These reasons relate to the defendant's application for:
1. an order pursuant to s 7(2) of the International Arbitration Act 1974 (Cth) (the IA Act) staying these proceedings and referring the underlying dispute to arbitration;
2. alternatively, an order staying the plaintiff mortgagees' claim for possession of three properties in New South Wales pending the determination of existing arbitration proceedings in Singapore that are to be expanded to incorporate matters that the defendant mortgagor intends to raise in defending the claim for possession; or
3. alternatively, an order staying these proceedings as an abuse of process.
For the reasons that follow, I have determined that the proceedings are not required to be stayed under s 7(2) of the IA Act but should be stayed as an abuse of process pending the conclusion of the arbitration proceedings referred to above, subject to conditions.
[3]
FACTS
The defendant in these proceedings, Noorinya Holdings Pty Ltd (Noorinya), is the registered proprietor of three parcels of land in New South Wales. Those properties are encumbered by a registered mortgage in favour of the third plaintiff securing Noorinya's obligations under a guarantee of the borrowers' obligations under a Facility Agreement pursuant to which a syndicate of approximately 19 lenders advanced a loan or loans totalling USD$634 million to the two borrowers (the Facility Agreement, the Guarantee and the Mortgage, respectively). The Facility Agreement, Guarantee and Mortgage were entered into on 27 April 2012 together with a deed establishing a debt security trust in respect of which one of the lenders, Credit Suisse AG, was appointed as the security trustee (the Security Trust Deed). In December 2020, the third plaintiff replaced Credit Suisse AG as security trustee. The third plaintiff subsequently became the registered mortgagee under the Mortgage on or about 21 April 2021. The first and second plaintiffs are agents appointed by the third plaintiff in its capacity as mortgagee to exercise the third plaintiff's rights under the Mortgage. It is convenient to refer to the plaintiffs collectively as the Security Trustee.
Noorinya was not a party to the Facility Agreement when it was entered into on 27 April 2012. Noorinya (together with other guarantors) became a party to the Facility Agreement by the Fourth Amendment and Restatement Deed dated 18 June 2013.
Clause 37 of the Facility Agreement relevantly provides:
"37.1 Arbitration
(a) Subject to Clause 37.1(b) (Arbitration), any dispute arising out of or in connection with this Agreement (including a dispute relating to its existence, validity or termination or any non-contractual obligation arising out of or in connection with it) (a 'Dispute') shall be referred to and finally resolved by arbitration in Singapore in accordance with the arbitration rules of Singapore International Arbitration Centre ('SIAC') in force at the time of this Agreement (the 'SIAC Rules'), which rules are deemed to be amended and incorporated by reference to this Clause. The arbitration shall be administered by SIAC. The tribunal shall consist of three arbitrators appointed in accordance with this Clause (the 'Tribunal'). The Chairman of the Singapore International Arbitration Centre (the 'Chairman') shall recommend six arbitrators (the 'Recommended Arbitrators'). The Parties shall consult and attempt to agree which Recommended Arbitrators shall be submitted to the Chairman within 15 Business Days of receipt of notice of the Recommended Arbitrators. If no or less than three arbitrators are chosen by the Parties within the stipulated time, the Chairman shall in the Parties' place choose the three or remaining arbitrator(s), as the case may be, from the Recommended Arbitrators and appoint them to the Tribunal in accordance with the SIAC Rules. Once of the arbitrators shall be appointed by the Chairman to serve as the chairman of the Tribunal. The Parties agree that an arbitration tribunal appointed in accordance with this Agreement may join or consolidate arbitration proceedings (and each Party expressly consents to any such joinder or consolidation) relating to the other Finance Documents. The language of the arbitration shall be in English.
(b) Notwithstanding Clause 37.1(a) (Arbitration), any Finance Party or Secured Party may by prior written notice to the Borrowers take court proceedings in respect of any Dispute in which case Clause 37.1(a) (Arbitration) shall not apply to such Dispute. This applies (to the extent permitted by law) even if there are concurrent or preceding proceedings taken under paragraph (a) above.
37.2 Jurisdiction of English Courts
(a) If any Finance Party or Secured Party makes an election to take court proceedings in accordance with Clause 37.1(b) (Arbitration) in relation to any Dispute, the courts of England shall have exclusive jurisdiction over such Dispute.
(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes in accordance with Clause 37.1(b) (Arbitration) and accordingly no Party will argue to the contrary.
(c) This Clause 37.2 is for the benefit of the Finance Parties and Secured Parties only. As a result, no Finance Party or Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts within jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concurrent proceedings in any number of jurisdictions."
[4]
THE PRESENT APPLICATION
By notice of motion filed on 14 July 2021 (as amended informally during the hearing on 7 October 2021), Noorinya seeks:
1. an order pursuant to s 7(2) of the International Arbitration Act staying the possession proceedings and referring the Security Trustee's claim for possession to arbitration;
2. alternatively, an order pursuant to s 7(2) of the International Arbitration Act or in the exercise of the Court's inherent power to control its own proceedings staying the possession proceedings pending the determination of the Singapore arbitral proceedings (expanded to including Noorinya's claims referred to at [23] above); or
3. alternatively, an order requiring the Security Trustee to do all things reasonably required to procure the discharge of the anti-suit injunction (insofar as it affects Noorinya) by the High Court of Singapore, together with an order staying the possession proceedings pending that discharge and an undertaking by the Security Trustee not to rely on any limitation defence in the possession proceedings that would not have been available to them in the 2019 proceedings.
It is common ground that s 7 of the IA Act applies to the arbitration agreement.
