Carminco Gold & Resources Limited v Findlay & Co Stockbrokers

FACTUAL SETTING 3 The relevant factual setting falls within a small compass. 4 Ivor Findlay was a director of the respondent, Findlay & Co Stockbrokers (Underwriters) Pty Ltd ("Findlays"). That company conducted a corporate advisory and underwriting business. In October 2003, Mr Findlay was informed of an approach by the third appellant, Roderick Salfinger, to Findlays to arrange both for the listing of his company on the Australian Stock Exchange and for assistance in putting together an Initial Public Offering. That company, though now having the name of the first appellant, Carminco Gold & Resources Ltd, was then named Trans Pacific Mining Ltd. So as to maintain harmony with the documentary evidence in this appeal, we will refer to the first appellant as "TPM". The second appellant, which is named Trans Pacific Mining Ltd (though having a different ACN number), was formed in December 2003. We will refer to it as "Trans Pacific". 5 Mr Findlay was informed that the business of TPM was gold mining and that it had several current projects, one being located in Queensland and the others in Canada. One of the Canadian operations concerned an alleged option to purchase what was known as the Summit Lake Mine. Meetings were arranged and held between, amongst others, Mr Findlay and Mr Salfinger in October, November and December 2003. We would note in passing that the trial judge made findings (not in issue in this appeal) that TFM and Trans Pacific through Salfinger engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) in representations made about their claimed holding of the Summit Lake Mine option and as to their interest in gold mining tenements in North Queensland. The representations were false. They were made both during the 2003 meetings and thereafter. 6 In the course of the 2003 meetings Mr Salfinger identified two distinct needs his company had for financial assistance. First, he required "mezzanine funds" (or seed capital) for the preparatory works for the IPO. Secondly, he needed CAD550,000 to exercise the option to purchase the Canadian mine. At a discussion between Salfinger and Findlay in mid-December, the primary judge found the following to have occurred: "In an attempt to overcome the difficulties which Mr Salfinger adverted to, Mr Findlay made a proposal to Mr Salfinger by telephone after conferring with Mr Vajda. In summary, the proposal put to Mr Salfinger was that, upon the basis of the statements made by Mr Salfinger, Findlay Underwriters would raise the funds to constitute the required seed capital for the IPO in an amount between $150,000 and $175,000. Further, Findlay Underwriters would separately loan to the company the amount necessary to exercise the Summit Lake Mine option. In consideration for such financial assistance, Mr Salfinger agreed to issue free of charge two shares in the company to the applicant for every dollar advanced and to provide security over all of the company's property including the Summit Lake Mine, and to execute documentation to provide such security. It was made plain by Mr Findlay that the loan funds were only to be used for the purpose of exercising the option to purchase the Summit Lake Mine and for no other purpose. Mr Salfinger informed Mr Findlay that the option over the Summit Lake Mine was to be exercised by 15 February 2004." We would again note in passing that it is the primary position of the appellants and the respondent alike that an oral contract was thus entered into on the terms identified by his Honour. The parties disagree fundamentally as to whether Findlays was a party to that contract. 7 It is clear from Mr Findlay's own evidence that, in the context of the mid-December discussions, he made plain that he would be raising both the seed capital and the loan moneys from investor-clients of Findlays. In his first affidavit Mr Findlay records himself as saying to Mr Salfinger: "It can be hard to raise seed capital and loan funding, particularly in amounts this large, so we'll need a bit of time. We'll be raising the funds from our clients. We will act as their agent in our dealings with you. We will transfer the loan funds to TPM as their agent. This will simplify the documentation." In subsequent conversations in early January concerning the