Inverell Shire Council v Australian Gemstone Resources Pty Limited (in liquidation)

1. [1]

   HER HONOUR: This is an application by Sholom Feldman, former director and secretary of Australian Gemstone Resources Pty Limited (in liquidation) (the Company), to terminate the liquidation of the Company under s 482(1) of the Corporations Act 2001 (Cth). The other former director of the Company, Pnina Feldman (Mr Feldman’s mother), consents to the application, as does the sole shareholder of the Company, LBT Corp Pty Ltd.

2. [2]

   The liquidator, David Kerr, does not oppose the application. The question for the Court is whether it is appropriate in the circumstances for the order to be made.

Activities of the Company and the appointment of a liquidator

1. [3]

   The Company was incorporated in 2006 and holds a mineral tenement between Glen Innes and Inverell which expires in 2022. The liquidator confirms that the Company holds an exploration licence to mine sapphires, issued by the NSW Department of Planning and Environment. The Company has paid a deposit of $50,000 as security for the mining lease.

2. [4]

   From 2006 to 2012, the Company conducted exploratory work at the mineral tenement but ceased work in 2012 when the market price for sapphires had fallen to a point that mining was not commercial. The Company had by that time spent some $5 million on exploration and Mr Feldman, who has significant experience as a director and general manager of mining companies, had formed the view that there are some 19 million carats of sapphires within the tenement which, depending on the market price for sapphires, may generate more than $20 million profit. An independent project assessment report has been tendered by Dr Robert Conrads to support this assessment. On the basis of Dr Conrads’ report, Mr Feldman estimates the net present value of the mining tenement as being some $5 million.

3. [5]

   The registered office of the Company was Mrs Feldman’s then home in Bondi. However, Mrs Feldman sold her home and put in place a mail redirection service to forward her mail to her new home in Bellevue Hill where she has lived since January 2017. Mrs Feldman’s former home was rented as a backpacker’s residence before the building was demolished. The land is presently vacant.

4. [6]

   When the Company went into dormancy, Mr Feldman failed to update the registered address of the Company with ASIC, the Australian Taxation Office or, relevantly, Inverell Shire Council. He says he did not receive Council rate notices sent by Inverell Shire Council to the registered office after his mother had moved. Apparently Inverell Shire Council had Mr Feldman’s email address and telephone number but did not notify him about the unpaid rates. Mr Feldman says that if the Council had done so, he would have paid the Council rates.

5. [7]

   On 7 December 2017, Inverell Shire Council issued a Statutory Demand to the Company for unpaid land taxes, rates and interest in the amount of $44,531.37. The statutory demand and affidavit accompanying it were apparently served on 17 January 2018. The affidavit of service is somewhat unclear. It either indicates that the process server attached the documents to the door at the Bondi address or delivered them to a male employee who apparently said they were authorised to accept the documents on behalf of the Company. Either way, Mr Feldman says that the documents did not reach him. A mail redirection service would not have forwarded those documents to Bellevue Hill.

6. [8]

   On 19 April 2018, Inverell Shire Council filed an Originating Process in this Court seeking to wind up the Company in insolvency for failure to comply with the statutory demand.

7. [9]

   On 4 May 2018, the Originating Process was served at the Bondi address, again by affixing the documents to the door of the property.

8. [10]

   On 18 May 2018 the Environment Protection Authority issued a Notice of Revocation in respect of the Environment Protection Licence No. 11970 held by the Company.

9. [11]

   On 29 May 2018 this Court made an order that the Company be wound up with David Kerr appointed as liquidator. The Company was ordered to pay costs and disbursements of Inverell Shire Council in the sum of $6,630.16.

10. [12]

    On 31 May 2018, Mr Feldman first became aware of the winding up of the Company when he received an email from the liquidator. Mr Feldman was then overseas but engaged solicitors to deal with the matter. On 8 June 2018, Mr Feldman’s solicitors advised the liquidator that Mr Feldman wished to make an application to terminate the liquidation of the Company.

11. [13]

    On Mr Feldman’s return to Australia on 25 July 2018, he engaged new solicitors as he was concerned at the lack of progress by the first solicitors. Ms Perry has since progressed the matter with dispatch.

12. [14]

    On 27 July 2018, Mr Feldman arranged for a Class 1 application to be filed in the NSW Land and Environment Court to appeal the revocation of the Company’s Environment Protection Licence No. 11970. The appeal was listed for directions on 14 September 2018. I was informed in Court by Ms Perry solicitor that the proceedings have been stayed pending termination of the liquidation. Some $2,572.40 is presently owed to the NSW Department of Planning for rent and levies on the mining lease.

