Plaintiff v Defendants

1 By originating process dated 14 July 2021, Tred Nominees Pty Ltd (receivers and managers appointed) ('the Company') made application under s 418A of the Corporations Act 2001 (Cth) ('the Act') seeking a declaration that the appointment of the first and second defendants as receivers and managers of property of the Company ('the receivers') by the third defendant, Oak Capital Wholesale Fund Pty Ltd ('Oak'), under its mortgage with the Company was invalid. The grounds of invalidity identified include that Oak failed to provide warning of the purported appointment, serve a notice of default in advance of the appointment, or allow a reasonable time for the sum secured under the mortgage to be paid.

2 On 22 July 2021, Oak filed its own interlocutory process seeking the following relief:

(a) that pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules') Zhaoqing Jiang also known as Zhao Qing Jiang, Zhaoqing Zhang and Tommy Jiang, who is the sole director of the Company ('the director'), be added as the fourth defendant in the proceeding ('the joinder application'); and

(b) that the director, further or alternatively, the Company provide security against any costs which the Company may be ordered to pay to Oak in the proceeding, whether on the standard basis or the indemnity basis ('the indemnity application').

3 In its written submissions, Oak explains that by its application it seeks the provision of a satisfactory indemnity for costs backed by security. The interlocutory process states that the security is sought within 21 days of the making of any orders, in default of which the proceedings be dismissed. Alternatively, Oak seeks a stay of the proceeding until the giving of any security ordered by the Court.

4 In August 2010, the Company became the registered proprietor of the property located at 195 Mahoneys Road, Forest Hill, Victoria ('the property').[1] In November 2020, it sought to re-finance the property through Oak. Under the terms of a loan agreement dated 14 December 2020, Oak advanced to the Company the sum of $2,998,101 for a term of six months with interest capitalised for four months ('the loan'). The loan was supported by various security documents comprising an instrument of mortgage, a memorandum of common provisions and schedules A and B ('the security documents'), and the property was put up as security for the loan. Pursuant to clauses 18 and 19 of the memorandum of common provisions, Oak had the right to appoint a receiver and manager over the property in the event of a default of payment or breach of the Company's obligations. The final repayment date for the loan was 23 June 2021.

5 It is common ground between the parties that the Company did not pay out the loan by the due date. As a consequence, on 30 June 2021 Oak appointed the receivers as agents of Oak as mortgagee in possession. The Company seeks to impugn the validity of that appointment in this proceeding.

6 The property is currently the subject of a contract of sale between the Company and Phoenix Tree Property Pty Ltd dated 16 June 2021 for the sum of $5,050,000 ('the contract of sale').

7 The Company's originating process was first returnable before the Court on 23 July 2021. At that hearing, the Court made various orders to progress the matter, including the filing of additional affidavit material and submissions by the parties. The Company's originating process was listed for final hearing on an expedited basis on 19 August 2021. Provision was made for Oak's interlocutory process to be determined on the papers prior to the final hearing.

8 These reasons only concern the joinder application and the indemnity application made pursuant to Oak's interlocutory process.

9 Oak relies on the following evidence in support of the interlocutory process:

(a) the affidavits of Mohamud Ahmed (a recoveries officer for Oak) affirmed on 22 July 2021, 27 and 30 July, respectively;

(b) the affidavit of Richard Lawrence (one of the receivers) sworn on 22 July 2021 (and presumably also the further affidavit of Mr Lawrence sworn on 23 July 2021); and

(c) affidavit of Christopher Yam (a lawyer) sworn on 22 July 2021.

10 Oak has also filed submissions on 22 July 2021 and 3 August 2021 upon which it relies.

11 The Company filed submissions on 3 August 2021 in opposition to Oak's interlocutory application. Other material filed by the Company includes the affidavit of Mr Ahmad Lababidi (a solicitor), affirmed on 14 July 2021, and the Company's earlier submissions dated 22 July 2021.

12 At the hearing on 23 July 2021, the receivers made clear that they support Oak's interlocutory application. Further, their lawyers have also apparently separately written to the Company's lawyers requesting that the director provide the receivers with 'a satisfactory indemnity for costs incurred by the Company, in addition to any costs orders which might be made against the Company'.[2] The receivers' submissions of 23 July 2021 reiterate that request.