Noorinya contends that:
1. by applying for the anti-suit injunction in the High Court of Singapore, the Security Trustee's predecessor elected not to take its own proceedings in respect of the dispute concerning the alleged unconscionable and misleading conduct and to have that dispute determined by arbitration, and the Security Trustee is bound by that election;
2. that dispute is part of the same "matter" as the Security Trustee's claim for possession and the possession proceedings must therefore be stayed pursuant to s 7(2) of the IA Act;
3. even if the dispute about alleged unconscionable and misleading conduct is characterised as a separate "matter" from the claim for possession, the Court should exercise its discretion to stay the possession proceedings until the anterior issue of whether the Security Trustee should be restrained from enforcing the Mortgage by reason of that alleged conduct has been determined in the arbitration proceedings; and
4. even if the possession proceedings are not stayed and referred to arbitration, or stayed pending arbitration on the basis referred to immediately above, they should be stayed as an abuse of process on the basis that they would occasion unjustifiable oppression to Noorinya in the circumstances of this case and would bring the administration of justice into disrepute.
[5]
Does s 7(2) of the IA Act require that the possession proceedings be stayed?
Section 7(2) of the International Arbitration Act provides:
"(2) Subject to this Part, where:
(a) proceedings instituted by a party to an to which this section applies against another party to the agreement are pending in a court; and
(b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;
on the application of a party to the agreement, the shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter."
As I have already mentioned, it is common ground that s 7 of the IA Act applies to the arbitration agreement. There is no dispute that s 7(2)(a) applies to the possession proceedings. The question is therefore whether the possession proceedings "involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration" within the meaning of s 7(2)(b).
That question raises two issues for determination: [3]
1. whether the possession proceedings involve the determination of a matter or matters within the scope of the arbitration agreement (which turns on whether the matter or matters to be determined are a "Dispute" within the meaning of clause 37.1(a) of the arbitration agreement and, if so, the effect of the notice given by the Security Trustee under clause 37.1(b)); and
2. the arbitrability of those matters.
In this context, the word "matter" refers to "some subject matter, some right or liability in controversy which, if not co-extensive with the subject matter in controversy in the court proceedings, is at least susceptible of settlement as a discrete controversy". [4]
In relation to the first issue, I note that neither party contended that the possession proceedings should be stayed to permit an arbitrator to determine whether they have jurisdiction under the kompetenz-kompetenz principle. [5]
In addressing the question referred to at [31] above, I am required to form a view as to the meaning of the arbitration agreement and to assess whether, on the basis of the available material, the character of the matter or matters raised by the possession proceedings is such that they fall within the scope of the arbitration agreement. The court looks not only at the claim for possession, but also at the intended defence and cross-claim. However, as Noorinya submitted, the court does not assess the merits of the claim or the intended defence and cross-claim. [6] The extent of the material available for this assessment is limited by reason of the early stage of the possession proceedings, the fact that Noorinya cannot plead its proposed defence and cross-claim in the possession proceedings without committing a contempt of the High Court of Singapore, and the stalled status of the arbitration proceedings. However, Noorinya's solicitor has given evidence identifying the relief intended to be sought, which would (if granted) defeat the Security Trustee's claim for possession, and has described the basis of that proposed claim for relief by reference to the allegations previously pleaded in the 2019 proceedings. That is sufficient to assess the character of the matter notwithstanding that the Amended Statement of Claim in the 2019 proceedings in not perfectly pleaded and particularised.
[6]
Abuse or process
The relevant principles were not in dispute.
As French CJ, Bell, Gageler and Kiefel JJ said in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] (citations omitted):
"25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel."
In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, Kiefel CJ, Bell and Keane JJ said at [1] (citations omitted):
"1.…The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. …"
In my opinion, it would occasion unjustifiable oppression to Noorinya if the Security Trustee were permitted to engage this Court's processes to prosecute its claim for possession whilst at the same time relying on the anti-suit injunction to prevent Noorinya from raising its proposed defence to that claim. I reject the Security Trustee's submissions that faintly suggested that Noorinya might defend the possession claims in this Court on grounds other than those that are within the scope of the anti-suit injunction. The only grounds explicitly identified by counsel for the Security Trustee were "issue estoppel", which it became apparent was intended to refer to the same election argument that I have rejected at [59]-[60] above. For the reasons I have already explained, it is open to the Security Trustee to have its possession claim resolved by arbitration in accordance with the arbitration agreement. There is no apparent disadvantage to it in doing so, save that it will need to contend with Noorinya's defence. The loss of a tactical advantage of being able to prosecute its possession claim undefended in this Court would not be oppressive to the Security Trustee, whereas it is unjustifiably oppressive to Noorinya and would bring the administration of justice into disrepute to allow Noorinya to be subjected to proceedings in this Court that it cannot defend except on pain of contempt of the High Court of Singapore. That scenario would almost certainly result in the Security Trustee being able to enforce a judgment for possession before Noorinya had the opportunity to have the substance of its defence to the possession claim determined in that arbitration proceeding.
[7]
Orders
For all of the reasons above, I make the following orders:
1. Subject to the condition in Order 2 below, order that this proceeding be stayed pending the final determination of the following arbitration proceedings in the Singapore International Arbitration Centre:
1. proceeding SIAC ARB/210/19/LSJ; and
2. proceeding SIAC ARB/211/19/LSJ,
3. (together, the Arbitration Proceedings).
1. Order 1 is conditional upon the defendant (the applicant in the Arbitration Proceedings) taking all steps reasonably available to it to conduct the Arbitration Proceedings expeditiously from the date of the orders, including (without limitation):
1. providing any outstanding response to any correspondence received from the Singapore International Arbitration Centre concerning any jurisdictional issue raised by the respondents in the Arbitration Proceedings; and
2. filing the detailed statements of claim referred to in the notice of arbitration filed in each of the Arbitration Proceedings.
