Jalpalm Pty Ltd v Hamilton Island Enterprises Pty Ltd [1995] FCA 381

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG198 of 1994 BETWEEN: JALPALM PTY. LTD. (ACN 010 560 915) Appellant AND: HAMILTON ISLAND ENTERPRISES PTY. LTD. (ACN 009 946 909) First Respondent AND: JOHN PALMER Second Respondent JUDGE MAKING ORDER:Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 9 June, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for leave to appeal from the order of Justice Kiefel of 29 March, 1995 requiring that the applicant provide security for costs and staying the application pending the provision of such security be dismissed. 2. The applicant pay the respondent's costs of and incidental to the notice of motion to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG198 of 1994 BETWEEN: JALPALM PTY. LTD. (ACN 010 560 915) Appellant AND: HAMILTON ISLAND ENTERPRISES PTY. LTD. (ACN 009 946 909) First Respondent AND: JOHN PALMER Second Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 9 June, 1995 REASONS FOR JUDGMENT This is an application for leave to appeal to the Full Court from an order of Justice Kiefel on 29 March, 1995 wherein her Honour ordered the applicant to provide security for costs in an amount of $25,000.00 and stayed the proceedings until security was provided. To obtain leave the applicant must demonstrate that the judgment under consideration is attended with sufficient doubt to warrant it being reconsidered by a Full Court and that substantial injustice would result if leave were refused supposing the decision wrong: Decor Corporation Pty. Ltd. v. Dart Industries Inc. (1991) 33 FCR 397; Jarrett v. Seymour (1993) 46 FCR 557 at 559-560. In her reasons for judgment her Honour found that the applicant was insolvent and that receivers and managers had been appointed by the Commonwealth Bank of Australia. She also found that the beneficiaries of the Sugarloaf Estate Family Trust, being Mrs. Evans and her son, had offered undertakings to the court to make their assets available to meet any order for costs. However, her Honour found that Mrs. Evans and her son had no substantial assets of any great worth. Her Honour also found that Mrs. Evans had forwarded a circular to creditors advising them of the proceedings and stating that if the applicant wholly succeeded, creditors would be paid in full. Likewise, partial success would lead to a proportionate discharge of the debts. The circular requested a contribution of funds from creditors to a "fighting fund". The notice was distributed in early March and her Honour found that by the time of the hearing on 22 March, 1995 Mrs. Evans had not received any funds in response to the circular. Her Honour also stated it was not clear whether the bank has been asked to provide funds. Earlier in her reasons her Honour found that the Commonwealth Bank had agreed to a partial release of its security to exclude the applicant's cause of action, if any, in these proceedings from the operation of the security. The receivers and managers, her Honour found, expressed no interest in the cause of action. Against this factual background, her Honour, after referring to the judgment of the Full Court of the Supreme Court of Queensland in Harpur v. Ariadne Australia Limited [1984] 2 Qd.R. 523 at 532, 533 and a Full Court of this Court in Bell Wholesale Co. Ltd. v. Gates Export Corporation (1984) 2 FCR 1 at 4, concluded :- "The threshold question then is, for whose benefit, in reality, is this litigation being conducted? Whilst I do not deny Mrs Evans has a genuine interest in the litigation and no doubt has a strong sense of personal grievance, the only financial interest to be benefited is that of the creditors and it is not suggested that they, and in particular the bank, are without means. I am therefore unable to conclude that an order for security would necessarily stifle the litigation. That is a matter within the creditors' power."

The applicant filed a draft notice of appeal which contained nine grounds of appeal. The substantive grounds of complaint are contained in the first six grounds. They may be summarised as :- (a) Her Honour misunderstood and misapplied the observations of the Full Court in Bell Wholesale Co. Ltd. v. Gates Export Corporation with the consequence that she sought to identify for whose purpose the litigation was being undertaken as the starting point in the exercise of her discretion; (b) Her Honour incorrectly identified the creditors of the applicant as the relevant parties for whose benefit the litigation was being conducted; (c) Having wrongly identified the creditors of the applicant as being the group for whom the litigation was being conducted, her Honour wrongly applied an onus on the applicant to demonstrate that the creditors could not or would not provide security for costs for the applicant; (d) If her Honour had excluded the creditors from her consideration as she ought, a proper exercise of the discretion would have resulted in no order being made because Mrs. Evans and her son had offered to place themselves and such assets as they had at risk for an order for costs: reliance was had on Harpur v. Ariadne Australia Ltd. in support of this contention. The passage in the judgment of Bell Wholesale Co. Pty. Ltd. v. Gates Export Corporation relied upon by her Honour is (2 FCR 1 at 4) :- "In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the appellant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means. It is not for the party seeking security to raise the matter; it is an essential part of the case of a company seeking to resist an order for security on the ground that the granting of security will frustrate the litigation to raise the issue of the impecuniosity of those whom the litigation will benefit and to prove the necessary facts."

