James v Australia and New Zealand Banking Group Ltd

Judgment

1. The first plaintiff, Mr James, seeks leave to amend his Commercial List Summons and Statement in accordance with a proposed Amended Commercial List Summons and Amended Commercial List Statement.
2. The defendants, Australia and New Zealand Banking Group Limited, and receivers appointed by ANZ over companies associated with Mr James (which I will call "the Companies"), seek to have the proceedings dismissed against Mr James (although not against the proposed second and third plaintiffs, Aramax Nominees Pty Ltd and Primax Nominees Ltd).
3. The proposed Amended Commercial List Summons and Amended Commercial List Statement were originally circulated on 23 September 2016. Revised versions of these documents were handed up during argument on 24 February 2017. A further iteration of each was foreshadowed in submissions and was circulated following argument. It is agreed by the parties that I should consider the competing applications on the basis of this most recent iteration.
4. The proposed Amended Commercial List Statement directs attention to Mr James's liability to ANZ in respect of guarantees he gave ANZ concerning the borrowings of the Companies.
5. On 16 May 2014, Mr James consented to judgment being entered against him in favour of ANZ for $13,928,818.66 in respect of his liability to ANZ under the guarantees.
6. On 23 February 2016, Ball J dismissed an application by Mr James that the judgment be stayed: Australia and New Zealand Banking Group Limited v James [2016] NSWSC 108.
7. In the proposed Amended Commercial List Summons, Mr James seeks a declaration that his liability under the guarantees and the judgment "has been discharged".
8. Mr James claims that this result follows from two circumstances.
9. The first is the alleged fact that on 19 August 2013, the receivers appointed by ANZ to the Companies (over whose assets ANZ had security) took possession, without right or authority, of stock, plant and equipment owned by a number of other companies (which I will call "the Other Companies") over whose assets ANZ did not have security.
10. Such taking of possession is alleged to have led to the collapse of the Other Companies and to the destruction of the only (but sufficient) means available to Mr James (through his shareholding and loan accounts in the Other Companies) to meet his obligations under the guarantees and the judgment.
11. This conduct is said to have "impeached the title" of the guarantee and led to this result. I will refer to this as "the Impeachment of Title Claim".
12. The second circumstance is the alleged fact that the receivers acted in breach of their duty under, amongst other provisions, s 420A of the Corporations Act 2001 (Cth) by selling, "after 16 May 2014, or alternatively between 18 August 2013 and 16 May 2014", certain assets of the Companies at undervalue. Mr James claims that those companies thereby suffered a loss in the order of $19.5 million and this "should be brought to account" in determining his liability under the guarantee. I will refer this as "the Sale at Undervalue Claim".

