2010) 183 FCR 358 - Re DUET Finance Ltd [2017] NSWSC 415 - Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742 - Re HIH Casualty and General Insurance Ltd (2006) 200 FLR 243 - Re RBS Group (Australia) Pty Ltd (Unreported, 2 February 2012) - Re SAI Global Ltd [2016] FCA 1312 Category: Principal judgment Parties: Ovato Print Pty Ltd (First Plaintiff) Ovato Limited (Second Plaintiff) Hannanprint NSW Pty Limited (Third Plaintiff) Hannanprint Victoria Pty Limited (Fourth Plaintiff) Inprint Pty Limited (Fifth Plaintiff) Ovato Print Cairns Pty Ltd (First Defendant) Ovato Packaging Pty Ltd (Second Defendant) Ovato Creative Services Geebung Pty Ltd (Third Defendant) The Independent Print Media Group Pty Limited (Fourth Defendant) and 67 other Defendants Representation: Counsel: Mr I Jackman SC/Ms S Scott (Plaintiffs) Solicitors: Ashhurst Australia (Plaintiffs) File Number(s): 2020/323408 Judgment ********* Nature of the application 1. The Plaintiffs, Ovato Print Pty Ltd ("Ovato Print"), Ovato Limited ("Ovato Limited"), Hannanprint NSW Pty Limited ("Hannanprint NSW"), Hannanprint Victoria Pty Limited ("Hannanprint VIC") and Inprint Pty Limited ("Inprint") are members of the Ovato group of companies ("Ovato Group"). At this hearing, they seek orders under s 411(1) of the Corporations Act 2001 (Cth) convening a meeting between them and Scheme Creditors (as defined in a Creditors' Scheme) for the purpose of considering and, if thought fit, approving a creditors' scheme of arrangement proposed by the Plaintiffs ("Creditors' Scheme"). They propose seeking, at a second Court hearing, approval of the Creditors' Scheme. 2. At this hearing, the Plaintiffs also seek orders convening meetings between each of Ovato Print and its sole member, Ovato Limited; Hannanprint NSW and its sole member, The Independent Print Media Group Pty Limited ("IPMG"); Hannanprint VIC and its sole member, IPMG; and Inprint and its sole member, Woodox Pty Ltd ("Woodox"), for the purposes of considering and, if thought fit, approving a member's scheme of arrangement between each company and its sole member (Member's Schemes). It is plain enough that those member's meetings, so far as they each involve a single member meeting, are undertaken in order to invoke the Court's jurisdiction under s 413 of the Corporations Act in respect of certain ancillary orders that are sought, and the Plaintiffs have fairly acknowledged that matter in submissions. The Plaintiffs also propose seeking, at a second Court hearing, orders approving the Member's Schemes and will also seek orders winding up Ovato Print, Hannanprint NSW, Hannanprint VIC and Inprint in insolvency following the implementation of the Member's Schemes. 3. At an adjourned first hearing of the application on 18 November 2020, I delivered an oral ex tempore judgment making the orders sought by the Plaintiffs at the first Court hearing, and indicated I would expand that judgment in a published judgment. These are my expanded reasons for making the orders sought by the Plaintiffs at the first court hearing. I should note that complex and possibly controversial issues remain to be determined at the second Court hearing. In particular, it appears that the proposed restructure of the Ovato Group appears to come at a substantial public cost, since liabilities of redundant employees in remaining companies would be left to be met by the Fair Entitlements Guarantee Act 2012 (Cth). However, the Commonwealth of Australia did not seek to be heard in opposition to the orders sought at the first Court hearing. Any question whether the schemes should not be approved by the Court by reason of this aspect of its structure, including for reasons of public policy, remains to be determined at the second Court hearing. Background and affidavit evidence 1. The Ovato Group is a large integrated print and distribution business in Australia and New Zealand, producing and distributing catalogues, magazines, newspapers, and books. It presently employs 1,187 employees across 10 sites in Australia and New Zealand (Clarkson 12.12.20 [14]). Mr Jackman, with whom Ms Scott appeared at the first hearing, submitted that the Creditors' Scheme and Member's Schemes are crucial steps in a broader restructure of the Ovato Group which includes, inter alia, an equity raising and the negotiation of compromises with landlords, employees, noteholders and financiers. Mr Jackman submits that the restructure is designed to consolidate the Ovato Group's printing production and reduce its cost base to enable the Ovato Group to retain the vast majority of its staff and continue to trade. Mr Jackman submits that, if the Creditors' Scheme and Member's Schemes are not implemented, the Plaintiffs would become insolvent which would lead to all entities in the Ovato Group becoming insolvent; in that case, the directors would appoint external administrators to all entities in the Ovato Group and this in turn would lead to the winding up of the Plaintiffs (Clarkson 12.12.20 [20]; Fraser 12.12.20, Ex SF-1); and the majority of the Ovato Group's employees would then be made redundant (Clarkson 12.12.20 [20]). 