Liquorland (Aust) Pty Ltd v Anghie [2001] VSC 362

Supreme Court of Victoria|2001-10-02|Before: Warren J

INJUNCTION - interlocutory - whether a Mareva injunction - question of risk - serious question to be tried - balance of convenience - status quo.

TAKEOVER - retention of monies pending trial - non-disclosure of financial information prior to acceptance of offer.

SUPREME COURT ACT 1986 - s.37 - power to grant interlocutory injunction

The plaintiffs seek an interlocutory injunction restraining payment of moneys due to be paid with respect to a takeover bid for the second plaintiff.

The first plaintiff ("Liquorland") made a takeover offer under the Corporations Act with respect to all fully paid ordinary shares in the second plaintiff ("ALG"). The defendants were, variously, directors, shareholders or both of ALG, the takeover target. The takeover offer was accepted. The takeover was considered in the usual way by the Corporations and Securities Panel ("the Panel") appointed under the Corporations Act. The Panel considered that the evidence before it suggested that financial information relating to the takeover target was "very likely to be materially unreliable". The Panel observed that evidence suggested that the directors of ALG, that is, some of the defendants, did not inform the market of the unreliability of the information "in any relevant or timely manner". The Panel ordered the holding back of the payment for the shares in ALG in order to facilitate court proceedings. Subsequently, the plaintiffs commenced the present proceeding.

In the statement of claim the plaintiffs alleged that the defendants knowingly failed to include obligatory information in the statement of ALG as required by s.638(1) of the Act. The sub-section provides:

"638 Target's statement content General requirement

(1) A target's statement must include all the information that holders of bid class securities and their professional advisers would reasonably require to make an informed assessment whether to accept the offer under the bid. The statement must contain this information:

(a) only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in the statement; and

(b) only if the information is known to any of the directors of the target."

The plaintiffs alleged that the section 638 statement was deficient and in breach of the requirements of the section. They alleged, also, that the statement of ALG contravened s.670A(1) of the Act and, as a consequence, Liquorland suffered loss and damage by way of the share price paid, namely, $1.20 per share, compared with a lesser price. The plaintiffs sought orders under s.1325A of the Corporations Act for the holding of the consideration payable by Liquorland under the bid in the amount of $9,559,185.60. The plaintiffs further alleged that ALG breached the Australian Stock Exchange ("ASX") Listing Rules in contravention of s.1001A(2) of the Corporations Act by failing to notify the ASX of certain financial information concerning ALG. As a consequence, the plaintiffs claimed loss and damage pursuant to s.1005(1) of the Corporations Act and relied upon the particulars already recited. In addition, the plaintiffs alleged misleading and deceptive conduct in breach of s.995(2) of the Corporations Act, alternatively, s.9 of the Fair Trading Act 1999 (Vic) and consequential loss and damage, relying on the same particulars. The plaintiffs alleged, also, contravention of s.1002G(2) of the Act and claimed loss and damage pursuant to ss.1005(1) and 1013(4) of the Corporations Act. The loss and damage was particularised as the difference between the share price paid and the likely price if the alleged accurate information had been provided.

Arising from these alleged contraventions the plaintiffs claimed interlocutory relief under s.1325(5)(b) under the Corporations Act so that the consideration payable by Liquorland under the bid was held pending trial. The plaintiffs claimed final relief under s.1325(5)(b) to vary the subject bid contracts. They sought divestiture of the shares of the defendants so that the consideration payable under the contract of offer was nil. There were, in addition, allegations of breach of fiduciary duty made against the sixth defendant and a consequential claim for equitable compensation.

It follows that save for the claim relying upon breach of fiduciary duty and the consequential claim for equitable compensation, the claim by the plaintiffs against the defendants is properly characterised as one for damages.

The evidence relied upon by the plaintiffs in support of the application for an interlocutory injunction was contained in the affidavits of Craig Watkins, Managing Director of Li quorland, Saxil Neill Tuxen, Chief Financial Officer of ALG, Robert Frederick Bennett, Company Secretariat Manager of Coles Myer Limited, the ultimate parent company of Liquorland and ALG, and Raechelle Athenais St Aubyn Binny, a solicitor acting for the plaintiffs. The general description of the events preceding the takeover offer and the consideration of that takeover by the Panel were generally unchallenged by the defendants. The present application for an interlocutory injunction was proceeded against the first and third defendants only. Those defendants relied upon the affidavit of Malcolm Robert Higgs who is the third defendant and a former director and shareholder in ALG. I have considered all the evidence on affidavit and the exhibits to those affidavits. Essentially, the ambit of the factual dispute between the plaintiff and the first and third defendants revolved around conversations between representatives of Liquorland and the directors of ALG and, also, analysis of financial documents, in particular, a financial report known as the "Project Froth" report.

I have considered the affidavits very carefully. I set out a description of the salient facts relied upon for the purposes of the application. However, in doing so I do not, of course, form a view as to the evidence relied upon by the parties save for the purposes of applying the usual tests upon an application for an interlocutory injunction.

The first to fifth defendants were directors of ALG until 19 June 2001. The first, third to sixth defendants are registered as shareholders of ALG. The fifth defendant, Philip Murphy, is the sole director and secretary of the sixth defendant Philip Murphy Investments P/L. ALG was floated and listed in June 2000. It operated a chain of 35 retail liquor outlets, later expanded to 42 bottle shops.

