ION Limited, in the matter of ION Limited (Subject to Deed of Company Arrangement) [2010] FCA 1119 (15 October 2010)

Last Updated: 21 October 2010

FEDERAL COURT OF AUSTRALIA

ION Limited, in the matter of ION Limited (Subject to Deed of Company Arrangement) [2010] FCA 1119

Citation:		ION Limited, in the matter of ION Limited (Subject to Deed of Company Arrangement) [2010] FCA 1119
Parties:		ION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 009 106 272) & OTHERS (ACCORDING TO THE ATTACHED SCHEDULE) and COLIN MCINTOSH NICOL AND PETER MCKENZIE ANDERSON & OTHERS (AS DEED ADMINISTRATORS OF THE ENTITIES NAMED IN THE ATTACHED SCHEDULE)
File number:		VID 634 of 2010
Judge:		DODDS-STREETON J
Date of judgment:		15 October 2010
Catchwords:		CORPORATIONS – ASX listed company and its subsidiaries subject to pooled deeds of company arrangement – following Sons of Gwalia v Margaretic [2007] HCA 1; (2007) 231 CLR 160, deed administrators sought directions in relation to, inter alia¸ notifying new shareholder claimants of their potential right to lodge proofs of debt, existing shareholder creditors and general creditors of opportunity to revise proofs of debt and certain shareholder claimants of their entitlement to elect to prove for 80% of the value of their claim without providing specific details of causation – proposed provision of revised report to creditors – directions appropriate and made in the form sought
Legislation:		Corporations Act 2001 (Cth) s 447D Corporations Regulations 2001 (Cth) r 5.6.48 Federal Court (Corporations) Rules 2000 (Cth) r 2.13
Cases cited:		Consolidated Byrnes Holdings Limited v Hardel Investments Pty Ltd [2009] FCA 399; (2009) 176 FCR 348 Harry Goudias Pty Ltd v Port Adelaide Freezers Pty Ltd (1992) 7 ACSR 303 Sons of Gwalia Ltd v Margaretic [2007] HCA 1; (2007) 231 CLR 160
Date of hearing:	14 October 2010
Date of last submissions:	14 October 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	54
Counsel for the Plaintiffs:	Mr P Crutchfield SC
Solicitor for the Plaintiffs:	Allens Arthur Robinson
Counsel for Slater & Gordon shareholder claimants (non-parties)	Ms L Nichols
Solicitor for Slater & Gordon shareholder claimants (non-parties)	Slater & Gordon
Counsel for DC Legal Pty Ltd shareholder claimants (non-parties)	Mr B Dennis
Solicitors for DC Legal Pty Ltd shareholder claimants (non-parties)	DC Legal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 634 of 2010

IN THE MATTER OF ION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 009 106 272)

BETWEEN:

ION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 009 106 272) & OTHERS (ACCORDING TO THE ATTACHED SCHEDULE) First Plaintiff COLIN MCINTOSH NICOL AND PETER MCKENZIE ANDERSON & OTHERS (AS DEED ADMINISTRATORS OF THE ENTITIES NAMED IN THE ATTACHED SCHEDULE) Second Plaintiff

JUDGE:	DODDS-STREETON J
DATE OF ORDER:	14 OCTOBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The deed administrators of the entities listed in the Schedule attached (“Deed Administrators”) adopt the following procedure to notify prospective creditors of ION Limited (Subject to Deed of Company Arrangement) (“ION”) of their potential right to lodge a proof of debt under the Deeds of Company Arrangement of the entities listed in the Schedule attached (“DOCAs”) or to vary a proof of debt previously lodged:

(i) By way of ordinary pre-paid mail posted to the postal address last known to the Deed Administrators for the addressee (“Mail Method”), the Deed Administrators send notices in the form of 'Annexure A', 'Annexure B' and 'Annexure C' (collectively, “the Notices”) to, respectively:

(a) those who purchased ION shares on or after 10 September 2004 and have not lodged a proof of debt under the DOCAs (“New Claimants”);

(b) those current and former shareholders of ION who to date have lodged proofs of debt under the DOCAs (except that where such shareholder is represented by Slater & Gordon or DC Legal Pty Ltd, the relevant Notice will be posted to the shareholder's legal adviser); and

(c) the general body of non-shareholder creditors who have lodged a proof of debt under the DOCAs and whose proofs have not been rejected in full.

