The plaintiff, Broadway Plaza Investments Pty Ltd (Investments) commenced these proceedings against the defendant, Broadway Plaza Pty Ltd (Plaza), by summons filed in Court on 21 September 2016.
On about 27 December 2011, Investments and Plaza formed a partnership for the purposes of developing a property at Punchbowl in this State. There was no written partnership agreement. The objective of the partnership was for Investments to manage design and construction of a shopping centre and 148 residential apartments, and for Plaza to manage the leasing of the centre. Profits were to be split equally.
To finance the project, a loan was obtained from Commonwealth Bank of Australia (CBA).
Mr Fouad Deiri has at all times been the sole director of Investments, and Mr Moustafa Sayour has been the sole director of Plaza. Plaza's partnership dealings were conducted principally under a power of attorney granted to Mr Sayour's son, Mr Jamil Sayour. Jamil Sayour passed away in October 2015.
Construction of the shopping centre was completed in about December 2013. After completion, the residential apartments were sold in about November 2014. Following the sale of the apartments, the loan made by CBA to fund the construction of the apartments was repaid. The surplus of approximately $18,690,000 was distributed to Investments and Plaza.
It is Investments' position that these distributions were made in accordance with Jamil Sayour's instructions. After Jamil's death, Moustafa Sayour asserted that Plaza did not receive its share of the partnership profits, and that Jamil did not have authority to direct the distribution of the profits. It is sufficient to note that the relationship between the partners broke down.
On 18 December 2015, a solicitor then acting for Plaza sent a letter to CBA alleging that there had been unauthorised debits from the partnership's bank account with CBA. That is the account from which interest and fees payable by the partnership to CBA under the loan facility were debited. By the solicitor's letter, Plaza directed that all further transactions on the account must be specifically authorised by Plaza with the exception of the existing regular commercial loan repayments.
In late December 2015, CBA 'froze' the partnership account, save that it continued to deduct payments due on account of quarterly interest and monthly line fees payable by the partnership in respect of the CBA facility.
As at that date, and all subsequent times until the CBA facility was repaid, it was fully drawn to the sum of $34,300,000.
In January 2016, as a consequence of the dispute between Investments and Plaza, the manager of the shopping centre ceased paying rental receipts received from tenants into the partnership account, and instead held those receipts less outgoings awaiting joint instructions from Investments and Plaza.
Broadly, until June 2016 the partnership account had sufficient funds to meet interest and line fees claimed by CBA under the CBA facility. By early July 2016, the funds deposited to the partnership account prior to January 2016 had been exhausted and the account was overdrawn. That circumstance led to the transactions that are the subject of the present application, to which I will return below.
By its summons filed on 21 September 2016, Investments sought a declaration concerning the creation of the partnership, a declaration that the partnership was dissolved on 21 December 2016 by Investments giving notice to that effect, or in the alternative an order by the Court that the partnership be dissolved. Additionally, Investments sought an order that the partnership be wound up under the direction of the Court and that a receiver and manager be appointed to the assets and undertaking of the partnership. Investments sought orders for the taking of accounts.
On 29 September 2016, Hallen J made orders as sought by Investments in its summons, and in particular made the following orders:
3. Orders that the Partnership be wound up under the direction of the Court and that Brett Stephen Lord be appointed as receiver and manager to the assets and undertaking of the Partnership (Receiver), including the Property without security.
4. Orders that the Receiver to have all powers prescribed by s. 420(1) and (2)(a) to (m) and (o) to (r) of the Corporations Act 2001 (Cth) as if references in that section to corporation were references to the Partnership.
5. Orders that without limiting order 4, that the Receiver have the following powers:
a. To take possession of, collect and get in the assets (including any book debts) of the Partnership;
…
d. To sell the assets and undertaking of the Partnership;
…
g. To pay and apply the net proceeds of sale of the assets of the Partnership to discharge the present obligations of the Partnership to its creditors;
…
6. Notes that the defendant disputes the alleged liability of the partners to the Commonwealth Bank of Australia.
7. Orders that an account be taken of all the dealings and transactions of the Partnership and of the plaintiff and the defendant in relation to the Partnership.
