ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation

Principles of contractual construction

1. This application raises the question of the proper construction of cl 21 of the Contract as applied in the relevant circumstances. I should approach those issues by reference to well-established principles of contractual construction. In Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109, Gibbs J (as his Honour then was) observed that: "It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust."
2. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40], the High Court observed (citations omitted): "It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction …"
3. That approach was confirmed in Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 306 ALR 25 at [35] where French CJ, Hayne, Crennan and Kiefel JJ observed that (citations omitted): "[T]his Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'." I have had regard to the High Court's review of the principles of construction in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 325 ALR 188 (at [46]-[52], [59]) and I proceed on the basis that construction should commence with the language used by the parties, although the Court may also have regard to objective surrounding circumstances.
4. It is plain enough that cl 21 of the Contract broadly operates to limit the position at general law that, in the absence of a clause of that kind, Caprock as trustee would be personally liable for the debts it incurred in performing the trust, and would take upon itself the risk of the adequacy of the assets of the Fund to meet its right of indemnity: Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 at 367. The right of indemnity includes both a right of reimbursement or recoupment, such that the trustee may replenish its own assets after it has discharged trust liabilities personally, and a right of exoneration such that it may apply trust assets directly to discharge trust liabilities. It is well-established that it is open to a trustee to contract on terms that limit the personal liability that would otherwise exist to the assets held on trust: Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773 at 774; Aces Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402; (2014) 89 NSWLR 209 at [18]. In Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332 at [244]; (1987) 78 ALR 193, Gummow J observed that, ordinarily, a trustee's liability to creditors is not limited or quantified by reference to the extent of trust assets, although a trustee may contract with third parties on the basis that its personal liability is limited, and that "clear words are necessary to achieve a result whereby what is prima facie the unlimited personal liability of a trustee is so qualified".

ALYK's submissions as to the point at which cl 21 of the Contract operates

1. In his opening submissions, Mr Hogan-Doran, who appears for ALYK, identified several questions which potentially arose for determination, namely what was the "liability" of Caprock to which the relevant clause applied; when was that liability incurred; whether the fact that the liability was recognised or embodied in an Award had any effect on what the liability was and the date on which it was incurred; what were the "assets" to which the clause refers and what were the assets of the Fund at the relevant dates. The fourth and fifth questions, as to the assets to which cl 21 of the Contract refers and their amount, now do not involve questions of controversy, because Caprock accepts (rightly in my view) that the clause refers to the gross assets of Caprock in its capacity as trustee of the Fund, rather than to its net assets, and the parties have reached common ground, at least for the purposes of this application, as to the level of those assets at the relevant dates. A further issue developed in the course of the submissions, whether that clause applied only at one point in time or whether it was capable of operation at several points in time, albeit possibly leading to different results at those different points in time.
2. Mr Hogan-Doran notes that the Contract does not define the concept of "liability" as used in cl 21, and helpfully refers to the definition of that concept in Jowitt's Dictionary of English Law (2nd ed, 1977), Bk 2 at 1091, cited by McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [138] as: "[T]he condition of being actually or potentially subject to an obligation, either generally, as including every kind of obligation, or, in a more special sense, to denote inchoate, future, unascertained or imperfect obligations, as opposed to debts, the essence of which is that they are ascertained and certain." Mr Hogan-Doran submits, and I do not understand there to be a contest that, the concept of "liability" in cl 21 and the operation of the limitation clause is sufficiently wide to include non-contractual liabilities, including restitutionary obligations arising after the termination of the Contract. Mr Hogan-Doran also advanced relatively detailed submissions as to how the parties put their cases before the Arbitral Tribunal and as to how that Tribunal determined the question of breach. It is not necessary to address those submissions given the view which I reach as to the operation of the clause below.
3. Mr Hogan-Doran submits that cl 21 of the Contract should be construed as applying at the date at which a liability of Caprock first arose in respect of, relevantly, the repayment of the amount of US$2 million paid to it and the costs ordered by the Arbitral Tribunal. Mr Hogan-Doran also submits that cl 21 of the Contract should not be construed, as Caprock contends, as treating the limitation to be determined at the date of an arbitral award or judgment, because that would allow Caprock, if it incurred a liability to ALYK in respect of monies paid under the Contract, to distribute monies held in the Fund to beneficiaries before an adverse judgment or award was rendered against it and have no liability to reconstitute the Fund to meet the liability to ALYK. Mr Harding, who appears for Caprock, responds that the risk that the trustee could distribute trust monies prior to judgment is not a reason to give cl 21 the construction for which ALYK contends, because it is not the Court's role to mend "bad bargains" or, perhaps more precisely, clauses which do not protect the counterparty against the risk of manipulation in particular circumstances.
4. I accept that that possibility of distributions or other transactions that would reduce the assets of the Fund, identified by Mr Hogan-Doran, is left open by a construction of that provision which allows its application at, inter alia, the date of an arbitral award or judgment against Caprock. However, it would readily be open to the contracting parties to avoid the risk of transactions that reduced the amount recoverable under an arbitral award or judgment, for example, by expressly providing that particular transactions that dissipated the assets of the Fund, such as distributions to beneficiaries, transactions with related parties or transactions not on arm's length terms, would be disregarded in applying the limitation of liability in the Contract. The parties did not do so in the present case, but that does not seem to me to be reason to strain to construe the clause to avoid a result which could have been avoided by a straightforward contractual provision. In some circumstances, a transaction that reduced the amount that may be recovered under a judgment may also be open to attack as, for example, a breach of an implied term in a contract or a breach of a duty of good faith, to the extent to which such a duty is recognised in Australian law. I accept that, as Mr Hogan-Doran points out, there may be limited scope for such duties after the Contract was terminated. In some circumstances, such a transaction may be voidable on the liquidation of a company which undertook it, and I note that ALYK has highlighted the possibility that it may ultimately seek to wind up Caprock in the course of this application.