13 Although Oak seeks an order that the Company also provide security for any costs which it may be ordered to pay Oak, there is no conventional application before the Court by any defendants for security of costs either pursuant to r 62.02 of the Rules, s 1335(1) of the Act and/or the inherent jurisdiction of the Court.

14 I will therefore approach the indemnity application according to whether the director, who has initiated and maintained this proceeding in the name of the Company to challenge the validity of the receivers' appointment, should provide the Company with a satisfactory indemnity against costs and, if so, whether that indemnity should be supported by appropriate security.

15 Section 418A of the Act is in the following terms:

(1) Where there is doubt, on a specific ground, about:

(a) whether a purported appointment of a person, after 23 June 1993, as receiver of property of a corporation is valid; or

(b) whether a person who has entered into possession, or assumed control, of property of a corporation after 23 June 1993 did so validly under the terms of a security interest in that property;

the person, the corporation or any of the corporation's creditors may apply to the Court for an order under subsection (2).

(2) On an application, the Court may make an order declaring whether or not:

(a) the purported appointment was valid; or

(b) the person entered into possession, or assumed control, validly under the terms of the security interest;

as the case may be, on the ground specified in the application or on some other ground.

16 The provision therefore confers standing on a receiver, the corporation, or a creditor of a corporation to seek a ruling as to the validity of the appointment of a receiver.

17 Rule 9.06 of the Rules relevantly provides:

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

...

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

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

(ii) a person between whom and any party to the proceeding there may exist a 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 that person and that party as well as between the parties to the proceeding;

18 It is apparent that the power of the Court to add a party under r 9.06(b)(ii) is wider in scope than the power under r 9.06(b)(i). The term 'question', as it appears in r 9.06(b)(ii), is given the following definition in r 1.13(1) of the Rules:

any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest.

19 It is not necessary that the question be the same as a question in existence already between the current parties to the proceeding. It is enough if the new question arises out of, or relates to, or is connected with the existing question.[3]

20 In this case, the Company challenges the validity of the appointment of the receivers in its own name. Whilst not made explicitly clear in the affidavit of Mr Lababidi filed in support of the originating process, it is plainly the case that the director caused the proceeding to be initiated and is giving instructions to the solicitors on the record for the Company. At law, he is not necessarily prevented from doing so. That is because the appointment of receivers to a company does not entirely displace a director's power and authority to commence a proceeding.[4] A proceeding may be instituted by a director in his/her 'residual capacity'.[5] That is what has occurred here. However, a practical issue arises as to 'whether the exercise by a director of any power in the name of the company would interfere with the legitimate exercise by the receivers of their powers'.[6] The real question is whether the director can exercise a power 'without prejudicing the legitimate interests of the receiver and the secured creditor in the realisation of the [relevant] assets.'[7]

21 Oak submits that the director is a necessary and proper party to the proceeding and should be joined as a defendant pursuant to r 9.06 of the Rules because his powers as a director have been affected and diminished (although not entirely suspended) by the appointment of the receivers.

22 Conversely, the Company disputes that there is any basis for the director to be joined. The Company submits it is only where a receiver applies for a declaration under s 418A of the Act that a director of a company may be joined as a defendant to the action. Reliance is placed upon the following passage found in James O'Donovan's Company Receivers and Administrators ('O'Donovan') (citations omitted):

A director who disputes the validity of the appointment of receivers should be joined as a defendant in an application by the receivers under Corps Act 2001 s 418A for a declaration that their appointment is valid and that they are entitled to take possession of the company's assets. The joinder of the director can be justified by case management principles and the fact that the director's powers and duties are directly affected by the appointment of the receivers. [8]

23 The learned author cites the decision of Edelman J (as his Honour then was) in Jones v Miami Waterfront Developments Pty Ltd ('Miami Waterfront')[9] as authority for the above propositions. However, there is nothing in his Honour's reasons in Miami Waterfront, nor in the passage extracted from O'Donovan, which suggests that the joinder of a director in a proceeding concerning the validity of the appointment of a receiver should be limited to the circumstances contended for by the Company.