The plaintiffs alleged that the first to fifth defendants, the former directors, knew that the financial controls within ALG were seriously deficient, in particular, that three of the former directors, Murphy, Ross Graham Oakley and Michael Lee Anghie knew of these matters as early as December 2000. The plaintiffs relied upon a Board Paper dated 18 December 2000 where the then Chief Financial Officer of ALG reported the following position to the Board of ALG:

"Within a few days of my commencing employment with ALG it was apparent that finance and administration processes had not been developed or applied. In addition some staff did not have the necessary skill set or application to carry out their assigned tasks to a standard expected of a public corporate. The main consequence of this situation was that the company had spent and was continuing to spend without reference to need or ability to pay. In attempting to ascertain the bank position the company had written out cheques to $1.3m greater than the overdraft limit and was continuing to do so without reference to the company's cash position or the claim made by the creditor. This situation was drawn to the attention of the Managing Director and cheque payments were put on hold. Upon inquiry of the company accountant, the accounts which were presented to the Board purportedly representing the first quarter's results were found to be false and misleading. Many items in the balance sheet and profit and loss were 'best guesses'. In short, the company's management of finance and administration had been non existent with personnel permitted to operate without appropriate direction or support."

On 18 December 2000 the then directors of ALG met. The minutes of the 18 December 2000 meeting recorded that the Chief Financial Officer presented his report to the Board and that Murphy, Oakley and Anghie were present.

In a letter dated 28 December 2000 from Murphy to Oakley, Murphy responded to the six monthly review of senior executives' performance. In summary, in that letter Murphy expressed his concern that ALG had "not been able to report an accurate margin nor do {sic} yet know what our real margin is". He also stated: "I do not debate that we had no financial controls in place but I also ask the question, why not? I have not run a public company before and quite frankly I would have expected more support in this area". Murphy stated in the letter that he was in the process of writing a business plan.

The plaintiffs produced and relied upon the eventual business plan because it included a statement that adding budgeted sales for the second six months to actual first half sales ALG should achieve total sales for the year of $121,768,130.

On the basis of the report of the Chief Financial Officer, the Murphy letter and the business plan, the plaintiffs asserted that as early as January 2001 Murphy, Oakley and Anghie knew that sales were not proceeding at the budgeted level in the second half of the 2001 financial year. The plaintiffs also produced e-mails attaching sales reports showing a material shortfall in budgeted sales. The weekly sales figures for January 2001 appeared to record sales under budget.

The plaintiffs exhibited the unsigned minutes of a Board meeting conducted on 22 January 2001. The minutes recorded that Oakley, Murphy, Anghie and the fourth defendant Michael Pelly attended that meeting. The minutes indicated the absence of internal controls at ALG and the cash pressures confronting the business. Importantly, paragraph 6 of the minutes stated:

"The CFO advised the Board that the months since his appointment had been difficult given the total lack of internal controls, accounting process and cash pressures. The cash pressures would continue for some months given the level of purchases during December."

Against this background, on 16 February 2001, ALG announced to the ASX that it forecast that its turnover for the financial year ending 30 June 2001 would be $130,000,000 and that its profit after taxation would be $5,000,000. The plaintiffs complained that no mention was made of the absence of internal controls.

The plaintiffs drew attention to the fact that on 16 March 2001, ALG lodged its report for the half year ended 31 December 2000 and accompanying directors' report with the ASX. The reports stated that ALG had achieved sales of $57,700,000 in the period, generated profit before tax and goodwill amortisation of $3,950,000 and a net profit after tax of $1,720,000 in the period and forecast its annual sales for the financial year ending 30 June 2001 would be approximately $130,000,000. The reports did not appear to revise the forecast profit after taxation of $5,000,000 for the financial year ending 30 June 2001.

The plaintiffs produced and emphasised a report dated 21 March 2001 that was presented to all of the former directors of ALG at a board meeting on 28 March 2001 In the report the third defendant, Malcolm Robert Higgs stated that -

" ... clearly the historical financial management of the company had been inadequate and a complete Systems Review is now required to assess the ability of the current structure to deliver financial information in a timely and efficient manner... ... It is extremely clear that due to a number of systems and management issues, the financial reporting in ALG's early days were considerably inadequate. As a result, an inordinate amount of resource has had to be applied to rectifying this situation. Indeed, as late as last week, difficulties were experienced in extracting accurate information for the completion of the end of the first half results ... "

The minutes of the board meeting recorded that Higgs was to liaise with the auditors for the purpose of conducting the review.

In early April 2001, ALG retained its auditors, Hall Chadwick, chartered accountants, to undertake a review of all financial management systems from cash register to balance sheet.

The plaintiffs alleged that on 13 April 2001 Higgs and Anghie represented to Watkins of Liquorland that ALG's latest trading results and sales forecasts were as published in the report for the half year ended 31 December 2000 and accompanying directors' report and that the annual sales forecast was $130,000,000. The plaintiffs alleged, further, that on 17 April 2001, Saxil Tuxen, the Chief Financial Officer of ALG, provided to Higgs a revised profit and loss analysis. It showed that the net profit of $3.063 million for the half year ended 31 December 2000 ought be revised to a net profit of $1,399,000; the reported net profit of $3,263,000 for the eight month period to the end of February 2001 ought be revised to a net loss of $322,000; the general ledger-bank reconciliation as at the end of February 2001 should be adjusted by a debit of $1,771,000 to record a balance of -$2,998,000; the cash flow analysis for the month of April 2001 showed an opening balance of -$2,759,000 and a closing balance of -$5,302,000

On 17 April 2001 Liquorland acquired eight million fully paid ordinary shares in ALG, representing an 18.0 per cent interest in ALG.

The plaintiffs alleged that on 19 April 2001 Higgs and Anghie represented to Watkins of Liquorland two matters. First, that the sales forecast of $130,000,000 for the financial year ending 30 June 2001, as published in the Report for the Half Year ended 31 December 2000 and accompanying Directors' Report, remained appropriate. Secondly, that any material change to the financial performance of ALG as announced in the reports would be announced by the Board of Directors to the ASX in accordance with the obligation of ALG pursuant to Listing Rule 3.

The weekly sales figures for the month of March 2001 and April 2001 as recorded in the weekly sales reports recorded the deteriorating performance of ALG against budget. It seems that sales in the month of April 2001 were particularly weak and sales were 23.2 per cent under budget.