2. Mr Jackman points out that the Ovato Group's financial performance has been declining over recent years, as a result of the reduction in demand for the "Print Australia" division of the business (Clarkson 12.12.20 [17]). He notes that the Ovato Group has recorded substantial losses in the previous four years, culminating in a loss of $108.8 million in the FY20 (Clarkson 12.12.20 [17]). He submits that the COVID-19 pandemic has severely impacted the Ovato Group's business with many of its retail clients significantly reducing their usage of the Ovato Group's print business or ceasing using it altogether (Clarkson 12.12.20 [18]) and that the fall in the Ovato Group's sales and its obligations to its secured financiers, employee and lease liabilities have forced the Ovato Group to restructure. 3. Mr Jackman points out that, as at 31 August 2020, the Ovato Group had total finance debt of $107.6 million (Ex SF-1, [3.3]). That indebtedness includes financing arrangements with its secured financiers including a bank guarantee facility with a limit of $17 million and an overdraft lending facility under which $4,870,833 is owed ("ANZ Facilities") due on 31 January 2021 (Clarkson 12.12.20 [38]-[43]); a receivables finance facility with Scottish Pacific ("ScotPac RFF") (Clarkson 12.12.20 [49]-[53]); a note trust deed (as supplemented) securing $40 million in notes issued to noteholders ("Note Trust Deed") which required the Ovato Group to pay an amortisation plus interest payment of $2,075,200 on 22 November 2020 (Clarkson 12.12.20 [54]-[59]); an export financing loan agreement with Commerzbank secured by printing presses under which repayments of and $2,114,564.70 and EUR 994,817.75 are due 31 December 2020 and 31 January 2021 respectively (Clarkson 12.12.20 [60]-[64]); redundancy entitlements potentially owing to employees of Ovato Print, Hannanprint NSW, Hannanprint VIC and Inprint of approximately $37,395,036 (Clarkson 12.12.20 [80]); and rent payable under sites leased by Ovato Print that are no longer required by the business. Mr Jackman also points out that the security held on behalf of noteholders ranks second to the ANZ Facility and ScotPac RFF debts (Clarkson 12.12.20 [66]). Mr Jackman points out that the Plaintiffs also owe money to the Federal and State Commissioners of Taxation and to various trade creditors of Ovato Print (Clarkson 12.12.20 [30]). Mr Jackson also points to evidence that the amounts recovered by the non-print functions of the business are presently insufficient to cover the costs of the print functions (Clarkson 12.12.20 [18]). 4. Mr Jackman also observes that several companies within the Ovato Group have entered into a Deed of Cross Guarantee dated 27 June 2008, as amended from time to time ("Deed of Cross Guarantee") and, by operation of the Deed of Cross Guarantee (Clarkson 12.12.20 [31]; Ex AC-1 pp 117-209), creditors of Ovato Print are creditors of the Plaintiffs such that if an entity which is a party to the Deed of Cross Guarantee is wound up, the other entities guarantee the amounts owed to creditors of that entity. The Plaintiffs propose to seek an order under s 413(1)(g) of the Corporations Act that the Deed of Cross Guarantee between Orato Limited and its subsidiaries be revoked to the extent it relates to Orato Print, Hannanprint NSW, Hannanprint Victoria and Inprint. 5. Mr Jackman in turn points out that the Creditors' Scheme and Member's Schemes are inter-conditional and it is a condition precedent that Ovato Limited raise $30 million by issuing new shares, with the only condition remaining before the subscribers must buy shares being the Court's approval of the Creditors' Scheme and Member's Schemes. It may be unlikely that the Court would approve the schemes at the second hearing unless the Ovato Group has already received the proceeds of that equity raising, as distinct from a mere contractual commitment to participate in it, but that is a question for the second hearing. Mr Jackman points out that the purpose of the equity raising is, inter alia, to pay out the ANZ Facilities (Clarkson 12.12.20 [45]) and make various payments to landlords to exit leases of redundant sites and reduce Ovato Group's workforce through redundancies (Clarkson 12.12.20 [68]). He also notes that the ANZ facilities contain a clause which provides that if Ovato Limited issues shares then it will need to apply the proceeds of that issue in prepayment of the amounts owing to ANZ and, in order to avoid triggering this clause the Ovato Group is seeking to settle all amounts outstanding to ANZ from the funds raised (as set out in section 9.2 of the Explanatory Statement). 