Monarch Advisory Group Pty Ltd v Puxty

MARKOVIC J: 1 Brett James Puxty, Francis Coggan and Odyssey Advisory Services Pty Ltd (Odyssey), the respondents to this proceeding, seek an order that Monarch Advisory Group Pty Ltd (Monarch), the applicant, provide security for their costs of the proceeding in the sum of $125,000. The application is made pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 19.01 of the Federal Court Rules 2011 (Cth) (Rules) or, in the alternative, s 1335 of the Corporations Act 2001 (Cth) (Corporations Act).

background 2 Monarch was incorporated on 7 February 2012. Tatiana Coulter has been the sole director since the time of its incorporation and is currently its only shareholder. 3 Monarch commenced operations as a financial planning business on 5 March 2012. It specialises in wealth protection and the provision of insurance solutions for individuals and businesses. 4 Between 13 March 2018 and 4 April 2019, Consolidated Corporate Pty Limited (Consolidated) was a 50% shareholder of Monarch. Consolidated is the parent company of Madison Marcus Law Firm (Madison Marcus). 5 Ms Coulter first met Mr Puxty in about 2010 while she was employed at OnePath and over the years they became friends. Prior to his employment at Monarch, Mr Puxty was employed first at AON Hewitt Australia (AON) as a financial advisor and then at WiZDOM Advisory as a senior financial advisor. 6 In 2018 Ms Coulter was introduced by Mr Puxty to Mr Coggan who, at the time, was employed by WiZDOM Advisory as a para-planner. 7 In or about mid 2018 Mr Puxty and Ms Coulter discussed opening a Monarch branch in Newcastle and expanding the business. According to Ms Coulter, Mr Puxty informed her at the time that he had a number of clients from AON and recurring revenue of approximately $200,000, of which he had taken approximately $50,000 over with him to WiZDOM Advisory. 8 As part of her negotiations ultimately for Monarch to enter into employment contracts with Messrs Puxty and Coggan, Ms Coulter had discussions with Mario Kardum, group general manager of Madison Marcus, Bechara Shamieh, managing director of Madison Marcus and a director of Consolidated, and Ramy Qutami, a director of Consolidated. It is not necessary to set that evidence out for the purposes of this application. 9 Mr Puxty and Mr Coggan became employees of Monarch, commencing their employment on about 20 December 2018. Mr Puxty and Mr Coggan resigned from their employment with Monarch on about 17 January 2020. 10 Odyssey was incorporated by Mr Puxty in about September 2019 and now operates a financial services business.

The proceeding 11 On 27 August 2020 Monarch commenced this proceeding against Messrs Puxty and Coggan and Odyssey. 12 In its statement of claim Monarch alleges that: (1) Messrs Puxty and Coggan breached various provisions of their respective employment agreements including, among others, in relation to restraint of trade and confidentiality; (2) Messrs Puxty and Coggan breached their fiduciary duties owed to Monarch and contravened s 182(1) and s 183(1) of the Corporations Act; (3) Odyssey was involved in the alleged breaches by Messrs Puxty and Coggan set out in (2) above; (4) the respondents made representations to clients of Monarch which were not true and, in doing so, they engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law being Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL); and (5) the respondents engaged in conduct which wrongly suggested a connection with the services provided by Monarch and which amounted to passing off. 13 Monarch seeks as against: (1) Messrs Puxty and Coggan, damages for breach of their respective employment agreements, pursuant to s 1317H of the Corporations Act for breach of their statutory duties and an account of profits and or equitable compensation; (2) Odyssey, damages pursuant to s 1317H of the Corporations Act for its involvement in Messrs Puxty and Coggan's contraventions of s 181(1) and s 182(1) of the Corporations Act; and (3) the respondents, damages pursuant to s 236 of the ACL and/or for passing off. 14 Mr Puxty has filed a cross-claim in which he alleges that Monarch has breached the "Termination Agreement" (as defined), failed to repay a loan of $30,000 and has made representations which were not true and which were deceptive or likely to mislead within the meaning of s 31 of the ACL and on which he relied, and in respect of each of which Mr Puxty seeks damages.

