Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth

Supreme Court of NSW|2022-04-26|Before: Williams J

Introduction

By originating process filed on 7 April 2022, the plaintiffs applied to the Court for curative orders under s 1322(4)(a) of the Corporations Act 2001 (Cth) in relation to the effect of s 259C of that Act on certain acquisitions of shares and interests in shares in the first plaintiff by the second to seventh plaintiffs, each of which is a controlled entity of the first plaintiff within the meaning of s 259E, at various times between 5 December 2003 and 31 May 2021. The plaintiffs also sought an order under s 1322(4)(c) relieving them and their current and former directors and officers from any liability associated with those acquisitions, but that order was ultimately not pressed at the hearing of the originating process before me on 26 April 2022.
At the conclusion of the hearing, I made the orders sought under s 1322(4)(a) of the Corporations Act validating the issue and transfer of shares and interests in shares. These are my reasons for making those orders.

Acquisitions of Insignia shares by IIML, IISL and AET

IIML, IISL and AET have acquired shares in Insignia in their capacities as responsible entity, trustee and/or custodian: 1. during the period from 5 December 2003 to 31 May 2021 in the case of IIML; 2. during the period from 30 November 2019 to 31 May 2021, and possibly also during the period from 14 June 2017 to 30 November 2019 in the case of IISL; and 3. during the period from 30 April 2009 to 31 May 2021 in the case of AET.
The Court was informed during the hearing that some of the acquisitions made by IIML during the period from 5 December 2003 to 14 October 2005 were not covered by the relief that was then available to Insignia under s 259C(2) as referred to at [28] below.
Mr Mittelman's evidence is that a member of Insignia's Investment Operations Team has informed him that: "It will be extremely difficult, if not impossible, to trace every transaction of Insignia Shares for the period of 5 December 2003 to 31 May 2021, which may be void by operation of subsection 259C(1) of the Act. This is because: (i) each Plaintiff in its capacity as outlined above … has continued to acquire and dispose of Insignia Shares, which has likely resulted in a very large number of share transactions (likely involving millions of Insignia Shares) over the period 5 December 2003 to 31 May 2021 (or part thereof); (ii) many transactions are conducted through a financial adviser or an investment manager and it may not be possible to ascertain the counterparties to those transactions; (iii) the software systems used to record these transactions have undergone numerous systems changes over the period 5 December 2003 to 31 May 2021 and it may not be possible to provide a complete record of every transaction, where data has been destroyed or transferred to another system; (iv) …managed investment schemes have been deregistered or divested by the respective Plaintiffs over the period 5 December 2003 to 31 May 2021; and (v) record keeping requirements do not extend beyond 5 to 10 years (depending on the capacity the Plaintiff was operating in), making it almost impossible to trace back every transaction since 2003 onwards."
IIML, IISL and AET have held and continue to hold those Insignia shares for the benefit of the members of the managed investment schemes and/or the beneficiaries of the trust for the purpose of which they acquired the shares in their capacities as responsible entity, trustee or custodian (except to the extent that they have subsequently disposed of the shares in those capacities). Mr Mittelman describes those persons as "largely retail investors".
IIML, IISL and AET hold rights of indemnity out of the assets of each scheme or trust in respect of which they acquired the Insignia shares. The plaintiffs submit, and I accept, that those rights of indemnity confer on the holder of the shares (that is, IIML, IISL or AET) a beneficial interest in the assets of the relevant scheme or trust: Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 at 367-370 (Stephen, Mason, Aickin and Wilson JJ); Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 at [80]-[85] (Bell, Gageler and Nettle JJ) and [106], [133]-[140] (Gordon J). There is an unresolved question whether the expression "beneficial interest" in s 259C(1)(b), properly construed, extends to an interest created by a trustee's right to be indemnified out of trust assets: see Re Australia and New Zealand Banking Group Ltd (2010) 272 ALR 400; [2010] FCA 945 at [40]-[43]. In that case, the plaintiffs sought relief under s 1322(4)(a) to overcome any contention that acquisitions of a company's shares by controlled entities in their capacity as responsible entities or trustees was not covered by s 259C(1)(b). Insignia and the other plaintiffs in this case adopt the same approach rather than asking the Court to resolve the statutory construction issue. I am content to adopt that approach.
There is no suggestion that the exceptions in s 259C(1)(a), (c) or (d) apply.

