The cost of a couple football stadiums or an airport train service will be on the line in the nation's highest court this year when liquidators and bankers fight over a 22-year-old corporate carcass.
The High Court yesterday gave the go-ahead to the former bankers to Bell Group to appeal against a ruling that would force them to pay more than $2.7 billion compensation for plucking virtually all the assets out of the Alan Bond-controlled group when it collapsed in 1991. At stake is up to $2 billion arising from a WA Court of Appeal judgment last year that went heavily in favour of Bell liquidators, including upholding an allegation that the banks benefitted from a breach of duty by Bell directors when they took sweeping mortgages over group assets in early 1990.
The banks have accepted that they will have to pay back more than $280 million pulled out of Bell group after it collapsed plus simple interest. With court costs, the bill on that lower figure exceeds $700 million.
Supported by the State Government-owned Insurance Commission of WA, Bell liquidators have been trying for 18 years to force 20 former Bell banks to hand back the money. As reward for spending an estimated $200 million in this long and highly risky battle, ICWA stands to get a significant part of any payout.
The banks last year asked the High Court for special leave to appeal against a ruling they should pay compound interest based on a premium to Westpac's business lending rates. The banks also sought and gained leave to appeal on director duties breach issues.
Bell liquidators have successfully argued Bell was already broke when directors granted charges over assets in early 1990 amid financial woes within Mr Bond's empire and an economic downturn.
But the banks and directors say the impugned mortgage deals gave Bell time to realise value from the group's assets, which included WA Newspapers. The banks argue the existing judgment will likely make directors and financiers more risk averse in future.
Rather than trying to put in place rescue plans to support businesses, the banks argue directors and financiers would find it safer to move earlier to insolvency.
Bell creditors include ICWA, which held Bell junk bonds as the result of dealings that formed part of the WA Inc saga and involved the former State Government Insurance Commission.
A payout of $1 billion-plus to ICWA is not inconceivable considering litigation funding agreements, which have become part of the legal mainstream over the past two decades and take into account risk and litigation length.
The banks are understood to have parked $2 billion in a trust account pending the outcome of the High Court appeal.
Bank lawyers have estimated the court's decision to use a compound interest formula could have added as much as $1.2 billon to the judgment sum.ICWA said in a statement yesterday that it remained to be seen whether the $2 billion above the base figure of $718 million is reduced or possibly increased to reflect the "full account of any profits made by the banks over the last 20 years". "We look forward to the decision of the High Court," it said.
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