Castrisios v McManus

Background 2These proceedings were commenced by Originating Process (under the (NSW) Supreme Court (Corporations) Rules 1999 filed on 20 May 2011, against Mr Mudge only. Separate proceedings (2011/166385) were commenced on the same day against Mr Ferry. In each case, the Originating Process referred to and was accompanied by a document entitled "Points of Claim". On 27 June 2011, White J ordered that the two proceedings be consolidated. On 18 October 2011, pursuant to leave granted by Barrett J the previous day, an Amended Originating Process was filed in these proceedings, naming Mr Ferry as second defendant, together with a document entitled "Amended Points of Claim". On 27 March 2012, pursuant to leave granted by Hammerschlag J the previous day, the plaintiffs filed a "Further Amended Originating Process" joining Mr Bagg as third defendant, together with "Further Amended Points of Claim". The relief claimed in the further amended originating process filed 27 March 2012, as against the third defendant, was: 4. An order that the defendants contravened section 588G of the Act by failing to prevent the second plaintiff from incurring debts at a time when the second plaintiff was presumed insolvent pursuant to section 588E of the Act, being the period commencing 29 September 2004 to the date the second plaintiff was placed into liquidation. 5. In the alternative to order 4, an order that the defendants contravened section 588G of the Act by failing to prevent the second plaintiff from incurring debts at a time when the second plaintiff was insolvent, being the period commencing 29 September 2004 to the date the second plaintiff was placed into liquidation. 6. An order pursuant to section 588M of the Act that the defendants pay to the first plaintiff on behalf of the second plaintiff the sum of $2,687,500.59 being an amount equal to the loss suffered by creditors of the second plaintiff because of the defendants' contravention of section 588G of the Act. 7. An order that the defendants pay interest under Section 100 of the Civil Procedure Act 2005 on the whole of the amount pleaded in paragraph 6 herein at the prescribed rate from the date of filing this amended originating claim to the date of judgment. 8. An order for costs. 9. Such further order as the Court deems fit. 3Mr Bagg resides in South Africa. The plaintiffs encountered had some difficulty in effecting service on him. He has not filed an appearance. On 11 February 2014, the plaintiffs filed an interlocutory process claiming leave to proceed, under Uniform Civil Procedure Rules r 11.4; it was later amended on 26 May 2014 by adding claims for relief under (NSW) Civil Procedure Act 2005, s 63, in respect of any irregularity under UCPR rr 11.3 and 11.6, and under UCPR r 10.14(3) confirming service. On 21 February 2014, Mr Bagg filed a motion, which after amendment on 14 April 2014, claimed orders under UCPR r 12.11 declaring that the Originating Process had not been duly served, and setting aside any service that had been effected. The respective interlocutory applications were heard together by Lindsay J on 12 June 2014, and following supplementary written submissions his Honour on 10 July 2014 made the following orders: 1. Order that the plaintiff be granted leave to proceed against the third defendant. 2. Order that the third defendant be taken to have been served with originating process on 1 October 2013. 3. Order that the plaintiff be granted leave to amend his points of claim in accordance with the draft document entitled "Second Further Amended Points of Claim" dated "July 2014" and annexed to the plaintiff's supplementary submissions dated 1 July 2014. 4. Order that any amended points of claim filed pursuant to this grant of leave be filed and served no later than 17 July 2014. 5. Order that the third defendant file and serve any points of defence he proposes to file in response to the plaintiff's pleading no later than 14 August 2014. 6. Order that the proceedings be listed before the Corporations Registrar on 1 September 2014 for directions. 7. Reserve to the parties, if so advised, liberty to apply (after the close of pleadings) for an order that there be a preliminary determination of a separate question, or questions, about whether the "debts" relied upon by the plaintiff are capable of supporting the claims for relief made by the plaintiff. 8. Order that the third defendant's amended notice of motion be dismissed. 9. Order that the costs of the third defendant's amended notice of motion filed 15 April 2014 and the plaintiff's amended interlocutory process filed 26 May 2014 be the parties' respective costs in the proceedings. 4Following the making of those orders, the solicitors, who until then had acted for the third defendant, informed the plaintiffs' solicitors that they had no further instructions to act in the matter. The plaintiff that day filed the Second Further Amended Points of Claim, and sent a copy to Mr Bagg by email at three addresses in South Africa, advising that the matter was next in Court on 1 September 2014; a copy was also sent to his (former) solicitors. A "read" receipt was received from one of those email addresses on the same day. Despite having professed no further instructions, Mr Bagg's former solicitors on 22 August sent the plaintiffs' solicitors a draft letter that they proposed to send to Lindsay J's associate, requesting information about the availability of his Honour's reasons. When consent to that course was not forthcoming (because they had stated that they had no further instructions), a similar letter - which I infer was drafted by those solicitors - was sent by Mr Bagg himself on 1 September 2014 asserting that he no longer had legal representation. 