Bentley Capital Limited v Keybridge Capital Limited

Relief sought at trial 10 The plaintiffs relevantly sought the following relief: (1) a declaration to the effect that the resolutions passed by board of Keybridge on 10 July 2019 are valid and of full force and effect; (2) a declaration to the effect that the resolutions purportedly passed by board of the Keybridge Capital on 16 July 2019 are invalid and of no force and effect; (3) an order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) restraining Mr Patton from acting as chairperson at the meetings of members convened in accordance with the Bentley 249F Notice and ASG 249F Notice (notices of meeting as defined in communications); and (4) an order that the second, third and fourth defendants pay the plaintiffs' costs of the application. 11 Mr Patton by counterclaim sought by way of relief the following declarations: (1) that Mr Patton is the validly appointed chairperson of Keybridge Capital; (2) that the purported meeting of the board of directors of Keybridge Capital held on 10 July 2019 was not a properly convened board meeting; (3) that the meeting of the board of directors of Keybridge Capital held on 16 July 2019 was a properly convened meeting of the board of directors of Keybridge Capital; (4) that the resolutions purportedly passed on 10 July 2019 are null and void ab initio and are of no effect, alternatively, they ceased to have effect as from the passing of the resolutions at the 16 July 2019 board meeting; (5) that the resolutions passed at the 16 July 2019 meeting of the board of directors of Keybridge Capital were proper, valid and effective resolutions made by the board of directors of Keybridge Capital; and (6) that Mr Patton is entitled to be indemnified on a full indemnity basis, in accordance with cl 10.2 and cl 10.4 of the Keybridge Capital Constitution, against all losses, liabilities, costs, charges and expenses incurred by him in his defence of this proceeding (including his counterclaim), except to the extent that any losses, liabilities, costs, charges and expenses are recovered from the plaintiffs by way of a costs order against them.

Urgency of the trial 12 The hearing was listed on Tuesday, 8 October 2019 and judgment delivered on Friday 11 October 2019, the urgency caused by a meeting of shareholders scheduled for Monday 14 October 2019. I note this because it explains why the key issues were addressed for the purposes of the hearing and issues such as costs were not at that time a priority. A chairperson was required for that meeting and the question of whether it should be Mr Johnson or Mr Patton was the live issue at the time. As it happened, the parties agreed to appoint an independent chairperson for that particular meeting.

Outcome 13 As the reasons indicate (at [201]), I made the following orders and declarations: (a) the plaintiff's application for a declaration that the resolutions purportedly passed by the board of Keybridge on 10 July 2019 are valid and of full force and effect is refused; (b) the plaintiff's application for a declaration that the resolutions purportedly passed by the board of Keybridge on 16 July 2019 are invalid and of no force and effect is granted; (c) the third defendant's cross-claim for a declaration to the effect that the resolutions purportedly passed by the board of directors of Keybridge on 10 July 2019 are invalid and of no force and effect is granted; (d) the third defendant's cross-claim for a declaration to the effect that the resolutions purportedly passed by the board of directors of Keybridge on 16 July 2019 are valid and of full force and effect is refused. 14 I also observed: [202] The parties each sought additional relief. Before me they were uncertain as to whether further relief was in fact required. Having regard to my reasons and the declarations and orders proposed, I decline to make an order, as requested by the plaintiffs, restraining Mr Patton from acting as chairperson at the general meetings scheduled for 14 October 2019. I also decline to declare that Mr Patton is the validly appointed chairperson of Keybridge, a declaration he has requested. Such matters ought to now be addressed by the directors having regard to these reasons and the relevant provisions of the constitution. In any event, I understand that the issue as to who should chair the general meetings should no longer be live as the directors have (properly) resolved to appoint an independent chairperson for that purpose. There will be liberty to apply, limited to any relief sought that relates to the proposed appointment of an independent chairperson for the general meetings of the members of the first defendant scheduled for 14 October 2019. 15 The claim and counterclaim were otherwise dismissed, and I indicated I would hear the parties as to costs in due course.

