K. & A. LAIRD (N.S.W.) Pty Ltd (In Liquidation) v AIDZAN Pty Ltd

Supreme Court of NSW|2023-06-21|Before: Black J

Solicitors: Watson Mangioni (Plaintiff/Cross-Defendants) Ashurst (Defendants/Cross-Claimants) File Number(s): 2020/351691 Publication restriction: N/A

Judgment

I delivered my primary judgment in these proceedings on 7 June 2023 ([2023] NSWSC 603) ("Primary Judgment") and directed the parties to bring in agreed minutes of order to give effect to the Primary Judgment. The parties reached agreement as to some aspects of the orders to give effect to the Primary Judgment and were not able to reach agreement as to other matters, which were the subject of submissions. I will deal with the successive orders in sequence, as the parties did in submissions.

Proposed order 1

The first proposed order is a declaration that the First Defendant, Aidzan Pty Ltd (in liq) ("Aidzan") as trustee for the Peter Laird Trust (and later the Peter Alan Laird Property Trust) ("PAL Property Trust") holds the proceeds of sale of the Sunnyholt Property, as defined in the Primary Judgment, less certain costs of sale, on trust for the Plaintiff, K. & A. Laird (N.S.W.) Pty Ltd ("KAL"). The parties disagree as to the quantification of the costs of sale. KAL deducts costs of sale in the sum of $1,030,733.03 and the Defendants seek to deduct "direct and indirect costs of sale" in the sum of $1,302,132.91. The difference between those figures (in the order of $271,000) relate to costs and expenses claimed by the liquidators appointed to Aidzan and receivers appointed to the PAL Property Trust.
In submissions, KAL acknowledges that a deduction should be made to accommodate reasonable expenses required to sell the Sunnyholt Property in the ordinary course, but not additional expenses that Aidzan or the Second Defendant, Nazdia Pty Ltd in its capacity as trustee of the Aidzan Superannuation Fund ("Nazdia") are said to have incurred due to the sale of the property by external administrators appointed to Aidzan, Nazdia or the PAL Property Trust. KAL submits that, but for the breaches of fiduciary duty found by the Court which underpinned the imposition of a constructive trust, there is no reason to think that KAL would have been exposed to the costs incurred in respect of the external administrators appointed to Aidzan, Nazdia or the PAL Property Trust.
The Defendants rely on affidavit evidence led by Mr Topp, the liquidator appointed to Aidzan and the receiver appointed to the PAL Property Trust, in his affidavits dated 13 October 2022 and 13 February 2023. They point to expenses incurred by Messrs Topp and Gleeson as liquidator of Aidzan and receivers appointed to the assets of the PAL Property Trust, comprising legal fees and disbursements of $60,432.47; receiver's remuneration of $57,899.05; receiver's expenses of $39,859.06; and what they describe as the "Aidzan indemnity costs" of $134,209.30. It is apparent from the Defendants' submissions that the legal costs and disbursements they seek to deduct extend beyond the amounts incurred in respect of the sale of Sunnyholt Property (which they calculate as $42,400) and include other costs incurred in respect of the appointment of Messrs Topp and Gleeson as liquidators of Aidzan and receivers of the PAL Property Trust.
In paragraph 11 of his affidavit dated 13 February 2023, Mr Topp sets out his calculation of the proceeds from the sale of Sunnyholt Road, which includes stated amounts by way of legal fees and legal disbursements, receivers' remuneration, receivers' expenses and the so-called "Aidzan indemnity costs". Mr Topp's affidavit also expands on the basis of the receiver's remuneration, and refers to documents which were exhibited to his affidavit which relate to the costs of the liquidation and receivership generally. Mr Topp led no evidence of any appropriate review by him to satisfy himself as to the extent to which the costs and expenses incurred by Ashurst were reasonable, or were properly referable to the sale of the property. He provides no explanation of the basis on which the so-called "Aidzan indemnity costs" should be allowed as a cost of the sale of the Sunnyholt Property. In his affidavit dated 13 October 2022, Mr Topp set out the steps taken by the liquidators and receivers in respect of the sale of the Sunnyholt Property (paragraphs 52-66). He there identified certain costs which were incurred, which he described as "Sales Costs", but his evidence does not establish that they should properly be treated as having that character, where they include items such as receiver's remuneration and receiver's expenses, apparently generally. He referred to the "Aidzan indemnity costs", described as the costs and expenses of the Aidzan liquidators in acting as liquidators of Aidzan, but did not explain why they should be attributable to costs of the sale of the Sunnyholt Property.
