Cameron v UBS AG [2000] VSCA 222

5. The appellant's appeal turned upon what was submitted to be a narrow but critical point. It was accepted that if the appellant had, in the deed, acknowledged his indebtedness for the amount of the judgment entered by the Swiss Court then clause 3 would not constitute a penalty. But where, as here, the appellant was contesting the right of the respondent to enforce that judgment there was and could be no such acknowledgement. In substance and fact, so it was submitted, clause 3 of the deed imposed an obligation on the appellant to pay a disputed sum of AUD $8.4 million for breach of contractual terms requiring him to pay a much smaller sum.

8. In my opinion, this was not the substance of what the parties had, by their deed, agreed upon. At the time when the deed was executed, the respondent had a right to enforce an existing debt constituted by the judgment of the Swiss court. By the Deed of Settlement it forebore to exercise that right on condition that the indulgence which it afforded to the appellant, namely to pay a lesser sum over a period of time, was fulfilled. By entering into the deed the appellant implicitly acknowledged that the judgment debt was due and payable by his agreement that, if he did not meet the conditions upon which the indulgence was granted to him, he would submit to judgment in the amount of such judgment debt; thereby giving up any defences which he claimed to have. In my opinion, there is nothing inequitable or penal about such a compromise. In substance it amounts to a concession by the appellant that the debt is owed and will be paid if he fails to meet the terms of the indulgence granted by the respondent. All the advantages of amount and time were with the appellant provided that he complied with those terms. In these circumstances it seems to me to be of little moment that the appellant, prior to the execution of the compromise, was disputing the respondent's claim to enforce the

foreign court's judgment, which was the background against which the compromise was made. If the appellant's submission is right, no judgment creditor whose judgment is appealed by the judgment debtor could safely compromise the appeal on terms which reserved to the former the full amount of the judgment debt in the event that the latter failed to meet the terms of indulgences as to amounts and times of payment afforded to him by the creditor.

12. For these reasons, I agree with Phillips, J.A. that this is not a case where the question of penalty arises. Clause 3 of the Deed was not intended by the parties to induce or compel compliance by the appellant with the indulgences granted to him in clause 2 or to punish him for his neglect to comply with such indulgences. Rather, this was a case of the kind referred to by Gibbs, C.J. in O'Dea v. Allstates Leasing System (WA) Pty. Ltd.[1]; namely a case "where there is a present debt, which, by reason of an indulgence given by the creditor, is payable either in the future, or in a lesser amount, provided that certain conditions are met. The failure of the conditions does not mean that the creditor becomes entitled to damages; the consequence is that the sum which was always owed, but which the debtor was allowed to pay by instalments or in a smaller amount, becomes recoverable at once or in full"[2].

20. This is an appeal from a judgment given by Beach, J. on 25 March 1999 on appeal from a master. Allowing the appeal, his Honour granted the plaintiff's application for judgment in accordance with terms of settlement which had been agreed in this proceeding between the plaintiff and the defendant and formalised by deed dated 17 December 1998 ("the deed"). Those terms of settlement related to a

large sum of money claimed by the plaintiff (as successor to the Swiss Bank Corporation) to be owing by the defendant, for which the Swiss Bank had recovered judgment in Switzerland - a judgment which it had commenced this proceeding to enforce. The deed provided for payment of a lesser sum by instalments and, in default, for judgment for the whole sum, by consent. The defendant was late, by some days, in paying the first of the instalments provided for by the deed (an instalment which was due by 30 January 1999) and hence the plaintiff's application, made in this proceeding, for judgment as agreed in December 1998. The application was refused by the master, but granted by the judge who rejected the arguments of the defendant. The defendant now appeals.