The Impeachment of Title Claim

1. In the proposed Amended Commercial List Statement, under the heading "Discharge of Guarantees" it is alleged that: 1. as at 19 August 2013 Mr James had loan accounts in the Other Companies in the order of $12.8 million; 2. the value of Mr James's shareholding in the Other Companies was approximately $57 million; 3. as at 18 August 2013, these assets were available to Mr James to be realised in order to meet his liability to ANZ under the guarantees, should he have been called upon to do so; 4. by reason of the unauthorised taking into possession by the receivers of the stock, plant and equipment of the Other Companies, they were "unable to continue operating and, in effect, collapsed"; 5. as a consequence, the loans by Mr James to the Other Companies "were made valueless" and the value of his shareholding in the Other Companies was "reduced to nil"; 6. but for the unauthorised conduct of the receivers, Mr James's loans and shareholdings would have been assets available to be realised by him to meet his liability to ANZ under the guarantees; 7. the conduct of the receivers amounted to a "positive act" done by ANZ to the prejudice of Mr James or, alternatively, an act done with "such degree of negligence as to imply connivance and amount to fraud in equity as conduct that is unfair to a surety" such that Mr James should be discharged from liability under the guarantees; or 8. alternatively, conduct whereby ANZ and its receivers "sacrificed or impaired" the guarantees such that Mr James is entitled to be "credited with the deficiency in the value of that security in reduction of his liability under the guarantees".
2. The language used at [13(g)] derives from the decision of the Privy Council in Black v The Ottoman Bank (1862) 15 ER 573; 15 Moo. P.C. 472 at 483 as follows: "From these cases it is clear that, upon the point now in dispute, the rule at law and in equity is the same, - that the mere passive inactivity of the person to whom the guarantee is given, his neglect to call the principal debtor to account in reasonable time, and to enforce payment against him, does not discharge the surety; that there must be some positive act done by him to the prejudice of the surety, or such degree of negligence as, in the language of Vice-Chancellor Wood in Dawson v. Lawes, 'to imply connivance and amount to fraud' [from the cases]." [Citation omitted]
3. In the written submissions made on behalf of Mr James it was stated (referring to Halsbury's Law of Australia (LexisNexis) at [220-345]) that: "The basal proposition is that breach of a contract of guarantee by a creditor may result in the discharge of the surety from that contract of guarantee. If the creditor does any act injurious to the surety, or inconsistent with the surety's rights, or omits to do any act which he has a duty to perform, and the omission proves injurious to the surety, the latter will be discharged, the rights of a surety depending rather on principles of equity rather than upon the actual contract".
4. The written submissions continued: "Where a breach of contract by a creditor enables the surety to rescind the contract, the surety will be discharged from future liability."
5. The authority cited for that proposition was Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549. But that case dealt with a breach by the creditor of particular terms of the guarantee and, in my opinion, provides no guidance as to whether Mr James's liability under the guarantees in this case were "discharged" by reason of the facts alleged.
6. The written submissions added: "The rule enunciated in Black v Ottoman Bank is potentially capable of applying to any action by the creditor which might prejudicially affect the guarantor. If the creditor impairs a security held for the enforcement of the principal obligation, the guarantor will be discharged, at least to the value of the security impaired."
7. Mr Sexton SC, who appeared with Mr Baird for Mr James, did not draw my attention to any case where Black v Ottoman Bank has been applied in Australia (although my own researches reveal that it has been mentioned, albeit not in a manner decisive of the result, in Surf Road Nominees Pty Limited v James [2004] NSWSC 61 at [155] (Einstein J); Australian Postal Corporation v Oliver [2006] VSC 318 at [96] (Hansen J); Modderno v Australian and New Zealand Banking Group Ltd [1999] NSWCA 13 at [26] (Handley JA, with whom Stein JA and Fitzgerald AJA relevantly agreed); and Webster Investments Pty Ltd v Anderson Pty Ltd [2016] VSC 620 at [101]-[102] (Croft J)).
8. J O'Donovan and J Phillips have expressed the view (in Modern Contract of Guarantee, (4th ed 2015, Thomson Reuters at [8.1100]) that, at least in Australia: "…there is no clear authority which supports the existence of a general rule that the guarantor will be discharged if the creditor acts in a prejudicial manner towards the guarantor."
9. Ultimately, Mr Sexton SC stated that this aspect of Mr James's case was put forward on the basis of equitable set-off (in which case it is more appropriately described in the pleading set out at [13(h] above, rather than [13(g)]).
10. In that regard, Mr Sexton drew attention to the observation of Barrett JA in Hawes v Dean [2014] NSWCA 380 that "[t]he 'impeachment of title' test remains applicable in Australia" at [61].
11. As the cases to which his Honour referred make clear, the expression "impeachment of title" is there used in the context of the doctrine of equitable set-off; for example see Forsyth v Gibbs [2008] QCA 103; [2009] 1 Qd R 403 at [10] (Keane JA, with whom McMurdo P and Fraser JA agreed).