Caprock's submissions as to the point at which cl 21 of the Contract operates

1. Mr Harding submits that a construction of the limitation of liability as at the date the Award was made, or a judgment is given in respect of the liability, would best conform to the text of cl 21 of the Contract and promote its commercial purpose, as its emerges from those terms, which he characterises as being to limit Caprock's personal liability so that it will not exceed the value of the assets of the Fund.
2. Mr Harding submits, first, that the purpose of the clause can only be achieved if the second part of cl 21, limiting Caprock's liability to the Fund's assets, is treated as the value of the assets when the liability is determined by a judgment, so that the trustee's right of indemnity against the assets of the Fund will meet the liability that is determined. Mr Harding also submits that that outcome would not be assured if the value of assets is assessed at an earlier time, since the value of the assets of the Fund would fluctuate over time. It seems to me that that submission has considerable force. Even if it were accepted, as Mr Hogan-Doran submits, that a trustee that is on notice of a liability that accrued at an earlier point in time could seek to put aside assets to satisfy that liability, pending either meeting that liability or a judgment in respect of that liability, it seems to me inevitable that it would be exposed to the risk that the value of those assets would subsequently decline. That risk is not a trivial one, as the events of the global financial crisis demonstrated, and a trustee may be exposed to that risk notwithstanding that it is acting in accordance with the ordinary standards of trustees, or prudently, in investing the assets of the trust. It seems to me that the apparent purpose of the clause, in protecting the trustee against the risk of personal liability, or winding up, where the assets of the Fund were less than a liability that it had incurred, would not be achieved if the trustee were left exposed to the risk of deterioration in the assets of the Fund between the date the liability was incurred and the date that it was crystallised by the trustee quantifying and meeting it or, if it failed to do so, by a judgment.
3. Mr Harding also submits that that approach reflects the manner in which a liability of Caprock would be enforced, since ALYK would be required to proceed against Caprock to enforce that judgment, rather than directly against trust assets, relying upon Caprock's right of indemnity against the assets of the Fund: Octavo Investments Pty Ltd v Knight above; Vacuum Oil Co Pty Ltd v Wiltshire above at 336; General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388 at 389.
4. Third, Mr Harding submits that cl 21 distinguishes between "liabilities", as to which Caprock will potentially incur many in its capacity as trustee of the Fund, and the "liability" which is the subject of the limitation. It seems to me that there is some force in Mr Harding's distinction between those two usages, which reflects a more substantive difficulty with ALYK's submission. If, as ALYK contends, the limitation of liability provision applies at the point that the liability is incurred, rather than the point at which it is to be discharged and the right of indemnity or exoneration exercised, then there is a substantial likelihood that the limitation of liability provision will not avoid the need for the trustee to have recourse to its personal assets to discharge a liability of the trust. That likelihood is well illustrated in the particular case. If, as ALYK contends, the limitation of liability provision applied once to the Award of US$2 million as at the dates on which ALYK gave notice of termination of the Contract, or demanded repayment of US$2 million and then separately to the orders for costs as at the date of the Award, then Caprock's total liability would exceed the assets of the Fund by a substantial margin, and it would in fact be exposed to the need to fund the balance from its personal assets or face the risk of winding up. That result is not an accident of the particular circumstances, but a result of the logic of ALYK's position, which has the result that the application of the limitation of liability provision to the second liability would have no regard to the fact that the assets of the Fund would already have been exhausted had the first liability been met. It seems to me that that result is inconsistent with the apparent purpose of the clause, and with its terms, and is a strong reason why ALYK's construction of the clause should not be accepted.
5. Mr Harding also submits that ALYK's approach would also require a detailed examination of the nature of the liability at the date that occurred. Mr Hogan-Doran responds that the Contract imposes relatively clear and prescriptive obligations upon Caprock and that it is likely that Caprock would generally have known whether it had complied with those obligations. It is ultimately not necessary to determine that question given the view which I have reached on other grounds, that the limitation of liability provision would apply at the point at which Caprock as trustee of the Fund was determining the amount that was due to ALYK in order to discharge such a liability, or the Court was doing so in order to determine the quantum of judgment that should be ordered against Caprock.
6. Mr Harding also points out that ALYK's construction of cl 21 would allow that clause a somewhat arbitrary operation, since, if the assets of the Fund were worth $1m at the date of an initial breach that gave rise to a liability of $10m, prior to the application of the limitation provision, Caprock would only be liable to pay that amount, even if the assets of the Fund significantly appreciated by the date on which that liability was met, or judgment was given against it. That also seems to me to be a reason not to accept ALYK's approach, and that result is avoided if, on the approach that I take, the limitation of liability provision applies at the point that Caprock either voluntarily discharges the liability, potentially exercising its right of indemnity by way of recoupment or exoneration, or there is judgment against it.

