Aslor Pty Ltd (in liq) v Springmount Pty Ltd Crema

CORPORATIONS - Directors' duties - Corporations Law, s.232.

MISREPRESENTATION - Misleading and deceptive conduct - Whether inducement to enter into deed of settlement - Loss of opportunity to recover in arbitration - Trade Practices Act 1974 (Cth), ss.52, 75B.

PRACTICE and PROCEDURE - Notice to admit facts - Whether Notice confined to facts - Injustice - Rules of the Supreme Court, r.35.03.

Mr I.G. Buckeridge appeared in person and for Billian Pty Ltd

Mr F.R. Le Messurier appeared in person and for Springmount Pty Ltd

2. The above two proceedings arise out of the same set of facts and were ordered by Mr Justice Mandie, to be heard together on the issue of liability only. In the first proceeding (the Aslor proceeding), the plaintiffs are Aslor Pty Ltd (in liq) (Aslor) and its liquidator, Peter Damien McClusky (McClusky), who was appointed as such on 22 February 1996 by the resolution of the company's creditors. The defendants in that proceeding are the former directors of Aslor and their respective companies. The plaintiffs' primary claim is that the defendant directors wrongfully, in breach of their fiduciary duties to the company, transferred certain residential townhouse units belonging to Aslor to their related companies and that in the circumstances, the defendant companies took the units upon a constructive trust for Aslor. The units have been sold by the defendant companies and the plaintiffs say that the net proceeds are held on a constructive trust for it. I am satisfied that those moneys are held in the bank accounts under the control of the solicitors to which I refer later.

5. Until the matter came on for hearing, the liquidator also claimed that the transfers constituted an uncommercial transaction within the meaning of s.588FB of the Corporations Law (the Law). He also contends that it was an insolvent transaction within the meaning of ss.588E(3), (4) of the Law. Given the circumstances which I describe later, the liquidator no longer pursues the claim based on the allegation that the transfers were an uncommercial transaction.

8. The defendants in the Aslor proceeding filed a counterclaim, but since no evidence was called in relation to it, I propose to order its dismissal.

11. In the second proceeding (the Crema proceeding), the plaintiff is Crema (Vic) Pty Ltd (Crema). Aslor and its former directors and their respective companies are the defendants. Crema was a builder, which in late 1994 (as Crema Camilo Builders Pty Ltd), the abovementioned constructed residential townhouse units for Aslor. A dispute arose between the parties in relation to the building contract which was ultimately settled on the basis that it would take from Aslor, a transfer of one of those units and be paid by it $125,000. The $125,000 has not been paid to Crema. Crema claims that it was mislead by Aslor and its directors into entering the settlement and that had it not been so misled, it would not have settled the dispute, but would have proceeded to claim the amount which it says is due to it under the contract, namely $1.2m or alternatively, approximately $622,000. Crema submitted its proof of debt to the liquidator of Aslor who allowed it only to the extent of $125,000. Crema has appealed against that decision. Further, in its capacity of a creditor of Aslor, Cream has claimed that the transfer of the units from Aslor to the directors' companies, should be set aside pursuant to s.172 of the Property Law Act 1958 (Vic), on the basis that the transfers were made to defraud Aslor's creditors. In view of developments which occurred at or about the commencement of the hearing of these proceedings, Crema no longer pursues the appeal or its claim based on s.172 of the Property Law Act 1958 (Vic).

16. Aslor was incorporated on 11 March 1993. Its directors (the directors) were Frederick Roy Le Messurier (Le Messurier), Garry Raymond Richards (Richards), Anthony Thomas Gilbert (Gilbert) and Ian Gordon Buckeridge (Buckeridge), who respectively control the following companies:

23. It was intended by the directors that Aslor would be a trustee of the Aslor Unit Trust and that they or their companies would be unitholders under the trust deed. As events transpired, however, the trust deed was not executed by all the directors. Moreover, no units were ever issued so that the proposed Aslor Unit Trust did not come into existence. Nevertheless, the evidence suggests that the directors treated themselves as if that had occurred and that they were unitholders in the trust.