1. Order that the notice of motion filed by the defendant on 14 July 2021 is otherwise dismissed.
2. Order that the defendant's costs of that notice of motion be paid by the plaintiff on the ordinary basis in such amount as may be agreed or assessed.
3. Grant liberty to apply on 3 days' notice.
[8]
Endnotes
Each of the borrowers entered into the Facility Agreement in their capacity as trustee of a trust. The plaintiffs in the 2019 proceedings were the successor trustees to those trustees and Mr Nathan Tinkler, who claimed to represent or alternatively sought an order appointing him to represent the beneficiaries under the two trusts.
Clause 13.4(e).
Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 322 (Tanning Research) at 351 (Deane and Gaudron JJ); M Holmes and C Brown, The International Arbitration Act 1974: A Commentary (3rd ed, 2018), paragraph 7-13.
Tanning Research at 351 (Deane and Gaudron JJ); Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; (2006) 238 ALR 457; [2006] FCAFC] 192 (Comandate) at [235] (Allsop J, as his Honour then was, Finkelstein J agreeing).
Hancock Prospecting Pty Ltd v Rinehart (2017) 350 ALR 658; [2017] FCAFC 170 (Hancock Prospecting) at [141]-[151] (Allsop CJ, Besanko and O'Callaghan JJ) (this aspect of the judgment of the Full Court of the Federal Court of Australia was not determinative of the appeal to the High Court of Australia, which referred to the general principle of kompetenz-kompetenz applied by the Full Court without criticism of this aspect of the judgment of the Full Court: Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; (2019) 366 ALR 635; [2019] HCA 13 (Rinehart) at [13] (Kiefel CJ, Gageler, Nettle and Gordon JJ); In the matter of Ikon Group Limited (No. 2) [2015] NSWSC 981 (Ikon No. 2) at [12] (Brereton J, as his Honour then was).
Security Trustee's written submissions, paragraphs 3-7; Noorinya's written submissions, paragraphs 30-31 and 36.
J D Heydon, Cross on Evidence (12th ed, 2020), paragraph 41005.
Rinehart at [26] (Kiefel CJ, Gageler, Nettle and Gordon JJ) and the authorities there cited; Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155 (Lepcanfin) at [78]-[95] (Bell P, Payne and McCallum JJA agreeing).
Security Trustee's written submissions, paragraph 18.
As senior counsel for Noorinya submitted at T53.
Parties
Applicant/Plaintiff:
Hansell
Respondent/Defendant:
Noorinya Holdings Pty Ltd atf the Noorinya Holdings Trust
The Fourth Amendment and Restatement Deed, to which Noorinya is a party together with the borrowers, guarantors and the security trustee, amends and restates the Facility Agreement. Clause 6.2 of that deed provides:
"The provisions of clause 37 (Enforcement) of the Restated Agreement shall be incorporated into this Deed as if set out in full in this Deed and as if references in that clause to 'this Deed' or 'the Finance Documents' are references to this Deed'."
It is common ground that clause 37.1 of the Facility Agreement and clause 6.2 of the Fourth Amendment and Restatement Deed are an arbitration agreement to which the IA Act applies. I shall refer to those clauses simply as the arbitration agreement, although I recognise that Noorinya is a party to the arbitration agreement only by reason of the Fourth Amendment and Restatement Deed. When referring to the arbitration agreement, it is convenient to refer to the substance of clause 37 of the Facility Agreement where the arbitration agreement is set out in full.
In 2019, Noorinya and the borrowers under the Facility Agreement commenced proceedings in this Court against twenty-four defendants, including Credit Suisse AG (which was then the security trustee and also one of the lenders). [1]
The 2019 proceedings concerned loss and damage allegedly suffered by the borrowers as a result of the sale of their shares in Whitehaven Coal Limited in about mid-2013. The acquisition of those shares was financed by the loan that is the subject of the Facility Agreement. The plaintiffs in the 2019 proceedings alleged that the lender syndicate "forced" the sale of the borrowers' shares in Whitehaven Coal Limited in breach of fiduciary duties said to have been owed by the lender syndicate members to the borrowers and in an unconscionable departure from a previous representation alleged to have been made to the borrowers. The plaintiffs also claimed that the borrowers relied on certain allegedly misleading or deceptive representations made by the lender syndicate members in entering into the Facility Agreement on 27 April 2012, in providing certain information to the lender syndicate at about the same time and in structuring the borrowers' acquisition of Whitehaven Coal Limited in a manner which they allege made them vulnerable to the sale that they claim the lender syndicate subsequently forced to the detriment of the borrowers and to the benefit of the lender syndicate.
The plaintiffs in the 2019 proceedings did not expressly claim that Noorinya relied on the alleged misleading or deceptive representations in entering into the Mortgage, but it will be recalled that the Mortgage was entered into in order to secure Noorinya's obligations as one of the guarantors of the borrowers' obligations under the Facility Agreement. The plaintiffs claimed to have relied on the alleged misleading representations in entering into the Facility Agreement.
The relief sought by the plaintiffs in the 2019 proceedings included an order that the borrowers and related parties be released from all liability for any debts owed to the lender syndicate under the Facility Agreement, an order for equitable compensation and an order for damages for misleading or deceptive conduct under the Australian Consumer Law.