24. I have described the applicant before the master and Beach, J. as the plaintiff in this proceeding although UBS AG is plaintiff only by substitution by order of Beach, J. The proceeding to enforce the Swiss judgment was commenced in Victoria in June 1996 by the Swiss Bank Corporation which had mounted the proceedings in the Basel-Stadt Civil Court in Switzerland and had subsequently recovered judgment there against the defendant in April 1995. That judgment was for the equivalent in Swiss currency of A$8.4 million. The deed of December 1998 containing the terms of settlement was made between UBS AG and the defendant and the deed recited that the Swiss Bank Corporation had by then merged with UBS AG, the latter having assumed the assets and liabilities of the former. The deed provided that in the event of default under the deed UBS AG could, inter alia, seek from the Court an order for the substitution of UBS AG as plaintiff in the proceeding and the defendant would consent thereto. Before both the master and the judge the application was prosecuted in the name of the Swiss Bank Corporation (it being still the nominal plaintiff in the proceeding). The defendant contended that, as UBS AG and not the Swiss Bank Corporation was party to the deed, the Swiss Bank had no rights under the deed and could not seek to enforce it; and that UBS AG, although party to the deed, had no standing in this proceeding and should have commenced a separate proceeding. Rejecting this argument, Beach, J. ordered that UBS AG be substituted as plaintiff.

27. As his Honour's reasons for judgment disclose, the question of the proper plaintiff was only one of four points taken before the judge. The others were that there was no proof of incorporation of UBS AG; that, by holding the defendant's personal cheque from 2 February to 5 February 1999 before rejecting it UBS AG should be held to have accepted that personal cheque in lieu of the original obligation imposed under the deed to pay each instalment either by cash or bank cheque; and finally, that the express provision in the deed for judgment by consent for the whole amount of the Swiss judgment constituted a penalty and as such was unenforceable. All four points were held by his Honour to be without substance and judgment was given accordingly. A stay was refused by this Court on 30 April 1999.

30. When this appeal was called on for hearing, counsel announced immediately that the parties were agreed that, in accordance with the order of Beach, J. substituting UBS AG as plaintiff, the heading to the notice of appeal should also be altered to substitute UBS AG for the Swiss Bank Corporation - and we so ordered. As counsel's announcement plainly foreshadowed, the defendant no longer took the point that UBS AG did not stand in the shoes of the Swiss Bank for the purpose of this proceeding, and indeed, the only point argued on this appeal was that in relation to penalty.

34. In order to put the argument about penalty in proper context, it is necessary to set out the relevant portions of the deed containing the terms of settlement. It began with these recitals:-

"RECITALS A. Swiss Bank Corporation and Union Bank of Switzerland have merged with UBS AG (the Merger) and the merged company is called `UBS AG'. B. Pursuant to the Merger UBS AG has assumed the assets and liabilities of Swiss Bank. C. By Proceeding No.5824 of 1996 issued in the Supreme Court of Victoria (the Supreme Court) at Melbourne on 7 June 1996, Swiss Bank commenced an action (the Proceeding) against Cameron seeking to enforce a judgment obtained by Swiss Bank against Cameron in the Basel-stadt Civil Court in Basel, Switzerland on 12 April 1995 (the Claim). D. Cameron has entered a defence to the Proceeding and challenged the Claim. E. In order to avoid the trouble and expense of further litigation, the Parties have agreed to settle the Proceeding on the terms and conditions set out below."

38. So far as relevant, the deed then provided, first, for payment by the defendant to UBS AG of what was called the "Settlement Sum" of A$ 1 million. That was in clause 2.1. Clause 2.2 declared that the "Settlement Sum" was payable by five instalments, each of $200,000, and they were to be paid on or before five specified dates, dates falling on and between 30 January 1999 and 30 September 2002. By clause 2.3, in consideration of the agreement of the defendant to pay the "Settlement Sum" in the manner described in clause 2.2, UBS AG agreed to consent to an application for an order that the proceeding be struck out, with no order as to costs and with a right of reinstatement.

"3. Entry of judgment in the event of default 3.1 In the event of default in payment of any one or all of the instalments of the Settlement Sum referred to in Clause 2.2 of this Deed, UBS AG will be at liberty to apply to the Supreme Court for: 3.1.1 reinstatement of the Proceeding; 3.1.2 substitution of UBS AG as the Plaintiff in the Proceeding; and 3.1.3 the entry of judgment in favour of UBS AG against [the defendant] for [the several sums then listed]."

