Aqua Botanical Beverages (Australia) Pty Ltd v Botanical Water Technologies Pty Ltd

Consideration

1. In my opinion, it is not open to Mr Driver and Dr Kambouris to seek to amend a claim to which ABBA remains a party as a plaintiff. Nor is it possible for the DK Plaintiffs to be separately represented.
2. The general principle is that, absent exceptional circumstances, all plaintiffs must be represented by the same lawyers. It appears that the principle can be traced back to the decision of Sir John Romilly MR in Wedderburn v Wedderburn (1853) 17 Beav 158; 51 ER 993. In that case, his Lordship said: Mr. and Mrs. Hawkins may, in concurrence with the other four Co-plaintiffs, remove their solicitor, and the other four may allow him to conduct the proceedings for all. But if the Plaintiffs do not all concur, Mr. Hawkins cannot take a course of proceeding different and apart from the other Plaintiffs, for the consequence would be, that their proceedings might be [160] totally inconsistent. When persons undertake the prosecution of a suit, they must make up their minds whether they will become Co-plaintiffs; for if they do, they must act together. I cannot allow one of several Plaintiffs to act separately from and inconsistently with the others.
3. The principle has been applied in numerous cases since, including cases in Australia: for discussion see MDA National Ltd v Medical Defence Australia Ltd [2014] FCA 954 at [55]ff per Yates J. Courts have, on occasions, made exceptions, most often where separate proceedings (often representative proceedings) have been consolidated. But even then, the exception is normally limited to separate representation by solicitors, not separate representation by counsel and some protocol has been put in place to deal with the separate representation: see, for example, Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56; (1999) ATPR 41-679; Parbery v QNI Metals Pty Ltd [2018] QSC 83.
4. One concern with separate representation is that the defendant should not be vexed by having more than one person in the same interest advance the same arguments. As Bond J explained in Cart Provider Pty Ltd v Park [2016] QSC 277 at [22]-[23] by reference to the decision of Russell LJ in Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601: [Russell LJ's proposition was] if a number of people get together and have sufficient commonality of interest to advance the same claims for relief based on the same contentions, without something more they should not be allowed to have more than one person advancing that argument. Unfairness to their opponent would result if the opponent had to meet more than one representative advancing the same case. It seems to me that the approach to the question of separate representation by co-applicants advancing the same case which is articulated by Russell LJ is the correct one.
5. However, in the present case, the problems are more acute that that, since it remains unclear what position the liquidators of ABBA wish to take. How, in practice, then are the proceedings to progress? Will ABBA be bound by the directions given by the Court requiring the plaintiffs to take certain steps to prepare the case for hearing? If not, what is to happen at the hearing? Is it intended that ABBA will be bound by the findings of the Court even though it has not participated in the hearing? If the liquidators choose to advance the claim on behalf of ABBA, but on a different basis to the one advanced by the DK Plaintiffs, how is that to be managed? What case would the defendants then be required to meet? Far from justifying an exception, these difficulties illustrate why the principle is necessary and why it should be applied in this case. But if the plaintiffs cannot be separately represented, it is not open to Mr Driver and Dr Kambouris to make the application they do without the consent of the liquidators.
6. For that reason alone, as things stand, it seems to me that the notice of motion must be dismissed.
7. The difficulties to which I have referred could be overcome if ABBA were removed as a plaintiff in the proceedings. However, before that could be done it would be necessary for the liquidators to be given notice of such an application and an opportunity to appear and to make submissions. That has not occurred.
8. It would be open to Mr Driver and Dr Kambouris to seek to be removed from the existing proceedings and for them together with KSP and DJD to commence new proceedings. Some thought would need to be given to the precise form of the commercial list statement in those proceedings. Perhaps understandably, the amendments sought to be made to the existing claim seek to preserve as much of the original CLS as possible and to graft onto it the two oppression claims. It is apparent that that attempt has not been entirely successful. So, for example, in the CLS the plaintiffs allege that the defendants breached the terms of a number of agreements by which the defendants acquired an interest in the business established by Dr Kambouris and Mr Driver and their respective interests in that business were reorganised over time. Each of the plaintiffs is entitled to sue for the loss it claims to have suffered as a consequence of those breaches. But it is clear that some loss and damage for which the plaintiffs currently sue is loss and damage alleged to have been suffered by ABBA. For example, to take one of the simpler claims, paras 120 and 121 of the CLS (as amended by the ACLS) plead: 120. By reason of the matters referred to above at paragraphs 44(f), 45, 96 and 97 and 97B-97E, My Co breached the Heads of Agreement. 121. The breach of contract identified in paragraph 120 above has caused loss or damage to ABBA. Particulars The loss and damage suffered by ABBA is the value of payments made to BWT pursuant to invoices issued in relation to the supply of botanical water in Australia. Further particulars will be provided following discovery.