Conclusion as to the point at which cl 21 of the Contract operates

1. For the reasons I have set out in dealing with the parties' submissions above, it does not seem to me that cl 21 of the Contract has the operation for which ALYK contended in its primary position, although I also do not fully accept Caprock's primary position that the clause only operates at a fixed point in time, either the date of the Award or the judgment dated 24 July 2015. It seems to me that cl 21 of the Contract has a continuing operation, somewhat different from that for which either party initially contended, in a manner that was canvassed in oral submissions. In my view, that clause operates in parallel to the trustee's right of indemnity, exercisable by recoupment or exoneration, and should be understood to apply at any point at which that right would be exercised. It follows, in my view, that a clause in the general terms of cl 21 does not, as the parties tended to assume, have an operation only at one single fixed point of time, but applies at each point at which the liability of the trustee is to be determined, and the right of indemnity, recoupment or exoneration is to be exercised. If at any point in time Caprock sought to determine the quantum of its liability, so as to discharge that liability, cl 21 would operate at that point of time. If Caprock does not itself voluntarily determine and discharge that liability, and a court is required to determine that liability, then cl 21 will also operate at the point of judgment.
2. Neither party contended that the clause had any operation beyond the point of judgment, and it seems to me that the parties were correct in taking that view both as a matter of principle and for practical reasons. In principle, at least in the ordinary case, the parties' contractual rights would merge in a judgment, which will determine the liability as between the parties and, in practical terms, the parties could not have contemplated that the liability of Caprock would further vary, after the point at which it had been determined by judgment, and prior to any enforcement steps that may be taken in respect of that judgment, where no mechanism would be available to resolve any further dispute as to the extent of such a variation.