The several sums then listed totalled, we were told, the judgment sum of $8.4 million, to which were to be added (according to clause 3.1) the costs of the proceeding in Victoria and from which were to be deducted "any payments made by [the defendant] pursuant to the terms of this deed". Clause 3.1 concluded by providing that an affidavit sworn or affirmed by a legal representative of UBS AG should be sufficient and conclusive evidence of late payment or default in payment of one or more of the instalments.

46. Clause 3.2 was relatively brief and can be set out in full.

"3.2 In the event that UBS AG makes application under paragraph 3.1, Cameron consents to that application and to the orders set out in paragraphs 3.1.1, 3.1.2 and 3.1.3. The Parties agree that a copy of this Deed may be produced to the Supreme Court as conclusive proof of the consent of Cameron."

"4. Mutual release Upon compliance with the terms of this Deed and in consideration thereof, the Parties agree to release each other from all claims that form the subject matter of the Proceeding."

By clause 9, it was declared that the deed contained "the entire understanding of the Parties with reference to the subject matter".

54. The argument that the provision in clause 3 of the deed for judgment by consent constituted a penalty, and so was unenforceable, ran like this. First, it would be quite wrong, Mr. Larkins submitted, to approach the deed otherwise than upon the basis that the dispute between the parties was unresolved, the plaintiff maintaining its claim for a money sum in reliance upon the Swiss judgment and the defendant denying liability therefor. The action had been commenced by the filing of the writ in June 1996; the statement of claim was followed by a defence and the pleadings on both sides had been amended during 1997. In June 1998 the merger had occurred which brought UBS AG into the picture. As the pleadings showed, the parties were in dispute over the enforceability in Victoria of the Swiss judgment and that dispute was still unresolved, even today. The terms of settlement as embodied in the deed contained no acknowledgment of liability on the part of the defendant (it was claimed) beyond the promise by him in clause 2 to pay $1 million by way of five instalments, with the result that the further provision in clause 3 that in default there should be judgment by consent for $8.4 million - a very much larger sum than that which the defendant had agreed to pay - must be a penalty and therefore unenforceable.

57. When asked from the Bench what then might have induced the bank to enter into the terms of settlement, what advantage there was for it, Mr. Larkins identified the opportunity, as he put it, to obtain from the defendant the sum of $1 million without further dispute. The value of this opportunity must ultimately depend (he said) upon the value of the defences raised by the defendant in the proceeding in this Court to enforce the judgment, but that was something which could not yet be known and it was certainly something which did not now fall for determination. Nor did it matter, counsel said, if clause 3 was wholly unenforceable as constituting a penalty. That there should then be no effective provision in the deed to come into play in the event of default by the defendant in the payment of any one or more of the five instalments was of no consequence; for the plaintiff was no worse off (the argument ran) if, upon default by the defendant, it could either sue for the instalment which was owing or, after seeking reinstatement from the Court, prosecute the original proceeding to enforce the Swiss judgment. Mr. Larkins did, however, accept in argument that the second alternative might depend upon whether the default was such as to amount to repudiation; he expressly declined to abandon an argument, if it ever became material, that an inconsequential default in the payment of one instalment might not admit of the plaintiff's resorting immediately to the original proceeding.

60. For the bank it was submitted that the defendant had no right to oppose the judgment for which clause 3 of the deed provided: clause 3 was not a penalty and the law on penalties had nothing to do with these terms of settlement. It was submitted that when the deed was entered into, the defendant had agreed, once and for all, to withdraw its defences to the claim of the plaintiff to enforce the Swiss judgment in Victoria, promising on the one hand to pay $1 million by way of the instalments provided or, should he fall into default in that regard, to consent to judgment for the total sum of $8.4 million claimed by the plaintiff in reliance upon the Swiss judgment. The defendant accepted that such judgment could be obtained when he agreed to the terms of settlement and signed the deed; in no way, it was submitted, was the provision for judgment a penalty imposed for breach of the obligation to pay by instalments, notwithstanding that the plaintiff's right to apply for judgment by consent was conditioned upon default in that regard. In my opinion, the plaintiff's argument should be accepted.

