Solicitors:
Keypoint Law (Plaintiff)
PwC (Second Defendant)
File Number(s): 2019/247634
[2]
The applications and evidence
By Interlocutory Process dated 11 February 2020, the Plaintiff, Mr Joseph Sy, sought several orders in respect of the conduct of the proceedings. By a Notice of Motion filed 24 February 2020, the Second Defendant, Mr Peter Lin in turn sought an order under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings against him be dismissed. Both applications were heard together. The parties' respective applications were supported by voluminous evidence. It will not be necessary to deal with the detail of much of that evidence, still less to reach findings of fact as to contested issues, in order to determine this application. I will, however, summarise the factual background to the application, drawn from the affidavit evidence and the documents, below.
Mr Sy relies on his affidavits sworn 7 August 2019 and 25 November 2019 and on several affidavits of his solicitor, Mr Gray, dated 10 February 2020, 24 February 2020, 24 March 2020, 7 April 2020 and 10 April 2020. Mr Gray's affidavits dealt, at considerable length, with the history of the conduct of the proceedings, and both parties place some emphasis on that history in advancing their respective submissions. Mr Gray also gave evidence, on information and belief from Mr Sy, of aspects of the wider commercial transactions between Mr Sy and Mr Lin Ou Wen, which provide the wider commercial background to the proceedings. Mr Sy also read several affidavits giving evidence of service of the proceedings. Mr Lin in turn relied on the affidavit dated 6 December 2019 of his solicitor, Mr Daniel Simmons, which also addressed the history of the proceedings and Mr Simmons' further affidavits dated 24 February 2020 and 17 April 2020.
By way of background, this dispute appears to have arisen from wider transactions between Mr Sy and Mr Lin Ou Wen, a businessman in China who is not party to these proceedings. I will refer to aspects of those transactions, to which the parties drew my attention, without reaching any findings about disputed aspects of them. In January 2010 ("2010 Agreement"), Mr Sy and Mr Lin Ou Wen entered an agreement relating to their investment in Platinum Group Metals Corporation ("PGMC"), a corporation in the Philippines engaged in the mining business (Ex A2, 179ff). That agreement recorded that Mr Sy and associates had mining expertise and other related businesses in the Philippines and that Mr Lin Ou Wen and associated persons had expertise in sourcing funds or capital, and provided for arrangements by which the parties would acquire PGMC, initially on the basis that Mr Sy would have 25% of the equity and Mr Lin Ou Wen would have 75% of the equity but, if applicable laws allowed, Mr Lin Ou Wen would hold at most 40% of the shares in PGMC. That agreement also provided for the parties to enter into other agreements or arrangements consistent with the intent and terms of that agreement to clarify, expand or supplement that agreement.
By January 2012, a company registered in Hong Kong, Century Sunshine Investment Company Ltd had acquired 44% of the issued shares in a company incorporated in China, Guangdong Century Tsingshan Nickel Industry Co Ltd ("GCTN"). By a further share transfer agreement dated 30 January 2013 (Ex A2, 195ff) an agreement was reached for Century Sunshine Investment Co Ltd to transfer its shares in GCTN to the First Defendant, Century Sunshine Investment (Australia) Pty Ltd ("Company"), which was incorporated in January 2013.
A further agreement (being an amendment to the January 2010 agreement) dated 7 August 2014 between Mr Sy and Mr Lin Ou Wen recorded the parties' investment in PGMC and in the Company, and noted that the Company owned 46% of GCTN and that Mr Lin Ou Wen was entitled to 75% interest in PGMC, the Company and a particular nickel project and Mr Sy was entitled to a 25% interest in those assets, and that the parties had agreed to change their percentage of ownership in those assets to 60% to Mr Lin Ou Wen and 40% to Mr Sy on specified terms (Ex A2, 199ff). Mr Sy thereafter held 95,334 shares in the Company, amounting to a 40% interest in the Company from at least 17 October 2014 until the allotment of shares in issue in these proceedings took place in February 2019. Mr Lin Ou Wen and a company associated with him then held the balance of shares in the Company, equating to an interest of approximately 60% of the shares in the Company until that transaction. The Second Defendant, Mr Peter Lin, was the sole director and secretary of the Company and owns three shares in the Company.
