Nommack (No 100) Pty Limited v FAI Insurances Limited

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT 13048/91 FILE NUMBER(S) : LOWER COURT Malpass M JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FAI INSURANCES LIMITED (IN LIQUIDATION) ( Respondent )

JUDGMENT 1 BURCHETT AJ: This is an appeal from a decision of Master Malpass, who refused to grant leave to the plaintiff (the appellant) to proceed against the defendant (the respondent) in proceedings which were already on foot in this Court at the times when, first, the provisional liquidation of the respondent commenced, and secondly, the respondent was placed in liquidation. Leave to proceed had been sought pursuant to section 471B of the Corporations Act 2001 (Cth). 2 It is established in New South Wales that an appeal from a Master to a judge of the Court against a discretionary decision is governed by the principles laid down by the High Court in House v The King (1936) 55 CLR 499 at 504-505: "But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred ".

That this applies to an appeal from a Master's exercise of discretion is affirmed by a series of cases of which it is sufficient for present purposes to cite Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 and RT & YE Falls Investments Pty Ltd v State of New South Wales (1998) BC 9802115 (Santow J). 3 Nevertheless, in an interlocutory appeal from a Master, there is a discretion under s.75A (7) of the Supreme Court Act 1970, which is not controlled by any need to find special grounds under s.75A (8), even apart from s.75A (9), to "receive further evidence": Wickstead v Browne (1992) 30 NSWLR 1 at 11, per Handley and Cripps JJA (with whom, relevantly, Kirby P agreed at 4-5); Hartigan v International Krishna Consciousness [1999] NSWSC 139. That must mean, in an appropriate case, that the interlocutory determination can be varied or reversed, not only upon the principle expounded in House v The King (which was not interlocutory in nature - it involved the sentence for a crime), but by virtue of the reception of the further evidence; otherwise, there would be little point in its admission. For if the evidence could only be utilised where there existed an error of principle in the decision made below, its use would be limited to cases where it was hardly needed, or needed simply on subsidiary or consequential issues, since that decision was already liable to be set aside, and the wide terms of s.75A(7) would be somewhat illusory. 4 In the present case, certain evidence that was advanced upon cross-examination seems to have impressed the Master, for he discussed it at some length immediately before stating his conclusion that the appellant had failed to discharge the onus of showing it should be allowed to depart from "the proof of debt process". At the hearing before me, this evidence was answered both by a fresh affidavit and by certain matters (including an open offer) stated from the bar table. As I shall explain when I examine the Master's reasons in detail, I have concluded that his decision was affected by relevant error, but if it were not, the importance apparently given to the issue on which new light has now been thrown would require me, applying the principle of Wickstead v Browne and Hartigan v International Krishna Consciousness, to re-examine the question of granting relief to the appellant. 5 Before turning to the Master's reasons, I should provide a brief outline of the history of the case, which is to be found set out in the opening paragraphs of the judgment of McClellan J in an earlier application, to which I shall refer. On 31 March 1988, the document was created which is sued upon as a contract alleged by the appellant, as plaintiff, to have been breached by FAI Insurances Limited (now in liquidation), the defendant. This alleged contract involved the grant by the defendant of a put option to the plaintiff for a purchase price of $370,000,000 in respect of a Sydney development which has since taken place. The defendant's fee was $12,950,000. Upon the breach of the contract for which suit is brought, deposits of $5,960,000 are alleged to have been lost, together with the opportunity to earn a vast profit. The plaintiff sued in May 1991 in the Commercial Division, its claim being transferred in the same month to the Common Law Division. The plaintiff agreed to an order staying the matter until it provided security for costs in the sum of $20,000, and the proceedings remained in abeyance because it was unable to do so, the shareholder to whom it had previously looked for funds having died. In 1995, the plaintiff was deregistered for failure to lodge annual returns. On 15 June 1999, the plaintiff was restored to the register; on 20 April 2000 the $20,000 security was lodged; and at that time the plaintiff filed a motion seeking directions. The funds had been supplied by a Mr Wong, who became a director. The defendant's response was a motion, filed 15 June 2000, seeking the dismissal of the proceeding for want of prosecution. That motion was dismissed by Master Harrison on 1 September 2000, her decision being then challenged by the defendant by an appeal the hearing of which was delayed by factors relating to the defendant, so that its dismissal by McClellan J did not occur until 23 August 2001, a year and four months after the plaintiff had paid the security and taken out its motion for directions in order to progress the matter. 