Costs orders proposed 16 On this costs application, Keybridge and Mr Patton seek orders that the plaintiffs pay the costs of each of Keybridge and Mr Kriewaldt of the proceedings, and that the plaintiffs pay 80% of Mr Patton's costs of the proceedings. 17 The plaintiffs seek orders that Keybridge pay the costs of the directors of Keybridge involved in the proceedings on a solicitor-client basis, it being said that they are entitled to be indemnified for such costs by Keybridge, and that each other party bear its own costs. In the alternative, they submit that there should be no order as to costs.

Principles on costs application 18 The Court has a broad discretion under s 43(2) of the FCA Act when determining appropriate costs orders which must be exercised judicially, that is, not arbitrarily, capriciously, or so as to frustrate the legislative intent: Oshlack v Richmond River Council (1998) 193 CLR 72 at [22] (Gaudron and Gummow JJ); Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136 (Toohey J); GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No 2) Limited v Generic Partners Pty Limited (No 2) [2018] FCAFC 100 at [5]; and Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32; (2019) 268 FCR 401 at [40]-[46]. 19 While the ordinary rule is that the successful party will receive their costs, that is not an absolute rule: Oshlack at [40] (Gaudron and Gummow JJ). Success in proceedings is to be determined by the 'reality' of the circumstances involved: Oshlack at [70] (McHugh J). 20 Success or failure in proceedings in any event is to be viewed as only a starting point. As the Full Court explained in Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 (citing Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 and The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 with approval): [11] These decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs. However they contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party's conduct of the case. 21 The breadth of the discretion as to costs is reflected among other things in s 43(3)(c) and (e) of the FCA Act which respectively permit the Court to make orders that the parties bear costs in specified proportions and to award costs in favour of or against a party, irrespective of whether the party is successful in the proceeding: Umoona at [45]. 22 Other principles include that it is generally undesirable for costs orders to be drafted with complexity that require the taxation of costs of multiple parties, where the inefficiencies of that process might make it unreasonable: Umoona at [66]. 23 In this case, matters of particular relevance in the exercise of my discretion included whether the claim brought by Mr Patton was purely defensive, and whether the nature of the evidence and the proceedings was such that he should be perceived to have been the successful party.

Cross-claim not purely defensive 24 One of the live issues on the costs application was whether the cross-claim was 'purely defensive', as alleged by the defendants. 25 In my view, it was not. An inference can safely be drawn that the validity of the purported resolutions at the different meetings would have resulted in both a claim and a cross-claim regardless of which party moved first to file proceedings. 26 The position may have been different if a party had sought declarations as to the validity of the resolutions passed at the 10 July 2019 meeting immediately after the meeting: in such circumstances, it is likely that the conduct of only Mr Johnson and Mr Khan would have been in issue. However, that is not what occurred. The conduct of Mr Patton and Mr Kriewaldt, having proceeded with the meeting of 16 July 2021 and in the manner discussed in the reasons, gave rise to the potential for further claims, potential that was realised. 27 Following the July 2019 meetings, there were various communications between the parties as to who might be confirmed by consent to be the chairperson of the proposed shareholders' meeting, and seeking agreements and warranties in that regard. The parties set out their competing positions as to the preceding events in those communications. 28 On 18 September 2019 Mr Patton's lawyers wrote to the plaintiffs' lawyers relevantly stating: Unless, by 11am tomorrow (Melbourne time) we receive the agreement and warranty referred to above, we expect to be instructed to immediately make application to a Court having jurisdiction over the matters set out above for urgent relief including a declaration that Mr Patton is the validly appointed Chairperson of Keybridge and an order restraining the [shareholders' meeting] set to take place on Wednesday, 25 September 2019 from occurring. 29 On 20 September 2019 the plaintiffs' lawyers wrote to Mr Patton's lawyers relevantly reciting the dispute between the parties as to the validity of the respective meetings and resolutions and stating: Accordingly, we have been instructed to commence proceedings seeking declaratory relief to the effect that Mr Patton be restrained from acting as Chairman and that the 16 July 2019 resolutions are invalid. 30 So it can be seen that initiating litigation about purported resolutions passed at both meetings was anticipated by both camps of directors.

