Plaintiff v Defendants

Supreme Court of Victoria|2013-11-22|Before: SIFRIS J

PRACTICE AND PROCEDURE - Application to join additional defendants and further amend Statement of Claim - Whether cause of action disclosed - No cause of action disclosed - Otherwise inappropriate and inconvenient to join proposed defendants.

For the proposed Sixth, Seventh and Eighth Defendants

2 In late January 2012, the Receivers sold the Shares for about $250 million to Apache Fertilisers Pty Ltd ('Apache Fertilisers') and Yara Australia Pty Ltd ('Yara') (together 'the Purchasers').

3 The plaintiff claims that the Receivers did not obtain a proper price for the Shares and thereby failed to act in good faith. He alleges further that by selling the Shares to the Purchasers, the Receivers put themselves in a position of conflict of interest and that they preferred their own interests to those of the plaintiff. Finally, it is alleged that the Receivers wilfully or recklessly sacrificed the plaintiff's interests, acted in a manner unfairly prejudicial to the plaintiff and failed to exercise all reasonable care.

4 As against ANZ, the plaintiff alleges that ANZ controlled the sale process and that the Receivers acted in accordance with the instructions of ANZ.

5 Similar claims (and further and additional claims) are made by the plaintiff's wife, Radhika Oswal, in a related proceeding. Mrs Oswal was the owner of 35% of the shares in YPHL.

6 At present the claim is confined to the Receivers and ANZ.

7 By summons filed 17 September 2013 the plaintiff makes application pursuant to r 9.06 or r 9.02 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') to join the following parties as additional defendants to the proceeding and to amend the Statement of Claim accordingly. The proposed added parties are:

Apache Corporation.
Apache Northwest Pty Ltd ('Apache Northwest').
Apache Energy Ltd ('Apache Energy').
Apache Fertilisers
Yara
YPHL.
Yara Pilbara Fertilisers Pty Ltd ('YPFPL').

8 The application is opposed by the existing defendants and the proposed added defendants. The main contention is that no cause of action is disclosed against any of the proposed added parties.

9 Yara owned the remaining 35% of the shares in YPHL. YPHL owned all the shares in YPFPL, which operated and continues to operate an ammonium nitrate plant located on the Burrup Peninsula in Western Australia.

10 YPFPL entered into a Gas Sale and Purchase Agreement ('GSA') on 17 December 2001 with various gas sellers that included Apache Northwest. The plaintiff alleges that the GSA was a valuable asset of YPFPL.

11 Apache Northwest issued a force majeure notice to YPFPL under the GSA on or about 23 November 2006 ('the Notice'). YPFPL disputed the Notice and, in about July 2009, proceedings were commenced in the Supreme Court of Western Australia in relation to the gas sellers' obligations to supply gas for the full term of the GSA and the proper construction of that agreement ('the GSA Proceeding').[1] By a further letter dated 22 December 2010 to the Receivers ('the Letter'), Apache Northwest maintained its claim as set out in the Notice.

12 In December 2008, YPHL executed a term sheet with Yara International ASA for the construction and operation of a technical ammonia nitrate plant located on the Burrup Peninsula ('TAN Plant') through an incorporated joint venture vehicle, Burrup Nitrates Pty Ltd. YPHL owned all the issued shares in Burrup Nitrates Pty Ltd.

13 On 16 December 2010 ANZ appointed the Receivers as joint and several receivers of the Shares.

14 On 17 December 2010 ANZ appointed the Receivers as joint and several receivers of the assets and undertaking of YPFPL.

15 From about May 2011 the Receivers commenced a sales and marketing campaign in relation to the Shares. During 2011 there were negotiations between the Receivers, ANZ, Apache Fertilisers and Yara in relation to the Shares.

16 On or about 8 November 2011 Yara advised that it would not proceed with the transaction that was proposed at that stage. Thereafter, on or about 28 November 2011, agreements were entered into between amongst others, ANZ, Apache Fertilisers and the Receivers. The agreements comprised a share sale agreement, a deed of indemnity, a deed of settlement and release and an economic adjustment deed.

