Aroo K Pty Ltd v Devils@Cradle Pty Ltd

O'CALLAGHAN J: 1 I made the orders recorded above after hearing from counsel. These are my reasons. 2 This is an application by Mr Androo Kelly (Mr Kelly) and Aroo K Pty Ltd (Aroo) for leave pursuant to s 237 of the Corporations Act 2001 (Cth) to bring a proceeding in the name of Devils@Cradle Pty Ltd (Devils@Cradle) (in addition to themselves) against Cradle View Pty Ltd (Cradle View) and Mr Wade Anthony (Mr Anthony), substantially in the form of a draft statement of claim prepared by Mr McElwaine SC, annexed to an affidavit sworn by Mr Kelly in support of the application. 3 The draft statement of claim alleges, in substance, that Mr Anthony and Cradle View owe fiduciary duties to Devils@Cradle, Mr Kelly and Aroo arising out of a joint venture between Mr Kelly, Aroo, Mr Anthony and Cradle View, entered in October 2005, by which the parties agreed to conduct a business venture through Devils@Cradle, and upon land leased at Cradle Mountain from Cradle View. 4 The draft statement of claim further alleges, in substance, that the joint venture has operated to the financial benefit of the parties between October 2005 and the present time. Recently, however, Mr Anthony (in his capacity as the director of Cradle View) told Mr Kelly (and thus Devils@Cradle) that no further lease will be granted after expiry of the current lease on 17 December 2021. Mr Kelly and Aroo allege that this is in breach of the fiduciary obligations owed by Mr Anthony and Cradle View, in that each seeks to take advantage of the position of Cradle View to gain for themselves a benefit and to cause loss to Devils@Cradle, Mr Kelly and Aroo. The applicants allege that the assertion by Mr Anthony and Cradle View that the latter will not grant a new lease to Devils@Cradle is designed to force a sale of the shares held by Aroo in Devils@Cradle to Mr Anthony at less than their true value (that is, at less than a valuation on a going concern basis). 5 It is also contended that the same conduct constitutes unconscionable conduct within the meaning of s 20 of the Australian Consumer Law. It is alleged that Mr Anthony and Cradle View acted, and are acting, unconscionably as joint venturers, in substance because they seek to obtain a significant financial advantage to the detriment of Mr Kelly and Aroo, by not exercising the power that is open to Cradle View to grant a further lease. See Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; (2021) 388 ALR 577 at [83]-[88]. 6 The draft statement of claim alleges that the conduct engaged in by Mr Anthony and Cradle View was and is unconscionable and contrary to s 20 of the Australian Consumer Law in that it: (a) amounts to a breach of the joint venture, fiduciary and directors duties and obligations pleaded; (b) "is conduct by Mr Anthony and Cradle View whereby they seek to take advantage of the position of Cradle View as the owner of the [p]remises to pressure Mr Kelly and therefore Aroo into selling its shares in [Devils@Cradle] to Mr Anthony and or to Cradle View and for a price that does not fairly represent the value of those shares"; and (c) "is … properly characterised as conduct that is predatory, exploitive, unfair, lacking in good faith and or amounts to sharp practice". 7 The proposed claim also includes a plea founded on the doctrine of conventional estoppel. As to a recent summary of the applicable principles see Rae & Partners Pty v Shaw [2020] TASFC 14 at [27]-[28], [137]-[139] and [140]-[141]. 8 The proposed conventional estoppel plea is as follows: (a) when Mr Kelly, Aroo, Mr Anthony and Cradle View entered into the joint venture each assumed that, in the event that the business was profitably conducted, it would continue to be operated for their mutual benefit and would only end with their mutual agreement (the assumption); (b) Mr Kelly and Aroo adopted the assumption and acted upon it to their detriment; (c) at the commencement of the joint venture and at all material times to May 2018, Mr Anthony and Cradle View adopted the assumption; (d) at all material times, Mr Kelly, Aroo, Mr Anthony and Cradle View conducted their relationship pursuant to the joint venture on the basis of the assumption; (e) each party to the joint venture knew or intended the other to act on the basis of the assumption; (f) Mr Anthony has departed from, or has stated his intent to depart from, the assumption in that if Cradle View does not grant a further lease of the premises to Devils@Cradle the business of the joint venture will end on 17 December 2021 with the consequence that: (i) significant financial detriment will be suffered by Devils@Cradle being the loss of its business; (ii) significant financial detriment will be suffered by Aroo in that the value of its shareholding in Devils@Cradle will be substantially and adversely impacted; and (iii) Cradle View will obtain for itself a significant financial advantage being the value of the capital improvements and development undertaken by Devils@Cradle on the premises and within the leased area; and (g) accordingly, Cradle View: (i) is estopped from unilaterally departing from the assumption; and (ii) is bound to continue to give effect to the assumption by granting to Devils@Cradle a further lease of the premises upon terms substantially the same as the second lease as affected by the Deed of Extension and Variation of Lease. 