…
For completeness I should record that on 19 December 2016, Plaza filed a cross summons in which it joined CBA as a cross defendant and sought a declaration that the partnership was not indebted to CBA. For the purpose of the present application it is not necessary to consider the course of the cross claim.
Mr Lord, who I will call the receiver, has sold the shopping centre, repaid the remaining amount of the CBA facility claimed by the CBA, and as at 1 September 2017 held a surplus of $5,564,905.36. As I understand the position, subject to the receipt of investment income, payment of the receiver's costs in the future, and the possible receipt of additional funds from the purchaser of the shopping centre, the amount of $5.56 million will remain available to be distributed to the partners, or to provide a fund that will be available to apply towards any obligation that either partner may be found to owe to the other as a result of these proceedings or the taking of the accounts.
As by early July 2016 the funds in the partnership account had been exhausted, the issue arose as to how the partnership could continue to fund CBA's demands for interest and line fee payments. Mr Deiri caused companies that were controlled by him, being Deicorp Constructions (NSW) Pty Ltd (now called Deicorp Pty Ltd) (Constructions) and Combined Projects Holdings Pty Ltd (Holdings) to pay sums of money into the partnership account as follows:
Payment No. Payment Date Payer Amount ($)
1 6 July 2016 Holdings 80,000
2 29 July 2016 Holdings 50,000
3 2 September 2016 Constructions 130,000
4 9 September 2016 Constructions 185,000
5 23 September 2016 Constructions 55,000
Total 500,000
[3]
The money paid by Holdings and Constructions into the partnership account was used to pay amounts claimed by CBA, and recognised by Investments, as being due under the CBA facility. While I note Plaza's reservation recorded by Hallen J in par 6 of the orders made on 29 September 2016 that it disputed the alleged liability of the partners to CBA, it is clear that until such time as Plaza succeeds in obtaining a judicial determination that the CBA facility was invalid, or should be set aside, CBA would have taken the stance that its rights under the CBA facility were enforceable. In principle, those rights would include any security rights that CBA had over the shopping centre before its sale.
Mr Deiri gave evidence that he caused Holdings and Constructions to pay the moneys into the partnership account to service the partnership's obligations to CBA and to avoid further default. Even on an application such as the present, where the Court is not called upon to make findings of fact, I have no doubt in accepting that Mr Deiri caused the payments to be made for the stated purpose.
An issue arose at the hearing as to whether Mr Deiri caused the payments to be made for the benefit of the partnership or for the benefit of himself and companies controlled by him, who may have suffered as a result of breaches of collateral agreements with CBA or as a result of the destruction of the commercial relationship with that bank. No doubt, as Mr Deiri was rightly confident that Plaza would not contribute additional funds to meet the partnership's obligations to CBA, Mr Deiri acted primarily in his own interests and in the interests of his companies. However, Investments' interest in the partnership and its assets were inseparable from those of Plaza, so for Mr Deiri to act in his own interests he necessarily had to act in the interests of the partnership and Plaza.
Mr Deiri also gave evidence of a conversation that he had with his companies' internal accountant that had the effect that the payments made by Constructions and Holdings would be made by way of loan. The character in which the payments were made is an issue of contention on the present application.
On 3 November 2016, Slattery J ordered that the receiver was justified in paying to CBA out of the assets of the partnership the monthly line fees and quarterly interest due to CBA in respect of the CBA facility. Those payments were subsequently made by the receiver until the discharge of the CBA facility.
Further, on 27 January 2017, Lindsay J ordered that the receiver was justified in entering into and completing a contract for the sale of the shopping centre. Following settlement of that contract on 30 March 2017, the receiver applied the sum of $34,300,000 in satisfaction of the partnership's indebtedness to CBA under the CBA facility. The receiver now holds the surplus referred to above.