9. Paragraph 44(f) pleads that it was a term of the Heads of Agreement that "all commercial transactions involving the manufacture and sale of Australian botanical water would be conducted through ABBA …". Paragraph 45 pleads a number of implied terms to the effect that each party would do all that was necessary to be done to enable the other to have the benefit of the agreement. Paragraphs 96 and 97 plead that My Co directed payments due to ABBA to be made to BWT. Paragraphs 97B to 97E (which are sought to be added by the amendments) make further allegations of how business properly belonging to ABBA in accordance with the Heads of Agreement was diverted to BWT.
10. It is not open to the DK Plaintiffs to claim the loss and damage set out in para 121. ABBA, at present at least, does not pursue that claim.
11. Mr Driver and Dr Kambouris seek to answer this point by pointing out that they are parties to the relevant agreements and therefore are entitled to sue on them. That proposition is correct so far as it goes. It is noteworthy, however, that Mr Driver and Dr Kambouris are not pleaded to be parties to the Heads of Agreement. Moreover, the proposition rests on a confusion because a clear distinction is not drawn between losses suffered by Mr Driver and Dr Kambouris as a consequence of the breaches and losses suffered by ABBA. Mr Driver and Dr Kambouris are not entitled to sue to recover ABBA's losses. It may be arguable that they are entitled to seek an order requiring the relevant defendants to pay ABBA the damages it has suffered. But ABBA would be a necessary party to any such claim, since it is necessary that it be bound by the outcome. It cannot be the case that ABBA should be free to pursue the very claim that has been brought on its behalf, which would be the position if it were not a party to the proceedings.
12. Mr Driver and Dr Kambouris also seek to answer the point made above by saying that the pleaded facts are relevant to the oppression cases. There may be a question whether there is a connection between some of the alleged breaches and the way in which the affairs of ABBA were conducted. But even assuming that that hurdle can be overcome, the difficulty with the pleading is that it asserts that the facts are relevant both to the breach of contract case and to the oppression case. For example, without more, it is difficult to understand how a breach by My Co of the Heads of Agreement could amount to oppression. If there is oppressive conduct, it must be found in the underlying facts and not in the fact of breach of the Heads of Agreement by My Co. Consequently, para 121 appears at best to be otiose. For that reason, it would be liable to be struck out.
13. There is limited utility in seeking to address each instance in which problems of this nature arise. It is apparent that the pleading in its current form cannot stand. It is embarrassing because it asserts claims not all of which can be maintained by the DK Plaintiffs and because, as currently constituted, the same lawyers do not represent all plaintiffs. Any problems are best addressed once the final form in which the claim is advanced is known.
14. There remains a question whether the DK Plaintiffs are entitled to seek relief under s 233 of the Corporations Act. That issue was fully argued by the parties. Consequently, it is appropriate to express an opinion on it now.
15. The relief apparently sought falls into two categories. The first is relief that the Court considers appropriate. The second is an order that "Terry Paule and/or MyCo pay compensation to the plaintiffs". The first type of relief can be put to one side. It was not suggested that there was any appropriate relief that the Court should grant, other than an order for compensation. The DK Plaintiffs concede that (contrary to the relief claimed in the Amended Summons) they are not entitled to recover compensation under s 233 in respect of ABBA. The order that they now seek is that compensation be paid to ABBA.
16. In the case of ABBA, the defendants object to the relief sought on a number of grounds. First, they submit that relief under s 233 cannot be sought now that ABBA is in liquidation. Second, they submit that any order made in favour of the company must be ancillary to relief available to the DK Plaintiffs as members of ABBA. That is because the purpose of such an order is to remedy oppressive conduct, not to compensate the company for breaches of duty owed to it. Third, the defendants submit that ABBA is a necessary party to any such claim. That would require leave to proceed against ABBA under s 500(2) of the Corporations Act. That leave is opposed by the liquidators.