13. [15]

    On 20 August 2018, an interim stay of the winding up was ordered, which stay has continued to this day.

14. [16]

    Notice of this application has been served on ASIC and Inverell Shire Council. Provided all rates currently due to the Council are paid together with the legal costs ordered to be paid to Council, it does not object to termination of the liquidation.

Assets and liability of the Company

1. [17]

   The issued share capital of the Company is $1.

2. [18]

   On 14 August 2018, Mr Feldman completed a report as to affairs in respect of the Company. The Company’s balance sheet records total equity of $5,254,417. This mainly comprises the estimated $5 million value of the mining lease together with a nett amount owing to the Company by reason of various related company loans

3. [19]

   In respect of related party loans, the Company is owed $1.26 million by Australian Gemstone Mining Pty Limited and owes some $900,000 to Mr Feldman, Australian Gemstone House Pty Limited and Volcan Australia Corporation Pty Limited. Mr Feldman is a director of Australian Gemstone House Pty Limited and Volcan Australia Corporation Pty Limited. Mr Feldman says that these sums are not due and payable until the Company undertakes profitable mining operations. Mr Feldman has given an undertaking to the Court that neither he, nor the related companies, will demand repayment of the monies owing to those companies while any sum remains owing by the Company to its creditors.

4. [20]

   The Company is guarantor of a loan by New England Sapphire Corporation Pty Limited from First State Pty Ltd. The security for the loan includes a first ranking mortgage granted by the Company over the mining lease and all of the Company’s assets and undertakings. A charge has been registered on the Company in respect of this guarantee.

5. [21]

   New England Sapphire Corporation is in liquidation, and owes some $173 million to First State Pty Limited. Notwithstanding this, on 15 August 2018, First State Pty Ltd executed a deed releasing the liability of the Company under the Deed of Capital Guarantee and Indemnity stating:

Payment of unsecured creditors of the Company

1. [22]

   Mr Feldman has paid $197,990.65 to his solicitor on trust to pay the unsecured creditors of the Company on termination of the liquidation. Those creditors are:

2. [23]

   The monies owing to Mr McCarthy relate to earth moving works, presumably done at the mine, and are disputed by Mr Feldman. I was informed in Court that Mr Feldman has made a further payment to Mr McCarthy.

3. [24]

   Mr Feldman has also paid $20,000 on account of working capital into the trust account

4. [25]

   The Company has no priority creditors. The Company has no current employees and no unpaid employee entitlements.

Solvency

1. [26]

   Mr Feldman says that, based on his knowledge of the financial position of the Company and subject to paying the Company’s unsecured creditors with the funds he has paid into the trust accounts of his solicitors, all current debts of the Company will have been paid in full and no debts will be due and owing such that the Company will be insolvent.

2. [27]

   Mr Feldman has commissioned a certified practising accountant, Luke James, to prepare an expert report as to the solvency of the Company. Having regard to the balance sheet and Mr Feldman’s report as to affairs filed with ASIC, and relying on the report as to the value of the mine, and the release provide by First State, Mr James is satisfied that the Company has sufficient capital available to satisfy current debts in full, and will continue to be able to satisfy its debts as they become due and payable for at least the next twelve months.

3. [28]

   The liquidator rightly points out that Mr James’ report is not extensively detailed. The liquidator is not able to verify any of Mr James’ opinions, but nor is he aware of any basis to dispute it. Subject to arrangements being put in place to pay the creditors of the Company and the liquidator’s costs and expenses, the liquidator does not oppose termination of the winding up.

Future plans for the Company

1. [29]

   Mr Feldman and Mrs Feldman are both prepared to continue to act as directors if the winding up is brought to an end. They will be responsible for the day-to-day trade, operations management, control, supervision and administration of the business and affairs of the Company. Mr Feldman is experienced in mining operations with more than 20 years’ experience in the industry.

2. [30]

   Mr Feldman says that the price of sapphires has now reached a point where it is profitable to mine the tenement and he intends to do so if the liquidation is terminated.

3. [31]

   Mrs Feldman is chairman of Queensland Bauxite Limited, a publicly listed company. The Company proposes, following termination of the winding up, to enter into a joint venture with Queensland Bauxite Limited to finance the future mining operations so as to enable both the Company and Queensland Bauxite Limited to take advantage of the sapphire mining opportunities available. It is submitted by Mr Feldman that, if the liquidation is not terminated, the mining tenement will be terminated, and there will be no opportunity for a return to creditors.