17 Further, and most importantly, it is pleaded that as part of the sale, the Receivers entered into a new gas sale and purchase agreement with Apache Northwest ('New GSA') and settled the GSA Proceeding. The proposed pleading refers to all of these agreements as the '28 November 2011 Transaction'.[2] The New GSA was subject to conditions and in particular recognised that there were pre-emptive rights in relation to the Shares in favour of Yara.

18 It is further pleaded that in or about December 2011 or January 2012 Yara and the Apache entities reached an in principle agreement.[3] It is pleaded that thereafter, on 31 January 2012, the Receivers, ANZ, Yara and the Apache entities entered into a number of agreements referred to as the '31 January 2012 Transaction'. The agreements included a share sale deed with each of the Purchasers, a deed of indemnity, a deed of release and other side letters and agreements. Clause 9.4 of each share sale deed provided that no claim would be made against the Receivers, other than in relation to identified exclusions.

19 The Statement of Claim gives the following particulars, amongst others, of the alleged breaches by the Receivers:

(a) the Receivers entered into the New GSA, which was on less favourable terms than the GSA, and settled the GSA Proceeding on a basis that did not reflect YPFPL's prospects of success;

(b) the Receivers did not conduct a proper sales process for the Shares in that:

(i) they required bidders to resolve the GSA Proceeding with Apache Northwest as a condition of any bid;

(ii) they gave insufficient information to potential purchasers in relation to the GSA Proceeding and the TAN Plant;

(iii) they restricted the class of potential purchasers to those who had operating experience in the ammonia industry;

(v) they engaged advisors who lacked the necessary expertise;

(vi) after entering into the New GSA, the Receivers did not re-market the Shares; and

(vii) the Receivers knew or ought to have known that entering into the New GSA and compromising the GSA Proceeding was valuable to the Apache group of companies and they failed to obtain a price for the Shares that reflected that value; and

(c) clause 9.4 of the share sale deeds required Apache Fertilisers and Yara to procure that YPFPL and YPHL make no claim against the Receivers in respect of the conduct of the receivership32 (e.g., entering into the New GSA and settling the GSA Proceeding).

20 The plaintiff alleges that the sale of the Shares to each of Apache Fertilisers and Yara ought to be set aside because each of Yara and Apache Fertilisers had notice of the Receivers' breaches of duties. A further claim is made against Yara to the effect that Yara breached the terms of a Deed of Undertaking and a Shareholders Deed. The proposed amendments allege that those deeds required Yara to be just and faithful towards the plaintiff in its dealings with YPHL and YPFPL, to act in good faith, to not employ the assets of YPHL or YPFPL for its own benefit and to not suffer any act or thing that prejudicially affected the interests of YPFPL or YPHL. The proposed amendments allege that Yara breached those terms because it agreed with the Apache group of companies not to challenge the New GSA. Further, it obtained the rights to manage the TAN Plant, material benefits under the share sale deeds and 'sweeteners' from the Apache group of companies.

21 Finally, in relation to the Shareholders Deed and the further claim against Yara as set out in paragraph 20 above, it is alleged that ANZ, the Receivers, Apache Corporation, Apache Northwest, Apache Fertilisers and Apache Energy induced Yara to breach the Shareholders Deed. The alleged inducement in respect of ANZ and the Receivers is the offering of an indemnity to Yara in respect of any claim that the plaintiff might make against it in relation to the New GSA. The Receivers and ANZ also set aside a fund of $20 million from the proceeds of sale against which any such indemnity could be paid. The alleged inducement by the Apache companies is the "sweeteners" they gave to Yara.

22 The plaintiff submits that if the sale of the Shares is set aside, the New GSA should also be set aside, and that in such event the GSA, and a guarantee of certain obligations under the GSA given by Apache Corporation, should be reinstated.

23 This is also a new claim alleging misleading or deceptive conduct against Apache Northwest under s 52 of the Trade Practices Act ('TPA') (now s 18 of the Australian Consumer Law[4] ('ACL')). The misleading or deceptive conduct claim is that by issuing the Notice, and re-iterating it in the Letter, Apache Northwest represented that its only obligation to supply gas under the GSA was limited to gas reserves, in a gas field known as the Harriet Field, and that these reserves were running out. Whether this was the proper construction of the GSA was an issue in the GSA Proceeding. The claim is that the Receivers then communicated those representations to potential purchasers of the Shares, and potential purchasers either did not make offers or offered less for the Shares than they otherwise would have.