On 3 September 2015, the Company entered into agreements with GHGC Holdings Ltd ("GHGC"), a company associated with Mr Sy, and Huarong Investment Holding Company Limited ("HIHC"), a company associated with Mr Lin Ou Wen which provided for the transfer of 40% of the shares in GCTN to GHGC and of 60% of the shares in GCTN to HIHC, in each case for monetary consideration. Those agreements were governed by the laws of the People's Republic of China and provided for any dispute to be resolved by the Office of the Foreign Economic and Trade Arbitration Commission of the China Council for the Promotion of International Trade in a binding arbitration. There may be an issue in the proceedings as to the purpose of those agreements, but evidence as to that matter was not in admissible form and was not admitted. Mr Sy contends that a further or side agreement was reached between the Company, HIHC and GHGC that the transfer of the GCTN shares to GHGC and HIHC were to be for no monetary consideration. It is not necessary to determine whether such an agreement existed in this application.
The issue of shares that is challenged in these proceedings took place on 14 February 2019, and 30,000 shares were purportedly issued to each of the Third to Tenth Defendants as partly paid shares at a value of $1.00 per share with 20¢ per share paid up and the balance outstanding, increasing the total number of shares on issue in the Company to 478,334 shares. It is common ground that the Third toTenth Defendants are relatives of or otherwise connected to Mr Peter Lin. Mr Sy contends that he did not receive an offer to take up any of those shares; that he was not notified of the issue of those shares; and that he first became aware that those shares had been issued after making his own enquiries in about June 2019. He contends that the issue of those shares diluted his shareholding in the Company from 40% to 19.93%. Mr Sy contends that the Company did not adopt a constitution and that the replaceable rules under the Corporations Act apply, and that they required that he be offered an opportunity to participate in the issue of shares by the Company. Mr Lin contends that the Company had adopted a constitution, the replaceable rules did not apply and the issue of shares by the Company took place in accordance with that constitution. Mr Lin also contends, in his Defence, that the shares were issued to raise funds for an arbitration to which I refer below.
On 3 April 2019, the Company commenced an arbitration in China seeking payment by GHGC for the shares in GCTN transferred to it. As noted above, there is a dispute as to whether it was agreed that transfer would take place for no consideration. It appears that the Company has taken no steps to seek a corresponding payment from HIHC, although it is also not necessary to determine that question or the reasons for it for the purposes of this application.
I now turn to the history of the proceedings. Mr Sy filed an Originating Process and Statement of Claim on 9 August 2019 and 23 August 2019 respectively and served them on Mr Lin on 1 October 2019. On 21 November 2019, Mr Lin's solicitors advised Mr Sy's solicitors that:
"We consider the declarations sought in relation to our client to be flawed. Your client lacks standing to seek these declarations (Foss v Harbottle and s 1317J of the Corporations Act) nor has your client sought leave to bring these proceedings on behalf of [the Company] under s 236 of the Corporations Act." (Simmons 6.12.19, Annexure B).
That letter correctly recognised the difficulties with the claim originally brought by Mr Sy against Mr Lin, which will only now be maintainable by reason of a very late amendment to introduce injunctive relief to which I return below. Also on 21 November 2019, the Third to Tenth Defendants made an open offer to resolve the proceedings on the basis that each of them would sell 40% of the shares issued to them in the Company at the same application price and terms which they had paid, and the basis that each party would pay their own costs, and on the basis of mutual releases and a deed of release. That offer would potentially have reversed the dilution of Mr Sy's proportionate interest in the Company, but may not have been attractive to Mr Sy where it would have left funding in place for the Company to pursue the Chinese arbitration, and would potentially require Mr Sy to pay a proportionate share of the cost of that arbitration if further calls were made on the shares.
By letter dated 27 November 2019, Mr Sy's solicitor advised Mr Lin's solicitors that Mr Sy did not press prayer 3 of the claim stated in the Originating Process in its initial form, which sought declaratory relief as to alleged breach of sections of the Corporations Act by Mr Lin and noted that that would leave "the dilution of [Mr Sy's] shares in the [Company] as the predominant claim for relief in this matter". Those solicitors also then enquired whether Mr Lin proposed to pursue a previously foreshadowed application for security for costs. Mr Lin's solicitors responded on 28 November 2019 (Simmons 6.12.19, Annexure F) proposing that Mr Sy discontinue the claims against Mr Lin, on the basis that Mr Sy would pay Mr Lin's costs of the proceedings as agreed or as assessed on the ordinary basis, and followed up that suggestion by a further letter dated 4 December 2019 (Simmons, 6.12.19, Annexure H).