On or about 27 April 2001 Coles Myer Ltd, the parent of Liquorland, announced to the ASX the intention of Liquorland to make a takeover bid for ALG. On 1 May 2001 Liquorland lodged with the Australian Securities & Investments Commission ("ASIC") an offeror's statement ("the offeror's Statement") in respect of its proposed takeover offer for all of the fully paid ordinary shares in ALG. On 2 May 2001 Murphy signed a consent to the statement of ALG ("the target's statement"). On 4 May 2001 ALG lodged the target's statement with ASIC. The target's statement included three important matters. First, it expressly referred to the forecast profit of $5,000,000 as announced to the ASX on 16 February 2001. Secondly, it stated that since ALG had prepared and lodged its report for the half year ended 31 December 2000, the directors of ALG were not aware of any events that had occurred which would materially affect ALG's financial position, except as referred to in the target's statement. Thirdly, it was stated that except as disclosed in the target's statement and the offeror's statement, there was no other information material to the making of a decision by a shareholder as to whether or not to accept any offer by Liquorland, being information that was within the knowledge of any of the directors of ALG which had not previously been disclosed to shareholders.

The plaintiffs placed particular emphasis on the fact that the target statement did not qualify or correct the forecast sales of $130,000,000 or the forecast profit after taxation of $5,000,000.

The evidence of the plaintiffs disclosed that on 11 May 2001 Tuxen provided to Higgs a trial balance sheet for ALG that he had prepared for the period ending 31 March 2001 which showed a loss of $2,191,000. The plaintiffs alleged that this information was not disclosed by the former directors to the ASX, Liquorland or ALG's shareholders. On 14 May 2001, Liquorland made a formal offer to acquire all of the fully paid ordinary shares in ALG for the offer price of $1.20 in cash per share. The terms of the offer provided that the offer and any contract resulting from its acceptance by any shareholder of ALG were subject to there being between 27 April 2001 and the end of the offer period no occurrence, announcement (or otherwise becoming public) of a material adverse change in the structure, business, financial trading position or profitability or prospects of ALG or the group consisting of ALG and its subsidiaries taken as a whole.

On 31 May 2001, Tuxen provided to Higgs a memorandum that revised the financial results for ALG for the period ending 31 March 2001 to show a loss of $4,829,000 and expressed concern about the ability of ALG to pay creditors. Apparently, Tuxen stated the result was not a surprise because the previously reported profits should be questioned in light of the cash/creditors position of ALG. Tuxen stated that the trading situation had become critical and required ALG to review its legal responsibilities. The plaintiffs alleged that despite the warning by ALG's Chief Financial Officer, the former directors made no disclosure to the ASX, Liquorland or anyone else.

In about May 2001, Hall Chadwick provided a report in relation to the accounting systems of ALG in which it apparently recorded systemic and fundamental failures in ALG's accounting systems and concluded that those systems had not been operating effectively during the six month period ended 31 December 2000. The plaintiffs alleged that the directors' knowledge of the Hall Chadwick report was revealed by minutes of meetings. The plaintiffs alleged that the Hall Chadwick report was raised at a meeting on 28 March 2001 when all of the former directors were present and a meeting on 1 June 2001 when all directors other than Philip Murphy were present. The plaintiffs also asserted that there were two versions of the Hall Chadwick report. It was said that an apparent earlier version of the report was very critical of ALG's accounts system. ALG's Board minutes of 1 June 2001 recorded that Anghie discussed the draft report with Hall Chadwick. The plaintiffs asserted that an amended report was prepared. The apparent later version of the report deleted section 2.15 "Accounting Systems" of the previous report which had stated, inter alia, that it appeared that the "company's accounting systems incorporating key internal controls have not been operating effectively during the six month period ended 31 December 2000". The alleged revised report said:

"As a result of our review, no matters have come to our attention that cause us to believe that the half-year financial statements of Australian Liquor Group Limited are not drawn up so as to give a true and fair view of the state of affairs at 31 December 2000 and the profit and cash flows for the half-year ended on that date."

The plaintiffs relied upon the fact that the minutes of ALG's Board meeting on 1 June 2001 recorded that Anghie commented that the Hall Chadwick report indicated a complete lack of discipline from the previous management and that he understood controls were now being addressed. Anghie was a director of Hall Chadwick Corporate Finance and Advisory Services (the plaintiffs suggested until 15 June 2000).

Ultimately, the first and third to sixth defendants as shareholders accepted the offer and each entered a bid contract with Liquorland on the term that on receipt of the consideration specified each would transfer their shares in ALG to Liquorland.

The plaintiffs alleged that on 19 June 2001, Tuxen and Frank Maddicks, a general manager employed by ALG, provided to Higgs a joint letter in which they expressed concern that Liquorland's offer may be declared unconditional without Liquorland being informed of the calculations revealing a loss by ALG for the period ending 31 March 2001 of $4,829,000. The terms of the letter were as follows:

'We are writing this letter jointly to express our concern that the Coles Myer offer is going unconditional without Coles Myer being made aware of the recently identified March 2001 YTD loss of $4.829m. We are concerned that we have been aware of a loss for some time. A loss of $2.191m was originally advised on 11th May. To confirm that loss we had a stocktake on the 20 May. Formal advice of the $4.829m loss was given on 1st June, 18 days ago. Though we may find further adjustments going either way, to date we have found nothing that will materially improve this position. Given the above we feel that it is unreasonable to withhold this information, and as senior managers believe it is our duty to formally voice our concerns."

On and after 18 July 2001, payment at the offer price of $1.20 per share was made by Liquorland to all shareholders of ALG that accepted the offer, save for the defendants and one Christine Oakley; the latter was paid subsequently.

