Australia and New Zealand Banking Group Ltd v Westpac Banking Corp

Background

1. Jobema was incorporated in 1969, and Jobema Investments in 1991. Together with other companies which comprise the Jobema group of companies, they were established by the plaintiff's father Edward Zacaropoulos, who had three children: John, Beatrice and Madeline. Each of the children held shares in Jobema and in Jobema Investments; Jobema was also a shareholder in Jobema Investments. The plaintiff held 10,953,200 of 34,612,113 issued ordinary shares in Jobema, equivalent to 31.65%. For ease of comprehension, and without intending any undue familiarity or disrespect, I shall refer to the family members by their first names.
2. Until shortly before his death in 2015, Edward conducted the affairs of the Jobema companies, as if they were his own. He made every decision as to their operations, the businesses they conducted, the allocation of shares and the declaration of dividends - including which entity declared such dividends, and the manner in which they were recorded in the company's ledgers. The defendants do not eschew, but embrace, that position. According to the evidence of their former bookkeeper Mr Messih, the invariable practice that applied in respect of dividends, at least from the year 2000, was that: 1. Edward made all the decisions as to the payments to be made to various family members who would, from time to time, request money; 2. payments made directly to shareholders were recorded in their respective distribution ledger accounts; 3. Edward's grandchildren had relatively small shareholdings in Jobema, and for that reason, payments made to the grandchildren (being the children of a shareholder) were allocated to their respective parent's ledger accounts. Thus payments made to any of the plaintiff's three children were debited to her ledger account; 4. Edward arranged for the preparation of his children's tax returns, and Jobema paid any tax owing as a result of the declared dividends. These tax payments were recorded as distributions in the shareholder ledger accounts; and 5. at the end of each year, there was a "balancing" or "evening out" exercise which resulted in a number of transfers from the ledger accounts of some shareholders, to the accounts of others.
3. The Plaintiff claims that she has not been paid the whole of the amounts of dividend declared by Jobema in her favour through the financial years 2011-2015, although she admits having received some of the declared dividends.

FY2011

1. Jobema's minutes of directors' meetings, which were provided to the plaintiff on 14 August 2017, record a resolution declaring a dividend for the year ended 30 June 2011, of $0.02577 per share to holders of ordinary shares. The plaintiff's total entitlement in respect of her 10,953,200 shares was $282,318. That declaration of dividend is reflected in Jobema's company tax return for the year ended 30 June 2011, which records a dividend to the plaintiff of $282,318, and a franking credit of $120,993. On 30 June 2011, the sum of $282,318 was credited to the plaintiff's ledger account in the books of Jobema. The plaintiff's individual income tax return for the year ended 30 June 2011 - which was prepared by Jobema's accountants and on Jobema's instructions - records income by way of dividends from Jobema of $282,318, and a franking credit of $120,993.
2. In Schedule A of the originating process - which the plaintiff says she prepared without the benefit of any ledgers - she gave credit for $174,270 which she calculated as the amount she had in fact received in FY2011. However, the ledger and Mr Messih's calculations, which the plaintiff accepts as being accurate, show that she was paid only $172,000 (comprising monthly payments of $8,000, totalling $96,000, and "extras" of $76,000). According to the evidence of Mr Messih, and the ledger, a further $38,136.20 was paid on her behalf to the Tax Office. If, as is at least arguable, that was a payment for the benefit of the plaintiff, then the total paid to or for the benefit of the plaintiff was $210,136.20. This leaves a shortfall in payments to her of declared dividend of $72,181.80, which was substantially reflected in the closing credit balance as at 30 June 2011 in the plaintiff's ledger account, of $79,186.51.

FY2012

1. There is not in evidence any direct evidence of a resolution of directors declaring a dividend for 2012. However, Jobema's company tax return for the year ended 30 June 2012 records a dividend to the plaintiff of $427,023, and a franking credit of $183,010. On 30 June 2012, the sum of $427,022.87 was credited to the plaintiff's ledger account in the books of Jobema. The plaintiff's individual income tax return for the year ended 30 June 2012 - again, prepared by Jobema's accountants and on Jobema's instructions - records income by way of dividends from Jobema of $427,023, and a franking credit of $183,009. Thus while there is no direct evidence of a resolution of directors declaring a dividend for 2012, the other documentary evidence in respect of that year, in the context of that for each of the other relevant years referred to above and below, makes manifestly clear that a dividend was declared, in respect of which the plaintiff's entitlement was $427,023.
2. In Schedule A of the originating process, the plaintiff gave credit for $134,000 which she calculated as the amount she had in fact received in FY2012. However, the ledger and Mr Messih's calculations, which the plaintiff accepts as being accurate, show that she was paid only $133,901.33. According to the evidence of Mr Messih, and the ledger, a further $18,853.60 was paid on her behalf to the Tax Office. If, as is at least arguable, that was a payment for the benefit of the plaintiff, then the total paid to or for the benefit of the plaintiff was $152,754.93. This leaves a shortfall in payments to her of declared dividend of $274,268.07.
3. However, as at 30 June 2012, the plaintiff's ledger account was "zeroed" by transfers to "EZ" of $277,705, "JZ" of $74,551, and "MM" of $4,197.59. This had the consequence that in Jobema's financial statements for the financial year ended 30 June 2012, the plaintiff did not appear as a creditor.

