ASIC v Triton Underwriting Insurance Agency

Supreme Court of NSW|2003-12-03|Before: Barrett J

48 ACSR 249 Reported Decision : (2004) 13 ANZ Insurance Cases 61-590 (2004) 22 ACLC 86

CITATION : ASIC v Triton Underwriting Insurance Agency [2003] NSWSC 1145 HEARING DATE(S) : 01/12/03 JUDGMENT DATE : 3 December 2003

JURISDICTION: Equity Division Corporations List JUDGMENT OF : Barrett J DECISION : Interlocutory injunctions refused; Interlocutory orders precluding movement of money made

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

5810/03 - AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v TRITON UNDERWRITING INSURANCE AGENCY PTY LTD & 4 ORS

1 By an originating process filed on 18 November 2003, the plaintiff, Australian Securities and Investments Commission ("ASIC"), seeks declarations that the first defendant, Triton Underwriting Insurance Agency Pty Ltd ("Triton"), and the third defendant, Trans Pacific Insurance Corporation ("Trans Pacific"), have contravened s.911A of the Corporations Act 2001 (Cth), that the fourth defendant, Mr Douglas, and the fifth defendant, Mr Bunt, have contravened s.911B, that Triton, the second defendant, Aradlay Insurance Brokers Pty Ltd ("Aradlay"), and the third defendant have contravened s.1041E and s.1041F of the Corporations Act and s.12DA of the Australian Securities and Investments Commission Act 2001 (Cth) and that Aradlay has contravened s.38 of the Insurance (Agents and Brokers) Act 1984 (Cth). There are also claims for corrective orders. The claims are advanced in part on the basis that Triton and Trans Pacific are carrying on activities for which an Australian financial services licence is required, without holding such a licence. Triton, for its part, has filed a cross-claim dated 28 November 2003 by which it seeks various orders including orders compelling ASIC to consider a pending application by Triton for an Australian financial services licence, being an application dated 15 July 2003. 2 It is in this context that I heard, on 1 December, an interlocutory process whereby ASIC sought interim relief in the form of orders restraining Triton and Trans Pacific from engaging in certain kinds of activities in the insurance field, pending trial, being activities that cannot lawfully be engaged in except by the holder of an appropriate licence. ASIC also seeks certain ancillary relief. 3 To the extent that the originating process seeks final orders restraining the pursuit of business activities, it invokes the statutory jurisdiction created by s.1324(1) of the Corporations Act. The application for interlocutory relief heard by me accordingly entails the exercise of the statutory jurisdiction arising under s.1324(4). The interlocutory process also seeks relief in the form of orders precluding the movement of money and property out of Australia. These claims are founded on s.1323. I shall deal first with the s.1324(4) claims. 4 I should at this point say something about Triton, Trans Pacific and their business activities. Trans Pacific was incorporated in the Cayman Islands on 21 December 2000. It holds an unrestricted class B insurance licence under the Insurance Law of the Cayman Islands. This, it seems, permits it, from the perspective of Cayman Islands law, to carry on insurance business outside the Cayman Islands but not within the Cayman Islands. The sole directors and shareholders of Trans Pacific are the fourth and fifth defendants, Mr Douglas and Mr Bunt. Trans Pacific is not licensed by APRA to carry on business as an insurer in Australia and does not hold an Australian financial services licence under the Corporations Act. 5 Triton is an Australian company formed in 1991 and now therefore deemed to be registered under the Corporations Act. Interests associated with the fourth and fifth defendants are the shareholders of Triton. The fourth and fifth defendants, together with the fourth defendant's wife, are the directors. Triton is not licensed by APRA to carry on insurance business in Australia and does not hold an Australian financial services licence or any registration under the Insurance (Agents and Brokers) Act. 6 The insurances arranged through Triton with Trans Pacific are for two main types of clients, being community centres and community groups and businesses associated with the leisure industry, such as amusement parks and horse riding establishments. There is thus an emphasis on public liability insurance. 