The basis on which the plaintiffs in the 2019 proceedings sought an order releasing the borrowers and related entities from all liability for any debts owed to the lenders syndicate under the Facility Agreement was not clear from the Amended Statement of Claim filed in those proceedings. In the present proceedings, it was submitted on behalf of Noorinya that such an order might be made to give effect to an equitable set-off of any equitable compensation ordered to be paid by the lender syndicate to the plaintiffs against any liability of the borrowers under the Facility Agreement. It was submitted that such an order might also be made under ss 237 and 243 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
For reasons that are not explained by the evidence, Noorinya and the other plaintiffs in the 2019 proceedings commenced arbitration proceedings under the Singapore International Arbitration Centre Rules on the same date that they commenced the 2019 proceedings in this Court. There were two arbitration proceedings commenced in respect of the same dispute. Again, the reasons for this are not explained in the evidence but nothing turns on this. It was common ground that there is, in substance, one arbitration proceeding.
The arbitration proceedings named as respondents the same parties who were the defendants in the 2019 proceedings. The brief statement of the dispute in the notices of arbitration describe in more truncated terms the issues raised in the Amended Statement of Claim in the 2019 proceedings, save that the relief claimed in the arbitration notices is damages. There is no claim for an order releasing the borrowers from liability under the Facility Agreement. Each notice of arbitration foreshadows a statement of claim that will describe the dispute in more detail.
On the application of Credit Suisse AG, the High Court of Singapore made a declaration that the commencement of the 2019 proceedings in this Court was in breach of the arbitration agreement and an order requiring Noorinya and the other plaintiffs in the 2019 proceedings to withdraw and discontinue those proceedings. The High Court of Singapore also granted an anti-suit injunction restraining those parties from taking any further steps in the 2019 proceedings (save for withdrawing or discontinuing and paying the defendants' costs of those proceedings) and also restraining them from (emphasis added):
"commencing or pursuing any other substantive claim or substantive proceedings arising out of or in connection with the Agreements in any court or tribunal other than by arbitration in Singapore in accordance with the arbitration agreements contained in the Agreements."
The term "Agreements" is defined in the orders as meaning the Facility Agreement and the Fourth Amendment and Restatement Deed.
As a consequence of those orders made by the High Court of Singapore on 1 July 2020, the 2019 proceedings were discontinued.
The arbitration proceedings have not progressed since the filing of the notices of arbitration on 18 June 2019. According to an affidavit of Noorinya's solicitor affirmed on 14 July 2021, that is because the respondents in the arbitration proceedings have not yet paid their share of the fees required by the Singapore International Arbitration Centre (SIAC) to constitute an arbitral tribunal. In correspondence with Noorinya's solicitor, the solicitors for the respondents have stated that the respondents have raised "a fundamental jurisdictional issue, namely the applicable SIAC rules for the purpose of clause 37.1 of the Facility Agreement" and that the respondents "are unwilling to pay any deposit to SIAC in circumstances where it is our client's position that your client's application is fundamentally flawed and is not capable of remedy and your client has failed to respond to SIAC's requests regarding its position with respect to the jurisdictional issue." There was no other evidence adduced in the present proceedings as to the nature of the alleged jurisdictional issue. However, it was common ground that the arbitration proceedings have stalled. In those circumstances, the detailed statements of claim foreshadowed in the notices of arbitration have not been filed by the claimants in the arbitration proceedings.
At the time that the 2019 proceedings and the arbitration proceedings were commenced, Credit Suisse AG had not taken any steps to enforce the mortgage.
It is not in dispute that the borrowers are in default under the terms of the Facility Agreement. Clause 7.1 of the Mortgage provides that the mortgage becomes immediately enforceable if an "Event of Default" occurs. An "Event of Default" is defined in the Mortgage as having the same meaning as under any "Secured Document", including the Facility Agreement.
On 21 May 2021, the Security Trustee wrote to the borrowers giving notice pursuant to clause 37.1(b) of the Facility Agreement of the Security Trustee's intention to commence proceedings against Noorinya for possession of the three mortgaged properties. The notice was stated to be given in the event that the mortgagee's right of possession was subject to clause 37.1(a) of the Facility Agreement (which was denied).
On 2 June 2021, the Security Trustee commenced the present proceedings in this Court claiming judgment for possession of the three mortgaged properties pursuant to clauses 5.4 and 9.3(a) of the mortgage or, alternatively, pursuant to s 60 of the Real Property Act 1900 (NSW) (the RP Act). Insofar as it relies on s 60 of the RP Act, the claim for possession is for actual possession of the properties under s 60(c) rather than constructive possession by receiving rents and profits from the land under s 60(a). I will refer to these proceedings as the possession proceedings to distinguish them from the 2019 proceedings.
According to the affidavit of Noorinya's solicitor affirmed on 14 July 2021, one ground on which Noorinya wishes to defend the possession claim is that:
"… by virtue of the unconscionable and misleading conduct of the Lenders and Security Trustee (including as described in the Amended Statement of Claim filed in the former 2019 NSW Proceeding … the plaintiffs should not be permitted to enforce the mortgage they seek to enforce in this proceeding and should be restrained from doing so."
It is common ground that the anti-suit injunction granted by the High Court of Singapore on 1 July 2020 precludes Noorinya from pleading or relying on any such defence or cross-claim in the possession proceedings in this Court. As emphasised by the Security Trustee's solicitors in the war of correspondence that erupted on the commencement of the possession proceedings, Noorinya would be in contempt of the High Court of Singapore if it were to rely on any such defence or cross-claim in the possession proceedings.
Noorinya acknowledges that, if a stay is ordered, this may be on the condition that Noorinya take all reasonable steps available to it to prosecute the arbitral proceedings expeditiously. It does not oppose a condition to that effect.