9 Section 236 of the Corporations Act provides: Bringing, or intervening in, proceedings on behalf of a company (1) A person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party for the purpose of taking responsibility on behalf of the company for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them), if: (a) the person is: (i) a member, former member, or person entitled to be registered as a member, of the company or of a related body corporate; or (ii) an officer or former officer of the company; and (b) the person is acting with leave granted under section 237. (2) Proceedings brought on behalf of a company must be brought in the company's name. 10 Section 237 provides: Applying for and granting leave (1) A person referred to in paragraph 236(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings. (2) The Court must grant the application if it is satisfied that: (a) it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and (b) the applicant is acting in good faith; and (c) it is in the best interests of the company that the applicant be granted leave; and (d) if the applicant is applying for leave to bring proceedings--there is a serious question to be tried; and (e) either: (i) at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or (ii) it is appropriate to grant leave even though subparagraph (i) is not satisfied. (3) A rebuttable presumption that granting leave is not in the best interests of the company arises if it is established that: (a) the proceedings are: (i) by the company against a third party; or (ii) by a third party against the company; and (b) the company has decided: (i) not to bring the proceedings; or (ii) not to defend the proceedings; or (iii) to discontinue, settle or compromise the proceedings; and (c) all of the directors who participated in that decision: (i) acted in good faith for a proper purpose; and (ii) did not have a material personal interest in the decision; and (iii) informed themselves about the subject matter of the decision to the extent they reasonably believed to be appropriate; and (iv) rationally believed that the decision was in the best interests of the company. The director's belief that the decision was in the best interests of the company is a rational one unless the belief is one that no reasonable person in their position would hold. (4) For the purposes of subsection (3): (a) a person is a third party if: (i) the company is a public company and the person is not a related party of the company; or (ii) the company is not a public company and the person would not be a related party of the company if the company were a public company; and (b) proceedings by or against the company include any appeal from a decision made in proceedings by or against the company. 11 The court must grant the application if it is satisfied as to each of the five factors set out in s 237. See, by way of example, Swansson v RA Pratt Properties Pty Ltd [2002] NSWSC 583; (2002) 42 ACSR 313; Goozee v Graphic World Group Holdings Pty Ltd (2002) 170 FLR 451; and Fiduciary Ltd v Morningstar Research Pty Ltd [2005] NSWSC 442; (2005) 53 ACSR 732. 12 In this case, Mr Groves, who appeared for Cradle View and Mr Anthony, accepted that all but two of the criteria were made good. 13 The first criterion requires that the court be satisfied that it is "probable" that Devils@Cradle will not itself bring the contemplated proceeding. 14 Mr Groves accepted that this criterion is met. 15 The second criterion is that an applicant must be acting in good faith. 16 Mr Groves did not contend that Mr Kelly is acting otherwise. 17 The third criterion requires the court to be satisfied that it is in the best interests of the company that the applicants be granted leave. This involves "taking into account all of the relevant circumstances", including evidence about: the size of the company, what effect the proposed litigation will have on the proper conduct of the company's business, "the substance of the redress" which the applicant seeks and the ability of the putative defendant to meet a judgment in order to be satisfied as to the practical utility of the proceeding. See eg Swansson v RA Pratt Properties Pty Ltd [2002] NSWSC 583; (2002) 42 ACSR 313 at [56]-[60]. 18 Mr Groves had contended in his written submissions, albeit faintly, that the applicants had not discharged their onus with respect to the third criterion. But at the hearing of the application, Mr McElwaine tendered without objection an unsworn affidavit of Mr Kelly, the contents of which were not disputed, and, for reasons that it is unnecessary to go into, Mr Groves agreed during the course of oral argument that the third criterion was thus satisfied. 19 The fourth criterion is that there is a serious question is to be tried. 20 Mr McElwaine contended that the draft statement of claim, the main factual allegations in which are deposed to by Mr Kelly in his affidavit in support of the application, self-evidently discloses serious questions to be tried in respect of each proposed cause of action. 21 As to the claims arising out of the alleged joint venture, it was submitted that: (a) if there was a joint venture as alleged then each of the participants owed to each other fiduciary obligations and duties, citing United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 at 10-11; (b) each of Mr Kelly, Aroo, Mr Anthony and his company Cradle View primarily owed to the other a duty to act in the joint interest of the joint venture, citing Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd (2017) 54 VR 625 at [119]-[120]; (c) all parties to the joint venture at all times were bound to exercise their powers and to do so for the mutual benefit of the joint venture and therefore for the benefit of each of the participants to the joint venture, citing Management Service Australia Pty Ltd v PM Works Pty Ltd [2017] NSWSC 1743 at [188] ("where parties enter into a contract to pursue a mutual aim - one in which each of them has an interest … [e]ach of them will depend on