7 I should also mention, for completeness, the second defendant, Aradlay, which is an Australian company having as its directors members of the fourth defendant's family and owned by family interests of the fourth and fifth defendants. Aradlay is an insurance broker registered as such under the Insurance (Agents and Brokers) Act. That Act, although no longer generally in force, continues to operate in certain transitional respects until March 2004. 8 ASIC's case is that, since 1 August 2002, Triton, as the agent of Trans Pacific, has been arranging and issuing insurance in Australia and engaging in conduct aimed at influencing Australians to acquire insurance issued by Trans Pacific. This conduct, it is said, entails dealing in a financial product and providing financial product advice, activities which, if undertaken by an unlicensed person, entail contravention of Division 2 of Part 7.6 of the Corporations Act. Although the interlocutory orders sought by ASIC involve Trans Pacific and Triton, the strong emphasis in the case presented by ASIC at the interlocutory hearing was upon Triton, in that it is Triton, acting under an agency agreement and a claims servicing agreement with Trans Pacific (both dated 1 August 2002), that operates in Australia and has contact with Australian intermediaries wishing to effect insurances, Triton being, it seems, the sole means whereby Trans Pacific insurances are marketed in Australia. 9 The evidence leaves no real doubt that there is a serious question to be tried on the issue of statutory contravention. I therefore proceed to factors that would be relevant to the balance of convenience if this were an application for an interlocutory injunction entertained by the Court in the exercise of its general equitable jurisdiction. There is a question to be considered presently as to the role to be played by conventional balance of convenience approaches in s.1324(4) cases. That question is, I think, more constructively addressed in light of the conventional balance of convenience considerations as they exist in this case. 10 ASIC's position is straightforward. Triton, in ASIC's submission, is performing relevant functions while unlicensed. The public is therefore subjected to the risks involved in being exposed to financial solicitation on behalf of an entity whose qualities have not been measured against and therefore have not been found to conform to the statutory and administrative standards for the grant of licences. It follows, in ASIC's submission, that the public should be protected from such financial solicitation and that this protection should be put in place by the Court on the application of ASIC, not only if and when a final determination has been made but also by way of an interim protective measure pending trial. ASIC also points to certain representations apparently in Triton promotional material said to be misleading or deceptive. This, it is said, reinforces the need for interim relief. 11 The defendants' position is more complex and requires reference to some other parts of the evidence. On or soon after 15 July 2003, Triton in fact lodged with ASIC an application for an Australian financial services licence. The circumstances that led to this are recorded in the evidence of Mr Bunt and Mr Beach. Mr Bunt deposed that, from the time Triton commenced writing business solely on behalf of Trans Pacific in August 2002, he was aware of a need for Triton to be registered under the Insurance (Brokers and Agents) Act and that when he went to the ASIC website to find out more about this, he saw a message to the effect that he should investigate licensing obligations imposed by the Financial Services Reform Act 2001 (Cth). He had received from industry sources some information about that matter from which he understood that any person or entity required to be licensed under that regime had until 22 March 2004 to comply. 