That correspondence, and possibly the threat of costs, appears to have prompted a reversal of Mr Sy's position, and his solicitors advised by letter dated 4 December 2018 that they had "concluded that it would be prudent for [Mr Sy] to proceed with a derivative action", foreshadowed an amendment to the Originating Process and indicated that the claims pursued against Mr Lin would include all claims set out in the previous Originating Process (Simmons 4.12.19, Annexure I). Further correspondence followed and, on 14 February 2020, Mr Lin and other Defendants made a further open offer of settlement on the basis that the shares in the Company that were the subject of the disputed issue would be cancelled by way of a capital reduction requiring Mr Sy's approval and all application monies returned and each party would pay their own costs (Simmons 24.2.20, Annexure O).
By a further letter dated 10 April 2020, Mr Lin and other Defendants made a third open offer of settlement, again on the basis that the shares issued in the impugned transaction would be cancelled and application monies returned, again by way of a capital reduction requiring Mr Sy's approval, but this time on the basis that Mr Lin would pay Mr Sy's costs in the proceedings on the ordinary basis as agreed or as assessed and the parties would take steps to have the proceedings discontinued, would release claims against each other and would enter into a deed of release. That offer has also not been accepted by Mr Sy.
[3]
Mr Sy's application as to amendments to Originating Process and Statement of Claim
First, Mr Sy sought an order under s 64 of the Civil Procedure Act 2005 (NSW) or rule 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) that he be granted leave to file an Amended Originating Process and Amended Statement of Claim, initially in the form exhibited to his affidavit filed on 10 February 2020 in support of the Interlocutory Process. In the course of the hearing of this application, Ms Peden, Counsel who appeared for Mr Sy, indicated that that Amended Originating Process would be further amended to omit certain relief that would not be pressed, as a result of matters that arose in the course of the hearing. In particular, Mr Sy did not press paragraph 3 of the Amended Originating Process (relating to leave to conduct derivative proceedings), paragraph 6 (seeking declaratory relief in respect of the alleged breach of certain sections of the Corporations Act) and paragraph 13 (seeking compensation under s 1317H of the Corporations Act). I have marked the Amended Originating Process, omitting those matters, "MFI 1" in the application.
These matters were sensibly not pressed by Mr Sy where it was unlikely that the Court would have granted declaratory relief as to alleged breaches of the where that relief would have no other consequences; it was unlikely that Mr Sy could have established any loss suffered by the Company by reason of share issues that are challenged by Mr Sy, both because the primary relief he seeks is to set aside those share issues, and because a company ordinarily does not suffer loss by issuing its shares at fair value, even on a partly paid basis, although that may affect the relative economic interests of shareholders in the Company inter se: Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165. Because it was unlikely that the Company would succeed in obtaining the relief that it sought, then it was also unlikely that Mr Sy could have established that it was in the Company's best interests to bring the relevant proceedings so as to obtain leave to bring a derivative action to do so. Ms Peden also indicated proposed amendments to the Amended Statement of Claim in the course of the application, largely of a similar character, omitting paragraphs 3 and 4 and 7 of the relief sought and omitting paragraphs 24-38 which were duplicative. I have marked the Amended Statement of Claim, with those amendments, "MFI 2" in the application.
Mr Sy now seeks relief, although only in the Amended Originating Process, by way of an injunction under s 1323 or s 1324 of the Corporations Act, restraining Mr Lin from causing the lodgement with ASIC of notification of any change in the shareholding of the Company, unless that change has been effected in accordance with the Corporations Act. Ms Peden points to other cases where the Court has granted injunctive relief against a former director to prevent lodgement of notices of changes to company records, which are not properly authorised: Re Seabay Kitchen Pty Ltd [2019] NSWSC 790; see also, for a somewhat different order, Re McDonagh Management Pty Ltd [2019] NSWSC 1099. There is some infelicity in the form of order that Mr Sy now seeks, since this not a situation where Mr Lin has previously lodged a notice with ASIC that does not record an underlying corporate transaction, but instead a situation where the underlying corporate transaction is challenged and an order restraining further notification to ASIC would not prevent the further allotment of shares, since that takes place by a corporate act, irrespective of whether an allotment is then notified to ASIC.
Mr Peadon, who appears for Mr Peter Lin, submits that leave to amend should only be granted under s 64 of the Civil Procedure Act 2005 (NSW) in accordance with the overriding purpose and when the application is made in a timely manner and for a proper purpose, and refers to the well-known decision of the High Court of Australia in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in that regard. That case was an appeal against a decision of a trial judge to allow an amendment to pleadings at a late stage, in a case which had already suffered substantial delays. In their joint judgment, in relation to rules of court that were similar to s 56 of the Civil Procedure Act, five members of the High Court observed (at [98]) that:
"Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and costs are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs."
The joint judgment also observed (at [113]) that:
"In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings."