24 It is claimed that Apache Energy (the holding company of Apache Northwest and Apache Northwest's appointed representative pursuant to the terms of the GSA) was knowingly involved in the misleading or deceptive conduct within the meaning of s 75B of the TPA (or the equivalent section in the ACL).

25 No substantive relief is claimed against YPFPL and YPHL. The plaintiff seeks to add or join them as defendants because their rights might be affected by the orders sought in the Proposed Amended Statement of Claim ('PASOC'). Specifically, the setting aside of the New GSA and the reinstatement of the plaintiff as a shareholder of YPHL (and the correction of the register of members). Further, it is submitted that YPFPL and YPHL are parties that ought properly be joined pursuant to r 9.06(b)(i) or alternatively, added pursuant to r 9.02 of the Rules.

9.06 Addition, removal, substitution of party

At any stage of a proceeding the Court may order that -

...

(b) any of the following persons be added as a party, namely -

(i) that person ought to have been joined as a party or if that person's presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) there may exist between that person and any party to the proceeding a common question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between the person and the parties to the proceeding.

Two or more persons may be joined as defendants to a proceeding:

(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court, before or after the joinder, gives leave to do so.

29 A person who might be adversely affected by an order that is sought is a proper party to be joined.[5]

30 Rule 9.02 should be construed liberally so as to permit joinder of parties whenever reasonably practical.[6]

31 The principle to be applied in determining whether to exercise the discretion to grant leave under r 9.02(b) is that the court should take whatever course seems to be most conducive to a just resolution of disputes between the parties, but must be satisfied that joinder is unlikely to result in any unfairness to any party having regard to practical matters.[7]

33 The critical allegation is that the Purchasers had notice of the Receivers breaches of the pleaded duties.

34 Although the position may be different in relation to the knowledge of each purchaser, they each in effect contend that the proposed pleading does not articulate a legal basis or cause of action that would cause the agreements in relation to the sale of the Shares to be set aside. It was contended that the Receiver's duties were not fiduciary in nature, but as agents for the plaintiff, required acting in good faith and for a proper purpose. Breach of these duties, it was contended did not result in the agreements in relation to the sale of the Shares being void or liable to be set aside, particularly in circumstances where there was no wilful disregard of the plaintiff's interest on the part of the Receivers. Further, it was contended that the Purchasers were not complicit in or did not have knowledge or notice to the requisite degree, of any improper conduct or bad faith on the part of the Receivers.

35 In addition it was submitted that the pleading does not allege conduct on the part of the Receivers that reaches the standard of wilful disregard of the plaintiff's interest as opposed to want of proper care and, in one respect, self-interest.

36 Yara contended further that the correspondence relied upon to establish its knowledge was incapable of supporting knowledge of the alleged duties or the wilful or reckless disregard of the plaintiff's interest on the part of the Receivers. It was submitted that:

(a) Yara was not a party to most of those items of correspondence which are the foundation of (and delimit) the allegations;

(b) with the exception of the letters from Clayton Utz (solicitors for the Ninth Defendant) to Herbert Smith Freehills (solicitors for the First to Fourth Defendants) dated 9 December 2011 and 24 January 2012, all of the correspondence relied upon was sent to the Receivers (or their solicitors) in their capacity as receivers of YPFPL and concerned the conduct of the YPFPL receivership rather than the separate receivership over the shares in YPHL formerly held by the plaintiff and Mrs Oswal;

(c) the letters from Clayton Utz to Herbert Smith Freehills dated 9 December 2011 and 24 January 2012 raised issues associated with an entirely unrelated question, ie, Yara's pre-emptive rights under the Shareholders Deed; and

(d) none of the items of correspondence refer to the discharge of any duties which the Receivers and ANZ may have owed to the Oswals or establish that Yara was aware of any of the matters which are pleaded as particulars to the alleged breaches of duty in paragraph 24 of the PASOC.