5Mr Bagg did not file points of defence within the time limited by Lindsay J's direction. When the matter came before the Court in the Registrar's List on 1 September 2014, it was adjourned to 8 September. On 8 September, the plaintiffs filed an interlocutory process, returnable on 22 September, claiming the following relief: 1. An order that judgment be entered in favour of the Plaintiff against the Third defendant and 2. An order under section 588M of the Corporations Act 2001 (Cth) that the Plaintiff may recover from the Third Defendant, as a debt due to the company, an amount equal to the amount of the loss or damage resulting from a contravention of section 588G of the Corporations Act 2001 (Cth). 3. An order that the matter be set down for a hearing for the assessment of the quantum of the Plaintiff's claim against the Third Defendant. 4. Any other orders as the Court sees fit. 6On 16 September, the plaintiffs' solicitors sent a letter to Mr Bagg, attaching a copy of the interlocutory process and advising that the matter was next in Court on 22 September, and that the plaintiffs intended to proceed on the motion that day. When the matter came before the Court on 22 September, Mr Kalyk of counsel, who had appeared for Mr Bagg on the hearing of the motions before Lindsay J, informed the Court that it was intent to file an application for leave to appeal from the orders of Lindsay J (and if necessary for an extension of time) within the next few weeks, and invited the Court to adjourn the hearing of the application in the meantime, but otherwise eschewed participating in the proceedings, lest it be regarded as submitting to the jurisdiction. 7At that stage, I declined to adjourn the hearing of the interlocutory process, as time for instituting an appeal from the orders of Lindsay J made on 10 June 2014 had long since expired, and the third defendant had not only failed to file a defence in compliance with his Honour's directions, but his solicitors had indicated that they held no further instructions to act. Eventually, on 29 September 2014, Mr Bagg filed in the Court of Appeal an application for leave to appeal from Lindsay J's orders, which is listed for directions on 10 November. I am content to accept that it demonstrates arguable grounds of appeal, but that does not affect the basis on which I considered that the hearing should proceed on 22 September. If Lindsay J's order granting leave to proceed ultimately be overturned (consequent upon an extension of time, leave to appeal, and an appeal), then any judgment I give pursuant to the present application will fall with it. But given the approach the third defendant has adopted, and his failure either to file a defence or to apply within time (or even prior to the hearing of the motion) for leave to appeal, he ought not be entitled to yet a further opportunity to file a defence if Lindsay J's order stands. By not appearing in the proceedings, or filing a defence - long before Lindsay J allowed him a further opportunity to do so - he elected to contest jurisdiction and not the merits. He has at all times been astute to avoid any step that might be taken as submitting to the jurisdiction. That is a perfectly permissible course for him to take, but not one that entitles him to a further opportunity to file a defence.

Application for default judgment 8At first sight, the present application appeared to be one for a default judgment for unliquidated damages to be assessed under UCPR r 16.7, but when I explored this with the solicitor who appeared for the plaintiffs it emerged that the plaintiffs sought judgment for the total amount of the debts said to have been incurred in contravention of s 588G, namely $2,687,500.59, presumably under r 16.6 9UCPR Part 16 makes provision for application to be made for default judgment where a defendant has failed to file a defence within the time limited by the rules or allowed by order of the Court. However, by r 16.1, Part 16 applies only to proceedings commenced by statement of claim. The rule does not apply to proceedings commenced by originating process under the Supreme Court (Corporations) Rules [Wily v King [2010] NSWSC 352, [27]-[31]], as these proceedings were (and, by operation of those rules, had to be). No order has ever been made that the proceeding continue on pleadings, and the "Points of Claim" in their various iterations do not have the status of formal pleadings under the rules; essentially, they serve as a submission that states how the plaintiff puts its case. Even if they did, that would not change the fact that the proceeding was commenced - as it had to be - not by statement of claim but by originating process. Part 16 does not apply. 10Accordingly, it is not open to the plaintiffs to proceed by way of application for default judgment under Part 16. Because the points of claim are not pleadings, and notwithstanding the direction that a defence be filed, no deemed admission arises from them. The plaintiff must prove its case by admissible evidence.

