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[2011] QSC 30
Supreme Court of Queensland
2011-03-08
McMurdo J
Original judgment source is linked above.
Upon the undertaking by the First Plaintiffs by their counsel giving the undertakings in Schedule A to the Order, it will be ordered as follows:
(i) the amount held in the Escrow Account at the date of this order; plus
(ii) any and all interest that accrues on the balance of the Escrow Account in accordance with the terms of the Escrow Account, from the date of this order; minus
(iii) any fees or costs payable by the Defendant to the National Australia Bank Limited in connection with the maintenance of the Escrow Account during the period from the date of this order;
(i) all its assets, whether or not they are in its name and whether they are solely or co-owned;
(ii) any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own. (The Defendant is to be regarded as having such power if a third party holds or controls the asset in according with the defendant's direct or indirect instructions); and
(e) "relevant amount" means AUD$40,000,000;
(f) "unencumbered value" means value free of mortgages, charges, liens, set-offs or other encumbrances.
(a) a party ordered to do something must do it by itself or through directors, officers, partners, employees or agents;
(b) a party ordered not to do something must not do it personally or through directors, officers, partners, employees, agents or in any other way.
(a) the Defendant be restrained from encumbering, pledging, removing, disposing of, dissipating or otherwise dealing with the Funds except by order of this Honourable Court or otherwise in accordance with this order;
(b) the Defendant must not dispose of, deal with or diminish the value of any of its assets up to the unencumbered value of the relevant amount;
(c) subject to paragraph 3(a) of this order, the Defendant may dispose of, deal with or diminish the value of any of its assets, so long as the unencumbered value of its assets still exceeds the relevant amount.
4. This order will not provide the Plaintiffs with any priority over the Defendant's other creditors in the event of the Defendant's insolvency.
5. This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave the Defendant before it was notified of this order.
6. No bank need inquire as to the application or proposed application of any money withdrawn by the defendant if the withdrawal appears to be permitted by this order.
(a) Octaviar Administration Pty Limited (in liquidation) ceasing to be liable to indemnify them for their undertaking as to damages provided in this order.
(b) Octaviar Administration Pty Limited (in liquidation) providing notice of its intention to withdraw from an agreement under which it would indemnify the First Plaintiffs for that undertaking as to damages.
CORPORATIONS - WINDING UP - CONDUCT OF INCIDENTS OF WINDING UP - EFFECT OF WINDING UP ON OTHER TRANSACTIONS - PREFERENCES - GENERALLY - where the applicant paid to the respondent money owing as a guarantor of a debt - where that payment and related dealings had the result that the amount to which the respondent was entitled from another debt also guaranteed by the applicant was reduced - whether dealings together involved a transaction which resulted in a preference over other creditors
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS - MAREVA INJUNCTION - RELEVANT CONSIDERATIONS - where the respondent was a solvent company with assets to satisfy the applicant's claim - where the respondent was winding down its business and reducing its capital - whether a sufficient danger of disposal of assets - whether value of assets to be detained under freezing order should be net of all liabilities of the respondent
Corporations Act 2001 (Cth) s 588FA, s 588FC, s 588 FD, s 588FE
Uniform Civil Procedure Rules 1999 (Qld) r 250, r 260A, r 260D
Butt Haulage v Jolliffe [2004] QSC 391, distinguished
Capital Finance Australia Ltd v Tolcher [2007] FCAFC 185; (2007) 245 ALR 528, applied
Errigal v Equatorial Mining Ltd [2006] NSWSC 953, cited
Finn v Carelli [2007] NSWSC 261, applied
Frigo v Culhaci [1998] NSWCA 88, applied
Hayden v Teplitzky (1997) 154 ALR 497, cited
Horn v York Paper Co Ltd (1991) 23 NSWLR 622, cited
Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226, cited
Mann v Sangria Pty Ltd [2001] NSWSC 172; (2001) 38 ACSR 307, applied
NA Kratzmann Pty Ltd (in liq) v Tucker (No 2) [1968] HCA 44; (1968) 123 CLR 295, cited
Ninemia Maritime Corporation v Trave GmbH & Co KG (the Niedersachsen) [1984] 1 All ER 398, applied
Northcorp Limited v Allman Properties (Australia) Pty Ltd [1994] 2 Qd R 405, cited
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, cited
Perpetual Nominees Ltd v Taouk [2009] NSWSC 605, applied
Public Trustee (Qld) v Octaviar Ltd and Ors [2009] QSC 202; (2009) 73 ACSR 139, cited
Re Centaur Mining & Exploration Ltd [2008] VSC 416; (2008) 221 FLR 217, applied
Re Emanuel (No 14) Pty Ltd (in liq); Macks and Anor v Blacklaw & Shadforth Pty Ltd [1997] FCA 667; (1997) 147 ALR 281; (1997) 24 ACSR 292, applied
Tolcher v National Australia Bank Ltd [2003] NSWSC 207; (2003) 44 ACSR 727, cited
Westpac Banking Corporation v McArthur [2007] NSWSC 1347, cited
Hopgood Ganim as town agents for Baker & McKenzie for the respondent
[1] The liquidators of Octaviar Limited (Receivers and Managers Appt) (in liq) ("OL") apply for interlocutory orders against Fortress Credit Corporation (Australia) II Pty Limited, to prevent the respondent from dealing with assets up to an amount of $40 million until the trial of these proceedings. The orders are sought as freezing orders pursuant to r 260A of the Uniform Civil Procedure Rules ("UCPR"). Alternatively, there is an application pursuant to r 250 of the UCPR for the preservation of certain funds which are presently the subject of interim orders and which are held by the respondent in a separate account with its bank ("the Escrow Funds").