(ii) The Deed Administrators are not required to take any further action if there is no response to a Notice sent to a New Claimant (“New Claimant Notice”) or if a New Claimant Notice is returned to the Deed Administrators unopened.

(iii) Within seven days after posting the first of the New Claimant Notices, the Deed Administrators place an advertisement in the form of 'Annexure D' in The Australian newspaper for three consecutive days on which that newspaper is published.

(iv) If any prospective creditor of ION so requests, then by the Mail Method provide to such persons hard-copies of the updated Report to creditors (“Report”), a draft of which is 'Confidential Exhibit CMN5' to the affidavit of Colin McIntosh Nicol sworn on 30 July 2010, a Form 535 proof of debt form in substantially the same form as 'Annexure E', and a Shareholder Claim Form in substantially the same form as 'Annexure F'.

2. The Deed Administrators allow 45 days from the last day of publication of the advertisement referred to in paragraph 1(c) above, for relevant persons to consider the contents of the Report and to lodge any new or varied proofs of debt.
3. The costs of this application be costs in the DOCAs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 634 of 2010

IN THE MATTER OF ION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 009 106 272)

BETWEEN:

ION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 009 106 272) & OTHERS (ACCORDING TO THE ATTACHED SCHEDULE) First Plaintiff COLIN MCINTOSH NICOL AND PETER MCKENZIE ANDERSON & OTHERS (AS DEED ADMINISTRATORS OF THE ENTITIES NAMED IN THE ATTACHED SCHEDULE) Second Plaintiff

JUDGE:	DODDS-STREETON J
DATE:	15 OCTOBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. On 14 October 2010, I made the following orders and directions pursuant to s 447D(1) and (2) of the Corporations Act 2001 (Cth) (“the Act”) sought by the plaintiffs, Colin McIntosh Nicol and Peter McKenzie Anderson (“the deed administrators”), in their capacity as deed administrators of ION Ltd (subject to deed of company arrangement) (“ION”) and 17 Australian subsidiaries of ION (together, “the plaintiff companies”):
   1. The deed administrators of the entities listed in the Schedule attached (“Deed Administrators”) adopt the following procedure to notify prospective creditors of ION Limited (Subject to Deed of Company Arrangement) (“ION”) of their potential right to lodge a proof of debt under the Deeds of Company Arrangement of the entities listed in the Schedule attached (“DOCAs”) or to vary a proof of debt previously lodged:

(i) By way of ordinary pre-paid mail posted to the postal address last known to the Deed Administrators for the addressee (“Mail Method”), the Deed Administrators send notices in the form of 'Annexure A', 'Annexure B' and 'Annexure C' (collectively, “the Notices”) to, respectively:
(a) those who purchased ION shares on or after 10 September 2004 and have not lodged a proof of debt under the DOCAs (“New Claimants”);
(b) those current and former shareholders of ION who to date have lodged proofs of debt under the DOCAs (except that where such shareholder is represented by Slater & Gordon or DC Legal Pty Ltd, the relevant Notice will be posted to the shareholder's legal adviser); and
(c) the general body of non-shareholder creditors who have lodged a proof of debt under the DOCAs and whose proofs have not been rejected in full.
(ii) The Deed Administrators are not required to take any further action if there is no response to a Notice sent to a New Claimant (“New Claimant Notice”) or if a New Claimant Notice is returned to the Deed Administrators unopened.
(iii) Within seven days after posting the first of the New Claimant Notices, the Deed Administrators place an advertisement in the form of 'Annexure D' in The Australian newspaper for three consecutive days on which that newspaper is published.
(iv) If any prospective creditor of ION so requests, then by the Mail Method provide to such persons hard-copies of the updated Report to creditors (“Report”), a draft of which is 'Confidential Exhibit CMN5' to the affidavit of Colin McIntosh Nicol sworn on 30 July 2010, a Form 535 proof of debt form in substantially the same form as 'Annexure E', and a Shareholder Claim Form in substantially the same form as 'Annexure F'.

