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[2011] VSC 526
Supreme Court of Victoria
2011-10-27
JUDD J
Original judgment source is linked above.
CORPORATIONS - Managed investment scheme - Group proceeding - Misleading or deceptive conduct claims - Common Questions - Costs - Final orders.
PRACTICE AND PROCEDURE - Group proceeding - Common Questions - Costs - Final orders.
Mr J W K Burnside QC with Mr P G Crennan and Mr C H Truong
Mr J B R Beach QC with Mr H N G Austin and Dr C O Parkinson
1 Reasons for judgment were published in this proceeding on 1 September 2011.[1] On that occasion the further hearing was adjourned to give the parties an opportunity to consider the form of final orders, and more particularly, review the Common Questions. At the time I expressed some doubt about the appropriateness and utility of some of the questions, having regard to the way in which the plaintiff advanced his case at trial. I also asked whether the parties required any further issues to be determined in this part of the trial, having regard to the findings already made. I was not invited to make any additional findings.
2 The parties have now had an opportunity to review the Common Questions and, with only a few exceptions, are in substantial agreement with the form and answers. My concerns are not, however, fully assuaged. Given that the parties wish to persist with answers to questions in relation to the plaintiff's claims for misleading or deceptive conduct, and the disagreement about the answer to question 12, I feel compelled to say a little more on that topic. These reasons should be read together with the reasons published on 1 September 2011.
3 The defendants seek their costs on a party-party basis, save for their costs referrable to the claims that were made by the plaintiff to the effect that, had proper disclosure been made, the relevant Timbercorp managed investment schemes would have been wound up, or the Australian Securities and Investment Commission would have intervened. Those costs are sought on an indemnity basis against the plaintiff's solicitors, alternatively the plaintiff and his solicitors. The defendants have assessed their entitlement to indemnity costs at 50 per cent of the total costs up to 9 February 2011 and 20 per cent thereafter. The question of costs will be dealt with below.
4 An issue also arose concerning proposed communications between Timbercorp Finance as lender, and group members as borrowers. Timbercorp Finance wishes to negotiate a resolution of its claims for outstanding loans directly with the borrowers. The plaintiff initially opposed any direct communication but the parties have now agreed on a mechanism under which such communications may take place.
5 Timbercorp Finance has prepared draft answers to the Common Questions, a draft notice under s. 33ZH of the Supreme Court Act 1986 and draft orders. The plaintiff is in agreement with the draft answers, the notice and the draft orders, save for paragraphs 10 and 11, which relate to costs.
6 The first defendant, Timbercorp Securities, is content with the form of the draft answers, the notice and the orders. It makes a similar application for costs to that made by Timbercorp Finance. The second to fourth defendants, the directors, are content with the draft orders and notice. They too wish to make an application for indemnity costs on the same basis as Timbercorp Finance.
7 The directors do not agree to the draft answer to question 12. Question 12 and the answer to which all other parties agree, are set out below.
(a) when were the PDS financial representations made?
(b) were the PDS financial representations misleading or deceptive?
The PDS financial representations lacked content and were not misleading or deceptive.
The directors submitted that question 12 invites a yes or no answer, but they propose that the answer should be,
The PDS financial representations were not made.
8 The difference between the position of the directors and Timbercorp Finance concerning the formulation of the answer to question 12, exemplifies the concern I had about the formulation of some of the questions. At trial, the plaintiff's case changed in some material respects. One change was the role and significance of the adverse matters. The way in which the plaintiff advanced his case had two material effects on his 'misleading or deceptive conduct' case. First, that case became subsumed within the 'defective Product Disclosure Statement' case, with the result that the relevant inquiry was whether Timbercorp Securities had complied with its disclosure obligations under Pt 7.9 of the Corporations Act 2001 (Cth).
9 Secondly, the changing status of the adverse matters created, or highlighted, a disconnect between some of the alleged representations and the corresponding allegation that a representation was false or misleading. There plaintiffs 'misleading or deceptive conduct' case was mercurial.
10 The central issue at trial was whether Timbercorp Securities was required to disclose, whether in a Product Disclosure Statement or supplementary statement, the structural risk as pleaded, and the adverse matters. At trial, the structural risk gave way to the financing risk, and the adverse matters underwent further change. I held the plaintiff to his pleaded case. He failed to establish his pleaded case and his new financing risk case.