37 It was further submitted by Yara that the lack of any real connection between Yara and the conduct of the receivership over the YPHL shares formerly held by the plaintiff and Mrs Oswal (in the correspondence and otherwise) was unsurprising. Yara had little interest in the Receivers' conduct of the sale process for the Oswals YPHL's shares due to the existence of pre-emptive rights under the Shareholders Deed. Yara was entitled to be offered the shares on terms not less favourable than those offered to any other contemplated purchaser. Further, Yara, it was submitted, lacked standing to complain about the discharge of duties which the Receivers owed to the Oswals.[8]

38 Finally, it was contended in effect that restitutio in integrum was not possible.

39 In my opinion the proposed amended pleading does not disclose a cause of action against the Purchasers to set aside the agreements relating to the sale of the Shares and restore the plaintiff to the position he was in before. Further, I am not satisfied that it is desirable to join these parties as defendants to this proceeding. Accordingly, the application to join Apache Fertilisers and Yara and to amend the pleading will be dismissed.

40 It is pleaded that the Purchasers 'were on notice or ought to have known of the breaches of duty by the Receivers ...'.[9] The alleged breaches are pleaded in paragraphs 24 and 51. Finally it is pleaded that this knowledge as a matter of law was sufficient to set aside the various agreements.[10]

41 In Barns v Queensland National Bank Ltd & Anor,[11] the High Court said:

It remains to consider the measure of damages. In the case of the improper exercise of a power of disposition of property, the appropriate remedy, if available, is to set the transaction aside, and to restore the property to the person from whom it has been improperly divested. If the purchaser had notice of the facts which render the exercise of the power improper, this remedy is available. But if he is a bona fide purchaser for value without notice of the facts, and has already acquired the legal estate, this remedy is not available as against him.[12]

42 In Forsyth & Anor v Blundell & Anor,[13] Walsh J said:

But if the person who agrees to purchase has no notice of any impropriety at the date of contract and continues to have no notice at the time when it is completed, he will obtain a title which cannot be challenged by the mortgagor.[14]

43 As the authorities demonstrate, in an appropriate case a transaction may, even if completed, be set aside if a purchaser had notice of the relevant facts relating to the improper exercise of power. The notice must however extend to the relevant factual matters that relate to the impropriety itself and not merely to the circumstances (without a sufficient factual foundation) from which impropriety may be the subject of speculation.

44 The Receivers duties are pleaded in paragraphs 21 and 22 of the Statement of Claim. Earlier amendments, which were not opposed, expanded the duties to include duties not to prefer their (or ANZ's) interests, to avoid any conflict of interest, not to wilfully or recklessly sacrifice the interests of the plaintiff and a duty not to act in a manner unfairly prejudicial to the plaintiff.

45 Proposed paragraph 23 pleads the failure to obtain a proper price for the shares. Additional particulars have been given.

46 Proposed paragraph 24 pleads the breaches of the pleaded duties. The proposed amended pleading introduces further breaches and provides further particulars. The proposed amendments plead that the Receivers (and/or the ANZ) wilfully or recklessly sacrificed the plaintiff's interests and acted in a manner unfairly prejudicial to the plaintiff. The revised particulars are minor.

47 I will allow these amendments. They relate back to the pleaded duties in paragraph 21.

48 Notice of the alleged duties is pleaded in the proposed paragraph 51A. Particulars (i)(A-H) deal with the knowledge of Apache Fertilisers and particulars (ii)(A-F) deal with the knowledge of Yara.

49 Notice of the alleged breaches of duty is pleaded in the proposed paragraph 51B. Particulars (i)(A-I) deal with the allegation that Apache Fertilisers had notice (or ought to have known) of the breaches, and particulars (ii)(A-C) deal likewise with notice or knowledge regarding Yara. In my opinion this aspect and the pleading in relation thereto is critical to a determination of this issue.

50 I am not satisfied that the pleading articulates with sufficient particularity the basis on which it is said that the Purchasers had notice of those critical and relevant facts that it is contended comprise the breach of duty. It is not adequately pleaded and particularised why the compromise of the GSA Proceeding and the entry into the New GSA had the effect of obtaining a lower price for the shares. The assertion is a bare assertion and notice of the mere fact of the compromise and the mere fact of the New GSA does not go far enough. Why and to what extent did these factors affect the share price?

51 With regard to Yara, the particulars referred to do not establish the required notice. Insofar as Apache Fertilisers is concerned, the particulars are naturally more expansive given its position. However, as a negotiating purchaser, not in an existing shareholder relationship it sought to obtain the best deal possible. The knowledge it obtained through the negotiation process does not rise to the level of the required notice and I will not permit the amendment in the current form.