On 8 March 2017, the solicitor who now acts for Investments sent a letter to the solicitor for the receiver alleging that the payments made by Holdings and Constructions were loans made to the partnership which ought to be repaid by the receiver out of the surplus funds held. Each of Holdings and Constructions served written demands on the receiver for payment of the alleged debts on 9 March 2017.
In correspondence, Plaza advised the receiver that it objected to any payment being made to Holdings and Constructions, on the basis that those companies' claims are "matters of substantial controversy" and that the companies should look to Investments for repayment. Investments advised the receiver that it supported the repayment of the debts to Holdings and Constructions out of the surplus.
As Plaza did not consent to the receiver paying the moneys claimed by Holdings and Constructions from the surplus held by him, on 1 September 2017 the receiver filed a notice of motion in which he sought the following orders:
1. A direction as to whether, in all the circumstances, the Receiver of the Partnership … is justified in applying the proceeds from the realisation of the assets of the Partnership in the amount of $500,000 in repayment of the Claimed Funds … to [Constructions] and [Holdings].
2. In the alternative to order 1 above, directions as to the appropriate means of finally determining the claim by [Constructions] and [Holdings] to the Claimed Funds as a loan made to the Partnership, which claim is accepted by the plaintiff and disputed by the defendant.
3. An order that the costs of this motion be a cost in the receivership and management of the Partnership.
These reasons for judgment concern the issues raised by the receiver's notice of motion, for which a hearing took place on 22 November 2017.
At pars 52 to 55 of his 1 September 2017 affidavit in support of his notice of motion, after setting out fully the relevant background facts and correspondence, the receiver explained the basis of his "preliminary view" that the amounts claimed by Constructions and Holdings "appear to be valid loans" and that he was "authorised, if not required" to repay the loans. In essence, the receiver noted the effect of the business records that were produced to record the payments made by Constructions and Holdings, the affidavit evidence of Mr Deiri referred to above, and concluded that the better view was that he was obliged to repay the loans, notwithstanding some apparent tension between the contemporaneous business records and certain subsequent statements made by Mr Deiri and his solicitor.
At the hearing, Investments maintained its support for the Court giving the directions sought by the receiver in par 1 of his notice of motion.
Plaza resisted that course, and argued that the Court was obliged to decline to give the direction, and instead as sought in par 2 of the notice of motion, submitted that the Court should make directions that had the effect of inviting Constructions and Holdings to come into the proceedings by notice of motion in which they sought orders declaring that the partnership was indebted to them and that the amounts of the debts be repaid. The Court could then make directions for the filing of points of claim and defence and for the preparation of the matter for hearing.
The resolution of this dispute should be considered in the context that on 29 September 2016 the Court made orders including that in par 6(g) that empowered the receiver to discharge the present obligations of the partnership to its creditors out of the net proceeds of sale of the assets of the partnership. The granting of that power by the Court to the receiver was not made solely for the benefit of the partners. The fact of the dissolution of the partnership is capable of imposing substantial hardship and inconvenience on the partnership's creditors, who may not be paid in due course by reason of the dissolution even if the partnership has assets to meet its obligations. It is a positive purpose of the Court granting this power to the receiver that it will be exercised in a timely way for the benefit of the partnership's creditors in ensuring that the debts due to them are paid.
This consideration does not justify the Court in ignoring genuine disputes between former partners as to whether debts claimed by creditors are payable, but it does justify the Court approaching the issue on the basis that it is a positive good that a receiver pay the claims of creditors when the balance of the available evidence suggests that the claims are valid, and that the Court insist that any former partner who appears to resist judicial advice sought by a receiver that he or she is justified in paying a creditor must demonstrate a real and genuine basis for doubting that the debt is due and payable before it declines to give the advice that is sought by the receiver.
