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[2013] QSC 3
Supreme Court of Queensland
2013-02-06
Martin J
Original judgment source is linked above.
[1] In May and June 2008 the defendant ("Mr Lee") executed two guarantees in favour of the plaintiff ("ANZ"). The issue at the heart of this case is whether Mr Lee was released from those guarantees.
[2] ANZ relies upon the guarantees and a mortgage and claims:
(a) recovery of possession of Mr Lee's property at 32 Altandi Street, Sunnybank pursuant to the mortgage; and
(b) judgment in the sum of $227,362.79 pursuant to the guarantees.
(a) declarations that there is no money due and owing by him to ANZ;
(b) an order or injunction requiring ANZ to execute and deliver up to Mr Lee a release of the mortgage in registrable form; and
(c) damages for misleading and deceptive conduct pursuant to s 12GF of the Australian Securities and Investment Commission Act 2001 ("ASIC Act").
[4] In about March 2008 Mr Lee and Yong Bum Youn Park ("Mr Park") entered into an agreement concerning the conduct of a café and a seafood shop. In accordance with that agreement, Mr Lee became a director and shareholder of both God's Mission Group Pty Ltd ("GMG") and Lee N Young Pty Ltd ("LNY"). The other director was Mr Park.
[5] On 28 April 2008, ANZ agreed to provide GMG with a facility of $62,776, comprising a $30,000 business overdraft and a $32,776 bank guarantee.
[6] On 4 June 2008, ANZ agreed to provide LNY with a facility of $48,330, comprising a $30,000 business overdraft and an $18,330 bank guarantee.
(a) a first registered mortgage over a property owned by Mr Lee in Altandi Street;
(b) a Guarantee & Indemnity by Mr Lee as guarantor; and
(c) a Guarantee & Indemnity by the other director and shareholder of the companies, Mr Park, as guarantor.
[8] Each of the facilities was in writing and their terms are contained within the respective letters of offer from ANZ, together with the ANZ Finance Conditions of Use. The overdraft accounts were created and the bank guarantees were issued.
[9] In about August 2008 Mr Lee and Mr Park agreed to terminate their earlier agreement concerning LNY. As part of that agreement, Mr Lee was to withdraw from the management of the businesses. Mr Lee wished to be relieved of his obligations under the guarantees and the mortgage and, to that end, he and Mr Park met with Frankie Lau ("Mr Lau"), an employee of ANZ. Mr Lee said that a similar agreement to withdraw with respect to GMG was made in early September.
[10] Mr Lee is an ophthalmologist who practised as such in South Korea for some 25 years. He has a limited capacity to speak and understand English which he exhibited at times when he gave evidence but, for the most part, his evidence was given with the aid of an interpreter.
[11] Mr Park is also Korean but has been in Australia longer than Mr Lee and, from what some of the witnesses said, had a greater command of English than Mr Lee. Mr Park did not give evidence. He was bankrupted on 25 February 2010.
[12] Mr Lau is a "Small Business Specialist" employed by ANZ. He does not speak Korean. He had all the relevant dealings with Mr Lee and Mr Park about the facilities after Mr Lee had decided to leave the business he had with Mr Park.
[13] Mr Lee is deemed to have admitted a number of matters alleged against him on the basis that, in his pleading, he has not either denied or "not admitted" those matters. Those deemed admissions are:
(a) That ANZ wrote to GMG on or about 7 April 2009 informing GMG of its default.
(b) That on or about 9 April 2009 ANZ issued a notice of demand to GMG "consequent upon its default".
(c) That GMG has failed to comply with the demand and remains in default under the terms of the GMG facility.
(d) That ANZ wrote to LNY on or about 7 April 2009 informing LNY of its default
(e) That on or about 9 April 2009 ANZ issued a notice of demand to LNY "consequent upon its default".
(f) That LNY has failed to comply with the demand and remains in default under the terms of the LNY facility.
[14] Insofar as it has been relevant, I have taken into account the language difficulties of Mr Lee - which were pronounced - and those of Mr Lau- which were of a lower level. Mr Lee's answers were, for the most part, given through the interpreter but there were occasions when he answered in English and demonstrated that he had understood the question without interpretation. For Mr Lau, in particular, I accept that there were occasions in which he did not immediately grasp the intent of a question and that this had an effect on both the content and style of some of his answers.
[15] Mr Lee says that there were three meetings between him, Mr Lau and Mr Park after he and Mr Park decided to terminate their agreement. He says that these took place on about 10 August, 18 September and 24 September.