63. The law relating to penalties was authoritatively expounded by the High Court in O'Dea v. Allstates Leasing System (W.A.) Pty. Ltd.[3]; see also Acron Pacific Ltd. v. Offshore Oil N.L.[4] and AMEV-UDC Finance Ltd. v. Austin[5] to which counsel took us. In O'Dea the Court held that the lessor of certain chattels was not entitled to recover the balance of the entire rent when default was made by the lessee of certain chattels during the term of the lease; the provision for acceleration of the instalments was a penalty, particularly in view of the concurrent right of the lessee to recover the chattels as well as all moneys due for the unexpired term, plus the costs of repossession. In form at least the lease in that case purported to create an immediate liability in the hirer for all instalments of hire, which led Brennan, J., who dissented on this point, to say that there was no penalty, but mere acceleration. The rest of the Court was not persuaded by the form of the lease and held that, when read as a whole, "it becomes apparent that at the date of the contract there was no presently existing obligation to pay the entire rental" (per Gibbs, C.J.[6]). The significance of this was made clear by the Chief Justice when he summed up in relation to one class of case in which there can be no question of penalty, saying[7]:-

"In all the cases of this kind there is a present debt, which, by reason of an indulgence given by the creditor, is payable either in the future, or in lesser amount, provided that certain conditions are met. The failure of the conditions does not mean that the creditor becomes entitled to damages; the consequence is that the sum which was always owed, but which the debtor was allowed to pay by instalments or in a smaller amount, becomes recoverable at once or in full".

67. As will be seen, I think that that has application here. Let it be assumed that the provision in clause 3 for the defendant's consenting to judgment for $8.4 million can be characterised as, in itself, a stipulation for the payment of a money sum upon, and so by reason of, the breach by the defendant of the contract made in December 1998 with the plaintiff. If the law of penalties is relevant, the question is then whether that money sum, said to be made payable by clause 3, was a genuine pre-estimate of damage or not; and if that were the question I would agree with the defendant that it is not. It seems to me not possible to say that payment of the sum of $8.4 million reflects no more than a genuine pre-estimate of the damage likely to flow to the plaintiff from the defendant's failing to pay any one or more of five instalments on time or at all, particularly as the total sum to be paid by instalments under clause 2 is only $1 million: compare Kemble v. Farren[8]. By its notice of contention, the bank foreshadowed an argument that clause 3, in stipulating for consent to judgment for $8.4 million, did contain what was no more than a genuine pre-estimate of damage for the breach of contract which was to bring clause 3 into play; but such an argument seems to me fanciful. Clause 3 was never intended to reflect a genuine pre-estimate of damage likely to be suffered by the plaintiff, should the defendant default in the payment modo et forma of any one or more instalments of the very much lesser "Settlement Sum".

70. By the same token, however, nor was clause 3 inserted in the deed in order to compel or induce compliance by the defendant with clause 2 - or, to put it another way, to penalise or to punish the defendant for _non-_compliance with clause 2: see for example Ex Parte Burden, In re Neil[9], Esanda Finance Corporation Ltd. v. Plessnig[10]. As I understand it, the law as to penalties is that if the parties to an agreement include a provision for the payment of a sum of money by one party to the other by reason of the former's defaulting in the performance of an obligation owed by him or her to the other under the agreement, then payment of that sum can be enforced against the party in default only if that sum is a genuine pre-estimate of the damage likely to be occasioned by the default. If it is not a genuine pre-estimate of damage it is unenforceable as being a penalty - meaning a penalty imposed merely to induce or compel compliance with the obligation which has not been fulfilled and intended therefore to secure for the innocent party a benefit or advantage which is altogether collateral to purpose of the main agreement (because ex hypothesi it goes beyond mere compensation for the breach). In this instance the sum of $8.4 million was not agreed as a genuine pre-estimate of damage should the defendant fail to comply with clause 2 in one respect or another; but neither was it a penalty imposed to induce or compel compliance by the defendant with clause 2, and thus to secure some collateral benefit or advantage to the plaintiff. The sum of $8.4 million was the sum due and allegedly owing under the Swiss judgment; neither more nor less.