Neither side successful or unsuccessful 31 The catalyst for the dispute between the parties appears to have been the appointment of Mr Bolton as the CEO of Keybridge, and Mr Bolton's proposal that it enter into a confidential transaction. The respective camps did not agree as to whether there was proper disclosure to the market about the transaction. Relevantly, the Kahn/Johnson camp indicated concern as to insufficient disclosure: reasons at [84]. A request to the ASX that there be a trading halt was granted: reasons at [85]. Directors have a significant responsibility as to whether or not continuous disclosure obligations are satisfied by a listed company, and there was no reason on the materials before me to assume that the concerns were not genuinely held: see generally reasons at [18]-[20]. It followed that there was disagreement as to whether Mr Bolton should remain as CEO and it was apparent that such matters needed to be addressed by the board: reasons at [86]-[87]. 32 However, as to the manner in which the purported meetings were convened and conducted, there were reasons for criticism of both Mr Johnson and Mr Patton. I found that Mr Johnson sought to understate his knowledge where he considered it helpful to his case: reasons at [69]. As to Mr Patton, I found that: [72] Mr Patton was not a good witness. He used the opportunity in the witness box to provide a time consuming narrative of events (not all of which were relevant), coloured with gratuitous comments and opinions about others (for example, diminishing Mr Johnson's stated concerns about disclosure by asserting he 'parrots' Mr Khan) and unprompted high praise of Mr Bolton. He avoided answering questions directly. I do not consider he deliberately sought to mislead or obfuscate, but I am inevitably led to question the objectivity and accuracy of his evidence. Therefore, I have rejected aspects of his evidence, as detailed below. 33 Whilst I made no findings of dishonesty about any of the directors, I noted it was clear from having observed the witnesses give evidence that their personalities and allegiances shaped the events that led to the urgent hearing. 34 I found that Mr Khan had formulated a prospective plan which involved the removal of Mr Patton as chairperson. It was clear that he had such a plan from the fact that he prepared a draft market announcement on 3 July 2019. I accepted that Mr Khan did not know for certain whether or not he might implement his plan at the time he requested the 'quick board meeting' for 10 July 2019, but he knew that there was potential that he might deploy his plan that day. I found that Mr Johnson had some knowledge of Mr Khan's plan. Although he was not the main crafter of the plan, I considered that he breached his duties as a director by going along with the plan and not seeking to adjourn the meeting to provide proper notice to the directors. 35 However, I also found that Mr Patton and Mr Kriewaldt set about taking advantage of the meeting that was convened for 16 July 2019, and devised a plan to remove Mr Khan as alternate director without notice (so influencing the voting position), including preparing in advance a letter ready for deployment advising of his removal. I found that: [152] Clearly provoked by the actions of Mr Khan and Mr Johnson, Mr Patton and Mr Kriewaldt set about taking advantage of that meeting, and devised a plan to remove Mr Khan as alternate director without notice. That provocation does not, however, justify their actions. Mr Patton, having expressly stated in his email of 10 July 2019 sent after the meeting that any further meetings would require an agenda, chose not to disclose the proposal to move resolutions, including that relating to Mr Khan's removal, prior to the 16 July 2019 meeting. [153] On the basis of the matters discussed above in relation to Dhami, it seems to me that this is a clear case where it was not appropriate that the resolution removing Mr Khan be moved or voted upon. There was a clear and deliberate plan on the part of Mr Patton and Mr Kriewaldt to put forward the resolution. They had the letter about Mr Khan's position ready. There was concealment of that plan. It was not open to them to rely on rule 8.9(b) of the constitution when in fact the purpose for the meeting, that did not include any of the matters upon which resolutions were purportedly passed, was unequivocally notified, and they must be taken to have understood that the other directors would proceed on the basis that only the notified business was to be transacted at the meeting. There is no evidence that Mr Cato was on notice of what was proposed. He was denied the opportunity to participate himself in the meeting following the purported termination of Mr Khan's positon, or denied the opportunity to appoint a new alternate. Mr Kriewaldt's role as chair was expressly limited, and those limits were exceeded without notice. In those circumstances, Mr Patton and Mr Kriewaldt breached their duties as to the proper convening and conduct of meetings. 36 I also found that Mr Patton and Mr Kriewaldt breached their duties as to the proper convening and conduct of the meeting. Their conduct gave rise to the separate consideration of the issues relating to the removal of Mr Khan as alternate director absent any prior notice. It was open to Mr Patton and Mr Kriewaldt to conduct the meeting of 16 July 2019 in a manner that did not involve such breaches, but they did not do so. For example, in communications to the directors of Keybridge and Mr Khan after the purported meeting of 10 July 2019, Mr Patton stipulated the requirement for an agenda for any meeting after the 10 July 2019 meeting because '[t]hat is how an effective Board functions', but he did not then apply that standard to the 16 July 2019 purported meeting: reasons at [116], [123]-[124]. I also note that the resolutions proposed at the 16 July 2019 meeting went beyond simply reversing the resolutions of the meeting of 10 July 2019, seeking also the termination of Mr Khan's position as alternate director and purporting to appoint Mr Patton as an additional company secretary: reasons at [150]. 37 Having regard to those matters, it is then relevant to recall that the outcome was in effect mutual. Each relevant party succeeded in obtaining declarations as to the invalidity of the conduct of the opposing parties, but each failed to obtain declarations confirming the validity of their own. Neither party obtained the express relief they sought as to Mr Patton's position as chairperson. It follows that I reject Mr Patton's submission that he was the successful party in the litigation, a conclusion he asserted follows because he was restored as the chairperson of Keybridge. Whilst that may have been the effect of the competing resolutions being declared invalid pending the imminent shareholders meeting (which he was not to chair), to distil the issues in that manner ignores or underplays the significance of the matrix of legal issues and facts common to the competing relief sought by both parties, and fails to take into account the circumstances of the 16 July 2019 meeting.