The assets of the Fund as at relevant dates

1. As I noted above, Caprock initially advanced a submission that the assets referred to in cl 21 were its net assets, but Mr Harding, who appears for Caprock, did not press that submission. I therefore proceed on the basis that limitation applies to the gross assets of the Fund.
2. Mr Hogan-Doran's primary submission is, as I noted above, that the date at which the liability of Caprock arose to repay the amount of US$2 million was on 26 October 2012, being the date on which ALYK sent a notice of termination of the Contract to Caprock. As at that date, the Fund held $525,239.18 in its account with Credit Suisse and Mr Satusky's evidence was that the assets of the Fund as at that date were the higher amount of $819,883.16 (Satusky 28.4.16, Annexure I). However, as I have indicated above, I do not consider that the clause operates as at the date on which that liability arose, as is contemplated by this submission, at least when Caprock did not seek to discharge that liability as at that date.
3. As at 9 November 2012, when ALYK made a demand on Caprock for repayment of the amount of US$2 million, the Fund held an amount of US$585,206.54 in its account with Credit Suisse, and ALYK alternatively relies on the total assets of the Fund as at that date as set out in Mr Satusky's affidavit of AUD819,830.81 (Satusky 28.4.16, Annexure J). I also do not consider that the clause operates as at this date at least when Caprock did not seek to discharge that liability as at that date.
4. Mr Hogan-Doran submits that the liability of Caprock to pay amounts by way of costs, being EUR500,000 and US$384,000 pursuant to the costs orders made in the Award, arose on the date of the Award, being 20 January 2015. As at 20 January 2015, when the Award was issued, it appears that the assets of the Fund were $538,261 (although I recognise that the balance sheet contained in Annexure A to Mr Satusky's affidavit dated 18 May 2016, Annexure A was as at 10 February 2015). I also do not consider that the clause operates as at this date, when Caprock did not seek to discharge that liability as at this date and the Award could not be enforced in Australia without an order being made under s 8 of the International Arbitration Act.
5. Mr Harding submits that the total amount of any declared liability could not exceed the gross assets of the Fund as at 20 January 2015 (which was, as I noted above, the date of the Award) or alternatively 24 July 2015 (the date on which the Court ordered that the Award may be enforced as a judgment of the Court) and in either case the gross assets of the Fund were $538,261. I have referred to the position as at 20 January 2015 in dealing with ALYK's submissions above. As at 24 July 2015, the assets of the Fund were also $538,261 (Satusky 28.4.16, Annexure R). On the basis of the views I have set out above, cl 21 of the Contract at least had effect to limit Caprock's liabilities to the assets of the Fund as at the date of judgment, 24 July 2015, where Caprock had not sought to discharge its liability prior to that date. I note, for completeness, that neither party contended that that provision applied again as at the date of this judgment and it is therefore not necessary to address that possibility.
6. I also note, for completeness, that ALYK had referred in its opening submissions to several payments out of an account maintained by the Fund with Credit Suisse, between July 2012 and 6 September 2012, immediately prior to Caprock's service on ALYK of a notice of termination of the contract on 9 September 2012, in an amount of approximately US$800,550, which reduced the balance of the amounts held in the Fund to US$1,199,406 approximately. Ultimately, Caprock did not press a submission, at least for the purposes of this application, that those monies should be treated as assets of the Fund after they had been paid out by it. ALYK also did not press a submission, at least for the purposes of this application, that challenged certain payments out of the Fund, apparently to related entities, made on 5 and 12 October 2012. Although Mr Yassa was also cross-examined as to several transactions involving Caprock, the Fund and its related parties, ALYK was ultimately content to proceed, at least for the purposes of this application, on the basis that the assets of the Fund were as shown by Mr Satusky's affidavits as at the relevant dates.