6. Mr Jackman also points out that the effect of the Creditors' Scheme, if approved and implemented, is that Scheme Creditors will receive an amount equal to 50% of their Unsecured Claim (as that term is defined in the Creditors' Scheme) and, in return, they will release the Plaintiffs and the Plaintiffs' directors or officers from any claim that they may have against them in connection with the Amount Owing (as that term is defined in the Creditor's Scheme). In addition, Ovato Limited is released from any obligation to pay any amount in respect of a Subordinate Claim (as that term is defined in the Creditor's Scheme). 7. Mr Jackman points out that the effect of the Member's Schemes, if approved and implemented, is that the Transferor Companies (as defined in the Member's Schemes) will transfer their assets and liabilities (other than certain plant and equipment, Non-Transferring Employees (as defined in the Member's Schemes) and $2,020,000 in retained funds) to various Transferee Companies (as defined in the Member's Schemes). Affidavit evidence 1. The application is supported by several affidavits, to which I will refer briefly. The Plaintiffs rely on an affidavit of Mr Clarkson dated 12 November 2020 which refers to the background of the relevant schemes and to issues which have arisen in respect of the Ovato Group's financial performance; outlines the Creditor Scheme and Member's Schemes and the nature of the creditors of the Ovato group; and sets out the relatively complex transactions which would surround the implementation of the scheme. Some of those transactions are conditions precedent to the implementation of aspects of the scheme and I have been informed that those steps will be concluded before the second scheme hearing on 18 December 2020. 2. By an affidavit dated 12 November 2020, Mr Fraser refers to his independent expert report ("IER") (Ex SF-1) in respect of the scheme, which has been tendered. That report makes a number of assumptions as to aspects of the future financial performance of the Ovato Group. Mr Jackman points out that Mr Fraser has addressed several matters, namely the likely outcome for Creditors' Scheme companies and the expected returns for Creditors' Scheme companies in a "no restructure" scenario; the expected return to Scheme Creditors under the proposed schemes; and the solvency of transferee companies and Member's Scheme companies after the proposed restructure. 3. Mr Jackman points to Mr Fraser's assessment that, on the assumptions he has made, if the restructure is not implemented, the Ovato Group would be unable to pay its debts as and when they fall due at least from January 2021 and will be insolvent by at least December 2020 and trading whilst insolvent from at least that time; the likely outcome for each of the Plaintiff companies is that they would need to enter voluntary administration or liquidation leading ultimately to a winding up of the Plaintiffs; if the Creditors' Scheme and Member's Schemes are not implemented then the Ovato Group will become insolvent and be wound up and liquidator realisations will be insufficient to pay a dividend to the ordinary unsecured creditors; if the Plaintiffs were wound up within 6 months of the hearing then there will be no return for unsecured creditors, a deficit for secured creditors of between $56.5 million and $54.1 million, and priority employee creditors could expect dividends of between 5 and 13 cents with any shortfall likely to be met from the Fair Entitlements Guarantee scheme; and a liquidator appointed to the Ovato Group would need to take immediate steps to significantly reduce costs across all business units including making significant redundancies and discontinuing whole business units (Ex SF-1 [6.3], [7.4]-[7.5], [9.5]). Mr Fraser's report also assesses the position if the schemes are implemented and expresses the opinion, again on the assumptions that he has made, that the implementation of the schemes will place the Transferee Companies in a materially stronger financial position (Ex SF-1, [9.5]) and that there will be no material prejudice to the Scheme Creditors (including creditors with the benefit of retention of title provisions), non-scheme creditors or employees. 4. An affidavit dated 11 November 2020 of Mr Smyth deals with asset valuations which are relevant to aspects of the scheme. An affidavit dated 12 November 2020 of Mr McLachlan deals with communications between the solicitors for the Ovato Group and the Australian Securities and Investments Commission ("ASIC"), and the position as it stood on 12 November 2020, and has since been reconfirmed, that ASIC does not seek to be heard at this first Court hearing in opposition to orders convening the scheme meetings. 