52 Further, I do not consider at present that the Clayton Utz letters[15] sufficiently improve the plaintiff's position. The letters urged caution and may on one view be regarded as properly protecting the interests of all shareholders. There is nothing to suggest that the Receivers did not proceed cautiously.

53 I am also concerned that the relief goes well beyond the setting aside of the agreements relating to the sale of shares. It is most unlikely that any such relief would be granted.

54 Finally, I am not prepared to complicate the matter further by permitting the introduction of this claim. It adds an unwarranted and unnecessary extension and expansion to the case. This is not desirable. The case should be fixed for trial as soon as possible.

55 In relation to the allegations of breach of the shareholders Deed and Deed of Undertaking, Yara contends that the proposed claim as pleaded does not disclose a cause of action and is bound to fail.

56 First, it was submitted that the allegations fail to grapple with the fact that, after 28 November 2011, the state of affairs was that the Receivers had entered into apparently binding transactions to deal with the shares of the plaintiff and Mrs Oswal and to compromise the GSA dispute. Yara had no standing to challenge either transaction. It had no interest whatsoever in the receivership over the shares. And the GSA was an asset of YPFPL. Yara was not a shareholder of YPFPL. YPFPL's assets were subject to the appointment of the Receivers (albeit for defaults alleged to have been committed entirely by the plaintiff).

57 Secondly, it was submitted that, consistently with the foregoing, the allegation that Yara failed to take steps to ensure that YPFPL would not be bound by the deed of settlement or the New GSA[16] omits three critical allegations: that there was a step that Yara could take; that Yara had a duty to take that step; and that the step would have been effective to relieve YPFPL from the deed of settlement and the New GSA. None of these is pleaded. All are necessary if the breach is to have any content or consequences.

58 Thirdly, it was submitted that the allegation that Yara 'dealt with' property of the Company Group[17] is not sustained by any facts alleged. It was the Receivers who executed the instruments dealing with the GSA on behalf of YPFPL. It is not alleged that Yara's consent to that course was sought or granted prior to that dealing. On the contrary - it is alleged that Yara had expressly terminated all prior negotiations with the Receivers and the Apache group at least 20 days prior to the entry into the GSA amendment. The Receivers are said to be agents of ANZ, but never alleged to be agents of Yara

59 Fourthly, it was submitted that critical factual allegations are embarrassing for want of particularity or evident speculation:

(a) The allegation of an 'in principle agreement or understanding' is supported only by a single email to which Yara is not a party. But, in any case it was submitted that any discussions between Yara and the Receivers had no binding effect until completion of the purchase on 31 January 2012 (and it is not alleged otherwise). On and from the purchase date the Plaintiff and Mrs Oswal no longer had (on any view) rights under the Shareholders Deed or Deed of Undertaking. It was submitted that they were no longer shareholders of YPHL, and the conduct thereafter does not go to the price of their shares, or any loss suffered by them.

(b) In so far as it is possible to identify the materials upon which the Oswals appear to rely, those materials, it was submitted, are inconsistent with the implementation of the alleged 'in principle arrangement or understanding'. The alleged 'arrangement' was for an acquisition of YPHL shares by Yara from Apache and the execution of documents between Yara and Apache. Yet it is clear from the share sale deeds, that Yara did not acquire any shares in YPHL from Apache; rather it acquired those shares from the Receivers and ANZ.

(c) The position is aggravated, it was submitted, by the plea of a side letter or other agreement between Yara and certain Apache entities without any attempt to identify the document or conversation or other basis upon which its alleged existence is to be inferred. The plea is, it was submitted, speculative.

60 The gravamen of the various pleaded good faith and best endeavours type breaches is that it was incumbent upon Yara to do something. This assumes two very important matters emphasised by Senior Counsel for Yara. First, that something needed to be done and secondly that something could be done. Notwithstanding the able argument of Senior Counsel for the plaintiff, including further suggested amendments, the pleading fails in both respects. It is not clear and not pleaded why anything needed to be done. What specifically was being done that was adverse to the interests of the plaintiff? Why was the deed of settlement and the New GSA adverse? Again, we are left to speculate. Further, given the chronology of events it is unclear, and the proposed pleading (and proposed further amendments) does not adequately articulate, what could have been done and why it would have been appropriate to take such steps. I am not prepared to permit the amendment.