The Security Trustee contends that:
1. the claim for possession is outside the scope of the arbitration agreement because the exercise of its enforcement rights under the Mortgage (or alternatively under s 60 of the RP Act) is not a "Dispute" as defined in the arbitration agreement. It is a dispute under the Mortgage, which does not contain any arbitration agreement and which expressly provides that the parties submit to the non-exclusive jurisdiction of the courts of New South Wales;
2. alternatively, if the exercise of the Security Trustee's enforcement rights is a "Dispute" within the meaning of the arbitration agreement:
1. the Security Trustee has validly exercised its express right under clause 37.1(b) of the arbitration agreement to commence the possession proceedings concurrently with the existing arbitration;
2. the "Dispute" is not capable of settlement by arbitration within the meaning of s 7(2) of the IA Act in circumstances where the Security Trustee has exercised that express right and the Mortgage expressly provides that the parties submit to the non-exclusive jurisdiction of the courts of New South Wales; and
3. a "suspension clause" in the Mortgage [2] expressly precludes Noorinya from raising a defence or cross-claim to prevent the mortgagee from enforcing its right to possession in the event of default; and
1. further or alternatively, the grant of a stay is a discretionary remedy which should be declined in this case on the basis that Noorinya's claims of unconscionable conduct on the part of the lender syndicate members are a weak prima facie case for relief restraining the Security Trustee (on behalf of the lenders) from enforcing the Mortgage.
Both the Facility Agreement and the Fourth Amendment and Restatement Deed expressly provide that they are governed by English law. The relevant provision in the Fourth Amendment and Restatement Deed provides that the deed shall be construed in accordance with the law of England. [7] The parties' submissions as to the scope of the arbitration agreement nevertheless proceeded on the unstated assumption that it falls to be construed in accordance with the law of Australia. [8] In the absence of any proof of, or agreement about, the principles of the law of England applicable to the construction of the arbitration agreement, I approach its construction by applying the legal principles established in Australia concerning the construction of commercial contracts, including arbitration agreements. [9]
The arbitration agreement therefore falls to be construed in accordance with the intention of the parties, objectively ascertained, by reference to the language of the arbitration agreement, the circumstances known to the parties and the commercial purpose of the Facility Agreement as amended and restated. [10]
The Security Trustee submitted that its claim for possession is a dispute under the Mortgage or under s 60 of the RP Act rather than under the Facility Agreement or the Fourth Amendment and Restatement Deed. It was submitted that the possession claim is therefore outside the scope of the arbitration agreement. The Security Trustee further submitted that the context and purpose of the Facility Agreement and the Mortgage supported the construction of the arbitration agreement as excluding disputes arising under the Mortgage. Particular reliance was placed on the fact that, although specific clauses of the Facility Agreement and Security Trust Deed are expressly incorporated in the Mortgage, the arbitration agreement is not so incorporated. The Security Trustee also relied on the fact that the Mortgage expressly provides that it is governed by the law of New South Wales, that each party submits to the non-exclusive jurisdiction of the courts of New South Wales and that the mortgagor waives any objection to the venue of any proceedings on any ground that they have been commenced in an inconvenient forum and also waives any immunity from proceedings to which it may be entitled under any law. The Security Trustee also relied on a provision in the Mortgage to the effect that the mortgagor's obligations are "absolute, unconditional and irrevocable" and are not affected by (inter alia) the obligations of any person in relation to the secured money becoming unenforceable or any representation made by the mortgagee to the mortgagor. Reliance was also placed on the "suspension clause" in clause 13.4(e) of the Mortgage, which relevantly provides:
"Until the Secured Money has been irrevocably paid and discharged in full and the Secured Obligations have been irrevocably performed and satisfied in full, the Mortgagor must not:
…
(e) in reduction of its liability under this document, raise a defence, set off or counterclaim available to itself, any Security Provider or a co-surety or co-indemnifier against the Mortgagee or any other Secured Creditor or claim a set off or make a counterclaim against the Mortgagee or any other Secured Creditor"
Having recounted all of those provisions, the Security Trustee's submissions stated: [11]
"The provisions of the Mortgage set out above, taken as a whole in their commercial context, take the mortgagee's exercise of its rights under the Mortgage outside the scope of the Arbitration Clause so that the matter is not 'capable of settlement by arbitration' within the meaning of s 7 of the [IA Act]."
That submission is directed to construction of clause 37.1(a) of the arbitration agreement, putting to one side the effect of the notice served by the Security Trustee under clause 37.1(b) before commencing the possession proceedings. I reject the Security Trustee's submission for reasons that I will state as briefly as possible before turning to the effect of the notice under clause 37.1(b).
The first reason is that [12] the submission fails to engage with the terms of the arbitration agreement, which applies to "any dispute arising out of or in connection with this Agreement (including a dispute relating to its existence, validity or termination or any non-contractual obligation arising out of or in connection with it)" (my emphasis). The words "arising out of or in connection with" are words that, depending on the context in which they appear, are capable of connoting a broader connection with the subject matter than the word "under" referred to in the Security Trustee's submissions. [13] The phrase "under this Agreement" does not appear in the definition of "Dispute" in the arbitration agreement.
Second, the Security Trustee's submission focusses solely on its claim for possession, ignoring Noorinya's proposed defence and cross-claim. As I have already stated, both the claim and the proposed defence and cross-claim must be considered in assessing whether the possession proceedings involve the determination of a matter that, in pursuance of the arbitration agreement, is capable of settlement by arbitration. [14] Moreover, it is the character of the proposed defence and cross-claim that must be considered rather than the scope of the dispute in the existing arbitration proceedings that were commenced before the Security Trustee took steps to enforce the Mortgage. As I have already mentioned, in response to the possession proceedings, Noorinya intends to expand its claims in the arbitration proceedings to seek an order restraining the Security Trustee from exercising its rights under the Mortgage.