The Sale at Undervalue Claim

1. In the proposed Amended Commercial List Statement, under the heading "breach of duty and sale at undervalue claims", it is alleged that: 1. on 19 August 2013, the value of stock owned by the Companies was approximately $12.7 million; 2. "after 16 May 2014, or alternatively between 19 August 2013 and 16 May 2014", the receivers sold that stock for $1.981 million; 3. as at 19 August 2013, the debtors of the Companies were not less than $11 million; 4. "after 16 May 2014, or alternatively between 18 August 2013 and 16 May 2014", the receivers realised the debtors of the Companies for approximately $2.291 million; 5. the receivers thereby caused loss and damage to the Companies and diminished the value of the assets of those Companies by approximately $19.428 million; 6. the receivers acted in breach their duties under, amongst other provisions, s 420A of the Corporations Act; and 7. Mr James "is entitled in equity to have the aforesaid loss and damage suffered by [the Companies] ascertained and brought to account in calculating the liability of [the Companies] to ANZ, which in turn, determines the amount of his liability under the Guarantees".
2. On behalf of Mr James it was submitted that: "In relation to the sale at an undervalue claims… Mr James is permitted to raise allegations of sale at an undervalue and breach of duty as an equitable defence. A surety has the right to raise an alleged wrongful exercise of a mortgagee's power of sale as a defence by way of set-off against the claim by the mortgagee under a guarantee of the mortgage."
3. My attention was directed to the observations of Bryson J (as his Honour then was) in GE Capital Australia v Davis (2002) 180 FLR 250; NSWSC 1146 at [83]: "In my opinion and subject to the terms of the guarantee, the guarantor is entitled to have the correct amount of any credit ascertained and brought into account in calculating the amount of the liability of the principal debtor which in its turn determines the amount of the liability of the guarantor. If the mortgagor is entitled to have a further credit brought into account on taking the mortgage accounts, the guarantor can get the benefit of the credit by relying on an equitable set-off against the creditor's demand. To do so is to rely on an entitlement of the mortgagor to set-off that credit on taking the mortgage accounts. The substance of what the guarantor does by relying on a set-off is establishing the true amount of his own liability by showing that the debtor is entitled to a set-off. … The [guarantors] have in my opinion no right to sue under s 420A themselves, the credit is equitable in its nature, and unless they are allowed to rely on it as a set-off, their claimed right to have regard paid to it will not be recognised in these proceedings. In these circumstances they ought in my opinion to be allowed to raise it by way of set-off; subject however to the terms of the Guarantee and Indemnity." [Emphasis added].
4. As this passage makes clear, if the receivers have sold the assets of the Companies at an undervalue, and if they have done so in circumstances amounting to a breach by ANZ of its obligations (whether under s 420A or otherwise), the right of the Companies, and the right of Mr James, is to have any loss or damage thereby suffered set-off against what would otherwise be their, or his, liability (as debtors or guarantor, as the case may be).
5. The passage also makes clear, as is well established by the authorities, that any such right is subject to the terms of the guarantee. I return to this below.

Res judicata

1. Mr Jackman SC, who appeared with Mr Foreman for ANZ and the receivers, submitted that an "insurmountable impediment" standing in the way of Mr James obtaining the leave he seeks is the judgment of 16 May 2014.
2. Mr Jackman submitted that Mr James's rights under the guarantee have merged with the judgment and the present application is precluded by the doctrine of res judicata and, for that reason alone, leave to amend should be refused.
3. Mr Jackman further submitted that the claim is also precluded by the doctrines of issue estoppel, Anshun estoppel and abuse of process.
4. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; HCA 28 at [20], French CJ and Bell, Gageler and Keane JJ said: "An exercise of judicial power, it has been held, involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense." [Citations omitted]
5. These principles apply to judgments and orders made by consent: see for example Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd (2008) 72 NSWLR 160 at [63] (Barrett J, as his Honour then was); Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [23] (Meagher JA (with whom Leeming and Simpson JJA agreed)), citing (inter alia) Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508.
6. The matter comes down to this.
7. Can a guarantor against whom judgment is entered under the guarantee (whether by consent or otherwise), contend in later proceedings that his or her liability under the guarantee and the judgment has been "discharged" by reason of: 1. events occurring prior to the judgment which would otherwise have given rise to an equitable set-off between him or her and the creditor or to have discharged the guarantor from liability (the Impeachment of Title Claim); or 2. events occurring after judgment which would otherwise have entitled the principal debtor, and thus the guarantor, to an equitable set-off or to otherwise be brought to account (the Sale at Undervalue Claim).
8. In my opinion, the answer to both of these questions is "no" and that Mr James should be refused the leave he seeks on that basis alone.
9. Mr James's "rights and obligations" (see Tomlinson at [32] above) under the guarantees have merged in the judgment. Mr James cannot now be "discharged" from any obligation under the guarantees because he no longer has any obligation under the guarantees from which he could be discharged: those obligations have merged in the judgment.
10. Inherent in each of the Impeachment of Title Claim and the Sale at Undervalue Claim is the proposition that Mr James is entitled in equity to set-off against his liability under the guarantees the damage he claims he has suffered by reason of the alleged events.
11. Such right as Mr James had to make such a claim is also now merged in the judgment to which he consented.
12. I see no basis upon which any of these matters could have the effect of discharging the judgment itself.
13. In my opinion, these matters are a complete answer to the claims that Mr James seeks to propound.
14. It is in those circumstances unnecessary to consider whether Mr Jackman's subsidiary arguments (issue estoppel, Anshun estoppel or abuse of process) take the matter any further.