Form of the order against Caprock

1. There was substantial common ground between the parties as to the form of any order that should be made, which would recognise that Caprock's liability arises from the Award, albeit that that Award will be enforceable as a judgment of the Court pursuant to the orders made in my earlier judgment. However, Caprock contended that additional words should be included in the form of order sought by ALYK, such that the order would provide for the Award to be enforced against Caprock (as trustee for the Fund) rather than against Caprock.
2. In opening submissions, Mr Harding submitted that if an order against Caprock is made in an amount, regardless of the amount, the terms of the order should make clear that it may only be satisfied out of the assets of the Fund and may only be satisfied to the extent that Caprock has a right of indemnity from those assets. Mr Harding submits that Caprock is the trustee of other trusts through which it conducts business activities that are said to be unrelated to the business activities of the Fund (Yassa 28.4.16 [14]). Mr Harding submits that any order made by the Court should make clear that ALYK is not able to enforce its judgment against Caprock from assets that are not held within the Fund and, in particular, assets that are held by Caprock as trustee of other trusts. Mr Harding submits that that follows from cl 21 and as a matter of law, where Caprock does not have beneficial ownership of assets that are held by it as trustees of other trusts. Mr Harding also submits that ALYK's right to recover from the assets of the Fund depends on the existence of Caprock's right of indemnity, and rises no higher than that right. In oral submissions, Mr Harding also submitted that cl 21 had a further operation at the enforcement stage, beyond limiting the quantum of the amount recoverable by Caprock, such that enforcement should be limited to the assets of the Fund, or assets held by Caprock as trustee of the Fund, and did not permit ALYK to enforce the Award against Caprock in a personal capacity or in its capacity as trustee of other trusts (T55).
3. It seems to me that there are several difficulties with the approach for which Mr Harding contends, at least where cl 21 of the Contract takes its present and relatively simple form. First, Mr Harding's submission has implicit in it the proposition that enforcement action would be taken against Caprock in a particular "capacity", and, as I will note below, that is not ordinarily the case. Second, in oral submissions, Mr Harding had difficulty in articulating either the form of enforcement action that would be available to ALYK, if such a limitation were imposed, or the form of enforcement action that Caprock feared could improperly be taken by ALYK, if such a limitation were not imposed. Third, although I allowed Mr Harding an opportunity to identify any case in which an order had been made including the form of limitation for which he contended, he was unable to do so. It seems to me that the absence of precedent for an order in that form is significant, where a number of cases have considered the operation of limitations to a trustee's liability, and where such clauses are in common use. Fourth, the form of limitation for which Mr Harding contends has the further difficulty that it would involve a significant risk that ALYK's rights could be defeated, so far as Caprock held assets for the Fund in a form that had value but were difficult to realise, for example by reason of contractual limitations on the circumstances in which they could be realised.
4. I do not accept Mr Harding's submission that the orders made should be restricted in this way. Because a trust is not a juristic entity, the liabilities incurred by Caprock in its capacity as trustee of the Fund were incurred by it personally, subject to the limitation contained in the Contract, and must be enforced against it personally, subject to any exercise of a right of subrogation by ALYK: compare D Loxton and N D'Angelo, "Trustees Limitation of Liability: Myths, Mysteries and a Model Clause" (2013) 41 ABLR 142 at 143. In the ordinary course, enforcement takes place against a corporate entity, without regard to the particular capacity in which it was acting. For example, if ALYK seeks to issue a creditor's statutory demand in respect of the Award, as enforceable as a judgment of the Court, then that Demand would be issued to Caprock, not to Caprock in a particular capacity. It would then be a matter for Caprock, as I noted above, to exercise such rights of indemnity, recoupment or exoneration as are available in respect of the Fund, and as to how it chooses to discharge the amount due to ALYK. If there are readily realisable assets of the Fund, including cash available to meet a judgment, then it may exercise its right of exoneration to do so. If it does not, then it may borrow funds to meet that liability, and later exercise its right of recoupment. If Caprock has lost its right of indemnity against the Fund, by reason of some conduct on its part which would disentitle it to rely on that right of indemnity, then that risk rests upon it and not upon ALYK as its counterparty, given the terms of cl 21 of the Contract, although it would have been open to the parties to have contracted to different effect if they had wished to do so.
5. It also seems to me that cl 21 is, in its terms, a limitation of liability on Caprock's part rather than an attempt entirely to exclude its personal liability as trustee in a manner that was, at least at one point, controversial in the case law: Watling v Lewis [1911] 1 Ch 414; N D'Angelo, Commercial Trusts, (2014, LexisNexis Butterworths) at [4.161]ff. That clause also does not contain any express restraint on any particular form of enforcement action against Caprock, such as a winding up action, by contrast with the model clause noted in Loxton and D'Angelo, "Trustees Limitation of Liability" above. The fact that enforcement action may be taken against Caprock in respect of the Award does not seem to me to infringe the limitation in cl 21 of the Contract, that Caprock's liability is limited to the assets of the Fund, where Caprock's declared liability will not exceed the assets of the Fund.

Orders and costs

1. Accordingly, I make the following order: Insofar as the Court has given leave to the Plaintiff to enforce the award ("Award") by Prof Dr Sabastien Besson, Mr Daniel Hochstrasser and Mr David Unterhalter in Geneva, Switzerland, published on 20 January 2015 and notified to the Plaintiff and the First Defendant, in the sum of US$2 million plus costs of US$384,000 and EUR500,000, the Plaintiff may enforce the Award against the First Defendant in the sum of $538,261.
2. I will hear the parties as to costs.

Amendments 14 June 2016 - Page 1 - Decision - Amend $583,261 to $538,261. Page 16 - para 30 - line 5 - Amend $583,261 to $538,261. Page 19 - para 37 - Order - Amend $583,261 to $538,261. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2016