61 It follows that there is no basis to join Apache Corporation as a party to this proceeding.

62 It was submitted by Senior Counsel for Apache Northwest that the "Conduct and Representations" alleged at paragraph 56 of the PASOC cannot objectively be construed as representations of fact. They convey no more than contentions of Apache Northwest's position, in particular as to the extent of its obligations under the GSA in the circumstances described in the notice - no more and no less. Absent a plea of fraud, such contentions, it was submitted, are not actionable conduct under the TPA or the ACL.[18]

63 Opinions embodied in contentions 'convey no more than that the opinion is held and perhaps that there is a basis for the opinion'. That being so it was submitted that such an expression of opinion 'misrepresents nothing'.[19]

64 It was submitted further that the proposed pleading was defective in relation to causation under the TPA or ACL. The contentions advanced in the Notice (and the Letter), even if they were capable of constituting representational conduct under the TPA or ACL (which they are not) were made to YPFPL (then called BFPL), not to the plaintiff or for that matter not to any other third party. The contention by Apache Northwest that its obligation under the GSA to supply gas to YPFPL did not extend beyond the Harriet Field cannot, it was submitted, be a cause of the loss claimed by the plaintiff.

65 It was further submitted that like tort, damage within the meaning of s 82 of the TPA (now s 236 of the ACL) is the gist of the action for the contravention of s 52 of the TPA (s 18 of the ACL).[20]

66 Because the claim is one of indirect reliance it was submitted that the only damage that could be relevantly sustained by the plaintiff is one in the nature of the loss of an opportunity that existed at the date of the sale of the Shares. It was further claimed that this was acknowledged in the PASOC, which stated:

By reason of the matters in the preceding paragraphs (i) and/or (ii) above potential purchasers of the Shares either did not make offers for the Shares or made offers for the Shares which were less than they would have otherwise offered for the Shares.[21]

67 It was argued that in the absence of any other alleged basis of loss, that critical statement buried in the particulars to the plea of loss and damage must be taken to be the basis upon which the plaintiff intends to put his case. It must fail because damage is an essential element of the cause of action.[22]

68 Finally, it was submitted that the PASOC was not properly pleaded because to be made good, the plaintiff would have to prove and, therefore would now have to plead, that but for the contravening conduct relied on, there was an identified buyer or buyers who would have purchased the shares for an amount that was greater than the sale price achieved by the Receivers.[23] To say instead that 'potential purchasers of the Shares either did not make offers for the Shares or made offers for the Shares which were less than they would have otherwise offered' is beside the point and cannot found a claim in damages for lost opportunity of the type sought to be advanced by the plaintiff here.

69 In my opinion the proposed amended pleading does not disclose a cause of action against Apache Northwest for misleading or deceptive conduct and the application to join Apache Northwest and amend the pleading is accordingly dismissed.

70 Although this is an application to amend, I have read the Notice[24] and the Letter. The statements made in the Notice and the letters, whatever their precise characterisation, are not of the kind capable of forming the basis of a cause of action for misleading or deceptive conduct.

71 By the Notice, Apache Northwest pointed out to its contracting party, YPFPL, what Apache Northwest contended were its obligations under the GSA. It was an opinion that it was entitled to hold and express. This was in November 2006. Litigation followed. Many years later, in December 2010 it maintained its claim as set out in the Notice.

72 Advising your contractual counterparty of your contention or position in relation to the operation of a contract is not actionable. It misrepresents nothing. The authorities are sufficiently clear. The proposed claim therefore falls at the very first hurdle.

73 In any event, the proposed cause of action fails in relation to causation and loss. It is suggested that the Notice and the Letter - communicated to YPFPL - caused or had some effect on potential purchasers so as to cause them to pay less for the Shares. The conduct was said to be and is pleaded as the Receivers communicating the documents to potential purchasers by making them available in an electronic data set-up for the Sales Campaign.

74 The allegations are not sufficient to establish causation. The alleged representation and the context in which the alleged representations were originally made had nothing to do with the subsequent sales campaign which included making these documents available. To suggest - in the particulars at paragraph 61(iii) of the PASOC - that the initial representations (communicated by the Receivers in the manner suggested) caused potential purchasers either not to make offers or to make lower offers than they might otherwise had made is wild speculation without any or insufficient foundation. The pleading does not adequately establish causation.