Acquisition of Insignia shares by OPC, OPFM and Oasis

In the period from 31 January 2022 to 31 May 2021, OPC, OPFM and Oasis acquired shares in Insignia in their capacities as responsible entity, trustee and/or custodian.
Mr Mittelman's evidence referred to at [20] above also applies to these share transactions, although I infer that the considerations referred to at (iii) and (v) may not be relevant given that the period in which these transactions occurred commenced on 31 January 2022.
OPC, OPFM and Oasis have held and continue to hold those Insignia shares for the benefit of the members of the managed investment schemes and/or the beneficiaries of the trust for the purpose of which they acquired the shares in their capacities as responsible entity, trustee or custodian (except to the extent that they have subsequently disposed of the shares in those capacities). Again, Mr Mittelman describes the persons on whose behalf the shares were acquired and, where applicable, continue to be held, as "largely retail investors".
OPC, OPFM and Oasis hold rights of indemnity out of the assets of each scheme or trust in respect of which they acquired the Insignia shares. The observations at [22] above apply equally to the Insignia shares acquired by OPC, OPFM and Oasis.

How did the non-compliance with s 259C during the period from 5 December 2003 to 31 May 2021 come about?

Insignia sought relief from the Australian Securities and Investments Commission (ASIC) from the operation of s 259C of the Corporations Act during the course of its preparations to list on the Australian Stock Exchange in 2003. ASIC granted that relief on 15 October 2003 for a period of two years unless earlier revoked. The relief remained in place until 14 October 2005.
It appears that IIML acquired shares in Insignia for some schemes and/or trusts that were outside the scope of that relief and that Insignia did not apply to renew the relief after it expired on 14 October 2005. Mr Mittelman's searches of Insignia's records and inquiries with current and former officers has not revealed any such application. As the plaintiffs acknowledge, it is not clear why no such application was made.
According to Mr Mittelman, officers of Insignia began to turn their mind to whether Insignia required relief under s 259C of the Corporations Act when ANZ representatives raised questions about this in about October 2019 in the process of Insignia and ANZ working towards completing the transaction whereby Insignia acquired the ANZ wealth business on 30 January 2020.
At that time, Insignia received external legal advice to the effect that it was not necessary for it to obtain relief under s 259C(2) because the exception in s 259C(1)(b) applied.
The external legal adviser subsequently gave advice in less unequivocal terms in late November 2019. On that occasion, the advice was to the effect that s 259C(1)(b) rendered it unlikely that Insignia required relief under s 295C(2), but that a workshop should be held by the Insignia investment accounting team to work through that issue. Mr Mittelman has given evidence that: "For various reasons at the time including the ANZ Transaction and the staff turnover, the workshop did not eventuate."
Mr Mittelman's evidence reveals that Insignia completed its acquisition of OPC, OPFM and Oasis on 30 January 2020 without having taken any further steps in relation to the s 259C question, notwithstanding that the Head of Assurance & Compliance - Pensions & Investments at ANZ Wealth Australia raised the issue again on 23 January 2020 with Insignia's Acting Chief Risk Officer. The Acting Chief Risk Officer forwarded the question to the Company Secretary of Insignia, which resulted in Mr Mittelman advising the Acting Chief Risk Officer that the Head of Fund Operations was "across this issue" and that external legal advice had "confirmed we did not need to apply for an exemption" but that "following completion with ANZ, we may need to revisit this issue". Regrettably, that does not appear to have resulted in any action being taken to arrange the workshop that the external legal adviser had recommended to work through the question whether an exemption was required. Nor does anything else appear to have been done to "revisit" the s 259C issue after completion of Insignia's acquisition of OPC, OPFM and Oasis. Rather, the issue was next raised in about August 2020 when Insignia was in the process of purchasing the NAB wealth business. The issue arose again at that time because (as had been the case with ANZ) NAB had an exemption under s 259C and Insignia did not.
This prompted Mr Mittelman to obtain further external legal advice in November 2020. That advice was to the effect that s 259C(1)(b) did not apply and Insignia was therefore required to seek prospective relief from ASIC under s 259C(2) and retrospective relief from the Court under s 1322 of the Corporations Act in relation to transactions involving the acquisition of Insignia shares by IIML, IISL, AET, OPFM, OPC and Oasis in their capacities as responsible entity, trustee and/or custodian of managed investment schemes and trusts.
