541 Kent Street Pty Ltd, HMP Finance Pty Ltd, 191 Cleveland Street Pty Ltd &... [2002] NSWSC 147 | Case summary

There are then various matters said to be confirmed and promised including that the trustee has a full right of indemnity from the trust assets in respect of the Document or Lender Agreement. The provisions of the Schedule entitled "For Corporations" provides: This part only applies to those of you who are a corporation. You confirm the following. The names of your directors and the secretary are as disclosed to the Lender in writing. The person(s) who sign(s) or witness(es) the fixing of your common seal to, a Document or a power of attorney under which the Document is executed, are two of your directors, or a director and a secretary or your sole director and secretary. 15 It is apparent from the evidence that Mr Graham Meehan is a person who has had a relationship with the Bank for some years. Indeed, when Mr Meehan provided an asset statement to the Bank in October 1999 he informed the Bank that he, jointly with his brother Keith Meehan, was the beneficiary of a group of Channel Islands based trusts settled by his father approximately 16 years prior to that date. He informed the Bank that the principal assets of the trust were property companies in the United Kingdom, a company in the United States or America known as Twin Tech Inc and certain Australian interests. 16 Under the heading "Australian Interests" the asset statement indicated a 30 per cent shareholding in Twin Tech, a 40 per cent share in a medical publishing company, an ownership of three medical centres at Edgecliff, North Sydney and St Ives, and 50% ownership of Clarence Street Properties Pty Ltd and HMP Finance. Mr Meehan also informed the Bank that the Group, as they were referred to, owned three medical service companies and a single purpose company owning some nine town houses in St Ives. Mr Meehan stated that the value of the Australian assets at cost or valuation was $11 million. 17 It is apparent that some of the facilities provided to the plaintiffs have from time to time been varied requiring documentation in respect of the variations of the terms and conditions to be executed in the period 1996 to date. 18 Mr Meehan was a director of each of the plaintiffs up until 4 November 2000. It is apparent from the evidence that in providing the facility to each of the plaintiffs the Bank was of the view that Mr Meehan's connection to, influence of and management and control of each of the plaintiffs, exercised by Mr Meehan was the "single most influential aspect" in the Banks relationship with what it called the Meehan group as a whole; (Ex 2, p 316, 317 and 256). 19 It is apparent that there is another entity, known as Woodload Investments Ltd (Woodload) in which Mr Meehan has an interest. The Bank has also made loans to Woodload. It is clear that the Woodload loan was in default in the latter part of 2001. On 19 September 2001 officers of the Bank met with Mr Meehan and discussed the default in the Woodload loan. A number of questions were asked of Mr Meehan including whether the Woodload loan funds were used for other purposes, for example, the commercial property purchases through other entities, including 541 Kent Street Pty Ltd. Mr Meehan informed the bank officer that was the case and claimed that the Bank was always aware of that fact. 20 The Bank's file note of that meeting contains reference to a Bank officer, Mr Crump, suggesting that Mr Meehan ought to be able to influence "the trustees" in this matter. It records that Mr Meehan claimed he was only one of the many beneficiaries of various trusts and at that stage Mr Crump provided Mr Meehan with a copy of the statement of assets and liabilities to which I have earlier referred. Mr Meehan then informed the Bank that the statement was out of date and was in fact out of date when the Bank made its first loan to Woodload. The bank officer informed Mr Meehan that the Bank had placed significant reliance upon his position as guarantor. After discussion about whether that reliance was misplaced Mr Meehan indicated to the bank officer that he had always honoured his commitments but on this occasion was unable to do so. 21 There was then an offer to reduce the amount owed under the loan by some $1 million and the bank indicated subsequently that was not a suitable course. The following day, 20 September 2001, the Bank faxed an offer to Mr Meehan in respect of the restructuring of the way in which the Woodload facility was to work. On 21 September Mr Meehan had a conversation with an officer of the Bank in respect of that letter. Mr Meehan became somewhat rude to the bank officer employing what was described as "foul language" and it was apparently impossible for the bank officer to obtain any information from Mr Meehan at that time. A receiver was subsequently appointed to Woodload. 22 In December 2001 the receiver and managers of Woodload served statutory demands on each of the plaintiffs in this case. The amounts claimed total some $7.975 million and are said to be intercompany loans. I have been informed that the plaintiffs have appeared on one occasion or are about to appear in respect of an application to set aside those statutory demands. 