2. The Deed Administrators allow 45 days from the last day of publication of the advertisement referred to in paragraph 1(c) above, for relevant persons to consider the contents of the Report and to lodge any new or varied proofs of debt.

3. The costs of this application be costs in the DOCAs.

2. The materials proposed to be sent to claimants or their representatives included:

(a) a form 535 proof of debt and shareholder claim form, with guidance notes [the shareholder claim form required shareholders to indicate whether they wished to submit a revised proof of debt, were legally represented and by whom, the capacity in which the claim was made, the association with ION, notification details, ION shareholding history (attaching relevant contract notes for purchase or sale, or statements), details of claim (including ION’s conduct, causation, whether the shares were sold, whether loss was suffered, whether a claim related to share purchase on or after 10 September 2004, whether the claimant elected to take the discounted proof option, and details of the total amount of claimed loss)];

(b) a statutory declaration confirming that the information relevant to the claim against ION was true, correct and complete;

(c) a formal proof of debt or claim form.

3. The reasons for making the orders and directions are set out below.
4. The directions related to the provision of material to creditors and prospective creditors in order, inter alia, to: notify a particular category of prospective “shareholder creditors” (“new claimants”) of their potential right to lodge proofs of debt; notify shareholder creditors and general creditors who had lodged proofs of debt under the deeds of company arrangement of the opportunity to revise them; notify a category of shareholder claimants who purchased shares after 10 September 2004 of their entitlement to elect to prove for a discounted 80% of the value of their claim without providing specific details of causation (“the discounted proof election”); provide an updated report to creditors (currently in draft form and hence confidential) outlining the deed administrators’ conclusions drawn from their forensic investigations conducted in the administration to date. The directions also sought confirmation that the deed administrators need take no further action in relation to new claimants who did not respond or whose notices were returned unopened.
5. The plaintiffs’ application was supported by the affidavit of Colin McIntosh Nicol sworn 30 July 2010, the affidavit of Colin McIntosh Nicol sworn 8 October 2010, the affidavit of Clinton Charles Hinchen sworn 16 August 2010 and the affidavit of Clinton Charles Hinchen sworn 13 October 2010.

Background to application

6. As appears from Mr Nicol’s first affidavit, ION is a public company listed on the Australian Stock Exchange (“ASX”). It was the ultimate parent company of 22 Australian companies, as well as four New Zealand companies and three companies incorporated in the United States of America. The ION Group operated in Australia, New Zealand, the USA and South Korea. Its activities included manufacturing automotive components, transporting fuel and refuelling services, and manufacturing fuel equipment.
7. On 7 December 2004, Messrs Nicol and Anderson were appointed voluntary administrators of ION and its 22 Australian subsidiaries (for certain companies, other members of McGrath Nicol were also appointed joint and several voluntary administrator).
8. At the second meetings of creditors of ION and its Australian subsidiaries held on 6 May 2005:

(a) the creditors of the plaintiff companies (ION and 17 of its 22 subsidiaries) resolved that each of the companies execute a deed of company arrangement;

(b) the creditors of five other subsidiaries of ION resolved that those entities be wound up and that Messrs Anderson and Nicol be appointed liquidators;

(c) a committee of creditors for each of the plaintiff companies was elected; and

(d) a committee of inspection was appointed for each of the liquidated subsidiaries.