24 Miami Waterfront was decided against the backdrop of a substantive proceeding in which the receivers of the relevant company and a creditor sought declarations under s 418A of the Act that they were validly appointed. In doing so, they named the company's director, Mr Reiffer, as a party. The director objected and brought an interlocutory application seeking to have the proceeding dismissed against him. In considering whether the director was properly joined, his Honour made the following important statements about the status of directors upon the appointment of receivers and the manner in which directors are necessarily affected by a declaration as to the validity of that appointment:[10]

[32] Mr Reiffer is a necessary and proper party to be joined to the proceeding. Mr Reiffer accepted, as he must, that his powers as a director are affected by the appointment of the Receivers. The powers of the Receivers diminish Mr Reiffer's powers as a director.[11]

...

[35] ...

As the Full Federal Court said in [News Ltd v Australian Rugby Football League Ltd]:

Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. (emphasis added)[12]

[36] The same reasoning applies to the effect of receivership on Mr Reiffer's powers as a director. A declaration that the Receivers' appointment was valid means that his powers are directly affected, and diminished.

...

[40] ... By challenging the entirety of the appointment of the Receivers, Mr Reiffer implicitly asserts that his powers and duties as a director are unaffected by the appointment. ...

[42] ... The declarations sought affect the rights of Mr Reiffer in the 'wide and loose' sense of 'rights' including privileges, powers and immunities as well as claim rights.[13]

...

[44] ... Mr Reiffer was properly joined as a party to the action. One of the principal objects of rules of joinder - to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given the opportunity to be heard - is fulfilled by the joinder of Mr Reiffer. Joinder gives Mr Reiffer the opportunity of being heard, if he wishes, in proceedings which directly affect his powers as a director.

[45] ... this conclusion is also supported by case management considerations which aim to ensure that all matters in dispute are effectually and completely determined.

25 The reasoning and statements of general principle set out by his Honour in Miami Waterfront have application to the present case and there is no basis to distinguish the facts of this case simply because the proceeding was commenced by the Company and not by the receivers. It is clear that the determination of the proceeding, and the question of whether the receivers were validly appointed, directly impact upon the rights and powers of the director. The implication of the Company's contention that the receivers were invalidly appointed is that the director's powers and duties are unaffected by the purported appointment. Further, the question of whether the director's current status is diminished by the purported appointment of the receivers necessarily arises out of, and is connected to, the primary question in the proceeding of whether the receivers were validly appointed.

26 In addition, a question arises as to whether, by virtue of the commencement of this proceeding, the director is liable to indemnify Oak under clause 23 of the memorandum of common provisions[14] in respect of any claims, including a claim made against Oak and/or the receivers. That question, in turn, hinges upon the fundamental question of whether the receivers were validly appointed. It is another reason why the director is affected by the proceeding.

27 It is just and convenient to determine each of these questions as between the director and the existing parties to the proceeding. It follows that the director is a necessary and proper party to the proceeding and should be joined pursuant to r 9.06(b)(ii) of the Rules.

28 The Company contends that the indemnity application is novel. In fact, the call for such an indemnity appears to be conventional. The weight of authority clearly supports the proposition that where a director initiates and maintains a proceeding in the name of a company in receivership without the consent of the receivers, he/she is usually required to satisfactorily indemnify the company against any liability for costs.[15] In Ernst & Young v Tynski, the Full Court of Federal Court explained the requirement in this way:

The requirement that directors who initiate and maintain proceedings in the name of the company to challenge the debenture under which a receiver was appointed must ordinarily provide the company with a satisfactory indemnity against costs, is a requirement that exists for the benefit of the debenture holder: Brooklands Motor Co Ltd (in rec) v Bridge Wholesale Acceptance Corp (Aust) Ltd [1993] MCLR 448 per Thomas J at 452; Newhart Developments Ltd v Co-operative Commercial Bank Ltd [1978] QB 814 per Shaw LJ, with whom Stephenson LJ agreed, at 819. If, as here, neither the debenture holder nor the receiver requests the provision of an indemnity against costs, it may be assumed that the debenture holder's interests do not require the protection that would be afforded by an indemnity.[16]

29 The governing principle is that those giving instructions on behalf of a company must demonstrate that 'nothing in the course of the proceedings which they institute is going in any way to threaten the interests of the debenture holders'.[17] For example, the conduct of proceedings by a director in the name of a company in receivership may result in an order for costs being made against the company and thereby deplete its assets, imperil the property the subject of the security and interfere with the performance by the receiver of his/her duties and the exercise of his/her powers.[18] Where the secured property of a company in receivership is placed at risk by the prosecution of a proceeding brought in the company's name by its director (including a proceeding to challenge a debenture under which the receivers were appointed or the manner in which the appointment occurred), the right to continue the proceeding is conditional upon the company being indemnified against any liability for costs.[19]