Monarch's financial position 15 The respondents rely on the following evidence about Monarch's financial position: (1) an email dated 30 January 2020 from Ms Coulter to Mr Puxty with subject "Re: Figures", which includes (as written): I've had a quick look at this and do have some questions. I've added this to the attached spreadsheet for clarity (in red, next to your notes), and I've also attached your revenue report since you started here which includes the Newcastle 1 & 2 codes that has approx $24k, as this does not seem to marry up to your revenue numbers. This report has approx $140 k under your code+ $24k under Newcastle (less the $1900 from Karen Bowland), so it's looking more like $163k?? I've sought advice as it concerns me to release the clients/ codes before we agree on the final payment and when that will be made. As you know, it is a big number and not getting this money will literally bankrupt me. I need something more concrete before sending that letter to Joseph. I spoke to him this morning and he said it would take 1 - 2 weeks anyway so even if I sent that off today, it's not like you would have this ready for Monday. (2) an email dated 12 February 2020 from Ms Coulter to Mr Puxty with subject "Re: Figures", which includes: We have both agreed that the Newcastle outstanding figure is $145k, albeit we both made errors in the calculations. We started this separation in good faith. The clear understanding up until yesterday was that you / you and Francis are responsible for Newcastle. Today, you indicated that you would not be responsible for the entire outstanding amount. This is a significant change and one that we had not previously discussed, nor agreed to. I hope that this is not the case. The monies that I am seeking will go some way into defraying the costs of running the business whilst you and Francis were employed. The agreed amount is $145k. How you fund that amount is between you and Francis to discuss. (3) a letter dated 11 November 2020 from Roelof Stols of Edge Legal, the respondents' solicitor, to Madison Marcus, Monarch's solicitors, in which Edge Legal responded to a request for particulars, it seems, of Mr Puxty's cross claim and expressed the view that the matter should proceed to mediation and then stated (as written): If that mediation does not succeed our client will immediately C. File and application for security for costs in the amount of $125k (Details to be provided in due course) D. bring and application to have your firm barred from representing Monarch because of a glaring conflict of interest Mr Stols says that Monarch did not respond to that letter and that it has not taken any steps to demonstrate an ability to pay its debts as and when they fall due or its ability to pay a substantial costs order. 16 Ms Coulter says that Monarch is not an impecunious party and would be able to pay any adverse costs order made against it. 17 In her first affidavit sworn on 23 December 2020 Ms Coulter puts into evidence: (1) a balance sheet for Monarch showing Monarch's net asset position as at 31 December 2018, 31 December 2019 and 31 December 2020; (2) business activity statements (BAS) for the nine quarters between 1 July 2018 and 30 September 2020. Ms Coulter notes that the total revenue in the BAS for the period 1 October 2019 to 30 September 2020 is $416,861; (3) profit and loss statements for the financial year ended 30 June 2020 and for the period 1 May 2020 to 31 October 2020, noting that the gross profit for the former period was $404,163.66 and for the latter period was $184,606.17; and (4) a copy of a bank statement for an account in the name of Monarch held with Macquarie Bank showing a closing balance as at 10 December 2020 of $73,447.18. 18 In a subsequent affidavit sworn on 18 February 2021 Ms Coulter gives evidence about the sale of Monarch's business. She says that this evidence was not included in her first affidavit because settlement of the relevant business sale agreement had not yet occurred. Her evidence is as follows: (1) in or about December 2020 Monarch entered into a non-binding term sheet with Newlane Risk Pty Ltd (Newlane) for the sale of its proprietary assets including goodwill and the Monarch trail book and business records (Term Sheet); (2) the Term Sheet set out the essential terms of the agreement to sell Monarch's assets to Newlane. In accordance with the Term Sheet Newlane agreed to pay the initial sum of $5,000 as a holding deposit and, on 10 December 2020, Ms Coulter in fact received the holding deposit; (3) on 21 December 2020, in her capacity as director of Monarch, Ms Coulter executed and exchanged a business sale agreement with Newlane. The purchase price for the sale of the Monarch business is made up as follows: (a) an initial cash payment of $504,000 inclusive of the holding deposit; (b) the deferred purchase price calculated subject to certain criteria and payable approximately 15 months from the date of the business sale agreement; and (c) an incentive payment payable approximately 15 months from the date of the business sale agreement, (collectively, Purchase Price); (4) Newlane was instructed to deposit the Purchase Price and the holding deposit into a bank account in Ms Coulter's own name. Ms Coulter intended for those funds to remain in an offset account for her mortgage; (5) on 2 February 2021 the business sale agreement settled and Ms Coulter received the sum of $499,000 being the remainder of the initial cash payment (see (3)(a) above); (6) between 12 February 2021 and 16 February 2021 Ms Coulter attended to two separate transfers in the amount of $95,000 from her own account to Monarch's account. She undertook the transfers in two transactions because her personal account is subject to daily transfer limits; and (7) as at 17 February 2021 there was a balance of $201,621.96 in Monarch's bank account held with Macquarie Bank. 19 It is somewhat surprising that, notwithstanding that Monarch had in fact entered into the Term Sheet and the business sale agreement by 21 December 2020, Ms Coulter did not depose to those matters in her first affidavit which was sworn on 23 December 2021.