The applicant submitted by its counsel that the "creditors" referred to in the Full Court's reasons are those creditors "who are actually interested in the litigation rather than those creditors who are disinterested in the sense that they are apathetic to the outcome of the litigation or creditors who are uninterested in the sense that they simply have no interest and have expressed no interest in the outcome of the litigation." It was submitted that the nature of the creditor's interest to which the Full Court in Bell Wholesale Co. Pty. Ltd. v. Gates Export Corporation was referred was an interest the same as, or analogous to, that dealt with by a differently constituted Full Court in Sent v. Jet Corporation of Australia Pty. Ltd. (1984) 2 FCR 201. In Sent v. Jet Corporation of Australia the secured creditor (Citicorp) of the applicant Jet Corporation of Australia, had appointed a receiver and manager. The court found that the legal proceedings were under the control of the receiver and manager, were financed by Citicorp and pursued for the benefit primarily of Citicorp and, subject to that interest, for the unsecured creditors of Jet Corporation of Australia. The decision as to whether or not the action would proceed was that of Citicorp. At first instance it was held that it had not been shown that Jet Corporation of Australia was not suing for its own benefit but for the benefit of Citicorp within the meaning of Order 28 rule 3(1)(b) of the Federal Court Rules. On appeal Smithers J., with whom Sweeney J. agreed, said (at 214-215) :- "From the transcript of the proceeding before the learned judge at first instance it appears that the case for the appellants concentrated rather on the notion that Jet Corporation was suing for the benefit of Citicorp within the meaning of O. 28, r. 3(1)(b). In this respect it was argued by Mr Graham before the learned judge that the action was brought by Jet Corporation in its own name and in its own right even though the right to the management of its affairs and the ability to cause it to engage in litigation resides in the receiver and manager. He pointed out that, so far as appears, should the action proceed the damages recoverable would or might well exceed the sum due to Citicorp in respect of its security. On this basis, in my view, it could well be held, as it was by the learned judge, that the action was not brought by Jet Corporation `for the benefit of' Citicorp within the meaning of the term: see Co-operative Farmers' and Graziers' Direct Meat Supply Ltd v. Smart [1977] V.R. 386; Riot Nominees Pty Ltd v. Suzuki (Australia) Pty Ltd (1981) 52 F.L.R. 265. But to approach the matter through O. 28, r. 3(1)(b) alone is to obscure the reality of the situation, namely that Citicorp is using the name of Jet Corporation, as it is entitled to do and itself controlling the litigation for the purpose, primarily, of recovering its own debt. It is this reality which becomes important when the matter is approached with reference to s. 533 of the Companies Code (Vic.) 1981. And in the decision of the matter by reference to s. 533 in the judgment under appeal it does not appear that this factor was accorded weight. It would seem that the considerations of justice involved therein were not the subject of explicit submission. Indeed it only emerged in the hearing of this appeal at a late stage of Mr Archibald's reply. The situation is that unless security for costs is provided Citicorp has the privilege of suing on its initiative and responsibility, for its benefit, on terms that if it loses it has no responsibility for costs. From the point of view of the justice of the situation this is far removed from a case where a plaintiff or applicant is the party instituting and conducting the litigation. The receiver and manager was appointed on 28 October 1982. The action was commenced on 27 June 1983. The commencement and control of the proceedings brought in the name of Jet Corporation may be regarded therefore as having resided in the receiver and manager. There is no suggestion from Jet Corporation that an order for security for costs will cause the action to be discontinued. The inference to be drawn from this circumstance and the evidence is that there are funds available for the maintenance of these proceedings whether or not an order for security for costs is made against Jet Corporation. Once it appears, not only that there is a secured creditor in respect of whose claims against an insolvent company the proceedings are of special interest, but that the proceedings have been initiated by, and are controlled by the receiver and manager appointed by that secured creditor whose primary purpose is the recovery of his own debt, and there is a reasonable inference that that secured creditor is supporting the litigation financially, the injustice of that secured creditor pursuing his own interest in an action against the appellant parties with no risk to itself [sic] should the appellant parties succeed in their defence assumes a special significance on the question of the justice of granting or refusing an order for security for costs. It is a weighty consideration that the decision whether to sue or not to sue is that of Citicorp acting through the receiver and manager."