5. The Plaintiffs also rely on an affidavit dated 12 November 2020 of Mr Slaven the chief executive officer and managing director of Ovato and its subsidiaries and a director of several of the relevant companies. Mr Slaven indicates his consent to act as chair of the relevant meetings. By a second affidavit dated 12 November 2020, Mr Clarkson indicates his consent to act as chair of the scheme meeting if Mr Slaven is unable to do so. 6. Several additional affidavits were read at the adjourned first Court hearing on 18 November 2020, being affidavits of Mr Clarkson, Mr Slaven and Mr Stephenson all dated 17 November 2020. The affidavit of Mr Clarkson, importantly, outlines the process which was adopted for verification of the proposed Explanatory Statement, in a conventional way, and also outlines a revised timeline for meetings and the timetable for the scheme, resulting from the fact that orders have been deferred from Friday, when the matter was first listed, to today. The affidavits of Mr Slaven and Mr Stephenson, to which I have given careful attention but which I will not summarise in detail, outline the process of developing the revenue and EBITDA assumptions which have been included in a restructured cash flow model, which has in turn provided the basis for assumptions made and work undertaken by Mr Fraser. 7. In particular, Mr Slaven explains the basis on which he considers the assumptions derived from that process, which are explained in detail, are reasonable ones, bearing in mind that a process of making assumptions as to future performance will inevitably be necessary, where future performance can never be known as a matter of present fact. Mr Slaven also refers to the appointment of restructuring advisors by Ovato Print in August 2019, a matter which is relevant to establish that its directors and officers would potentially be able to rely on safe harbour defences under the Corporations Act and as is in turn relevant to a matter raised at the first hearing, as to the absence of any assessment of recoveries from insolvent trading claims or preference claims in respect of Mr Fraser's report. Mr Stephenson's affidavit in turn provides a detailed analysis of the assumptions made, and the assessment of the performance of the Ovato Group, in turn underpinning the analysis made in Mr Fraser's report. 8. The affidavits dated 17 November 2020 of Mr Slaven and Mr Stephenson have each been made the subject of suppression orders, so far as they contain commercially sensitive information or forecast information of a duration which Ovato Group would not ordinarily release, on the basis that redacted versions of those affidavits will be marked as exhibits and available for access on application to the Court in the usual way, by a person who can establish a proper interest in such access. Role of the Court at the first Court hearing 1. Mr Jackman submits, uncontroversially, that the Court will order the convening of the scheme meeting and approve the draft explanatory statement if it is satisfied that the plaintiff is a Part 5.1 body; the proposed scheme is an arrangement within the meaning of s 411; the scheme booklet will provide proper disclosure to creditors; the scheme is bona fide and properly proposed; ASIC has had a reasonable opportunity to examine the terms of the scheme and the scheme booklet and make submissions and has had 14 days' notice of the proposed hearing date; the procedural requirements of the Supreme Court (Corporations) Rules 1999 have been met; and there is no apparent reason why the scheme should not, in due course, receive the Court's approval if the necessary majority of votes is achieved: Re Atlas Iron Ltd (2016) 112 ACSR 554 at [30]; Re DUET Finance Ltd [2017] NSWSC 415 at [15]; Re BIS Finance Pty Ltd [2017] NSWSC 1713 at [20]. 2. Mr Jackman also points out that the approach of the Court at the first Court hearing is that "the court will not ordinarily summon a meeting unless the scheme is of such a nature and cast in such terms that, if it receives the statutory majority at the … meeting the court would be likely to approve it on the hearing of a petition which is unopposed": F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72, approved in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 504. Mr Jackman also refers to observations of French J in Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742 at [36] and [44], cited with apparent approval by the Full Federal Court in Re CSR Ltd (2010) 183 FCR 358 at [58] that: "It is however important to bear in mind that, by granting leave to convene the meeting, the court does not give its imprimatur to the proposed scheme. If the arrangement is one that seems fit for consideration by the meeting of members or creditors and is a commercial proposition likely to gain the court's approval if passed by the necessary majorities, then leave should be given ... The court is not required to give close consideration to the effects of the scheme upon individual members of the classes of members or creditors affected. So to do would be to "introduce burdensome and to a large extent ineffectual consideration at this interlocutory stage" … The court at the stage of ordering a meeting to approve a scheme does not ordinarily go very far into the question of whether the arrangement is one which warrants the approval of the court … That question is to be answered when the scheme returns to the court for final approval. That is not to exclude the possibility that a scheme may appear on its face so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further." 