preparation of a loan agreement with TPM for the moneys required to exercise the option, Mr Findlay's affidavit records him saying: "As you know, Expectation [a client company of Findlays'] might be interested in putting some funds in. I have been trying to raise $600,000 worth of funds. I won't be able to raise more than that in this short amount of time. Expectation might invest $250,000 but it's not a done deal yet. I'm hoping to talk to them shortly. The other funding however is coming from private clients of Findlays. I'll have an agency agreement with these smaller clients. It would be too inefficient for you to deal with each one of them, so I will deal with you on their behalf. However, Expectation, if it comes aboard, might contact you directly. It might wish to enter into its own loan agreement with you." 8 The $170,000 of seed capital was raised from investors and was transferred to what was in fact Trans Pacific's nominated bank account in tranches over the period late December 2003 to 15 January 2004. 9 In early 2004, Mr Salfinger gave instructions to his Australian lawyers for "a simple loan agreement [to be] prepared for the money to be advanced by Findlays and/or their clients". All that need be noted of the actual instructions given are that they described the agreement as being "between TPM (the 'Borrower') [in fact Trans Pacific by this time] and Findlay & Co Stockbrokers Ltd ('Findlays'/the 'Lender') as agent for various parties, ie their various clients"; and the agreement was to provide that Findlays was allowed "to assign any and all its rights to its clients". So commenced an evolving process of preparation and exchange of a draft loan agreement, the detail of which was augmented over time. In all versions of the draft loan agreement referred to in this appeal prior to the penultimate draft, the parties and signatories were Trans Pacific Mining Ltd, a Canadian company called Arkaroola Resources (which is of no present relevance) and Findlays. It was only when the ABN number of Trans Pacific Mining Ltd was used (seemingly in the penultimate draft of the agreement) that the true identity of the contractor was at all evident, i.e. it was Trans Pacific, not TPM. 10 By the time a final version of the written loan agreement had been prepared in late February 2004, AUD450,000 had already been advanced (around 20 January) to Trans Pacific in Canada and was being held in a law firm's trust account. The terms of the loan agreement reflected this. On 25 February 2004, Trans Pacific and Arkaroola signed the agreement. Additionally, Trans Pacific as mortgagor executed the debenture envisaged by the loan agreement in favour of Findlays. Both documents were transmitted to Findlays for execution. The terms of that agreement had been finalised in Findlay's office with Salfinger on 24 February 2004. 11 The signed loan agreement was expressed to be between only Trans Pacific, Arkaroola and Findlays. Its recitals stated, inter alia, that: "A. TPM intends to purchase an interest in a mining property known as the Summit Lake Mine which is located in British Columbia, Canada and has borrowed A$450,000 from Findlay for the purchase of the aforesaid mine. … C. Findlay requires security for the loan monies advanced to TPM. … H. Findlay is acting as agent for various clients of Findlay and in its own right agrees to lend funds to TPM on the terms contained herein". (Emphasis added.) The loan agreement itself provided, inter alia, that: "1. Loan Amount and Term. 1.1 Findlay agrees to lend TPM the sum of A$450,000 ('Loan') to TPM for the purpose of purchasing the Summit Lake Mine. As of about January 20 2004 the date of this agreement the funds have been placed into the trust account of Fraser Milner Casgrain in Vancouver BC Canada. 1.2 The Loan is repayable a) If the Summit Lake Mine purchase goes ahead before the end of March 2004, repayment is to be within seven days of the completion of TPM's IPO offering, but in any event by not later than the 31 May 2004. b) If the Summit Lake Mine purchase does not go ahead by the end of March 2004 repayment is to be made by 7th of April 2004. … 2. Option to Convert 2.1 Prior to the Repayment Date or seven days prior to the ASX listing date Findlay will have the option to elect to convert the Loan amount to fully paid ordinary shares (the 'Conversion Shares') in the capital of TPM at the conversion price of $0.25 per share. 