75 I am not prepared to allow the claim as formulated to proceed. It does not disclose a cause of action and the pleading is embarrassing.

76 Finally, the proposed cause of action will expand and extend the case to an unacceptable degree. Establishing the falsity of the alleged representations will involve considerable time, cost, expertise and effort. It will in effect re-open the GSA Proceedings. This goes well beyond the factual matters particularised in paragraph 24 of the Statement of Claim, the paragraph dealing with breaches of the various pleaded duties.

77 It follows that there is no basis to join Apache Energy as a party to this proceeding.

78 The additional claim of accessorial liability is also bad because it impermissibly pleads, as a conclusion, rolled up claims of aiding, abetting, counselling and procuring, without pleading a single material fact said to constitute the claims. Further, it does not plead the additional essential elements of actual knowledge of the falsity of the representation and intentional participation in the contravention by Apache Northwest.[25]

79 In my opinion and for the reasons given there is no basis to join these parties to the proceeding.

J. Further cause of action - Inducing breach of the Shareholders Deed

80 For the reasons referred to at paragraph 60 above, the proposed claim for inducing breach of contract is not maintainable.

81 Finally, I should point out that there is a tendency in large commercial cases to cast the net as wide as possible. In many cases - and this is an example - it enlarges and complicates the case to a degree that is not warranted, acceptable or justifiable particularly in circumstances where there is no additional loss. In this case, and looking at the matter practically and realistically it is only if the plaintiff succeeds against the Receivers and not the ANZ, and the Receivers are denied indemnity by ANZ and are otherwise unable to satisfy any judgment, that access to other pockets becomes relevant. As pointed out I will not burden this proceeding because of some later possibility. I urge the parties to get on with the case.

82 Accordingly for these reasons the application to join the proposed defendants and amend the Statement of Claim other than in the minor respects identified will be dismissed.

[1] The GSA Proceeding was commenced by another gas supplier, Tap (Harriet) Pty Ltd. This company had also issued a force majeure notice. Apache Northwest and others subsequently became parties to the GSA Proceeding.

[2] Proposed Amended Statement of Claim ('PASOC') paragraph 14.

[5] Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30, [12].

[6] Payne v Young [1980] HCA 54; (1980) 145 CLR 609, 611 (Aickin J).

[7] Solomon Lew & Ors v Adam Priester & Ors [2012] VSC 57. [14], citing Bishop v Bridgelands Securities (1990) 25 FCR 311, 314.

[8] See Oswal v Yara Australia Pty Ltd (No 2) 2011] WASC 146.

[10] Ibid, paragraphs 51C(b), 51D(b) and 51F(b).

[18] See Inn Leisure v DF McCloy (1991) 28 FCR 151, 167 (French J).

[19] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (Provisional LiquidatorAappointed) [1984] FCA 180; (1984) 2 FCR 82, 88. See also Inn Leisure v D F McCloy Pty Ltd and Another (No 1) (1991) 28 FCR 151, 164 ,167, citing George Spencer Bower and Sir Alexander King-come Turner, The Law of Actionable Misrepresentations (3rd ed. 1974).

[20] SMEC Australia Pty Ltd & Anor v McConnell Dowell Constructors (Aust) Pty Ltd [No 3] [2012] VSC 557 [52].

[21] Subparagraph (iii) of the particulars to paragraph 61.

[22] Sellars v Adelaide Petroleum NL and Others [1994] HCA 4; (1994) 179 CLR 332, 348 and it is not properly pleaded Bond Corporation Pty Ltd v Theiss Contractors Pty Ltd [1987] FCA 84; (1987) 14 FCR 215, 221-223.

[23] Cf Sellars v Adelaide Petroleum NL and Others [1994] HCA 4; (1994) 179 CLR 332.

[24] Dated 23 November 2013, see paragraph 11 above.

[25] See Taylor & Anor v Lederman & Ors [2013] VSC 99 [44]-[47] and Addenbrooke Pty Ltd v Duncan (No 2) [2013] FCA 820 [2]-[8].

Court (General Civil Procedure) Rules 2005

At a glance

Court

Decision date

Before

Source

Judgment (129 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)