[2] The applicants propose to prosecute claims against the respondent as set out in a draft statement of claim provided at this hearing. The company itself will not seek any relief but has been joined as a party the interests of which might be affected.[1]
[3] The first of the proposed claims involves moneys paid to the respondent by the then administrators of Octaviar Administration Pty Ltd ("OA"). On or about 23 December 2008, the administrators paid to receivers appointed to OL by the respondent an amount of $19,746,713. In about February 2009, another payment was made by them to the respondent in an amount of $304,331. In each case, these were moneys which OA then held in trust for OL. They were paid not to OL but to the respondent upon the basis that the respondent held a fixed charge over OL's assets, to secure OL's liability to the respondent as a guarantor of a debt owed by Young Village Estates Pty Ltd ("YVE").
[4] OL guaranteed the YVE debt in May 2007. Its guarantee became secured by a charge to the respondent by an agreement between OL and the respondent made on or about 22 January 2008. The liquidators' primary case is that this transaction, by which OL's liability for the YVE debt became a secured obligation, is voidable as an insolvent transaction of OL, which was entered into during the six months ending on the relation-back day. I discussed the prospects of such a case in my judgment in 2009 in which I set aside the deeds of company arrangement for OL and OA: Public Trustee (Qld) v Octaviar Ltd and Ors.[2] In that judgment, in which the respondent was an active party, I held that upon the evidence there presented, there was at least a serious case for avoiding the charge as an insolvent transaction insofar as it secured the YVE guarantee. For the purposes of the present application, that is accepted by the respondent. And if it be different, the respondent accepts that there is a case in that respect, for the purposes of r 260D of the UCPR and consistently with the authorities on the remedy of a Mareva injunction.[3]
[5] If the applicants ultimately succeed upon that case, the amounts paid in December 2008 and February 2009 will be repayable by the respondent. But this will not be a proprietary remedy, in the sense of specific property being restored to OL. The moneys which would be recovered by the liquidators of OL would not be the same moneys as those which were paid.[4] That affects the alternative application in reliance upon r 250. The respondent has kept the Escrow Funds in a separate bank account. But the applicants' case is for the payment of moneys in the amounts which were paid to the respondent, rather than for the return of that specific fund. Accordingly, the amount presently held by the respondent in the Escrow Account is not the "property ... the subject of a proceeding" for the purposes of r 250. The applicants' argument refers to Butt Haulage v Jolliffe,[5] where orders were made under r 250 to preserve certain bank accounts. But they were the subject of trust claims so that those particular funds were the property which was the subject of the proceeding.
[6] The second claim to be made by the applicants involves an attempt to recover $15 million paid to the respondent in February 2008 in connection with a so-called "participation fee". This transaction was also discussed in my previous judgment.[6] However, the applicants' proposed case was not then argued. In that earlier proceeding, the Public Trustee suggested that the $15 million paid to Fortress was an extortionate charge for the purposes of s 588FD of the Corporations Act. I said that the possible recovery of that amount upon that basis would be a matter for investigation by a liquidator of Octaviar Castle Pty Ltd ("Castle").[7] But now it is argued that the applicants, as liquidators of OL, have a right to recover it.
[7] The respondent lent money to Castle in 2007. The loan was guaranteed by OL and its guarantee was secured from the outset by a charge over all of its assets. As discussed in that previous judgment, the balance of the Castle loan, then $150 million, became due for repayment on 29 February 2008. But at some point in about mid February 2008, the amount of the Castle loan was increased to $200 million. One agreed application of that additional $50 million was for the sum of $15 million to be paid by Castle to the respondent under an agreement between them dated 18 February 2008 and entitled "Funded Participation Agreement". The additional loan was drawn down by Castle on 20 February 2008. The $15 million was then appropriated to the participation fee in the records of the respondent without that money actually changing hands. In return, Castle was given the right to "participate" in the respondent's recovery of the YVE debt. In effect, the last $15 million of the principal (if recovered), together with a proportion of the interest recovered, was to be passed on by the respondent to Castle. In that event, OL would benefit because Castle had effectively no creditors and was a wholly-owned subsidiary of OL.