There was no dissent from the proposition that the Court has power in an appropriate case to give advice and direction to a court-appointed receiver: see Glazier Holdings Pty Ltd v Australian Men's Health Pty Ltd [1998] NSWSC 144. In Mariconte v Batiste (2000) 48 NSWLR 724; [2000] NSWSC 288 Austin J said:
[74] Case law on the position of a court-appointed receiver gives only limited guidance as to the circumstances in which it is appropriate for the Court to give directions with respect to the execution of the receiver's responsibilities. There is, of course, a great deal of case law with respect to judicial advice to a trustee. Some of it is no doubt applicable to the position of a receiver. For example, in Re I00F Australian Trustees Ltd [1999] SASC 461 Debelle J drew attention to the distinction between ruling as to the propriety of the trustee's contemplated exercise of discretion, and ruling as to the wisdom of such exercise. That distinction must be borne in mind, in my opinion, in the present circumstances.
[75] The position of a court-appointed receiver was explored by Young J in Glazier Holdings Pty Ltd v Australian Men's Health Pty Ltd (Supreme Court of New South Wales, 30 April 1998, unreported). His Honour referred to English authority to the effect that receivers are like officers of the Court, and he cited with approval some observations in Davis v Gray (1872) 83 US 203, 217-218 which described a receiver as 'virtually a representative of the Court, and of all the parties in interest in the litigation wherein he is appointed'. That being so, in my opinion the Court's power to make an interlocutory order for the appointment of a receiver under the Supreme Court Act, 1970 (NSW) must carry with it the implied power to give directions with respect to the discharge of the functions for which the appointment is made - at any rate, where (as here) such directions are necessary in a practical sense to enable the receiver to carry out those functions without exposing himself to a real risk of litigation. The power to do so is reinforced by s 23 of the Supreme Court Act.
[76] Where a receiver is appointed under statutory provisions, the function of the Court on an application for directions is analogous to its function with respect to a provisional liquidator: Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115; Law Society of New South Wales v Milios (1999) 33 ACSR 396. In performing that function, it is appropriate for the Court to give directions in order to provide guidance to the receiver, not only on matters of law but also on the propriety or reasonableness of the contemplated exercise of discretion.
I respectfully adopt Austin J's formulation of the Court's power to give advice and direction to a receiver who has been appointed by the Court.
While Plaza accepted the power of the Court to give the receiver advice and direction in principle, it submitted that the present was not an appropriate case for the Court to exercise that power. First, Plaza pointed to the fact that there was a controversy between itself and Investments concerning whether the payments made by Holdings and Constructions into the partnership account were loans by those companies, or whether their true characterisation was as contributions of capital by Investments. Plaza also submitted that it was relevant to the issue of whether the moneys should be repaid out of partnership assets that Plaza had not only not authorised the receipt of the money by the partnership and its payment to CBA, but Plaza had positively refused its authority. Secondly, as a point of procedure Plaza submitted that the Court was being invited to make findings of fact to the effect that the Partnership was indebted to Holdings and Constructions, and that was a course that was inappropriate on an application for judicial advice or direction. Thirdly, Plaza submitted that judicial advice and direction should only be given on the basis of a clear statement of facts put before the Court by the receiver, and that course had not been followed in the present case, where the receiver indicated what his own view of the evidence was and then put that evidence before the Court.
For the reasons that follow, I propose to give the receiver the advice and direction that he seeks, and for that purpose I will make an order as sought in par 1 of the notice of motion, by directing that the receiver is justified in paying the amounts claimed.
I will make a number of preliminary observations, before I refer briefly to the evidence.
From a practical, commercial point of view the question is how the receiver should carry out his duties in accordance with the powers vested in him as a result of the orders made by the Court on 29 September 2016, including the power that he pay the partnership's creditors. The decision by the receiver whether or not to pay particular claims made by creditors will involve an exercise of the receiver's judgment from time to time based upon his assessment of the evidence that is available. In the ordinary course, the receiver will not decline to pay creditors' claims unless there is unequivocal evidence supporting the existence of the debt. The receiver will make a proper commercial judgment in the circumstances as to whether the evidence is adequate to justify the payment, having regard to the amount involved, the assets available to pay, and importantly the consideration that the consequence of a refusal to pay may be litigation the cost of which may be an expense to the partnership assets. In short, a proper and rational commercial judgment must be made.
