Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd

BETWEEN: ALTINOVA NOMINEES PTY LTD (ACN 076 704 624)

Introduction 1 This is one of many cases arising out of the "equity finance transactions" entered into between members of the Opes Prime "Group" of companies and their clients. 2 The first respondent to the proceedings, Leveraged Capital Pty Ltd ("Leveraged") and the proposed fourth respondent, Opes Prime Stockbroking Ltd ("OPSL") are members of what I will call the Opes Prime Group. Administrators were appointed to Leveraged and OPSL on 27 March 2008. On the same day, ANZ Banking Group Limited ("ANZ") appointed Receivers and Managers to Leveraged, OPSL and other members of the Opes Prime Group pursuant to fixed and floating charges held by ANZ. 3 On 2 May 2008 in the case of Leveraged and 16 October 2008 in the case of OPSL, the creditors of those companies resolved that they be wound up and the Administrators became the Liquidators of each of the companies. 4 These proceedings were commenced on 9 May 2008 when the applicant, Altinova Nominees Pty Ltd ("Altinova"), obtained ex parte interlocutory injunctive relief against Leveraged, the second respondent Mr Emeni, and the third respondent, Green Frog Nominees Pty Limited ("Green Frog"). 5 The substance of Altinova's claim against Leveraged, Mr Emeni and Green Frog is set out at [23] of the reasons for judgment of Lindgren J in Altinova Nominees Pty Limited v Leveraged Capital Pty Limited (2008) 66 ACSR 293. It is that the true arrangement between Altinova's principal, Mr Seckold, and Mr Emeni was a margin loan under which Altinova retained beneficial ownership in the shares deposited initially with OPSL and then Leveraged. 6 Altinova has previously obtained leave to proceed against Leveraged when it was in voluntary administration. However, Altinova now seeks leave to proceed against Leveraged following the passing by the creditors of that company of a resolution for it to be wound up: s 500(2) of the Corporations Act 2001 (Cth). Leave is necessary under that sub-section because the winding up of Leveraged is taken to be a creditors' voluntary winding up: s 446A of the Corporations Act. 7 In addition, Altinova seeks leave under Order 6.2 (or 6.4 or 6.8) of the Federal Court Rules to join OPSL as the fourth respondent in the proceedings. If OPSL is to be joined, Altinova requires leave under s 500(2) of the Corporations Act to proceed against it. 8 Leveraged's defence of the proceedings is being conducted on its behalf by the Receivers pursuant to their power under the Charge. The Receivers will continue to conduct the defence notwithstanding the subsequent appointment of the Liquidators. However, the Liquidator of Leveraged appeared on the motion and put submissions to me in response to Altinova's application for leave to proceed against Leveraged. No point was taken against the Liquidators that the Receivers are conducting the defence. 9 The Receivers of Leveraged neither consented nor opposed the application for leave under s 500(2). The Liquidators accepted that it was appropriate for leave to be granted to proceed against Leveraged but that leave should be limited to the "proprietary claims" against Leveraged and the question of liability for damages. But the Liquidators submitted that leave ought not be granted to proceed in relation to the question of the quantum of any damages or compensation for which Leveraged may be found to be liable. 10 The Receivers of OPSL have indicated that they do not propose to exercise their power under the Charge to defend the proceedings against OPSL if that company is joined. The Liquidators submit that leave ought not to be granted to join OPSL or to proceed against it.

The Principal Issues which arise on the applications 11 The only real issue which arises on the application for leave to proceed against Leveraged is whether the grant of leave ought to be limited so as to exclude quantification of any monetary claims in the event that Altinova succeeds on the issue of liability. 12 The issue which arises on the application to join OPSL and to proceed against it is whether this course ought to be adopted in preference to leaving Altinova to pursue the claim by lodging a proof of debt with the liquidators. 13 It is necessary to consider the claims made in the Amended Statement of Claim proposed to be filed by Altinova in order to determine the issues which arise in relation to each of the applications.