[8] The applicants argue that this fee provides a cause of action to them, as liquidators of OL, in this way. On 21 January 2008, the respondent wrote to YVE and OL, saying that the YVE loan agreement may have been breached and it requested a repayment of $15 million by 25 January 2008 or alternatively by 4 February 2008. On 29 January 2008, a deed was executed by which YVE and certain other companies (not including OL) were to repay $15 million of the YVE debt to the respondent by 4 February 2008. However, that sum was not repaid prior to the entire Castle debt being repaid on 29 February 2008, from the proceeds of the sale by OL of a share in the so-called Stella group. That repayment was anticipated by the Deed of Amendment to the Castle facility, which OL, Castle, the respondent and another company executed on 18 February 2008, agreeing to increase the limit of the facility by $50 million. That deed required repayment of the Castle facility by no later than the date of completion of the Stella sale. The repayment on 29 February 2008 was entirely from OL's money, and included the $15 million which the respondent had applied to Castle's "participation fee".
[9] From those facts, the applicants allege that the Deed of Amendment of the Castle facility, the Funded Participation Agreement and the payment of that $15 million (as part of the amount paid to Fortress from the Stella sale) were together a "transaction" within the meaning of s 588FA(1) of the Corporations Act, to which OL and the respondent were parties. It is alleged that the effect of the transaction was that Fortress reduced its exposure under the YVE loan by $15 million, by its receipt from OL. On the basis that OL was then insolvent, this was an insolvent transaction within s 588FC, which is voidable pursuant to s 588FE.
[10] The applicants must establish that by this transaction, there was an unfair preference given by OL to the respondent, in that the transaction resulted in the respondent receiving from OL, in respect of an unsecured debt that OL owed to the respondent, more than the respondent would receive from OL in respect of the debt if the transaction is set aside and the respondent were to prove for the debt in OL's winding up. The relevant debt is OL's debt as guarantor of the YVE facility. It is said to be an unsecured debt upon the premise that the transaction of 22 January 2008, whereby the respondent's charge was extended to the YVE guarantee, is set aside. As I have said, for present purposes, the applicants' prospects of setting aside the extension of the charge are conceded.
[11] For present purposes, it sufficiently appears that there was a receipt by the respondent from OL of $15 million on 29 February 2008. What is less clear is that this was a receipt "in respect of" the debt owed by OL as guarantor of the YVE loan. What was paid by OL and received by the respondent was the balance of Castle debt. The amount of the YVE debt was unaffected by the payment. Further, that amount was unaffected by what OL says was the transaction of which the payment relied upon, that made from the proceeds of the Stella sale, was a result.
[12] The concept of a "transaction" in this context is broad and a transaction may involve a course of dealings in which third parties are involved and for each of which the debtor is not a participant: Re Emanuel (No 14) Pty Ltd (in liq); Macks and Anor v Blacklaw & Shadforth Pty Ltd.[8] In Mann v Sangria Pty Ltd,[9] Bryson J held that a transaction may be constituted by several events which do not occur simultaneously. In Re Emanuel (No 14) Pty Ltd (in Liq), the Full Court of the Federal Court (O'Loughlin, Branson and Finn JJ), referring to the examples in the non-exhaustive definition of "transaction" in s 9 of the Corporations Act, said that: [10]
"Common to the examples is the characteristic that the conduct or dealing engaged in by the debtor company has the consequence of effecting a change in the rights, liabilities or property of the company itself."
[13] In Capital Finance Australia Ltd v Tolcher,[11] Gordon J, with whom Heerey J agreed, said that "transaction" was a word of wide connotation and that "it may include a series of events in a course of dealings initiated by a debtor intended to extinguish a debt".[12] The complication in the applicants' case here is that, accepting that there was a transaction by the course of dealings relied upon by the applicants, and that they were in the relevant sense "initiated" by OL, there was no extinguishment, even in part, of the YVE debt. This particular point does not appear to have arisen in Capital Finance Australia Ltd, or in any other of the cases which were cited in argument. But the applicants contend, with the benefit of considerable authority, that the Court should not be constrained by the form of a transaction in assessing whether it is an unfair preference. For example, they cite the statement by Robson J in Re Centaur Mining & Exploration Ltd[13] that the Court should look to the "ultimate effect" which the transaction had "on the financial relationship of the parties and in particular whether the payee received some preference, priority or advantage at the expense of the other creditors".
[14] It must be accepted that the Court should approach this question with what has been described as a sense of commercial reality, considering all of the circumstances and the apparent intended effect of the course of dealings. The evidence here strongly indicates that there was a course proposed by the respondent and agreed by OL and its subsidiary Castle, which was designed to put the respondent in a position equivalent to its receiving a part repayment of the YVE debt as to $15 million. First there were the attempts by the respondent in January 2008 to have $15 million paid towards the YVE debt. Then there is the timing of the increase in the Castle debt, the making of the Funded Participation Agreement and the repayment of the Castle debt, all of which occurred within a little over a week. By this stage, the contract for the Stella sale had been made and it was likely that settlement would occur shortly. This suggests that OL, Castle and the respondent expected that the imminent receipt of the proceeds of that sale would fully repay the Castle facility, increased as it had been by the money borrowed for Castle's participation in the YVE loan. The risk to the respondent of not recovering the last $15 million of the principal owed by YVE was avoided by this course of dealings. At the same time, the amount available to other creditors of OL was commensurately reduced.
