Aquamore Credit Equity v Von Somogy

Factual Background

1. Despite the apparently intractable nature of the dispute, there is little if any argument about the events that give the background to these proceedings. Over a short period of time and three transactions in 2018, the plaintiff loaned a total amount of $2,839,500 to a company of which the first defendant was the sole director and sole shareholder, Pamada Management Pty Ltd ("Pamada"). The guarantor with respect to the monies advanced by the plaintiff to Pamada were Mr and Mrs Sydney, and two companies of which Mr Sydney was the sole director, UHEP Pty Ltd ("UHEP") after 31 August 2018, and Pamada North Shore No 3 Pty Ltd ("Pamada No 3").
2. At the time of the first of the transactions, Mr Sydney was substantially indebted to a company known as Tianrong Investments Pty Ltd ("Tianrong"). There was court action on foot relating to the debt. Mr Sydney executed a Deed on 6 March 2018 by which he undertook, in part, to pay Tianrong the sum of $1.1 million, being $100,000 as at the date of exchange of the Deed, and $1 million on or before 15 March 2018 (Court Book 215).
3. Through one of his corporate entitles, Pamada, Mr Sydney negotiated a short term loan from the plaintiff for the purpose of allowing him to meet the terms of the Deed and pay Tianrong the agreed monies. On 26 March 2018, Mr Sydney, as sole director and secretary of Pamada (and only shareholder), signed a loan agreement for $1.1 million from Aquamore, with a little over $1 million of the monies paid immediately by Aquamore to Tianrong to discharge Mr Sydney's debt to Tianrong. The balance of the loan monies was paid to Mr Sydney.
4. The guarantors to the loan agreement of 26 March 2018 ("the first agreement") were Mr and Mrs Sydney, and two of Mr Sydney's other corporate entities, UHEP and Pamada No 3. The security for the loan was a property owned by Mrs Sydney at Mosman, another NSW property, and a property owned by Pamada No 3 in Queensland.
5. The first agreement was signed by Mr Sydney as Sole Director and Sole Company Director of the borrower Pamada; and by the guarantors, being Mr Sydney and Mrs Sydney, Mr Sydney as Sole Director and Sole Company Director of Pamada No 3, and by a Mr Rawlings as Sole Director and Sole Company Director of UHEP.
6. A "Minutes of Meeting and Resolution of Directors" is exhibited at AH-1.72. The document is a record of a meeting of Pamada at which Mr Sydney was the only attendee in which the Director, Mr Sydney, resolved to proceed with the loan from Aquamore as "in the best interest and for the benefit of" Pamada and Mr Sydney as shareholder.
7. Both Mr and Mrs Sydney had independent legal advice prior to signing the various documents required to effect the first agreement and related mortgages.
8. The terms of the first agreement gave Aquamore the right to pursue either the borrower or a guarantor for any outstanding unpaid monies. The loan monies, plus various fees and charges including interest, were repayable on or before 26 April 2018.
9. The monies were not repaid.
10. On 18 May 2018, a Deed of Variation was executed ("the variation") which varied the terms of the security documents to replace the original schedule with a "Substitute Schedule" (Ex. AH-1.126). A further loan sum was advanced by Aquamore to Pamada in an amount of $244,500, excluding various charges. The same parties were noted in the same capacities. The relevant variations were as to the total advanced, the repayment date (18 July 2018), and the securities listed on the Substitute Schedule, being the real property as previously, together with a licence granted by Middlebrook Scone Pty Ltd, in favour of UHEP, and an option from the same company also to UHEP.
11. The loan monies were paid directly by Aquamore, on Mr Sydney's behalf, to a law firm.
12. Just 11 days later, on 29 May 2018, Aquamore advanced a further amount of money to Pamada, as loan funds under a second loan agreement ("the second agreement"). The amount Pamada borrowed by this second agreement was $1.495 million, excluding fees and charges. By the "Minutes of Meeting and Resolution of Directors", in evidence at Ex. AH-1.155, Mr Sydney, the sole attendee of the meeting, resolved that the loan agreement was in the "best interests of the Debtor" [and] its shareholders", noting that the purpose of the funds was debt reduction "of the Ashfield finance facility". The borrower, guarantors, and security were the same as for the first agreement, as varied on 18 May 2018. Repayment was due by 29 July 2018.
13. Repayment was not made, in breach of the second agreement. Pamada was liable for the outstanding debt, as were the guarantors.
14. Excluding fees, interest, and other charges, the total amount borrowed by Pamada, with Mr and Mrs Sydney, UHEP and Pamada No 3 as guarantors, was $2,839,500.
15. There is no dispute that Pamada and Mr Sydney had the benefit of those loan monies, or that Pamada agreed to repay the loans according to a specified schedule.
16. A letter of demand was issued by Aquamore to Pamada on 13 September 2019, but no monies were paid against the debt.