[16] Mr Lee says that the first meeting he and Mr Park had with Mr Lau was at the ANZ Garden City branch on about 10 August. He says that the purpose of the meeting was to find out how he could release his security, that is, the mortgage over the Altandi property.
[17] Mr Lau's evidence is that there was a meeting in August but he was unable to recall a specific date. He says he did not take any notes during the meeting. His recollection is that "Mr Lee and Mr Park came in and they inquire with me about - that Mr Lee... want to be no longer a shareholder and director of the company and... what do they need to do if Mr Lee want to have the mortgage released and have the facility cancelled."
[18] I accept that a meeting took place on or about 10 August and that Mr Lee, Mr Park and Mr Lau discussed the procedure to release Mr Lee's security for the guarantee.
[19] An answer given by Mr Lee in examination-in-chief exemplifies part of the difficulty that exists in this case with the precise identification of what was actually said at the various meetings. Mr Lee was asked what he was told by Mr Lau about the steps he would have to take to have his securities released. His answer was:
"Mr Lau mentioned either substitute security or cash. Because he doesn't know much about a substitute property he inquired about cash contribution more. Mr Lau told him to deposit sufficient money into related overdraft accounts. Because he didn't want to open a separate account he asked whether a cheque or cash from company account would be acceptable. He was always suspicious of Mr Park so Mr Lau said no. He told me to put money into this related overdraft account jointly. He asked why and Mr Lau said, 'Bank's policy'. After that Mr Lee needs to see Mr Lau to get a confirmation. Then he told me to write the letter as he was told."
[20] Mr Hackett interrupted the answer at that point on the basis that the answer had moved beyond the first meeting. He said that he only wanted to be told what was said at the first meeting as to the procedure to release his securities. The answer given to that was:
"In the first meeting he asked specific questions to release the security; told me to sign the letter and submit it to the bank; told me to meet Mr Lau again once the balance is sufficient and say 'goodbye.'"
[21] Mr Lee then said that after the meeting he took some steps in relation to the company LNY towards securing a release of his securities by doing what he said Mr Lau told him to do. Mr Lee was then taken to a bank statement for the account of LNY. It shows two deposits - one on 15 September 2008 of $30,000 and one of 18 September 2008 of $14,300. The deposit of $30,000 brought the account into credit and the deposit of $14,300 raised the balance to $22,596.02. Mr Lee said that the $30,000 was part of the sale consideration of LNY. However, he also said that he made the deposit of that amount as he made the deposit of $14,300.
[22] Mr Lee says that the next meeting took place on 18 September at the Carindale branch. This was put to Mr Lau who said he could not recall that meeting. This was surprising given that ANZ's pleading accepted that there was such a meeting.
[23] Mr Lee's evidence is that on that occasion, Mr Lau checked the balance of the overdraft account and told Mr Park to write a letter. Mr Lee said that Mr Lau told him what to write. He identified this letter as a request from the directors of LNY to release the mortgage over the Altandi property (Ex 33). The letter was as follows:
To Request to Release the morgage (sic) on the property at 32 Altandi st sunnybank QLD 4109.
Because our company Director LEE, CHOL YONG resinged (sic) as a Director and selling all his shareholding in the company TO LEE N. YOUNG P/L YONG BUM LEE N YOUNG P/L TO YONG BUM YOUN PARK.
Replace the security for the $18.330 bank guarantee by a bank deposit of $18.330 in the name LEE N YOUNG P/L to be held by ANZ Bank
For And on Behalf of LEE N YOUNG P/L (ACN 130098583)"
[24] Mr Lee said that on 18 September, the second paragraph had not been struck through and the words "Please cancel the $18,300 bank guarantee" were not present.
[25] Mr Lau says that Exhibit 33 was given to him on 24 September.
[26] The bank statements for LNY reveal that a $30,000 deposit was made on 15 September and a $14,300 deposit made on 18 September. These two deposits had the effect of putting the LNY overdraft account back into credit on 18 September.
[27] On that same day, Mr Lee was removed as a director and shareholder of LNY. Five days later Mr Park revoked Mr Lee's authority to sign on behalf of LNY.
[28] On 18 September and 24 September Mr Lee deposited $10,000 and $34,000 respectively into the GMG account which had the effect of bringing that account into credit in the sum of about $33,000 - an amount greater than the sum secured by the GMG bank guarantee.
[29] The LNY bank guarantee was returned to ANZ in late September and was cancelled.
[30] On this date the final meeting of Mr Lee, Mr Park and Mr Lau took place at the Sunnybank branch of ANZ.