legislative framework and relevant principles 20 Section 56 of the FCA Act relevantly provides: (1) The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. 21 Rule 19.01 of the Rules relevantly provides: (1) A respondent may apply to the Court for an order: (a) that an applicant give security for costs and for the manner, time and terms for the giving of the security; and (b) that the applicant's proceeding be stayed until security is given; and (c) that if the applicant fails to comply with the order to provide security within the time specified in the order, the proceeding be stayed or dismissed. 22 Section 1335 of the Corporations Act relevantly provides: (1) Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. 23 The principles which apply when considering whether the Court should make an order for security for payment of an applicant's costs of a proceeding are well settled. Those principles were recently summarised by Allsop CJ in All Class Insurance Brokers Pty Ltd (in liq) v Chubb Insurance Australia Limited [2020] FCA 840 at [40]-[44] where his Honour said: 40 Where the applicant is a corporation, the Court is empowered to order security for costs pursuant to s 1335 of the Corporations Act if "it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant". Once this threshold is met, the Court will turn to the matters relevant to the exercise of its discretion to order security for costs: Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; 98 ACSR 301. 41 Section 56 of the Federal Court of Australia Act does not expressly impose any threshold to be met before the Court considers the various discretionary matters. However, the applicant's inability to pay the costs of the respondent remains an important consideration in the exercise of the Court's discretion. 42 The Court's discretion to require the provision of security for costs is broad and the factors informing the exercise of that discretion cannot be stated exhaustively. The only limitation is that the discretion be exercised judicially: Bell Wholesale Co Ltd v Gates Export Corporation [1984] FCAFC 29; 2 FCR 1 at 3. The matter which lies at the heart of the discretion is one of fairness, both in terms of whether security should be granted, and if so, in what amount: Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 at 21 [92]. The Court aims to achieve a "balance between ensuring that adequate and fair protection is provided to the defendants, and avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings": Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 470 (Giles J). 43 The Court's discretion should be exercised having regard to all of the circumstances of the case (see Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; 193 CLR 502 at 513 [26] (Kirby J)). There are a number of well-established factors relevant to the Court's exercise. These include (see KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; 56 FCR 189 at 197-198 per Beazley J): whether the application for security for costs has been brought promptly; the strength and bona fides of the applicant's case; whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim; whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate; and whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security. 44 An additional factor to add to this list is whether there are aspects of public interest which weigh in the balance against the making of an order (see Equity Access Ltd v Westpac Banking Corporation [1989] FCA 520; ATPR 40-972 at 50,635 per Hill J). 24 In Beach Petroleum NL v Johnson, M.K. [1992] FCA 136; (1992) 7 ACSR 203 at 204 Von Doussa J said the following about the power of the Court to order security for costs under s 1335 of the Corporations Act: The power of the court to order security for costs under s 1335 is conditioned on the court being satisfied by credible testimony that there is reason to believe that the applicant corporations (ie Claremont and Beach) will be unable to pay the costs of the respondents if they are successful in their defence. Subject to that condition being fulfilled the section gives the court an unfettered discretion which is to be exercised having regard to all the circumstances of this case: see Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] 2 All ER 273 at 285; Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 4; 8 ACLR 588; Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 511. 25 At 204-205 his Honour said: Although s 1335 requires that there be reason to believe that the plaintiff corporation "will be unable to pay the costs of the defendant if successful" - and I emphasise "will be unable to pay" - the section does not, in my opinion, require that the court be satisfied, as a matter of probability, that every eventuality which could lead to eventual payment of the costs be excluded. The section would be satisfied if it appeared by credible testimony that there is reason to believe that if the defendant is successful circumstances may then exist in which the plaintiff will be unable to pay the costs. … A corporation "will be unable to pay" the costs within the meaning of the section if it can only do so if given extended time to realise assets which might be difficult to realise, at least at a price sufficient to provide a surplus over other liabilities, sufficient to pay the costs: see Southern Cross Exploration NL v Fire &All Risks Insurance Co Ltd (1985) 1 NSWLR 114 at 121. The company will also be unable to pay the costs within the meaning of the section if the payment would be one that will amount to a preference of the defendant over other creditors such that the payment would be liable to be set aside either as a preference or as a fraudulent disposition (that is a payment made by the plaintiff corporation with the intention to defeat or delay one or more other creditors) in the event of the plaintiff corporation later going into liquidation. When the court is required to make a judgment which anticipates future events the court of necessity is required to judge the degree of probability that a particular event might occur. The court can do no more than evaluate the chances: cf Malec v JC Hutton Pty Ltd (1990) 92 ALR 545. In my opinion the power of the court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the-defendant on service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security. 