The level of involvement of the receiver and manager in Sent v. Jet Corporation of Australia may of itself have been sufficient to expose the receivers and managers or Citicorp to an order for costs, even though not a party to the proceedings: Knight v. F.P. Special Assets Ltd. (1992) 174 CLR 178. But it cannot be that the interest of a creditor must be such as would expose the creditor as a non-party to an award of costs before the position of the creditor can be considered on an application for security for costs. The Full Court did not lay down any principle that there must be such an "interest" in terms or by implication. The decision in Bell Wholesale Co. Ltd. v. Gates Export Corporation was referred to in the majority judgment in Sent. The Full Court in Bell Wholesale v. Gates makes clear that the discretion is unfettered. The court said (2 FCR at 4), immediately following that part of their reasons cited by Justice Kiefel :- "We pause to make it clear that the matters we have considered are by no means the only relevant ones. We have concentrated our attention on them because they were to the forefront of the appellant's argument. But the court's discretion is unfettered; each case must depend on its own circumstances; see generally Paterson, Ednie and Ford, Australian Company Law (3rd ed.), par. 533-1 et seq."

In Gentry Bros. Pty. Ltd. v. Wilson Brown & Associates Pty. Ltd. (1992) 10 ACLC 1394 at 1396, I said :- "There seems to be no question that the applicant will be unable to pay the costs of the respondents if they or any of them successfully defend the action. On the evidence, the applicant cannot from its own funds, or using its own assets, provide security for costs in any significant amount, if at all. Counsel for the applicant did not dispute either proposition. Without the assistance of a third party providing to the applicant funds or assets to satisfy any order for security for costs, the making of such an order would result in the premature termination of the proceedings without a trial on the merits. The Court is not bound to make an order under section 1335 of the Law or section 56 of the Federal Court Act in these circumstances and retains a discretion as to whether or not security for costs will be ordered. The discretion is to be exercised having regard to whether the interests of justice will be best served in any particular case by the making or refusing of an order for security for costs. It is not possible or appropriate to attempt to list all of the matters relevant to the exercise of the discretion. The factors will vary from case to case. The weight to be given to any circumstance depends upon its own intrinsic persuasiveness and its impact on other circumstances which have to be weighed (P.S. Chellaram & Co. v. China Ocean Shipping Co. & Anor (1991) 9 ACLC 1, 603 at 1,605-1,606; (1991) 65 ALJR 642 at 643)."

