Set it off! The West Australian Court of Appeal breathes new life into section 553C

The Court of Appeal - Supreme Court of Western Australia has delivered a decision[1] confirming that a statutory set-off under s 553C of the Corporations Act can still be available to a creditor where a general security interest has attached to the amounts it is seeking to set-off (provided those amounts are circulating assets of the insolvent company), whilst leaving the door open for creditors to rely upon set-off rights at general law in those instances where set-off under s 553C is unavailable. A link to the full decision is here.

Key Takeaways

1. Whether debts or credits are “mutual” and can be set-off against one another under s 553C of the Act is determined at the date of commencement of the liquidation.
2. If there is mutuality and s 553C does apply, it applies to the exclusion of any other contractual or equitable set-off rights.  However if there is no mutuality and s 553C does not apply, then the creditor may still be able to rely upon other contractual, equitable or statutory rights of set-off.
3. If, under the terms of a General Security Agreement (GSA) registered under the Personal Property Securities Act 2009 (Cth) (the PPSA), the grantor of a security interest retains the right to use amounts due from a creditor for its own benefit, then to the extent the creditor has a competing claim against the grantor, it may be able to rely upon rights of set-off under s 553C in a winding up, notwithstanding the attachment of a security interest over the amounts due.

Background and Section 553C

In February 2012, Hamersley Iron Pty Ltd (Hamersley) entered into two engineering, procurement and construction contracts (Contracts) with Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (Forge). The following year Forge entered into a GSA with the ANZ, which was registered under the PPSA.

On 11 February 2014, voluntary administrators were appointed to Forge, and the following day ANZ appointed Receivers pursuant to the GSA. Ultimately, Forge was wound up in March 2014.

Hamersley and Forge both had claims against the other.  Hamersley’s claim was in breach of contract, and Forge claimed to be entitled to payments due under the Contracts.  Hamersley relied upon a right to set-off its claims against amounts due to Forge, pursuant to a contractual right of deduction, equitable set-off, and/or set-off in insolvency under s 553C of the Act. 

Section 553C allows set off of “mutual” debts and credits between an insolvent company and a creditor, such that only the balance of the account will be admissible to proof against the company.

In this instance, the Receivers argued there were no “mutual” debts or dealings for the purposes of s 553C because the equitable interest in Forge’s claims against Hamersley subsisted in ANZ, by virtue of the operation of the GSA and the provisions of the PPSA.  It argued that Hamersley was therefore obliged to pay the whole amount of Forge’s claim to the Receivers, and then prove in the liquidation for the whole of its claims, without the benefit of any set-off.

The Initial Decision

At first instance,[2] the Court found that the bank’s charge was fixed by the attachment process in s 19(2) of the PPSA, and that attachment transferred the equitable interest in the amounts due to ANZ, such that there was no longer any “mutuality of interest” as required by s 553C between Hamersley and Forge. The Court also found that Hamersley could not rely upon its other contractual or equitable rights of set-off, as they had been extinguished by s 553C, which essentially created a complete code for dealing with set-off in insolvency. 

On Appeal

On appeal, the Court of Appeal overturned the Court’s decision.  Its central findings were that:

• Mutuality should be assessed at the commencement of the winding up, which in this case was the day of the appointment of voluntary administrators;
• On the facts before the Court, and in accordance with the terms of the GSA, at the relevant date the ANZ’s security interest had attached to a ‘circulating asset’, over which it had no control.  In other words, under the GSA Forge retained the right to use the amounts due from Hamersley for its own benefit;
• The mutuality of the dealings under s 553C was therefore preserved, meaning that Hamersley’s claims could be set-off against Forge’s claims in accordance with that section;
• Because s 553C applied in this instance, Hamersley’s contractual and equitable rights of set-off were extinguished;
• However, section 553C does not operate as a complete code for set-off in insolvency, such that if the section did not apply for any reason, other contractual, equitable or statutory rights of set-off would still (depending upon the facts of the case) be open, and could be pleaded in an action for recoveries by the liquidator/receiver.  In other words, had the Court of Appeal determined that s 553C did not apply, it would not necessarily follow that ANZ took its interest free from other rights of set off under general law, or the statutory rights provided for in section 80(1) of the PPSA.
• In contrast, in cases of fixed charges (or charges over non-circulating assets), because an insolvent company would generally not retain the benefit of those assets, there would likely be an absence of mutuality for the purposes of s 553C, meaning the statutory set-off is unlikely to be available.

Conclusion

Secured creditors relying upon security rights over circulating assets should be aware that if the insolvent company has the benefit of those assets as at the date of winding up, a section 553C set off may remain available to creditors. 

As always, the decision was determined on its facts and whenever a set-off is claimed a court will examine the terms of the security instrument and the circumstances of the liquidation.  Given the significance of this decision, we will watch with interest as to whether an application is lodged for special leave to appeal to the High Court.

 

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