30 In an effort to demonstrate that the assets of the Company are not imperilled by the conduct of this litigation, the Company suggests there is sufficient equity in the property to meet any costs liability. However, the evidence relating to the value of the property is the subject of dispute. An initial valuation commissioned by the Company in October 2020 placed the value of the property around $5 million (exclusive of GST). This valuation made passing reference to an agreement made under s 173 of the Planning and Environment Act 1987 (Vic) ('the s 173 agreement') which runs with the land and provides, amongst other things, parishioners of an adjoining church the ability to park their vehicles on the property. A few days prior to the end of the term of the loan, Oak apparently obtained a valuation of the property which suggested it was worth $1.8 million. A more recent valuation obtained by Oak on 16 June 2021 considered the operation of the s 173 agreement in detail and arrived at an indicative market value on an encumbered basis (having regard to the operation of the s 173 agreement) of $1.4 million (exclusive of GST). On the assumption the s 173 agreement was removed, the indicative market value was $3,264,950 (exclusive of GST).

31 Having regard to these varying figures, and because Oak claims approximately $3.21 million under the loan according to a notice of default issued on 1 July 2021, the availability of equity within the property to meet the Company's costs and any adverse costs orders cannot be guaranteed. It must also be assumed that Oak and the receivers have also incurred costs in the proceeding in the receivership which will need to be met out of the proceeds of sale of the property.

32 Oak has also raised concerns about the viability of the contract of sale in respect of the property. The contract of sale was only signed approximately one week prior to the due date for repayment of the loan and contemplates a five month settlement. Of greater concern is the fact that the purchaser has only paid $100,000 as part payment of the deposit, has failed to pay the balance of the deposit of $405,000 by 9 July 2021, and is apparently now indicating it does not wish to proceed with the purchase.[20] It is ultimately unclear when the property is capable of being sold and for what sum.

33 There is no other evidence as to the financial position of the Company. On 1 July 2021, the receivers requested that the director submit a Report on Company Activities and Property. In his affidavit of 22 July 2021, Mr Lawrence deposes to this report not being provided by the director.

34 Further, a property search undertaken by the receivers in respect of the director indicates that he is a joint proprietor of a property which appears to be the subject of a number of encumbrances.[21] There is also evidence that businesses associated with the director are in financial distress.[22] It is unclear what implications this may have for the director and his own financial circumstances.

35 Aside from referencing the potential equity in the property, the Company itself does not put forward any other material concerning its own financial capacity, or the financial capacity of its director, to meet the Company's own costs or any adverse costs order.

36 There are a few other matters raised by the Company in opposition to the indemnity application that I will briefly deal with. It is no answer to the indemnity application that the proceeding is being conducted on an expedited basis and that costs will be kept to a minimum. Given the volume of material already filed in the proceedings, the costs incurred to date would not be insignificant. Nor do I accept that Oak is required to provide evidence of what its costs will likely be. This is not a conventional security for costs application and an estimate of the defendants' costs is not a prerequisite for an indemnity by the director in favour of the Company. Finally, given the absence of any evidence put forward by the Company as to the financial position of the director, is unclear what utility a third party costs order would have in the circumstances.

37 In my view, the interests of Oak as debenture holder are threatened by the continuance of this proceeding. That is because the Company's assets are at risk of being depleted by the costs it incurs in the proceeding and by its exposure to any adverse costs order. It is therefore appropriate that the director, who has commenced this proceeding in the Company's name, provide a satisfactory indemnity to the Company in respect of these costs. Further, the evidence supports the conclusion that the indemnity should be underpinned by an appropriate level of security also provided by the director.

38 To the extent the interlocutory process seeks security from the Company, I decline that relief. As previously stated, there is no conventional security for costs application before the Court. Further, to require security from the Company appears to be a misapplication of the indemnity principle referred to in the authorities mentioned above. The relevant indemnity is given by the director to the company in receivership; not by the company to the debenture holder or receivers.

39 As was the course adopted by Sackville J in Deangrove,[23] I propose to stand the proceeding over for a reasonable period of time to allow the director to provide an appropriate security to support the requisite indemnity to the Company. At the same time, the director can formulate an appropriately worded indemnity in favour of the Company. In the event these matters are not attended to by a date to be agreed between the parties (or, in default of agreement, by the Court), the proceeding will be stayed.