The December 2018 Contract

1. The matter in dispute between the parties is the construction of a contract entered into in December 2018 between the plaintiff, the defendants, and the remaining guarantors, which was intended to facilitate Mr Sydney's recovery from his position of near bankruptcy, with the consequential effect that the plaintiff would be repaid what it was owed.
2. During his negotiations with Mr Hsu for the plaintiff, Mr Sydney sent Mr Hsu an email (on 3 December 2018, Ex. AH-2.15) setting out the matters discussed between them. He advised Mr Hsu that he had arranged for a bank cheque to be paid into the plaintiff's account that day, for the sum of $350,000, against the outstanding debt. This sum was later reduced, and paid in the amount of $300,000. He continued: "I confirm you and I have agreed that with this payment and the licensing of all IP to the UHEP Pty Ltd, then you will release the caveat over Mosman. I hope you can please retire the receiver both the Brisbane project and Pamada Management (now SDA Advisors) too please as these don't hold any equitable value to you (as well remove caveat on the Brisbane property.)"
3. The email also recorded discussions concerning matters connected with a proposed windfarm Mr Sydney was, through various of his companies, trying to develop. He noted: "[…] I confirm an unfettered license is, by this email granted to UHEP Pty Ltd (the company over which you have a charge and powers pursuant to your documentation with us.) I attach company minutes (separate email) confirming same from UHEP, Pamada and Upper Hunter Energy Park. As discussed, the licence is limited to the time that Aquamore is owed funds and cancels once the funds are repaid."
4. Mr Sydney concluded his email: "I hope you see this email as a sincere desire to work with you and get the funds back asap. Clearly I have my Plan A, then Plan B etc and hope I'll have a better clearer path today and before we meet tomorrow."
5. He closed by asking for the removal of the caveat [over the Mosman property].
6. Copies of the Minutes of "meetings" of a number of Mr Sydney's corporate entities relevant to these negotiations, and in which the contents of the email to which I have just referred are specifically approved, are in evidence as annexures to Mr Hsu's affidavit of 19 October 2020.
7. Annexure A is a series of documents headed "Minute Book". Each document is described on its face as "Resolution of the Board of" one of the companies associated with Mr Sydney.
8. The first is a "Resolution of the Board of Pamada Pty Ltd". Present at the meeting was Mr Sydney (alone). The Minute Book entry noted that Pamada had been the proponent for the application to the State government for approval for an energy park, the Upper Hunter Energy Park. The entry recorded that Pamada: "has been asked to provide an unfettered license over any assets it might control, own or be perceived to own or control in relation to the project to UHEP Pty Ltd A draft of an email to Allen Hsu of Aquamore, an interested party to UHEP Pty Ltd has been considered. The Director agrees it is in the best interests of the Company, for the Upper Hunter Energy Park to progress and agrees to provide the license on the basis of the draft email attached to this minute. It is further noted, that the email should be sent to Mr Hsu."
9. The resolution was signed by Mr Sydney and dated "9am 3/12/2018".
10. Documents in almost identical terms follow as Minute Book entries for Upper Hunter Energy Park Pty Ltd ("Upper Hunter"), and UHEP Pty Ltd, with respect to each of which Mr Sydney was the Director.
11. For Upper Hunter the Resolution document was in identical terms to that for Pamada, set out at [31] above.
12. For UHEP Pty Ltd there was a variation to the first of the extracted paragraphs at [31] above, as follows: "the Company has been asked to accept an unfettered license over intellectual assets of Pamada and Upper Hunter Energy Park companies with regard to the Upper Hunter Energy Park project."
13. The Resolution was otherwise in identical terms to the other Minute Book entries (apart from the time of the resolution, being 8.30am), with the Director recorded as accepting that: "it is in the best interests of the Company, for the Upper Hunter Energy Park to progress and agrees to provide the license on the basis of the draft email attached to this minute".
14. The email was sent.
15. Negotiations continued, and Ex. A is a document prepared by Mr Sydney recording the minutes of a meeting between he, as Pamada (although he is also the embodiment of the other guarantor companies, and represented Mrs Sydney) and Mr Hsu of Aquamore, that took place on 12 December 2018. The "Background" to the meeting is given by Mr Sydney in the Minutes as: "Aquamore made loans to Pamada, and the repayment of the loans is due, but not yet paid. The parties met to establish the best way to progress."
16. The agreement reached was for a number of things to occur, including that the caveats taken out on behalf of Aquamore over the Mosman property owned by Mrs Sydney would be immediately released so that the property could be sold. Mr Sydney was to make a payment to Aquamore of $300,000 against the outstanding debt.