23 By letter dated 26 February 2002 the plaintiffs were notified of the basis upon which the receivers had been appointed to the respective companies. There were three stated bases. The first was a change of control. The Bank advised the plaintiffs that it had formed the opinion that there had been a substantial change in the management or control of the plaintiffs which occurred upon the resignation of Mr Meehan as a director of the plaintiffs on 4 November 2000. The second was a misrepresentation said to have been made by Mr Meehan on 8 February 2001 that he was a director of HMP Finance when in fact he had resigned on 4 November 2000. The third was that referred to as the "trustee status", in that the plaintiffs, with the exception of HMP Finance, had failed to disclose to the Bank that each was relevantly a trustee. The evidence in this interlocutory application discloses matters beyond the original claims notified by the Bank. 24 There are three instances identified in the evidence in respect of the failure to disclose the trustee status. The first is in respect of the Clarence Street Properties Pty Ltd. That company entered into a trust deed on 16 December 1998. Six months later it represented to the Bank in a document that it did not hold any asset as trustee of a trust when it was the case that it was acting solely as trustee of a trust; (Ex 2 p 239; Ex A). 25 The second instance is in relation to 541 Kent Street. It entered into a trust deed on 4 August 2000. On 29 August that same year it represented to the Bank that it did not hold any assets as trustee of a trust when it was the case that it acted solely as trustee of a trust; (Ex 2 p 21). The third instance is in relation to 191 Cleveland Street. It entered into a trust deed on 9 October 2000 and on 23 January 2001 it represented to the Bank that it did not hold any assets as trustee when it was the case that it acted solely as trustee of a trust and only held that asset as trustee of the trust; (Ex 2 p 268). 26 The next matter is that of Mr Meehan representing to the Bank that he was a director. The letter of 26 February from the Bank refers to the 8 February 2001 representation (Ex 2 p 578) in respect of HMP Finance. However it is also clear from the evidence that Mr Meehan made other representations to the Bank. He represented that he was a director of 191 Cleveland Street on 23 January 2001; (Ex 2 p 268) and he represented that he was a director of Clarence Street on 29 January 2001; (Ex 2 p 164) when he was not a director. 27 It is obvious that this case was brought on very urgently. Mr Meehan was in Sydney during the early part of this week but left for overseas, apparently to attend to a business engagement in London. In those circumstances Mr Murphy who is a director of a number of the plaintiffs swore an affidavit. He stated that at the time of swearing the affidavit he did not have available to him any corporate structure diagram which demonstrated the relationship between each of the plaintiffs and the trusts. 28 Mr Murphy was asked to deal with the proposition that he had stated in his affidavit that the plaintiffs were beneficially owned by one or more trusts established in Gibraltar or Jersey. He said he was unsure about how many trusts there were. He said he meant to convey that he believed they might be established in either Gibraltar or in Jersey, or both of them. He did not know which trusts were established in Gibraltar and he did not know which were established in Jersey. He also gave evidence that he consulted with a Mr Curtis in respect of structure and equity. The corporate and trust structure is far from clear. 29 Mr Murphy also gave evidence that Mr Meehan left Australia in February 2001, apparently to live in England. He gave detailed evidence of what Mr Meehan did in managing the plaintiffs from time to time and in paras 13.1 and 13.2 he described in general terms what he observed Mr Meehan do prior to February 2001. 30 Since February 2001 Mr Meehan has apparently returned to Australia on a number of occasions. Mr Murphy said that over the last year Mr Meehan had made about four or five trips to Australia of one or two weeks duration. He estimated that over the last twelve months Mr Meehan had probably spent two or three months in Australia. It is apparent that Mr Meehan is not due back in the country until May. However, Mr Murphy said that he communicates with Mr Meehan by telephone and believes he is presently in London. 31 Mr Meehan swore an affidavit overnight and the facsimile copy of that affidavit was provided to the Court this morning. In that affidavit Mr Meehan dealt with matters to which I have referred earlier of the misrepresentations and the inaccurate statements about the plaintiffs holding the assets as trustee of a trust. Mr Meehan stated that his general practice in relation to the signing of bank documentation was that he carefully reviewed the financial terms of the facilities and from time to time he read particular provisions in the legal documents but it was never his practice to closely and thoroughly scrutinise the "legal terminology". He said that from time to time finance documents were sent by post and on those occasions the documentation was tagged where signatures were required and it was his practice to carefully review the financial terms of the facilities but simply sign at the places specified without reading the "legal terminology". 32 Mr Meehan stated that in relation to all of the finance documents which he had signed on behalf of the plaintiffs he could not recall ever being aware of any provisions which constituted a warranty or undertaking on behalf of the plaintiff, that the plaintiff did not hold any assets as the trustee of a trust. He stated that had he been aware of any warranty or undertaking of that type he would have informed the responsible bank officer that the plaintiffs in question held its assets on trust. He claimed he would not have assumed that the Bank would have been concerned about that fact because over the last six years in his dealings with the Bank he had used trust structures in relation to a large number of finance arrangements of which the Bank had been informed and about which the Bank had expressed no concern. Mr Meehan stated he was "quite prepared" to be a director of each of the plaintiff companies if that would provide "comfort" to the Bank. 33 Mr Meehan said he could not recall ever closely reviewing cl C1 in the General Conditions or receiving an explanation or being informed by the Bank that it required formal disclosure of the fact that the borrower held assets as trustee. He stated he was not aware that it was a breach of the terms of the General Conditions not to inform Westpac that the borrower held assets as trustee. 