40 I will ask the parties to confer as to a form of order which reflects these reasons. I will also hear the parties on the question of costs. Having regard to this ruling and the time which may be required by the director to formulate an indemnity and to raise sufficient security, the parties will need to turn their minds to whether the substantive hearing of the Company's application can sensibly proceed on the current timetable.

TRED NOMINEES PTY LTD (ACN 124 463 403) (RECEIVERS AND MANAGERS APPOINTED)

[1] More particularly described in Certificate of Title Volume 09899 Folio 090.

[2] Affidavit of Richard Lawrence sworn 22 July 2021 [7].

[3] Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd [1999] VSCA 66; [1999] 2 VR 507, 513-14 [22] (Batt JA).

[4] Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199, 209 (Street J) ('Hawkesbury Developments'); Newhart Developments Ltd v Co-operative Commercial Bank Ltd [1978] 1 QB 814, 819-21 (Shaw LJ) ('Newhart Developments'); Paramount Acceptance Co Ltd v Souster [1981] 2 NZLR 38, 43 ('Paramount Acceptance'); Re Phillips Oysters Pty Ltd v National Australia Bank Ltd [1992] FCA 547 [28] (Lockhart J) ('Phillips Oysters'); Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77, 84 [30] (Sackville J) ('Deangrove'); Ernst & Young (reg) v Tynski Pty Ltd [2003] FCAFC 233; (2003) 47 ACSR 433, 434 [4], 438-9 [24], 439 [27] (Branson, Marshall and Stone JJ) ('Ernst & Young v Tynski').

[5] Ernst & Young v Tynski (n 4) 439 [27] (Branson, Marshall and Stone JJ).

[6] Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2006] FCA 1163; (2006) 60 ACSR 217, 221 [21] (French J, as his Honour then was).

[7] Re Geneva Finance Ltd; Quigley (Receiver and Manager Appointed) v Cook (1992) 7 WAR 496, 511 (Owen J).

[8] James O'Donovan, Thomson Reuters, Company Receivers and Administrators (at 12 July 2016) [7.12510] ('O'Donovan').

[9] [2012] WASC 483 [44]-[45] ('Miami Waterfront').

[10] Ibid [32], [35]-[36], [40], [42], [44]-[45] (emphasis in original).

[11] Newhart Developments (n 4) 820-1 (Shaw LJ), 822 (Stephenson LJ).

[12] News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, 525 (Lockhart, von Doussa and Sackville JJ).

[13] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 23 (Gibbs ACJ); Lois Nominees Pty Ltd v Hill [2011] WASC 53 [18] (McLure P).

[14] Exhibit ZJ-6 to the affidavit of Ahmad Lababidi affirmed 14 July 2021, Memorandum of Common Provisions, cl 23.

[15] Newhart Developments (n 4) 821 (Shaw LJ); Paramount Acceptance (n 4) 43; NEC Information Systems Australia Pty Ltd v Lockhart (Supreme Court of New South Wales, Brownie JA, 8 June 1990); Charmae Investments Pty Ltd v Australia & New Zealand Banking Group Ltd (1991) ATPR 41-063; Phillips Oysters (n 4) [28]-[29] (Lockhart J); Deangrove (n 4) 87 [40] (Sackville J); Ernst & Young v Tynski (n 4) 439 [26] (Branson, Marshall and Stone JJ); Capital Globe Investments Pty Ltd v Parker Investments Australia Pty Ltd [2011 2 QdR 565, 568 ('Capital Globe Investments') [9]-[10] (Applegarth J).

[16] Ernst & Young v Tynski (n 4) 439 [26] (Branson, Marshall and Stone JJ).

[17] Deangrove (n 4) 88 [47] (Sackville J) quoting Newhart Developments (n 4) 821 (Shaw LJ).

[18] Phillips Oysters (n 4) [28] (Lockhart J).

[19] See Newhart Developments (n 4) 821 (Shaw LJ); Deangrove (n 4) 87 [40] and Capital Globe Investments (n 15) [9]-[10].

[20] Affidavit of Ahmad Lababidi affirmed 14 July 2021 [23].

[21] Exhibit RL-2 to affidavit of Richard Lawrence sworn 23 July 2021, 20.

[22] See affidavit of Christopher Yam sworn 22 July 2021.