2.2 The election shall be done in writing and provided to TPM. 2.3 If Findlay elects to convert the Loan it will be doing so on behalf of its clients and will direct TPM to issue the Conversion Shares to specific persons or entities as per the respective cash inputs received by Findlay. … 4. Security TPM will provide security by 4.1 Fixed and Floating charge over all of the assets of TPM including the Loan funds as per the attached document in Schedule A [The Debenture given to Findlay Underwriters]. … 5. Default: 5.1 TPM is liable to repay the loan within four calendar months from the date of this deed or within 14 days of closure of the IPO whichever is the earlier ('Due Date'). 5.2 If the Loan is not repaid by the Due Date, TPM shall have a period of 10 days to make payment failing which Findlay may take such actions as to realise on the Securities to repay the loan provided that it shall properly exercise and carry out the duties of a mortgagee in possession. In so doing it shall openly offer and realise on the security provided in this agreement on the open market at market value and make such offering of a security only for the purpose of recovering the Loan amount and the costs of recovery. After repayment, Findlay shall discharge the balance of security to TPM and pay any excess from a sale of any asset to TPM." The only comments that ought be made on the above are that: (i) the second sentence of cl 1.1 was only inserted in the 25 February version of the agreement; and (ii) cl 1.2 was only agreed to on 24 February 2004. The term of the loan originally envisaged and contained in the earlier draft was to be four months. 12 Mr Findlay was on holidays in Canada when the agreements were sent to his office for execution. While in Canada he learned that TPM had no option for the Summit Lake Mine and that its owner had no intention of selling it. He then telephoned Mr Salfinger and indicated he "should pay back the money to the investors". A demand for repayment was made soon thereafter. The uncontested evidence was that Mr Findlay did not sign the loan agreement as he had been advised that the money was coming back shortly and he thought "that the document has lost its relevance … I could not see the utility of signing the loan agreement." 13 The $450,000 was transferred to Trans Pacific's account in Australia on the apparent understanding it would then be transferred to Findlays. This did not occur. 14 It is Findlays' evidence (accepted by the primary judge) that it was around 15 April 2004 that: "I became aware that the transition from the 'old TPM' to the 'new TPM' took place on or about 15 December 2003 … On that date the 'old TPM' changed its name to Carminco Gold & Resources Limited and the 'new TPM' was incorporated. It would now appear that all our funds (the loan funds of $450,000 and the seed capital of $175,000) were transferred to the 'new TPM' in December 2003 and January 2004 at Salfinger's direction even though I was not informed of the existence or the proposal to set up a 'new TPM' until about February 2004."

THE PLEADINGS 15 Put in short form Findlays' claims were, insofar as presently relevant: (i) against Carminco and Trans Pacific, for contraventions of s 52 of the TP Act through misrepresentations made by Salfinger in relation (a) to the Summit Lake option; (b) to their interest in the North Queensland tenements and (c) to provision of security for the loan advances; (ii) against Salfinger, as a person knowingly involved in those contraventions pursuant to s 75B of the TP Act; (iii) that Findlays would not have made the payments of the seed capital and the loan moneys but for the misrepresentations and in consequence sustained loss in the amount of the two advances; and (iv) for breach of contract, the contract pleaded being an agreement entered into by Findlays with TPM and/or Trans Pacific in about early January 2004 which included terms that: "(a) $450,000 ('the Loan monies') would be advanced by [Findlays] to [TPM] by 15 January 2004 for the sole purpose of enabling [TPM] to exercise the option referred to in paragraph 6 above. (b) In the event that [Trans Pacific] or [TPM] made an initial offering of shares to the public, the Loan monies would be repayable 7 days after the offer closed. (c) In the event that there was no initial offering of shares to the public by mid-May 2004 the Loan monies would become immediately due and payable. Particulars The terms were express and were constituted by conversations between [Mr] Findlay and/or [Mr] Vajda on behalf of [Findlays] and Salfinger on behalf of [Trans Pacific] and/or TPM in or around mid-December 2003 and early 2004." The alleged breach was that no IPO was made; TPM and/or Trans Pacific thus became liable to repay the loan moneys on demand; and a demand was made but the loan monies have not been repaid. 