Insignia made an application to ASIC for relief under s 259C(2) on 22 December 2020.
I infer from the period in respect of which relief is now sought under s 1322 that Insignia did not take steps to prevent IIML, IISL, AET, OPFM, OPC and Oasis from acquiring shares in Insignia during the period between 22 December 2020 and 31 May 2021 pending ASIC's determination of its application for relief under s 259C(2).
Mr Mittelman has given evidence that: "I am not aware of any reason why the current and former Directors and Company Secretary of Insignia have not acted honestly in connection with the Insignia Shares specific to the relief sought."
The evidence identifies the current directors and company secretaries of Insignia. The evidence does not identify the former directors and company secretaries of Insignia. Nor does it identify the current or former directors of any of the other plaintiffs. There is no evidence concerning the responsibilities of management and directors in relation to Insignia's compliance with Part 2J of the Corporations Act (including s 259C), the extent to which such compliance matters were reported to the board of directors or committees of the board, or the conduct of directors in relation to such compliance matters. In particular, there is no evidence whether or when Insignia's board of directors was aware that the relief granted by ASIC in October 2003 in respect of s 259C had expired in October 2005 and that no steps had been taken by Insignia to obtain further relief and, if they were aware, what (if any) action the directors took. Nor is there any evidence concerning any knowledge and action taken by Insignia's directors in relation to the questions concerning s 259C compliance that were raised during the ANZ wealth and NAB wealth transactions and the legal advice received by Insignia in late November 2019 and/or November 2020.

ASIC exemption granted

Insignia's application for relief made on 22 December 2020 was ultimately successful. ASIC granted relief that applies from 1 June 2021. The instrument granting that relief has no expiry date. There is evidence that Insignia has put in place training and other communications strategies to ensure that the conditions of the relief are complied with and to ensure that any transactions that fall outside the scope of the relief are identified and prevented before they are completed.

Persons affected by the transactions if not validated under s 1322(4)(a)

Mr Mittelman has given evidence that, based on his discussions with the member of Insignia's Investment Operations Team referred to at [20] above, he believes that the following persons would be adversely affected if the Court does not grant the relief sought by Insignia under s 1322(4)(a) of the Corporations Act: "(a) The investors or beneficiaries of the funds or trusts outlined above … because each transaction was ultimately made for the benefit of those investors or beneficiaries, who are largely retail investors. I believe that to void these transactions would likely impact a large percentage of retail investors in the market, given the size of funds under management by each of the Second to Seventh Plaintiffs; and (b) The counterparties to any trade in the period who entered into and relied on the transaction in good faith. … I was informed that a very large number of transactions (likely involving millions of Insignia Shares) have occurred over the period of 5 December 2003 to 31 May 2021 (or part thereof), and as such, those transactions would involve a significant number of counterparties."
I note that the prejudice identified by Mr Mittelman must have been obvious to Insignia after it received the external legal advice referred to at [34] above in November 2020. As I have already mentioned, it appears that Insignia nevertheless took no steps to avoid that prejudice to retail investors and counterparties by taking steps to prevent IIML, IISL, AET, OPFM, OPC and Oasis from acquiring its shares after receiving that advice and pending the determination of its application for relief under s 259C(2). Thus, the application to the Court for relief under s 1322(4)(a) extends to share transactions during the period up to 31 May 2021. There is no evidence explaining how and why those transactions were permitted to occur in the period after Insignia received the legal advice in November 2020.
Mr Mittelman has also deposed that: "Further, I am not aware of any: (a) person or entity that has been or may have been prejudiced by the non‑compliance; (b) person or entity that would be prejudiced or adversely affected, or that any injustice is likely to be caused to any person, if the relief sought by Insignia in the originating process is granted; and (c) reason why it would not be just or equitable for the relief sought by Insignia to be granted."