11 In view of the plaintiff's reliance on the disclosure regime under Pt 7.9 of the Act, to found his claims for 'defective Product Disclosure Statements', it was inevitable that his 'misleading or deceptive conduct' case would lose relevance. The plaintiff conceded as much in final submissions, acknowledging a 'statutory carve-out' for conduct in relation to Product Disclosure Statements. He argued, however, that there was some remaining scope for a 'misleading or deceptive conduct' case, outside the operation of s 1022B of the Act, where there was conduct by silence, or where non-retail clients were involved, or insofar as the conduct of Timbercorp Finance was concerned.
12 Those contentions were, in my opinion, not sustainable. First, the conduct by silence case advanced by the plaintiff was 'in relation to' Product Disclosure Statements. The plaintiff's case for misleading or deceptive conduct by silence was based on the contention that the scheme members had a reasonable expectation that they would be informed of the adverse matters because there was a statutory obligation to do so.
13 Secondly, the case advanced at trial involved retail clients. Thirdly, it was the plaintiff's case that Timbercorp Finance was amenable to liability under s 1022B(3) of the Act.
14 The Act contains a comprehensive scheme to prescribe and regulate the disclosure obligations of a responsible entity such as Timbercorp Securities. The scheme prescribes what a Product Disclosure Statement must and need not contain; and the ongoing disclosure obligations of the issuer of such a statement. The scheme has created a self-contained external legal context[2] to the alleged representations and conduct. There would seem little scope for claims of misleading or deceptive conduct falling outside the scheme. That implicit, and entirely logical, limitation upon the scope of such claims is given statutory force in s 1041H(3)(c), which provides that 'conduct in relation to a disclosure document or statement within the meaning of s 1022A does not contravene' the prohibition on misleading or deceptive conduct in relation to a financial product in s 1041H(1). Section 1041K extends the operation of that limitation to exclude the Fair Trading Act; and s 12DA(1A) of the Australian Securities and Investments Commission Act 2001 (Cth) provides that the prohibition found in s 12DA(1) does not extend to 'conduct in relation to a disclosure document... within the meaning of s 1022A'.
15 In Bendigo and Adelaide Bank Ltd v Cairncross[3] Einstein J, referring to those provisions said:
The effect of all of those provisions is that misleading or deceptive representations in a disclosure document or statement within the meaning of s 1022A of the Corporations Act are regulated exclusively by Part 7.9 of the Corporations Act , in particular section 1022B and 1022C. Those sections limit the orders that can be made to orders against a "liable person" as defined in s 1022B(3).
16 In my opinion the liability of the defendants in relation to their disclosure obligations, to potential and existing investors in relevant schemes, fell to be determined by reference to their compliance with the statutory disclosure obligations in Part 7.9 of the Act. The plaintiff specified what he contended were the particular risks, information and events requiring disclosure. They were the structural risk as pleaded, the financing risk advanced at trial, and the various iterations of the adverse matters, as risks, information and events.
17 Question 12 is based on the allegations in paragraph 39 of the statement of claim in which the plaintiff alleges:
By reason of the matters alleged in paragraphs 12A to 12Q and 38A above, TSL represented to scheme members and prospective scheme members that:
(a) The financial circumstances of the Timbercorp Group were sufficiently strong that investors could reasonably expect that TSL would continue to manage each relevant recent scheme throughout its term;
(b) The principal risks associated with each relevant recent scheme were fully disclosed in the relevant PDS document.[4]
In paragraphs 12A to 12Q, the plaintiff pleaded his 'defective' statement case based on a failure to disclose the adverse matters. In paragraph 38A the plaintiff set out various statements alleged to have been made in the Product Disclosure Documents.
18 The representations alleged to have been made by Timbercorp Securities in paragraph 39 were converted into representations made by Timbercorp Finance to the following effect:
That the recent schemes were viable in the long term and that TSL and the Timbercorp Group generally were financially strong and reliable for the foreseeable future and that the principal risks associated with the relevant recent scheme were fully disclosed in the relevant PDS document.[5]
The different expressions of the representations (sufficiently strong vs financially strong) made the case even more elusive.