Third, applying the principles referred to at [37] above, it is my opinion that the possession proceedings (including the proposed defence and cross-claim) are a "dispute arising out of or in connection with" the Facility Agreement (as amended and restated) within the meaning of clause 37.1(a) of the arbitration agreement, notwithstanding that they can also be characterised as a dispute arising under, out of or in connection with the Mortgage.
The commercial purpose of the amended and restated Facility Agreement, as revealed by the terms of that document, was to provide for a loan to the borrowers by a syndicate of 17 lenders (all of which were foreign companies), recorded in and secured under numerous other documents and instruments, [15] including mortgages of real property located in New South Wales. [16] Those mortgages included the Mortgage that is the subject of these possession proceedings. [17] The potential for disputes or claims to arise out of or in connection with both the Facility Agreement and another document or instrument entered into give effect to the Facility Agreement is clear from clause 21 of the Facility Agreement. Clause 21 provides that each event set out in that clause and each event or circumstance described as an event of default in any "Finance Document" (defined as including the Mortgage) is an event of default under the Facility Agreement. The events of default include, for example, any security provider failing to comply with any provision of the "Finance Documents" [18] .
Clause 18.7 of the Facility Agreement recognises that the documents and instruments entered into to give effect to the Facility Agreement are governed by the laws of different jurisdictions, depending on the jurisdiction in which the borrower or relevant security provider is incorporated or the jurisdiction in which a secured asset is located. Clause 18.7(b) provides that any judgment obtained in relation to a "Finance Document" (which includes the Mortgage) in the jurisdiction of the governing law of that document will be recognised and enforced in that jurisdiction.
It is in this context that the parties entered into the arbitration agreement that provides in clause 37.1(a) for any disputes arising out of or in connection with the Facility Agreement (as amended and restated) to be determined and finally resolved by arbitration, subject to the rights of a lender, the Security Trustee or any receiver appointed by them [19] to take court proceedings in respect of any such dispute with prior written notice to the borrowers pursuant to clause 37.1(b).
In my opinion, a reasonable businessperson in the position of the parties at the time they entered into the arbitration agreement and aware of the context I have described above, would have understood clause 37 to mean that any dispute arising out of or in connection with the amended and restated Facility Agreement (irrespective of whether it is also a dispute arising out of or in connection with a particular "Finance Document" such as the Mortgage) is required to be referred to and resolved by arbitration, unless a lender, the Security Trustee or a receiver appointed by them elects to initiate court proceedings instead. The reasonable businessperson would have attributed to the parties the intention to capture all of their potential disputes associated with the Facility Agreement and the underlying documents and instruments, save for any such dispute in respect of which an election is made under clause 37.1(b). They would have understood the parties to have intended that this election should rest with the lender, the Security Trustee and/or their appointed receivers, having regard to the different laws that may apply to the exercise of their rights under the "Finance Documents" in the various jurisdictions in which the security providers and secured assets are located. Absent such an election, any dispute arising out of or in connection with the Facility Agreement (including a dispute arising out of in connection with the Mortgage or some other "Finance Document") is to be referred to arbitration. The reasonable bystander would not have understood the parties to have intended that the question whether a dispute was within the scope of clause 37.1(a) would be the subject of an analysis of the various documents and instruments entered into to give effect to the Facility Agreement in order to arrive at a binary characterisation of the dispute as arising under either the Facility Agreement or a specific document or instrument, that characterisation itself being a fertile ground for further dispute between reasonable minds. [20]
Viewed in this way, clause 37.1(b) supports rather than detracts from a broad construction of the words "arising out of or in connection with this Agreement" in clause 37.1(a). That is to say, it is precisely because of the breadth of the matters to be referred to arbitration that the lender, the Security Trustee and/or their appointed receivers have the right to require particular disputes to be determined by a court in a jurisdiction that they consider to be appropriate to the particular alleged default or the particular secured asset that is the subject of the dispute. The fact that the Mortgage does not expressly incorporate the arbitration agreement does not warrant a narrower construction of the parties' arbitration agreement, in my opinion.
It was common ground that the Security Trustee's claim for possession arises out of an event of default under both the Facility Agreement and the Mortgage. [21] For this reason alone, even before one takes into account the character of Noorinya's proposed defence and cross-claim, the possession proceedings are a dispute arising out of or in connection with the Facility Agreement. The fact that they are also a dispute arising out of or in connection with the Mortgage and arising under s 60 of the RP Act does not detract from that conclusion. It is not to the point that the Mortgage provides that the parties submit to non-exclusive jurisdiction of the courts of New South Wales. Noorinya does not challenge the jurisdiction of this Court or complain that it is an inconvenient forum. Rather, Noorinya asks this Court to exercise its jurisdiction by giving effect to the parties' arbitration agreement and staying the possession proceedings under s 7 of the IA Act.
Fourth, by its insistence that Noorinya's proposed defence and cross-claim in the possession proceedings falls within the scope of the anti-suit injunction issued by the High Court of Singapore, the Security Trustee has necessarily accepted that the proposed defence and cross-claim arises out of or in connection with the Facility Agreement as amended and restated by the Fourth Amendment and Restatement Deed. [22] In my view, that concession is correct as it is consistent with the broad meaning of the words "out of or in connection with this Agreement" in clause 37.1(a) of the arbitration agreement, as referred to above.