FY2013

1. Jobema's minutes of directors' meetings record a resolution declaring a dividend for the year ended 30 June 2013, of $0.05316 per share totalling $1,840,000. [3] The plaintiff's total entitlement in respect of her 10,953,200 shares was $582,278. Jobema's company tax return for the year ended 30 June 2013 records a dividend to the plaintiff of $582,278, and a franking credit of $249,548. On 30 June 2013, the sum of $582,278.46 was credited to the plaintiff's ledger account in the books of Jobema. The plaintiff's individual income tax return for the year ended 30 June 2013 - yet again, prepared by Jobema's accountants and on Jobema's instructions - records income by way of dividends from Jobema of $582,278.46, and franking credits of $249,547.91.
2. In Schedule A of the originating process, the plaintiff gave credit for $130,000 which she calculated as the amount she had in fact received in FY2013. However, the ledger and Mr Messih's calculations, which the plaintiff accepts as being accurate, show that she was paid only $120,000. According to the evidence of Mr Messih, and the ledger, a further $112,619.20 was paid on her behalf to the Tax Office. If, as is at least arguable, that was a payment for the benefit of the plaintiff, then the total paid to or for the benefit of the plaintiff was $232,619.20. This leaves a shortfall in payments to her of declared dividend of $349,659.26.
3. However, there appears in the ledger as at 30 June 2013 a debit entry "Loan Beatrice" in the amount of $349,659.26, which had the effect of "zeroing" the account. Further details of the transaction are not provided in the ledger, but in his affidavit Mr Messih explains that the end of year adjustments for that year involved transfers to Edward Zacaropoulos ($295,845), John Zacaropoulos ($102,596), Paul Foran ($79,112), James Foran ($44,699) and Daniel Thistleton ($81,645), which were funded in part by transfers from Madeleine Mullaney ($204,118) and Lisa Foran ($50,121). By deduction, that leaves $349,658 funded by the plaintiff's account. There is no suggestion that the plaintiff received that sum. As a result, in Jobema's financial statements for the financial year ended 30 June 2013, the plaintiff again did not appear as a creditor.

FY2014

1. Jobema's minutes of directors' meetings record a resolution declaring a dividend for the year ended 30 June 2014, of $0.05692 per share, totalling $1,970,000. [4] The plaintiff's total entitlement in respect of her 10,953,200 shares was $623,417. Jobema's company tax return for the year ended 30 June 2014 records a dividend to the plaintiff of $623,417, and a franking credit of $267,179. On 30 June 2014, the sum of $623,417.70 was credited to the plaintiff's ledger account in the books of Jobema. The plaintiff's individual income tax return for the year ended 30 June 2014 - once again, prepared by Jobema's accountants and on Jobema's instructions - records income by way of dividends from Jobema of $623,417.70, and franking credits of $267,179.01.
2. In Schedule A of the originating process, the plaintiff gave credit for $140,000 which she calculated as the amount she had in fact received in FY2014. However, the ledger and Mr Messih's calculations, which the plaintiff accepts as being accurate, show that she was paid only $120,000. According to the evidence of Mr Messih, and the ledger, a further $125,657.60 was paid on her behalf to the Tax Office. If, as is at least arguable, that was a payment for the benefit of the plaintiff, then the total paid to or for the benefit of the plaintiff was $245,657.60. This leaves a shortfall in payments to her of declared dividend of $377,760.10.
3. However, in the ledger as at 30 June 2014, there are recorded seven "transfers between members" - of $271,563 to "EZ", $46,031 to "PAUL", $121,963 to "JAM", $138,519 to DAN", and $37,555 to "LISA", and of $76,407 from "JZ", and $161,465 from "MM". The net of these is $377,759, with the consequence that, once again, in Jobema's financial statements for the financial year ended 30 June 2014, the plaintiff did not appear as a creditor.

