Hooke v Bux Global Limited (No 5) [2018] FCA 1508

FEDERAL COURT OF AUSTRALIA

Hooke v Bux Global Limited (No 5) [2018] FCA 1508 File number: WAD 644 of 2017

Judge: COLVIN J

Date of judgment: 4 October 2018

Legislation: Corporations Act 2001 (Cth) ss 440A(3), 486A

Cases cited: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234

Date of hearing: 4 October 2018

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: No Catchwords

Number of paragraphs: 28

Counsel for the Plaintiffs: Mr SJ Penrose

Solicitor for the Plaintiffs: Tottle Partners

Counsel for the Defendant: The Defendant did not appear

ORDERS WAD 644 of 2017

BETWEEN: PETER JAMES HOOKE & CLAIRE ELIZABETH HOOKE First Plaintiff

PETER JAMES HOOKE & BRICE JAMES HOOKE AS TRUSTEES FOR THE HOOKE SUPERANNUATION FUND Second Plaintiff

AND: BUX GLOBAL LIMITED (ACN 613 313 616) Defendant

JUDGE: COLVIN J DATE OF ORDER: 4 OCTOBER 2018

THE COURT ORDERS THAT:

1. Martin Bruce Jones of Ferrier Hodgson, Level 28, 108 St Georges Terrace, Perth be appointed as provisional liquidator of the defendant. 2. There be liberty to any interested party to apply to vary or vacate that order on short noticed if required. 3. There be liberty to apply for any further or supplementary orders consequent upon the appointment of the provisional liquidator. 4. The operation of order 1 be stayed until 4.00pm on 10 October 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J: 1 On 22 December 2017, the plaintiffs brought an application to wind up the defendant, Bux Global Limited. Following an unsuccessful mediation, the application was listed for hearing for four days commencing on 30 July 2018. Bux Global brought an unsuccessful application for summary dismissal of the application on the basis of a lack of standing on the part of the plaintiff. Leave to appeal the decision on the summary dismissal application was refused. 2 There was delay in meeting the timetable as to filing materials for the hearing to commence on 30 July 2018. Those hearing dates were vacated and the matter was listed for a five day hearing to commence on 11 October 2018. The plaintiffs filed further affidavits in support of the application. 3 Bux Global was directed to file affidavits on which it intended to rely by 17 September 2018. It did not file any affidavits. On 19 September 2018, Bux Global terminated the instructions to its solicitors who have been acting since February 2018. They are no longer on the record for Bux Global. 4 At the request of the plaintiffs, the matter was scheduled for a case management hearing on 26 September 2018 to deal with the consequences of Bux Global having no legal representation. Mr Raymond Webber, a director of Bux Global, appeared. He informed the Court that Bux Global was taking steps to appoint lawyers to act. I stood the matter over to 1 October 2018 and informed Mr Webber that I expected Bux Global to be in a position, through its lawyers, to appear on 1 October 2018. 5 Prior to the hearing on 1 October 2018, Mr Webber sent a letter to the Court stating that he would be travelling to Perth on 30 September 2018 'to secure our final legal representation for our defence of this application'. 6 He also said that he would be available for the scheduled directions hearing as Bux Global would not be represented at the time of the hearing despite having indicated at the earlier hearing that arrangements would be made for that representation on behalf of the company. His letter referred to the interests of 450 shareholder entities of Bux Global and amongst other things, stated in para 4 that: After intense interrogation by ASIC, the Bux Global Limited directors had their respect for shareholders interests endorsed and renewed to understand that the interests of shareholders must be prominent in the minds of directors at all times. So when can the value interests of 450 shareholders be considered in the progress of this court event? 7 There was no appearance for Bux Global on 1 October 2018, whether by Mr Webber seeking leave to appear or by lawyers appointed by the company. Counsel for the plaintiffs produced to the Court a letter from ASIC which stated: I have reviewed paragraph 4 of the letter from Mr Raymond Webber of Bux Global Limited to the Federal Court. It is difficult to ascertain exactly what Mr Webber is alleging in paragraph 4. However, I confirm that: 1. Australian Securities and Investment Commission has an ongoing investigation into the activities of Bux and; 2. ASIC has not given any assurances or endorsements of any kind to the directors or associates of Bux. 8 The covering email to that letter indicated that ASIC did not object to the letter being produced to the Court. 9 On the evidence, the business of Bux Global has been to provide an application for mobile devices (App) whereby funds may be transferred in different currencies from one Bux account to another to facilitate the international transfer of funds in different currencies. 10 There have been recent changes to the website for Bux Global. In particular, whereas in August 2018 the site provided for an option to get the Bux App, that option is no longer available. There have also been recent changes to the website that have limited considerably the options as to currencies relating to the sending of money. The only currency that may now be sent as provided for on the website is Australian dollars and there are only three currencies in which those funds may be received. 