It appears at this point the accounts are yet to be finalised. However, the plaintiffs alleged that it is sufficiently clear that the true financial position of ALG is very different to the position that the former directors disclosed to the ASX and Liquorland. The plaintiffs made two assertions. First, instead of the forecast profit that in fact after taxation a loss exceeding $5,000,000 is likely to be recorded. The plaintiffs claimed this had necessitated the immediate injection of $10,000,000 from Liquorland to cover ALG's working capital requirements and to enable ALG to continue trading. Secondly, actual sales appear to be approximately $100,000,000 rather than the forecast $130,000,000.

Allegations of Directors' knowledge of ALG's financial position

The plaintiffs alleged that it was clear that as at 18 December 2000 all of the former directors (other than Higgs and Pelly who had not joined ALG's board at that time) knew that the company's management of finance and administration had been non-existent with personnel permitted to operate without appropriate direction or support. They alleged that on the basis of his letter of 28 December 2000 Murphy knew that ALG's financial systems were not able to report an accurate margin and that ALG did not know what its real margin was.

The plaintiffs alleged that Murphy also acknowledged in his business plan that as at 15 January 2001 if sales proceeded in accordance with budget they would only reach $12,000,000. The plaintiffs understood this figure was GST inclusive and asserted that sales should be reported as GST exclusive. Further, they asserted that Murphy and the other directors were on notice on a weekly basis that sales were not achieving budget. The plaintiffs relied upon the weekly sales reports distributed on behalf of Murphy to the other directors. Further, the plaintiffs relied upon the fact that Murphy received sales figures in the form of a weekly report in April 2001 and, in particular, on 9 April 2001 the sales figures for the week ending 1 April 2001 were sent to Murphy showing a sales performance of 18. 1 per cent under budget. On this basis the plaintiffs alleged that Murphy and the other directors knew that sales would be substantially less than $12,000,000 and that this was not disclosed in the target statement or to the ASX or Liquorland.

The plaintiffs relied upon the fact that the managing director's report of Higgs dated 21 March 2001 indicated that the accounts system was incapable of producing reliable results. The plaintiffs asserted that the report was considered by each of the former directors (including Murphy and Pelly) on 28 March 2001. Further, the plaintiffs claimed that at the Board meeting on 28 March 2001 Higgs' report dated 21 March 2001 was considered, including its express statement that the sales forecast would be difficult to achieve. The plaintiffs asserted, further, that each former director knew that Hall Chadwick was to be engaged to undertake a systems review because of the lack of integrity of the accounts system.

The plaintiffs relied upon the fact that Tuxen, in a memorandum to Higgs on 17 April 2001, said that the profit and loss results should be revised for known reporting errors. The plaintiffs asserted that this fact was not disclosed in the target's statement. The plaintiffs said that, on the contrary, during the due diligence process on or about 19 April 2001 ALG's representatives specifically acknowledged their awareness of the forecast sales of $130,000,000 and an obligation under Listing Rule 3.1 to disclose a material change in the company's position to the ASX. The plaintiffs alleged that the former directors or some of them were aware of Tuxen's memorandum dated 31 May 2001 that disclosed and reiterated updated March results revealing a loss of $4,829,551. Tuxen stated that he discussed the content of the memorandum with Anghie on 7 June 2001 and produced a file note of the discussion.

Arising from these matters the plaintiffs alleged that each of the former directors knew that Hall Chadwick were engaged to conduct a systems review because of the historic inability of the system to produce a reliable result. They said that this was discussed in the Higgs' report on 21 March 2001 which the minutes of the directors meeting on 28 March 2001 recorded each of the former directors as attending. The plaintiffs claimed that the former directors knew that Hall Chadwick's review of ALG's financial and accounts system contained observations that reflected systemic and fundamental failures in ALG's accounts system. The plaintiffs alleged that the report was commented upon at the meeting of the board attended by each of the former directors other than Murphy on 1 June 2001. The plaintiffs pointed to the fact that the earlier version of the report cast doubt upon the accuracy of the first half-year's financial results and that the former directors failed to disclose this matter.

Details of the Liquorland's application to the Corporations and Securities Panel on 12 July 2001 are set out in Watkins' affidavit.

The press release issued by the Panel on 17 July 2001 stated that:

"The Panel decided, on the submissions before it, that it appears likely that unacceptable circumstances existed in relation to the market in ALQ [sic] shares for a material portion of 2001, at least. However, those submissions have yet to be fully tested. The Panel considers that the evidence before it also suggests that during the first half of 2001, ALQ became aware that the information on which it based revenue and profit statements and forecasts was very likely to be materially unreliable. The current evidence also suggests that the directors of ALQ did not inform the market of this unreliability of its revenue and profit statements in any relevant or timely manner."

The Panel is empowered to make a declaration of unacceptable circumstances under s.657A of the Corporations Act.

The Panel issued its interim findings on 31 July 2001. The findings stated that:

"Liquorland has made out a prima facie case that unacceptable circumstances existed. That is, if Liquorland proved its allegations and if no offsetting facts were made out, Liquorland would have shown that unacceptable circumstances existed in relation to the acquisition of control of ALQ [sic], because it happened in a market which was not efficient, competitive and informed ... ... While we believe that the Panel is not the appropriate forum for those remedies, we accept that if Liquorland's allegations are made out it may well have remedies against the directors. We also accept that those remedies would arise out of what we have identified as possible unacceptable circumstances and that a Court may be prepared to order that the consideration for shares beneficially owned or controlled by the directors should be held back, pending the outcome of such an action. Accordingly, we have ordered Liquorland to hold back payment of the consideration for shares sold under the bid by the directors, for fourteen days from 17 July 2001, to give Liquorland an opportunity to apply to the Court. After those fourteen days, our order will lapse. If no Court order has been made by then, Liquorland will have to pay the consideration to the directors."

The Panel extended its interim order for seven days. Its order expired at midnight on 7 August 2001.