6 In the meantime, the defendant was placed in provisional liquidation on 15 March 2001, and its eventual liquidation, four days after McClellan J's decision, had become inevitable. So leave to proceed under s.471B was now required, and it was sought promptly, on the day of the decision. McClellan J was alive to this requirement, and directed the plaintiff to file and serve its motion. But his Honour does not appear to have envisaged any difficulty arising in that regard, since he referred to the "complexities" of the issues and said: "I should emphasise the necessity for the parties now to pursue the matter with vigour, so that it can be prepared for hearing at the earliest date which the Court can provide". It is plain that, at a hearing at which any suggestion the action was futile would certainly have been relevant to the discretion his Honour was exercising (see the remarks of Bryson J in Hartigan v International Krishna Consciousness at [7] and [16]), he did not regard the case as falling into some category of that kind. However, his Honour's views do not appear to have been noticed at the subsequent hearing before the Master, nor was weight given to the fact that the plaintiff's delay in meeting the requirement to pay security had been expressly held by Master Harrison and McClellan J to be "not inexcusable". 7 The Master, in his reasons, recited a number of the circumstances which had led to the application before him, and referred to the very large deficiency estimated in respect of the respondent ($665,000,000) and the even larger deficiency estimated in respect of the HIH Group to which it belonged. He indicated the dividend may be below 5 cents in the dollar, and noted "no payment is likely before about two years". The Master considered a grant of leave would have "an impact on unsecured creditors", in particular, because the "liquidators would be put to the expense of defending the action and be placed at risk of an adverse costs order", and because of the "distraction" of a hearing. To this proposition, the Master added that legal advice had not yet been sought by the liquidators in respect of the claim, nor were they able to estimate when they would be able to assess it, which they would do with other claims, but not in the next twelve months. 8 Without having referred, up to this point, to the special nature of this claim in contrast to ordinary insurance claims; its complexity and size; the question whether there was any real prospect a proof of debt in respect if it would be allowed, or the extent to which the risk as to costs which he had mentioned would also be involved in any pursuit of a proof of debt through an appeal or could be alleviated by an order for security; or the extent to which much of the alleged distraction could be avoided by the seeking of appropriate legal advice, the Master then turned away ( in para 16 of his reasons) to state: " There are other factors which the plaintiff emphasises as being relevant to the exercise of the court's discretion in its favour. I shall now deal with certain of them ". 9 The first factor favouring the appellant to which reference was made was the commencement of the proceeding prior to the liquidation (in fact ten years before), the delay for a number of years thereafter being attributable to the very loss of deposit money allegedly caused by the respondent, to the death of the company's then financial backer and shareholder and to its consequent difficulty in arranging the security for costs required. The Master noted the financial problems were "said [to] have been resolved", and the subsequent delays were "said" to have been "by reason of matters outside the control of the plaintiff". Of course, they actually lay at the respondent's door - by reason of its failed application and appeal, and its liquidation, to which the Master did refer. 10 The Master describes the claim as "said" to be "one appropriate for determination by a court", although this description is then firmed up by the comment that the "submission does not seem to be in dispute". Nevertheless, later in the reasons, ambiguity is restored by a reference to the proposition that, to merit leave, the claim would have to be "reasonably arguable", on which issue the Master says the "liquidators join issue", and he concludes: "[I]t seems to be accepted that the court is not really in a position to assess the prospects of success of the plaintiff's claim. However, for the purpose of this application, I will assume (emphasis added) that it is not unarguable". I should note at once that, before me, senior counsel for the liquidators did not hesitate to acknowledge in argument: "It is accepted there is an arguable case". Once it is accepted there is an arguable case, in all the circumstances, that means, plainly, there is "a serious claim and a real dispute", to use the formulation held sufficient by a Full Court in Vagrand Pty Limited (in liquidation) v Fielding (1993) 41 FCR 550 at 557 (see also Re Coastal Constructions Pty Ltd (in liq) (1994) 13 ACSR 329 at 332). 11 The Master now refers briefly to the size and nature of the claim as features it is "said" to have. 12 Then comes paragraph 22 of the reasons, an important passage: " The plaintiff says that there is a real prospect that the proof of debt would be rejected and it would be necessary for it then to have to approach the court by way of appeal. There would be further delay. The liquidators do not dispute this contention but stress that this must be seen in the context of the plaintiff's own lengthy delay and the lack of good reason to depart from the statutory procedure ".