11 In addition, recently two of the directors of Bux Global, who on the evidence before me have been associated with the activities relating to raising funds concerning the Bux App and the promotion of the activities of the Bux App and the affairs of Bux Global for some time, have resigned. Very recently the signage at the notified principal place of business of Bux Global has been changed to remove the name of Bux Global. The name of another company, 2WayWorld Technologies, has been displayed at the premises. It is a company which, on the evidence before me, is controlled by an associate of those who have been directors of Bux Global, who have recently resigned. The extent of evidence before me as to the activities of 2WayWorld Technologies indicates that it is involved in activities that might be described as being in the same field as that of Bux Global, particularly matters relating to the Bux App. 12 The plaintiffs rely upon all of those matters and a claim that the affidavits before the Court demonstrate reasonable merit in the claim to wind up Bux Global on the just and equitable ground as the basis for the appointment of a provisional liquidator to Bux Global. 13 I am satisfied that there is a reasonable basis for the application to wind up Bux Global. I note in particular there is evidence before me to the effect that: (1) the Bux App does not work; (2) the turnover of the company as disclosed in its accounts is very modest; (3) funds raised from investors for the purposes of the Bux App business have been applied for the private purposes of persons associated with Bux Global; and (4) those who have been directors of Bux Global have made repeated unfulfilled promises to secure a listing on a stock exchange in respect of the Bux App business but have not done so. 14 There is, in addition to these matters, evidence of the recent events concerning Bux Global terminating the instructions to its solicitors shortly after the appointed time at which the company, according to the directions made by the Court, was required to provide affidavits dealing with the allegations that provide the foundation for the application. 15 Finally, as I have said, there was an application for summary dismissal in this matter which was unsuccessful. 16 The plaintiffs say that the evidence demonstrates that those in control of Bux have decided to abandon its activities, either wholly or substantially and they are taking steps to phoenix the operations of Bux Global into a new company. 17 The evidence does show that there have been recent and apparently significant changes to the services offered by Bux Global by means of the Bux App. It also shows that there have been changes in those who are in control of the company. It also shows that Bux Global appears to have discontinued its operations at its principal place of business. 18 Therefore, I am satisfied that in the context of recent events concerning the legal representation of Bux Global and the character of the evidence as to the substance of the principal application that the evidence before me raises matters to support the application for appointment of a provisional liquidator. The question is whether they justify the making of such an order on an ex-parte and urgent basis. 19 The principles to be applied in considering whether to appoint a provisional liquidator were reviewed by Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234. 20 The Court has a wide discretion that accommodates the diversity of commercial circumstances that may provide a justification for such an appointment. The Court approaches such applications recognising that the appointment of a provisional liquidator is a drastic intrusion into the affairs of the company. 21 Recent events indicate that the affairs of Bux Global are being carried on casually and without regard to the seriousness of the winding up application that the company faces. They also indicate that those who have been involved for a number of years in the business activities currently carried on in Bux Global have at least ceased their involvement as directors of the company. There is also the evidence of the changes to the website. 22 All of those steps must be read in the context of the evidence on the substantive application which I have sought to summarise which raises serious matters which the company has not dealt with by any substantive response to the application which has now been on foot in this Court since December of last year. 23 In those circumstances, there is a very real concern raised by the material that there are imminent further steps being taken concerning the activities of the company that warrant the appointment of a provisional liquidator on an ex-parte basis. 24 So, therefore, I propose to make orders as sought on the present application. 25 In addition, the plaintiffs seek orders under s 486A of the Corporations Act 2001 (Cth). Only a liquidator, a provisional liquidator or ASIC has standing to seek such orders. 26 I was invited to consider the making of such orders on the basis of communications that have been made in anticipation of this application by the solicitors who act for the plaintiffs with the proposed provisional liquidator. Having regard to the character of orders to be made under s 486A if they are to be made, the significant interference that might result, and the fact that Parliament has only entrusted the ability to make those applications to, in effect, the liquidators as officers of the Court or ASIC in the public interest, I am not prepared to make those orders on that basis. So I will refuse that part of the application. Of course, that will leave the provisional liquidator as appointed under the orders that I propose to make at liberty to renew that application should the provisional liquidator independently advised form the view that it is appropriate to seek such relief. 27 After the above reasons were pronounced I was informed that in the course of delivering them solicitors acting for the plaintiffs had been informed that administrators had been appointed to Bux Global. 28 After receiving further submissions as to the appropriate course and mindful of the terms of s 440A(3), I made orders as sought on the application but stayed the operation of those orders until 4.00 pm on 10 October 2018 to enable the administrators to present material and submissions as to whether the Court should be satisfied as to whether the orders were in the interests of the company's creditors. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate: Dated: 4 October 2018