Subsequently, on 1 August 2001 the plaintiffs commenced these proceedings. Initially, by summons, the first plaintiff, Liquorland (Australia) Pty Ltd ("Liquorland"), sought orders that pending the hearing and determination of the proceedings:

(a) the consideration payable by Liquorland to the first and third to sixth defendants under the bid contracts concluded with them in connection with the takeover bid by Liquorland for the second plaintiff (being $9,559,185.60) be kept in the trust account specified in the summons ("the bank account");

(b) further, or alternatively, the bid contracts concluded by Liquorland with each of the shareholding defendants be varied so as to provide that the consideration payable by Liquorland to those Defendants under the bid contracts concluded in connection with the takeover bid by Liquorland for ALG (being $9,559.185.60) be kept in the bank account;

(c) the shareholding defendants, their officers and employees be restrained from dealing in the shares the subject of the bid contracts between Liquorland and each of the shareholding defendants in connection with Liquorland's takeover of ALG.

On 6 August 2001 Beach J ordered that the plaintiffs' summons be adjourned to a date to be fixed. Undertakings were provided before Beach J by the parties as follows:

(a) each of the defendants by his or its counsel undertook that he or it consented to the current funds being kept in the bank account until further order;

(b) each of the shareholding defendants by his or its counsel undertook not to deal in the shares the subject of the bid contracts between Liquorland and each of the shareholding defendants in connection with Liquorland's takeover of ALG until further order; and

(c) the plaintiffs by their counsel provided the usual undertaking as to damages.

On 17 August 2001, Mandie J ordered, by consent that:

(a) Pending the hearing and determination of the proceeding, the consideration payable by Liquorland to the fifth and sixth defendants (Murphy and Philip Murphy Investments Pty Ltd respectively) under the bid contracts concluded in connection with the takeover bid by Liquorland for ALG (being $9,057,498) be kept in the bank account.

(b) Pending the hearing and determination of the proceeding_,_ Liquorland pay to the fifth and sixth defendants ("the payees") amounts equal to the interest accruing on the funds held in the bank account as from the date of the order, multiplied by the ratios which the amounts held in respect of each of the payees bear to the total amount deposited in the account.

(c) The interest accruing on the payees funds be payable on the first business day of each month into the payees' nominated account.

(d) Pending the hearing and determination of the proceeding, the fifth and sixth defendants, their officers and employees be retrained from dealing in the shares the subject of the bid contracts between Liquorland and each of the fifth and sixth defendants in connection with Liquorland's takeover of ALG.

(e) The plaintiff's summons dated 1 August 2001 be dismissed as against the, fifth and sixth defendants.

(f) There be no order as to costs in respect of the plaintiffs' summons dated 1 August 2001.

(g) The plaintiffs are released from their undertaking as to damages given in the proceeding on 6 August 2001 insofar as it relates to any damages sustained by the fifth and sixth defendants.

The fourth defendant, Pelly by his legal representatives informed the Court that he did not intend to defend the plaintiffs' summons dated 1 August 2001. Accordingly, the undertakings provided before Beach J on 6 August remain on foot in respect of Pelly.

As a result of these matters, the orders sought in the plaintiffs' Summons dated 1 August 2001 are pursued only as against the first and third defendants, Anghie and Higgs respectively. The consideration payable by Liquorland to Anghie and Higgs under the bid contracts, presently held in a bank account is $53,655.60 and $424,032 respectively. These are the amounts that are the subject of the present application.

Relief Sought by Plaintiffs - ss.1325 and 1325A of the Corporations Act.

Liquorland seeks final relief pursuant to ss.1325(5)(b) and 1325A(1) of the Corporations Act. The relevant parts of ss.1325 and 1325A provide:

(1) Where, in a proceeding instituted under, or for a contravention of, Chapter 5C or 6D or Part 7.11, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage because of conduct of another person that was engaged in contravention of Chapter 5C or 6D or Part 7.11, the Court may, whether or not it grants an injunction, or makes an order, under any other provision of this Act, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the Court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.

(2) The Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage because of conduct of another person that was engaged in in contravention of Chapter 5C or 6D or Part 7.11, or on the application of ASIC in accordance with subsection (3) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.

...

(5) The orders referred to in subsections (1) and (2) are:

(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after a specified day before the order is made; and

(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after a specified day before the order is made; and

(c) an order refusing to enforce any or all of the provisions of such a contract; and

(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage; and

(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage; and

(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person's own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage.

(6) Where an application is made for an order under this section against a person, the Court may make the order under section 1323 in respect of the person.

1325A Orders if contravention of Chapter 6, 6A, 6B or 6C

(1) The Court may make any order or orders (including a remedial order) that it considers appropriate if the person:

(a) contravenes a provision of Chapter 6, 6A, 6B or 6C; or

(b) contravenes a condition on a consent given by ASIC under section 652B; or

(c) states in a notice under section 672B about securities that they do not know particular information about:

(i) the securities; or

(ii) someone who has a relevant interest in, or has given instructions in relation to, the securities.

... "

Liquorland seeks an order under s.1325(5)(b) of the Act that the bid contracts concluded with each of the shareholding defendants be varied so as to provide that the consideration payable by Liquorland to those defendants under the bid contracts be reduced to nil. Liquorland maintained that the remedy is available as a consequence of the alleged contraventions of ss.995(2), 1001A(2) and 1002G(2) of the Act. Liquorland sought by way of final relief, also, an order under s.1325A(1) of the Corporations Act that the shareholding defendants divest their shares in ALG on condition that the consideration payable by Liquorland under the relevant bid contracts be reduced to nil. It was submitted on behalf of Liquorland that the remedy would be available to it as a consequence of the alleged contraventions of ss.638 and 670A of the Corporations Act.

Mr A. Archibald QC who appeared with Mr M. Pearce for the first and third defendants, Anghie and Higgs, submitted that there was no power contained in ss.1325 or 1325A of the Corporations Act that permitted this Court to make an interim or interlocutory order.