I adhere to that view. In the context of the exercise of the discretion, some factors will carry substantially greater weight than others. For example, McHugh J. instanced in P.S. Chellaram & Co. (at 643) that the fact a party was a resident out of the jurisdiction and had no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. In practice it was a circumstance which required that the applicant demonstrate other circumstances of sufficient weight to overcome it otherwise an order would ordinarily be made. Likewise, the observations of Connolly J. in Harpur v. Ariadne Australia Limited at 531-533, Byrne J. in Mantaray Pty. Ltd. v. Brookfield Breeding Co. (1990) 8 ACLC 304 at 306, Burchett J. in Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton and Associates (Australia) Pty. Ltd. (1986) 13 FCR 46 at 53, and my own in Gentry Bros. at 1399 as to the weight given in each of those cases to the fact that those who stood behind an impecunious company had come out and placed themselves and their assets at risk of an order for costs, do not mean that the discretion to order or not to order security is in any way fettered by that circumstance. There is considerable authority which would limit the "nominal plaintiff" cases to those where the legal or equitable beneficial interest in the cause of action is vested in a third party not itself a party to the proceedings (see for example Cowell v. Taylor (1886) 31 Ch.D. 34 (CA) at 37-38, 38; Greener v. E. Kahn & Co. Limited [1906] 2 KB 374 (CA) at 377, 378; Riot Nominees Pty. Ltd. v. Suzuki Australia Pty. Ltd. (1981) 52 FLR 265 at 269-271. However, there is also some authority that it is a sufficient interest for the operation of the "nominal plaintiff" rule of court where the plaintiff is running the litigation for the interest and benefit of a non-party where that party stands to benefit financially from a successful outcome to the litigation but takes no active steps to control or finance the litigation: Semler v. Murphy [1968] 1 Ch. 183 (CA). It may also be noted that the fact that the plaintiff was released from the secured debt but would receive no additional monetary benefit did not render the plaintiff other than nominal. As Sent v. Jet Corporation of Australia demonstrates, it is not necessary that the applicant be shown to be "nominal" in the sense of having no legal or equitable beneficial interest in the benefit of the litigation before a non-party will have a sufficient interest for that interest to be a relevant circumstance on an application for security. In the instant case her Honour did not find that the applicant was a nominal applicant. Rather, her Honour asked as a matter of practical reality who stood to benefit in a financial sense if the litigation was successful. She found, as Mrs. Evans recognised in the circular to creditors, that total success would result in the creditors being paid out in full with less than full success leading to a proportionate payment only. In a practical sense the ultimate beneficiaries would be the creditors. The applicant would be relieved of the debts with which it is now burdened, but, this of itself does not mean the position of and benefit to the creditors is an irrelevant consideration or that it is incompetent for the court to make an order for security in these circumstances. This was specifically recognised by the New Zealand Court of Appeal (Richmond P., Richardson and McMullin JJ.) in National Bank of New Zealand Ltd. v. Donald Export Trading Ltd. [1980] 1 NZLR 97 where the court said (at 100-101) :- "It is convenient at this point to say that in our opinion it is within the competence of a Court to make an order for security even though it is obvious that the ability of the company to comply with it will depend on the willingness of shareholders, creditors and the like to provide the necessary funds. The matter was dealt with by Moffitt J in Pacific Acceptance Corporation Ltd v Forsyth [1967] 2 NSWR 402, 407 in the following passage: `It was also put that the court ought not to make an order, which, because of the impoverishment of the company, might frustrate its rights to litigate its claim. However, the very basis of the exercise of jurisdiction to order security for costs against a company as distinct from an individual is that the company is impoverished. It recognizes that if a company wins it will get the benefit of its verdict and an order for costs against the defendant to the advantage of those who have an interest in the assets of the company but that the defendant sued will, if successful, be at a disadvantage in being unable to recover his costs if the company is financially insecure, and that it is fair that he be placed in an equal position with the company by the company providing or having provided by those concerned in the fruits of the litigation a means of the defendant sued recovering his costs, if he wins. The court in considering whether it ought to make an order as between two parties to an action ought prima facie to leave to the plaintiff to determine how it can best overcome any problems arising from its own impoverishment, internal structure and composition of its assets and liabilities and where it is under official management whether it overcomes these problems with or without leave of the court under Part IX, or with or without the assistance of individuals interested in the assets of the company and the outcome of the litigation.' We would respectfully adopt what was there said. The remarks made by the learned Judge are of particular interest in so far as they refer to the possibility and propriety of a company overcoming the problems arising from its own impoverishment by seeking the assistance of individuals interested in the assets of the company and the outcome of the litigation. In the present case no evidence was placed before the Court as to the willingness or unwillingness of creditors or shareholders to give assistance of this kind. There are substantial unsecured debts owing by Donald Export and it seems likely that if the creditors and the shareholders have any real interest and faith in the outcome of the litigation with the bank no difficulty should be experienced in providing security to the extent suggested by Mr Baragwanath in the course of argument."

Her Honour's observation that whether or not an order would necessarily stifle the litigation was within the power of the creditors falls within the approach acknowledged by the Court of Appeal as competent. It is consistent with the observations of the Full Court in Bell Wholesale Co. Ltd. v. Gates Export Corporation. The applicant submitted that in the present case her Honour erred in any event when she said that it was not suggested that the creditors, including the Commonwealth Bank of Australia, were without means and that she was therefore unable to conclude that an order for security would necessarily stifle the litigation. The failure to respond to the circular by the creditors, it was submitted, was evidence from which her Honour ought to have found that the litigation would necessarily be stifled.