Outline of the proposed claims against Leveraged 14 The material facts upon which Altinova relies are not complex. They are sufficiently set out in Lindgren J's reasons for judgment (2008) 66 ACSR 293at [3] - [21]. Nevertheless, these facts are said to give rise to a large number of legal consequences as pleaded in the Proposed Amended Statement of Claim ("PASC"). 15 The relevant claims may be summarised as follows: · An equity of redemption based upon implied terms in the margin lending agreement with OPSL which was novated to Leveraged: see [5] - [13] PASC. · That Green Frog holds the securities under an express or resulting trust for Altinova; see [14] - [16] PASC. · That under a Master Securities Lending Agreement entered into initially with OPSL and replaced by an agreement with Leveraged, Altinova agreed to lend securities only if it elected to do so: see [17] - [23] PASC. · That securities lent by Altinova to Leveraged would only become subject to the Master Securities Lending Agreement at Altinova's election, and Altinova did not so elect. Altinova seeks a declaration that the securities were transferred to Leveraged under a Second Margin Lending Agreement and not the Second Alleged Master Securities Agreement, and therefore that Altinova's rights as equitable mortgagor and beneficiary in relation to the securities remain: see [17] - [23] PASC. · Various oral representations made by Mr Emeni to Mr Seckold that Altinova's securities would not be lent to short sellers. Similar representations are said to have been made on the Opes Prime Group website. The representations are said to give rise to relief under s 87 of the Trade Practices Act 1974 (Cth) (and corresponding State Fair Trading laws) and to proprietary claims: see [24] - [40] PASC. · Alternatively, a breach of the implied terms as to fitness of financial services arising under the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"): see [41] - [58] PASC.] · A constructive trust arising ad hoc: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 316: see [59] - [63] PASC. · A constructive trust arising from an antecedent relationship: see [64] - [66] PASC. · Unconscionable conduct within s 12CB of the ASIC Act. This is said to give rise to a proprietary claim to the securities held by Green Frog: see [79] - [81] PASC.

Outline of proposed claims against OPSL 16 The claims made against OPSL are founded upon s 87 of the Trade Practices Act and alleged contraventions of Ch 7 of the Corporations Act by OPSL as the holder of an Australian financial services licence. The essence of the claims seems to be contained in [94] - [95] PASC in which Altinova pleads that the misleading conduct referred to above also amounted to a breach of OPSL's obligations as a financial services licensee. These claims are said to give rise to proprietary relief in respect of the securities: see generally [86] - [97] PASC.

The principles applicable to the grant of leave 17 In Vagrand Pty Limited (In Liq) v Fielding (1993) 41 FCR 550 a Full Court of this Court reviewed the relevant authorities in which the applicable principles were stated. Those authorities are the decision of McLelland CJ in Eq in Re Sydney Formworks Pty Ltd (In Liquidation) [1965] NSWR 646; the decision of Street J in Re AJ Benjamin Limited (In Liq) [1969] 2 NSWR 374 and the decision of McPherson J in Ogilvie-Grant v East (1983) 7 ACLR 669. See also the discussion of the authorities of Lehane J in Meehan v Stockmans Australian Café (Holdings) Pty Limited (1996) 22 ACSR 123 at 126-127; by Lee J in Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd & Ors [1997] FCA 1484 and by Finkelstein J in O D Transport (Australia) Pty Ltd (In Liquidation) & Ors v O D Transport Pty Ltd & Ors (1997) 80 FCR 289. 18 The authorities contain two possible explanations of the objective of the predecessor of s 500(2) of the Corporations Act. The first is that the prohibition on proceeding without the grant of leave is intended to effect the statutory policy of ensuring that the assets are distributed rateably amongst all creditors so that no creditor will obtain an advantage over another. It is important to note that in making this statement in Re Sydney Formworks at 650, McLelland CJ in Eq pointed to the objective of enabling the Court:- … effectively to supervise all claims brought against the company which is being wound up. 19 The second explanation is that without the restriction contained in the subsection, a company in liquidation would be subject to a multiplicity of actions which would be expensive, time-consuming, and in some cases unnecessary. 20 As McPherson J observed in Ogilvie-Grant at 672, the question of whether leave ought to be granted is reduced to one of choosing between two alternative forms of procedure, namely filing a proof of debt or commencement of legal proceedings. His Honour said that the effect of the subsection is that the claimant is required to lodge a proof of debt unless he or she can demonstrate that there is a good reason for departure from that procedure. 21 McPherson J also said at 672: It is quite impossible to state in an exhaustive manner all the circumstances in which leave to proceed may be appropriate but .. they … include factors such as the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed. 22 As the Full Court pointed out in Vagrand at 555-557, the effect of the authorities is that an applicant for leave is not required to demonstrate a prima facie case, in the technical sense of that term, against the company in liquidation. What is required is evidence clearly establishing the existence of a serious claim and a real dispute. 23 Another factor to which reference has been made in the authorities is whether the company was insured against the liability in respect of which the plaintiff is suing: Re Sydney Formworks at 651; Meehan at 127.