It is immediately following this paragraph that reference is made to the liquidators' denial that the "claim is reasonably arguable", a denial giving weight to the prospect that a proof of debt in respect of such a claim would in fact be rejected. 13 Before I discuss this point further, I make mention of the concluding paragraphs of the reasons, which appear to be subsidiary to the initial proposition that a grant of leave would have an impact on unsecured creditors, and to the later proposition in paragraph 22. For they are introduced by the words: "For completeness, I should refer to other matters which were the subject of consideration during the hearing". Those "other matters" may be summarised as: the small progress that has been made in the action since 1991; the number of interlocutory steps that would have to be taken - discovery, interrogatories, preparation of affidavits or statements including some of an expert nature (presumably the Master had in mind accounting or like evidence on the issue of damages when he referred to experts, but otherwise he had in mind his conclusion that "there are indications that all aspects of the claim may be put in issue", a conclusion further emphasising the likelihood that the substitution of a proof of debt procedure would lead to a rejection of the proof of debt necessitating an appeal to the court); and the questions (apparently regarded as significant, since they were discussed at some length), to which I shall return, whether protection was available to the liquidators in relation to the recovery of the costs of a successful defence of the action, and whether the appellant was willing to provide further security for those costs.

14 Finally, the Master referred (for the third time in this relatively short judgment) to the onus borne by the appellant, as follows: " The task of the court is to look at the particular circumstances of this case and decide whether or not the onus has been discharged. In my view, when that exercise is performed the plaintiff has failed to discharge the onus ". 15 I have outlined the Master's reasons at what might be thought inordinate length because of the nature of a major submission put to me by counsel for the appellant. For the same reason, and not in any pedantic spirit, I have made reference to the many occasions on which the Master stated a matter favouring the appellant as something "said" on its behalf, without expressing a finding on it. The point made by counsel is that, so he contends, the reasons set out a long series of considerations without giving any clear indication of the weight accorded to them, finally leaving the appellant unaware of the basis on which its application was refused. It is true the Master said it had not discharged the onus, but as to which facts, or in relation to the acceptance of what evidence, is not explained. Rather, the Master seems to be using the expression "whether or not the onus has been discharged" as meaning whether or not, in all the circumstances which had been shown at a contested hearing by evidence not rejected as false, he was persuaded to exercise his discretion to grant leave. Nowhere in the reasons is there any discussion of the applicable case law which must guide the court in the choice that discretion requires it to make. And, powerful factors favouring the appellant having been put forward, the reasons simply fail to reveal why those factors did not prevail. 16 If I were to read the Master's reasons in the way in which this contention claims they should be read, the argument would have great appeal. In Sohn v Minniti [2002] WASCA 263 at [4], it was declared by a Full Court of the Supreme Court of Western Australia: " A fundamental obligation of a court, in stating its reasons for judgment, is to explain the basis on which it reaches its decision ".

