Meddling BDO to appeal Federal Court Mossgreen loss

Meddling BDO to appeal Federal Court Mossgreen loss
Meddling BDO to appeal Federal Court Mossgreen loss

BDO, the besieged administrators for Mossgreen, are to appeal their recent Federal Court defeat, further delaying the return of art to clients of the collapsed auction house.

The accountancy firm lost their expensive court case last week seeking to charge clients for the return of their goods.

Weekly holding costs are ticking over at $44,000.

Clients, already furious at BDO's attempts to charge a $353 per lot to have their own property returned, are in the dark as to just when they will be able to collect their unsold or purchased lots.

But BDO claims to have incurred about $1,150,000 (including GST) of costs including the stocktaking and storing of auction lots. 

BDO’s application argued a complete stocktake of vendor lots was required by the specialist firm, Tiger Asset Group.

"I am concerned about the risk the administrators will be personally liable for these costs and expenses," James advised the court in a hasty affidavit lodged after the recent court loss.

The court judgement savaged the accountancy firm when Federal Court judge Nye Perram ruled the fee-seeking administrators were "intermeddling" in other people's goods in circumstances "where they had not been invited to do so, were not performing their statuatory functions and had not been appointed receivers."

"Accordingly, they are not justified in requiring the consignors to pay a levy for the return of their goods," he ruled.

As part of the hearing, BDO Australia has asked the Federal Court to rule that all its court costs be paid out of Mossgreen's limited estate which, if agreed, will reduce the available funds for even secured creditors.

There has also been no ruling on allocating costs of the stocktaking.

BDO administrator James White had previously said the amount of the levy was "not negotiable".

"It is still a nightmare," the art collecting accountant Tom Lowenstein told Ross Greenwood's 2GB last week.

He said it was devastating for some of his art world clients yet to get their own property back.

BDO had not responded to a request for public comments, Ross Greenwood told his listeners. 

There has still not been a second creditors meeting yet held, which is another source of bewilderment by the many auction house vendors.

"There's been deafening silence as to when the second creditors meeting will be held," one aggrieved collector noted.

It has been mooted BDO could potentially face a motion to be replaced at the meeting.

Toorak businessman Jack Gringlas​ remains the biggest secured creditor, being owed $6 million. 

The administration came December 21 with the initially identified 330 creditors told no law required trust accounts for the auction proceeds.

The names of the creditors are a who's who from across Australia, ranging from passionate collectors, socialites, low key business tycoons to deceased estates.

The appointment of administrators has revealed that Mossgreen was insolvent to a significant extent.

One of its administrators, James White, gave evidence that as at March his investigations had revealed that it had $2.8 million of assets and $14.8 million of creditors including the secured creditor to the value of $6 million.

There is also the additional issue where a number of persons whose goods were successfully sold at auction by Mossgreen now claim that the money received by it from their respective purchasers is held on trust for them and is not, therefore, available for general creditors.

The three-cornered contest between the administrators, the trust-asserting consignors and the secured creditor is to be determined later this year.

Justice Perram noted if the outcome of that contest is that the secured creditor is entitled to rely upon his security, the return to general creditors will be nil.

Justice Perram noted "even if it is not, the return to them will be no more than 18.9 cents in the dollar (i.e. $2.8 million divided by $14.8 million) and even that is on the assumption that the trust claims fail.

Some of the present difficulty arises because Mossgreen did not conduct its inventory control systems competently despite the holding of other people’s goods being a central part of its business.

When the administrators were appointed there was uncertainty as to the status of some of the stock which was on hand, although Paul Sumner offered to work for free to assist the process.

The inventory system suggested that there were as many as 34,000 lots being held, but the limited staff (who were kept on for this purpose) thought there were between 8,000 and 12,000 lots.

"The Administrators have carefully considered Justice Perram’s judgment, as well as the options available to the Administrators to achieve an orderly resolution of the Company’s affairs," creditors were told today.

"The Administrators have decided to appeal Justice Perram’s decision to the Full Federal Court," White advised.

A notice of appeal was filed by the adminstrators on 12 April 2018, with accompanying submissions regarding the urgency of the appeal.

The Federal Court has confirmed that the appeal is due to be heard on an urgent basis on Tuesday, 17 April 2018 not before 12.00pm before a bench of three Judges.

The Administrators applied separately for orders preserving the status quo pending the urgent appeal.

At a case management hearing held on 13 April 2018, the Federal Court made the order that the administrators are justified in causing the company to retain possession of the consignor property until the determination of the notice of appeal.

Jonathan Chancellor

Jonathan Chancellor

Jonathan Chancellor is one of our authors. Jonathan has been writing about property since the early 1980s and is editor-at-large of Property Observer.

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