Consideration of both sections 1325 and 1325A reveals that there is no specific provision for a court to make interim orders. The sections are to be contrasted with ss.1323(3) and 1324(4) of the Corporations Act. Section 1323 empowers a court to prohibit payment or transfer of money and other assets. It is the "Mareva" injunctive power. Section 1324 empowers a court to grant an injunction, perpetual or interim. Section 1324 is predicated on past, present or future conduct in breach of the Corporations Act, attempted contravention, aiding contravention and the like, inducement, concern in and conspiring to contravene the Corporations Act. Section 1325 of the Act is predicated on the suffering or likely suffering of loss or damage arising from contravention of specific chapters or divisions of the Act.[1] Section 1325A of the Act is predicated on a contravention of specific provisions in the Act, certain conditions or certain knowledge relating to a particular notice.[2] Of course, the plaintiffs could not rely upon s.1323 as it is concerned only with orders against third parties: see ASIC v Wiggins (1998) 90 FCR 314, 319. As a consequence, although sub-s.1325(6) empowers a court dealing with an application under s.1325 to make orders under s.1323, the power is not relevant here. That leaves the plaintiffs with s.1324. It is well established that an application under s.1324 is to be determined in accordance with the usual principles applicable to an interlocutory injunction: see Adsteam Building Industries Pty Ltd v Queensland Cement and Lime Co Limited (1984) 2 Qd R 1, 5-6; NCSC v Monsoon Nominees Pty Ltd (1990) 3 ACSR 361, 363; ASIC v Cooke (1996) 22 ACSR 580, 580-1.

Of course this analysis takes no account of s.37(1) of the Supreme Court Act 1986 (Vic). It provides that the Court may grant an interlocutory injunction.[3]

A similar issue to the submission on behalf of the first and third defendants arose in Patrick Stevedores Operations No. 2 Pty Ltd and Ors v Maritime Union of Australia and Ors [1998] HCA 30; (1998) 195 CLR 1. There, among many matters, the High Court considered an argument that a power to remedy the effects of conduct contravening a statute[4] was only exercisable when the effects of the contravening conduct had been found to exist. In the joint judgment of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ (Callinan J dissenting) it was held (at 28-29):

"In so far as the power of the Court under s.298U(e) is to make an order necessary to remedy the effects of contravening conduct, counsel for the appellants may well be correct in submitting that the power conferred by s.298U(e) is exercisable only when those effects have been found to exist. That is the condition upon the power to make a final order; it is not the definition of the jurisdiction to hear and determine an application in respect of alleged contravening conduct. The power to make an interlocutory order is exercised by reference to the relief finally available but that is not, or is not necessarily, to say that the power to make the final order is the source of the power to make an interlocutory order or confines the power to make an interlocutory order. Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s.23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make 'orders of such kinds, including interlocutory orders ... as the Court thinks appropriate'. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s.23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case."

"As a general rule, interlocutory orders and injunctions are confined to orders maintaining the status quo at the time of the making of an application for those orders. However, that is not invariably so. Nor, as the applicants' argument assumes, is that a rule that applies in the same way to relief under s.298U(3) of the Act. Because the power to make an order under s.298U(e) is conditioned on the opinion that 'it [is] appropriate in all the circumstances of the case, [to] make [the order]', it clearly permits of a refusal to make an order which confers greater rights than existed when the application was made. However, it is impossible to construe s.298U as requiring that an order be refused because it would have that effect. And in the circumstances of this case, it cannot be said that, because orders 3 and 4 travel beyond the status quo existing when application was made for interlocutory relief, the decision of North J that it was appropriate to make orders under s.298U(e) was infected with error. And once the view was formed that it was appropriate to make orders under s.298U and, in terms of s.298U(e), those orders were '[thought] necessary', it cannot matter that they were of a kind that a court might refuse to make if it were exercising equitable jurisdiction."

On the basis of the approach of the High Court in Patrick Stevedores and, furthermore, given s.37 of the Supreme Court Act, I am satisfied that this Court has power to grant the interlocutory injunctions sought by the plaintiffs if so persuaded.

The Relevant Principles in Relation to the Granting of the Injunction

Mr Archibald QC for the defendants submitted that the injunction applied for by the plaintiffs was properly characterised as a Mareva injunction. It was openly acknowledged by Mr J. Middleton QC who appeared with Mr. S. Anderson for the plaintiffs that there was no evidence before the Court in support of an assertion that the subject moneys were at risk of dissipation or removal from the jurisdiction of the Court. Rather, Mr Middleton submitted that the nature of the injunction applied for by the plaintiffs was properly characterised as an interlocutory injunction, not a Mareva injunction, to which the usual principles should be applied. He submitted that the injunction sought by the plaintiffs did no more than preserve the status quo so that if the plaintiffs are ultimately successful at trial the subject moneys will be available to satisfy any order for damages that a court might make.

Mareva injunctions are conveniently described by Spry in the 6th edition of his work, Equitable Remedies (at 514):

"The term 'Mareva injunction' (or alternatively, 'freezing injunction') is commonly used to described injunctions granted in order to prevent the defendant from removing assets from the jurisdiction or from disposing of or dealing with them within the jurisdiction in such a way as to frustrate execution under proceedings brought or to be brought by the plaintiff."

It is generally accepted that the purpose of a Mareva injunction is to prevent execution from being rendered ineffective: see Mareva Compania Naviera S.A. v International Bulkcarriers S.A. [1975] 2 Lloyd's Rep 509; Iraqi Ministry of Defence v Arcepey Shipping Co S.A. [1981] QB 65; see also, Barclay-Johnson v Yuill [1980] 3 All ER 150, 267; Jackson v Sterling Industries Ltd (1987) 162 CLR 332; Meagher, Gummow and Lehane, Equity Doctrines and Remedies (3rd ed.) para [2185]. Of course, it behoves an applicant for a Mareva injunction to demonstrate a sufficient probability that the applicant will obtain judgment and a sufficient risk that if the Mareva injunction is not granted that judgment will be rendered wholly or partly ineffective: see Third Chandris Shipping Corporation v Unimarine S.A. [1979] QB 645; also Jackson v Sterling Indutires Ltd, supra.