34 It is understandable that Mr Meehan, being in another country and perhaps not having all of the documents available to him to review carefully, might have indicated that he had not read the documents closely and he had not been aware of the requirements of the Bank. However it is difficult to understand how he could have failed to see four lines above his signature in some of the acknowledgements and acceptances of the facilities that he, as a director, confirmed that the company did not hold assets as a trustee of a trust. It is also difficult to understand how knowing that he was not a director he could sign above the word "director". 35 The reasonable reader of these documents, that is the acknowledgement and acceptance of the Banks facilities and terms and conditions, would be reasonably led to believe, not only that Mr Meehan was a current director, but that he had signed the documents on behalf of the particular plaintiff and as a director had stated and confirmed that such plaintiff did not hold any assets as the trustee of a trust. 36 Mr Fagan SC indicated this morning that the plaintiffs' interlocutory application had changed in that they would seek now only to have the receiver removed for a period of 60 days to provide the opportunity to the plaintiffs to re-finance and pay out the existing loans from the Bank. No evidence has been given by Mr Murphy or by Mr Meehan in respect of that matter. 37 There has been a suggestion by the plaintiffs that the Bank knew about the existence of these trusts. One of the documents referred to by Mr Fagan is in exhibit B and it appears in tab LL. That is a letter from the senior relationship manager of the Bank to Mr Meehan in August last year and refers to another person, Mr Curtis, mentioning "the trustees" not wanting to provide a letter of credit or cross guarantee to Woodload. The content of the letter is relied upon by the plaintiffs to suggest that the Bank must have known that the plaintiffs held the assets, the commercial buildings in each case, on trust for the four trusts. That is the only evidence upon which the plaintiffs rely to suggest that such was the case and I presume also that they may also rely upon the content of the file note discussions with Mr Meehan in September 2001. 38 I now turn to the submissions put by the plaintiffs in respect of the serious issue to be tried. The first really centres upon the construction of the General Conditions to which I have referred. As I understand Mr Fagan's submissions, he no longer submits that a default event has not been identified by the Bank. Originally, prior to the evidence being served and without further particulars being provided, the plaintiffs had in fact submitted that a default event had not occurred. It is clear that not only has information been provided to the Bank which it reasonably formed an opinion was incorrect under cl 19(s) of the HMP mortgage, but it is also clear that the plaintiffs have given misleading or incorrect information to the Bank constituting a default event in para D2 of the General Conditions. 39 The plaintiffs submitted that what the Bank was entitled to do in the circumstances was to sue the plaintiffs in relation to the statements for their breach of warranties pursuant to what is said in para C1 of the General Conditions. Mr Fagan submitted that the powers, that are set out in D3 under the heading "What Happens on Default", must be read to mean that only the default events which are not also considered as warranties under para C can be the basis upon which a receiver may be appointed. If conduct amounting to a default event, for example, the provision of misleading or incorrect information, is also a warranty under para C of the General Conditions, it was submitted the General Conditions should be construed as limiting the Banks rights to bring proceedings and precluding its capacity to appoint a receiver. 40 It seems to me that such a construction is not available. The defendant relied upon the High Court's decision in Pan Foods Company Importers and Distributors Pty Ltd & Ors v Australian and New Zealand Banking group Limited & Ors (2000) 170 ALR 579. In that case the evidence had demonstrated that circumstances had arisen which, in the opinion of the Bank, had a material adverse effect on the business and assets of Pan Foods. That entitled the Bank to give notice and demand payment of all moneys owing by Pan Foods. A receiver was subsequently appointed. Gleeson CJ, McHugh and Hayne JJ said at 581: Some confusion seems to have arisen in argument because there were other provisions pursuant to which the Bank might also have been or considered itself, entitled to act. That is not unusual. Lenders may wear both belt and bracers. When the Bank appointed a receiver, it was entitled to rely on all powers which enabled it to do so. 41 In dealing with the principle to be applied in the construction of commercial documents comprising agreements for loan Kirby J said that such documents should be approached fairly and broadly, without being too astute or subtle in finding defects (at 583). His Honour also said that the General Conditions should be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction (at 584). 42 I am of the view that acceptance of the plaintiffs submissions in relation to the Bank's powers under the General Conditions would result in a construction that is artificial and commercially unrealistic. I am not satisfied that the first issue raised is a serious issue to be tried. However, minds might reasonably differ on that topic and I shall consider the balance of convenience submissions later in this judgment. 