Update on liquidation (Aug 2024)What proceedings have been...

Update on liquidation (Aug 2024)

What proceedings have been funded and commenced by Bookarelli?

Over the course of the liquidation, Bookarelli has funded and progressed the following proceedings against the respondent (i.e. Babcock and the Liquidator):

• Grant-Taylor Proceedings – The Grant-Taylor Proceedings commenced on 11 December 2012 and 78 shareholders were applicants to the proceedings.
• Masters Proceedings – The Masters Proceedings commenced on 13 December 2013 and 100 shareholders were applicants to the proceedings.
• Broome Proceedings – The Broome Proceedings commenced on 19 September 2014 and 887 shareholders were applicants to the proceedings.
• Wilhelm Proceedings – The Wilhelm Proceedings commenced on 6 May 2015 and 234 shareholders were applicants to the proceedings.
• Pain Proceedings – The Pain Proceedings commenced on 14 November 2018 and 313 shareholders were applicants to the proceedings.

What is the impact of the manner in which Bookarelli has commenced proceedings?

A summary of the impacts of the manner in which Bookarelli has commenced the proceedings are provided below:

• Ability to “Judge-shop” – Whilst the results of cases do not generally differ wildly depending on the particular Judge that hears it, if a Judge sees the evidence even slightly differently to another Judge, that might be enough to turn the result. It is why, even at the High Court level, decisions are not always unanimous. What this means is that Bookarelli can run the same case over and over again (as they have done) in the hope that one day, they might draw a Judge that sees the evidence differently enough (in their favour) to produce a different result. Of course, my view is that their cases have been so hopeless on a fundamental level that no amount of “Judge-shopping” by them would have produced a different result.
• One successful proceeding may result in a return to all shareholders – Due to the nature of this matter, Bookarelli may only need to be successful in one of the proceedings which may cause the Liquidator to admit all shareholders as creditors of the Company (other than the claims of shareholders that have already been dismissed by the courts).

What is the likelihood of Bookarelli commencing future proceedings?

The first thing to note is that Bookarelli have made representations, and we have seen evidence, that they may have a substantial number of further shareholder claims to bring, so there is some likelihood that it may bring further claims, absent being prevented from doing so.

It is our view that Bookarelli’s continuing commencement of proceedings represents an abuse of the Court’s processes. In our view, if it were to bring proceedings at all, Bookarelli should have gathered all of the shareholder applicants in one proceeding and run all of its arguments in that one proceeding, on a “once and for all” basis. It should not have run the same arguments in separate proceedings over and over, in the hopes that the result might one day be different.

As some of you may know, our success against Bookarelli in the previous proceedings have resulted in costs orders made in our favour. One of those costs orders has already been paid however, there is a process that must be followed in order to convert the remaining costs orders into actual funds, and we are significantly advanced in this costs process. The amount of costs that we think will ultimately be ordered against Bookarelli will be large, and so it is unclear whether Bookarelli would be willing to continue pursuing actions on behalf of shareholders in circumstances in which they have already had significant cost orders made against them.

What can be done to bring a conclusion to possible future proceedings commenced by Bookarelli?

The challenge that we have faced over the course of the liquidation is that Bookarelli has brought separate proceedings with different applicants / shareholders rather than a class action. The effect of conducting litigation in this way is that the shareholders that were not part of previous proceedings are not precluded from participating in later proceedings, whereas if the initial proceedings were run as a class action, it would have bound all the shareholders other than those that opted out of the class.

Only the applicants can know if they are going to bring proceedings, and if so, the form in which they are going to do so. As the respondent, there is very little that we can do to prevent legal proceedings that do not yet exist, other than defend them on its merits if or when they are filed.

That said, whilst our options may be limited, they are not non-existent.

Our lawyers have been with us every step of the way, and represented us in the Grant-Taylor, Masters, Broome and Wilhelm proceedings, all of which we were successful in (the same lawyers are currently representing us in the Pain proceedings as well, which proceedings are still on foot).

We have discussed this matter with them and consider that the fact that Bookarelli has previously funded four (4) different sets of proceedings arguing virtually the same case, and lost all four (4) of them, might move a court to conclude that Bookarelli should be precluded from trying for a fifth time (being the Pain proceedings) or a further time.

We are in uncharted waters with such an application, and we can say that from our and our lawyers’ research, that this has not been attempted before. This complexity has necessitated us spending time since we prevailed in the Masters, Broome and Wilhelm proceedings in the High Court, in seeking further documents from Bookarelli, and taking evidence from witnesses with knowledge of the relevant issues in order to determine whether or not there is enough evidence for a court to be satisfied that Bookarelli should be prevented from continuing to attack the Company.

In the interests of transparency, we need to advise that if we do seek to obtain an order from the court precluding Bookarelli from continuing or bringing further proceedings, this action will itself require further expense. However, that expense will be significantly less than having to defend the Pain proceedings, let alone any further proceedings that Bookarelli might bring in the future.

We anticipate that you are understandably curious as to what particular actions or strategies we are considering. However, as this is a public statement, we are sure you can appreciate that it would be imprudent and unwise of us to say anything in such a communication that might compromise our prospects of success.

Why do you have to continue fighting the Bookarelli proceedings?

Whilst the ongoing proceedings commenced by Bookarelli on behalf of shareholders is frustrating the payment of dividends to Noteholders, short of giving up and paying the money to Bookarelli, we have no choice but to continue fighting the proceedings.

In this respect, we note that it would be a breach of the Liquidator’s duties and obligations to simply concede to Bookarelli in any event. Courts have found that the previous shareholders funded by Bookarelli do not have claims against the Company, and are therefore not creditors of the Company. Given the applicants in the Pain proceedings are running virtually the same arguments as the applicants in the previously defeated proceedings, in the circumstances, we cannot arbitrarily admit claims as provable debts of the Company, to the detriment of the true creditors of the Company (including the Noteholders) simply because it might be convenient to do so.

Tax declaration to noteholders

Any future return to noteholders is contingent upon the outcome of the legal proceedings. Therefore, the Liquidator is unable to issue a notice declaring that BBL subordinated notes have no value. It is recommended that noteholders obtain their own professional tax advice in respect to their BBL note holdings.

Annual Administration Return

Separately, pursuant to section 70-5(6)(b) of the Insolvency Practice Schedule (Corporations) 2016, we provide notice that we have lodged our Annual Administration Return (Form 5602) with the Australian Securities & Investments Commission for the period ended 23 August 2023.