FY2015

1. Jobema's minutes of directors' meetings record a resolution declaring a dividend for the year ended 30 June 2015, of $0.0773 per share, totalling $2,675,000. The plaintiff's total entitlement in respect of her 10,953,200 shares was $846,518.96. Jobema's company tax return for the year ended 30 June 2015 records a dividend to the plaintiff of $846,519, and a franking credit of $362,794. On 30 June 2015, the sum of $846,518.96 was credited to the plaintiff's ledger account in the books of Jobema. The plaintiff's individual income tax return for the year ended 30 June 2015 - prepared by Jobema's accountants and on Jobema's instructions - records income by way of distributions from Jobema of $846,518.96, and franking credits of $362,793.84.
2. In Schedule A of the originating process, the plaintiff gave credit for $143,500 which she calculated as the amount she had in fact received in FY2015. However, the ledger and Mr Messih's calculations, which the plaintiff accepts as being accurate, show that she was paid only $137,643.20. According to the evidence of Mr Messih, and the ledger, a further $164,121.30 was paid on her behalf to the Tax Office. If, as is at least arguable, that was a payment for the benefit of the plaintiff, then the total paid to or for the benefit of the plaintiff was $301,764.30. This leaves a shortfall in payments to her of declared dividend of $544,754.66.
3. However, there are then recorded in the ledger as at 30 June 2015, transfers from "JZ" of $239,224, Madeleine of $343,987 and Lisa of $1,262, and to "TOMBONDA" of $119,891, "PAUL" of $107,340, "JAMES" of $600,210, "DANIEL" of $103,510, and "EZ" of $198,276. The net impact of these was $544,754, so that, yet again, in Jobema's financial statements for the financial year ended 30 June 2015, the plaintiff did not appear as a creditor.

Quantification

1. The plaintiff originally claimed $3,223,305, said to be "franked dividends", and apparently comprising so much of the declared dividends as was not paid to her (including the amounts paid to the Tax Office), and the franking credits. However, at least for the purposes of the present application, the plaintiff accepted that a franking credit is not a debt due and payable to the plaintiff by Jobema, and that the only amounts that could be debts are the dividends as declared. And, as has been noted, the plaintiff accepted that she at least arguably had to give credit for tax paid on her behalf. Thus, at least for present purposes, the plaintiff received, by way of actual payments to her ($683,544.53) or for her benefit to the Tax Office ($459,387.90), a total of $1,142,932.43, leaving an unpaid shortfall of $1,618,623.69, which is the adjusted principal amount of the plaintiff's claim. That shortfall is represented by payments to her three children, which were debited to her ledger account, and other internal transfers from her ledger account to other ledger accounts.