The Defendants also rely on the affidavit dated 2 February 2023 of Mr Barr, a solicitor employed by Ashurst, which does no more than tender invoices issued by that firm in respect of legal costs. With respect, the tender of invoices does not, in itself, prove that costs charged by a solicitor's firm are reasonable. Their calculation of direct and indirect costs assumes, but does not establish, that fees charged by Ashurst in respect of the Aidzan liquidation and the receivership of the PAL Property Trust generally were reasonable costs. The Defendants submit that a calculation by Mr Hayes, the liquidator of KAL, of legal costs of $21,000 as allowable on the sale of the property should be rejected. While I accept that calculation has a somewhat hypothetical character, it is a concession made by KAL, so far as it allows an amount of legal costs in favour of the Defendants which they have not established by their evidence.
The Defendants have not established the basis on which the costs of the liquidation or receivership generally should be charged against KAL's interest in the Sunnyholt Property, and they make no attempt to address the matters noted by Hammerschlag CJ in Eq, for example, in Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (2022) 163 ACSR 403; [2022] NSWSC 573. They have not established that the remuneration claimed by the liquidators and receivers is reasonable or proportionate, by reference to the legal standards applicable under Division 60 of the Insolvency Practice Schedule (Corporations) or the case law including Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; [2015] FCAFC 137 and Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 118 ACSR 333; [2017] NSWCA 38, so as to support the deduction claimed. I do not accept their submission that the receivers' remuneration, expenses and "Aidzan indemnity costs" generally were "necessarily incurred" to facilitate the sale of the Sunnyholt Property. While I accept that some part of them may have satisfied that requirement, they have not sought to identify or establish that part of them that would be allowable on that basis. It seems to me that the Defendants have therefore not established that the costs claimed by Messrs Topp and Gleeson have sufficient connection with the sale of the Sunnyholt Property to be treated as a deduction from the amount held on constructive trust for KAL. For the reasons noted above in dealing with their evidence, they have also not, as a matter of evidence, established that the remuneration claimed and disbursements incurred by the liquidators are reasonable and proportionate or have a sufficiently proximate relationship to the sale of the property, by reference to the unidentified standard they apply to seek to establish that relationship.
There is also a difference between the parties as to whether a declaration in respect of a constructive trust should extend to Nazdia as the successor trustee in respect of the Sunnyholt Property. The Defendants refer to paragraph 179 of the Primary Judgment and object to that order so far as it concerns Nazdia. That paragraph deals with a number of matters and it is not apparent which of those matters support that objection. The extension of that order to Nazdia is supported by my findings that Nazdia was a knowing recipient of the Sunnyholt Property, and was and is the alter ego of Mr Peter Laird ("PL") and that Nazdia acquired the Sunnyholt Property by reason of and knowing (through PL) the facts of that breach. I am satisfied that that declaration should extend to Nazdia.
For these reasons, I will make an order in the form of order 1 proposed by KAL, rather than the form of order 1 proposed by the Defendants.

Proposed orders 2 and 3

Proposed order 2 provides for Aidzan to hold the proceeds of the sale of the Sunnyholt Property, held in a "Liquidation Account" under orders made by Williams J on 28 April 2022 ("Liquidation Account Monies"), for KAL and order 3 provides for payment of that amount to KAL. The parties have agreed as to the form of those orders and I will make those orders in the agreed form.