1. Mr Jackman also submits, and I accept, that the Court is not required to be satisfied that no better scheme could have been proposed, and the question is whether it is reasonable to suppose that sensible businesspeople might consider the arrangement proposed to be of benefit to members or creditors: Re Centrebet International Ltd [2011] FCA 870 at [29]; Re SAI Global Ltd [2016] FCA 1312 at [18]; Re DUET Finance Ltd above at [14]. Mr Jackman also submits and I accept that the Court's function under s 411 is to consider only the scheme put forward to it and not speculate what other compromises or arrangements might have been devised, and that it will proceed on the basis that, if the particular scheme does not take effect, there will be no scheme and the situation will be one in which the rights and obligations that would have been affected by the scheme are not affected, and the Court will not itself make a choice among the available means of achieving a particular economic objective and endeavour to marshal litigants into using that means by refusing other means on discretionary grounds: Nicron Resources Ltd v Catto (1992) 8 ACSR 219 at 236; Centro Properties Ltd v PricewaterhouseCoopers (2011) 86 ACSR 584 at [28]-[31]: Re Boart Longyear Ltd [2017] NSWSC 567 at [28]. 2. Mr Jackman recognises that ss 411(3) and 412(1) of the Corporations Act require the disclosure of information explaining the "effect" of the scheme, as well as information "material" to a member's decision whether or not to agree to it, and that information must be presented in a form that is intelligible to reasonable members of the class to whom it is directed, and should contain information that is realistically useful having regard to the complexity of the proposal: Re HIH Casualty and General Insurance Ltd (2006) 200 FLR 243 at [81]-[83]. 3. Mr Jackman submits that the draft Explanatory Statement meets these requirements and points out that it contains an overview of the Explanatory Statement and the Creditors' Scheme and Member's Schemes at section 5; an overview of the operations of the Ovato Group and its corporate structure at section 6; details of the proposed Creditors' Scheme, including reasons why the Scheme Creditors may consider voting in favour of the Creditor's Scheme and why they may considering voting against it at section 8; describes the equity raising condition precedent to the Creditors' Scheme and Member's Schemes, as well as the other restructuring transactions and the intended winding up of Ovato Print, Hannanprint NSW, Hannanprint VIC and Inprint at section 9, including the repayment of the ANZ debt facilities and compromise of notes with the Note Trustee; provides a high level summary of the IER at section 10; and sets out, in section 13, details of the proposed Member's Schemes; and also deals with the background to the schemes (section 7) and voting procedures (sections 12 and 15). Mr Jackman points out that the draft Explanatory Statement discloses the information specifically required to be disclosed by s 412(1)(a) of the Act and reg 5.1.01 (including Schedule 8) of the Corporations Regulations 2001 (Cth) in section 11. 4. The Plaintiffs tendered, at the adjourned first hearing, a revised Explanatory Statement which, importantly, has addressed disclosure issues that were raised earlier in this hearing. Importantly, it now provides a fuller explanation of the basis on which the Explanatory Statement expresses the view that the proposal is more favourable to non-transferring employees than a liquidation of the companies, prior to any winding up of some subsidiaries and any claims of employees under the Fair Entitlements Guarantee Act. The revised Explanatory Statement also now sets out the basis on which the assumptions that underpin Mr Fraser's report have been prepared, so that creditors will have an understanding of the steps which have been taken to develop those assumptions and the opportunity to assess the process which has been adopted. I have noted above that that process and the steps involved in it are supported by evidence of Mr Slaven and Mr Stephenson which has been read at this hearing. The revised Explanatory Statement in turn draws attention to the fact that creditors will wish to assess for themselves the process which has been adopted, and the conclusions reached in Mr Fraser's report, and they may vote against the proposal at the Creditors' Scheme meeting if they are not satisfied as to that analysis, by comparison with the position which would arise in the liquidation of the companies. 