Validity of service 11As to service, Lindsay J's order concludes for present purposes that the proceedings are to be taken to have been served on Mr Bagg on 1 October 2013. Further, I am satisfied that the second further amended points of claim filed on 10 July 2014 was brought to the notice of the third defendant that day, and (from Mr Kalyk's appearance) that he was aware of the interlocutory process and that it was to be heard on 22 September. 12Pursuant to UCPR r 6.2(4), originating process is valid for service for 6 months after the date on which it is filed. While amendment of the originating process does not affect that time limit [Wakim v Coleman [2010] NSWCA 221, [16]-[19]], where, as here, the third defendant was only joined by the amended originating process filed on 27 March 2012, as against him the originating process may be taken to have been filed on that date [UCPR r 6.28]. Nonetheless, in excess of 18 months then elapsed before the date on which it was "deemed" by Lindsay J to have been served. While the time for service may be extended by a specific order made in exercise of the power granted by UCPR r 1.12, no such order has been made. Had such an order been made prior to service, application could have been made under UCPR r 12.11(1)(e) to set it aside. 13However, service of originating process outside the period limited by UCPR r 6.2(4) is a mere irregularity that does not invalidate subsequent proceedings [Rust v Barnes [1980] 2 NSWLR 726], and given that, although the third defendant made an application under r 12.11 to set aside service, any objection on this ground should have been raised, if it was going to be raised, in the proceedings before Lindsay J. For that reason, any such objection should be regarded as concluded by the decision of Lindsay J [see also Civil Procedure Act, s 63(4)].

Liability for insolvent trading under s 588G 14In summary form, the ingredients of a contravention of s 588G are that (a) the company incurred a particular debt or debts; (b) the company was insolvent when the debt was incurred; (c) there were at that time reasonable grounds for suspecting that the company was insolvent; (d) that time was after the commencement of the Corporations Act; (e) the defendant director failed to prevent the company from incurring the debt and (f) the director was aware at that time that there were grounds for suspecting that the company was insolvent, or a reasonable person in the director's position would have been so aware. 15The plaintiffs relied on two affidavits of the liquidator, of 25 March and 22 September 2014. Although, as I have said, the Second Further Amended Points of Claim is not a formal pleading, it does articulate how the plaintiffs put their case. 16The debts incurred. The liquidator claims in respect of debts due to Southern Cross Constructions Pty Limited ("SCC") and the Australian Taxation Office ("ATO"). The SCC debt (of $1,776,512.99) was incurred not later than 29 September 2004 by a Security Deed of that date. The ATO debt comprises amounts for GST - which I am satisfied were incurred upon the completion of the sale of lots in the company's development project, between 21 February 2007 and 25 March 2008 - together with the General Interest Charge thereon. Initially, I was troubled whether the incurring of a taxation liability was within the concept of incurring a debt for the purposes of s 588G, but despite some earlier authority to the contrary [Castrisios v McManus (1990) 4 ACSR 1; [1990] Tas R (NC) N13], it is now established that taxation liabilities and associated interest and penalties are debts incurred within the meaning of the section [Commissioner of Taxation (WA) v Pollock (1993) 11 WAR 64; 12 ACSR 217; Powell v Fryer (2001) 159 FLR 433; 37 ACSR 589; [2001] SASC 59]. 17Presumed insolvency. The plaintiffs invoke the presumption of insolvency arising under s 588E if the company fails to keep adequate books and records. The only evidence to found it is an assertion, in the liquidator's affidavit of 22 September, that "it has become apparent" that the Company did not keep adequate books and records from 1 July 2003. That bare assertion is not acceptable evidence of the matter alleged. I am unpersuaded on this evidence that the presumption under s 588E arises. 18Actual insolvency. The evidence establishes that (1) on or about 12 December 2002 the company incurred a stamp duty liability of $572,642 upon a declaration of trust contained in a joint venture deed executed that day; (2) on or about 7 July 2005, the company entered into an instalment arrangement in respect of its land tax liability. The company did not comply with the arrangement and it was revoked by the Office of State Revenue on 23 May 2006, by which time the amount outstanding was approximately $156,000; (3) by May 2006, the directors appreciated that there would be a shortfall of $1.5 million between the funds the company had borrowed from Capital Finance Limited and the costs of construction, and entered into a deed with its builder SCC to repay the shortfall by June 2006; (4) in June 2006 the company failed to pay the sum of $1.5 million then due to SCC. In a liquidator's examination, Mr Mudge admitted that the company was unable to repay that debt when it became due and payable on 12 June 2006, and Mr Ferry admitted that he appreciated by then that there was not going to be enough money to pay that debt; (5) extensions of the time for payment of the SCC debt were granted but not complied with and on 23 August 2006 SCC demanded payment; (6) also on 23 August 2006, the ATO gave notice of intended legal action to recover an outstanding