In determining the present application made by the receiver, the Court is not concerned with making a positive finding that Holdings and Constructions have proved that the partnership was indebted to them. Nor will any order giving advice or direction to the receiver finally determine the validity of the claims made by Holdings and Constructions. The Court is only concerned with whether the decision made by the receiver on the basis of the evidence is sufficiently sound to justify him paying the claims, having regard to all relevant considerations. Those considerations include the practical one that if on a clear balance the evidence suggests that the debts claimed are payable, the refusal by the receiver to pay will almost inevitably lead to litigation that may be an unwarranted expense to the partnership assets.
For that reason, the mere existence of a controversy or an assertion by one former partner that it contests the validity of the debts claimed may not be sufficient to justify the Court in declining to advise or direct the receiver that the debts can be paid, when all other relevant considerations make it prudent that the claims be met in the overall interests of the partnership assets.
Further, I do not regard the absence of a formal statement of facts as being a justification for the Court declining to entertain the receiver's application. It will often be a convenient or necessary approach for a receiver (or a trustee or a liquidator in a different context) to put a statement of facts before the Court. However, there may be cases, of which I think the present is one, where the actual evidence that is relevant is in a reasonably confined compass, and it is convenient for the receiver to put that evidence before the Court together with his reasons for reaching the particular conclusion reached on the basis of that evidence. In short, in some cases the clearest and most reliable way for the receiver to inform the Court of the basis for the decision he or she has reached may be simply to put the evidence before the Court. The proper and convenient approach will depend upon the particular case.
In the present case, there is no doubt that the moneys were paid into the partnership's bank account and were applied for an apparent partnership purpose, being the performance of obligations owed by the partnership under the CBA facility. The partnership got that benefit. If Holdings and Constructions are not repaid, then the partnership will have received a windfall. Simply put, this is not a case where the Court would be concerned that payment by the receiver of the debts claimed might lead to the partnership suffering some loss.
Further, it is material that the receiver will retain an amount of some $5,560,000 to which prima facie each of the former partners will be entitled to a distribution of half. Investments' share of $2,780,000 will be much more than would be necessary to allow an adjustment on an accounting between the former partners if Plaza is able to establish that the payment of the $500,000 was in fact a contribution of capital by Investments. (Even this proposition ignores the effect of rule 3 in s 44(b) of the Partnership Act 1892 (NSW), which is that for the purpose of the distribution of the assets of the partnership, after its debts and liabilities have been paid, and advances by the former partners have been paid, each partner is entitled to be paid rateably what is due from the partnership to the partner in respect of capital. Hence, in the absence of a capital shortfall, the $500,000 would be repaid to Investments as if it should be treated as a payment of capital by that company, before the ultimate residue is shared equally between the former partners). These considerations are material not simply because they are convenient. It is relevant for the receiver to take into account the fact that, when considering the risk of not paying apparently good claims made by creditors, a former partner who objects to the payment has an alternative and satisfactory means of obtaining redress, if that former partner's claim is correct.
I will now address the significance of the evidence upon which the receiver has relied for his conclusion that the proper course is for him to accept the claims by Constructions and Holdings that they are entitled to be repaid in aggregate debts of $500,000.
The simple fact is that the contemporaneous evidence, in the nature of business records, that was produced at the time the payments were made is consistent only with the payments being made as loans, and inconsistent with the payments being contributions of capital, and furthermore given the collapse of the relationship between the partners, it would have been a commercially irrational act for Investments to have contributed an additional $500,000 in capital to the partnership when Plaza would not make any contribution.