The law

1. [32]

   Section 482 of the Corporations Act provides:

2. [33]

   Sholom Feldman has standing to commence these proceedings pursuant to s 482(1A)(a) as a creditor.

3. [34]

   The relevant legal principles are summarised by Black J In the matter of MWM Sydney Pty Ltd (in liquidation) [2016] NSWSC 688 at [16]-[21]. In exercising its discretion on such applications, the Court traditionally turns to the principles set out by Master Lee in Re Warbler Pty Limited (1982) 6 ACLR 526, being:

4. [35]

   As Brereton J put the matter succinctly In the matter of Recycling Glass Pty Limited (ACN 001 332 654) [2014] NSWSC 439 at [18]:

5. [36]

   And even more succinctly In the matter of JD & RS Pty Ltd [2016] NSWSC 806 per Brereton J at [2]:

6. [37]

   A recent example is In the matter of The Wills Group Pty Limited (in liq) [2016] NSWSC 1907, where a company went into liquidation following court proceedings and a subsequent creditor’s statutory demand which never came to the director’s attention. In granting the application to terminate the liquidation, the Court had regard to:

7. [38]

   I was taken to Benedict v Olde; in the matter of ATS (Asia Pacific) Pty Ltd [2011] FCA 1008, where the court took into account funds held in a trust account and made the orders terminating the winding up conditional upon the making of the payments to outstanding creditors and the liquidator for remuneration and expenses. Similarly in this case, in the matter of Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171, there were related party creditors and the court accepted an undertaking to the court that no steps would be taken to demand payment of the debt nor steps taken to recover the debts, pending payment of all creditors.

8. [39]

   Mr Feldman submitted that the orders sought will enable:

9. [40]

   In respect of the consideration of “commercial morality” (see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22) there are no matters adversely affecting the application in this regard. The liquidator has received limited books and records of the Company and, by reason of the stay granted on 20 August 2018, has not completed his investigation. Notwithstanding this, he does not oppose the application. He is not aware of any breaches of directors’ duties, other than to keep ASIC informed as to the details of the Company which led to the liquidation of the Company. Nor is the liquidator aware of any matters that would concern the Court in respect of the directors’ or the Company’s “commercial morality” or that would be against the public interest in terminating the winding up.

10. [41]

    I agree that, having regard to the authorities and the detailed evidence before me, it is appropriate for the Court to bring the liquidation to an end.

11. [42]

    I make the following orders.

    1. (1)

       On condition and upon making of the following payments, the liquidation of Australian Gemstone Resources Pty Limited (in liquidation) be terminated pursuant to section 482 of the Corporations Act 2001:

    2. (2)

       The sum of $6,630.16 be paid forthwith from funds held in the Trust Account of Pure Legal to Inverell Shire Council on account of the costs order in the winding up proceedings 2018/124364.

    3. (3)

       The sum of $25,471.00 be paid forthwith from funds held in the Trust Account of Pure Legal to Wayne McCarthy on account of the balance of invoice.

    4. (4)

       The sum of $60,395.32 be paid forthwith from funds held in the Trust Account of Pure Legal to Inverell Shire Council on account of the unpaid land rates and charges the subject of the unpaid rates and debt in the winding up proceedings 2018/124364.

    5. (5)

       The sum of $37,968.91 be paid forthwith from funds held in the Trust Account of Pure Legal to the Australian Taxation Office on account of unpaid taxation.

    6. (6)

       The sum of $2,572.40 be paid forthwith from funds held in the Trust Account of Pure Legal to NSW Planning and Environment.

    7. (7)

       A direction that copies of receipts for all such payments be onforwarded to the liquidator of the Company.

    8. (8)

       A direction that pursuant to section 479(3) of the Corporations Act 2001, the First Respondent is justified in not opposing the making of the order for termination of the winding up of the Second Respondent, Australian Gemstone Resources Pty Limited (in liquidation) ACN 121 034 811, and in complying with the regime for payment of the obligations of the Second Respondent as set out above.

    9. (9)

       The remuneration of David Kerr of RSM Australia Pty Limited in his capacity as liquidator of Australian Gemstone Resources Pty Limited (in liquidation) be fixed in the capped sum of $27,314.36 with the amount to be drawn in accordance with the usual time costing of the firm RSM Australia Pty Limited so long as it does not exceed the capped sum plus legal costs and other expenses incurred by the liquidator plus GST or such other sum as agreed between the parties and be paid from funds held in the trust account of Pure Legal.

    10. (10)

        These orders be entered forthwith.