Proposed orders 4 and 5

Proposed order 4 provides for PL, Aidzan and Nazdia to pay to KAL an amount equal to the net Sunnyholt Property proceeds of sale less the Liquidation Account Monies. KAL points to my findings that Aidzan and Nazdia were knowing recipients of the Sunnyholt Property, or were and are PL's alter egos and that Nazdia acquired the Sunnyholt Property by reason of and knowing (through PL) the facts of that breach. I would ordinarily not make an order in that form, so far as it is expressed as a mandatory order for payment, rather than for judgment against PL, Aidzan and Nazdia in a specified amount. However, it appears the parties have agreed that form of order, other than for the questions as to the deduction for the liquidators' and receivers' expenses that I have addressed above and whether it should extend to Nazdia, which are consequential on the matters I have determined in respect of proposed order 1. I will therefore make this order in the form proposed by KAL, consequential on that determination.
KAL's proposed order 5 seeks an order for interest against each of PL, Aidzan and Nazdia from 23 October 2019 to the date of the orders, quantified as $1,219,597.29. KAL indicates that the only remaining difference between the parties as to that order is the calculation of interest, depending upon the dispute as to the amount to be deducted as to the costs of realisation of the Sunnyholt Property. I have addressed that issue above and I adopt KAL's calculation of interest, where KAL has succeeded in respect of that question which I addressed in dealing with proposed order 1. I have adopted KAL's quantification of that figure, which I recognise calculated interest to an earlier date than these orders, where the difference is marginal.

Proposed orders 6 and 7

KAL's proposed orders 6 and 7 address the "Sunnyholt Property Surplus Rent" as defined in the Primary Judgment. KAL submits that this order should be made against Nazdia on the basis that it held the Sunnyholt Property subject to a constructive trust and the surplus rent claim was associated with that trust. I accept that proposition, given the findings that I noted above, and where the order is properly made against Nazdia as the present trustee of the PAL Property Trust, leaving it to exercise any available rights of indemnity against the assets of the PAL Property Trust.
KAL also points to a dispute about the quantum of the surplus rent claim. It appears that it is common ground between the parties that the amount of that claim is $1.2 million, but the Defendants seek to reduce that amount to $840,000 by reference to a suggested tax benefit to KAL on the payment of the rent. In particular, they submit that, where KAL obtains a benefit as a result of the payment of rent, KAL will obtain double recovery by repayment of the entire value of the rent, but that submission turns upon an unproved assumption as to the manner in which KAL's recoveries in these proceedings will be taxed. The Defendants do not identify any principled basis on which that loss should be calculated on a post-tax basis, where there is no evidence as to KAL's tax circumstances, and it is not apparent to me why that approach should be adopted here. In any case, even if a different approach was adopted, the Defendants have not established, by evidence, the amount of the deduction for which they contend. The Defendants also advance a submission as to the manner in which a $330,000 payment made by PL on 29 June 2022 should be treated in calculating the surplus rent claim. There is no basis for that approach in the findings that I reached in the Primary Judgment and no application was made, or was likely to succeed, to reopen the Primary Judgment in respect of that issue.
I will make orders 6 and 7 in the form proposed by KAL. I have again adopted KAL's quantification of that figure, which I recognises calculated interest to an earlier date than these orders, where the difference is marginal.

Proposed orders 8 and 9

KAL's proposed Orders 8 and 9 deal with the Tattersall Property, as defined in the Primary Judgment. The parties have agreed the form of those orders and I will make those orders in that form. I have again adopted KAL's quantification of that figure, which I recognises calculated interest to an earlier date than these orders, where the difference is marginal.