ASIC's attitude to the present application

Insignia has notified ASIC of these proceedings, including providing ASIC with a copy of the originating process setting out the relief sought, a copy of Mr Mittelman's first affidavit and Exhibit MJM1 to that affidavit and a draft of the submissions that were filed on behalf of the plaintiffs on 22 April 2022. On 21 April 2022, ASIC informed the plaintiffs that it neither supported nor opposed the application and did not wish to appear at the hearing.

Consideration and determination

As the plaintiffs submit, it is well established that the Court has power to make orders under s 1322(4) of the Corporations Act in relation to transfers or issues of shares or interests in shares that would otherwise be void by reason of s 259C, subject to the requirements of s 1322(6): Re Westpac Banking Corporation (2004) 53 ACSR 288; [2004] FCA 1792 at [23]-[25]; see also Re Commonwealth Bank of Australia (2005) 57 ACSR 28; [2005] FCA 1940; Re MLC Ltd (2006) 60 ACSR 187; [2006] FCA 1357; Re Australia and New Zealand Banking Group Ltd (2010) 272 ALR 400; [2010] FCA 945; Re Macquarie Group Ltd [2010] FCA 1507; Re Macquarie Securities (Australia) Ltd [2014] FCA 455.
Section 1322(4) relevantly provides: "(4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation; (b) … (c) an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a)."
Section 1322(6) relevantly provides: "(6) The Court must not make an order under this section unless it is satisfied: (a) in the case of an order referred to in paragraph 4(a): (i) that the act, matter or thing, or the proceeding referred to in that paragraph is essentially of a procedural nature; (ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or (iii) that it is just and equitable that the order be made; and (b) in the case of an order referred to in paragraph 4(c) - that the person subject to the civil liability concerned acted honestly; and (c) in every case - that no substantial injustice has been or is likely to be caused to any person."
The plaintiffs submit, and I accept, that only one of the three paragraphs of s 1322(6)(a) need be satisfied: Re Westpac Banking Corporation (2004) 53 ACSR 288; [2004] FCA 1792 at [27]; Re MLC Ltd (2006) 60 ACSR 187; [2006] FCA 1357 at [10]; Re Australia and New Zealand Banking Group Ltd (2010) 272 ALR 400; [2010] FCA 945 at [61].
I accept the plaintiffs' submissions that it is just and equitable that the orders sought under s 1322(4)(a) validating the share transactions be made and that no substantial injustice is likely to be caused to any person by the making of that order. In particular, I accept the submission that the validation of the transactions will do no more than formalise the intention and understanding of the parties to the transactions at the time and the understanding of those persons for whom IIML, IISL, AET, OPFM, OPC and Oasis hold the relevant Insignia shares on trust. I also accept that substantial prejudice would be occasioned if the curative orders were not made under s 1322(4)(a). As the plaintiffs submitted, the millions of Insignia shares that are the subject of the relevant transactions will not in fact have been acquired by Insignia's controlled entities in their capacities as responsible entities, trustees and/or custodians and subsequent purported disposals of the shares will also have been ineffective. The extent of the problem cannot fully be determined in circumstances where the shares may have been purportedly traded in the market many times over during the long period of time in respect of which the application under s 1322(4)(a) is made. Considerable disruption to the market and prejudice to third parties (including members of schemes and beneficiaries of trusts for which the controlled entities purportedly acquired the Insignia shares) if the acquisitions are not validated.
Those matters satisfy s 1322(6)(a)(iii) and (c) and are sufficient reason to make the orders sought by the plaintiffs under s 1322(4)(a). I do not regard the plaintiffs' failure to explain the continuation of the issue or transfer of Insignia shares to its controlled entities in the period after receipt of the November 2020 legal advice until 31 May 2021 as detracting from the conclusion that it is just and equitable that the orders be made. The persons who stand to be prejudiced if the Court declines to make the orders under s 1322(4)(a) are not responsible for the unexplained conduct of Insignia in failing to prevent the share transactions during that period.
Further matters favouring the exercise of the discretion to make the curative orders under s 1322(4)(a) are that ASIC does not oppose the application, the risk of future non-compliance with s 259C has been reduced by the relief granted by ASIC with effect from 1 June 2021 and Insignia has taken steps to minimise that reduced risk.
During the hearing, I raised with Senior Counsel for the plaintiffs my concern about whether the order sought under s 1322(4)(c) could be made having regard to the absence of evidence about the matters referred to at [38] and [41] above. Whilst the evidence provides no basis for finding dishonesty on the part of the plaintiffs or their current and former directors and officers, it did not seem to me to provide a sufficient basis for the Court to achieve the state of positive satisfaction required by s 1322(6)(b) that the plaintiffs and their directors and officers did act honestly in relation to each and every acquisition of Insignia shares over the whole of the relevant time periods. Absent such a state of satisfaction, the order under s 1322(4)(c) must not be made. When I raised those concerns with Senior Counsel, the plaintiffs elected not to press their application for the order under s 1322(4)(c).
Of course, as I indicated during the hearing, that does not preclude the plaintiffs or their directors and officers from applying in the future for relief under s 1322(4)(c) of the Corporations Act from any civil liability in respect of acquisitions of Insignia shares that fall within the scope of the present application, in the event that they find themselves defending civil proceedings concerning those acquisitions. I note that the plaintiffs did not identify any particular risk of civil liability, and that this risk might be thought to be remote in circumstances where s 259C is not a civil penalty provision and the plaintiffs have submitted and I have accepted that it is just and equitable that the validating orders be made under s 1322(4)(a) and that no substantial injustice is likely to be caused to any person by the making of those orders.