[15] From the perspective of Castle, the borrowing of $15 million and its investment in this way has no obvious commercial explanation. It was paying $15 million, and agreeing to pay interest upon that sum, in exchange for no more than the prospect of obtaining up to $15 million, with interest, from YVE. Because of the timing of this sequence of events, the apparently intended result was that it was OL which would effectively pay the $15 million for those rights of participation in the YVE debt, because on the present evidence, it does not appear that there was any prospect of Castle repaying what it had borrowed, including this sum.
[16] A fuller examination of the facts might present a different picture, but at present, the evidence at least strongly suggests that this was a scheme whereby OL would pay $15 million to the respondent in order to have its subsidiary, Castle, become entitled to some of the proceeds of the repayment of the YVE debt. Particularly because those proceeds, according to the documents, would have included money recovered from OL as guarantor of the YVE debt, it can be said that OL made a payment "in respect of" its debt (as guarantor) owed to the respondent. In turn, there is at least an arguable case that the result was preferential, in that the respondent thereby received more from OL than it would receive if the transaction were set aside. That this was the intended and indeed actual result of the transaction is indicated by the absence of any other commercial explanation for it.
[17] The apparent strength of the cause of action relied upon for a Mareva injunction has been variously described. Several judgments refer to the need for a prima facie case.[14] The requirement of r 260D is for a "good arguable case", an expression used in some of the authorities which predate that rule.[15] In particular, Mustill J (as his Lordship was) said in Ninemia Maritime Corporation v Trave GmbH & Co KG (the Niedersachsen):[16]
"I consider that the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success."
[18] As I have endeavoured to explain, this case is far from clear. In particular, it involves a question of the ambit of the expression "in respect of an unsecured debt" in s 588FA(1)(b) which does not appear to have been previously considered. But the respondent thus far has been unable to cite a case which is directly against the applicants' argument. And upon the facts as they presently appear, there is a relatively strong case that this series of events was designed to be preferential: to allow the respondent to effectively recover $15 million of the YVE debt in circumstances where it may well have been concerned that it was or would become an unsecured creditor for that debt. I conclude that there is a good arguable case in relation to this amount.
[19] According to r 260D(3), the Court may make a freezing order against a prospective judgment debtor if the Court is satisfied that there is a danger that the judgment would be wholly or partly unsatisfied because (relevantly here) the assets of the prospective judgment debtor might be removed from Australia or disposed of, dealt with or diminished in value.
[20] Most of what is in evidence as to the respondent's business and financial position comes from an affidavit sworn by Mr D J Walter, an employee of the respondent's solicitors, on information from Mr Kelleher, a director of the respondent and the Chief Executive Office of another company called Fortress Investment Group (Australia) Pty Limited ("FIGA").
[21] The respondent was incorporated on 6 June 2005 and carries on business from premises in Sydney. Its business is in lending money in Australia and New Zealand. Its assets and business are managed by FIGA for a fee. FIGA employs the staff of the respondent. FIGA is ultimately owned by an American company, Fortress Investment Group LLC ("FIG LLC"), a company listed on the New York Stock Exchange. The respondent company is ultimately majority owned by Drawbridge Special Opportunities LLP and Drawbridge Special Opportunities Fund Limited, which together are referred to as the "DSOF Funds".
[22] The respondent is an entity that is subject to the requirements of the Financial Sector (Collection of Data) Act 2001 (Cth) and is complying with that obligation. The respondent is up to date with filing its tax returns.
[23] The respondent has only one substantial creditor, which is National Australia Bank ("NAB"). It has provided what is said to be an unsecured revolving credit facility. The respondent's other, and it seems principal, source of funds for its lending business is from the DSOF Funds. The respondent does not borrow those moneys but instead issues redeemable preference shares which are held by its immediate holding company, Fortress Credit Corp (Australia) Pty Limited ("FCC"). It is also said to be capitalised with common or ordinary shares. There is evidence that the ordinary shares involved paid up capital of about $81 million. There is other evidence, in the form of its report lodged with APRA for the quarter ended 31 December 2010, to the effect that its shareholders' equity exceeds that sum. That report was said to contain sensitive information and I agreed that the exhibit to the solicitor's affidavit which is a copy of that report not be made publicly available. It is unnecessary to disclose its contents within this judgment save to make these observations. The first is that according to that report, its assets well exceed its liabilities: hence the substantial figure for shareholders' funds. Secondly, it is consistent with the solicitor's evidence that the respondent's only substantial creditor is NAB. Thirdly, the amount of the shareholders' equity well exceeds a total of the NAB debt and the amounts to be pursued by the applicants. Fourthly, the amount of the redeemable preference shares is not disclosed, either within this document or elsewhere. As the respondent's counsel agreed, on the present evidence there remains the possibility that the respondent has effectively used up much of the capital provided from its ordinary shares and that most, if not nearly all of its shareholders' equity, consists of the redeemable preference shares.