17. In Mr Hsu's unchallenged and uncontradicted evidence (his affidavit sworn on 2 October 2020), he deposes that the December agreement, evidenced by the documents I have just set out, came about at the urgent behest of Mr Sydney, who said that he was trying to stave off bankruptcy.
18. Various emails from Mr Sydney to Mr Hsu form part of Ex. AH-2. In this correspondence Mr Sydney repeatedly assured Mr Hsu that he was refinancing his business dealings and would be in a position to repay the plaintiff. He referred to finance coming to him from "the investor IC", a financier in Hong Kong, a facility for three million dollars from "a friend", and a "back-up" lender, "Nik". On 11 September 2018, he assured Mr Hsu (Ex. AH-2.35): "I am getting there. Please help me get the funds to you."
19. On 30 October 2018, Mr Sydney contacted Mr Hsu by text message to urge him to release the caveats held over the Mosman property as the owner, Mrs Sydney, had been issued with a Notice to Complete a contract for the sale of the property. The text message, at Ex. AH-2.1, says (as written): "Hi Allen, looks like finally camneray issues resolved, just seeing my lawyers at 2 to get them to exchange, I so hope today. Only delay there is getting HK financier to ratify. Timingafter I'll know pretty much immefiately[sic]. I am worried we'll be too late for mosman settlement. Can we come t some agreement to lift caveat? Regards, mark".
20. Around 23 November 2018, the two men spoke by telephone, with Mr Sydney again urging Mr Hsu to withdraw the caveats over the Mosman property. He said: "Allen, I have a buyer for Mosman and I need you to release the caveat. If the sale doesn't go through, I will become bankrupt and you won't get repaid".
21. There were further communications about the urgency of the release of the caveats and ultimately the email of 3 December 2018 referred to above was sent by Mr Sydney to Mr Hsu, attaching the Minute Book Resolutions for Pamada, Upper Hunter, and UHEP.
22. Of the meeting on 12 December 2018, Mr Sydney's Minutes of which are referred to above, Mr Hsu deposes that the following conversation was had, where "MS" is Mr Sydney and "Me" is Mr Hsu: "MS: 'Allen, I really need the caveats removed or else I will become bankrupt, it won't do anyone any good. I will go down and you will get nothing.' Me: 'You will need to make good of the security that you offered or else I get nothing either way'. MS: 'I am very close with Cubico, they are currently running a JV with a Spanish Bank and a Canadian Pension Fund, we will contract to sell the energy to private companies for $15M over 11 years'. Me: 'Further to the option agreement over the land, I will need you to sign over all and any IP in relation to the Windfarm to give me an irrevocable licence to UHEP from Pamada and Upper Hunter Energy Park. This is so I can deal with the assets if you fail to repay.' MS: 'I can give you an irrevocable licence for as long as the debt is owing and that licence ceases upon repayment'. Me: 'Of course Mark, I have no claim on the security if there are no debts owing. I am also waiting for the deck that you promised me.' MS: 'I will prepare the deck and keep you updated.' Me: Through the recent due diligence that the lawyers have been doing there is the issue of easements over the land, who are beneficiaries of those easements over neighbouring properties? MS: The easements don't matter as Ausgrid will become the ultimate beneficiaries of those easements. Given the current progress with Cubico I am confident I can repay you in 6 months. Me: I want to help you as much as I can, if you can repay me within the 6 months I am willing to accept the discounted interest rate of 3% per month instead of the default rate, however, this is only to help you get a refin and get out of the loan. If you don't repay within the 6 months then I will not be applying the discounted rate, it will be full rates from the time of default. MS: For you to remove the caveat, I can give you $300,000, I will sign a deed, prepare deck and have EY sign off on deck readiness to market. I just think EY are a waste of money. Me: That's okay, I need EY's guidance. Also, you can't keep ignoring mine or my lawyer's emails phone calls and you need to respond in a reasonable time. MS: I will also need you to retire the receivers Me: I will retire the receivers once you have completed the above, you need to answer us when we ask for information from you."
23. Mr Hsu's notes of the meeting (Ex. AH-2.26 - 27) bear out his recollection of the discussions that became, with some documentary records, the December 2018 contract.
24. Because of that December 2018 agreement, Mr Hsu deposes that Aquamore refrained from enforcing its security against the borrower and guarantors to recover the unpaid debts.
25. Mr Sydney made the promised payment of $300,000 to the plaintiff, the caveats were withdrawn over the Mosman property, and it was sold. No further repayment of the outstanding debt to the plaintiff has ever been made.

