Dickerson, in the matter of McWilliam's Wines Group Ltd (Administrators Appointed) (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: GLEESON J
• Judgment Date: 09 March 2020
• Neutral Citation: [2020] FCA 417
• Date: 09 March 2020

FEDERAL COURT OF AUSTRALIA

Dickerson, in the matter of McWilliam’s Wines Group Ltd (Administrators Appointed) (No 2) [2020] FCA 417

File number:	NSD 92 of 2020
Judge:	GLEESON J
Date of judgment:	9 March 2020
Date of publication of reasons:	31 March 2020
Catchwords:	BANKRUPTCY AND INSOLVENCY – administration – application for relief under s 447A of the Corporations Act 2001 (Cth) – Court’s power under s 447A to make orders limiting an administrator’s personal liability under s 443A –liabilities incurred under loan agreement ; BANKRUPTCY AND INSOLVENCY – administration – application for an order pursuant to s 588FM of the Corporations Act 2001 (Cth) for an extension of time for registration for the purposes of s 588FL(2)(b)(iv) – whether it is just and equitable to make an order granting an extension of time for registration for the purposes of s 588FL(2)(b)(iv) – where order necessary to give effect to security interest under loan agreement – where order causes no prejudice to creditors
Legislation:	Corporations Act 2001 (Cth) ss 443A, 443D, 447A, 588FL, 588FM
Cases cited:	Hill (Administrator) in the matter of Flow Systems Pty Ltd (Administrators Appointed [2019] FCA 35 K.J. Renfrey Nominees Pty Ltd (Trustee), in the matter of OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 325; 120 ACSR 117 Korda, in the matter of Ten Network Holdings (Administrators Appointed) (Receivers and Managers Appointed) [2017] FCA 1144 Mentha, in the matter of Griffin Coal Mining Company Pty Ltd (administrators appointed) [2010] FCA 1469; 82 ACSR 142 Re Appleyard Capital Pty Ltd; 123 Sweden AB v Appleyard Capital Pty Ltd [2014] NSWSC 782; 101 ACSR 629 Secatore, in the matter of Fletcher Jones and Staff Pty Ltd (Administrators Appointed) [2011] FCA 1493
Date of hearing:	9 March 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Plaintiffs:	D Krochmalik
Solicitor for the Plaintiffs:	HWL Ebsworths

ORDERS

		NSD 92 of 2020
IN THE MATTER OF MCWILLIAM’S WINES GROUP LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 108) AND MOUNT PLEASANT WINES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 813
	GAYLE DICKERSON, TIM MABLESON AND RYAN EAGLE IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF MCWILLIAM’S WINES GROUP LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 108) AND MOUNT PLEASANT WINES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 813) First Plaintiff ; MCWILLIAM’S WINES GROUP LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 108) Second Plaintiff ; MOUNT PLEASANT WINES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 813) Third Plaintiff

JUDGE:	GLEESON J
DATE OF ORDER:	9 March 2020

THE COURT ORDERS THAT:

1. Pursuant to s 447A(1) of the Corporations Act 2001 (Cth) (Act), Part 5.3A of the Act is to operate in relation to the Applicants as if s 443A(1) of the Act provides that:

   1. the liabilities of the First Applicants (in their capacities as administrators of each of the Second Applicant and the Third Applicant) (the Administrators) incurred under the “Administrators’ Funding Agreement” dated 17 February 2020 in the form exhibited at pages 197 to 266 of Exhibit GD3 to the affidavit of Gayle Dickerson sworn 3 March 2020 (Funding Agreement), including monies borrowed, interest incurred in respect of monies borrowed and borrowing costs, are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of each of the Second Applicant and Third Applicant (Companies); and

   2. notwithstanding paragraph (a), if the property and assets of the Companies (where relevant) are insufficient to satisfy the debts and liabilities incurred by the Administrators arising out of or in connection with the Funding Agreement, including in relation to any monies advanced under the Funding Agreement, whether before the making of this order or after, such that the indemnity that exists under s 443D of the Act is insufficient to meet any amount for which the Administrators may be liable, then the Administrators will not be personally liable to repay such debts or satisfy such liabilities to the extent of that insufficiency.

2. Pursuant to section 588FM of the Act, in respect of any security interests created, granted by or in connection with the “General Security Deed” dated 17 February 2020 in the form exhibited at pages 267 to 299 of Exhibit GD3 to the affidavit of Gayle Dickerson sworn 3 March 2020 (General Security Deed), the registration time for the collateral is fixed to be, for the purposes of s 588FL(2)(b)(iv) of the Act, 16 March 2020 (being the time that is the end of 20 business days after the date of the General Security Deed that gives rise to the security interests that come into force).

3. Within two (2) business days after the making of these orders, the Administrators are to provide notice of these orders to:

   1. all creditors of the Companies (including the persons claiming to be creditors of the Companies) in the following manner:

      1. where the Administrators:

(A) have an email address for a creditor, by sending the Notice by email to each such creditor;

(B) do not have an email address for a creditor (or have received notification of non-delivery of a notice sent in reliance on sub-paragraph (A) above) but have a postal address for the creditor, by sending the Notice by posting a copy of it to the postal address for each such creditor; and

(C) do not have an email address for a creditor or a postal address, by sending or communicating the Notice to the creditor in any other way provided for by the Act or the Insolvency Practice Rules 2016;

2. by publishing a notice on the KPMG website at https://home.kpmg/au/en/home/services/advisory/deal-advisory/services/restructuring/creditors-shareholders/mcwilliams-wines-group.html; and

1. the Australian Securities and Investments Commission (ASIC).

1. Liberty to apply be granted to any person claiming to be interested, including any creditor of the Companies (including a person claiming to be a creditor of the Companies) and ASIC, to make any application as he, she or it may be advised to vary or discharge these orders on three (3) business days’ notice to the Applicants and to the Court.

2. An order that the Applicants’ costs of and incidental to this application be costs and expenses in the administration of the Companies and be paid out of the assets of the Companies.

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

REASONS FOR JUDGMENT

GLEESON J:

1. On 9 March 2020, on the ex parte application of the plaintiffs by interlocutory process filed 4 March 2020, I made orders addressing matters arising in the administrations of the second plaintiff (McWilliam’s) and the third plaintiff (Mount Pleasant) (collectively companies) in connection with funding provided Gordon Brothers Pty Ltd (Gordon Brothers).

2. In summary, the orders are intended to:

1. relieve the...