Proposed orders 10 and 11

KAL's proposed orders 10 and 11 deal with the PL Superannuation Payment, as defined in the Primary Judgment. The parties have agreed the form of proposed order 10 and I will make that order in that form.
By proposed order 11, KAL seeks interest on the amount of $900,000 that is the subject of this claim. It appears the Defendants contest a liability to interest, by reference to the fact that KAL held an amount in cash, and PL was a shareholder in KAL's holding company and has been unable to utilise the portion of the amount of cash held by KAL. I do not accept that this provides any arguable basis on which to resist the claim for interests. A shareholder in a company has no proprietary interest in cash held by that company, which can generally only be distributed by dividend or capital distribution or on a winding up in accordance with the company's articles and the Corporations Act 2001 (Cth). Still less does a shareholder in a holding company have a proprietary interest in or an immediate right to receive a proportionate share of the subsidiary's cash on demand. PL also relies on a suggestion that, prior to the commencement of the proceedings, PL acknowledged liability for the PL Superannuation Payment, including liability for accrued interest. It is sufficient to note that that was not the position that he put at the hearing. PL contends alternatively that interest should cease accruing from 24 August 2018, being the date of Mr Hayes' appointment. I can see no apparent basis for that approach. I will make order 11 in the form proposed by KAL. I have again adopted KAL's quantification of that figure, which I recognises calculated interest to an earlier date than these orders, where the difference is marginal.

Proposed order 12

KAL's proposed order 12 deals with the Cross-Claim. The parties agree on the wording of that order and I will make that order in that form.