In my opinion, the question raised by the proposed defence and cross-claim whether the security trustee should be restrained from enforcing the Mortgage is so directly connected and intertwined with the plaintiffs' claim for possession (being a step in the enforcement of those rights) that the claim and the proposed defence and cross-claim are one "matter" for the purpose of s 7(2)(b) of the IA Act. To put it another way, there is one subject matter in controversy, being whether the security trustee is entitled to possession of the secured properties in the enforcement of its rights under the Mortgage. To view the claim and the proposed defence and cross-claim as different "matters" for the purpose of s 7(2)(b) would be to apply an "overly fine dissection of different 'disputes'" within what is, in substance, one controversy. [23]
Contrary to the Security Trustee's submissions, neither the suspension clause [24] in the Mortgage nor the clause providing that the mortgagor's obligations are "absolute, unconditional and irrevocable" [25] warrant a different conclusion. Rather, as Noorinya submitted, the proper construction of those clauses and their effect (if any) on the proposed defence and cross-claim is a disputed issue that forms part of the matter to be determined. The submissions made on behalf of the Security Trustee appeared to suggest that, by clause 13.2 of the Mortgage, Noorinya had contracted out of any right to seek relief for alleged misleading or unconscionable conduct, even where such conduct is said to have induced the borrowers to enter into the Facility Agreement (and thereby caused Noorinya to enter into the Mortgage). That submission, if it is maintained, is a matter to be determined as part of the substantive dispute between the parties and not on an interlocutory application such as this. The authorities referred to by the plaintiffs [26] in relation to suspension clauses concern similar clauses in other instruments or agreements in the context of the particular claims and defences in other proceedings. Those authorities are not determinative of the effect of the suspension clause on Noorinya's proposed defence and cross-claim. What does emerge from those authorities is that, because the suspension clause applies while the secured money remains unpaid and operates to preclude Noorinya from raising a defence, set-off or cross-claim in reduction of its liability, it is arguable that the clause does not preclude Noorinya from raising a defence or cross-claim that impeaches the validity or enforceability of the Mortgage or the underlying guarantee or debt. [27]
Section 60 of the RP Act relevantly provides:
"The mortgagee, chargee or covenant chargee upon default in payment of the principal sum or any part thereof, or of any interest, annuity or rent-charge secured by any mortgage, charge or covenant charge may -
…
(c) bring proceedings in the Supreme Court or the District Court for possession of the said land, either before or after entering into the receipt of the rents and profits thereof, and either before or after any sale of such land effected under the power of sale given or implied in the mortgage, charge or covenant charge,
in the same manner in which the mortgagee, chargee or covenant chargee might have made such entry or brought such proceedings if the principal sum, interest, annuity or rent-charge were secured to the mortgagee, chargee or covenant chargee by a conveyance of the legal estate in the land so mortgaged or charged."
Section 60(c) does not confer on the mortgagee a right to take possession of the mortgaged property on default without taking proceedings. Rather, it confers the right to sue in this Court or in the District Court for an order for possession in the same manner as an old system title mortgagee could have sued in ejectment. [28]
I initially held reservations about whether a statutory right to sue in this Court or the District Court was arbitrable. On reflection, I accept Noorinya's submissions that the claim under s 60 of the RP Act involves private rights and interests and is therefore arbitrable and capable of settlement by arbitration if it is within the scope of the arbitration agreement. An arbitrator cannot make an order under s 60 of the RP Act, but the underlying questions of fact and law concerning whether the Security Trustee is entitled to possession can be determined by the arbitrator and recorded in an arbitral award that will bind the parties and can be enforced in accordance with s 8 of the IA Act. [29]
For the reasons I have explained above, the Security Trustee's claim under s 60 of the RP Act is one aspect of the matter required to be determined in the possession proceedings, which is a "Dispute" within the meaning of clause 37.1(a) of the arbitration agreement.
It remains to consider whether, by reason of the provisions of clause 37.1(b) of the arbitration agreement and the notice served by the Security Trustee under that clause on 21 May 2021, [30] the possession proceedings are not capable of settlement by arbitration in pursuance of the arbitration agreement.
In my opinion, the effect of the clause 37.1(b) notice is that the possession proceedings are not capable of settlement by arbitration in pursuance of the arbitration agreement because they are not required by the arbitration agreement to be settled by arbitration. The arbitration agreement carves out from the scope of "Disputes" to be referred to arbitration those in respect of which (relevantly) the Security Trustee has elected to commence curial proceedings.
Noorinya submitted that the notice was of no effect because the Security Trustee (or its predecessor) elected in 2019 to have the claims relating to the lenders' alleged unconscionable and misleading conduct determined by arbitration. It was submitted that, because those allegations now form part of the same "matter" as the Security Trustee's claim for possession, its 2019 election applies to the whole of the possession proceedings and it is not open to the Security Trustee to depart from that election.
In my respectful opinion, Noorinya's submission is misconceived. When the Security Trustee's predecessor obtained the anti-suit injunction in 2019, it was merely enforcing the arbitration agreement in respect of the "Dispute" articulated in the 2019 proceedings. That "Dispute" did not include any claim by the Security Trustee's predecessor for possession of the mortgaged properties, or any claim by Noorinya or any plaintiff in the 2019 proceedings for an order restraining enforcement of the Mortgage. It included some allegations that overlap with some of the allegations that are now to be advanced by Noorinya in defending the possession claim. I accept the Security Trustee's submission [31] that it did not make any election as to whether its possession claim should be determined by arbitration or by curial proceedings until it decided to make the possession claim and issued the notice on 21 May 2021. It was entitled by clause 37.1(b) of the arbitration agreement to make that election in favour of curial proceedings. It is not resiling form that election by relying on the very wide terms of the anti-suit injunction to preclude Noorinya from pleading its proposed defence and cross-claim in the possession proceedings. However, in my opinion, the Security Trustee's conduct in relying on the anti-suit injunction in that manner is an abuse of the process of this Court for the reasons explained at [62]-[67] below.