26 As to which party bears the onus of establishing for the purposes of s 1335 that there is reason to believe that the plaintiff or applicant will be unable to pay the costs of the litigation if unsuccessful, in Austcorp Project Number 20 Pty Ltd v LM Investment Management Ltd (in liq) [2014] FCA 1371 at [25]-[27] Gleeson J said: [25] Once it appears by credible testimony that there is reason to believe that a corporation will be unable to pay the costs of the defendant if successful in its defence, there is an evidentiary burden on the party resisting the order for security for costs to establish a reason why security should not be granted: Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 at [30] ("Wollongong City Council"), Topcide Pty Ltd v Charter Financial Planning Ltd [2010] FCA 1151 at [12] and Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd [2010] FCA 1222 at [9]. [26] Even so, the burden rests on the defendants, from first to last, to persuade the court that the order for security should be made: Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 at [21]. [27] In Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 at [18] to [20], Macfarlan JA said: The defendants contended on appeal that the primary judge erred in stating that the burden of proof rests upon applicants for security "from first to last": see [5] above. They submitted that this was contrary to the following statement of Beazley JA in [Wollongong City Council] at [30]: [30] Once the defendant has discharged the onus of establishing that there is reason to believe that the other party to the litigation will be unable to pay the costs of the litigation if unsuccessful, the onus shifts to the party against whom the order is sought (who I will refer as the plaintiff) to establish a reason why security should not be granted: KP Cable Investments v Meltglow [1995] FCA 76; 56 FCR 189; Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972; Pioneer Park v Australia and New Zealand Banking Corporation (2007) 65 ACSR 383; [2007] NSWCA 344; Prynew Pty Ltd v Nemeth [2010] NSWCA 94. I do not consider that there is an inconsistency, as alleged, as Beazley JA was in my view referring to the evidentiary (or evidential) burden shifting in the circumstances described to the party against whom security is sought. In fact, her Honour made that explicit in her earlier decision in Prynew Pty Ltd v Nemeth 28 ACLC 10-026; [2010] NSWCA 94 at [16] where in the same context she referred expressly to the evidentiary burden shifting. The expression "evidential burden" can be used in at least three senses: Strong v Woolworths Ltd [2012] HCA 5 at [46]-[64]. For present purposes, it is sufficient to say that it includes reference to the principle that in certain circumstances a party who does not bear the ultimate burden of proof may have to raise for consideration matters that favour it if it wishes them to be taken into account in the determination of the case. The evidential burden of raising a matter is thus distinct from the legal onus of proving entitlement to an order for security for costs which it is correct to describe as resting throughout on an applicant for such an order.

parties' submissionS 27 The respondents submit that, based on the evidence, Monarch is an impecunious corporate applicant and that there is sufficient credible evidence to believe that it will be unable to meet an adverse costs order. The respondents rely on Monarch's balance sheet prepared as at 31 December 2020 in relation to which they observe that there is no explanation as to how the balance sheet was prepared, it has not been audited and no one has verified its accuracy. In addition they submit that an analysis of the balance sheet shows that Monarch has in excess of $225,000 in liabilities and Ms Coulter has not explained whether those liabilities have been discharged. 28 The respondents submit that no comfort is provided about whether Monarch will be able to pay its debts particularly given that it has sold its business, no longer has a revenue stream and only has an amount of cash available to it. 29 The respondents submit that Monarch faces a number of difficulties with its claim which it describes as "weak" in the sense that, as pleaded, it raises numerous questions that need to be answered. The respondents contend that is a factor that the Court would take into account in exercising its discretion to consider whether or not it is fair to permit Monarch to continue to prosecute its proceeding with the potential risk that, if the respondents succeed, they will not be able to recover their costs. 30 Monarch raises three matters in response to the respondents' application. 31 First it says that the respondents have not discharged their onus and have failed to establish, by credible testimony, that there is reason to believe that Monarch will be unable to pay the respondents' costs. Monarch submits that there is no basis upon which the Court would find that it is impecunious and that, in fact, there is credible evidence that Monarch holds assets, namely cash at bank, to meet any adverse costs order. 32 Secondly, it submits that there is a real difficulty in attempting to divide the case between Monarch's claim and Mr Puxty's cross claim in which he alleges that the parties were, at some point, involved in a joint venture agreement which was subsequently breached by Monarch and claims damages. Monarch submits that the cross claim will require a determination of additional complicated factual matters and that Mr Puxty is therefore seeking the benefit of security for costs while also seeking to advance a cross claim against Monarch that is not defensive in nature. 33 Thirdly, Monarch submits that the Court does not have any proper evidentiary basis to order any amount of security for costs given the deficiencies in the evidence relied on by the respondents as to the quantum of costs for which security is sought.