[24] On 14 December 2010, the respondent's Mr Kwei was examined by the liquidators and said that the respondent had no significant cash apart form the Escrow Funds, it did not own any real property or shares, its principal assets were approximately $200 million in loans to third parties and that its normal practice is to remit loan repayments, if not used to pay its creditors, to overseas Funds, apparently the DSOF Funds. There is clear evidence that the respondent's business is being wound down. Mr Kwei said that the respondent was not making any new loans, but was "managing its existing assets".
[25] In the liquidators' examination of Mr Kelleher, he said that the respondent was "reducing over time" its business. He said that its loan portfolio was made up of around eight to ten loans, including the loan to YVE, and that the most recent loan made by the respondent was made in October 2010. It was reducing the number of loans over time according to a direction from FIG LLC in January 2009 "as part of a restructure". Mr Kelleher's "best guess" of the time by which the respondent would stop advancing funds was "a couple of years". He also then suggested that the respondent had some legal entitlement to get money back which it had sent to New York, but his evidence was vague as to that and there is no other evidence of it.
[26] The circumstances by which the Escrow Funds came to be separately deposited by the respondent and remain so are as follows. When they were originally paid to the respondent, it chose to place them into a separate account. It did so apparently because the Public Trustee had foreshadowed a claim that the extension of the respondent's charge to the YVE debt was then void or alternatively, as is now contended by the applicants, voidable in the event of a winding up. On 21 April 2010, in the current proceedings in which the applicant was then OA, the respondent undertook not to deal with the Escrow Funds and to keep and maintain them in a certain account with NAB. The Escrow Funds were defined by that order to be the total of the December 2008 and February 2009 payments. That undertaking was given until the date of judgment in the proceedings in the High Court, between the Public Trustee and the present respondent, which were to determine whether the extension of the charge was void. On 1 September 2010, the day on which the High Court gave judgment in favour of the present respondent, the present applicants in their capacity as liquidators of OL were added as applicants, as was OL. On 2 September 2010, the respondent was ordered to keep and maintain the funds in that separate account until 1 October 2010. By an order made with the respondent's consent on 1 October 2010, it was restrained from dealing with the funds until 1 March 2011. And then by further order on 1 March, that restraint was extended until today.
[27] According to the affidavit of the respondent's solicitor, absent those orders and the claims now made by the applicants, the Escrow Funds would "in accordance with the respondent's ordinary business practice, have been remitted by the respondent to the DSOF Funds' bank accounts in New York". He says that if the orders now sought by the applicants are made, they will prevent the respondent "from otherwise following its ordinary business practice of remitting further sums of cash to the DSOF Funds' bank accounts in New York". The solicitor adds that:
"Mr Kelleher is conscious of its duties as a director of the respondent, and the respondent is conscious of its obligations. The respondent does not intend to take steps to defeat any judgment obtained against the respondent in connection with the causes of action foreshadowed in the demand."
But that evidence is not inconsistent with the prospect that the respondent would transfer funds which would have that effect, although without the funds being transferred for that purpose.
[28] In this Court there is binding authority that the jurisdiction to make an order of this kind is not limited to cases where it is shown that the defendant intends to deal with assets for the purpose of putting them beyond the reach of the plaintiff: Northcorp Limited v Allman Properties (Australia) Pty Ltd.[17]
[29] For the respondent it is argued that there must be at least evidence of more than the "usual danger" of assets being removed, citing Frigo v Culhaci.[18] But in the present case there is that danger because of the unusual financial position of the respondent and what is happening to its business. On the evidence, it is quite likely that most of its assets, which are constituted by its loan portfolio consisting of relatively few loans, are matched by redeemable preference shares which, if it is not subject to any restraint, the respondent would wish to redeem in returning funds repaid by its borrowers to the DSOF Funds. There is a real danger then that in the ordinary course of its business, it will very substantially reduce its capital as it winds down its business, and that by the time that the applicants' proceedings are determined, the assets presently available to meet the applicants' claim will no longer be available. In my conclusion, that is a sufficient danger to satisfy the condition of r 260D.
[30] The applicants seek orders which are designed to preserve up to $40 million worth of assets to satisfy a judgment. That amount is reached by adding the amounts of the three payments received by the respondent, which total approximately $35 million, together with an allowance for interest and costs.
[31] The orders sought include an order requiring the Escrow Funds to continue to be held in a separate account and not be dealt with or encumbered in any way. Moreover, the applicants seek an order that those funds be transferred to an account with a bank other than NAB. This is because the applicants apprehend that NAB might wish to exercise a right of set off against the Escrow Funds, particularly when NAB is presently owed more than the amount of those funds.
