Cardtronics Australasia Pty Ltd v FX Investments Australia Pty Ltd

1. The parties provide either agreed or competing short minutes of order which reflect these reasons within seven days.
2. If the form of orders cannot be agreed, each party is also to provide a short submission, of no more than two pages, that sets out the basis upon which they seek the orders proposed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A SCOPE OF HEARING & PRELIMINARY OBSERVATIONS 1 The plaintiff (Cardtronics) has supplied automatic teller machines (ATMs) and associated equipment (Supplies) to the first defendant (FX) from July 2016. 2 This proceeding initially came before the Court in July of 2019 in the form of an urgent application for interlocutory restraint against FX. Cardtronics' primary contention was that it had been renting ATMs to FX for a number of years, and as of June 2019, those machines were disconnected from Cardtronics' network and all payments to Cardtronics ceased. It was said that all of FX's assets, including the ATMs, were now controlled by a new entity, which was not bound by any agreement with Cardtronics. 3 By way of final relief, Cardtronics seeks orders under s 588FM of the Corporations Act 2001 (Cth) (Corporations Act) and s 293(1)(a) of the Personal Property Securities Act 2009 (Cth) (PPSA). An order is sought extending the time for Cardtronics to lodge the Personal Property Security Register registration number 201902140006885 for the purposes of s 588FL(2)(b)(iv) of the Corporations Act and s 62(3)(b) of the PPSA. A variety of additional relief is sought, including a declaration that Cardtronics has a perfected security interest over a subset of the Supplies, being various ATMs and ancillary equipment supplied during the latter part of their commercial relationship (together, the Relevant Supplies). 4 At an initial case management hearing, it became evident that the principal question dividing the parties was the existence and terms of an agreement or agreements between Cardtronics and FX, which, Cardtronics contends, give rise to security interests in respect of the Relevant Supplies. In an attempt to facilitate the overarching purpose, it was common ground that there was utility in resolving, separately and before all other issues in the proceeding, the issues relating to whether an agreement or agreements were entered into by Cardtronics and FX as alleged and, if so, the terms of such an agreement or agreements. Indeed, it was evident (and eventually was not in contest) that some agreement or agreements were entered into, the real question being the relevant terms. 5 More specifically, following the service of points of claim and a response, three questions were identified to be determined, which were in the following terms: (1) Whether there was a contract entered into in respect of the Supplies by FX to Cardtronics (amended points of response (APOR) at [2(d)(ii)], [24])? (2) If the answer to 1 is "yes", whether the contract with respect to the Supplies: (a) was for the purchase of the Supplies by way of monthly instalments with title to the Supplies passing upon FX obtaining possession of the Supplies (APOR at [7], [8]); or (b) was for the supply of the ATMs for a rental period of 3 or 5 years at FX's election, that Cardtronics would retain title until the expiration of the rental period of the Supplies and upon payment of all rental amounts payable (amended points of claim (APOC) at [9])? (3) If the answer to 1 is "yes" and the answer to all of 2 is "no", were there a series of contracts entered into at the time each and every Deployer Load Form was provided to Cardtronics by FX, such that Cardtronics would retain title until the expiration of the rental period of the Supplies and upon payment of all rental amounts payable (APOC at [24])? 6 It was common ground that in the event Cardtronics was successful in proving that there was an agreement (and it was in the terms identified in 2(b) above) it would have a "security interest" for the purposes of the PPSA. 7 The separate questions might be thought to be superficially complex and it turns out, following the completion of final submissions, the questions earlier identified have the consequence of unnecessarily complicating the matters to be decided. 8 The difficulty that does arise in this case is essentially factual and has been occasioned by the failure of the parties (and Cardtronics in particular) to document promptly and with precision the full express terms of the bargain struck. Hence the Court is required to work out what went on by reference to a series of contemporaneous written documents and oral communications. This presents some challenges in the present case because of starkly conflicting oral evidence adduced by the parties. Usually in determining contested factual issues in a commercial case, what matters most is "the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts": Mealey v Power [2015] NSWSC 1678 at [4]. As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22]: … the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. 9 But here, as I will explain, some contemporaneous notes and documents point in different directions and the content of oral communications assume central importance in ascertaining the true position, thus requiring close attention to be given to oral accounts of the two principal witnesses, being Ms Adrienne Wilderman on behalf of Cardtronics, and Mr Chris Thompson on behalf of FX. What is singular in this case is that irrespective as to which account of the protagonists is preferred, some aspects of the actions of both Ms Wilderman and Mr Thompson appear to the disinterested observer somewhat counter-intuitive. 10 I am conscious of the inherent limitations of credibility-based findings in determining which of the two general accounts given by the witnesses (and adopted by the parties as being consistent with their overall case theory) should be accepted. But in the end, determining the key factual questions comes down to my assessment of the oral evidence, the inherent probabilities as informed by the admissible contemporaneous written record, and such inferences as are appropriate to be drawn from the lack of evidence. 11 In attending to this task, I will organise the balance of these reasons under the following headings: B Guiding Contractual Legal Principles C Particular Factual Findings D The Parties' Submissions E The Evidence Generally and the Principal Contested Facts F The Terms of the Supplies G Conclusion and Orders