16 The appellants' amended defence, relevantly, was that: (i) "[the seed capital monies] were paid to [Trans Pacific] pursuant to an agreement between it and [Findlays] for the provision of pre IPO seed share subscriptions from various parties. The substance of the agreement was that the said monies were to be paid as share capital in the [TPM]": par 9 (emphasis added); (ii) the loan agreement pleaded by Findlays was denied, but it was claimed to the contrary that on or about 8 January 2004 while in Canada, Findlays agreed with the Second Respondent to immediately raise the sum of $450,000 to assist with the purchase of the Summit Lake Mine on or before 12 January 2004. The terms of the alleged agreement included: "a) the sum of $450,000 would be made up from various loan amounts to be made to [TPM] from [Findlays'] clients convertible to shares for [Findlays'] clients upon the advice of [Findlays] to [TPM]; b) if [Findlays] elected on behalf of its clients not to take shares, security would be given at that time but the money would be repayable at the successful conclusion of the Findlay IPO described below; c) if shares were to be taken, the status of the $450,000 as a loan would only be from the time of advance until issue of the shares ('the Interim Loan Agreement')": par 17 (emphasis added); (iii) as to the payment of the loan moneys to Trans Pacific, it was said (par 18) that insofar as Findlays paid any monies to TPM it did so knowingly and on behalf and as agent for undisclosed principals that had paid or were obliged to pay the sums making up those monies to Findlays. Accordingly: "a) [Findlays] has no standing to bring this or any action against the Respondent's [sic] in respect of any monies paid, such action accruing only to the said undisclosed principals; and, or alternatively b) [Findlays] has not and cannot have incurred any loss." 17 We would emphasise that the defence in par 18 describes the principals as "undisclosed" and not as "unidentified" principals. We have referred to the above paragraphs of the defence because of the grounds of appeal now sought to be raised by the appellants.

THE PRIMARY JUDGE'S DECISION 18 His Honour found the contraventions of s 52 that were alleged and that the relevant misrepresentations had been relied upon by Findlays to its loss. He ordered that the three respondents pay damages in the sums of the two advances plus interest. The primary judge found, as well, a breach of the contract in the terms which he thus described: "The evidence establishes that, in consideration of Findlay Underwriters providing seed capital of $170,000 and a loan of $450,000 solely for the purpose of the exercise of the option alleged to be held by the respondents over the Summit Lake Mine, the company would issue to Findlay Underwriters free of charge two shares for every dollar loaned to the company and would provide security over all of the assets of the company. It was further agreed that the funds would be repaid seven days after the successful closure of the IPO and if there was no IPO, at the end of four months from the date of the advance."

THE APPEAL 19 The appellants' grounds of appeal challenge first and foremost the primary judge's contract finding. It is contended that Findlays acted in the matter as agent for investor-clients in making the advances and in entering into the contract. As put in submissions, it was contended that Findlays acted solely as an agent in advancing moneys to the appellants pursuant to the agreement; it was not a party to that agreement; it was unable to bring proceedings to enforce it or to claim damages for its breach; and, as a mere agent, it sustained no loss or damage for the purpose of s 82 of the TP Act.