26. For some time during the interlocutory stages of the proceeding, most of the defendants were represented by solicitors. Shortly before the matter was listed for hearing for the first time, however, the solicitors ceased to act and did so with leave of the Court. The material which they put forward in support of their application for such leave, showed that they had no instructions to proceed with the defences and were not put in funds. Subsequently, the proceedings were again fixed for hearing, but had to be adjourned because new solicitors were retained for some of the defendants, but they were unable to obtain the files from the former solicitors who claimed a lien over them. Last week, Richards and his company sought to have the trial further adjourned on the basis that he would not be returning to Australia until early October. He was apparently sailing from Thailand to Australia and would not reach land until early October. For reasons which I gave then, I refused the application to adjourn the trial and the solicitors who then appeared for him also withdrew, informing the Court that they only had instructions to apply for the adjournment of the trial.

29. When the matter came on for hearing, Gilbert and Richards (and their respective companies) did not appear. Le Messurier, Buckeridge and their respective companies did appear, but they did not have legal representation. Discussions were held between the Le Messurier and Buckeridge interests on the one hand and Aslor, the liquidator and Crema on the other and in the result, Aslor and Crema proceeded only against the absent defendants, namely, Richards, Gilbert and their respective companies. I was told by counsel for Aslor and Crema that Terms of Settlement have been signed between their clients and the defendants who appeared and that an application would be made in due course for Court approval of this compromise. The plaintiffs in the two proceedings said that they will ultimately seek orders from me on the basis that they not come into effect until the Court has approved the settlement. At trial only Aslor, the liquidator and Crema led evidence.

34. Aslor purchased a parcel of land in Caulfield and in 1994, developed it by engaging Crema to construct the abovementioned 24 residential townhouse units on that land. In early June 1994, Aslor obtained a finance facility for one year from the Trust Bank Victoria in the sum of $4.5m for the purpose of that purchase and development.

37. By an undated Lump Sum Contract which was apparently entered into in about August 1994, Aslor retained Crema to construct the units for the sum of $2.75m. The building project commenced in about October 1994. By March 1995, there were significant differences between the parties regarding the works, Aslor alleging various breaches by the builder and Crema claiming that there had been a failure by Aslor to make progress payments. There was correspondence between them and their respective solicitors in relation to the dispute which need not be detailed. Suffice it to say, that in or about mid-April 1995, Crema's solicitors were seeking unpaid progress payments totalling almost $324,000 and Aslor claimed that the builder had committed various defaults under the building contract. By notice of dispute dated 8 May 1995, Crema referred the dispute to arbitration.

40. By early June 1995, 11 of the townhouse units had been sold and the proceeds were applied to reduce Aslor's debt to the bank, leaving a balance owing of $1.9m. The units were not selling well, however, and Crema was pressing to be paid. In that context, by a memorandum of 8 June 1995, Buckeridge proposed to his co-directors that 12 of the unsold 13 units be distributed amongst their related companies in accordance with their respective (notional) interests in Aslor. Unit 13 was to be held by them as tenants in common in various proportions. The memorandum shows that the directors intended to pay out the company's debt to the bank as well as the debt of $180,000 due by the company to Le Messurier, but there was no suggestion that other creditors would be paid by the directors. I am satisfied on the evidence, that the four directors implemented the Buckeridge proposal; they resolved so to do on 26 June 1995 and on or about that day, they executed on behalf of Aslor (as transferor) transfers of Units 1, 5, 6, 14, 15, 17, 19-24 into the names of their respective companies. The transfers showed the consideration as being "entitlement in equity" and it seems that no stamp duty was paid on those instruments.

43. On 2 August 1995, the directors paid out the debt due by Aslor to its bank ($1.9m). The funds necessary to pay out the bank, were raised by them on the security of the townhouse units which were transferred to their related companies. The evidence also indicates that the $180,000 which the company owed to Le Messurier, was also discharged.

46. According to the liquidator's evidence, the financial position of Aslor at the end of June 1995 was as follows:

(i) Assets

(a) notional cash in hand of $100.00;

(b) cash at bank of $25,737.00;

(c) debtors said to be $956.00; and

(d) one remaining unsold unit (being Unit 13) which had a value recorded in the books of account of the company of $250,000.00.