17. It is common ground that the question for the Court at this stage of the proceedings is whether the claim for relief under s 233 is arguable.
18. In my opinion, it is. The facts are somewhat similar to those that arose in In the matter of Imperium Projects Pty Limited [2017] NSWSC 141 (Imperium Projects). In that case, the applicant sought leave to amend his claim to seek relief under s 233 of the Corporations Act in respect of a company that had been placed into liquidation. The relief that was sought was an order requiring the defendants, who had both been directors of the company, to buy the plaintiff's shares. The plaintiff alleged that the directors had conducted the affairs of the company in an oppressive manner by stripping the company of its business, diverting business opportunities from the company to other entities controlled by the directors and causing the company to become moribund. The amendments were opposed on several grounds. One was that the relief sought was not available following the company being placed into liquidation. Another was that the company was a necessary party, but no application was made to join it as a party. Indeed, the plaintiff had successfully applied to have it removed as a defendant following the appointment of liquidators.
19. Black J rejected both arguments. In relation to the first, after referring to the High Court's decision in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 (Campbell), he said this: 29 It seems to me that the decision in Campbell v Backoffice Investments Pty Ltd above is not authority that the Court lacks the power to make such an order for a shareholder to purchase another shareholder's shares, where a company is in provisional liquidation or liquidation, where the plurality left that question open. It also seems to me that the factual position in that case is arguably distinguishable from the position in this case. In that case, the plurality observed that the alleged oppression, in the company's internal management, had ended when a liquidator was appointed. Here, it is alleged assets of the company have been diverted to other entities, and the liquidator has not yet taken steps to retrieve those assets, possibly because he lacks funds to do so. In those circumstances, any oppression arising from the diversion of those assets is arguably continuing rather than, as in Campbell v Backoffice Investments Pty Ltd above, having been brought to an end by the appointment of the liquidator. 30 It seems to me that the fact that the Company is in liquidation will be a matter which may be relevant for the trial judge, if he or she finds that oppression is established, in determining whether to grant the remedy sought by Mr Hourican. Even if that fact is a significant obstacle to the making of the orders sought, in the ultimate outcome, that is not a matter which means that leave to amend should be withheld and the Plaintiff be deprived of a hearing on the merits. 31 I should also add that, as a general matter and without expressing any view as to the factual position in this case, it would be unfortunate if, after a derivative action or oppression case were commenced, it could be defeated by the simple expedient of diverting the company's business to third parties, placing the company in voluntary administration and leaving it then to pass into voluntary liquidation, and relying on the practical likelihood that an unfunded liquidator could not bring proceedings to recover such assets. In those circumstances, it seems to me that there is potential utility in an oppression action as an alternative to a derivative action.
20. Campbell was an oppression claim in which the company, at the time of the hearing, was in provisional liquidation. The oppressive conduct was the exclusion of the plaintiff from management. By the time the case had come on for hearing the provisional liquidator had sold the whole of the undertaking of the company with the concurrence of both sides of the litigation. The trial judge had made an order for the purchase of the shares in the company held by the plaintiff. The High Court, relevantly affirming the decision of the Court of Appeal, held that the order for the purchase of the shares should not have been made because, on the appointment of the provisional liquidator, the oppressive conduct towards the shareholder had ceased. In reaching that conclusion, Gummow, Hayne, Heydon and Kiefel JJ stated (at [182]) that it was unnecessary to decide whether that conclusion followed because there was no power to make the order or because the discretion to make the order could only be exercised by refusing to do so.