As a general statement of principle, before a Mareva injunction is granted the applicant must show first, a realistic prospect of success or a good arguable case; second, that the refusal of the injunction would involve a real risk that a judgment or award in favour of the applicant would remain unsatisfied; and third, that the balance of convenience requires the grant of an injunction: see Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; (1991) 2 VR 49; Brereton v Milstein [1988] VicRp 57; (1988) VR 508; National Australia Bank Limited v Dessau [1988] VicRp 58; (1988) VR 521; Pearce v Waterhouse [1986] VicRp 57; (1986) VR 603.

I consider that on the application of the relevant principles the injunction sought by the plaintiffs is properly characterised as a Mareva injunction. It is one that if granted will have the effect of preventing the defendants from dealing with the subject moneys from the bid contract to which they would otherwise be entitled. The proof perhaps lies in the submission of Mr Middleton that the plaintiffs seek to obtain the injunction so as to preserve the status quo, that is, so that if the plaintiffs are ultimately successful at trial and obtain an order for damages such order in favour of the plaintiffs cannot be frustrated or put beyond their benefit by virtue of the subject moneys having been disposed of or dealt with earlier. In my view, the analysis reveals the true character of the application. It is an application for an injunction that seeks to prevent the relevant defendants from disposing of or dealing with the subject money in such a way as to frustrate execution. In other words, if the moneys are spent or otherwise dissipated the plaintiffs fear that they will be deprived of the fruits of any order for damages in their favour. The nature of the injunction they seek, therefore, is a Mareva injunction.

For reasons I will expand upon I am satisfied that there is a serious question to be tried. Nevertheless, that is not sufficient. In accordance with the usual principles the plaintiffs have not made out on a proper basis the necessary matters to invoke the discretion of the Court to grant a Mareva injunction. In my view, indeed as conceded by Mr Middleton for the purposes of a Mareva injunction, they stumble at an early hurdle in that they do not demonstrate any risk of dissipation of the relevant moneys or the removal of those moneys from the jurisdiction.

However, if the injunction sought by the plaintiffs was properly characterised as an interlocutory injunction in the ordinary way and not as a Mareva injunction, how would the application stand?

I turn, therefore, to apply the usual principles. First, to consider whether there is a serious question to be tried and, secondly, to assess where the balance of convenience lies: see Davids Holding Pty Ltd v Byrnes (1987) 71 ALR 251; Nicholas John Holdings Pty Ltd v Australia and New Zealand Banking Group Limited [1992] VicRp 98; (1992) 2 VR 715; Optus Networks Pty Ltd v Stonnington City Council [1996] VICSC 12; (1996) 2 VR 209, 213; K-mart Australia Limited v Stud Park Investments Pty Ltd, unreported judgment of the Full Court of the Supreme Court of Victoria delivered 14 October 1994.

I am satisfied that there is a serious issue to be tried. I am satisfied the plaintiffs have made out an arguable case that Liquorland has been prejudiced by the non-disclosure of material information such that the value of ALG may be less, even significantly less than the offer price.

I am satisfied that a serious issue to be tried is made out by the facts described, the causes of action alleged and the remedies sought by the plaintiffs.

I observe that a substantial component of the evidence in support of this application is the evidence that the Panel considered in its interim determination. I observe that on the basis of that evidence the Panel found that it appeared likely that unacceptable circumstances existed in relation to the market in ALG shares at least for a material portion of 2001. I observe, further, that the Panel considered that the evidence before it also suggested that during the first half of 2001 ALG became aware that the information on which it based revenue and profit statements and forecasts was likely to be materially unreliable. In addition, the Panel also found that the current evidence suggested that the directors of ALG did not inform the market of this unreliability of its revenue and profit statements in any relevant or timely manner. I regard the findings of the Panel as very relevant in determining whether there is a serious question to be tried.

Mr Archibald submitted that the evidence relied upon by the plaintiffs did not make out a serious question to be tried when the matters deposed to in the Higgs' affidavit were considered. Weighing up the affidavits on each side very carefully, it seems to me that there is clearly a serious question to be tried. There are matters in dispute between the parties that are appropriate for determination at trial. These matters concern the alleged conversations between Higgs and representatives of Liquorland and also the analysis of the relevant financial material at particular points in time.

Nevertheless, satisfaction of a serious question to be tried is only part of the considerations to be determined.

I turn then to consider the balance of convenience.

The plaintiffs asserted that Liquorland will be irreparably harmed if the interlocutory relief is not granted. The assertion was made on two grounds. First, its right to seek final relief in the nature of varying the bid contracts or divestiture of shares on conditions will be extinguished. It was submitted that once payment is made these remedies would be made futile. Secondly, denial of the interlocutory relief would not only extinguish the claims under sections 1325 and 1325A of the Act, but would also extinguish the claim of ALG against the former directors that they profited from their wrongdoing and, therefore, hold the proceeds of that wrongdoing on trust for ALG. It was submitted that if ALG is successful in this claim, the shareholding directors are not entitled to payment of the consideration payable under the bid contracts other than in their capacity as trustee for ALG. Hence, it was urged, funds to which ALG may be beneficially entitled should not be paid to the shareholding directors as this would effectively extinguish a remedy.

These submissions misconceive the nature of the relief available to the plaintiffs if successful at trial. There is no question of extinguishment of remedies under ss.1325 or 1325A of the Corporations Act if the application for an interlocutory injunction is refused. There is no question of extinguishment of entitlement against the first and third defendants if they receive the relevant consideration moneys as trustees. If a court intervenes in the bid contract the remedies available under the sections would potentially entitle the plaintiffs to payment of compensation or loss and damage or refund of relevant moneys. Hence, their claim is one for which damages is the appropriate remedy.