12 Mr Bunt also retained Mr Beach to advise on licensing requirements. The retainer was in place by August 2002. Mr Beach, according to his affidavit, has 41 years experience in the insurance industry. He is a consultant. He deposes that, at the time he was retained by Mr Bunt, he was not familiar with all the requirements to obtain an Australian financial services licence. He therefore sent an email to ASIC's general inquiry line on 22 August 2002 to find out what was required in a case such as Triton's. The exchange of emails is in evidence. The questions posed by Mr Beach were obscure and potentially quite irrelevant, referring to an agent or broker "licensed in Australia" which, of course, Triton was not. ASIC's reply, not surprisingly for a response to a general inquiry, was in very general terms and cautioned the recipient about reliance. The ASIC reply referred to sections of the legislation. Mr Beach downloaded these from the Scaleplus website. Having read the sections, he came to the conclusion that they did not apply to Triton and that Triton was entitled to the benefit of the transitional regime and had until March 2004 to obtain a licence. 13 It is now acknowledged by the defendants that both Mr Bunt and Mr Beach came to a legally wrong conclusion about the availability of the transitional dispensation. Mr Bunt continued under that misapprehension when he set actions in train towards obtaining a licence for Triton, although after some delay pending resolution of doubts whether underwriting agents would be exempted from the licensing requirements as the policies and exemptions in relation to the new financial services licensing regime developed. By October or November 2002, Mr Bunt had Mr Beach and staff members working on a licence application. He became aware in December 2002 that ASIC recommended lodgement by 30 June 2003 to meet the transitional deadline of March 2004. He tried to lodge Triton's application electronically on 1 July 2003, but found that the electronic form had been changed and it was necessary to rewrite certain sections. Lodgment was eventually effected on or soon after 15 July 2003. 14 ASIC acknowledged receipt of Triton's licence application by letter dated 14 August 2003, signed by Mr Paleologos, an ASIC officer apparently based in Melbourne. That letter foreshadowed that further information would be required. Mr Paleologos wrote to Mr Bunt again on 18 August 2003 seeking specific information "to assist with the assessment of the application". Mr Bunt replied by letter, dated 20 August 2003, giving information and concluding, "If you require any further information please do not hesitate to let me know". There was a conversation between Mr Bunt and Mr Paleologos on 9 September 2003 following which Mr Paleologos sent an email on 10 September seeking further information on responsible officer competency according to ASIC's Policy Statement 164. Mr Bunt forwarded information on that under cover of a letter dated 24 September 2003. 15 On 15 October 2003, Mr Farmer, apparently an officer senior to Mr Paleologos in Financial Services Regulation in ASIC's Melbourne office, wrote to Mr Bunt saying that the assessment of the licence application had been temporarily suspended because of "a current ASIC investigation". Mr Bunt replied on 21 October 2003 saying, among other things: "I am not aware of any ASIC investigation that involves Triton that would give rise to this suspension and would appreciate your advice as to the purpose of and details of the investigation and if it is specifically in relation to Triton or is a broader investigation, I would also appreciate your advice on what basis the investigation can be used to suspend the assessment of our licence. We are concerned that any delay on our licence assessment may impact on our ability to conduct our business as the deadline is fast approaching."