consideration 34 The first issue to be determined is whether the respondents, who bear the onus, have established by credible testimony that there is reason to believe that Monarch will be unable to pay their costs if they are successful in their defence. Having considered the evidence before me for the following reasons I am not satisfied that they have done so. 35 Having regard to the matters set out at [15] above the respondents, who bear the onus on the application, have not led any evidence about Monarch's financial position. Their evidence goes no higher than to ask the Court to infer that Monarch will be unable to meet an adverse costs order because of comments made by Ms Coulter in two emails when trying to negotiate what seems to be a payout upon Messrs Puxty's and Coggan's departure from Monarch and the fact that Monarch did not respond to a letter which referred in closing, after addressing a number of other matters, to the filing of this application if a proposed mediation did not succeed. 36 Based on the evidence before me the respondents have never put to Monarch in correspondence or otherwise their basis for their belief that it will be unable to pay their costs of the proceeding if they are successful in their defence. That being so, it is difficult put any weight on Mr Stols' evidence that Monarch has not taken any steps to demonstrate an ability to pay its debts as and when they fall due or its ability to pay a substantial costs order. 37 On that basis there is no credible testimony led by the respondents based on which there is reason to believe that Monarch will be unable to pay their costs if they are successful in their defence of the proceeding. Nor, for the reasons set out below and to the extent they are permitted to rely on it, are the respondents assisted by the evidence led by Monarch. 38 Even assuming that the respondents had discharged their burden and established that there is reason to believe that Monarch will be unable to pay the costs of the litigation if unsuccessful, such that the evidentiary onus would then shift to Monarch, I would not be satisfied that the application for security should be granted. Put another way I would be satisfied that Monarch had established a reason why security should not be granted. 39 Monarch relies on a balance sheet, profit and loss statement, BAS statements and bank statements for an account in Monarch's name showing, most recently, an amount held well in excess of the amount sought by way of security. 40 As at 31 December 2020 Monarch had net assets of $897,343.93. While the respondents raised issues about the reliability of the figures included in the balance sheet they did not seek to cross-examine Ms Coulter about its contents or to otherwise challenge or contradict its contents by other forensic means. 41 In any event Monarch has sold its business. Ms Coulter's reason for not disclosing that fact in her first affidavit is questionable. However, the following is evident: the sale proceeds of $499,000 were paid into Ms Coulter's personal account, a matter which of itself would have caused some concern given that on the present evidence Monarch has sold its only valuable asset, i.e. its business, and seemingly has no ongoing revenue stream; thereafter, Ms Coulter transferred a sum of money, in excess of the amount now sought by the respondents as security, into an account in the name of Monarch held with Macquarie Bank; there are two further, albeit unquantified, payments due to Monarch approximately 15 months from the date of the business sale agreement; and Ms Coulter deposes that Monarch will be able to pay any adverse costs order notwithstanding the sale of its business. Once again I observe that Ms Coulter was not cross-examined and, despite Ms Coulter's initial payment of all of the proceeds of sale into her personal account which she reversed in part, there is no evidence of risk of dissipation of the funds held in Monarch's account. 42 That being so, the respondents' application cannot succeed. It is not necessary for me to consider whether, in the exercise of my discretion, Monarch should be ordered to pay security or the evidence given by Mr Stols of the quantum claimed as security.

conclusion 43 In light of the above, the respondents' application for security for costs should be dismissed. As the respondents have been unsuccessful they should pay Monarch's costs of that application. 44 I will make orders accordingly. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.