However, while seeing the force of the argument, I have arrived at the conclusion that the better reading of the reasons does disclose the grounds of the decision, although only in a sense that, in my opinion, involves error. 17 Paying due regard to the structure of the Master's reasons, and the way in which (as I have indicated) certain sections of them are introduced, I think it is reasonably clear that he put the weight of his decision very largely on three factors: what he saw as the "impact on unsecured creditors" (substantially, the expense of litigation and its disruptive effect); the appellant's delay; and "the lack of good reason to depart from the statutory procedure". The effect he gave these matters explains the perfunctory notice given to a number of issues mentioned only as matters which were said to have arisen. 18 But so to approach the task of decision was to leave out of account major considerations endorsed by high authorities which were simply not applied. This appears most clearly, perhaps, in para 22, which I have quoted, where the Master rejects the significance of a very important factor, according to the authorities, for two reasons, one of which is a delay that had already been the subject of litigation in which another Master, affirmed by a Judge, had made findings about it suggesting it was excusable, and the other of which plainly begs the question to be decided and ignores a leading case on the very issue under discussion. That leading case is Capita Financial Group Ltd v Rothwells Ltd (1989) 15 ACLR 348, an often cited decision of Rogers CJ in Comm. Div, which involved a number of the considerations on which the appellant relies. In particular (as appears at 352), his Honour, who granted leave to proceed, regarded the conjunction of the commencement of proceedings before the liquidation, the seriousness of the issue to be tried, uncertainties about the course of the liquidation, and the likelihood of a refusal of a proof of debt bringing in its train an appeal against that refusal, as calling in principle, in all the circumstances, for a grant of leave. Of course, a case stands for the principles it decides; it is not a template to which later cases must be fitted. But the discussion by the learned judge emphasises the effect of the factors mentioned in point of principle. What is significant here is the factor (stated at 352) that "it will be necessary for the plaintiff in this action to appeal against a refusal of its proof of debt, unless there is a determination of its entitlement in these proceedings". At the same time, his Honour disposed (at 353) of the submission that the case would be a distraction in the liquidation by pointing out that the work on the case would be "undertaken by the legal advisers to the provisional liquidators", an answer to this difficulty which was also given by Hunter J in Ibbco v HIH [2001] NSWSC 346 at [34] and [35] and plainly requires to be weighed before the difficulty is treated as insurmountable. 19 Similarly, in Ogilvie-Grant v East liquidator of Gordon Grant and Grant Pty Ltd (1983) 7 ACLR 669 at 672, McPherson J, a distinguished authority in this area of the law, speaking for the Full Court of the Supreme Court of Queensland, stated the "circumstances in which leave to proceed may be appropriate" as including "factors such as the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed". The most obvious significance of the first two of these is their relevance to the likelihood that court determination will be required. In such cases, it is necessary to remember also McPherson J's comment (ubi supra) that the question of leave is "reduced largely to one of choosing between alternative forms of procedure". The propositions I have quoted are taken from a passage which has been cited as authoritative in subsequent decisions on numerous occasions, including in Vagrand Pty Limited (in liquidation) v Fielding at 555-556; Ibbco v HIH at [20]; and Meehan v Stockmans Australian Cafe (Holdings) Pty Limited (1996) 15 ACLC 62 at 66-67. In the last mentioned case (at 67), Lehane J, citing Capita Financial Group Ltd v Rothwells Ltd, expressly added to McPherson J's short list of factors favouring a grant of leave the case where the company in liquidation is indemnified by insurance, and then said: "[L]eave is likely also to be granted where it is clear that the liquidator will reject the claim so that, if the claimant wishes to press it, an appeal to the Court is inevitable".

Bearing in mind the matters already mentioned as to the liquidators' attitude, including the finding of the Master in para 22, and the comments of Hunter J in Ibbco v HIH at [32], especially [35], and [40], I think this case plainly is one falling within his Honour's dictum. To like effect is the judgment of Weinberg J in BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd (1998) 16 ACLC 1539, where his Honour said (at 1544): "The amount and seriousness of the claim and the degree and [ scil . of] complexity of the legal questions involved all tell in favour of this matter proceeding to judgment rather than being dealt with by proof of claim in the winding up. If leave were refused, and a claim pursued, it is likely that it would be rejected by the liquidator and an appeal from his decision would therefore be initiated in any event - see Capita Financial Group Ltd v Rothwells Ltd (No 2) (1989) 7 ACLC 634".