Conclusion and orders

For those reasons, the Court made the following orders at the conclusion of the hearing on 26 April 2022: 1. Order pursuant to section 1322(4)(a) of the Corporations Act 2001 (Cth) that the issue or transfer to the Second Plaintiff of shares (or units of shares) in Insignia Financial Ltd in the period 5 December 2003 to 31 May 2021 are not void by reason of the operation of section 259C of the Act. 2. Order pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) that the issue or transfer to the Third Plaintiff of shares (or units of shares) in the period 14 June 2017 to 31 May 2021 are not void by reason of the operation of s 259C of the Corporations Act 2001 (Cth). 3. Order pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) that the issue or transfer to the Fourth Plaintiff of shares (or units of shares) in Insignia Financial Ltd in the period 30 April 2009 to 31 May 2021 are not void by reason of the operation of s 259C of the Corporations Act 2001 (Cth). 4. Order pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) that the issue or transfer to the Fifth, Sixth and Seventh Plaintiffs of shares (or units of shares) in Insignia Financial Ltd in the period 31 January 2020 to 31 May 2021 are not void by reason of the operation of s 259C of the Corporations Act 2001 (Cth). 5. Note that Prayer 5 of the originating process filed on 7 April 2022 is not pressed.

Amendments 27 April 2022 - Minor changes to formatting of quotes DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2022

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