5. It seems to me that the revised Explanatory Statement, with that disclosure, now fairly provides creditors with information which will allow them to assess that process in a general way and to assess whether they are comfortable with that process. If they wish to make further inquiry, then they can of course seek access to the affidavits which are being led in evidence in these proceedings, in redacted form, and I have noted above that the redacted material does not seem to me to be of a nature that would prevent creditors who had such access undertaking a detailed scrutiny of the analysis undertaken by the Ovato Group. The revised Explanatory Statement also sufficiently draws creditors' attention to the need to assess that process, the report of Mr Fraser, and the views which Mr Fraser expresses, in determining whether to support the scheme at a meeting of creditors. Revocation of the Deed of Guarantee 1. Mr Jackman points out that each of the Member's Schemes considered by the Court in these proceedings is a sole member scheme. Mr Jackman points out that the Court's jurisdiction to make orders extinguishing a guarantee pursuant to s 413(1)(g) of the Corporations Act was considered in Re RBS Group (Australia) Pty Ltd (Unreported, 2 February 2012), where Ward J (as her Honour then was) considered the operation of s 413(1) in the context of a scheme of arrangement that involved transferring part of the plaintiff's assets, undertakings and liabilities referable to its warrants business to the first defendant, a newly formed single-purpose entity, and extinguishing existing guarantees (pertaining to the warrants business) given by the second defendant by orders under s 413(1)(g) of the Act, where new guarantees were given by the third defendant in that case. 2. Mr Jackman notes that the plaintiff in that case submitted that, where the ultimate aim of the proposed transfers included the cessation of the second defendant's involvement in the warrants business, and a court order extinguishing the guarantee was a condition of the scheme, extinguishing the guarantees was necessary to ensure that the reconstruction was fully and effectively carried out, and her Honour found that the release of a non-party guarantor can in some circumstances be seen as ancillary to the scheme of arrangement where the scheme encompasses the guarantor in turn releasing potential claims against companies in the scheme company's group: RBS Group at [51], [53]. 3. Mr Jackman submits that the purpose of the Member's Schemes is here for the Transferor Companies to divest themselves of various onerous liabilities so as to enable the business to reduce its workforce and leasehold footprint, and that is necessary to ensure that the business can continue to trade. He submits that the Transferor Companies will all be insolvent especially having regard to the need for a liquidator to make all employees redundant and, if the Deed of Cross Guarantee is not revoked then the otherwise solvent Transferee Companies will be required to meet the liabilities of companies which will be wound up in insolvency, and that would defeat the reconstruction that the schemes seek to effect. He notes that Mr Fraser expresses the opinion in 9.5 of the IER that the revocation of the Deed of Cross Guarantee will not materially prejudice creditors. Mr Jackman submits that the Court would follow the approach of Ward J in making orders under 413(1)(g) to relieve the Transferee Companies of the obligations arising out of the Deed of Cross Guarantee. The facts of this case are, on one view, somewhat different from those in RBS and this issue should properly be reserved to the second hearing. 4. So far as the scheme raises other issues of legal process, including the use of single member company schemes as the basis for a transfer, I have regard to the submissions that have been made by Mr Jackman and to the consideration of single member schemes by Ward J in Re RBS above and it seems to me that the reasoning adopted in that case has the result that that aspect of the schemes provides no reason not to convene the scheme meetings at a first hearing. No doubt, any party who wishes to address these issues may do so at the second Court hearing. Class constitution 1. Mr Jackman submits and I accept that the test for the constitution of classes in a scheme was authoritatively summarised by the Court of Appeal in First Pacific Advisors LLC v Boart Longyear Ltd [2017] NSWCA 116; (2017) 121 ACSR 136 at [80] and directs attention to whether creditors have different rights, or rights differently affected by the scheme, and whether those differences make it impossible for the creditors in question to consider the scheme as one class. Mr Jackman points out that the majority of Ovato Print's trade creditors have terms which include that title to the goods provided to Ovato Print does not pass to Ovato Print until the purchase