Proposed orders 13 and 14

By proposed orders 13 and 14, KAL seeks an order that PL, Aidzan and Nazdia pay its costs of and incidental to the proceedings and the Cross-Claim on the ordinary basis from 11 December 2020 to 11 November 2022 and on an indemnity basis thereafter. The Defendants seek an order that costs be determined on an issue by issue basis.
I should first address the applicable case law. In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 ("Bostik") at [308], the Court of Appeal noted that, where there are multiple issues in a proceeding, the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed and, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. The Court there identified the nature of a separable issue, noting that it may relate to any disputed question of fact or law on which a party fails, although they are otherwise successful in the ultimate outcome of the matter. The Court also there emphasised that the question of apportionment was a matter of discretion, and not something that was required as a matter of course.
In Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14], the Court of Appeal also observed that, in respect of an issue that did not increase the hearing time or take up a significant part of an appeal, the fact that the issue was separable or discrete was not, without more, sufficient to warrant departure from the ordinary rule.
I also addressed the relevant case law in Re Cooperbrown Pty Ltd [2019] NSWSC 1521, there in circumstances that a plaintiff had ultimately succeeded in an application, but on less than half of the arguments advanced. I there referred to Bostik and to the wider principle that a successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation, and to the Court of Appeal's observation as to the basis on which costs are awarded in Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd (No. 2) [2018] NSWCA 40 at [6]-[7], and to the Court of Appeal's review of the relevant principles in Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No. 2) [2019] NSWCA 19 at [5], where the Court of Appeal noted that: "...more recent authority favours the award of the costs of proceedings to the party successful overall without any differentiation as to issues, at least 'unless a particular issue or group of issues is clearly dominant or separable'...and the costs arising from such issues have more readily been apportioned where the party successful overall is the plaintiff."
I have here drawn on my summary of the applicable principles in Re SRD Property Pty Ltd (unpublished, 5 June 2023) for this summary of the applicable principles.
The Defendants submit that KAL should not be awarded its costs for several aspects of the proceedings and identify the basis on which they say that costs should not be allowed for those particular aspects of the proceedings and KAL takes issue with that proposition. It seems to me that none of those issues, separately or together, could be said to be clearly dominant or separable so as to displace the usual position that costs will be ordered to a successful party in the proceedings as a whole. It is not necessary to address the parties' submissions as to the specific matters further in order to reach that conclusion.
The Plaintiff seeks an order for indemnity costs, in reliance on a "Calderbank" [Calderbank v Calderbank [1975] 3 All ER 333] letter dated 27 October 2022 from KAL's solicitors to the Defendants' solicitors as amended to correct a typographical error by an email dated 28 October 2022. KAL reads the affidavit dated 22 June 2023 of its solicitor, Mr Andersen, which refers to a Calderbank offer sent by KAL's solicitors to the Defendants' solicitors on 27 October 2022, as corrected on 28 October 2022, which was open for 15 days after the date of the offer, and was not accepted. Mr Andersen also refers to an exchange of correspondence concerning a funding agreement entered into by the Defendants, on which the Defendants rely to resist KAL's claim for indemnity costs.
The applicable principles were summarised by Ward J (as the President then was) in Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 at [9]-[15] and I summarised them in Re Alsafe Security Products Pty Ltd atf Alsafe Trust (in liq) [2016] NSWSC 575 at [8], as follows: "[T]he fact that a party ultimately achieves a worse result than he or she would have achieved if he or she had accepted a Calderbank offer does not itself establish that the other party should be awarded indemnity costs, unless it can be said that it was unreasonable for the first party not to accept that offer, so as to warrant a departure from the general rule as to costs: Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [above] at [9]-[15]; Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [14], [16]. In Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229 at [26], Stevenson J observed that: 'If a Calderbank offer is made, but not accepted, the court's discretion to make a special order is enlivened. The court's discretion is an open one, but is commonly enlivened if (a) the party that made the offer achieves a better result than the amount offered, (b) the offer was a genuine offer of compromise, and (c) it was unreasonable of the offeree not to accept: for example Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [7]-[8].'"
I recognise that a Calderbank offer will not justify an indemnity costs order unless its rejection was unreasonable: Ofria v Cameron (No 2) [2008] NSWCA 242 ("Ofria v Cameron (No 2)") at [20]."
KAL submits that the offer which was the subject of that letter was a genuine offer of compromise, where KAL offered to accept an amount of $7,560,000 plus costs as agreed or as assessed and offered to agree those costs at $500,000. KAL submits that the total quantum of its claims at that point, without the benefit of hindsight from the Primary Judgment, significantly exceeded that amount. KAL also submits that the amount that it has recovered in respect of the Sunnyholt Property alone, based on the Defendants' calculation, significantly exceeds the amount recoverable on the basis set out above. KAL submits that the Defendants' rejection of the Calderbank offer was unreasonable in those circumstances, referring to Ofria v Cameron (No 2) at [20].
The Defendants appear to rely on their entry into a litigation funding agreement for their defence of the proceedings as an impediment to their acceptance of that offer. That funding agreement is not in evidence, and there is no basis for me to find that it prevented the Defendants accepting that offer. It is therefore not necessary to determine whether the funding arrangements of a particular defendant are relevant, in principle, to whether it acts reasonably or unreasonably in rejecting a plaintiff's offer of settlement. The Defendants also rely, in opposition to the claim for indemnity costs, on the fact that the Calderbank offer was made on the day a cooling off period for a litigation funding agreement entered into by the Defendants expired, and its acceptance would cause the Defendants to incur costs associated with terminating the funding agreement. The latter proposition is not established, because the funding agreement is not in evidence.
The Defendants also submit that, at the date the Plaintiff's Calderbank offer was made, the Defendants had good prospects of defending the claims based on the limitation defence. The complexity of the limitation issues addressed in the Primary Judgment were such that I could not find that it was unreasonable for the Defendants to not accept KAL's offer as at 11 November 2022, although the Defendants ultimately did not sustain several of those limitations defences. In these circumstances, I cannot find that the Defendants refusal of the Calderbank offer was unreasonable so as to permit an order for indemnity costs on and from 12 November 2022: Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8]-[16].