[32] The applicants seek orders which would require the respondent to maintain "net unencumbered assets" of up to $40 million. The amount of the Escrow Funds would be included within that amount. The term "net unencumbered assets" would be defined within the proposed order to be the value of unencumbered assets less liabilities. In other words, the respondent would be required to retain so much of its assets which, net of all of its liabilities, amounted to at least $40 million, and specifically to retain the Escrow Funds.
[33] The evidence as to any loss or damage which would be suffered by the respondent by the granting of these orders is scant. That is probably because the respondent does not intend to use its assets to continue to carry on business, but rather to return capital. And there is no evidence as to any loss which would be suffered by other parties, and in particular those within the same group of companies, from the orders which are sought. A suggestion which was made at one stage (in the respondent's outline of argument) that the respondent would be worse off by not being able to advance further funds to a certain borrower in New Zealand, which is under receivership, was not the subject of evidence and not pursued.
[34] The orders which are sought would not require the respondent to curtail its business, let alone close it down. They would permit the respondent to make further loans. Most of its loans have been made in Australia. This is not a case where a freezing order would have the drastic impact for a defendant's business which can often be feared.
[35] If there is a loss from making these orders, there will be the applicants' undertaking as to damages. An agreement has been reached between OA and OL, which agreement has been approved in the Federal Court, by which OA would support that undertaking. The terms of that agreement are not directly proved by the tender of the document itself and the applicants decline to do so. I am satisfied that the agreement contains provisions which, if disclosed, could compromise the position of the creditors of the two companies if their contents were made available to the respondent and others. Therefore, I am prepared to act upon the indirect evidence of the effect of the agreement.
[36] OA is itself insolvent but it has substantial cash. It appears that it has agreed to provide funds for this litigation in exchange for a share of the proceeds of a successful recovery. Moneys paid by OA or its liquidators (presently the Applicants) would appear to attract priority under s 556(1)(dd). The agreement between the two companies would seem to substantially fortify the undertaking as to damages offered by the applicants.
[37] However, it also appears that the agreement permits OA to withdraw upon one month's notice to OL. I was informed by counsel for the applicants that its effect, insofar as indemnifying the applicants for their undertaking as to damages, would be to bind OA to pay for such damages as were suffered by the respondent or another party affected by the orders and which had been suffered prior to OA's withdrawal.
[38] The utility of that agreement, so far as the position of the respondent is concerned, is affected by some matters. The first is that OA is able to withdraw from the agreement upon one month's notice. The second is that, at least in theory, there is the possibility that OA and OL might agree to vary the agreement. Thirdly, there is the fact that absent any order, nothing need be disclosed to the respondent about such a change in the position between the two companies. Fourthly, the respondent would have recourse to OA only indirectly, because it is OL's liquidators who would be entitled to be indemnified by OA.
[39] These matters affecting the undertaking as to damages must be considered, of course, against the likelihood of a loss being suffered by the granting of these orders. As I have said, the evidence as to that is scant. The respondent says that the orders will "affect the rights of the Funds to receive payment to the extent of $40 million". It may not be correct to speak of the "rights" of the funds in that respect. Clearly the orders will have the potential to prevent money being paid to the so-called DSOF Funds. But there is no evidence as to the possible consequences of that restraint. For example, there is no evidence that the income which would be made by the Funds would be greater than that which would accrue on the moneys whilst they remain, for the time being, assets of the respondent before being ultimately paid on to the Funds. If a loss of that kind were likely, some evidence of it would be expected here. And there is no evidence that thus far there has been a loss of that kind, or indeed of any kind, by the Escrow Funds being invested here with the NAB rather than being returned to the DSOF Funds. Of course only the principal of the Escrow Funds has been restrained so far: the respondent has been free to deal with the interest. However, the point is that there is no complaint that anyone has suffered a loss by the principal having to be kept as an asset of the respondent during the last two years.
[40] The respondent complains of delay in making this application. It says that its financial position was outlined to the applicants as early as December 2009. The evidence as to the repatriation of funds to the United States and the winding down of the respondent's business was given in December 2010. The applicants provided a draft statement of claim on 31 August 2010, in relation to the two payments making up the Escrow Funds, but it was not filed. All in all, the respondent argues that this delay is "unconscionable" and should lead to the refusal of relief.
[41] But it is not shown that the applicants have unduly delayed. As to the Escrow Funds, the respondent has been apparently content to keep them in a separate account, having done so originally of its own initiative and subsequently by orders which it did not oppose or to which it consented. It was reasonable for the applicants to await the judgment of the High Court before delivering a statement of claim in relation to the Escrow Funds, because had that appeal been allowed, the present claim in relation to those moneys would not have had to be pursued. It was reasonable also for the applicants to investigate the claim in relation to the Castle moneys, and the period of time which has passed in that respect does not seem to be inordinate. Further, there is no evidence of any change of position of the respondent in consequence of any of this alleged delay.