[31] At that meeting another handwritten letter (Ex 34) was given by Messrs Lee and Park to Mr Lau. It was in these terms:
We Request ANZ Bank to Release the morgage (sic) on the property at 32 Altandi St sunnybank QLD 4109.
Because our company Director LEE, CHOL YONG Has Resigned as a Director and selling All His shareholding in the company GOD'S MISSION Group Pty Ltd to YONG BUM YOUN PARK.
Please Replace the security for the $32776 Bank Guarantee By A Bank Deposit of $32776 in the Name GOD's MISION Group P/L To Be Held By ANZ BANK.
For And on Behalf of God's Mission Group P/L (ACN 121334852)"
[32] Mr Lee said that after the letter was given to Mr Lau: "Mr Lau said, 'All is done. Wait for two or three weeks.'"
[33] Mr Lau's evidence on this point is essential to ANZ's case as it maintains that Mr Lau was asked to put the requests for release of the mortgages "on hold".
[34] Mr Hackett took me through what he described as the different versions of Mr Lau's evidence concerning this particular matter. The first iteration of the evidence was given in a trial conducted in the District Court in November 2009. In that trial Mr Lee sued Mr Park. I will return in greater detail to this litigation and its effect on this case later. I was referred to the evidence Mr Lau gave in that case. He gave evidence about the meeting on 24 September and the letter given to him on that date with respect to GMG. He was directed to that letter and asked how the business overdraft would be cancelled in the normal course of business at the ANZ Bank. In answering that question, Mr Lau volunteered:
"... I can recall that Mr Lee and Mr Park was talking and then they have different idea come up during that meeting so that's why they change and think that, oh, maybe not doing the deposit and then they were talking also about Mr Park is going to have a new director; new shareholder coming into the company so I recall that then during the conversation then Mr Lee agreed that if we are going to process that new application from the new directors then the new company will substitute security and Mr Lee also agreed that he would allow reasonable time which usually the whole process may be four weeks or more to get that substitute residential property or deposit in so that's why they asked me then to put this on hold until that application happens and then got approved. Only after that then we can then proceed with releasing the mortgage to Mr Lee.
Her Honour: So say that again? You're saying that they told you not to send this down to Melbourne? - - Yes, because on that - - -
And not to close the overdraft? - - Yes, on that day, we'd - Mr Lee and Mr Park talk with me and then Mr Park also mentioned that he's got new director and new shareholder coming in and then they - he asked me if they can keep the overdraft because they still need to buy the business so then I explained the process that you have to put in a new application. We had to get approval and restructure it and then we talk about that process of getting approval, do new valuation of the property and so on, could be up to four weeks - three or four weeks and then eventually when that all signed up with new documentations then that's - then we can then release the mortgage to Mr Lee and then, yeah, I recall that then Mr Lee also agree that he had to give Mr Park a reasonable time to do that with a new party. Then that's why they asked me to put in a hold and I was waiting for an application back from Mr Park with a new director and new shareholder.
All right. And Mr Lee was happy with that arrangement, was he? - - Yes, Mr Lee agreed to allow that reasonable time.
And what else was discussed in that meeting? - - From memory, he also asked me, yeah, whether the business - business overdraft has been cancelled with new application from Mr Park and when he - when he - can he get the release of the property mortgage and I think - yes, to the best I can recall then we called Mr Park and asked him to come into the branch and tell Mr Lee and myself what is the status of this restructuring."
[35] Mr Hackett then referred to the Second Further Amended Reply and Answer of ANZ. Mr Lau's evidence on two particular points was not on all fours with the matters pleaded. In cross-examination he said that "from memory" Mr Lee did not say words to him such as "do not forward the letters to Melbourne for processing". That question and answer might appear clear from the transcript but it was apparent to me during the trial that, notwithstanding Mr Lau's position with the ANZ and the fact that he has been Australia for over two decades, he still experienced difficulties with some aspects of expression and, in particular, in dealing with the precision of expression which was put to him in the witness box. I do not regard his answers on this particular point as being necessarily a clear contrast with the pleadings.
[36] Finally, Mr Hackett referred to the opening of the evidence in this case and the evidence that Mr Lau in fact gave. Like many witnesses, Mr Lau did, on occasions, only give the gist of a conversation and often referred to speaking to "them" or being told by "them" when he was intending to convey that either Mr Lee or Mr Park said something to him or he said something to one or other of them. Given that I am satisfied that Mr Park did nearly all of the talking for two directors, I have formed the clear view that the conversations which took place at these meetings were dominated by Mr Park and that Mr Lau, not unnaturally, directed most of his conversation to Mr Park. I accept that on a number of occasions Mr Lau sought to confirm with Mr Lee the instructions which were apparently given by Mr Park on their behalf during a meeting.
