Hooke v Bux Global Limited

1. The application for summary judgment is dismissed.
2. The costs of the application be costs in the cause.
3. On the applications for discovery and the question of inspection of documents produced on subpoena by the Commonwealth Bank and the ANZ Bank: (a) the plaintiffs do file and serve written submissions by 17 May 2018; (b) the defendant do file and serve written submissions in response by 24 May 2018; and (c) the issues be determined on the papers.
4. The plaintiffs do deliver any proposed amended concise statement by 23 May 2018.
5. The matter be otherwise adjourned for a case management hearing on 1 June 2018 at 9.30 am Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The plaintiffs seek orders for the winding up of Bux Global Limited (Bux). In their concise statement, they claim they have been 'purportedly issued shares', but they did not apply for shares in Bux and did not participate in any transaction by which their shares in a company Bux.com Global Limited (Bux.com) might be exchanged for shares in Bux. As a result, they accept they do not meet the definition of member in the Corporations Act 2001 (Cth). 2 There is evidence before me that the plaintiffs were added to the register of shareholders of Bux and issued with holding certificates. Despite this, Bux claims that the plaintiffs are not members of the company and it has pleaded that position in answer to the claim by the plaintiffs. 3 Therefore, in these proceedings, both the plaintiffs and the defendant maintain that the plaintiffs are not members of Bux. I perhaps should say that in relation to the plaintiffs, their position really is that they accept that they are not members of Bux by operation of the definition of 'member' in the Corporations Act. 4 The plaintiffs seek a winding up order under s 461 of the Corporations Act. The persons who are permitted to apply for the winding up of a company under s 461 are listed in s 462. Until yesterday, the plaintiffs claim to be permitted to wind up Bux only on the basis that they are contributories, being one of the categories of persons who may apply. Yesterday, they added, at least by way of submission, a claim that they are also creditors and can bring the winding up application on that basis. The claim that they are creditors was articulated by way of submission but does not yet form part of the plaintiffs' concise statement in these proceedings. 5 In relation to a company, 'contributory' is defined in the Corporations Act to mean: (i) a person liable as a member or past member to contribute to the property of the company if it is wound up; and (ii) for a company with share capital - a holder of fully paid shares in the company; and (iii) before the final determination of the persons who are contributors because of subparagraphs (i) and (ii) - a person alleged to be such a contributory. 6 The term 'holder' is not defined in the Corporations Act. However, the term 'member' is defined in the Act, as I have mentioned. 7 The plaintiffs say that the share register of Bux is, absent evidence to the contrary, proof that the plaintiffs are the holders of fully paid shares in a company and therefore contributories. They have been issued and hold shares. The plaintiffs submit that Bux cannot be heard to say now that the plaintiffs are not contributories, when it has previously issued holding certificates to them, entered their names on a register of members and otherwise treated them as members. 8 The plaintiffs also say that, by virtue of their claim that they are contributories, they are alleged to be a contributory for the purposes of the definition. This could not be the case if an allegation of that kind was colourable, in the sense that it was a fictitious allegation or an allegation made without proper foundation. Here, the plaintiffs say that the foundation lies in the matters I have stated. So, therefore, the plaintiffs' position is that they are alleged by them to be a contributory and they are a holder of fully paid shares in the company and that satisfies the definition. I have some difficulty with that proposition, because it would mean that a person could, in effect, create their own standing for a winding up application. 9 In my view, the key issue in relation to the claim of standing based upon being a contributory lies in the meaning of the words 'a holder of fully paid shares' as used in para (a)(ii) of that definition, and, in particular, whether it is to be read as meaning a member who is a holder of fully paid shares. I should say that, in expressing the issue in those terms, I do not believe that the construction advanced for the defendant is one which requires a reading in of those words; it is merely a question of what is meant by the phrase 'a holder of fully paid shares'. 10 The submission that is advanced for Bux is that, in the legislative context and the history of the way in which the provision has unfolded, it means a member as a holder of fully paid shares. 11 The application for winding up orders is listed for hearing for four days commencing on 30 July 2018. Case management directions were made by Barker J on 26 April 2018. At the time those directions were made, Barker J made them on the basis that the question of standing would be dealt with at the same time as the application for orders for winding up of Bux. The proceedings have been on foot since December last year. 12 Nevertheless, last week, Bux filed an interlocutory application and submissions in support of orders effecting the summary dismissal of the proceedings on the basis that the plaintiffs have no standing. 13 To the extent that invites a different course to that which Barker J has directed, I have power to set aside that interlocutory order, given the terms of r 41.04 of the Federal Court Rules 2011 (Cth). 14 It is a serious matter for a company to be exposed to a pending application for winding up orders and that position should not be allowed to continue where there is a real question as to whether the plaintiffs lack standing. That is to say, in my view, a real question in the sense that it is evident that the application or the basis of the claim to standing is untenable or groundless or requires the adjudication of a contentious claim which ought be, for that reason, determined in separate proceedings before proceeding with a winding up claim. 15 In considering the application before me today, there is also the issue of the Court having reserved four days for hearing and the costs involved for the parties in dealing with the issues raised when there may be no standing to seek those winding up orders. 16 So for those reasons, I see no reason why I should not entertain the application, despite the earlier order of Barker J, if I am of the view that those orders are appropriate. 17 The issues raised on the application before me today require me to bear in mind that it is a summary judgment application and the matter is not listed today for me to determine the question of standing. 18 Rather, the claim advanced is that there is a basis for the application to be summarily dismissed on the basis of the material as it currently stands in relation to standing. In my view, that places the application today in a slightly different position than one where it had been directed that the question of standing be determined today or the Court was considering at an earlier stage of the proceedings whether it was appropriate to determine standing separately. 