(ii) Liabilities

(a) moneys due to Crema under the building contract which

Crema alleged was $768,603.00 less the company's

un-quantified counterclaim for allegedly defective

works; and

(b) other trade creditors of $67,986.00.

52. The company also had the following liabilities or contingent liabilities:

(a) the liability to ensure minimum rents pursuant to the rental guarantee in relation to sold units;

(b) the costs of completing construction of the units following its termination of the construction contract with Crema;

(c) legal costs in respect of the pending arbitration proceedings with Crema; and

(d) a potential liability for income tax.

58. I am satisfied on the evidence, that at least after the transfer of the townhouse units, Aslor was not in a position to meet its debts as and when they fell due, from assets available to it. Thus, in transferring the units, the directors took the only real asset of the company in disregard of the interests of its creditors. I am also satisfied on the evidence, that the directors knew or ought to have known that this was Aslor's position and that they should have had regard to the interests of all its unsecured creditors when they came to consider transferring the units to their companies.

61. During August 1995, the arbitration between Aslor and Crema was settled on the basis that Aslor would pay Crema $125,000 and transfer to it Unit 13 in full and final satisfaction of any claim Crema may have against Aslor in relation to the construction of the units. Accordingly, a Deed of Settlement to that effect was executed by the parties on 5 September 1995 (the deed). It recites, inter alia, that the building contract was terminated on 5 May 1995, and that Aslor completed the building. It is also recited that Crema has claimed against Aslor the sum of approximately $768,000 or alternatively, approximately $1.63m as the balance due under the building contract, or alternatively for breach of contract in accordance with its Points of Claim of 27 June 1995. It is also recited that Aslor has claimed against Crema damages for defective and incomplete work in accordance with its Points of Defence and Counterclaim of 18 July 1995.

64. I have already mentioned that Unit 13 was transferred to Crema in accordance with the deed, but Aslor had no funds to pay $125,000 under the terms of the deed and that amount remains unpaid.

67. After the time stipulated in the deed for the payment of $125,000 had passed, Crema served a statutory demand on Aslor on 23 November 1995. On 12 January 1996, Crema issued a Notice of Motion to wind up Aslor and on 15 January 1996, McClusky was appointed as Administrator pursuant to a resolution of the creditors. On 19 January 1996, Crema lodged an informal proof of debt, claiming the sum of $125,000 together with interest as well as liquidated damages "details of which will be provided". On 22 February 1996, Aslor was put into liquidation.

72. The Aslor claims are now confined to claims against the absent defendants. The primary claim is that the action of the absent directors in relation to the transfer of the townhouse units constituted a breach of their fiduciary and statutory duties to the company. Aslor contends that the actions of the directors in transferring the units to their respective companies was made in circumstances where:

(a) There was no adequate provision by the directors for Aslor's creditors (other than the bank and, perhaps, Le Messurier).

(b) The consideration for the townhouse units was less than the market value, so that the directors profited from the transaction.

(d) The directors' personal interests conflicted with their duties to Aslor and the creditors.

78. It is further contended that since those directors were the guiding mind and will of their respective companies, those companies also participated in the breaches and had knowledge of them, by reason of which they took the units on a constructive trust for Aslor.

81. It is clear from the Buckeridge memorandum (which was adopted by the directors), that they valued the townhouse units at approximately $3.1m (excluding Unit 13). Since the only debts taken over by the directors was the bank debt of $1.9m and probably the debt due to Le Messurier, the benefit which they personally gained from the transaction was over $1m. Moreover, as I have already mentioned, at the time of the transfers, the directors knew and ought to have known that Aslor was or was about to become insolvent and that the transaction which benefited their respective companies, was made at the expense of Aslor's creditors.

84. Consequently, I am satisfied on the evidence, that the directors, by engaging in the conduct described, acted in their own interests at the expense of the company and its creditors, and in doing so, breached the fiduciary and statutory duties which they owed to the company. In the circumstances, therefore, Aslor is entitled to the net proceeds of the sale of the relevant units, which are deposited with the National Australia Bank. It is also entitled to an account of profits from the absent defendants, as well as damages and, or alternatively, compensation, to be assessed.