73. That is the key to this appeal. Although the defendant was wont in argument to approach this case as if the deed was simply an agreement for the payment by the defendant to the plaintiff of $1 million, that is not what it was; it was a bargain about the enforcement of the Swiss judgment. The sum of $8.4 million for which judgment in Victoria was to be obtained by consent under clause 3 was the sum for which judgment had already been recovered in Switzerland, the judgment which the plaintiff was seeking to enforce in this proceeding as successor to the Swiss Bank in the Swiss proceeding. That sum was quantified before the terms of settlement were entered into; the dispute was only over the plaintiff's right to enforce the Swiss judgment in Victoria, a right asserted in the statement of claim in this proceeding and denied by the defendant in his defence. By the terms of settlement the defendant secured to himself one last opportunity to pay a much lesser sum in full and final satisfaction of what the plaintiff was claiming in Victoria in reliance upon the Swiss judgment. For the opportunity to pay that lesser sum the defendant bargained away any defence he had to enforcement of the judgment in Victoria, consenting to judgment here if he made default in payment of the lesser sum modo et forma. That makes this case quite different from those in which the Courts have refused to lend assistance to the enforcement of a penalty. It is more akin to those cases described by Gibbs, C.J. in O'Dea where the sum payable upon default is already due and owing and the chance to pay a lesser sum or on terms is being afforded as a privilege or indulgence: as to which see also Acron Pacific[11].

76. Yet, according to the defendant, that was not this case in that, consistently with the pleadings in which the defendant was denying all liability, the deed embodying the terms of settlement contained no acknowledgment of his liability for the sum of $8.4 million for which judgment could be entered by consent under clause 3, with the result that it could not be said before default occurred under clause 2 that any sum was owing by the defendant subject only to the opportunity being extended to pay a lesser sum, and on terms. But I reject that submission. In O'Dea, there was nothing between the parties prior to their entry into the lease between them, which accordingly was the sole source of any obligation of either; and so it was in most of the other cases cited to us. Here, there was a considerable history which led directly to the terms of settlement and the deed. The Swiss Bank had recovered judgment for $8.4 million in a Swiss court and the plaintiff, as its successor, was seeking to enforce it here, while the defendant was seeking to resist enforcement in Victoria. It was in that context that the terms of settlement came into being, the defendant obtaining thereby the opportunity to secure a release from what was claimed under the foreign judgment by paying the settlement sum by instalments, and the bank securing in return the withdrawal of all defences, should there be default. In those circumstances, the consent to judgment can be seen as doing no more than formalising a liability acknowledged, by implication, when the terms of settlement were agreed and the deed was entered into.

79. In my opinion, when read fairly these terms of settlement did contain, by implication, an acknowledgment by the defendant of his liability for the $8.4 million should there be default, and thus an acknowledgment of liability which, though conditional, was effective when the terms of settlement were agreed. Immediately before the terms of settlement there was a dispute about the enforceability of the Swiss judgment and so about the amount owing by the defendant under it; but, as I see it that dispute was finally resolved by the terms themselves and the deed. From that point onwards, the defendant was acknowledging his liability in respect of the Swiss judgment subject only to this: that if he paid a lesser sum according to clause 2 he could have a release from the larger sum. In those circumstances, according to the cases to which I have referred, the provision in clause 3 for consent to judgment is not a penalty.

82. Indeed, the facts of this case are very like those in Thompson v. Hudson[12], one of the early cases still commonly cited with regard to penalties. In Thompson there was a dispute about the amount owing and, in consideration of certain terms of settlement, the putative debtor gave up his rights of appeal. When he later fell into default in paying the settlement sum, the creditor was entitled under the agreement to recover judgment. The agreement for judgment was held not to be a penalty. Counsel for the debtor, the then Mr. Jessel Q.C., put up an argument very similar to that of Mr. Larkins in this case. As reported, he said[13]:-

"Surely if A. is said to owe B. £1000, but A. disputes it, and B. says to A., `If you will not continue to dispute my claim to that amount, and will pay me £500 and interest on a certain day, I will take that in full satisfaction; but if the money is not paid on that day, I will recover the whole that I claim,' that would be a penalty on the non-payment at the day named. Now, here was a dispute as to the amount. That dispute was to be given up, and the amount admitted, and payment of a smaller sum in satisfaction was to be made in a certain way; if not made on that particular day, and in that particular way, the whole amount was to be recovered. That was a penalty on non-performance of the new agreement. As the return to the original claim was to be upon the non-performance of any of the stipulations of the agreement, the settled authorities show that it was nothing but a penalty."