The Present Proceedings

1. The plaintiff commenced proceedings against Mr Sydney and Mrs Sydney, in their capacity as guarantors to the loan agreements, by Statement of Claim ("SOC") filed on 25 June 2019. The SOC seeks orders against the first and second defendants for payment of the outstanding loan monies, interest, and costs on an indemnity basis.
2. In a defence filed on 3 September 2019, and evidently prepared by Mr Sydney, it was admitted that the loan monies had been advanced to Pamada as borrower pursuant to the two loan agreements, and acknowledged that no repayment, bar the sum of $300,000, had ever been paid. Mr Sydney stated, at [15]: "I admit the defendants have failed to repay the Secured Money; […] It is denied that the defendants have neglected to repay the Secured Money; as I have been assisting the Borrower to make possible the repayment as soon as possible; and It is denied that the defendants have refused to repay the Secured Money as we have not had the capacity to do so and have been assisting the Borrower to raise the funds to make the repayment."
3. This was repeated at [20] and [24] of the Defence. Generally, no issue was taken in the defence with the fact of the loan agreements, the borrower's obligation to repay the loans, and Mr Sydney's concomitant obligation as guarantor to repay the loans. The only issue taken with quantum was with respect to the correctness of the calculation of fees and charges. Issue was taken with Mrs Sydney's indebtedness, the assertion being that she was liable only to the extent of funds that might be realised by the sale of the Mosman property. (The latter issues are not relevant here as an order is sought only for the principal sum, and no order is sought against Mrs Sydney.)
4. There was no contention in the Defence as filed on 3 September 2019 that the December 2018 agreement altered Mr Sydney's liability in any way, by offset, reduction of monies owed, or anything else.
5. An Amended Defence raised claims as to the excessively high interest rates charged, the inequality of the respective bargaining power of the parties, and the obligation on Aquamore to pursue the debtor (Pamada) before the guarantors.
6. The proposed Further Amended Defence which the first and second defendants seek leave by the Motion filed on 28 August 2020 to advance, raises, for the first time in these proceedings, the following assertions: 1. The December 2018 contract discharged any liability of the defendants pursuant to the loan agreements; 2. Alternatively, the liability of the debtor was extinguished by the December 2018 agreement, and the liability of the defendants was also extinguished; and 3. Further, or alternatively, the liability of the defendants is reduced by the value of the interests obtained by the plaintiff as a consequence of the December 2018 agreement, or by any revenue obtained from the interests.
7. Although no evidence is tendered in support of those proposed defences, the defendants submit that the defences are "at least arguable" and that is all that is required to defeat the plaintiff's summary judgment application.