89. The Crema claim is limited to a claim against the two absent defendant directors for damages for misleading and deceptive conduct under ss.52, 75B of the Trade Practices Act 1974 (Cth). Such conduct is said to have been constituted by their misrepresentation to Crema that:

(a) The value of Unit 13 was $240,000, whereas in fact, it was worth considerably less than that.

(b) Aslor had sufficient funds to pay Crema $125,000 as part of the settlement package, whereas Aslor had no such ability, particularly after the units were transferred out of Aslor into their respective companies. It says that but for the misrepresentations, in reliance on which Crema executed the deed, it would have proceeded with the arbitration and would have recovered the amount due to it under the building contract. Thus, it claims, in effect for the loss of opportunity of recovering an award and proving in Aslor's liquidation. It relies in this respect, on Poseidon Ltd & Sellars v. Adelaide Petroleum NL [1994] HCA 4; (1994) 179 C.L.R. 332.

95. In support of its case, Crema relied essentially on the evidence of Luciano Crema (Mr Crema) and on its Notice to Admit Facts dated 11 September 1998 (the Notice), which it issued under Rule 35.03 of the Rules of the Supreme Court. Mr Crema gave evidence about the building work performed by Crema under its building contract with Aslor, the failure by Aslor to pay all the amounts due and the company's case in the arbitration proceeding. He also gave evidence about his negotiations with some of Aslor's directors about the settlement of the arbitration. According to Mr Crema, his company commenced the arbitration proceeding against Aslor in May 1995.

98. Mr Crema said that in June 1995, Buckeridge approached him with the view to resolving the dispute. He said that he and the other three directors were seeking to settle the sales of the units that had taken place and to resolve the differences between Aslor and the builder and that for those purposes, Gilbert was obtaining a building report. During the second half of July 1995 (after the directors had transferred out of Aslor the relevant units to their respective companies), Mr Crema held discussions with Buckeridge and Gilbert, during which the Aslor representatives offered on behalf of their company, payment of $100,000 to settle the dispute. The offer was rejected by Mr Crema. There were then further settlement discussions involving Mr Crema, Buckeridge and Gilbert. In the context of those discussions, Gilbert said that he had the power of attorney from Richards and that he would try to convince the other directors to settle.

101. At a meeting between Mr Crema, Buckeridge and Gilbert on 10 August 1995, Gilbert informed Mr Crema that the directors wanted to settle the dispute and offered to transfer a townhouse unit to Crema, which the directors said was worth $240,000. Mr Crema said that he wanted at least the unit as well as $150,000. The parties could not then resolve the situation, but on 17 August 1995, Buckeridge offered on behalf of Aslor, a transfer to Crema of Unit 13 and $125,000 in full settlement of the dispute. According to Mr Crema, Buckeridge said, inter alia, "we have the money". Mr Crema ultimately accepted the proposal in principle, subject to the directors indemnifying Crema in respect of structural defects. Buckeridge said that the directors would give such an indemnity (and ultimately, they did so).

104. I am satisfied on the evidence, that when Buckeridge and Gilbert made the offer to Mr Crema on behalf of Aslor, that it would pay Crema $125,000 and transfer to it Unit 13 in full satisfaction of Crema's claim on Aslor under the building contract, they did so not only on behalf of Aslor, but also on behalf of the other directors. In my view, the evidence establishes that the two directors acted on behalf of all the directors and Aslor. The four directors disregarded the corporate structure pursuant to which the development of the units was undertaken. They regarded Aslor as a mere formality when it came to the distribution of the units amongst their companies. They acted together in relation to that transaction and those who negotiated with Mr Crema for the settlement of the building dispute, did so on behalf of the four directors and with the authority of the others.