[42] Overall the balance of convenience favours the applicants. There is a real risk that a judgment in their favour would be wholly or partly unsatisfied because assets would be disposed of by the respondent's carrying out its admitted intention to reduce its capital as its borrowers repay their loans. Orders for the preservation of assets up to an amount of $40 million would not prevent those assets being used as loans or other investments. The only specific asset to be frozen would be the Escrow Funds. Indeed, because of the particular circumstances of this respondent, it is difficult to see that the orders sought would have any significant impact upon the conduct of its business. I am persuaded to impose a particular restraint upon the Escrow Funds, although this is not a proprietary claim. They are not said to be required for the respondent's business, and the preservation of them simply continues the position as it has been for two years without any demonstrated prejudice to the respondent or others.
[43] The respondent argues that the orders sought are uncertain. For example, it is said that if the orders refer to Australian assets, that may or may not exclude loans made by the respondent to entities in New Zealand. And as to the expression "net unencumbered value of the defendant's Australian assets", which is proposed to be used in the order, it is said that this is uncertain because the relevant liabilities are not identified. Moreover, it is said that the value of assets can change over time so that the respondent might find itself in breach by the values dropping below $40 million for reasons outside its control. In turn, the respondent would be required to spend time and money constantly assessing the value of its assets, about which valuers might not agree.
[44] The criticism of the proposal to restrict the respondent by reference to a value of assets is not persuasive. The respondent's assets are for the most part loans made by it. The valuation of the them ought not to be problematical. It appears that that is precisely what the respondent does every quarter in providing information to APRA. The difficulty in distinguishing between Australian assets and other assets would be overcome by simply requiring the respondent to retain up to $40 million of assets worldwide. Practically speaking, those assets (apart from the Escrow Funds) will be either in Australia or in New Zealand so that they should be sufficiently available to satisfy a judgment.
[45] The criticism of the proposed orders so far as its reference to the liabilities of the respondent raises a more general point. Rule 260A(2) provides that a freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets. According to the Practice Direction relevant to freezing orders,[19] the value of the assets covered by an order should not exceed the likely maximum amount of the applicant's claim, including interest and costs. The pro-forma order contained in the Practice Direction provides for a restraint with respect to assets up to a stated "unencumbered value", that term being defined to mean "value free of mortgages, charges, liens or other encumbrances". It does not employ the notion of "net unencumbered value" as proposed by the applicants. In their draft order, that expression would mean "the unencumbered value of all of the defendant's assets minus the total of all of the defendant's liabilities". The order proposed would therefore appear to be inconsistent with the Practice Direction. More generally, it would seem to go beyond the proper limits of the protection to be provided by a freezing order, because it would have a potential impact upon the extent to which the respondent could incur liabilities. The risk that a defendant's financial position might deteriorate, by incurring further liabilities, does not warrant the grant of a Mareva order. This is why r 260D(3) is in terms that the order may be made where there is a danger that a prospective judgment would be unsatisfied, but only because the debtor might abscond or the assets of the debtor might be removed, disposed of, dealt with or diminished in value. The unencumbered value of the assets is to be preserved because a plaintiff is to be protected against a dealing with the assets by further encumbering them. But it is a dealing with the assets which marks the limit of the protection provided under these rules and the general law as it has developed for orders of this kind. It has been held that a Mareva injunction is not designed to stop a person from sliding into insolvency and that the prospect that the judgment would be unsatisfied by a developing impecuniosity of a defendant is not sufficient to entitle the plaintiff to an order: Frigo v Culhaci;[20] Finn v Carelli; Perpetual Nominees Ltd v Taouk. Of course, the difference between the amount of the unencumbered value of assets and the amount of "net unencumbered assets" could be substantial and make for a difference in the applicants' ultimate recovery of a judgment debt. But it is not the function of the Court to elevate a plaintiff to the status of a secured creditor. Rather, the power is to be used to keep the defendant from disposing of its assets, so that they are frozen for the benefit of the plaintiff and any other creditors. Accordingly, the order will be in the usual terms, referring only to the unencumbered value of assets.
[46] I am not persuaded to order that the Escrow Funds be deposited with another bank because of the applicants' apprehension that NAB might exercise a right of set off. The usual order, again as found in the Practice Direction, expressly provides that the order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave the defendant before it was notified of the order. NAB is not a party to this application. What the applicants propose would have the potential to affect its position.
[47] The order should also require the applicants to notify the respondent of any change to the agreement by OA to indemnify the applicants for their undertaking as to damages and of any notice of intention to withdraw from that agreement which might be given by OA. The respondent would then be able to apply for some change to this regime depending upon its then circumstances.
[48] I will not make an order, as the applicants request, for the provision of a statement of the defendant's assets. The applicants have examined officers of the respondent and it is open to them to make further enquiries in that way.