the other [and] place trust and confidence in the other … to cooperate to achieve the outcome to which their contract is directed, and to do so for the benefit of each."); (d) the case alleged, founded in part on statements made by Mr Anthony to Mr Kelly that he was not going to renew the lease because he wanted to buy Mr Kelly's shares, is that one of the participants to the joint venture seeks to take the benefit of the joint venture to the detriment of the other participants for the purpose of forcing the other shareholder to sell their shares at less than fair market value, which Mr McElwaine submitted "is a clear and serious breach of the fiduciary duties owed inter se"; and (e) there was no intention that there would be a finite lease period absent the consent of each partner and that the pleaded case is analogous to Chan v Zachariah (1984) 154 CLR 178, where it was held that an option for renewal of a lease of premises was an asset of the partnership, and to enable that asset to be realised, it was the duty of each partner to join in exercising the option, where the renewal was of value and the other party required it. 22 Mr Groves submitted that there was no evidence of any communication by Mr Anthony to Mr Kelly of the pleaded mutual assumption that business was to continue to operate on the leased land for so long as it was profitable, and that, accordingly, the joint venture, estoppel by convention and unconscionability causes of action did not pass the "serious question to be tried" threshold. His written submissions also contended: (a) central to the action proposed is that contention that Mr Anthony (and Cradle View) are in a position of conflict of interest and/or duty by reason of Cradle View being the lessor, and Devils@Cradle being the lessee, of the land from which Devils@Cradle's business currently operates; (b) any cause of action premised upon the contention that they are placed in a position of conflict is unsustainable upon a consideration of the parties' operative agreements, including the governing deed; (c) the governing deed expressly provides for the entry into of a finite lease and vests the property in the fixtures erected on the land in Cradle View; (d) to the extent any conflict of interest and/or duty could be said to arise from the fact of Cradle View and Devils@Cradle being the parties to the relevant leases, that is a consequence of what was successively agreed between the parties; (e) the business was never agreed to be a "going concern" at its current premises, beyond the life of the lease; and (f) if the loss of the lease is the end of the business, that is the product of the parties' agreements, not any impugned conduct on the part of Mr Anthony or Cradle View. 23 In my view, each of the causes of action sought to be pleaded raise a serious question to be tried, for the reasons advanced by Mr McElwaine. 24 As Mr McElwaine submitted, the lack of any express evidence on the question of whether Mr Anthony ever expressly communicated his understanding of the pleaded mutual assumption is not, on the state of the cases, a necessary element of any of the causes of action and thus does not mean that there is no serious question to be tried with respect to them. Further, none of the reasons advanced by Mr Groves in his written submissions (set out at [22] above) are persuasive. Contentions along those lines might ultimately succeed, but they are not to the point on an application such as this, where the court's function is to determine whether there is a serious question to be tried. 25 The fifth criterion relates to the 14 days' notice requirement. Although the applicants did not give the 14 days' notice of their intention to apply for leave and of the reasons for applying, they submit that it is nonetheless appropriate to grant leave to bring the proceeding (see s 237(2)(e)(ii)). 26 Mr McElwaine submitted that it is plainly the case that Mr Anthony, the only other director of Devils@Cradle, has been aware of the dispute concerning the refusal to grant a new lease since May 2018 when the topic was first discussed at a directors meeting, so that he had plenty of notice. 27 Mr Groves submitted that I should not dispense with the notice requirement, because Mr Kelly did not seek to rely on a provision in the shareholders deed of agreement to break director deadlock (cl 4.16) or comply with the dispute resolution process contained in the governing deed (cl 14). It was also stressed in oral argument that although Mr Kelly made it clear to Mr Anthony that they were in dispute, he never gave any notice of his intention to bring an action in the name of Devils@Cradle. 28 In my view, it is appropriate to waive the notice requirement, as s 237(2)(e)(ii) contemplates. It is fair to say that, on the evidence adduced by the applicants, which was not contradicted, Mr Anthony's responses to Mr Kelly's pleas in relation to a new lease were met with uncompromising opposition, which would render remote the possibility of dispute resolution clauses bringing about any actual resolution of the dispute. (I should add that I mean no criticism of Mr Anthony. He may well be entitled to be as uncompromising as he wishes to be - but that is a question for another day). And, in my view, the fact that Mr Kelly did not give express notice of his intention to bring an action in the name of Devils@Cradle is neither here nor there. 29 I should also note that Mr McElwaine gave an undertaking on behalf of his clients that they will fully fund the costs of the proceeding. 30 For those reasons, I made the orders set out above. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

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