Similar views were expressed by the Chief Justice (at [35]) and by Heydon J (at [154]-[156]).
In UBS AG v Tyne (as trustee of the Argot Trust) [2018] HCA 45; (2018) 360 ALR 184, in dealing with a question of overlapping successive proceedings, a plurality of the High Court again referred to Aon and noted (at [38]) that its effect was that:
"The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court Act] [corresponding to s 56 of the Civil Procedure Act]. As the joint reasons in Aon explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court Act]. Integral to a "just resolution" is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate."
As Ms Peden fairly accepted, I should not grant leave for Mr Sy to file the Amended Statement of Claim in its present form, since it contains no pleading of the material facts which would support the grant of the injunctive relief now sought, although Ms Peden sought to outline those facts in the course of submissions. With a degree of hesitation, it seems to me that the Court would make an order under s 64 of the Civil Procedure Act granting leave to Mr Sy to file an Amended Originating Process and Amended Statement of Claim that pleaded the material facts supporting injunctive relief, but only on the terms to which I refer below. It may be open to the parties instead to proceed on the pleadings in the form of MFI 1 and MFI 2, by consent, rather than incurring the further delay and further costs of an amendment, and there was a suggestion in the course of submissions that the Defendants may be prepared to consent to that approach, provided that Mr Sy confirms that no further evidence in chief would be led in his case.
It seems to me that the amendments now proposed by Mr Sy involve a substantial change in his case against Mr Lin, which essentially abandons all previous relief sought against Mr Lin and pursues, for the first time, a claim for injunctive relief against Mr Lin's involvement in a further share issue of a similar character, if Mr Sy is otherwise successful in the proceedings. On that basis, it seems to me that any amendment should only be allowed on terms that Mr Sy pay Mr Lin's costs of the proceedings to date, as agreed or as assessed. That order will have the consequence that allowing or not allowing the amendment has no impact on costs since, if the amendment were not allowed, the existing proceeding would be summarily dismissed on the basis that no tenable claim is pleaded against Mr Lin. I will, however, allow the parties a short opportunity to make further submissions as to that matter, which was not fully addressed in submissions at the hearing.
[4]
Mr Sy's application that personal service be dispensed with
Mr Sy also sought an order under r 19.6 of the Uniform Civil Procedure Rules that personal service of the Amended Originating Process and the Amended Statement of Claim be dispensed with and those documents be served by way of email to specified email addresses. There may be little controversy as to that application, particularly where Mr Lin appears and a notice of appearance was filed at one point for several defendants other than Mr Lin, although they have not subsequently appeared. However, little attention was given to that matter in the course of submissions and I will allow the parties a brief opportunity to make submissions, at the same time as orders are made to give effect to this judgment.
[5]
Matters not pressed in this application
Mr Sy rightly did not press for a determination in this application of substantive orders that are sought by the Interlocutory Process, for access to the Company's share register under s 173 of the Corporations Act and for inspection of the company's books under s 247A of the Corporations Act. Those matters will be addressed at a substantive hearing.
[6]
Mr Lin's application for summary dismissal
As I noted above, by a Notice of Motion filed 24 February 2020, the Second Defendant, Mr Lin in turn sought an order under r 13.4 of the Uniform Civil Procedure Rules that the proceedings against him be dismissed. That rule provides, relevantly, that the Court may order that proceedings be dismissed generally or in relation to a claim if it appears to the court that the proceedings are frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of process of the court.
Mr Lin puts his application for summary dismissal on the basis that the claim against him is an abuse of process, frivolous or vexatious. He points to the history of the proceedings, which initially sought declarations that he had contravened ss 180-184 of the Corporations Act as a director of the Company, without Mr Sy then seeking leave under s 237 of the Act so as to maintain that allegation in the name of the Company. Mr Lin points to the fact that, as I noted above, Mr Sy then indicated that he would not pursue the claim against Mr Lin and, after the question of costs was raised, reversed his position to indicate the intent to pursue a derivative claim against Mr Lin. As I have noted above, that claim is now not pursued.
In oral submissions, Mr Peadon put Mr Lin's case for summary dismissal on the basis that that claim is an abuse of process. There is no doubt that the claim against Mr Lin has an unfortunate history and there may be reason to wonder whether Mr Sy's belated enthusiasm for injunctive relief against Mr Lin does reflect a hope (which will not be achieved, given the terms on which an amendment will be permitted) that he could avoid an order for costs for the earlier steps of the proceedings by now pursuing that relief against Mr Lin. However, I cannot reach a positive finding that the proceedings are an abuse of process for that reason, where Mr Peadon did not cross-examine Mr Sy or his solicitor and no allegation of improper purpose was put to them.