21. The defendants take issue with the decision of Black J. They point out that Black J was not taken to and did not refer to the decision of the Queensland Full Court in Webb v Stanfield [1991] 1 Qd R 593, a case concerned with s 320 of the Companies Code (Qld), the predecessor to ss 232 and 233 of the Corporations Act. In that case, the applicant sought an order that the first respondent purchase his shares in the company whose affairs were said to have been conducted in an oppressive manner. The application was unsuccessful at first instance. Following the application, the company was wound up on the ground of insolvency. The applicant then appealed. In dismissing the appeal, McPherson J (with whom Demack and Williams JJ agreed) said (at 598-9): But to admit that the proceedings by the applicant under s. 320 may continue unabated is to ignore the fact that the company is presently in the process of being wound up under an order of this Court that remains unchallenged. An order for compulsory purchase of shares at once confronts the statutory prohibition in s. 368(1) against share transfers after winding up has commenced. Even if there is reason to suppose that the difficulty posed by that prohibition would in an appropriate case be overcome by an order of court made under that subsection, the problem remains for the applicant of bringing himself within the terms of s.320(1). Paragraph (a) of the subsection speaks of a member who believes (1) that 'the affairs of the company are being conducted in a manner that is oppressive to him …'. The 'affairs of the company', in so far as they exist at all in a winding up, are now being conducted by a liquidator, who is an officer of the court: see r. 73(1). It is impossible to sustain a rational belief that the liquidator now in control of the company is conducting those affairs in a manner that is in any way oppressive to the applicant in this matter. If he were found to be doing so, the appropriate remedy would be to apply to the court for directions to be given that the liquidator discontinue such conduct.
22. In my opinion, the defendants' criticism of Black J's judgment is misplaced. The decision in Webb v Stanfield concerned the provisions of s 320 of the Companies Code, and depended on the view that that section only applied for so long as the oppressive conduct continued. The same reasoning does not necessarily apply to ss 232 and 233 of the Corporations Act. As Gummow, Hayne, Heydon and Kiefel JJ said in Campbell at [182]: Because the current form of the oppression provisions in Pt 2F.1 was introduced with a view to making it clear that the Court may make orders even if the act, omission or conduct complained of has yet to occur or has ceased, it may very well be that the fact that there was no continuing oppression when this case came to trial does not entail that the Court has no power to make any of the orders for which s 233 provides. But this is a point that need not be decided. (footnote omitted)
23. As is apparent from that passage, the High Court left the issue open in Campbell, but it must follow from what the High Court said that the point is arguable.
24. It is true that the Full Court advanced the fact that the company had gone into liquidation as one reason which justified a narrow reading of s 320. As McPherson J explained (Webb v Stanfield at 599): If it is objected that this represents too narrow a reading of the provision, the fact remains that the relief sought has, with the intervention of the winding up, ceased to be such as may in this, and perhaps in any other case, be appropriately awarded. The company is insolvent and its affairs are under the control of an officer of court, who is engaged in a form of administration prescribed with some particularity by statute, in which the interests of creditors are entitled to consideration in priority to those of any member or contributory. If it be the case that Stanfield's conduct has caused loss to the company, then it is open to the liquidator by proceedings under s. 542 of the Code or by action in the name of the company in the ordinary way to recover the loss from Stanfield. … And later: It is … quite inconsistent with the statutory scheme for winding up to permit an individual shareholder to continue to vindicate corporate rights once a liquidator has been placed in charge of the company and its affairs. In particular, the power of bringing legal proceedings on behalf of the company is expressly vested in the liquidator by s. 377(2)(a) of the Code.
25. The point made by McPherson J has considerable force. But the question is whether the point has survived the re-enactment of s 320, which specifically addresses the narrow construction given to the predecessor section. That question was not addressed by the High Court in Campbell. It should not be determined on an amendment application.
26. In Campbell and in Imperium Projects, the order sought was an order that respondent buy the applicant's shares. In the present case, the order sought is an order that the defendants pay compensation to the company. There is no apparent reason why, in principle, such an order could not be made under s 233 of the Corporations Act. The power given by s 233 is expressed in broad terms (any order that the Court considers appropriate). There is nothing in the legislation, and the defendants did not point to any decided case, which limit the Court's power to order payment of compensation to the company to cases where such an order is ancillary to some other relief. The essential question must be whether the order sought provides an appropriate means to address the oppression about which the plaintiff complains. There may be discretionary reasons why such an order should not be made in this case, since it is open to the liquidator to recover any loss that the company has suffered. However, these issues are best determined at a final hearing, not on an application to amend.
27. On the other hand, I accept that ABBA is a necessary party to any such claim. The DK Plaintiffs take issue with that proposition, again relying on Black J's decision in Imperium Projects. In that case, Black J drew a distinction between the company being a necessary party and being a proper party. In his Honour's view, the company was a proper party, in the sense that it could properly be joined to the proceedings, because it is always a proper party to a claim concerning the way in which its affairs were conducted. However, it was not a necessary party because in that case no relief was sought against it and "no findings are sought which bind it in any way that affects its legal interests …": at [20].