The Submissions of the Parties

1. In support of its Motion, the plaintiff contends that the unchallenged evidence clearly establishes Mr Sydney's liability for the principal sum advanced to him by the first loan agreement, the variation of it, and the second loan agreement, and there is no viable defence to the claim for summary judgment to recover the sum advanced, excluding any interest or other charges. The proposed Further Amended Defence contains nothing but an unsupported series of assertions which cannot be made good, and which should not be permitted to be advanced.
2. As to the transfer of proceedings to the Equity Division to join the plaintiff's second action against the defendants (and other entities), the plaintiff submits that is premature.
3. The defendants submit that all that is required for the Court to dismiss the application for summary judgment is for an arguable defence to be advanced, and the Court could not be satisfied that the proposed defence was so hopeless that it should not be allowed to be advanced. The terms of the December 2018 contract properly construed support the defence.
4. The defendants submit the transfer to the Equity Division is required to prevent the possibility of inconsistent findings or judgments being made in different Divisions of the Court, and so that all related matters can be more efficiently dealt with in joint proceedings.

Determination

1. Having read the evidence and heard submissions, it could not have been clearer that the proposed further amended defence lacked any substance at all.
2. The only evidence available to construe the December 2018 contract, which was partly oral and partly in writing, consisted of the email exchanges between Mr Sydney and Mr Hsu, the relevant company minutes prepared by Mr Sydney for his corporate entities, and the unchallenged evidence of Mr Hsu. Mr Sydney had prepared an affidavit relevant to the proceedings, but his affidavit was not read in the proceedings before me. There was thus no evidence at all to contradict the evidence of Mr Hsu, and nor was Mr Hsu required for cross-examination.
3. On the whole of that evidence, taken together, it is clear that the December 2018 agreement was all about staving off bankruptcy for Mr Sydney and his various entitles; it was not about entering a fresh agreement by which his liability would be discharged or offset.
4. The email messages from Mr Sydney all bear an urgent, pleading character. He was plainly intent upon persuading Aquamore to forbear on pursuing him immediately for the unpaid loan monies, and thus bankrupting him and his companies, in exchange for a greater pot of security, and the prospect of having the debt repaid without recourse to litigation.
5. On the basis that Upper Hunter and Pamada would grant a licence to UHEP of all of the intellectual property owned or controlled by Upper Hunter in respect of a windfarm project, Mr Sydney's plea to Aquamore was that it would not commence action against him, but would instead withdraw the caveat from the Mosman property, permitting Mr Sydney, through Mrs Sydney's ownership of that property, to sell it and gain much needed cash with which he could attempt to keep himself and his businesses financially afloat. The licences were granted to UHEP only for as long as Aquamore was owed funds under the various loan agreements.
6. As Mr Sydney said on more than one occasion to Mr Hsu, only through this arrangement was there any hope of him avoiding bankruptcy, and paying off the debts to Aquamore.
7. The facts established by the evidence are that Mr Sydney, through Pamada, borrowed large sums of money from Aquamore, guaranteed by him and Mrs Sydney and other of Mr Sydney's corporate entities. Mr Sydney and his corporate entities had the benefit of the funds advanced but, with the exception of $300,000, failed to repay any of the outstanding monies due under the two loan agreements. By the discussions leading up to the December 2018 agreement, and the agreement itself, Mr Sydney provided further security to Aquamore by the licences granted to UHEP, in exchange for further time to pay the debts owed (until mid-2019), and the release of the Mosman property, by which Mr Sydney hoped to generate sufficient cash to rescue himself and his companies, and ultimately to pay the debt to Aquamore.