The suggested defences

1. Any dividend declared in respect of the plaintiff's 31.65% shareholding in Jobema - and there is no suggestion that she was otherwise than beneficially entitled to those shares - became a debt due and payable to her. The amount of a declared dividend becomes a debt owing to each shareholder as from the time of making the declaration, or from a later date on which the dividend was to be paid in accordance with the declaration. [5] Although the company does not incur debt merely by fixing the amount of time for payment of the dividend, and the debt only arises when the time fixed for payment arrives, and the decision to pay the dividend may be revoked at any time before then, [6] if the company has a constitution which provides for the declaration of dividends, it remains the case that the company incurs a debt when the dividend is declared. [7] Here it matters not, as a debt was created at the very latest when the dividend was credited, each year on 30 June, to the plaintiff's loan account. Once that debt was created, it could be dealt with only by the plaintiff shareholder or with her authority.
2. The Plaintiff says she did not know of let alone authorise the transfers - either to her children or to others - out of her ledger account, and there is no evidence, or indication of any evidence, that she did. The plaintiff's evidence that she did not authorise those payments or internal transfers is consistent with the evidence adduced on behalf of the defendants, which was to the effect that these transactions were implemented at the direction of Edward, and with the acquiescence of director John Zacaropoulos, director James Alexander Foran, internal financial controller and bookkeeper Edward George Messih, and external accountant Ian Bruce Edenborough. None of them advances any suggestion that notice was given to the plaintiff, or that her authority or approval was obtained, for the transactions conducted on her loan account. Not only is the plaintiff's evidence that she did not know of or authorise the use of money to which she was entitled in this way inherently credible, but it was also uncontradicted and unchallenged.
3. Jobema contends that there is an arguable defence that the plaintiff is estopped, by convention, from denying the distribution practices implemented by Edward over at least 15 years up to 2015. It is said that the plaintiff had admittedly received income from the Jobema group since at least 2002, and there is no evidence that she ever queried or questioned the basis upon which she or her children received money from her father, nor how her income tax was paid; and that she was entirely content to acquiesce in her father's governance of the companies and the receipt of funds by her and her family while he lived, the issue having been raised only since Edward's death.
4. Where parties have conducted their affairs on the basis of a common assumption, knowing or intending the other to act on that basis, one may be precluded by estoppel from departing from that assumption, if to do so would cause detriment. [8] To found such a conventional estoppel, it is necessary to establish (1) that the party asserting an estoppel has adopted an assumption as to the terms of its legal relationship with the other party; (2) that the other party has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the first party. [9]
5. Jobema says that the relevant assumption was Edward's practice in using Jobema as a vehicle to facilitate payments to his family members and account for those payments as he saw fit - which included the payment of income taxation liabilities for the plaintiff's benefit, ascribing to her ledger the distributions made to her children, and making adjustments as he thought fit by accounting entries in Jobema's books. It is said that allowing the plaintiff to depart from that convention would occasion two forms of prejudice to Jobema.
6. The first is that the death of Edward - the founder and former controller of Jobema, who was solely responsible for fiscal decisions including the dividend policy and accounting treatment - before the institution of proceedings, deprives Jobema of his evidence, including as to relevant conversations and the convention adopted between him (for Jobema) and the plaintiff. That is not relevant prejudice: it is prejudice occasioned, if at all, by delay in instituting proceedings, not by denying the alleged assumption. It is not suggested that the proceedings offend any limitation period.
7. The second is that the company no longer has, but has parted with, the funds the plaintiff is belatedly claiming, and that the money claimed has been paid out to the plaintiff's children or other transferees. I would accept that if indeed there were a common assumption sufficient to found an estoppel, Jobema's reliance on it by paying to the plaintiff's children (and others) money which the plaintiff now claims would at least arguably amount to sufficient detrimental reliance to support an estoppel.
8. However, I do not accept that there is a tenable argument that the other requisite elements of conventional estoppel can be established. The declarations of dividends created, and were intended to create, legal rights. That intention is reflected in the circumstance that they had taxation consequences for the company, and for the plaintiff, and were duly recorded in Jobema's books. To found an estoppel it would be necessary to show, not merely that the plaintiff was content to receive whatever distributions her father might cause Jobema to make to her, but that she assumed that he would at his whim cause Jobema to divert dividends declared in her favour, and to which she was legally entitled, to others without her knowledge or consent. There is nothing in the evidence so far adduced to suggest that the plaintiff knew of, let alone acquiesced in, the diversion of her dividend debts to her children, or the other "adjustments" to her loan account. Because of the end of year adjustments, the financial statements for the relevant years (at least after 2011) never recorded her as being entitled to money on loan account. That she may have been content to leave her father to conduct the affairs of the company as he pleased, and to accept without question whatever she received, does not amount to an assumption on her part that Edward and Jobema would divert her legal entitlements, once they were created. Unquestioning acceptance of what she in fact received, does not begin to show that she knew or intended that Edward and Jobema would act on the basis that her legal entitlements could be diverted to others. If Edward and Jobema assumed that they would and were entitled to act on that basis, there is nothing to show that the plaintiff entertained, or acted on, any such assumption.
9. Jobema submits that the plaintiff's evidence has not yet been tested, and that it will be a matter for evidence at final hearing as to whether she was aware of the tax payments made on her behalf or the transfers made to her children, and that these are matters for cross-examination which cannot be determined on this interlocutory application. So far as the tax payments are concerned, as has been pointed out, at least for present purposes the plaintiff concedes that they are at least arguably a benefit for which she must give credit. So far as the payments to her children (and others) are concerned, no evidence adduced on behalf of the defendant points to her having any such knowledge. And even if she had knowledge that they received payments from Jobema, that would not amount to knowledge of the essential matter, namely that money owed as a debt to her was being diverted for that purpose - knowledge which she has denied, without contradiction or challenge. No application was made for leave to cross-examine her on that (or any other) matter. I do not accept that an arguable defence of conventional estoppel is established by the defendant, without pointing to any evidentiary basis for supposing that the defence exists, simply saying that the plaintiff's evidence is untested and that this is an interlocutory application, without even seeking leave to cross-examine. The possibility that cross-examination might show that she knew that money to which she was entitled was being used to make payments to her children is no more than speculative; there is no basis in the currently available evidence for it; no attempt was made to put it to the plaintiff; and in those circumstances it is proper to conclude that there is no real prospect of its being established.
10. Jobema also says that there is an arguable defence of payment by mistake of fact, on the basis that the payments to the plaintiff's children and other adjustments out of her dividends were made under the belief that she acquiesced in Edward's distribution of dividends declared in her favour in this way, which belief would be mistaken if the plaintiff were now permitted to assert the contrary. However, this argument suffers from a number of defects. First, mere silence is a tenuous, though not impossible, basis for inferring acquiescence in the unilateral acts of diversion of the plaintiff's legal entitlements in respect of the declared dividends. Secondly, it becomes impossible in the absence of knowledge on the part of the plaintiff that it was being done - and there is no basis in the evidence for supposing that there is any reasonable prospect of that being established. Thirdly, although Jobema invokes the principle, stated in Australia and New Zealand Banking Group Ltd v Westpac Banking Corp, [10] that receipt of a payment which has been made under a mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment, that would impose an obligation on those who received the transfers - not on the plaintiff, who did not.