19 The plaintiff alleged that the financial representations were false or misleading in that, at all relevant times, from around February 2007:
(a) The financial circumstances of the Timbercorp Group were not sufficiently strong that investors could reasonably expect that TSL would be able to manage each relevant scheme throughout its intended term; and
(b) Each of TSL and TFL failed to disclose the adverse matters after they occurred as a substantial risk in connection with the relevant recent scheme.[6]
20 There followed allegations to the effect that the financial representations constituted misleading or deceptive statements in the Product Disclosure Statements; that the Product Disclosure Statements were defective; and that Timbercorp Securities, Timbercorp Finance and the directors were each a liable person under s 1022B(3)(b) of the Act.
21 These allegations invited the defendants to respond, as they did, by directing detailed evidence to management of the business risks, the state of mind of the board about the well-being of the Timbercorp Group, its future prospects, and in particular, their ability to respond to and manage the events that occurred in and after 2007, such as the tax announcement and the credit crisis.
22 Prior to trial the plaintiff had moved away from relying on the adverse matters as 'risks', by converting them to 'information'. At trial, they became 'events' which heightened the financing risk. According to the plaintiff, it was the impact of the event on the ability of the Timbercorp Group to borrow, raise capital and sell assets that required disclosure.
23 Having pleaded a representation to the effect that 'principal risks... were fully disclosed', the corresponding plea, to the effect that the representations were false or misleading, erroneously assumed that the adverse matters had the character of 'risks' requiring disclosure. By the conclusion of the trial, the plaintiff had moved from risks to information to events. That was one cause of the disconnect mentioned above.
24 A failure to disclose the adverse matters was also a foundation for the allegations in relation to the March and September 2008 reports to scheme members. In those reports the directors stated that nothing had occurred since the end of the reporting period that had significantly affected or may have significantly affected the operations of the schemes. Those representations were said to be misleading or deceptive because some or all of the adverse matters were not disclosed. Proposition 8 in the plaintiff's written outline of closing submissions confirmed, if confirmation were necessary, that the 'misleading or deceptive conduct' case depended on the failure of Timbercorp Securities to disclose the financing risk and the adverse matters.
25 I have found that Timbercorp Securities was not required to disclose the structured risk, the financing risk or the adverse matters, whether characterised as risks, information or events. In any case, insofar as the adverse matters were to be characterised as an event, they had in fact been disclosed or constituted generally available information. The tax announcement had been disclosed. The potential breach of loan covenants, and the going concern issue, had been disclosed. The global financial crisis was generally available information. As for the 'near insolvency' event, as formulated by the plaintiff, it was too vague and indefinite to require disclosure, whether as a risk, information or event. By the end of the trial the plaintiff seemed to abandon such of the adverse matters as occurred after the time of the last investment.
26 Thus, even before approaching questions of reliance and causation, the plaintiff's 'misleading or deceptive conduct' case, insofar as it was ultimately pressed, had foundered. By the conclusion of the trial, the case concept behind the pleaded 'misleading or deceptive conduct' case had undergone such significant changes that it had lost relevance.
27 I found that the alleged financial representation, to the effect that 'the financial circumstances of the Group were sufficiently strong', lacked content. As pleaded, it was too vague and uncertain to constitute an actionable representation. It was also pleaded as a representation about how things would be in the future. I found that the defendants had established reasonable grounds for their expressions of confidence in the Group's viability and strength.
28 As for the alleged representation, to the effect that the principal risks associated with the schemes were fully disclosed, I found that an investor was entitled to assume that the Responsible Entity had complied with its disclosure obligations. But that was not the end of the matter. The plaintiff had alleged that the financial representations were false or misleading because, from around February 2007, Timbercorp Securities failed to disclose the adverse matters after they occurred, as a substantial risk in connection with each relevant scheme.
29 But for the scheme contribution representations and the first limb of the financial representation (the financially strong representation), the plaintiff's case as pleaded relied upon a failure to disclose some or all of the adverse matters. Putting to one side the disconnect between representations and the matters relied upon to establish the proscribed conduct, the foundation for the 'misleading or deceptive conduct' case was substantially disposed of by the conclusions in relation to the status of the adverse matters and the disclosure obligations imposed on Timbercorp Securities. As risks, information or events, the adverse matters did not require disclosure.
30 Thus, if question 12 is to be answered at all, it should be answered as follows:
12(a) The representation alleged in paragraph 39(a) is too vague and lacks sufficient content to constitute an actionable representation.
In relation to the representation alleged in paragraph 39(b), an investor was entitled to assume that the Responsible Entity had complied with its statutory obligations in relation to the disclosure of risks. A representation in the terms alleged was not made.