107. In addition to the evidence of Mr Crema, his company sought to treat as evidence the material contained in the Notice which Crema says it served on the defendants under Rule 35.03. Rule 35.03(1) provides that a party may serve on another party a notice stating that unless that party disputes the facts specified in the notice, the party upon whom the notice is served shall be taken to admit those facts (for the purposes of the proceeding). Paragraph (2) provides that if the party served with the notice does not dispute any fact so specified within the relevant time period, that party shall, for the purpose of the proceeding only, be taken to admit that fact. Paragraph (3) provides that a party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). So far as the absent directors are concerned, I was told by counsel for Crema that the Notice had been forwarded to their respective addresses for service. This is confirmed by the Affidavit of Service of Kim Fullager, sworn 30 September 1998 and filed by Crema on 5 October 1998, in respect of the absent defendants and their respective companies. It is clear, however, that they have not responded to or disputed the Notice and, therefore, they are to be taken as having admitted the facts stipulated in the document.

110. But, Crema's Notice is not confined to facts and many paragraphs require the reader to go to other documents such as the Statement of Claim and interpret them. Furthermore, many paragraphs contain conclusions, in some cases conclusions of law and in others, conclusions of mixed fact and law. For example, paragraph 14 states, "There are no reasonable grounds for making the first representation". The same can be said of many other paragraphs. Without going through them all, I mention paragraphs 6, 7, 9, 11, 13, 14 and 16. The high water mark in this respect is to be found in paragraphs 29 and 30. There are, however, paragraphs in the Notice which are clearly confined to facts (such as paragraphs 26 and 27), but there are only a few of them. In the main, the Notice is made up of propositions which are, at best, a mixture of conclusions, facts and law.

113. It should be borne in mind that the relevant defendants are lay people, who are not represented. It is doubtful that they would have understood the full ramification of a failure to respond to the Notice, assuming that they did receive them, notwithstanding that the first page states in terms the consequences of failing to dispute the contentions in the document. But even if one were to disregard that likelihood, one could not expect them to know that at least a substantial part of each Notice does not comply with the Rules. In my view, it would be unjust to allow Crema to take advantage of the relevant deeming provisions of the Rules, where it has itself essentially failed to confine its Notice to propositions of fact as contemplated by the Rules. In my view, the Rules do not contemplate that the recipient of a notice under Rule 35.03(1), who does not respond to it, is to be taken to have thereby admitted the contentions in it which are conclusions or legal propositions. Because the Notice here has the flaws to which I have referred, it would be oppressive to require the defendant directors to sift through it and ascertain which paragraphs are confined to questions of fact. Had they applied to have the Notice struck out on that basis, I would probably have granted their application. I should say, that I raised this matter with Senior Counsel for Crema. He did not dispute that many of the paragraphs in the Notice were not confined to facts. Moreover, he chose not to make any submissions as to whether the Court had jurisdiction effectively to disallow the Notice. It is my view, that in all the circumstances, it would be unjust to allow Crema to rely on its Notice. If a formal order striking out the two Notices which were sent to the two non-appearing defendants were required to formulate my conclusion, I would make such an order. In my view, however, that would be a mere formality and I propose to do no more than disregard the two Notices.

116. Notwithstanding this conclusion, however, for the reasons give by me earlier, I am satisfied on the evidence, that the representations made to Mr Crema by Buckeridge and Gilbert as to the value of Unit 13 and that Aslor would pay the $125,000, were made on behalf of all the directors and with their approval.

119. As to the representation relating to the value of the unit, I am not satisfied on the evidence, that it was worth materially less than $240,000. If anything, the evidence substantiates that the market value of the unit was in the order of $240,000. In that respect, I refer to the Buckeridge memorandum which shows that the 11 units which were sold, were sold at a price of approximately $240,000. That evidence suggests that the market value of Unit 13 was as claimed by Aslor's directors. Consequently, I am not satisfied that there was a misrepresentation on the part of the relevant directors to Crema as to the value of Unit 13.