price has been paid in full. He submits that this does not give rise to any class issues, where the Creditors' Scheme preserves any retention of title rights (Clarkson 12.12.20 [32]-[33]). Mr Jackman submits, and I accept that, on the face of it, the rights of creditors affected by the scheme are identical and the scheme does not affect them differently, and no class issue arises. Interests of other creditors 1. Mr Jackman also points out that the Creditors' Scheme and Member's Schemes do not effect changes to Note Trust Deed or the Commerzbank facilities and the present scheme does not involve either the noteholders or Commerzbank. He notes that Ovato Finance is negotiating with the Note Trustee on behalf of Noteholders for a debt for equity conversion for the value of the Notes and the negotiated compromise is likely to be conditional on the successful implementation of the Creditors' Scheme and Member's Schemes (see the Explanatory Statement at 9.3) including the equity raising and that Ovato Print is currently seeking a compromise with Commerzbank. This approach may require that the companies be shown to be solvent, at the second Court hearing, even if such compromises are not reached. That will be a matter for the second Court hearing. Third party correspondence in opposition to the proposed schemes and ASIC's position 1. A letter dated 17 November 2020 (Ex C) from Spot the Printers Pty Ltd, trading as Spot Productions, to ASIC was also drawn to the Court's attention and tendered. That letter makes a number of criticisms of Mr Fraser's report, although the most substantial of those criticisms related to the question of the proof of the assumptions which he has made, which have since been addressed by the further affidavits of Mr Slaven and Mr Stephenson. A memorandum dated 18 November 2020 from the solicitors for the Ovato Group (Ex D), responds to the substance of the criticisms. 2. A further letter dated 18 November 2020 from Tozer and Co, a bondholder, to Ovato Print and various other persons (Ex E) was also drawn to the Court's attention, which also advances a number of criticisms of aspects of the scheme. Tozer and Co contends that bondholders should be given an opportunity to be heard as to the members' schemes, where, Tozer and Co contends, the members of the companies no longer have an economic interest. So far as that involves a question of law, I am satisfied that it is a matter properly addressed at the second Court hearing, where Tozer and Co would have the opportunity to seek to appear and be heard, if it wishes to do so. So far as it involves a question of practice, or of bondholders being consulted in respect of the schemes, Mr Jackman rightly points out that the schemes contemplate, and are subject to a condition precedent in respect of, a transaction with bondholders which would only proceed if approved by the requisite majority of bondholders, and Tozer and Co will at least have the opportunity to make its views as a bondholder known in respect of that aspect of the transaction, although it will, as a condition of the bonds, potentially be bound by the view of the majority of bondholders in that respect. 3. ASIC advised at the adjourned first Court hearing on 18 November that it had considered the additional disclosure made in the scheme booklet in the form tendered today and had no comments on the content of that disclosure. It has noted that it had not had an opportunity to consider in detail the matters from the letters from Spot Productions and Tozer and Co, to which I have referred above, and did not intend to appear at the hearing today, but reserved its right to make submissions at the second Court hearing. Implicit in that approach is the proposition, which seems to me to be correct, that the matters raised by Spot Productions and Tozer and Co are not, as matters stand, sufficient to have the result that the Court should not convene scheme meetings, so that creditors and the single member of each of the subsidiary companies have the opportunity to express their views at such meetings, on a basis that they are properly informed in doing so. The issues raised may be addressed when determining whether to make the orders that would be sought at a second Court hearing, including the transfer orders which would be necessary to implement the scheme. Orders 1. For all these reasons, and bearing in mind the financial urgency of the position which affects the Ovato Group, and the proper role of a scheme of arrangement, or in this case a creditor's scheme and several member schemes, in the reconstruction of companies which are under financial pressure, I concluded that I should make orders convening the creditor scheme and member scheme meetings, and make the ancillary orders which are sought. I therefore made orders in the form sought by the Plaintiffs at the adjourned first Court hearing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2020