The clauses in the guarantees

1. Each of the guarantees contained clauses purporting to limit the bases upon which Mr James could resist ANZ's claim under the guarantee.
2. In view of the conclusions to which I have come concerning res judicata, it is not necessary for me to consider whether these clauses provide another reason why Mr James cannot make out the case propounded in the Commercial List Statement.
3. However, in deference to the detailed submissions made about the clauses, I will deal with them, albeit briefly.
4. The clauses are: "2.4 No deduction Payments I make must be in cleared funds and free of any set off or deduction, except for taxes where required by law. I will not deduct amounts I claim are owing to me by ANZ or any other person. … 4 Unconditional nature of obligations My obligations under this Guarantee are unconditional. They are not affected by anything which might have released me from all or part of my obligations, or limited them, if I had not agreed to this clause. For example, I continue to be liable even if any of the following occur; • ANZ does not, or is slow to, exercise any of its rights against the Customer or anyone else. • ANZ gives anyone, or anyone becomes entitled to, a full or partial discharge or release, time to pay or any other concession. • ANZ makes any arrangement, transaction or compromise with anyone including one which varies, takes away or limits its security or rights, or its freedom to exercise them. • There is a change in the nature or constitution of anyone including its members. • This Guarantee or any other document or security is not valid against, or is not signed or binding on, any other person. • Anyone dies, becomes insolvent or incapacitated or goes into some form of Administration. • Anyone has a claim against ANZ. … 9 Other security Any other security for all or part of the Guaranteed Money or Guaranteed Arrangements is independent of this Guarantee. Nothing affecting any security will affect my obligations under this Guarantee. ANZ can enforce this Guarantee and any security in any order it wishes; or can choose not to enforce any security at all. I cannot at any time ask ANZ to enforce any security in a way which benefits me or maximises my rights. Until the Guaranteed Money is paid in full, I cannot claim the benefit of, and have no right to, the security. This does not limit clause 4. 16 Set off If I have an account with ANZ, ANZ may (but does not have to) use any credit balance in that account to pay any Guaranteed Money which is due and payable. To the maximum extent allowed by law I give up any rights to set off any amounts ANZ owes me against amounts I owe under this Guarantee." [Emphasis added]
5. There was no dispute before me that: "…an adequately drafted clause in a guarantee that provides that the guarantee will not be discharged by identified particular matters that would otherwise discharge the guarantor, can be effective to prevent a discharge that would otherwise arise under the general law…similarly, a clause providing in general terms that the guarantor's liability shall survive anything that would otherwise discharge it has been held to be effective, if drafted with sufficient clarity". [Citations omitted] See Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 at [91] (Campbell JA, with whom Giles and Hodgson JJA agreed).
6. Mr Sexton accepted that (subject to what appears below relating to relief proposed to be sought under ss 12CB or 12CA of the Australian Securities and Investments Commission Act 2001 (Cth) ("the ASIC Act") one or more of the clauses would be an answer to the Impeachment of Title Claim.
7. Mr Sexton submitted, however, that the clauses would not provide an answer to the Sale at Undervalue Claim.
8. I do not agree.
9. If there has been a sale at undervalue, the Companies may (subject to the terms of the loan documents) be entitled to set-off the loss thereby suffered against the debt owing. Mr James, as guarantor (but for the judgment, and subject to the terms of the guarantee), may have been entitled to rely on that entitlement.
10. But here, Mr James has agreed not to rely on any such entitlement.
11. As Mr Jackman's and Mr Foreman's written submissions pointed out, cases such as O'Brien v Bank of Western Australia Ltd (2013) 16 BPR 31, 705; NSWCA 71 and Palaniappan v Westpac Banking Corporation [2016] WASCA 72 establish that summary dismissal may not be appropriate where, for example, the guarantors allege that the debt was not payable by the borrower. As Corboy J (with whom Martin CJ agreed) said in Palaniappan at [133]: "So, for example, a guarantor will not be required to 'pay now and litigate later' where it alleges that the creditor was estopped from asserting that the debt was payable or from making a demand for payment. Nor will a suspension clause apply where the creditor has allegedly engaged in misleading or deceptive conduct by making a demand for payment after representing that a loan facility would be extended and rolled over on the expiry date: O'Brien v Bank of Western Australia Ltd...".
12. Similarly, in O'Brien v Bank of Western Australia Ltd at [114], Ward JA (with whom Beazley P and Macfarlan JA agreed) concluded that: "I am of the view that it cannot be said that there was no real or arguable defence to the Bank's claim under the Guarantees (or, in Bakota's case, on the indemnity). The suspension/preservation clauses do not preclude raising claims for the grant of relief for misleading and deceptive or unconscionable conduct that may operate retrospectively such that the foundation on which those clauses would operate would not have arisen or would have disappeared by the time demand was made under the Guarantees." [Citation omitted]
13. However, as Mr Jackman and Mr Foreman point out, Mr James does not assert that a liability never arose under the guarantees.
14. Rather, Mr James's allegations relate to alleged conduct occurring after liability under the guarantees had arisen. I accept the submission that this is precisely the circumstance in which clauses of this kind do operate.