(b) In relation to the representation alleged in paragraph 39(a), insofar as a PDS represented that that TSL would be able to perform its contractual obligations to manage each relevant scheme, there were reasonable grounds for making such a representation.
In relation to the representation alleged in paragraph 39(b), TSL was not required to disclose the adverse matters after they had occurred as a risk in connection with each relevant scheme.
31 The answer to question 22, in relation to the liability of TFL, should reflect the answer to question 12. Thus,
22(a) The first part of the representation alleged in paragraph 42 is too vague and lacks sufficient content to constitute an actionable representation.
In relation to the second part of the representation alleged in paragraph 42 an investor was entitled to assume that the Responsible Entity had complied with its statutory obligations in relation to the disclosure of risks. A representation in the terms alleged was not made.
(b) In relation to the first part of the representation alleged in paragraph 42, insofar as a PDS represented that that TSL would be able to perform its contractual obligations to manage each relevant scheme, there were reasonable grounds for making such a representation.
In relation to the second part of the representation alleged in paragraph 42, TSL was not required to disclose the adverse matters after they had occurred as a risk in connection with each relevant scheme.
32 I have also reflected on question 26, which concerns the March and September 2008 representations, because of its dependency on non-disclosure of the adverse matters. While a more elaborate answer may in some respects be more satisfying, and meaningful, I propose to adopt the answer proposed by the parties.
33 I am not persuaded that an order for indemnity costs should be made against the plaintiff or his solicitors.
34 The defendants' application for indemnity costs was based upon the contention that the winding up claims had been made without any evidentiary foundation, and that a legal representative, acting with reasonable competence, would have known this to be so.
35 The principles to be applied by a court when called upon to make a special order for indemnity costs against a party or their legal representatives were not in dispute. The defendants referred to Apollo 169 Management Pty Ltd v Pinefield Nominees Pty Ltd,[7] Steindl Nominees Pty Ltd v Laghaifar,[8] Fountain Selected Meats (Sales) Pty Ltd v INT Produce Merchants Pty Ltd[9] and Cook v Pasminko (No 2).[10] They also called in aid s 29 of the Civil Procedure Act 2010 which expressly authorises the court to make orders for costs where there is a contravention of an overarching obligation. The defendants relied upon the requirement that there be a proper basis for a proceeding [s 18]; to cooperate in the conduct of a proceeding [s 20]; and to narrow issues in dispute [s 23].
(a) ...
(b) ...
(c) The plaintiff and the Group Members would have exercised the right to convene a meeting of the relevant scheme and pass a special resolution in accordance with the relevant Constitution in the Corporations Act that the relevant scheme be terminated;
(d) the plaintiff and the Group Members would have applied to wind up the schemes pursuant to section 601MD of the Corporations Act;
(e) ASIC would have taken steps to investigate and exercise its powers under Chapter 5 of the Corporations Act, including its powers under sections 601FN and 601MD of the Corporations Act.
And thereby the plaintiff and the Group Members would have avoided loss and damage.
...
(a) ...
(b) ...
(c) The plaintiff and the Group Members would have exercised the right to convene a meeting of the relevant scheme and pass a resolution in accordance with the relevant Constitution and the Corporations Act that the relevant scheme be terminated;
(d) the plaintiff and the Group Members would have applied to wind up the schemes pursuant to sections 601MD of the Corporations Act;
(e) ASIC would have taken steps to investigate and exercise its powers under Chapter 5 of the Corporations Act, including its powers under sections 601FN and 601MD of the Corporations Act.[11]
37 The preface in paragraph 72 makes mention of 'matters alleged in paragraphs 45, 54 and 56 above; although it is not clear what was to be made of those paragraphs. Paragraph 45 contains allegations to the effect that the financial representations mentioned above were false or misleading; paragraph 54 is an allegation that the scheme contributions were false or misleading; and paragraph 56 alleges knowledge of the adverse matters. The reference to those paragraphs in the preface is unhelpful and confusing.
38 In summary, the defendants submitted that the plaintiff's solicitors knew that the voting members had overwhelmingly rejected a proposal that the relevant schemes be wound up. They submitted that it was obvious that Group members could not succeed in establishing that option as a pathway to compensation. The plaintiff, Mr Woodcroft-Brown, and the early schemes representative, Mr Van Hoff, had voted against winding up proposals in relation to their schemes; and Mr Woodcroft-Brown expressly disavowed the 'winding up' option when he gave evidence, notwithstanding its inclusion as an option in his witness statement.