Appropriate orders as to costs 38 This is an example where it is appropriate that there be no order as to the costs of the plaintiffs or Mr Patton. Such an order, having regard to the reality of the circumstances, best reflects the competing relief sought by the parties, their respective roles and the outcome. Each party had some degree of success and some degree of failure. Any order that purports to distinguish between the costs of Mr Patton's success as to the plaintiffs' claim and the plaintiffs' success as to defending the cross-claim and requires competing taxations would be inefficient. The order proposed to my mind has the benefit of simplicity, whilst fairly representing the outcome of the proceedings. 39 As to Mr Kriewaldt, he was a defendant in the claim brought by the plaintiffs and brought no cross-claim. As noted above, he did not participate in the proceedings (other than as a witness) and agreed to abide by the decision of the court. Keybridge also took no role in the proceedings and through separate counsel at the hearing indicated it would abide the decision of the Court. Any party-party costs incurred by those parties should in the circumstances be minimal (if any, in the case of Mr Kriewaldt). However, to the extent they have incurred any such costs, it is not a case where I consider it is appropriate that those costs should be paid by the plaintiffs. I have formed this view because the plaintiffs had some measure of success in obtaining relief with respect to the conduct and purported resolutions passed at the 16 July 2021 meeting, albeit that they also failed with respect to other relief. Keybridge and Mr Kriewaldt are not 'successful defendants' in the ordinary sense and in all the circumstances it is appropriate that there be no order as to their costs. 40 These orders do not operate to prevent Mr Johnson seeking to be indemnified by Keybridge for any costs that he has incurred, as discussed below.