The reference here to the deadline "fast approaching" was obviously a reference to the March 2004 deadline that Mr Bunt still thought, although erroneously, to be applicable. 16 When Mr Bunt said that he was not aware of any ASIC investigation involving Triton, he failed, perhaps not surprisingly, to make any connection with a notice under s.30 of the Australian Securities and Investments Commission Act served on Triton under cover of a letter of 5 August 2003 from Mr Mellor, an ASIC officer in Canberra, calling for the production of certain documents. Mr Bunt supplied the required documents with a letter dated 20 August 2003 to Mr Mellor couched in cooperative terms. The letter makes it clear that Mr Bunt had had a conversation with Mr Mellor, presumably by telephone, and was under the impression that ASIC was conducting a review and that Triton was assisting ASIC in obtaining an understanding of the impact foreign insurers were having on the Australian market. 17 A senior lawyer with ASIC in Sydney, Mr Hogan, wrote to Mr Bunt on 14 November 2003 saying that both Triton's licence application and the material produced in response to the s.30 notice "raise very serious concerns that we consider should be the subject of intervention". That letter went on to express concern that both Triton and Trans Pacific had been carrying on business in contravention of s.911A; also that a number of misleading, false or deceptive statements had been made to induce persons to insure with Trans Pacific. There was also reference to a view of ASIC that Triton had applied for the wrong type of licence, having regard to the nature of its activities. Four days later - indeed, on the day on which Triton received the letter of 14 November 2003 - these proceedings were commenced. 18 I turn now to the evidence going to the substance of the insurances made available through Triton. Evidence was given on affidavit by Mr Saper, a reinsurance broker, about reinsurance held by Trans Pacific in respect of its liability portfolio. The Court is, of course, in no position to come to any conclusion about the adequacy of the reinsurance. It can say, however, that there is evidence of Trans Pacific having effected reinsurance which, on the surface at least, appears to afford substantial cover. Affidavit evidence was also given by Mr Evans, Triton's claims manager. He deposed that Triton writes more than 10,000 policies each year and that since August 2002 there have been 509 claims made, of which 326 have been successfully resolved at a cost of $1,150,000. There is a claims administration staff of 26. 19 Also in evidence is an actuarial review by Trowbridge Deloitte of the underwriting performance of the property and liability business undertaken by Triton for Trans Pacific. However, that report is expressed to be exclusively for the use of the Cayman Islands monetary authority and the auditors of Triton and Trans Pacific. I therefore prefer to put no weight on its contents, although its existence alone demonstrates a degree of responsible management. 20 Finally, I refer to the evidence of Ms Drysdale, Triton's underwriting manager. She deposes to the position occupied by Triton in the market. She says Triton is only one of two or three insurance agents who place risk in the leisure and community based industry in Australia, this being a difficult area in which to obtain insurers "in the post HIH era". Ms Drysdale expresses the opinion that if Triton is required to cease writing cover for even as little as a week or two, its business will be irreparably damaged because it will be difficult to regain the confidence of brokers. Mr Bunt expresses the same opinion in his affidavit adding that, without Triton, operators in the leisure industry would have significant difficulty in obtaining insurance of the kind Triton arranges. 21 I have gone into these matters in some detail because it seems to me that they need to be weighed in the balance of convenience, assuming that to be a concept that plays a part in the present context. That is the question to which I now turn. 22 Section 1324(4) under which ASIC maintains its present claim for interlocutory relief allows the Court to grant an interim injunction pending determination of an application under s.1324(1) "[w]here in the opinion of the Court it is desirable to do so". The jurisdiction is thus obviously discretionary and turns upon an assessment of the Court of what is "desirable" - a broad and, in the context, unexplained concept. There has been some debate in the case law as to whether the established approaches of courts of equity to the balance of convenience or the balance of hardship apply in the traditional way to cases of this kind. A comprehensive review of the matter appears in the judgment of Palmer J in ASIC v Mauer-Swisse Securities Limited (2002) 42 ACSR 605. His Honour said that the traditional approach of equity is not necessarily to be followed, thereby not favouring views expressed by Warren J, as she then was, in Liquorland (Australia) Pty Limited v Anghie (2001) 20 ACLC 58 and by R D Nicholson J in ASIC v Cooke (1996) 22 ACSR 580, based on decisions in relation to earlier analogous statutory jurisdiction in Adsteam Building Industries Pty Ltd v Queensland Cement and Lime Co Ltd [1984] 2 Qd R 1 and National Companies and Securities Commission v Monsoon Nominees Pty Ltd (1990) 3 ACSR 361. The decision of White AUJ in Westgold Resources NL v Precious Metals Australia Ltd (2002) 41 ACSR 672 was seen by Palmer J in the same light. Palmer J was of the opinion that, in s.1324(4) cases, the Court may have regard to a wider range of considerations as referred to by Austin J in ASIC v Sweeney [2001] NSWSC 114 and ASIC v Parkes (2001) 38 ACSR 355. Those cases were not, however, s.1324(4) cases: Austin J was, in each instance, concerned with other forms of interlocutory relief, but emphasised the particular position occupied by ASIC. In Sweeney, Austin J referred to the provisions defining ASIC's statutory functions: "These provisions imply that it is appropriate for the Commission to take civil proceedings for declaratory and injunctive relief in respect of past events, even if there is no risk of repetition, where the outcome may establish that the conduct complained of was wrongful (and thereby mark the Court's and the community's disapproval of it) and may deter other wrongdoers. It is appropriate for the Court to take these matters into account in the exercise of its discretion to grant or refuse such relief." 23 In ASIC v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561, Davies AJ saw "an end such as enforcing and giving effect to the statute" as central to the exercise of the s.1324 jurisdiction.