The Insurance Policy 24 Opes Prime Group Limited and a number of named subsidiaries were insured under a policy of insurance issued by QBE Insurance (Australia) Limited and which provided cover for the period from 4 August 2007 to 31 October 2008. The subsidiaries which were covered by the policy included OPSL. 25 The limit of indemnity under the policy is $10 million any one claim and $10 million in the aggregate. 26 The insuring clause in the policy provides, relevantly:- QBE agrees to indemnify the Insured against civil liability for compensation arising from any Claim first made against the Insured during the Period of Cover and notified to QBE during the Period of Cover as a result of a breach of professional duty in the conduct of the Financial Service. … QBE agrees to pay Legal Expenses incurred with the written consent of QBE in the defence or settlement of any Claim indemnified by this Policy. 27 "Claim" is defined in the policy as follows:- Claim shall mean: (a) the receipt by the Insured of any written notice of demand for compensation made by a third party against the Insured. (b) Any writ, statement of claim, summons, application or other originating legal or arbitral process, cross-claim, counter claim or third or similar party notice served upon the Insured which contains a demand for compensation made by a third party against the Insured. 28 The "Insured" is defined, relevantly, as the incorporated body stated in item 4.1 of the Schedule to the policy and any Subsidiary specified in item 4.2 of the Schedule. 29 The insured named in item 4.1 of the schedule is Opes Prime Group Limited. There is no item 4.2 in the Schedule but the certificate of currency issued by QBE lists seven subsidiaries which include OPSL. 30 The Schedule to the policy describes the period of cover as being from 4 August 2007 to 31 October 2008. 31 "Financial Service" means the services provided by the Insured as specified in item 6 of the Schedule. The services listed in the Schedule are: Practising as a stockbroker including but not limited to: 1. purchases, sales and dealings in and subscriptions to securities including government and private stocks, shares, bonds, debentures, notes, deposits, rights and units; … 4. investment of funds; 5. provisions of advice relating to securities, finance … … 8. lending money and secuties; activities ancillary or related to the business of a stockbroker. 32 There are a large number of exclusions contained in section 4 of the Policy. I do not propose to set them out in my reasons as the insurer has not pointed to any particular exclusion upon which it relies.

The Insurer's position 33 I granted leave to the parties to file further evidence after the conclusion of oral argument to provide the Court with current information as to the status of OPSL's insurance cover. 34 On 23 December, the insurer's solicitor wrote to the solicitor for the liquidators. The following paragraphs of the letter are relevant:- 7. Assuring a claim for indemnity is currently pressed, QBE reserves its rights under the Policy while it investigates OPSL's entitlement to indemnity for the Claim. These investigations will include considering whether: 7.1 the Claim falls within the facts notified by OPSL during the Policy period (enabling OPSL to rely upon section 40(3) of the Insurance Contracts Act in circumstances where the Claim has been (or will be) made outside of the Policy period); 7.2 examining the facts and circumstances giving rise to the Claim to determine whether the Policy responds (including a consideration of relevant Exclusions in Section 4 of the Policy); and 7.3 considering whether OPSL has complied with its disclosure obligations (including the requirements of section 21 of the Insurance Contracts Act) in entering into the contract of insurance with QBE. … 10. Under Section 5.1 of the Policy OPSL is obliged to frankly and honestly disclose to QBE all relevant information and provide all assistance as QBE shall require to investigate the Claim and to enable QBE to determine its liability under the Policy. 11. While its investigations are ongoing QBE does not intend to exercise its right under Section 5.2 of the Policy to assume conduct of the Claim.

Other proceedings against OPSL 35 There are a large number of other proceedings on foot against OPSL. All of the proceedings appear to have been brought by former clients of OPSL. The proceedings have been instituted in the Federal Court in the Victorian Registry, and in the Supreme Courts of New South Wales, Queensland and Victoria. The proceedings are listed in [11] - [12] of the affidavit of Mr J R Ludholm and in [8] of the affidavit of Ms T C Beltrane. 36 I do not propose to list the details of those proceedings. Leave to proceed against OPSL appears to has been given in the matters of Panopus PLC v Opes Prime StockBroking Limited (Receivers and Managers appointed) (Administrators appointed) (Supreme Court of Victoria proceeding 5835 of 2008); Asia Pacific Links Limited v Opes Prime Stockbroking Limited & Ors (Federal Court of Australia proceeding NSD 878 of 2008); and Phisci Pty Ltd v Green Frog Nominees Pty Ltd (in liq) (No 3) [2009] FCA 43. There are a number of other proceedings where leave has been sought but not yet granted. The proceedings involve more than 100 claimants and include a number of class actions.