9. On 27 May 2005, the plaintiff companies executed deeds of company arrangement (DOCAs), which are all contained in the one instrument and “the effect of which is to pool the assets and liabilities of all [the plaintiff companies]”. Peter Anderson and Colin McNicol were appointed deed administrators of ION and of the other 17 pooled entities (sometimes jointly with another deed administrator).
10. Following the commencement of the voluntary administration of ION and its Australian subsidiaries, the assets of ION’s New Zealand and American subsidiaries were disposed of. The solvent windings up of the three American subsidiaries commenced in August 2005. On 30 June 2006, the four New Zealand subsidiaries went into liquidation.
11. Mr Nicol deposed that on 28 June 2005, the deed administrators [in accordance with a regime under clause 12.6 of the DOCAs which effectively incorporated Reg 5.6.48 of the Corporations Regulations 2001 (Cth) (“the Regulations”)] invited formal proofs of debt or claim and published advertisements in The Australian, and on their website. They also announced the notice to the ASX.
12. The deed administrators received, inter alia, 3,300 proofs of debt from present and former shareholders of ION, who made a variety of allegations frequently based on misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) and on ION’s contravention of its disclosure obligations as a publicly listed company under s 67A of the Act and ASX Listing Rule 3.1.
13. In many cases, the contraventions alleged include ION’s failure to disclose relevant market information in relation to its supply contracts with customers, its funding requirements for an expansion program, its revised downward forecasts, its declining profit and revenue and its cost overturns on major capital projects, as well as its provision of misleading and deceptive information about the adequacy of its financial controls.
14. Some shareholder claimants alleged that they had purchased shares before the alleged contravening conduct, whilst others alleged purchasing shares after it. Some shareholder claimants held shares when voluntary administrators were appointed on 7 December 2004, while others had sold their shares before that date.
15. The majority of shareholder claimants alleged that they had taken action (for example, acquired or maintained their shares) based on the alleged contravening conduct and had thereby suffered loss and damage. In contrast, one large group of shareholder claimants, represented by Slater & Gordon, claimed that causation of loss would be established if, as alleged, ION’s share price was inflated by reason of contravening conduct, whether or not they relied on it.
16. Most shareholder claimants claimed the full purchase price of the shares they held as at 7 December 2004.
17. It appeared that many shareholder claimants had based the allegations made in their proofs of debt on the s 439A report the deed administrators released on 15 April 2005. The proofs often raised additional factual matters. (The 439A report was prepared prior to forensic investigations undertaken by the deed administrators and was hence preliminary and qualified in various respects).
18. Many shareholder claimants had claims based on more than one decision to purchase or retain ION shares. The deed administrators were thus faced with a myriad of shareholder claims based on different allegations.
19. The deed administrators, following the decision in Sons of Gwalia Ltd v Margaretic [2007] HCA 1; (2007) 231 CLR 160 on 31 January 2007, undertook forensic investigation of shareholder claimants’ allegations by a process of electronic searches, interviews, compulsory discovery, public examination and interview, in order to assess the events of the period from October 2003 to December 2004.
20. Mr Nicol deposed that the deed administrators concluded that there was contravening conduct and that, had ION complied with its legal obligations, it would probably have ceased trading and been placed into administration on 10 September 2004.
21. The deed administrators believed that, as the law stands, claims of causation would not be established on the basis that the price of ION’s shares was inflated by the contravening conduct. Rather, close examination of the factual circumstances in which each shareholder claimant decided to purchase or hold shares would be required. They anticipated that before deciding whether to admit the various shareholder claims to proof in whole or in part, further clarification of the claims would be required.
22. The deed administrators nevertheless decided to admit post 10 September 2004 share purchasers to proof for 80% of the value of their shareholding without having to submit specific evidence of causation, because such shareholders were most likely to be able successfully to establish loss and damage as a result of ION’s contravening conduct.
23. As at August 2010, the assets of the ION group of companies have been substantially realised. All priority creditors (including employees) have been paid in full under the DOCAs. The estimated net proceeds available for distribution to creditors whose claims are admitted by the deed administrators under the DOCA is approximately $354 million.
24. The largest creditor of the plaintiff companies in value is a syndicate of banks with an unsecured debt of over $340 million.
25. Trade creditors and other creditors’ claims amount to approximately $97 million.
26. Proofs lodged by over 3,300 current and former shareholders of ION, claiming approximately $122 million in loss and damage, constitute the only significant category of proofs of debt under the DOCA yet to be determined.
27. On 26 July 2010, the deed administrators informed the members of the committee of creditors that they intended to seek the relevant directions. No member of the committee objected, and a majority in number and value indicated support for the application.
28. As far as the deed administrators are aware, the only persons who might be creditors and had not yet lodged a proof of debt under the DOCAs are any outstanding 10 September 2004 shareholders. They proposed to notify those potential new claimants by posting the relevant material to their last known address.