43 Mr Fagan SC submitted that the breach, that is the defaults that have been identified, are "technical breaches". He emphasised the fact that there have been no breaches or defaults by way of money not being paid pursuant to the facilities and submitted that in those circumstances I would be satisfied that such defaults were not really of concern to the Bank as their security is firm. It was submitted that the Bank's securities will take priority and the appointment of a receiver on the basis of these "technical" defaults demonstrates that the Bank has acted in bad faith or capriciously. 44 If one were to simply look at the letter of 26 February identifying the basis upon which the Bank relied to appoint the receivers without the flesh that has been placed on the bones in this case, there may have been some cause for concern. However on the evidence on this interlocutory application, I am not satisfied that there is a serious issue to be tried that the Bank acted capriciously. Mr Fagan also submitted that the Bank had appointed the receiver to obtain control of the defences that are available to the plaintiffs in respect of the statutory demands served by the Woodload receiver. It was submitted that the plaintiffs would lose their entitlements to deal with that litigation and that the Bank's ulterior purpose is demonstrable when one looks at the timing of the appointment and the service of the statutory demands. One would have to be a very suspicious judge indeed on the evidence before me to reach that conclusion. I do not. 45 Mr Meehan informed the Bank on three occasions that he was a director, when he was not. The plaintiffs have informed the Bank that they did not hold assets as trustee, when they did. In a commercial arrangement for this amount of money, notwithstanding the holding of relevant securities, there needs to be a commercial relationship of trust, which it seems to me has been compromised. The Bank formed the opinion that Mr Meehan's absence as a director was a substantial change to the control of the plaintiffs. It was also entitled to know the true nature of the entities with which it was dealing. There may be evidence at a later stage which changes the complexion of this aspect of the case, but at this stage I am not satisfied that it has been established that there is a serious issue to be tried on this second matter. 46 However, recognising that minds might reasonably differ I should consider the balance of convenience. Mr Fagan submitted that Mr Murphy's evidence demonstrates that the balance of convenience favours the plaintiffs. Mr Murphy set out a number of aspects to the conduct of the plaintiffs' business. He expressed the opinion that the mere fact of an appointment of a receiver has the potential to cause very significant prejudice. He set out a number of matters that are presently being negotiated by 541 Kent Street and 191 Cleveland Street. They were generally described as leasing new space, a former tenant making good the premises and discussions in relation to the surrender of the lease and liability under a make good provision clause of a lease. Further, he referred to negotiations presently being conducted for the sale of one of the buildings. Mr Meehan did not refer to any prejudice that would be suffered by the appointment of a receiver. 47 A further development which has occurred today is in relation to proceedings 50194/01 in the Commercial List in which Mr Meehan is a defendant and the Bank is the plaintiff. Some evidence was called from the solicitor for the Bank that those proceedings were listed as number 5 in the Commercial List this morning and were called three times outside the Court. There was no appearance by the defendant, Mr Meehan, and on the Banks application the List Judge granted leave to the Bank to proceed to sign judgment against Mr Meehan, in the amount of $9.25 million, plus interest. 48 It is apparent that this is a fairly volatile situation. Mr Fagan was not aware of the Commercial List proceedings but after having the opportunity to take instructions, apparently via his instructing solicitor telephoning Mr Meehan in England, Mr Fagan advised his instructions were that Mr Meehan was not aware that if he did not appear in the Commercial List today, he would be liable to the entry of judgment. Those proceedings relate to the Woodload loan and the Bank is pursuing Mr Meehan as a guarantor in respect of that loan. 49 It is not unusual for plaintiffs who have been subjected to the appointment of a receiver to make submissions that it is inherently prejudicial to a plaintiff that is in business. The defendants, however, make the submission that these plaintiffs are not trading companies. They do not have other substantial ongoing relationships with other parties and they each effectively collect rents and pay the bills. It is submitted they do not employ a large number of employees and in the circumstances it is submitted the balance of convenience favours the continuation of the appointment of a receiver. 50 Having regard to the evidence before me and notwithstanding the evidence of Mr Murphy I am satisfied that the balance of convenience favours the continuation of the appointed receiver. I am in any event satisfied that damages would be an appropriate remedy if at trial it is found that the receiver has been invalidly appointed or that there was any breach of any obligation by the receiver. In those circumstances I dismiss the application for interlocutory relief brought by the plaintiffs. The plaintiffs are to pay the defendants cost of the application. By consent I adjourn the matter to 11am before the Registrar on Monday 4 March 2002 for further directions. **********

541 Kent Street Pty Ltd, HMP Finance Pty Ltd, 191 Cleveland Street Pty Ltd & Clarence Street Properties Pty Ltd v Westpac Banking Corporation and John Raymond Gibbons

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Judgment (8 paragraphs)

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Cases Cited (3)

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