amount of $331,818.95. The company paid the amount outstanding to the ATO by 31 August 2006, but did not pay SCC; (7) on 20 December 2006 the company entered into an instalment agreement in respect of the SCC debt; (8) on 24 January 2007 the company defaulted in respect of the second instalment due under the SCC instalment agreement. In the liquidator's examination, Mr Mudge admitted that from January 2007 onwards "it was difficult meeting debts and that's obvious"; (9) by March 2007 the company defaulted in respect of the remainder of the payments due under the SCC instalment agreement; (10) in the first quarter of 2007 the company delayed lodging BASs (which were overdue for September, October and November 2006), and was using GST received to pay other creditors; (11) on 2 April 2007 SCC served a creditors statutory demand on the company. The company did not comply with the demand; (12) on 30 May 2007 the company entered into an instalment arrangement with the ATO in respect of outstanding taxation liabilities and agreed to pay $52037 every second month commencing 1 June 2007 and concluding 1 April 2008; (12) on 20 July 2007, SCC commenced winding up proceedings against the company. 19I am not satisfied, on that evidence, that the company was insolvent as at 29 September 2004, when the SCC debt was incurred, or (even if it was then in fact insolvent) that there were then reasonable grounds for suspecting that it was insolvent. The only indicium that occurred before that date was the outstanding stamp duty liability. However, this appears not to have been due until 5 April 2007. The liquidator's evidence that a letter of 5 November 2004 shows that the company was aware of this liability by that date is misconceived; that letter refers to the land tax liability, not the stamp duty liability. While the existence of an unpaid liability of that order raises a doubt as to the company's solvency, it is insufficient to prove that the company was then in fact insolvent, let alone that there were reasonable grounds to suspect that it was. However, I am satisfied that the company was insolvent, and that there were reasonable grounds to suspect that it was insolvent, from at least late 2006, before any relevant ATO debt was incurred. 20Mr Bagg's liability. Mr Bagg was a director throughout the relevant period. Plainly, he failed to prevent the company from incurring each of debts that comprise the ATO debt. I am also satisfied that a reasonable person in his position would have been aware that there were grounds for suspecting that the company was insolvent. The admissions of Mr Mudge and Mr Ferry as to their state of mind in mid-2006 are illustrative of that. A reasonable director in Mr Bagg's position must have been aware of the ongoing inability to pay SCC, and the use of GST receipts to pay other creditors. Accordingly I am satisfied that Mr Bagg contravened s 588G in respect of the ATO debt, but not the SCC debt.

Loss and damage under s 588M 21Pursuant to s 588M, the liquidator may recover from a director who has contravened s 588G, as a debt due to the company, an amount equal to the loss or damage suffered by the creditor in relation to the subject debt because of the company's insolvency. That does not necessary mean the total amount of the relevant debt. In Powelll v Fryer, Olsson J, with whom Duggan and Williams JJ agreed, said (at 602-603): [80] The phrase "loss or damage" is not defined by the statute. Mr Randle strenuously contended that the relevant loss or damage is not the amount of the unpaid debt in each instance. It was, he said, necessary for the court to examine each individual debt and make various potential abatements of it. [81] First, he submitted, due allowance had to be made, by way of offset, for any dividends which the creditor would probably receive in the winding up in any event. [82] Second, he argued, in the case of a trade debt, it was necessary to look into the profit component of the debt. As I understood him, it was necessary to enquire as to what would have been the situation had the sale to the company not taken place. If the supplier would not have had a ready alternative market (as, it was asserted, was the case on the Fleurieu Peninsula at the time) then it could not be said that the true loss was the full amount of the debt. [83] Third, he asserted that, in the case of revenue imposts such as rates, which constituted a statutory charge on the company's land, due regard had to be given to the value of any security arising from that charge, as if it had actually been enforced. [84] Finally, he advanced the argument that, in any event, revenue penalties exacted did not constitute loss or damage, because there was no demonstrable loss or damage to the revenue, other than the primary statutory impost in issue. The amounts in question were mere penal exactions of a disciplinary or enforcement type. [85] Mr Randle further submitted that there was an inherent unfairness in simply looking at relevant unpaid debts globally, as contrasted with individually. This was because the effect of so doing was, potentially, to subsidise earlier creditors whose debts were not incurred in circumstances which may be impugned. He argued that it was necessary, in some fashion, to, as he put it, recognise "the opening position, in comparison with the closing figure when it comes to solvency, and saying that it's that difference which measures the overall outer limit of the directors' responsibility". [86] I pause to say that, with respect, I really do not comprehend either the legal logic or the inherent mathematics of the last-mentioned propounded approach. [87] With