The plaintiffs’ application

29. At the first return of the originating process on 17 August 2010, the representatives of two groups of shareholder claimants, with claims based on their purchase or maintenance of shareholdings, appeared. They opposed the immediate determination of the plaintiffs’ application, contending that they required more time to consider the material to be provided and foreshadowing that they may oppose the provision of the material in its present form.
30. Valentine Young, as trustee for the Shim Superannuation Fund, sought leave under s 2.13(1) of the Federal Court (Corporations) Rules 2000 (Cth) (“the Corporations Rules”) to file and serve an interlocutory process to be made returnable instanter, seeking a timetable for the making of submissions and conferring with the deed administrators. Mr Young was one of a large number of shareholder claimants represented by Slater & Gordon.
31. Benjamin James Yang Phi, a solicitor employed by Slater & Gordon, by his affidavit affirmed on 17 August 2010, deposed that Slater & Gordon acted for 1459 entities, including Mr Young, who had purchased shares in ION in the period up to 7 December 2004, about 1287 of whom had already lodged proofs of debt on the basis that they had acquired shares during a period when ION engaged in misleading and deceptive conduct. Slater & Gordon also proposed to submit proofs for the balance of their clients. The estimated total value of Slater & Gordon’s clients’ claims was over $93 million, calculated by deducting the sale price from the purchase price on “a first in first out basis”, assuming a sale price of $0 for shares still held at the date on which administrators were appointed. There were 546 Slater & Gordon clients (with claims totalling over $12 million) who had purchased shares on or after 10 September 2004.
32. Mr Phi deposed to his communications with the solicitors for the deed administrators in relation, inter alia, to their application for directions.
33. Before me, Ms Nichols, for the Slater & Gordon claimants, submitted that the proposed 21 day period was too short for shareholder claimants who purchased their shares after 10 September 2004 to decide whether to make the discounted proof election, given the unsettled nature of the law governing claims for loss suffered as a shareholder, including the different nature and extent of evidence required to establish a sufficient connection between a company’s conduct and loss suffered. The timeframe was too tight, Ms Nichols said, for Slater & Gordon to obtain detailed instructions in order to advise its clients on whether to make the discounted proof election, as well as to prepare all the proofs.
34. Ms Nichols also submitted that the materials the deed administrators proposed to provide did not contain sufficiently detailed guidance as to what proofs of causation they would accept and the process would therefore be wasteful and unnecessarily expensive.
35. In summary, the Slater & Gordon shareholder claimants did not assert that the materials or proposed processes were misleading, but rather that the timeframes imposed were too short, giving them insufficient time to consider the application and to make relevant submissions. They nevertheless foreshadowed that they may propose alternative processes, such as selection of a small number of test cases to determine common questions of principle, in order to minimise legal costs and other expenses.
36. At the hearing on 17 August 2010, Mr Dennis of DC Legal Pty Ltd, representing another large group of 764 shareholder claimants, reiterated the concerns of the Slater & Gordon shareholder claimants and also sought an adjournment.