For those reasons, s 7(2) of the IA Act does not require that the possession proceedings (or any part of the proceedings) be stayed and referred to arbitration.
I reject the Security Trustee's submission that this does not constitute unjustifiable oppression to Noorinya because it falls within what the parties agreed to by clause 37.1(b) of the arbitration agreement. [32] That clause confers on the Security Trustee the right to commence court proceedings "in respect of any Dispute" and provides that this right applies, "to the extent permitted by law … even if there are concurrent or preceding proceedings" under clause 37.1(a). In my opinion, the right conferred by clause 37.1(b) relates only to the whole of a "Dispute" and does not contemplate that different parts of one "Dispute" will be determined in court proceedings and in arbitration. As senior counsel for Noorinya submitted, [33] the reference to "concurrent or preceding proceedings" under clause 37.1(a) is a reference to arbitration proceedings in relation to different disputes arising out of or in connection with the Facility Agreement. This construction of clause 37.1(b) is consistent with clause 37.2(a), which provides that, if an election under clause 37.1(b) is made, the courts of England will have jurisdiction over "such Dispute". In my view, the words "such Dispute" clearly refer to the whole of a "Dispute". However, if I am wrong about this, then the Security Trustee's reliance on clause 37.1(b) together with the anti-suit injunction to have only part of the possession dispute determined in this Court is not permitted by law because it is an abuse of process for the reasons explained above.
Since the Security Trustee has displayed no indication that it is willing to apply to the High Court of Singapore to vary or discharge the anti-suit injunction so as to facilitate Noorinya defending the possession proceedings in this Court, the appropriate course is to exercise the Court's inherent jurisdiction to prevent abuse of its processes by ordering that these proceedings be stayed pending determination of the arbitration proceedings that Noorinya intends to expand to include the substance of the matters on which it relies in defence of the possession claim. The arbitrator's determination of those matters will be binding on the parties and can be taken into account by this Court in determining the possession claim after the stay is discharged following the conclusion of the arbitration.
Contrary to the Security Trustee's submissions, [34] I do not consider that an assessment of the strength or weakness of the substance of Noorinya's proposed defence to the cross-claim is relevant to the exercise of the discretion to prevent abuse of the Court's process. On the limited material presently available, it cannot be said that the proposed defence is not reasonably arguable. Assuming (without deciding) that it is an arguable yet weak defence, that would not make the oppression of Noorinya justifiable. Nor would it render the Security Trustee's use of the Court's process consistent with the proper administration of justice.
I am troubled that the arbitration proceedings are presently stalled. The stay will be subject to a condition that Noorinya take all steps reasonably available to it to conduct the arbitration proceedings expeditiously, including by providing any outstanding response to any correspondence received from SIAC in relation to any jurisdictional issue raised by the respondents in the arbitration proceedings and by filing the detailed statements of claim referred to in the notices of arbitration. There will be a grant of liberty to apply, which may be exercised by the Security Trustee in the event that Noorinya fails to comply with these conditions.
Neither party indicated that they would wish to make submissions concerning costs after Noorinya's application was determined. Costs should therefore follow the event. As Noorinya has succeeded in obtaining an order for the stay of the possession proceedings, costs there will be an order for the Security Trustee to pay Noorinya's costs of the application.
Hancock Prospecting at [193] (Allsop CJ, Besanko and O'Callaghan JJ); Rinehart at [17] (Kiefel CJ, Gageler, Nettle and Gordon JJ); Rinehart v Rinehart [2021] NSWCA 228 at [18] (Meagher and Payne JJA).
See [35] above.
See the definitions of "Finance Documents" and "Equity Documents" and each of the defined terms within those definitions.
Definitions of "Finance Documents", "Transaction Security Documents (Debt)" and "Property Mortgages".
The specific "Property Mortgage" defined as the "Coffs Harbour Property Mortgage".
clause 21.3
See the definitions of "Finance Party" or "Secured Party".
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165 (Gleeson CJ (Meagher and Sheller JJA agreeing); Hancock Prospecting at [167] (Allsop CJ, Besanko and O'Callaghan JJ); Lepcanfin at [78]-[94] and especially [93] (Bell P, Payne and McCallum JJA agreeing).
See the terms of the order of the High Court of Singapore referred to at [15]-[16] above.
Hancock Prospecting at [157].
Clause 13.4(e).
Clause 13.2.
Security Trustee's written submissions, paragraph 16.
See, in particular, O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [88]-[114] (Ward JA, Beazley P (as Her Excellency then was) and Macfarlan JA agreeing), and see also [14]-[15] (Macfarlan JA).
Starceavich v Swart & Associates Pty Ltd (2006) 12 BPR 23, 639; [2006] NSWSC 960 at [35]-[37]; B Edgeworth, Butt's Land Law (7th ed, 2017), paragraph 11.800.
Tanning Research at 351-352 (Deane and Gaudron JJ); Comandate at [200] (Allsop J, Finkelstein J agreeing); Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 at [164]-[172] (Bathurst CJ, McColl JA agreeing).
See [21] above.
Security Trustee's written submissions, paragraph 26.
T41.
T54.
Security Trustee's written submissions, paragraph 27.
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Decision last updated: 18 November 2021