Conclusion

1. There is ample evidence, summarised above, of the facts on which the claim is based, and in particular that between 2011 and 2015 dividends totalling $2,761,556.12 were declared in favour of the plaintiff, resulting in a debt due to her; that after giving credit for actual payments to her of $683,544.53 and payments on her account to the Tax Office of $459,387.90 (a total of $1,142,932.43), there was a shortfall of $1,618,623.69; and that the plaintiff did not know of or authorise payment of that money to her children, or other in-house transfers of it. The plaintiff has given evidence that she does not believes that Jobema has any defence to her (initial) claim for $3,223,305, and while it is now conceded that there is at least an arguable defence to part of the initial claim, as to the amount of $1,618,623.69 her evidence was unchallenged. In my judgment, the suggested defences of conventional estoppel and mistake of fact have no real prospects of success. The plaintiff is entitled to summary judgment for $1,618,623.69, and interest, which should run from the dates on which the distributions ought to have been made to her, namely 30 June of each of the years in question.
2. Interest on $72,181.80 from 30 June 2011 to the date of judgment is $32,969.78. Interest on $274,268.07 from 30 June 2012 to the date of judgment is $101,925.19. Interest on $349,659.26 from 30 June 2013 to the date of judgment is $104,621.17. Interest on $377,760.10 from 30 June 2014 to the date of judgment is $81,452.65. Interest on $544,754.66 from 30 June 2015 to the date of judgment is $162,995.46. Total principal is $1,618,623.69, and total interest is $483,964.25. The total judgment inclusive of interest, to take effect from today, is therefore $2,102,587.94, and pursuant to UCPR r 13.1 there will be judgment for the plaintiff against the first defendant for that sum.
3. The court: 1. Gives judgment, pursuant to UCPR r 13.1, that the first defendant pay the plaintiff the sum of $2,102,587.94. This judgment takes effect on 7 June 2018; 2. Orders that the first defendant pay the plaintiff's costs of the interlocutory process filed on 5 October 2017; 3. Orders that the balance of the proceedings continue on pleadings, and that the plaintiff file and serve a statement of claim within 28 days, and that pleading thereafter continue in accordance with the rules; 4. Orders that the proceedings be adjourned to 6 August 2018 in the Corporations Judge directions list for further directions.

Endnotes

1. UCPR r 13.1.
2. (2010) 241 CLR 118; [2010] HCA 28.
3. The resolution in fact refers to 53.16c per share, but the intent is clear from the stated total of $1,840,000, which is consistent with the other documentation referred to.
4. The resolution refers to $56.92 per share, but the intent is clear from the stated total of $1,970,000, which is consistent with the other documentation referred to.
5. Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 at 572; [1977] HCA 59.
6. (CTH) Corporations Act 2001, s 254V(1).
7. Corporations Act, s 254L(2).
8. Waterman v Gerling Australia Assurance Co Pty Limited (2005) 65 NSWLR 300; Moratic Pty Ltd v Gordon [2007] NSWSC 5; Ell v Ell [2015] NSWCA 38; see also Dixon v Blindley Health Investments Ltd [2015] EWCA Civ 1023.
9. Waterman v Gerling, [83], [96]; Moratic v Gordon, [32].
10. (1988) 164 CLR 662 at 673; [1988] HCA 17 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2018