CONSIDERATION 20 It has been objected by Findlays that the ground now sought to be raised on the appeal was not raised before the primary judge. It is said, first, that pars 9 and 17 of the defence admit an agreement with Findlays; and, secondly, that the appeal now raises an agency argument in relation to "disclosed" principals, not "undisclosed" ones, in contradiction of par 18 of the defence. 21 We consider it unnecessary to deal with this objection, as it is clear that, howsoever put, the appeal must be dismissed. 22 The contract issue raised a simple question as to who, objectively considered, were intended to be the parties to the contract under which the monetary advances were to be made. There is no question here as to (i) whether Findlays entered into a contract collateral to one contract between TPM or Trans Pacific and the client-investors: cf Yeung Kai Yung [1981] AC 787; or (ii) whether, though acting as an agent, Findlays became a principal on the contract by virtue of some trade custom: see the many examples referred to in Bowstead and Reynolds on Agency, [9-016] fn 2. 23 Ascertaining whether Findlays entered into a personal engagement with TPM or Trans Pacific and, if so, whether to the exclusion of its principals, or jointly and severally with them, raises a question of objective intention. As Brandon J said in The "Swan" [1968] 1 Lloyd's Rep 5 at 12: "Where A contracts with B on behalf of a disclosed principal C, the question whether both A and C are liable on the contract or only C depends on the intention of the parties. That intention is to be gathered from (1) the nature of the contract, (2) its terms and (3) the surrounding circumstances: see Bowstead on Agency, (12th ed.) (1959), at pp. 257 and 258, par. 113, and the authorities there cited. The intention for which the Court looks is not the subjective intention of A or of B. Their subjective intentions may differ. The intention for which the Court looks is an objective intention of both parties, based on what two reasonable businessmen making a contract of that nature, in those terms and in those surrounding circumstances, must be taken to have intended. Where a contract is wholly in writing, the intention depends on the true construction, having regard to the nature of the contract and the surrounding circumstances, of the document or documents in which the contract is contained. Where, as in the present case, the contract is partly oral and partly in writing, the intention depends on the true effect, having regard again to the nature of the contract and the surrounding circumstances, of the oral and written terms taken together." It should be added that a like enquiry is required when the question is whether the contract is one to which the agent alone is a party, notwithstanding the agent is known by the other contracting parties to be acting as an agent for disclosed but unidentified principals: see Hichens, Harrison, Woolston & Co v Jackson & Sons [1943] AC 266 at 274; Maritime Stores Ltd v H P Marshall & Co Ltd [1963] 1 Lloyd's Rep 602 at 608; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 483 [33]-[35]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 466-467 [36]-[38]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 178-182 [36]-[47]; Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 627A-E per McLelland J; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 636F-637A per McHugh JA, Kirby P and Glass JA agreeing. 24 Little attention has been given in this matter to the question whether, if Findlays was a party to the contract, it was so to the exclusion of its principals or was so jointly and severally with its principals. The assumption made appears to have been that it alone was a party. 25 Was an oral contract made in mid-December (as found by the primary judge) and who were the parties to it? The evidence clearly establishes that at that time, Findlays was intending to raise the funds for both the seed capital and the loan from client investors and that it would be in an agency relationship, for some purposes at least, with the participating clients. While the expected principals came from a known class, i.e. clients of Findlays, they were not only not then identified, they also were not ascertained. This factor of itself points strongly in favour of a conclusion that, if a contract was entered into at that time, it was entered into by Findlays as the principal, albeit the raising of the relevant sums from clients may have been a condition precedent to performance of the obligations to lend: cf Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. 26 Also pointing to the same end is the inherent improbability (a) of each investor assuming joint, or joint and several, responsibility for the entire advance to which that investor would make a contribution; or (b) of each investor entering into a several contract with TPM/Trans Pacific in respect of his or her contribution only. The latter conclusion becomes the more obvious when regard is had to the contract's stipulation that security was to be granted for the loan and to the plethora of documentation that would have been required if there were several contracts with the investors. 