The indemnity issue 41 As is apparent from the summaries of the claimed relief set out above, by his cross-claim Mr Patton also sought a declaration that he was to be indemnified on a full indemnity basis under the Keybridge constitution against all losses and costs of the proceeding. Mr Patton did not pursue that relief at any time, and it is apparent that he has already been indemnified (see below). Mr Johnson did not seek any similar indemnity at the time of the hearing, but now seeks 'the same relief' by way of his submissions relating to costs, and further, seeks indemnity from Keybridge for such costs at common law or under a directors' deed of indemnity dated 28 July 2017. It is apparent that there is a similar deed of indemnity entered into between Keybridge and each of Mr Patton and Mr Kriewaldt, and Mr Johnson says that all the relevant directors should be indemnified by Keybridge. 42 In this regard, it is useful to note the following extracts from Keybridge's 2020 Annual Report and from its notes to its consolidated financial statements: OPERATING RESULTS AND REVIEW OF OPERATIONS … • Legal fees incurred in relation to the Federal Court action brought against the Company by Bentley Capital Limited and Mr William Johnson, resulted in $240,000 being paid to external legal advisors in relation to the Company's and Mr Patton's legal expenses (pursuant to Mr Patton's directors indemnity deed). In addition, Mr William Johnson has made a claim against the Company for a further $230,000 to cover the costs of his legal expenses in bringing the unsuccessful legal action against the Company. The Company has rejected Mr Johnson's claim. As at 30 June 2020, the Company has not recognised a liability in these financial statements for Mr William Johnson's claim, however a contingent liability has been recorded in note 25; … 22. RELATED PARTY TRANSACTIONS … ii. On 26 September 2019, the Company announced that Bentley Capital Limited and Mr William Johnson had commenced proceedings against Company and certain directors, including Mr John Patton and Mr Jeremy Kriewaldt, seeking a declaration that Mr William Johnson had been properly appointed to the role as Chairman on 10 July 2019. On 11 October 2019, the Federal Court in Western Australia determined that Mr William Johnson had not been validly appointed as Chairman of Keybridge. In relation to this matter, the Company paid $230,000 to the external lawyers and counsel retained by Mr Patton under his Director's Deed. iii. In relation to the Federal Court of Western Australia matter referred to in the previous paragraph, Mr William Johnson has also made a claim against the Company for a further $240,000 to cover the costs of his legal expenses in bringing the unsuccessful legal action against the Company. The Company has sought, but not yet received, further information on this claim from Mr William Johnson, and as such no decision on the merits of this claim has been made as yet. As at 30 June 2020, the Company has not recognised a liability in these financial statements for Mr William Johnson's claim, however a contingent liability has been recorded in note 25 … 25. CONTINGENCIES … (ii) William Johnson legal claim: As announced on 21 November 2019, the Company received a claim by Mr William Johnson for indemnity for the action he unsuccessfully brought against the Company in the Federal Court of WA. The claim amounts to $240,000, to cover the legal costs incurred by Bentley Capital Limited and William Johnson, and the Company has not yet determined if he is eligible to claim this amount under the Company's director's indemnity. 43 Whilst some of those notes are inconsistent, it is apparent from them that Mr Patton's costs have been reimbursed by way of indemnity from Keybridge; that while there may have been a preliminary rejection, there has been no final rejection of an indemnity claim by Mr Johnson; that Keybridge has not yet determined whether or not it will meet an indemnity claim brought by Mr Johnson and requires additional information; and that the claim remains reported as a contingent claim. 44 It seems to me that it is premature to determine the question of indemnity raised by Mr Johnson, particularly where declaratory relief is sought. Whether or not there is an issue regarding indemnity has not as yet crystallised: see generally Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; (2020) 280 FCR 265 at [57]-[75]. 45 The claim as filed by the plaintiffs did not seek such relief. That is by no means a criticism, as the proceedings were brought as a matter of urgency in order to break a deadlock. In that context, as I have noted above, costs were not the priority. However, there may be relevant evidence that has not been evinced by the parties in light of the fact that indemnity was not sought initially, and because the orders relating to this costs application called for the exchange of any evidence 'on the question of costs of the proceedings', a phrase that without more does not suggest that any evidence relating to the construction and application of contractual or other indemnity agreements was anticipated or required. 46 Further, I note that on the face of my findings in the main action, I am not aware of any reason that would disentitle Mr Johnson from seeking to rely on the indemnity, particularly having regard to the fact that Mr Patton has been so indemnified. It is to be inferred that Keybridge considered it was obliged to indemnify Mr Patton for his costs in the circumstances of the deadlock proceedings. However, senior counsel for Mr Patton (and the first and fourth defendants for the costs application) asserted that there may be questions as to whether the indemnity responds that should be addressed separately, and that there should be an opportunity for evidence to be tested in that regard if appropriate. Counsel also pressed a submission that new proceedings should be instituted by Mr Johnson to assert any right to indemnity. 47 To my mind the sensible and efficient manner in which the matter should proceed, having regard to the overarching purpose of civil practice and procedure provisions of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (s 37M of the FCA Act), is as follows: (a) the orders as to the costs of the proceedings having now been determined by these reasons, the parties should confer as to Mr Johnson's claim to be indemnified for costs by Keybridge; (b) if that matter is not resolved and a determination of the Court is required, it is open to the plaintiffs to seek leave to re-open or amend their claim in this matter so as to seek further relief relating to any indemnity for costs from Keybridge; and (c) upon any such application being filed, there will be a case management hearing to determine the manner in which the application is to proceed. 48 There will be orders accordingly. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.