Client Creditors of OPSL 37 As at 16 October 2008 the Liquidators calculated that there were 604 creditor accounts of former OPSL clients, and 213 debtor accounts. There are 817 client accounts in total. 38 The Liquidators' preliminary calculations indicate that the close-out position of the Client Creditor accounts (after netting off) are likely to result in the client creditors being owed approximately $300 million by OPSL at the date of liquidation.

Leave to join OPSL 39 Notwithstanding the forceful submissions of Mr Strong, who appeared for the Liquidators, I have come to the view that the proper exercise of my discretion favours the grant of leave to proceed against OPSL. In coming to this view, I have taken into account the factors referred to below. 40 First, I am satisfied that there is a serious claim and a real dispute within the test stated in Vagrand. It is true, as Mr Strong submitted, that the claim against OPSL is, in a sense, "pre-emptive" because OPSL has not made a proprietary claim in respect of the securities. Nevertheless, the claims arise out of the same factual matrix as those already made against Leveraged and Mr Emini and this of itself seems to me to be a significant factor in favour of the grant of leave. 41 Although the factual matrix is not particularly complex, the claim turns in part upon the terms of conversations which may be disputed and there are questions of law which may be difficult to determine. 42 Second, although the insurer has reserved its position, it is at least arguable that the policy responds to a claim for indemnity from OPSL. In my view, that is a sufficient basis for a grant of leave but I will reserve liberty to the Liquidators to apply to revoke the grant of leave if the insurer denies indemnity. 43 It is critical to the administration of the winding up of OPSL, and to the conduct of all the existing proceedings that the insurance position be determined as soon as possible. The proceeds of the policy would be quarantined under the provisions of s 562 of the Corporations Act but the total of the available indemnity is limited to $10 million. This may have to be divided among a large number of claimants. This is a reason for the grant of leave because it will be conducive to the Court's supervision of the claims against OPSL. 44 Moreover, if Altinova were to be left to the proof of debt procedure in respect of the claim against OPSL, the insurance policy may not be engaged because a proof of debt would not fall within the definition of "claim" under the policy. 45 Third, I have taken into account the evidence which discloses that the Liquidators do not at present have funds to conduct a defence. The short answer to this is that I have proceeded on the basis that it is sufficiently arguable that the insurer is obliged to provide indemnity to OPSL. 46 Also relevant to this factor is the existence of the other proceedings that are already on foot against OPSL. 47 Fourth, there is some force in the Liquidators' submission that many of the claims made by Altinova against OPSL can sound only in damages and that Altinova seeks to improve its position by agitating the claims as proprietary in nature. Mr Strong therefore submitted that the observations about the grant of leave to pursue proprietary claims made by Finkelstein J in Phisci Pty Ltd v Green Frog Nominees Pty Ltd [2008] FCA 638 at [22] are distinguishable. 48 Nevertheless, in my view the short answers to these submissions are the existence of the insurance policy and the relationship between the claims against OPSL and those already on foot against Leveraged and Mr Emini in this action. 49 Fifth, I have taken into account the statement made to me by counsel for Mr Emini that it would be unsafe to proceed on the basis that his client will defend the proceedings. The position of Mr Emini is of course an important one because the relevant conversations are said to have taken place between Mr Seckold on behalf of Altinova and Mr Emini on behalf of Leveraged and OPSL 50 But, at this stage, there is nothing to suggest that Mr Emini will not defend, apart from the caveat expressed by his counsel. It seems to me that in those circumstances I do not have a sufficient basis for making a positive determination that Mr Emini will not participate in the proceedings. 51 Sixth, it is true that no proprietary claim has been asserted by OPSL and that the Liquidators do not presently have funds to investigate such a claim. But this issue cannot be allowed to remain open indefinitely as a possible claim to be made by OPSL. The submissions made by Mr Strong on this question are sufficiently met by reserving liberty to the Liquidators to apply to vary or revoke the grant of leave. An order in those terms was made in Asia Pacific Links Limited v Opes Prime Stockbroking Limited & Ors (Federal Court of Australia proceeding NSD 878 of 2008). 52 The grant of leave will of course be subject to the usual term that Altinova is not to enforce any judgment or order which it may obtain against OPSL without the further leave of the Court. Moreover, as in Ringfab, the terms on which leave is to be granted should release OPSL from any obligation to file proceedings, give discovery or otherwise participate in the litigation, pending further order of the Court.