37. Senior counsel for the deed administrators, Mr Crutchfield, submitted that the directions should be made forthwith, as the notifications and sending out of the relevant materials, which exceeded any obligation imposed by the Act, Regulations or DOCAs, would not conclusively affect or determine any rights or entitlements. Rather, they were steps towards the adjudication of all possible shareholder proofs, which was now possible after a lengthy investigation. The DOCAs had been on foot for some years, and while all priority creditors had been paid in full, no interim dividend had been paid to any other claimants. The receipt and adjudication of all the shareholder claimants’ proofs were an outstanding necessary prelude to their quantification, and thus to estimating the return to creditors under the DOCAs and making an interim dividend.
38. Mr Crutchfield submitted that shareholder claimants had already had the benefit of considerable information in the 2005 report, which had enabled many of them to lodge detailed proofs, and that the updated report would now permit any appropriate revision. He submitted that the concerns voiced by the shareholders claimants conflated the initiation of the process of determination of proofs with the determination of proofs itself and was directed at securing more detailed guidance on what level of proof of causation the deed administrators would require.
39. It was, Mr Crutchfield said, not only unnecessary but improper for the deed administrators to provide such detailed guidance. Further, as they had determined to send the material, it would be necessary for any person opposing that course to be made a party and to bring an appropriate application, probably under s 1321 of the Act. (For a recent discussion of the relationship between Rule 2.13 of the Corporations Rules, s 1335(2) of the Act and O 6 r 8 of the Federal Court Rules, see Consolidated Byrnes Holdings Limited v Hardel Investments Pty Ltd [2009] FCA 399; (2009) 176 FCR 348.)
40. On 17 August 2010, in the light of the relatively short time the relevant shareholder claimants had had to consider the material and processes proposed, given the complexity, scope and duration of the DOCAs, I adjourned the matter in order to allow the shareholder claimants and any other interested persons sufficient time to consider and make submissions and applications in relation to the plaintiffs’ application.
41. During the adjournment, as Mr Nicol deposed in his second affidavit, discussions took place between the deed administrators’ solicitors and Slater & Gordon, which led to a revision of some of the directions initially sought by the deed administrators.
42. Mr Nicol deposed that, in light of the discussions, the deed administrators proposed to:
    • extend the time for lodgement of new or revised proofs of debt from 21 days to 45 days;
    • make changes to the shareholder claim form, including allowing the shareholders to nominate an email address other than their own for receiving communication from the deed administrators;
    • amend to the proof of debt form “to reduce the information required to be provided by shareholders to the extent that this information would otherwise overlap with information provided by shareholders in the shareholder claim form”; and
    • in the case of shareholders represented by Slater & Gordon or DC Legal, send proposed current claimant notice (exhibited to Mr Nicol’s second affidavit) to the shareholder’s legal adviser, and otherwise to the individual shareholders and to their professional representative, if any.
43. No application or material opposing the plaintiffs’ application was filed. At the hearing on 14 October 2010, Ms Nichols and Mr Dennis, representing respectively the Slater & Gordon and DC Legal shareholder clients, did not oppose the plaintiffs’ application.
44. ASIC, which was notified of the plaintiffs’ application and provided with a copy of all materials filed, did not appear or make submissions at the hearings.

Application

45. Section 447D of the Act relevantly provides:

447D Administrator may seek directions
(1) The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator’s functions and powers.
(2) The administrator of a deed of company arrangement may apply to the Court for directions about a matter arising in connection with the operation of, or giving effect to, the deed.