It should also be noted that the decisions on this point of Rogers CJ in Comm Div, Lehane J and Weinberg J are not in any way outside the general principles that have been laid down, as will be clear if the standard text McPherson on The Law of Company Liquidation , 4 ed. (1999) edited by A R Keay, is consulted at 254-256. Among several relevant observations, the statement will there be found: "If a claim is significant and of a kind that should proceed to action by judgment rather than being dealt with by proof of a debt in the winding up, then leave may be granted….There may also be a granting of leave where there is evidence to suggest that the creditor's claim would be rejected and an appeal from the liquidator's decision would follow". 20 In a case where litigation is inevitable, a further factor favouring a grant of leave must be the existence of reason to think discovery and/or interrogatories will be required, and that the issues may need to be clarified by pleadings, although, of course, it is possible for special directions to be given upon an appeal from the refusal of a proof of debt. Cf. Vagrand Pty Ltd at 553. 21 Apart from delay (so far as that could be attributed to the appellant), and the Master's failure to see the features of the case that I have been discussing by reference to the case law as "good reason to depart from the statutory [ie. proof of debt] procedure", of which good reason he seemed to say there was a "lack", the other matter I have identified from the judgment as moving the decision was the "impact on unsecured creditors" by the expense and disruptive effect of the proceeding. I have already made reference to a number of questions raised by this point, and to authorities where its effect in a case of this kind has been somewhat discounted. An aspect of it, however, which the Master dealt with at some length, and to which he appeared to give weight, was the failure of the appellant to offer further security for costs and the prospect, raised by evidence given by its solicitor under cross-examination, later qualified in re-examination, that an application for further security, if made by the liquidators, would be opposed. During the hearing, the solicitor was unable to obtain instructions upon any specific proposal in that regard, and he may be thought to have been entitled to see the question as one for the court, which could impose a condition upon a grant of leave, or make orders for the provision of security (perhaps in stages) during the ordinary course of the procedures the pursuit of the action, following a grant of leave, would entail. It would be different if there were a basis for concluding that the appellant would not comply with orders for further security, if made, so that a grant of leave would be a futility. But, in fact, the evidence was that, since Mr Wong's appointment as a director, the appellant had met the only order for security and had paid its solicitor a substantial amount of costs. It would have been wrong, in the circumstances, had the Master given any great weight, adversely to the appellant, to the question of security for costs when considering whether to grant leave. 22 However, since the hearing before the Master, the appellant's advisers have been able to obtain further instructions, and fresh material was put before me on the issue of security for costs. As I pointed out early in my outline of the case, s.75A of the Supreme Court Act authorises the court to receive further evidence, in its discretion, upon an appeal of this kind. In all the circumstances, including the way the question arose in cross-examination at the hearing before the Master, I considered it appropriate to exercise my discretion in favour of receiving the fresh evidence, notwithstanding that it was only sought to be adduced at a late stage. That evidence included an affidavit of Mr Wong attesting the appellant's preparedness "to lodge additional security with the Court in the amount of $80,000.00 as security for costs if the Court so orders". A total of $100,000.00 (the original $20,000.00 plus a further $80,000.00) would be well in keeping with the respondent's own evidence of what it contends would be required. In argument, counsel for the appellant added to this material that he had instructions to submit to any order the court might see fit to make as to security for costs. 23 During the course of the argument, counsel for the appellant also made an open offer to consent to a stay for six months as a condition of a grant of leave and to consent to a separation of the issues of liability and quantum if the respondent so desired. This offer was not accepted at the hearing. 24 I have reached the conclusion that the decision of the Master was affected by error within the principle in House v The King for the reasons I have explained, and independently of that it should be reconsidered upon the whole of the evidence including the fresh evidence, which does cast a new light on an aspect of the matter that was significant to the Master's exercise of discretion. The discretion then falls to be exercised by me. Having regard to the considerations I have discussed, in all the circumstances, and especially because the matter is very likely to require court determination in any case, I grant the appellant leave pursuant to s.471B as sought. The open offer having been refused, and my decision delayed by what appears to have been a failure of communication between the parties and the court as to the inability of the parties to reach a suggested resolution, I do not see any reason to impose any stay at this stage. But it is a condition of the grant of leave that the appellant, if notified within 28 days from the date of the order that the respondent so elects, will consent to a separate hearing of the issues related to liability, so that all questions of the quantum of damages may be deferred to a convenient time after any finding of liability. The appellant at the hearing also indicated its agreement to a further condition that, should it be successful at a separate trial of the issue of liability, the issue of quantum might be dealt with by the submission of a proof of debt in respect of the liability established. If the respondent elects to pursue the course suggested, an appropriate further condition could be proposed when short minutes are brought in. I have referred to the statement of counsel that the appellant submits to any order for security for costs the court sees fit to make. A form of order is proposed in the amended Notice of Appeal. But the nature of an appropriate order would obviously be likely to be affected by a separation of issues. The short minutes to be brought in should provide accordingly. As well, of course, they should contain the usual condition staying enforcement of any final order in the proceeding without the further leave of the court.

25 The usual order in such a case is that the costs of the application for leave to proceed be costs in the cause: Re Coastal Constructions at 336. I think that order should be made in respect of the application to the Master. Although the appeal was fully contested, the appellant's counsel indicated at the hearing he would be content with the same order in respect of the costs of the appeal and I so order. I direct the appellant to bring in on a date to be fixed short minutes of orders appropriate to reflect these reasons.

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