all due respect, these arguments, both individually and collectively are both novel and extraordinary. Moreover, they fly in the face of the plain intention of the legislation. All of the provisions to which reference has been made focus on the incurring of further debts when a company is insolvent and the consequential detriment to creditors by virtue of the non payment to them of the amounts of their claims. [88] I entertain no doubt that, read in context, the loss and damage adverted to is the amount of the unpaid debt due to the creditor in question. This is the view which was obviously taken by Austin J in Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201 at 217 (Tourprint), and, in my experience, has always been applied to the practical administration of the statute. While the provisions of the Corporations Law, so applied, may give rise to some practical consequences which could be said to be somewhat arbitrary and possibly inequitable in some respects, the insolvency law has always, as a matter of practicality and commercial expediency, had to adopt certain parameters which are arbitrary. There is nothing particularly novel in the approach here in question. By way of contrast, the adoption of the approach espoused by Mr Randle would render administration in insolvency virtually unworkable. The legislature could not possibly have envisaged creating the inevitable complexity and requirement for detailed examination of collateral issues which Mr Randle propounds. [89] I therefore reject his submissions and conclude that the "loss or damage" in question will normally be the quantum of relevant unpaid debts. 22The use of word "normally" in [89] is an important qualification. Similarly, in the passage referred to in Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201; [1999] NSWSC 581, Austin J said (emphasis added): [79] It follows that all the ingredients of s 588M(1) have been made out, and consequently Mr McDonald as the company's liquidator may recover from Mr Bott as a director, as a debt due to the company, an amount equal to the amount of the loss or damage of the creditors, which in the present case is the amount of their debts: s 588M(2). 23The point was addressed more directly by Barrett J, as his Honour then was, in Edenden v Bignell [2007] NSWSC 1122: 30 This section does not allow recovery of the amount of the creditor's debt as such. Rather, it is a provision allowing recovery of compensation measured by reference to loss or damage suffered by the creditor in relation to the debt because of the debtor's insolvency. In some cases - perhaps most cases - this will be the equivalent of the amount of the debt: see, for example, Powell v Fryer (2001) 37 ACSR 589. In others - for example where a proof of debt is admitted and a substantial payment is made to all creditors rateably - the relevant loss or damage may be less than the amount of the debt. There may perhaps be circumstances in which the amount of the loss or damage exceeds the amount of the debt. The separateness of the debt, on the one hand, and the loss and damage, on the other, is emphasised by the statement in s.588M(3) that an amount equal to the loss or damage may be recovered "as a debt due to the creditor". 24Thus, s 588M makes recoverable the loss or damage suffered by the creditor in relation to the debt because of the insolvency, not the original amount of the debt. Although the amount of the debt will be the starting point and will often - but not always - be the amount of the loss, the cases do not state that the loss or damage will invariably be equivalent to the debt. Indeed, this could not be so where the creditor would in any event receive a dividend in the winding up. While Powell v Fryer rightly rejects the notion that most of the inquiries suggested in that case would be necessary, it seems to me that assessment of the loss or damage must necessarily bring to account any dividend paid or likely to be paid to the creditor. 25In this case, the loss or damage suffered by the ATO in relation to the ATO debt cannot be ascertained without knowing what if any dividend has been or is likely otherwise to be paid in the liquidation. In the absence of such evidence, I am unable to be satisfied what if any loss has been suffered by the ATO.

Conclusion 26My conclusions may be summarised as follows. 27Default judgment under UCPR Part 16 is not available in respect of proceedings commenced by Originating Process under the Corporations Rules. The plaintiffs must prove their case by admissible evidence. 28On the current state of the evidence, I am satisfied that the company was insolvent, and that there were reasonable grounds to expect that it was insolvent, when the ATO debt was incurred from early 2007 onwards, but not when the SCC debt was incurred in September 2004. Similarly, I am satisfied that Mr Bagg contravened s 588G in respect of the ATO debt, but not the SCC debt. The plaintiffs are entitled to recover the amount of the ATO's loss or damage in relation to the ATO debt because of the insolvency, but in the absence of evidence as to what if any dividend has been or is likely otherwise to be paid, I am unable to be satisfied what if any loss has been suffered. 29I will publish these reasons, dismiss the notice of motion for default judgment, and adjourn the originating process to a later date to permit the liquidator if so advised to adduce further evidence. 30The Court orders that: (1)The interlocutory process filed 8 September 2014 be dismissed. (2)The originating process be adjourned to a date to be fixed.

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: 03 November 2014