46. In my opinion, it was reasonable for the deed administrators to seek the relevant directions, and appropriate to make them.
47. In the present case, the course proposed by the deed administrators entailed, inter alia, inviting new proofs from post 10 September 2004 shareholder claimants after the DOCAs have been on foot for some years, offering such claimants an election to secure admission to proof at a discount on the value of their claims for the quid pro quo of exemption from furnishing detailed evidence of causation, and providing claimants who have already lodged proofs with an updated report to creditors and an opportunity to revise their proofs, whilst settling a deadline for proving.
48. Clause 12.6 of the DOCAs provides:

12.6 Provisions applicable to Asserted Claims
Except to the extent (if any) they are excluded or modified by or are inconsistent with the terms of this Deed, section 563A of the Act and subdivisions A, B, C and E of Division 6 of Part 5.6 of the Act (other than sections 553(1A) and section 554F of the Act) and Regulations 5.6.39 to 5.6.57 apply to an Asserted Claim with such modifications as may be necessary, including:
(a) references to the “liquidator” to be read as references to the Deed Administrators; and
(b) references to the “relevant date” to be read as references to the Appointment Date.

49. Clause 12.6 of the DOCAs thus incorporates regulation 5.6.48 of the Regulations, which provides:

5.6.48 Notice to creditors to submit formal proof
(1) A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which creditors of the company whose debts or claims have not been admitted are formally to prove their debts or claims.
(2) A liquidator must give notice in writing of the day fixed under subregulation (1):
(a) by advertising the day, in each State and Territory in which the company carried on business at any time during the 2 years immediately preceding the relevant date, in a daily newspaper circulating generally in the State or Territory; and
(b) to every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and whose debt or claim has not been admitted.
Note The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this paragraph by the nominated electronic means.
(3) An advertisement mentioned in subregulation (2) must be in accordance with Form 534.
(4) A creditor of the company who fails to comply with a requirement of a liquidator under subregulation (1) is excluded:
(a) from the benefit of a distribution made before his or her debt or claim is admitted; and
(b) from objecting to that distribution.

50. The regulation in effect permits the liquidator (and hence the deed administrators, in this case) to set a deadline for formal proofs by adopting the specified method.
51. A liquidator is obliged to inquire into all claims. He or she has a duty to invite proofs of claims from persons with claims, even if they have not responded to the advertisement, if the liquidator is aware of creditors who have not proved.
52. In Harry Goudias Pty Ltd v Port Adelaide Freezers Pty Ltd (1992) 7 ACSR 303 at 306-7, Mullighan J stated:

Section 553(1) provides that all debts and claims of a company are admissible to proof upon a winding up, including debts payable on a contingency and all claims, “present or future, certain or contingent, ascertained or sounding only in damages”. That section casts upon the liquidator the obligation expressed as follows: “...a just estimate being made so far as possible of the value of such debts or claims as are subject to any contingency or sound only in damages or for some other reason do not bear a certain value.”

Consequently the liquidator was obliged to have regard to the plaintiff's claim even if it had not been made in consequence of the advertisement. The liquidator had a duty to invite proof of claims from persons with claims even if they have not responded to the advertisement if he is aware of creditors who have not proved: Re Armstrong Whitworth Securities Co Ltd [1947] Ch 673. Furthermore he is obliged to inquire into all claims: Austin Securities Ltd v Northgate & English Stores Ltd [1969] 1 WLR 529 per Lord Denning MR at 532: “It is the duty of a liquidator to inquire into all claims, to see whether they are well founded or not, to pay the good claims, to reject the bad, to settle the doubtful, or, if need be, to contest them. It is only in this way that a liquidator can fulfil his duty under s 302 of the Companies Act 1948, of seeing that the property of the company is applied in satisfaction of its liabilities pari passu. In Pulsford v Devenish [1903] 2 Ch 625 at 631 Farwell J said:'...I consider to be the duty of a liquidator, namely, not merely to advertise for creditors, but to write to the creditors of whose existence he knows, and who do not send in claims, and ask them if they have any claim....' ”

Edmund Davies LJ acknowledged that merely advertising for claims is not sufficient. At 535 his Honour said: “Furthermore, advertising is not sufficient where he knows of the existence of claims, for, as was illustrated by the decision in Pulsford v Devenish [1903] 2 Ch 625, in such a case there is a duty to ascertain by direct inquiry whether the claim is being pressed.” Section 302 of the Companies Act 1948 (UK) is in terms similar to s 501 of the Corporations Law.