Ultimately, the plaintiffs' argument was one that relied upon retention of the status quo in support of the assertion that the balance of convenience weighed in their favour. Preservation of the status quo will depend always upon a variety of considerations in any particular case. Thus, although the most usual basis for the grant of an interlocutory injunction is to preserve the circumstances that exist at the time of the application until trial it is nevertheless a factor to be weighed very carefully. The discretion as to that which constitutes the status quo and its need for protection will often warrant the exercise of a very general discretion. As Spry observes in Equitable Remedies (6th ed.) (at 454):

"It is clear that in exercising this very general discretion the Court is concerned primarily with such matters as the degree of probability that the material rights of the plaintiff exist, the degree of probability that the defendant will act as the plaintiff alleges, the inadequacy of other remedies or forms of protection that are available and any other matters which bear on hardship as between the parties or which affect third persons and which render it more just to grant, or not to grant, as the case may be, the interlocutory injunction that is sought."

Meagher, Gummow and Lehane, op cit, (at [2168]) defined the status quo as meaning " ... the state of affairs in the period immediately before issue of the writ" (citing Garden Cottage Foods Limited v Milk Marketing Board (1984) AC 130). It was argued for the plaintiffs that the status quo immediately before the issue of the writ was that the moneys to which the defendants were entitled were held back by order of the Panel. Consideration of the interim findings of the Panel of 31 July 2001 reveals that after recognising that the plaintiffs may have remedies against the defendants as directors the Panel observed that a court may be prepared to order the holding back of consideration for the shares. The Panel stated that, as a consequence and in the circumstances of the matter, it ordered the holding of moneys to enable Liquorland to make the application to the court. The Panel stated, further, that if no order was made its order would lapse and Liquorland would be obliged to pay the consideration to the defendant. The status quo immediately prior to the issue of the writ was that the subject moneys were frozen by order of the Panel but only so as to enable a court to consider an injunction application otherwise the moneys were to be paid, unless a court ordered otherwise. The status quo immediately before the writ is properly construed as one where there was an entitlement by the defendants to receive the share consideration that was intercepted by the Panel. The entitlement remains pending final determination by this Court. If the plaintiffs succeed their claim is essentially one lying in damages. Further, in the overall context of the subject share consideration being in the order of $9,000,000 the moneys due to the first and third defendants are of considerably lesser significance that that due to other defendants. There is nothing to suggest other than that if the plaintiffs succeed they may look to the first and third defendants for damages.

The status quo here is not cast in the black and white terms depicted on behalf of the plaintiffs. In my view the status quo here forms but one part of the multiple factors that may or may not invoke the general discretion. Ultimately a court will consider all factors and pursue an approach that reflects the flexible and discretionary principles that underlie the exercise of the remedy: see Hubbard v Vosper (1972) 2 QB 84, 96; also, Meagher, Gummow and Lehane, ibid.

On balance, I consider that the granting of the injunction in this matter as sought by the plaintiffs whilst partly preserving the status quo places the first and third defendants in the position of effectively providing security to the plaintiffs for their potential claim for damages in the event that they succeed at trial.

In these circumstances it is instructive to re-visit the judgment of Brooking J in National Australia Bank Limited and Ors v Bond Brewing Holdings Limited and Ors [1991] VicRp 31; (1991) 1 VR 386 and particularly the observations of the learned judge with respect to injunctions being utilised by plaintiffs to obtain security for their claims (at 553-554):

"The court will not by injunction require a defendant to give security for the plaintiff's claim (Lister & Co v Stubbs (1890) 45 Ch D 1), nor will it by the appointment of a receiver achieve the same result. Some kind of interim administration of the affairs of a debtor in order to enhance the plaintiff's prospects of ultimately being paid if he obtained a judgment is objectionable in the same way as an injunction which requires the defendant to give security for the plaintiff's claim. Where there is a danger that the defendant will dissipate his assets a Mareva injunction may be granted and in a strong enough case of that kind a receiver may be appointed. It is said in the authorities that the court grants a Mareva injunction in order to prevent its process from being rendered ineffectual. But process exists not for its own sake, but for the protection and enforcement of the rights of litigants; and in recognising the Mareva injunction the court has accepted that an injunction to prevent a defendant from dissipating his assets before judgment is an injunction to protect the right of the plaintiff as a creditor. But despite the recognition and extension of the Mareva jurisdiction the court continues to insist on a danger that assets will be dissipated and the old principles of Lister & Co V Stubbs remains intact, the principle, that is, that the giving by a defendant of pre-trial security to meet the plaintiff's claim is not regarded as a means of protecting or enforcing the plaintiff's rights for the purposes of the principles on which injunctions are granted. The same may be said of the interim administration of the property of a company or natural person by way of endeavouring to ensure that assets are still there by the time of judgment. While a different view might have been taken, it has been accepted now for a hundred years or more that a plaintiff is not entitled to be secured against the danger, for example, that his debtor will lose his assets by unprofitable trading before judgment is given on the claim. The modern distinction that has been drawn is between loss of assets though their 'dissipation' and loss of assets in other ways."

In the circumstances of this matter if the application was to be characterised as one for an interlocutory injunction I consider that essentially the plaintiffs seek to extract security from the first and third defendants for their claim. In the exercise of the discretion I would decline, therefore, to grant an interlocutory injunction to the plaintiffs against the first and third defendants.

[1] Under s.1325 the contravention relates to Chapter 5C or 6D or Part 7.11.

[2] Under s.1325A the contravention relates to Chapter 6, 6A, 6B or 6C.

[3] "Section 37(1) The Court may by order, whether interlocutory or final, grant an injunction or appoint a receiver if it is just and convenient to do so".

[4] Section 298U of the Work Place Relations Act 1996 (Cth)

Fair Trading Act 1999(Vic)

Work Place Relations Act 1996(Cth)

Court of Australia Act 1976

At a glance

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