[37] Mr Lau gave the following evidence in chief:
[38] In cross-examination he said that he was communicating with Mr Lee in English on 24 September and that he had to be very careful in asking clearly whether he agreed or not agreed to give time to Mr Park. Mr Lau said that Mr Lee told him that it was "okay".
[39] Mr Hackett submitted that no two versions of Mr Lau's evidence were the same. There were differences in detail, but the thrust of the evidence was substantially the same and consistent. In order to demonstrate the further grounds for the conclusion I have drawn on this point I need to refer to the earlier litigation.
[40] Mr Lee commenced proceedings against Mr Park, GMG and LNY in March 2009. His statement of claim recites the business agreement, the agreement to terminate the business agreement and a breach by Mr Park of an obligation he had to do all things necessary to ensure the cancellation of the bank guarantees, the closure of the overdraft accounts and the release of the mortgage over Mr Lee's house. It was alleged that Mr Park had failed to cancel the bank guarantees, failed to close the overdraft accounts, failed to ensure that there were not any moneys owing to the ANZ by GMG and LNY and failed to make alternative arrangements with ANZ for the provision of security. In that action Mr Lee sought specific performance of the terms of the termination agreement, including certain specified orders and, in the alternative, damages in an amount sufficient to discharge the bank guarantees and the mortgage.
[41] Between the commencement of the proceedings and the trial, correspondence was exchanged between Mr Lee's then solicitors and the solicitors for ANZ. On 31 July 2009, Mr Lee's solicitors asked the ANZ not to take any action in relation to this matter until the end of the District Court proceedings. On 7 September 2009, Mr Lee's solicitors sent an email to the ANZ's solicitors in which the following was said:
"We note that the primary relief sought in the said litigation is the payment of the moneys owed to ANZ Bank, closure of the accounts in question and release of our client's property from the mortgage. As such our client maintains that it should be the abovementioned companies and the named director that should be liable for the moneys owed in the account.
However, in acknowledgement of your client's position and as a gesture of goodwill and in spirit of cooperation, our client is at this stage willing to pay $10,000 to your client in payment of the outstanding amounts in consideration for your client's undertaking not to take any further actions against the mortgaged property."
[42] On 28 September 2009, Mr Lee's solicitors wrote to the ANZ's solicitors and, among other things, said the following:
"Please note that we have obtained the trial date for the above matter for two day trial commencing 3 November 2009. As such our client duly requests:
[43] On 6 October 2009, a further letter was sent from Mr Lee's solicitors to the ANZ's solicitors. It contained the following:
"Please note that the trial date has been set for the above matter for 3 November 2009 and 4 November 2009. It is our client's intention to seek liquidated funds necessary to discharge, among other debts, the debts to your client at trial. As such please advise us of the sum that your client will accept from our client as at 4 November 2009 in full and final discharge of our client's liabilities as the guarantor and to release the mortgage over our client's property."
[44] That letter was replied to on 14 October 2009 by the ANZ's solicitors writing and confirming that Mr Lee owed the bank as guarantor the sum of about $105,000.
[45] In an affidavit sworn on 15 October 2009 a solicitor within the firm acting for Mr Lee swore that he had received a letter from the ANZ's solicitors "noting our client's final liability sum".
[46] At the trial, Mr Park and the companies were unrepresented. In opening the case, Mr Cooke of Counsel said:
"My client's instructions are that he was to resign as a director and shareholder of the second and third defendants and in payment for his resignation as a director and, more importantly, in payment for his shares the value of which was determined between the parties and a figure of $160,000 for the shares in both of those companies was reached.
It was also agreed that by withdrawing and terminating his arrangement with both the companies and selling his shares that the overdraft accounts and the bank guarantees would be cancelled and the security as against the - his personal property, his family home, would be withdrawn and/or substituted.
...Essentially we seek specific performance and we seek indemnification from Mr Park for any of his - any assets that he has to offset against the claims against us from Westfield or the ANZ Bank. So, it's not - we're not claiming damages for breach of contract for our own personal gain or damages in that sense. We are, in fact, claiming to offset the amounts that no doubt we'll eventually have to pay when pressed by either Westfield or the ANZ. And, your Honour, it's as simple as this: when our client left the business he trusted Mr Park, he balanced the accounts, he thought everything would be okay and that the appropriate steps would be taken by Mr Park. Unfortunately they weren't and Mr Park now denies that he has any liability to our client."