24 Having reviewed the earlier cases, Palmer J, in Mauer-Swisse, stated a series of principles as follows: "At the risk of some repetition, I summarise the principles which I draw from the presently applicable authorities:

the jurisdiction which the Court exercises under s.1324 CA is a statutory jurisdiction, not the Court's traditional equity jurisdiction;

Parliament has made it increasingly clear by successive statutory enactments that the Court, in exercising its statutory jurisdiction under s.1324, is not to be confined by the considerations which would be applicable if it were exercising its traditional equity jurisdiction;

amongst the considerations which the Court must take into account in an application for an injunction under s.1324 CA are the wider issues referred to by Austin J in Sweeney and Parkes , and by Davies AJ in Pegasus ; they may be gathered under the broad question whether the injunction would have some utility or would serve some purpose within the contemplation of the Corporations Act ; - these considerations are to be taken into account regardless of whether the application is for a permanent injunction under s.1324(1) or for an interim injunction under s.1324(4); - where an application under s.1324(4) is made by ASIC rather than a private litigant the Court is more likely to give greater weight to the broad question whether the injunction would serve a purpose within the contemplation of the Corporations Act ; - where there is an appreciable - that is, not fanciful - risk of particular future contraventions of the Corporations Act by a defendant, it would serve a purpose within the contemplation of the Corporations Act that the Court grant not only a permanent injunction but, in an appropriate case, an interim injunction restraining such conduct. Section 1324 evinces an intention that the possibly severe consequences and the relative promptness of proceedings for contempt of Court be added to criminal prosecutions as a deterrent to contraventions of the Corporations Act ; - although the questions whether there is a serious question to be tried and where the balance of convenience lies will not circumscribe the Court's consideration in an application for an interim injunction under s.1324(4), the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the Court, even where the protection of the public is said to be involved: see per Young J (as his Honour then was), in Corporate Affairs Commission (NSW) v Lombard Nash International Pty Ltd (1986) 11 ACLR 566, at 570-571; - the balance of convenience will be viewed differently according to whether the applicant under s.1324(4) is ASIC or a private litigant. Where ASIC is acting to protect the public interest, the absence of an undertaking as to damages, exempted by s.1324(8), will usually be of little consequence. However, where the proceedings are brought to advance a plaintiff's private interests, then if such an undertaking is not proffered even though it is likewise exempted by ss.(8), the Court may take that circumstance into account as a matter of practicality, common sense and fairness in determining where the interests of justice lie and whether "it is desirable" to grant the injunction: see per Young J in Lombard Nash at 571."