53. In the present case the deed administrators could, in my view, consistently with the obligations of a liquidator, properly take the proposed steps to invite proofs from the new shareholder claimants and could properly offer the discounted proof election.
54. Further, while neither the terms of the DOCAs nor any relevant provision of the Act or Regulations imposed an obligation to do so, it was, in the circumstances of the present case, appropriate to furnish the updated report to creditors and afford an opportunity to revise proofs.
    

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.

Associate:

Dated: 15 October 2010

Schedule to Parties

Entity Name		ABN / ACN			Deed Administrators Appointed
ION Limited (Subject to Deed of Company Arrangement)	29	009	106	272	Colin McIntosh Nicol Peter McKenzie Anderson
Core Cast Limited (Subject to Deed of Company Arrangement)	87	097	447	660	Colin McIntosh Nicol Peter McKenzie Anderson
ION Automotive Group Limited (Subject to Deed of Company Arrangement)	87	104	279	156	Colin McIntosh Nicol Peter McKenzie Anderson
ION Light Metal Castings Pty Ltd (Subject to Deed of Company Arrangement)	51	104	930	181	Colin McIntosh Nicol Peter McKenzie Anderson
Yollatsac Limited (formerly Castalloy Limited) (Subject to Deed of Company Arrangement)	56	007	528	583	Colin McIntosh Nicol Peter McKenzie Anderson Samuel Charles Davies
Yollatsac Manufacturing Pty Ltd (formerly Castalloy Manufacturing Pty Ltd) (Subject to Deed of Company Arrangement)	79	007	838	986	Colin McIntosh Nicol Peter McKenzie Anderson Samuel Charles Davies
Yollatsac Wheels Pty Ltd (formerly Castalloy Wheels Pty Ltd) (Subject to Deed of Company Arrangement)	14	007	894	984	Colin McIntosh Nicol Peter McKenzie Anderson Samuel Charles Davies
XCTA Pty Ltd (formerly Cootes Transport Pty Ltd) (Subject to Deed of Company Arrangement)	76	010	383	016	Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XCTS Pty Ltd (formerly Cootes Tanker Service Pty Ltd) (Subject to Deed of Company Arrangement)	14	004	495	765	Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XIAS Pty Ltd (formerly ION Automotive Systems Pty Ltd) (Subject to Deed of Company Arrangement)	35 104 930 109				Colin McIntosh Nicol Peter McKenzie Anderson Michael John Hill
XIRC Pty Ltd (formerly I.R. Cootes Pty Ltd) (Subject to Deed of Company Arrangement)	20 004 801 076				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XITMS Pty Ltd (formerly ION Transmissions Pty Ltd) (Subject to Deed of Company Arrangement)	90 099 982 180				Colin McIntosh Nicol Peter McKenzie Anderson Michael John Hill
XLC Pty Ltd (formerly Liquip Corp Pty Limited) (Subject to Deed of Company Arrangement)	81 082 859 970				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XLO Pty Ltd (formerly Liquip Overseas Pty Ltd) (Subject to Deed of Company Arrangement)	094 440 589				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XLS Pty Ltd (formerly Llquip Sales Pty Limited) (Subject to Deed of Company Arrangement)	48 001 595 222				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XLSE Pty Ltd (formerly Liquip Service Pty Ltd) (Subject to Deed of Company Arrangement)	71 082 859 989				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XLSV Pty Ltd (formerly Liquip Sales (Vict.) Pty Limited) (Subject to Deed of Company Arrangement)	28 005 691 761				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern
XST Pty Ltd (formerly Stevenson Transport Pty Ltd) (Subject to Deed of Company Arrangement)	48 006 271 352				Colin McIntosh Nicol Peter McKenzie Anderson Robyn Beverley McKern