[49] I see no reason not to make other orders for the advancement of these proceedings as are proposed by the applicants. In that respect, there will be orders directing that:
(a) the present Second Applicants being named as the First Plaintiffs;
(b) the Third Applicant being named as the Second Plaintiff;
2. Pursuant to r 377 of the UCPR, the Plaintiffs will have leave to amend the Originating Application in order to seek final relief consistently with the Applicants' Outline of Argument upon this Application.
(a) this proceeding shall continue as if started by claim;
(b) the Plaintiffs are directed to file and serve a Statement of Claim by 14 March 2011.
[50] Upon the undertaking by the First Plaintiffs by their counsel giving the undertakings in Schedule A to the Order, it will be ordered as follows:
(a) "third party" means a person other than the Defendant and the Plaintiffs;
(b) "Escrow Account" means account number 082-001 17-156-7909 styled in the name "Fortress Credit Corporation (Australia) II Pty Limited" conducted with the National Australia Bank Limited or any account in substitution for that account as agreed in writing by the Plaintiffs or their solicitors;
(i) the amount held in the Escrow Account at the date of this order; plus
(ii) any and all interest that accrues on the balance of the Escrow Account in accordance with the terms of the Escrow Account, from the date of this order; minus
(iii) any fees or costs payable by the Defendant to the National Australia Bank Limited in connection with the maintenance of the Escrow Account during the period from the date of this order;
(i) all its assets, whether or not they are in its name and whether they are solely or co-owned;
(ii) any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own. (The Defendant is to be regarded as having such power if a third party holds or controls the asset in according with the defendant's direct or indirect instructions); and
(f) "unencumbered value" means value free of mortgages, charges, liens, set-offs or other encumbrances.
(a) a party ordered to do something must do it by itself or through directors, officers, partners, employees or agents;
(b) a party ordered not to do something must not do it personally or through directors, officers, partners, employees, agents or in any other way.
3. Until trial or further earlier order or written agreement between the parties:
(a) the Defendant be restrained from encumbering, pledging, removing, disposing of, dissipating or otherwise dealing with the Funds except by order of this Honourable Court or otherwise in accordance with this order;
(b) the Defendant must not dispose of, deal with or diminish the value of any of its assets up to the unencumbered value of the relevant amount;
(c) subject to paragraph 3(a) of this order, the Defendant may dispose of, deal with or diminish the value of any of its assets, so long as the unencumbered value of its assets still exceeds the relevant amount.
4. This order will not provide the Plaintiffs with any priority over the Defendant's other creditors in the event of the Defendant's insolvency.
5. This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave the Defendant before it was notified of this order.
6. No bank need inquire as to the application or proposed application of any money withdrawn by the defendant if the withdrawal appears to be permitted by this order.
7. The First Plaintiffs will inform the Defendant forthwith of an event as follows:
(a) Octaviar Administration Pty Limited (in liquidation) ceasing to be liable to indemnify them for their undertaking as to damages provided in this order.
(b) Octaviar Administration Pty Limited (in liquidation) providing notice of its intention to withdraw from an agreement under which it would indemnify the First Plaintiffs for that undertaking as to damages.
1. The First Plaintiffs undertake to submit to such order (if any) as the Court may consider just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
2. If this order ceases to have effect the First Plaintiffs will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who they have reasonable grounds for supposing may act upon this order, that it has ceased to have effect.
3. The First Plaintiffs will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the Defendant or the Defendant's assets.
[51] I will hear the party as to other orders, including costs.
[1] Horn v York Paper Co Ltd (1991) 23 NSWLR 622.
[2] [2009] QSC 202; (2009) 73 ACSR 139 at [127] to [142].
[3] See eg Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319.
[4] NA Kratzmann Pty Ltd (in liq) v Tucker (No 2) [1968] HCA 44; (1968) 123 CLR 295 at 300-1; Tolcher v National Australia Bank Ltd [2003] NSWSC 207; (2003) 44 ACSR 727.
[6] Public Trustee (Qld) v Octaviar Ltd & Ors [2009] QSC 202 at [35] to [39].
[7] [2009] QSC 202 at [145].
[10] [1997] FCA 667; (1997) 147 ALR 281 at 288.
[14] See eg Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-2, 326; Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [13] per Kiefel J.
[15] Errigal v Equatorial Mining Ltd [2006] NSWSC 953 at [26]; Westpac Banking Corporation v McArthur [2007] NSWSC 1347 at [22].
[16] [1984] 1 All ER 398 at 404.
[17] [1994] 2 Qd R 405; see also Hayden v Teplitzky (1997) 154 ALR 497 and the cases referred to there at 506.
Fletcher and Ors
Fortress Credit Corporation
(2007) 245 ALR 528
(1997) 154 ALR 497
(1991) 23 NSWLR 622
(1968) 123 CLR 295
(1989) 18 NSWLR 319
(2008) 221 FLR 217
(1997) 147 ALR 281