Leave to proceed against Leveraged 53 There was no real issue in relation to the grant of leave to proceed against Leveraged. No doubt this was, at least in part, because the proceedings have already been commenced and have progressed to the stage that leave was granted to proceed against Leveraged when it was in voluntary administration and the proceedings are being defended by the Receivers who have filed a cross-claim against Altinova. See Ogilvie-Grant at 672. 54 Leave has already been granted by the Court to proceed against Green Frog which is in liquidation. It holds 2,180,000 shares in Coeur d'Alene Mines Corporation which are the subject of Altinova's proprietary claim. 55 It is therefore appropriate that leave be granted to proceed against Leveraged so that the totality of the claims may be pursued and so that the grant of leave to proceed against Green Frog is not rendered nugatory. 56 It is of course a significant factor in favour of the grant of leave that the Receivers of Leveraged have exercised their power under the charge to defend the proceedings. Moreover, the Receivers' cross-claim is still on foot and, if it is successful, Green Frog, as a party to the proceedings will be bound by a declaration that the securities held by Green Frog are beneficially owned by Leveraged. 57 The real issue in relation to the grant of leave against Leveraged was whether it ought to be limited so as to exclude quantification of any damages that may be awarded to Altinova. In my opinion the grant of leave should be so limited. 58 There are two reasons for this. First, s 554A of the Corporations Act provides that a liquidator must make an estimate of the value of a debt or claim or refer that question to the Court. This procedure would enable the Liquidators to value the claim and thereby avoid the necessity for the Court to assess the value separately in each of the cases that may be decided favourably to an applicant. 59 Second, excluding quantification of the claim from the grant of leave is more conducive to the Court's overall supervision of the administration because it may be that there will in due course be issues for determination that are common to these and other proceedings. 60 Third, if Altinova is not successful on the issue of liability and the issue of whether it has suffered any recoverable loss, there will be no need for the parties to incur the expense of quantifying the claim. 61 The Liquidators did not suggest that the grant of leave against OPSL be limited in the same way. However, the reasons given above would apply equally to the application to proceed against OPSL.

The Need for Rationalisation 62 It seems to me that there is a pressing need for the parties to all the existing proceedings against OPSL to try to rationalise and perhaps co-ordinate their approach to the various actions. 63 Critical to their approach must be the Liquidators' estimate of any likely dividend payable out of the winding up and the question of the availability of the insurance cover. The amount of any dividend is likely to turn upon the outcome of other litigation brought by the Liquidators against third parties, including in particular ANZ. 64 In my view, the parties to all the proceedings should try to arrange a joint mediation as soon as possible. The insurer should be involved in the mediation; so too should ANZ. Of course, my powers to order a mediation do not extend beyond this proceeding but I have no doubt that all of the relevant Courts would join in taking whatever steps are necessary to facilitate the making of all appropriate arrangements. 65 Two days ago, Finkelstein J handed down reasons for judgment in Phisci Pty Ltd v Green Frog Nominees Pty Ltd (In liq) (No 3) [2009] FCA 43. His Honour granted leave to proceed against OPSL essentially upon the ground that the claim is to recover the applicant's own property. His Honour limited the grant of leave to issues of liability only. 66 The approach which I have taken is as in accordance with that followed by his Honour.

Orders 67 I will make orders granting leave on terms which reflect my reasons. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Dated: 6 February 2009 Counsel for the Applicant: M Slattery QC with R Carruthers

Solicitor for the Applicant: Dibbs Abbott Stillman

Counsel for the First Respondent: D Gasic

Solicitor for the First Respondent: Deacons Lawyers

Solicitor for the Second Respondent: Oakley Thompson & Co

Counsel for the Liquidators of the First Respondent and OPSL: R Strong

Solicitor for the Liquidators of the First Respondent and OPSL Mallesons Stephen Jaques