That argument was rejected by the House of Lords in Thompson and the like

argument should, I think, be rejected here[14]. If the provision in clause 3 is properly understood as imposing an obligation on the defendant to pay a money sum after default under clause 2, it is none the less not a penalty and so is not unenforceable as such.

90. For these reasons I think that Beach, J. was correct when he described the defendant's case as without substance. The appeal should be dismissed.

95. I agree that the appeal should be dismissed for the reasons stated by Phillips, J.A. and the President.

98. The appellant sought to equate his position when he entered into the deed made on 17 December 1998 with that of a person free from any obligation to the respondent, so that the consent to judgment in the sum equivalent to A$8.4m. could be characterized as a punishment imposed for breach of the promise to pay $1m. by instalments on specified dates. By maintaining his denial of any liability in respect of the judgment entered in the Swiss Court, so the appellant said, he remained free from any obligation until he agreed to suffer judgment upon default. In my view the picture so painted was misleading. The substance of the transaction was that a claim based on a foreign judgment was compromised by the appellant agreeing to judgment for the amount of the claim, but obtaining an opportunity to satisfy the claim by paying lesser sum by instalments.

101. It was conceded by the appellant that if the deed had taken the form of an acknowledgment of the obligation to pay the amount of the Swiss judgment followed by a promise to pay a lesser sum and thereby satisfy the first obligation, no question of penalty would have arisen. In my view that was the effect of the deed

when looked at as a whole. The substance of the matter was not affected by the manner of its drafting. A penalty did not arise because, instead of an acknowledgment of debt in the amount of the claim followed by a provision enabling that obligation to be satisfied by payment of a lesser sum in a specified manner, the deed provided for payment of a lesser sum than the claim followed by an agreement to suffer judgment for the amount of the claim if the lesser sum was not paid.

105. The obligation to pay $8,400,000 was not one which sprang from the deed unheralded. Its genesis lay in the past dealings between the appellant and the respondent's predecessor. In my opinion the case is to be equated with those in which a creditor agrees to accept payment of part of his debt in full discharge if certain conditions are met but stipulates that if the conditions are not met, he will be entitled to recover the original debt. At one end of the spectrum covered by those cases is an undisputed judgment debt[15]. Further towards the middle of the range is a sum ascertained in a suit in Chancery before a final decree has been made.[16] At the other end of the spectrum, but still within it in my view, is the present case where the debt is the subject matter of a claim which is disputed but is not suggested to be a colourable device.

[1] [1983] HCA 3; (1983) 152 C.L.R. 359 at 367

[2] See also "Equity, Doctrines & Remedies", Meagher, Gummow & Lehane, 3rd Edition, pp.444-5, para [1816]; N.U.S. International Pty. Ltd. v. The President Melbourne Pty. Ltd., Supreme Court of Victoria, unreported, 24 June 1993, per Hayne, J. at pp.10--11.

[3] [1983] HCA 3; (1983) 152 C.L.R. 359

[4] [1985] HCA 63; (1985) 157 C.L.R. 514

[5] [1986] HCA 63; (1986) 162 C.L.R. 170

[9] (1881) 16 Ch.D. 675 at 680

[10] [1989] HCA 7; (1989) 166 C.L.R. 131 at 153 per Deane, J.

[12] (1869) L.R. 4 H.L. 1

[14] In referring to Thompson I do not overlook the warning given by Mason and Wilson JJ in AMEV-UDC at 186 against the unthinking use of the older cases. On that account I have left Thompson till last.

[15] Ex parte Burden; Re Neil (1881) 16 Ch.D.675.

[16] Thompson v. Hudson (1869) L.R. 1 H.L.1.