Orders

I therefore make the following orders: THE COURT Sunnyholt Property Trust Claims
DECLARES that the First Defendant, Aidzan Pty Ltd (in liq) (Aidzan) as trustee for the Peter Laird Trust (PL Trust) (and later the Peter Alan Laird Property Trust (PAL Trust)) (Aidzan) and the Second Defendant Nazdia Pty Ltd as trustee for the Aidzan Superannuation Fund (Nazdia) held the proceeds of sale of 146 Sunnyholt Road, Blacktown (Sunnyholt Property) (which sale completed on 23 October 2019) in the sum of $8,023,177.67 (less costs of sale in the sum of $1,030,733.03 (Sunnyholt Costs of Sale)) for the Plaintiff, K. & A. Laird (N.S.W.) Pty. Limited (KAL) pursuant to a constructive trust (Net Sunnyholt Proceeds of Sale). 2 DECLARES that Aidzan holds the monies in account numbers 200017194354 and 200020037421 each held with the Commonwealth Bank of Australia (identified as the 'Liquidation Account' in order 1 of the orders made by Williams J on 28 April 2022) (including all interest accrued and accruing on those monies, and all GST refunds payable in respect of the sale of the Sunnyholt Property) for KAL pursuant to a constructive trust (Liquidation Account Monies). 3 ORDERS that Aidzan pay to KAL the entirety of the Liquidation Account Monies. 4 ORDERS that the Third Defendant, Peter Alan Laird (Peter Laird), Aidzan and Nazdia pay to KAL a sum equal to the Net Sunnyholt Proceeds of Sale less the Liquidation Account Monies (Balance of the Net Sunnyholt Proceeds of Sale). 5 ORDERS that Peter Laird, Aidzan and Nazdia pay to KAL interest, pursuant to section 100 of the Civil Procedure Act 2005 (NSW), on the Balance of the Net Sunnyholt Proceeds of Sale from 23 October 2019 in the sum of $1,219,597.29. Sunnyholt Property Surplus Rent
ORDERS that Peter Laird, Aidzan and Nazdia pay to KAL the amount of $1,200,000, constituting $1,200,000 in rent KAL paid to Aidzan in relation to the Sunnyholt Property for the period from 12 December 2008.
ORDERS that Peter Laird, Aidzan and Nazdia pay to KAL interest, pursuant to section 100 of the Civil Procedure Act 2005 (NSW), on the sum of $1,200,000 as follows: a. Interest on the sum of $300,000 relating to the period from 1 July 2010 to 30 June 2011, being interest in the sum of $25,871.91; b. Interest on the sum of $600,000 relating to the period from 1 July 2011 to 30 June 2012, being interest in the sum of $51,147.94; c. Interest on the sum of $1,200,000 relating to the period from 1 July 2012 in the sum of $745,233.01. Tattersall Road Property
ORDERS that Peter Laird pay to KAL the amount of $628,000, constituting the lost rent relating to the property at 84-88 Tattersall Road, Blacktown, from 1 January 2015 to the date of completion of the sale of that property on 31 August 2017.
ORDERS that Peter Laird pay to KAL interest, pursuant to section 100 of the Civil Procedure Act 2005 (NSW), on the sum of $628,000 as follows: a. Interest on the sum of $225,500 from 1 January 2015 to 31 December 2015, being interest in the sum of $14,089.11; b. Interest on the sum of $462,500 from 1 January 2016 to 31 December 2016 being interest in the sum of $27,243.15; c. Interest on $628,000 from 1 January 2017 in the sum of $206,039.06. PL Superannuation Payment
ORDERS that Peter Laird and Nazdia pay equitable compensation to KAL in the sum of $900,000.
ORDERS that Peter Laird and Nazdia pay to KAL interest, pursuant to section 100 of the Civil Procedure Act 2005 (NSW), on the sum of $900,000 from 1 July 2007 in the sum of $971,616.58. Cross-Claim
ORDERS that there be judgment for KAL on the cross-claim which was ultimately propounded by the Further Amended First Cross-Claim. Costs 13 ORDERS that Peter Laird, Aidzan and Nazdia pay KAL's costs of and incidental to the proceedings on the ordinary basis, as agreed or as assessed.
ORDERS that Peter Laird and Aidzan pay KAL's costs of and incidental to the cross-claim on the ordinary basis, as agreed or as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2023

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