122. On the question of what were the relevant representations made to Crema about the payment to it of $125,000, in my view, the evidence to which I have referred, establishes that Mr Crema was told that the company had the money in hand to pay that amount and that it would pay it within 30 days. I am satisfied on the evidence, that Aslor did not have the ability in August 1995 to pay $125,000 or anything like it within the stipulated period, or at all. The directors knew or should have known that that was the case. I am also satisfied on the evidence, that the directors had no reasonable basis for believing or representing that the proposed future act of payment of that sum, would take place. To that extent, the relevant directors engaged in misleading and deceptive conduct.

125. The question that remains is, was Crema induced to enter into the deed by that representation? Mr Crema said in his evidence that he decided to accept the offer made on behalf of Aslor "upon the (accuracy of the) figure stated by Gilbert and Buckeridge ($240,000) as to the value of the subject unit and the promise that Aslor would pay the sum of $125,000. Had I known that the payment would not be made by the due date or that the unit did not have the value stated, Crema would not have entered into the deed of settlement". In my view, this evidence, taken in the context of the other evidence to which I have referred, establishes that Crema entered into the deed relying, inter alia, not only on the representation as to the period within which the payment of $125,000 would be made to it by Aslor, but also on the representation that the company had the funds and would make the payment. Had that representation not been made, Crema would have proceeded with the arbitration and not signed away its rights under the deed. It is in those circumstances, that it lost the opportunity to recover its claim in the arbitration. In my view, its damages consist of that loss of opportunity.

128. In the circumstances therefore, Crema is entitled to judgment against the relevant defendants for damages for misleading and deceptive conduct, with such damages to be assessed.

133. In light of my conclusions, Aslor and Crema are entitled to orders and declarations in the following terms (or to a like effect), which are to take effect only if the court approves the Terms of Settlement referred to earlier.

139. (1) A declaration that, the Firstnamed Plaintiff and the Secondnamed Plaintiff as

liquidator of the Firstnamed Plaintiff, are entitled absolutely to the moneys

held in the following accounts with the National Australia Bank:

(a) National Australia Bank, 500 Bourke Street, Melbourne, Account No. 688630536;

(b) National Australia Bank, 460 Collins Street, Melbourne, Account No. 452916706; and

(c) National Australia Bank, 460 Collins Street, Melbourne, Account No. 692301268;

("the trust accounts").

(2) The following directions.

(a) That the Secondnamed Plaintiff be entitled to forthwith

withdraw the moneys held in the trust accounts, and apply same

in the winding up of the Firstnamed Plaintiff.

(b) That Cameron Harvey, the former solicitor for the Second,

Third, Fourth, Sixth, Seventh and Eighthnamed defendants, sign

all cheques, withdrawal forms or like authorities necessary to

give effect to these orders.

(c) That Robert Hilton, the former solicitor for the First and

Fifthnamed Defendants, sign all cheques, withdrawal forms or

like authorities necessary to give effect to these orders.

(d) That Noel Batrouney of the Plaintiffs' solicitors, sign all cheques,

withdrawal forms or like authorities necessary to give

effect to these orders.

(3) There be judgment for the First and Secondnamed Plaintiffs against the

Sixth and Seventhnamed Defendants for damages and, or alternatively,

compensation to be assessed by a Master together with all necessary

accounts and inquiries including an account of any profits made by the

Second, Third, Sixth and Seventhnamed Defendants as a result of the

transfer of the units referred to in paragraph 8 of the Further Amended

Statement of Claim.

(4) The Defendants' Counterclaims against the Firstnamed Plaintiff be

dismissed.

(5) The Second, Third, Sixth and Seventhnamed Defendants pay the First

and Secondnamed Plaintiff's costs of the proceeding including reserved

costs.

(6) The Plaintiffs' claims in this proceeding be otherwise struck out with no

order as to costs.

(7) There be liberty to the Plaintiffs and the Second, Third, Sixth and

Seventh Defendants to apply.

(1) There be judgment for the Plaintiff against the Third and Fourthnamed

Defendants for damages to be assessed by a Master.

(2) The Third and Fourthnamed Defendants pay the Plaintiff's costs of the

proceeding including reserved costs.

(3) The Plaintiff's claims in this proceeding be otherwise struck out with no order

as to costs.

(4) There be liberty to the Plaintiff and the Third and Fourthnamed Defendants to

apply.