27 Though Mr Salfinger and Mr Findlay clearly acknowledged that Findlays would be an agent of the principals who invested, it seems equally clear that as reasonable businessmen, in the context of the "aggregating" arrangement to be effected by Findlays with its clients' funds, they sought to have an agreement which could, in Mr Findlay's words, be rendered in a way that "will simplify the documentation" - or as Mr Salfinger put it, "we need a simple loan agreement". The mid-December contract found by the primary judge was a rudimentary one - it left further detail to be supplied, for example, the term of the loan and its repayment - but it is one which clearly was open to be found: GR Securities 40 NSWLR at 634E-636A per McHugh JA. We agree with his Honour's conclusion both as to its then terms and that it was intended to be between Findlays and TPM (whatever plans, undisclosed to Findlays, Mr Salfinger had for Trans Pacific in the arrangement, on which see Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563). 28 It equally is the case that the parties intended to, and did, add to and vary their contract both as their business relationship evolved and in response to evolving circumstances. They also intended that the terms of their loan agreement would be reduced to writing, though it was not to be "subject to contract": cf Masters v Cameron (1954) 91 CLR 353 at 360-361; GR Securities 40 NSWLR at 634E-F and see LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2002) 18 BCL 57. The existence of the earlier contract did not preclude subsequent variations to the contractual relationship, either through varying the original agreement, supplanting it with a new one or entering into additional contracts between the same parties: Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2001) 201 CLR 520 at 533-534 [22]-[24] per Gleeson CJ, Gaudron, McHugh and Hayne JJ; Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at 316 [19] per Gleeson CJ, Gaudron and Gummow JJ. Thus, as his Honour found, there was agreement in early January between Mr Findlay and Mr Salfinger that the option funds would be repaid to Findlays within days from the date of listing if the IPO was successful (that date was estimated to be in early May). It was also agreed that the loan moneys would be repaid during that month if there was no IPO by May 2004. It is noteworthy that the contract as pleaded, and found to have been breached, contained terms to this effect notwithstanding they were agreed to after the December agreement. 29 We have referred to the evolving relationship as envisaged in the various versions of the draft loan agreement. We have done this to illustrate that in the agreed additions they made, Mr Findlay and Mr Salfinger remained faithful to the essential character of the December 2003/January 2004 contract. Though an evolving contract, it was, and was to remain, one contract under which Findlays alone acquired rights and assumed obligations - albeit it may well have been the case that, to the extent that Findlays had discretions to exercise, it may have been subject to the direction of its principals, or else that it held its contractual rights on trust for its principals. In Black v Smallwood (1966) 117 CLR 52 at 56, Barwick CJ, Kitto, Taylor and Owen JJ approved what Fullagar J had said in Summergreene v Parker (1950) 80 CLR 304 at 323, namely: "… the fundamental question in every case must be what the parties intended or must be fairly understood to have intended. If they have expressed themselves in writing, the writing must be construed by the court. If they have expressed themselves orally, the effect of what they said is a question of fact." (See too Scott v Geoghegan & Sons Pty Ltd (1969) 43 ALJR 243 at 245B-C per Taylor J.) 30 It is unnecessary for us to express a view as to whether the 25 February 2004 version (signed by Trans Pacific and Arkaroola but not Findlays) merely embodied in documentary form what had already been orally agreed (on 24 February and earlier) to be the terms of the parties' then contractual relationship. Significantly Mr Findlay did not disavow the terms of the 25 February loan agreement when he failed to sign it. He did not sign because, in light of what he had ascertained about the supposed "option", there was no utility in signing. 31 The conclusion that Findlays alone was the contracting party reflected, in our view, the commercial setting and purposes of the engagement envisaged by Mr Findlay and Mr Salfinger. It carried with it the consequence that Findlays was entitled to sue upon that contract for the repayment of the loan moneys, even if it was in the circumstances trustee of that right for the benefit of its investor-principals. Likewise, for the purposes of the TP Act claims, Findlays properly could be found to have suffered substantial loss by entering into and performing its contract in reliance upon the misrepresentations found by the primary judge. 32 We would note that no issue has been taken in this appeal as to the identity or identities of the other party or parties with whom Findlays contracted but cf Laws Holdings Ltd v Short (1972)46 ALJR 563. We express no view on this matter. It seems not to have been an issue before the primary judge. In any event, it has no operative bearing upon the orders made by the primary judge which related only to the TP Act claims. The conclusion that Findlays acted as a principal in the contract was itself sufficient to give it standing to sue under s 82 of that Act.

CONCLUSION 33 We will order that the appeal be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellants: JJ Fernon SC & S Moran

Solicitor for the Respondent: Gye Associates Lawyers