Mr Peadon points out that Mr Sy's intention to seek injunctive relief against Mr Lin, in respect of the lodgement of notifications of changes in shareholdings with ASIC, was identified very late, by an email to the Court and Mr Lin's solicitor on 30 March 2020. He points out that no injunctive relief was previously sought against Mr Lin, although relief was sought against the Company. He submits that the change in approach is not intended to advance Mr Sy's interest as a shareholder, where an injunction sought against the Company would adequately protect that position. He submits that:
"It is apparent that the real object of the proposed amendment is to stave off the application for summary dismissal of [Mr Sy's] claim against [Mr Lin]. [Mr Sy's] application for leave to amend to seek injunctive relief against [Mr Lin] is the cornerstone of [Mr Sy's] response to the summary dismissal application. The amendment is sought solely for that improper purpose. Moreover, the facts pleaded in the [Amended Statement of Claim] do not disclose a reasonable basis for granting an injunction."
Mr Peadon also relied on the offers made by Mr Lin and other Defendants, to which I have referred above. I recognise that, on one view, those offers might have been seen as commercially attractive, but it does not seem to me that Mr Sy was bound to accept them, rather than to continue the proceedings, particularly where they contemplated releases from liability and a deed of release, the scope of which might well have been controversial. The failure to accept those offers may well be relevant to the question of the basis on which costs would be awarded, if the matters goes to a final hearing, but does not seem to me to support a summary dismissal application.
Mr Peadon also submits that this is a case where Mr Lin has acted for the Company's benefit in accordance with the terms of the constitution, but that matter could only be determined by a hearing on the merits. In the course of oral submissions, Mr Peadon also offered an undertaking, on Mr Lin's behalf, that a further issue of shares would not take place without giving 14 days' notice to Mr Sy. Ms Peden responds, and I accept, that that undertaking falls short of the relief sought by Mr Sy, since it would only defer any dispute over a further allotment of shares, which may or may not comply with the Corporations Act and the Company's constitution, to a future date.
Ms Peden resists the application for summary dismissal on the basis that Mr Lin is a proper party to the proceedings, where he is alleged to have wrongfully issued the relevant shares and Mr Sy will now (by the amendment noted above) seek orders injuncting further notification of an issue of shares to ASIC other than in compliance with the Corporations Act. I accept that provides a proper basis to maintain the case against Mr Lim, although not necessarily a commercial sensible reason to do so.
In summary, I cannot reach a finding of abuse of process based on an improper purpose in the proceedings. The claims would properly be brought against Mr Peter Lin, if the amendment to pursue injunctive relief against him is made and the material facts supported it pleaded in the Amended Statement of Claim. I cannot conclude that Mr Sy's failure to accept the offers made by the Defendant gives rise to an abuse of process. For these reasons, the order for summary dismissal cannot be made.
[7]
Summary and orders
For these reasons, I would not grant leave to amend the Statement of Claim in its present form other than by consent, if the parties wish to avoid further delay and further costs in amending the Statement of Claim. If the parties do not reach agreement in that regard, I would grant leave to file an Amended Statement of Claim that pleads the material facts on which Mr Sy relies for the claim to injunctive relief, likely on terms that Mr Sy pays Mr Lin's costs of the proceedings to date, as agreed or as assessed. As I have noted above, it seems to me that those costs are thrown away by reason of the amendment, which commences, in substance, an entirely new, although limited, case against Mr Lin.
I will not order the summary dismissal of the proceedings against Mr Lin since I am unable to find that the proceedings involve an abuse of process, and an Amended Originating Process and an Amended Statement of Claim that pleads the material facts supporting a claim for injunctive relief would plead a proper claim for injunctive relief against Mr Lin.
My preliminary view is that Mr Sy must pay the costs of this application, where he could only succeed in maintaining a limited amendment on terms, and Mr Lin's summary dismissal application would have succeeded but for the changes in Mr Sy's position in the course of the application and the opportunity that he will be given to plead the material facts underling the claim for interlocutory relief.
I direct the parties to bring in agreed short minutes of order to give effect to this judgment within 7 days or, if no agreement is reached, their respective draft short minutes of order and submissions as to the differences between them, not exceeding 5 pages in length in 12 point font and 1.5 spacing. The proceedings will also be listed in the Corporations Directions List at 10am on 1 June 2020 when further directions will be made as to its conduct.
[8]
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Decision last updated: 12 May 2020