[47] In examination in chief, Mr Lee gave the following evidence:
"Mr Cooke: Okay. Why did you resign without cancelling the account - overdraft accounts, or the bank guarantees yourself?
Interpreter: First of all, I receive orders purchase price and, secondly, the bank account had enough money to cancel the bank guarantee and, thirdly, Frankie said it was okay. Also, Mr Park wanted his share of the company when he resigns and in Korea, when - I thought I had as long as I had this card and PIN, I thought nobody would be able to access the account and Mr Park said it was okay for me to hold the account until all those mortgage of my house, it's cancelled. So I thought I had enough reasons not to cancel the bank guarantee or overdraft account before resigning.
Mr Cooke: Okay. And then who, if anyone, did you see after resignation of both of the companies about any moneys overdue?
Interpreter: A week after I resigned, I realised I couldn't access to the account over the internet banking. After three weeks of my resignation, I didn't hear that the mortgage was released and Mr Park kept telling me to wait, wait and wait. I started having these suspicions so I decided to go see Frankie myself. When I saw Frankie, he told me that all the process stopped because Mr Park withdrew the money from the overdraft account. ...
Mr Cooke: Okay. If, Mr Lee, could I have you turn to page - okay. My first question is: what, if any moneys, do you currently owe to the ANZ because of this facility?
Mr Cooke: And that includes, if you look at page 71 that includes the business overdraft facility for the Mission Beach Group Pty Ltd totalling approximately $65,000?
Mr Cooke: And how much is owed for Lee N Yong Pty Limited?
Interpreter: Because I've resigned, I am not quite sure how much I actually need to repay the bank."
[48] Finally, there was evidence of Mr Lee in this trial that the agreement he had concerning the termination of their business relationship included a term that until his house was released from the mortgage completely, and regardless of whether he resigned as director of the company, he would continue to have internet access and PIN access to both overdraft accounts. Mr Lee was surprised when he sought to access the account and could not. That is consistent with the ANZ's position.
[49] Notwithstanding the different ways in which Mr Lau expressed himself, I am satisfied that he was instructed by both Mr Park and Mr Lee to put the letters containing instructions to close the accounts and release the mortgage "on hold" until Mr Park could arrange substitute security. Mr Lee had sold his interest in both businesses to Mr Park and it clear that Mr Park intended to continue to conduct the businesses. Both businesses had required overdrafts and bank guarantees were required for leases. That was not going to change. I consider it to be most unlikely that Mr Park would have agreed to pay Mr Lee for his interests in the company if he was not going to be able to have the opportunity to, in effect, refinance, through making arrangements for replacement security.
[50] That conclusion is consistent with the case that Mr Park conducted in the District Court. His claim was based upon an acceptance that he owed ANZ money because of the guarantees. At no point in that trial was it asserted that Mr Lee had been relieved of his obligations and that the ANZ did not have security. It was not until relatively shortly before this trial that Mr Lee advanced the argument that he had been released from the guarantees.
[51] It is also of importance that there was no rational explanation for Mr Lau not having complied with what, in Mr Lee's case, the instructions were. There was no reason for Mr Lau not to act and move to have the security released etc except, as I have found, that he was asked not to proceed in order that Mr Park could arrange alternative security.
[52] Mr Park did not arrange any replacement security. By the time Mr Lee became aware of Mr Park's duplicity the money which had been deposited to bring the GMG and LNY accounts into credit had been removed by Mr Park. So far as the ANZ was concerned this removal was not of great moment. These were current accounts not fixed deposit accounts. Mr Park's actions had the effect of exposing Mr Lee to the full force of the guarantees. That, combined with the request to put "on hold" the request to release the security, means that Mr Lee has no answer to the ANZ's claim.
[53] It was submitted for Mr Lee that because the ANZ had not cancelled the overdrafts the representations alleged in the Further Amended Defence and Counterclaim were misleading and deceptive. I do not need to consider this further. The request not to take action on the cancellation acts to defuse the effect of the alleged representations. In any event, the cause of the Mr Lee's loss is the conduct of Mr Park in not complying with his obligations after having been paid by Mr Lee.
[54] The ANZ has established the liability of Mr Lee under the security documents. I accept that the total amount owing under the guarantees is $227,362.79. I give judgment for the plaintiff. It is to bring in minutes of order.
Australia and New Zealand Banking Group Limited
Lee [2013] QSC 3