Some of the records are unclear about whether the creditor was Mr Deiri, rather than Holdings or Constructions, but no records suggest a contribution of capital by Investments. Once is it is accepted that the payments were made as loans and that the only doubt could possibly be as to the identity of the creditor, the debts must still be repaid although there may be a need for the receiver as a matter of prudence to obtain releases from all possible creditors in return for making repayments to Holdings and Constructions.
While it is true that all relevant entries in business records were created by employees of companies controlled by Mr Deiri, there is nothing sinister about that because Holdings and Constructions were the companies who made the payments, and the records could not be prepared in any other way. The records are the best evidence of the intention of the companies in making the payments.
The narrations on the bank statements for the partnership account in relation to the payments received are as follows:
1. For the payments by Holdings on 6 and 29 July 2016: "Combined Hol Loan from Fouad".
2. For the payments by Constructions on 2 and 9 September 2016: "Loan from Fouad". In Constructions' account the notation is: "Loan to Cp H".
3. In the case of the 23 September 2016 payment by Constructions, the notation is: "Loan from Deicorp".
The narrations for the first four payments that were made by Holdings or Constructions into the partnership's bank account are unclear as to whether the lender was the payer company or Mr Deiri, although the fifth payment is clearly described as a loan from Constructions.
The general ledger of the partnership describes all five payments as a loan from the relevant payer.
In its submissions, Plaza points to a statement made by Mr Deiri in one of his affidavits that "I have been servicing the payment of interest", and also to a statement made by Investments' solicitor that appears to have the effect of acknowledging that at earlier times the partners contributed capital by arranging for related entities to make payments from time to time into the partnership's account. Plaza submitted that these matters tended to support a conclusion that the payments made by Holdings and Constructions were also contributions of capital. In my view, the statement made by Mr Deiri is true in the sense that he was the principal and guiding mind of all of his companies and he did cause the payments to be made. It does not follow that consequently as a matter of law the payment should be categorised as having been made by him rather than the payer companies. Furthermore, even if the payments were made by him, it would not stop them being loans. The evidence justifies a conclusion that whatever may have been the practice of the partners while the partnership was functioning, Mr Deiri caused his companies to take a different course once the partnership broke down.
Finally, in my view Plaza's submission that, even if Holdings and Constructions purported to make loans to the partnership, the loans were not repayable because they were not authorised by Plaza, is unsustainable. At least until the partnership was dissolved on 21 September 2016, the effect of s 5 of the Partnership Act was to authorise Investments to bind the partnership in respect of any borrowing from Holdings or Constructions.
The position of the $55,000 paid by Constructions into the partnership account on 23 September 2016 is different because it was paid in and applied in repayment of the partnership's debts two days after the dissolution of the partnership. While this circumstance may give rise to some arguments concerning the authority of Investments to cause the money to be borrowed on behalf of the partnership, and used in payment of a partnership debt, that is not a sufficient reason for the receiver not to repay the amount claimed to Constructions. If there is any valid issue raised by Plaza, that is a matter that should be dealt with in the accounting that is to take place. I am not satisfied that there is any real likelihood that the debt of $55,000 is not repayable to Constructions.
I will therefore make an order in the terms of pars 1 and 3 of the notice of motion filed by the receiver on 1 September 2017.
I will hear the parties on the issue of whether any further costs order should be made.
At this stage, the orders of the Court are:
1. Direct that Brett Stephen Lord, as Receiver of the Partnership (as those terms are defined in the orders made in these proceedings by Hallen J on 29 September 2016) is justified in applying the proceeds from the realisation of the assets of the Partnership in the amount of $500,000 in repayment of the Claimed Funds (as that term is defined in paragraph 21 of the affidavit affirmed by the Receiver on 1 September 2017) to Deicorp Pty Ltd and Combined Projects Holdings Pty Ltd.
2. Order that the cost of this motion be a cost in the receivership and management of the Partnership.
[4]
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Decision last updated: 14 December 2017