39 The defendants criticised the plaintiff for failing to advance any evidence in support of that allegation in paragraphs 35 and 72 of the statement of claim, where reliance was placed upon the possibility of winding up schemes as a basis for the contention that Group members would have so acted to avoid further loss.
40 There is no doubt that the viability of 'winding up' claims was to be explored in the first part of the proceeding now completed. Directions to that effect were made at a time when Timbercorp Finance had submitted that the plaintiff's case on behalf of the early investors (pre-February 2007) was untenable.
41 The evidence given by Mr Van Hoff (an early investor and a recent investor) may have been intended to enable the court to make relevant findings on Common Questions in relation to the early schemes. Unfortunately, Mr Van Hoff's evidence did not go so far as to directly address the issue. While identifying the option of winding up as one possibility, he said that he would have sought advice from his financial advisors. His own conduct, in voting against winding up, seemed to militate against that option as a credible alternative course that he might have adopted.
42 Senior counsel for the plaintiff said that there were Group members who would have advanced such an option. He went so far as to say that some of the 35 witnesses who were initially proposed to be called by the plaintiff in this part of the trial would have said that they would have tried to have their schemes wound up. He submitted that the plaintiff's attempt to limit the scope of the first part of the trial, by reducing the number of witnesses, had achieved a significant practical benefit to the parties and the court by reducing the volume of evidence. That is no doubt correct. The plaintiff was encouraged to call only so many witnesses as would raise the Common Questions, recognising that issues of reliance were uniquely individual.
43 It seems to me that the nature of this proceeding, the way in which it has proceeded thus far, and the assurance given by senior counsel mentioned above, all militate against making an order for indemnity costs on the basis advanced by the defendants. It is unfortunate that the question of the viability of the 'winding up' case, having been challenged well before the commencement of the trial, did not result in the plaintiff and his solicitors, acting on behalf of the group, putting their best foot forward on that issue. But in a group proceeding, in which only two group members have given evidence, it seems inappropriate to make a special order as to costs on the assumption that no other group member would have advanced a case along the lines of the pleaded case.
44 While I have expressed real concern about the way in which the plaintiff pleaded and advanced his case, I do not think that a representative plaintiff in a group proceeding should be penalised for alleging a range of possible options which might have been pursed by other Group members, provided there was a proper basis for making the allegation in the first place. While it is unfortunate that the winding up issue was not properly exposed by evidence, as was anticipated, I am not prepared to find that the plaintiff (or his solicitors) had no basis for making the allegation.
45 I propose to make an order that the plaintiff pay each of the defendant's costs on a party/party basis. Accordingly, I will make the following declarations and orders, allowing for appropriate dates to be inserted in paragraphs 12(a) (b) and (c).
(a) the order in paragraph 4 below answering questions 29(c), (d) and (e) in the questions to be determined as set out in Annexure A only affects the Plaintiff and Francis Jeremy Van Hoff;
(b) the order in paragraph 4 below answering questions 29 (f), (g) and (h) in the questions to be determined as set in Annexure A below only affects Group Members who are and/or were members of the Woodcroft-Brown Schemes (including the Plaintiff) and the Sample Group Member Schemes (including Francis Jeremy Van Hoff) as defined in Annexure A.
(a) by [date] 2011, the First Defendant is to provide the names and street or post office box address details of investors on the First Defendant's member registers for each of the schemes the subject of this proceeding (Registers) to the Plaintiff's solicitors;
(b) by [date] 2011, the Plaintiff's solicitors are to send a copy of the Judgment Notice to each of the investors listed in the Registers by posting it by ordinary pre-paid post to the address appearing in the Registers; and
(c) the Plaintiff's solicitors are to cause a copy of the Judgment Notice to be published in the edition of 'The Australian' newspaper (weekend edition) to be offered for sale on [date] 2011, such copy of the Judgment Notice to be published in the said newspaper in a size not less than 200 millimetres by 300 millimetres.
[2] See generally Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 225.
[3] [2011] NSWSC 610, [54].
[8] [2002] QSC 400; [2003] QdR 683, 689 [24].
Woodcroft-Brown
Timbercorp Securities Limited
(1982) 149 CLR 191
(1988) 81 ALR 397
(2000) 107 FCR 44