Unconscionable conduct

1. To meet the clauses in the guarantee so far as they constitute a bar to the Impeachment of Title Claim, Mr James alleges in the proposed Amended Commercial List Statement that: 1. ANZ engaged in unconscionable conduct within the meaning of ss 12CB or 12CA of the ASIC Act by, relevantly, relying (since these proceedings were commenced) on the clauses when it knows or ought to know that: 1. the only, or only substantial, assets available to Mr James to meet his liability under the guarantees were his shareholding and loan accounts in the Other Companies; 2. ANZ's conduct as set out at [9] and [10] above has deprived Mr James of the "wherewithal" to satisfy that liability; and 3. Mr James will likely be made insolvent if the effect of the clauses is that he cannot propound the Impeachment of Title Claim or the Sale at Undervalue Claim without first paying the amount due under the guarantees. 1. Accordingly there should be an order under s 12GM of the ASIC Act that the guarantees be varied by deleting the clauses, or alternatively refusing to enforce the clauses.
2. Mr Sexton made clear that Mr James did not contend that ANZ had engaged in unconscionable conduct by proffering for Mr James's signature the guarantees containing the clauses, nor that there was any other aspect of the circumstances in which the guarantees were executed that was unconscionable. The alleged unconscionability, so far as concerns the clauses, is said to arise from ANZ's reliance on them to repel Mr James's proposed claims.
3. In effect, Mr James's contention amounts to the proposition that it would be unconscionable for ANZ now to hold Mr James to the bargain to which he agreed when he entered the guarantees in circumstances where there is no suggestion that ANZ's conduct in proposing that bargain can be impugned on any basis.
4. My attention was not drawn to any authority in which ss 12CB or 12CA (or their analogues) have provided the foundation for an order that a contract be varied in such circumstances. Indeed, in Palaniappan, in circumstances very similar to those before me, the Western Australia Court of Appeal found such a proposition to be unarguable: at [86] - [90] (Buss JA) and [143] - [150] (Corboy J with whom Martin CJ agreed).
5. I have reached the same conclusion here. Mr James's prospects of making out this case are so remote that, were it necessary for me to decide the issue, I would have denied leave to amend to raise this point.

Conclusion

1. Mr James's application to amend his Commercial List Summons and Commercial List Statement must be dismissed with costs.
2. I will now hear submissions as to why the proceedings should not now be dismissed so far as concerns Mr James.
3. I will also hear submissions as to what should happen with the proceedings so far as concerns Aramax Nominees and Primax Nominees.

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