19 I must bear in mind - and I have - the decision of the Court of Appeal in Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; (2016) 316 FLR 318. In that case, the judge at first instance had allowed a matter on a winding up petition to proceed, notwithstanding that in the circumstances of that case, it appeared that the party seeking the winding up order advanced propositions that were inconsistent with the basis of the claim for standing. Barrett AJA in the Court of Appeal described that position as being one where, on the face of his own pleading, the applicant for the winding up order caused his status as a creditor (being the basis upon which the winding up order was sought) to be questioned. It was in that context that the Court in that case reached the conclusion at [103]: A case in which an issue of disputed standing surfaces at the final hearing is, however, to be distinguished from one such as the present in which a question about the course the litigation should take is raised for decision by the court and involves potentially difficult questions of standing depending for their resolution on matters of evidence and, potentially, issues of credibility (on the material currently available, it seems that four persons were present at the meeting in Milan on 12 February 2012) [being a reference to the extent of the possible evidentiary issues]. Even allowing for the principle of just, quick and cheap resolution of the real issues in proceedings that … must be applied in every matter of procedure and case management, the decision in this case … to proceed towards a final hearing … despite obviously disputed and equivocal standing is one that cannot stand. 20 It seems to me that the Court in that case was not stating a general proposition that in all cases where there was an issue about standing, it is not appropriate to allow the application for winding up to proceed to a hearing. Rather, the Court was describing the view that it took in the particular circumstances of that case, where there was what was described as 'obviously disputed and equivocal standing'. If it is clear that a party lacks standing on an application for a winding up application or it is appropriate for the standing issue to be determined separately, having regard to the concerns for the company that arise where a pending application for winding up is presented, then those are matters which mean that the question of standing should not be left for determination at some later time. 21 However, in my view, there are different circumstances that pertain in the context of this case. On my view, on the evidence before me the following claims have been demonstrated to be reasonably arguable: (1) shares in Bux.com were owned by Shampagne Ltd; (2) Shampagne held the shares in Bux.com as bare trustee for parties including the plaintiffs; (3) shares in Bux.com were transferred to Bux by Shampagne; (4) the share register of Bux shows the plaintiffs as holders of shares in Bux; (5) holding statements have been issued to the plaintiff showing that they hold shares in Bux; (6) the plaintiffs did not agree to the issue to them of shares in Bux; (7) the issue of the shares to Bux was arranged by Shampagne as part of a rollover transaction whereby all the shares in Bux.com were transferred to Bux in return for shares in Bux; and (8) Shampagne as bare trustee had no authority from the plaintiffs to participate in the rollover by transferring to Bux the shares it held in Bux.com on behalf of the plaintiffs. 22 That means that the circumstances in which the plaintiffs come to be the holders of shares in Bux are unusual. They are not circumstances of a kind where the Court has considered their consequences for concluding whether a party is a contributory. 23 In my view, they are factual matters which may be relevant to deciding that question. I know that in the way in which the case has been put this morning before me by Mr Young QC for Bux, the argument depends only on the question of construction, and in particular, the authorities as to the historical context that preceded the adoption of the current legislation or current terms in which the legislation is expressed. And there is much to commend the argument that was advanced today. 24 However, the proposition that is put against that is that the language as expressed in the definition of contributories is one which requires the words 'a holder of fully paid shares in the company' to be given what is described as their natural meaning. It seems to me that the particular circumstances in which a party came to be a holder of fully paid shares may bear upon the question as to whether they fall within the definition. And in the view which I take, the arguments as presented to me demonstrate that the position adopted by the plaintiffs in relation to contributory is one that is arguable and the resolution of which of them is correct may depend upon evidence of the matters which I have already recited. 25 In those circumstances, it seems to me that the application for summary judgment is one which should be dismissed. It should be dismissed because the application before me is arguable. It does not turn solely upon the question of construction of the provision or may not at the end of the day and, in the circumstances where the matter has already been listed for hearing in about eight weeks time, it is not appropriate to set aside a separate hearing in order for questions of standing to be addressed. 26 In forming those reasons I express no view as to the position in relation to the claim in the alternative based upon the plaintiffs being a creditor. That claim has been made very late in the day, it is not included in the concise statement as it is presently expressed and were the application before me today for summary judgment to be dealt with only on the issue of whether the standing for the plaintiffs rested upon the claim articulated as creditor, then there would be a much more difficult question as to whether a claim of that kind has sufficient strength or, indeed, given what was said in Treadtel, is of a kind to be appropriately entertained as a separate basis for standing to be dealt with at the same time as the winding up hearing. 27 But I do not express any concluded view about that alternative claim and it seems to me that if the plaintiffs wish to pursue it, then they need to draw an appropriate amendment within the timetable that has been expressed and it needs to be considered as to whether it would be appropriate to be advanced as a separate basis for standing. So, in the view that I have reached, I do not determine the question of standing. It seems to me that there is an arguable basis and that in the particular circumstances of this case, it is appropriate for that question to be determined at the same time as the winding up application. 28 It would not be possible for the Court to set aside, in the time that is available, a separate hearing to deal with that issue and in the interests of efficiency, given where we are - these proceedings having commenced in December last year - it is appropriate for both matters to be dealt with at the one hearing. So for those reasons, I dismiss the summary judgment application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.