I note that in ASIC v Marshall Bell Hawkins Limited (2002) 43 ACSR 340, a case not directly involving the s.1324(4) jurisdiction, Merkel J said that "there may be some debate" about Palmer J's observations. 25 It seems to me that the statutory nature of the s.1324(4) jurisdiction and the words of the legislation ("Where in the opinion of the Court it is desirable to do so"), mean that the Court is not constrained by the traditional methods of equity. But there can be no doubt that those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory role ASIC plays and the wider question of what is "desirable" in the statutory context. 26 As to the balance of convenience in this case, ASIC points to the clear public interest in ensuring that unlicensed persons do not undertake activities for which a licence is required since the protection of the public intended to be secured by the screening and vetting involved in the grant of a licence and the ongoing supervision of licensees is otherwise absent. Triton, for its part, is willing to become a licensee. In fact, it has taken substantial steps to obtain a licence, including by lodging an application some three centimetres thick and responding promptly to all questions asked by ASIC until ASIC suspended consideration of its application. Indeed, so strong is Triton's desire to have a licence that it has filed a cross-claim in these proceedings by which it seeks to have the Court compel ASIC to give due consideration to the licence application. 27 The evidence adduced by the defendants shows that reinsurance is in place and that an actuarial review was prepared by a recognised firm of actuaries for Trans Pacific's regulatory authority in the Cayman Islands and the auditors of both Triton and Trans Pacific. While the Court is not in a position to draw substantive conclusions from these, their existence alone demonstrates a degree of responsibility in the conduct of operations. The evidence about claims and claims history also shows that this case is far removed from the all too common case that comes before the Court of the promotion of illusory schemes and the marketing of illusory products. There is no evidence that any member of the public has lost money or is likely to lose money through the activities of the defendants, unlicensed though they are. The defendants also point to severe and perhaps irreparable harm that will follow for them if there is an interruption to business for even a week or two. That evidence is credible given the sensitivity to risk of persons seeking to take out insurance. 28 On the ordinary balance of convenience tests, my conclusion would be that the hardship the defendants would suffer if interim relief was granted outweighs the hardship - in the form of risk to the public - that the regulatory authority, as the embodiment of the public interest, would suffer if it was not granted. 29 Does the added dimension provided by ASIC's statutory functions and the statutory nature of this jurisdiction change this assessment? In my view, it does not. Two aspects of statutory functions are involved here. The first is the function of receiving and processing licence applications. The second is the function of surveillance and law enforcement. The approach taken by ASIC in its correspondence with Mr Bunt was that the licence application would not be further considered because of the enforcement proceedings. It remains to be seen whether that attitude, squarely put in issue by the cross-claim, will be found to be supportable. Because of the interplay of the two statutory functions in this particular case, there is, to my mind, something of a qualification upon the importance that would, in the ordinary course, be attached to the enforcement function. The end of "enforcing and giving effect to the statute" referred to by Davies AJ has an added dimension. It is true that ASIC has expressed the opinion that Triton has applied for the wrong kind of licence, having regard to the actual activities. It is true that the defendants entirely misunderstood the transitional regime. At the same time, however, a generally constructive predisposition towards compliance has been shown, even though based on a misapprehension that would have been avoided had competent advice been obtained. Nor, as I see the evidence, has ASIC pointed to any particular deficiency, so far as the substance of the licence application is concerned, albeit that consideration of the licence application is apparently at an early stage. The letter of 14 November from ASIC really made three points: lack of licence; the view that the wrong kind of licence or authorisation had been sought; and the publication of allegedly misleading, false or deceptive statements. Nothing was said suggesting any apprehension that funds were at risk. So far as the evidence shows, the defendants have responded promptly and frankly to all ASIC requests for information. 30 In the whole of the circumstances, I do not consider that it has been shown to be "desirable" that the Court should restrain the continuation of the business activities of Triton and Trans Pacific pending trial. In saying that, however, I do not intend that there should be understood to be any form of imprimatur for the continuation of activities that are contrary to law or that the Court's interlocutory decision should be seen as making legitimate anything that is unlawful. The Court does not for a moment say that it grants some form of permission to continue unlawful activities. Any continuation that the two companies and their principals elect to pursue, in the absence of appropriate licensing and in the absence of any restraining order, will be on their own heads and at their own risk as regards exacerbation of the clear regulatory problems with which they are now confronted. 31 The decision with respect to paragraphs 4, 5, 7 and 8 of the interlocutory process is that the claims in those paragraphs are dismissed. 32 It remains to consider the application for orders under s.1323 as to the movement of money and property out of Australia. There is no balance of convenience or other factor that tells against the imposition of those stabilising measures pending trial. I therefore make orders 9, 10 and 11 in the interlocutory process, reserving liberty to the defendants to apply on 48 hours notice should they wish to obtain the ability to make particular payments or remittances with the approval of the Court. 33 Finally, I refer to the matter briefly aired before me as to the possibility that the Supreme Court lacks jurisdiction to grant the relief sought in the cross-claim by way of order compelling ASIC to give due consideration to Triton's licence application. In view of matters briefly adverted to by counsel for ASIC upon the interlocutory hearing, it may be that one party or another will wish to apply for transfer of the proceedings to the Federal Court. With that in mind and so that attention may be given to the further progress of the proceedings as a whole, the originating process, the cross-claim and the balance of the interlocutory process will be stood over to the Corporations List on Monday next, 8 December 2003, at 10am.

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Financial Services Reform Act 2001(Cth)

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