In my opinion her Honour was not obliged to draw the inference contended for by the applicant. The failure of the creditors to contribute to a fighting fund without more is open to a number of possible inferences. The first is that the creditors have investigated the applicant's claim and have no faith in the likelihood of its success. The second is that they have determined not to take any steps to enforce their debts against the applicants by execution or winding up to leave the applicant as a "stalking horse" to litigate at its and the respondent's, but not the creditors', risk as to costs. The third is that they are indifferent to the litigation. The fourth is that the time between the dispatch of the circular and the hearing of the application by her Honour was too short to enable the creditors to form any considered view on the matter. The first and second inferences are adverse to the applicant's position and would be matters which would go into the balance in favour of making an order for security. On one view the third inference is adverse to the applicant's case and the fourth inference is neutral. Nor is it correct to contend that on the material the creditors are merely entities which are owed money having no tangible connection with these proceedings. In the instant case the relevant circumstance is that the creditors have had put to them the fact of the litigation, the fact that it is only from a successful outcome to the litigation that they will be paid in whole or in part and requested to fund the litigation. Her Honour's view that if the applicant can convince the creditors of the merits of the claim and the likelihood of success security would be available from the creditors and that the litigation would not be stifled, was a view reasonably open to her Honour on the material. It was also a relevant circumstance to be taken into consideration in the exercise of a discretionary judgment as to whether or not to order security for costs. The case was not one where no more was known than that the company initiating the litigation was impecunious and had creditors. Once it can be said that it was open to her Honour to have regard to the existence of the applicant's creditors and the relationship or possible relationship of those creditors to the litigation, it cannot be said that her Honour prima facie applied any incorrect legal principle or misapplied any correct principle. The effect of her Honour's order was to determine that the interests of justice required that an order for security for costs in an amount of $25,000.00 be made and that to provide the security the applicant would have to convince its creditors of the strength and worth of its case and of the benefits which would flow to the creditors upon a successful outcome. Such an approach is totally consistent with the decision of the Full Court in Bell Wholesale Pty. Ltd. v. Gates Export Corporation; National Bank of New Zealand v. Donald Export Trading Ltd.; Pacific Acceptance Corporation Ltd. v. Forsyth [1967] 2 NSWR 403 at 403. Where an approach has been made to others including creditors who might reasonably be expected to furnish security and they refuse to do so and the basis of the refusal is unexplained and not shown to be as a result of an inability to provide it, that refusal and the inferences, if any, to be drawn from it, are to be taken into account and be weighed in the exercise of a proper discretion. If the refusal of creditors to assist with security is because they form the view that the claim is unmeritorious or frivolous it does not follow that an impecunious company with impecunious shareholders or beneficiaries under a trust is automatically or necessarily relieved from an order for security for costs. If it appears that the claim is one of dubious merit or is frivolous, there is no rule of law or practice which requires that an impecunious applicant be entitled to litigate such a claim without being required to provide security before it can be prosecuted. This is clear from the observation of Meagher JA., with whom Kirby P. and Cripps JA. agreed, in Hession v. Century 21 South Pacific Ltd. (In Liq.) (1992) 28 NSWLR 120 at 123 :- "... Finally, whilst it is both true and important that poverty must be no bar to litigation, what that means is that the courts must be astute to see that no person pursuing a claim which is not frivolous is precluded from doing so by the erection of obstacles which poverty is unable to surmount; it does not mean that proof of insolvency automatically confers an immunity from statutory provisions which deal with insolvent plaintiffs."

(See also Impex Pty. Ltd. v. Crowner Products Ltd. (1994) 13 ACSR 440 at 446). For the above reasons I am not satisfied that the applicant has made out either limb of the test necessary to obtain leave to appeal to the Full Court. The application must be dismissed with costs. THE COURT ORDERS THAT :- 1. The application for leave to appeal from the order of Justice Kiefel of 29 March, 1995 requiring that the applicant provide security for costs and staying the application pending the provision of such security be dismissed. 2. The applicant pay the respondent's costs of and incidental to the notice of motion to be taxed if not agreed. I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 9 June, 1995 Associate Counsel for the Applicant: Mr. A.M. Daubney Solicitors for the Applicant: Watkins Stokes Templeton Counsel for the Respondent: Mr. R. Derrington Solicitors for the Respondent: Bain Gasteen Date of Hearing: 1 June, 1995 Place of Hearing: Brisbane Date of Judgment: 9 June, 1995