28. In the present case, however, findings are sought concerning the amount of business that was diverted away from ABBA and the payment of compensation to ABBA for the losses said to arise from that conduct. It is difficult to see how ABBA is not a necessary party to that claim. The claim will determine whether business was diverted away from ABBA and, if it was, the amount that should be paid to ABBA to compensate it for that conduct. As a matter of discretion at least, the Court would not permit that claim to be advanced unless ABBA was bound by the outcome. Otherwise, the defendants would be placed in the invidious position of possibly facing the same claim twice - once when it is brought by the DK Plaintiffs and again if it is brought by the liquidators in the name of ABBA. It follows that any such claim that did not name ABBA as a party would be liable to be struck out.
29. The defendants raise a further objection to the oppression claim in relation to BWT. Section 234 of the Corporations Act provides: An application for an order under section 233 in relation to a company may be made by: (a) a member of the company, even if the application relates to an act or omission that is against: (i) the member in a capacity other than as a member; or (ii) another member in their capacity as a member; or (b) a person who has been removed from the register of members because of a selective reduction; or (c) a person who has ceased to be a member of the company if the application relates to the circumstances in which they ceased to be a member; or (d) a person to whom a share in the company has been transmitted by will or by operation of law; or (e) a person whom ASIC thinks appropriate having regard to investigations it is conducting or has conducted into: (i) the company's affairs; or (ii) matters connected with the company's affairs. The defendants submit that much of the oppression claim in respect of BWT does not satisfy this requirement.
30. The oppression claim in respect of BWT is pleaded in para 161B of the ACLS, which is in the following terms: By reason of the matters pleaded at [73]-[83], [93]-[97E], [98]-[103], [104]-[105], [106]-[112D], the affairs of BWT have been conducted in a manner that is contrary to the interests of the members as a whole and is oppressive to and unfairly prejudicial to Dr Kambouris and DJD within the meaning of s 232 of the Corporations Act 2001 (Cth).
31. As the defendants point out, many of the allegations made in the paragraphs referred to in para 161B concern conduct that occurred after the BK Plaintiffs transferred their shares in BWT to BWT UK (that is, after 19 February 2020). That conduct did not occur while they were members of BWT and does not appear to relate to the circumstances in which they ceased to become members. For example, the conduct includes the allotment of additional shares by BWT UK on 31 December 2020 and the removal of Mr Driver and Dr Kambouris as directors of BWT UK.
32. There may be a question whether all the paragraphs relied on relate to oppression of the relevant DK Plaintiffs as members of BWT. However, it is not necessary to explore this question in detail. It is part of the relevant DK Plaintiffs' claim that the circumstances in which they ceased to be members of BWT amounted to oppression and it appears that the subsequent events are pleaded as the consequences of that oppressive conduct. There may be a question whether the conduct is properly regarded as oppressive when their removal as members occurred as part of a voluntary restructure. There may also be a question whether subsequent events can properly be regarded as consequences of any oppressive conduct. However, those are matters for trial. It could not be said that the claim is so hopeless that leave to amend should be refused for that reason. Such a claim falls within s 234(c) of the Corporations Act. Moreover, as I have explained, unless the DK Plaintiffs can reach agreement with the liquidators on representation and on the claims that should be pursued, the current proceedings cannot continue, with the result that it will be necessary for the DK Plaintiffs to commence fresh proceedings or for ABBA to be removed from the current proceedings. Any objections are best considered once the form of the claim is finally determined.

Orders and costs

1. On the conclusions I have reached, it was not open to the DK Plaintiffs to seek to amend the CLS. Consequently, the notice of motion must be dismissed. There is no reason why Mr Driver and Dr Kambouris should not pay the defendants' costs of the motion. The matter should be stood over for a short period of time to enable the DK Plaintiffs to determine what action they wish to take in the light of this judgment.
2. Accordingly, the orders of the Court are: 1. The notice of motion filed on 9 March 2022 be dismissed; 2. The second and third plaintiffs pay the defendants' costs of the motion; 3. The matter be stood over for directions on 22 April 2022.

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: 13 April 2022