8. Nowhere in any of the emails or other documents, was there any suggestion that the grant of the licences for the period during which the loan monies remained outstanding was to discharge the liability of the borrower and the guarantors, or offset or reduce that liability.
9. To suggest otherwise has the flavour of a creative attempt to reinterpret what actually occurred, and, in effect, invent a defence.
10. Had Mr Sydney intended to use the licenses granted to UHEP to discharge liability for the outstanding debts, or to offset or reduce that liability, he would have said so in one of the emails in which he confirmed his 2018 discussions with Mr Hsu, or in a company Minute or Resolution. It is inconceivable that a contract entered by him, or his entities, on that basis would not have been recorded in writing by Mr Sydney, or supported by evidence from him to that effect.
11. It is also inconceivable that his defence as originally filed would have failed to mention that feature of the December 2018 agreement if it had any substance, or that the defence would have acknowledged liability for the principal sum advanced, and the attempts made by Mr Sydney to assist the borrower to repay it, if his liability was discharged or offset by the December 2018 agreement.
12. I am unable to accept that the construction of the December 2018 agreement that Mr Sydney now advances has any factual basis at all. To permit a defence to be advanced which is entirely unsupported by evidence, and which is disproved by unchallenged evidence, would do no more than waste valuable court time and other resources.
13. It is well established that the power to enter summary judgment should be exercised with great care. An order under rule 13.1, as sought by the plaintiff here, should only be made where it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 at 99. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, at 91, Dixon J said: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury".
14. Here, it is clear that there are no facts in issue, and that it there is no defence or real issue to be tried (except as to the amount of damages).
15. It is not open to argue, as Mr Sydney does, in reliance on Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15, that there was a variation of the loan agreements of which he and Mrs Sydney were guarantors by which the guarantors were relieved of their liability. There can be no suggestion that Mr Sydney was unaware of the variation; it was he who negotiated with Mr Hsu as to the terms of any variation, and he who benefited from any such variation. He was clearly fully informed of and consented to variations to the loan agreement. The Ankar principle does not assist him.
16. I accept, however, that it is preferable that the proceedings brought by Aquamore against the defendants should proceed in the same Division so that they can be managed together and, should that be appropriate, proceed jointly. I do not accept that the consent of all parties is required to transfer the matter, as the plaintiff contended.
17. There are practical benefits to the matters at least being in the same Division, including avoiding duplication of work, and the avoidance of fragmentation of the proceedings. It will be a more straightforward task for the Court to determine the competing claims if the full extent of them can be understood.
18. For these reasons, the Court made the following orders on 20 October 2020:

orders

1. In relation to the Notice of Motion filed on 4 November 2019: (1) Pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment is given in favour of the plaintiff against the first defendant, in the sum of $2,539,500.00; (1A) Order 1 is stayed pending publication of the Court's reasons; (2) Costs in favour of the plaintiff against the first defendant.
2. In relation to the Notice of Motion filed on 28 August 2020: 1. Refuse leave to the first and second defendants to file and serve the proposed further amended defences; 2. Transfer proceedings 2019/00196611 from the Common Law Division of the Court to the Equity Division, to be joined to proceedings 2020/00123088; 3. List proceedings in 2019/00196611 at 9:30am on 2 November 2020 before the Registrar of Equity and Corporations for directions; 4. Costs of motion to be costs of the cause.

Amendments 08 December 2020 - Typographical errors corrected. 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: 08 December 2020