Rad Drill Services Pty Ltd v Warrego Energy EP469 Pty Ltd

The relief sought

1. By notice of motion filed on 12 November 2020, the defendants sought orders including: "1. An order pursuant to section 1335 of the Corporations Act 2001 (Cth), rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), and/or the inherent jurisdiction of the Court, that the Plaintiff pay into court within fourteen days the sum of $307,200 (or such other sum as the Court thinks fit) as security for the Defendants' costs of these proceedings. 2. The prosecution of these proceedings by the Plaintiff be stayed until the security is given in accordance with these orders. 3. The claim brought by the Plaintiff in the Statement of Claim filed on 27 August 2020 is to be dismissed with costs without further order in the event the Plaintiff does not give security within the timeframe specified in these orders."
2. By amended notice of motion filed on 23 February 2021, RDS sought orders including: "1. An order pursuant to section 1335 of the Corporations Act 2001 (Cth), rule 42.21 Uniform Civil Procedure Rules 2005 (NSW), and/or the inherent jurisdiction of the Court, the second defendant provide security for the plaintiff's costs in the amount of $291,900 within 14 days. 2. An order that the second defendant's cross-claim filed in these proceedings on 23 October 2020 be stayed until the second defendant has complied with order 1. 3. An order that the cross-claim brought by the second defendant filed 23 October 2020 be dismissed with costs without further order in the event the second defendant does not give security within the timeframe specified in order 1. 4. An order that: a. The First Defendant be restrained from disposing of any of its interests in Exploration Permit 469 except to a bona fide third party for value; and b. The First Defendant provide 10 business days' notice in writing to the Plaintiffs' solicitor of its intention to enter into a contract to transfer or of its intention to assign any interest in Exploration Permit EP 469; and c. Notice under paragraph 4b above shall contain particulars of the proposed transferee or assignee and of the proposed consideration: and d. The Plaintiff and/or the First Defendant have liberty to apply within 5 business days after the giving of such notice to vary or discharge the Order made pursuant to paragraph 4a above: and e. Absent any application pursuant to paragraph 4d above the Order made pursuant to paragraph 4a will remain in full force and effect: and f. Particulars provided pursuant to paragraphs 4b and 4c above shall be and remain confidential and not be published or republished by the Plaintiff except as may be required in any affidavit in support of an application under paragraph 4d above."
3. Insofar as the respective claims for security for costs are concerned, there was no dispute about the applicable legal principles. It was accepted that when the Court exercises jurisdiction under Part 42 r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or s 1335 of the Corporations Act 2001 (Cth), the Court should be satisfied that there was reason to believe that the respondent company would be unable to satisfy an order to pay the applicants' costs of the proceedings.
4. The parties also accepted that in this case the relative merits of their legal arguments in the underlying proceedings were a neutral factor in the exercise of the Court's discretion to grant security for costs. It was therefore unnecessary for the Court to consider the facts which gave rise to the litigation, although to the extent that those may be of interest to a reader of these reasons, I gratefully incorporate by reference the summary provided by Black J in a judgment resolving an earlier phase of the dispute: In the matter of Warrego Energy EP469 Pty Ltd [2020] NSWSC 980 at [4]-[17]. Although the contrary was faintly argued by RDS, there was also no real doubt that the defendants' application for security had been brought promptly.

The facts

1. The facts relevant to the exercise of the Court's discretion in relation to both motions were ultimately not in dispute. Before setting these out, I should record that the scope of the financial evidence which might be expected in applications of this kind was reduced by the Court's rejection of unverified, incomplete special purpose accounts for both RDS and the Dorsch Family Trust (see [17] below) pursuant to s 135 of the Evidence Act 1995 (NSW): Strategic Financial and Project Services Pty Ltd v Bank of China Ltd [2009] FCA 604 at [33]-[35].
2. RDS is a company which has a paid up capital of $1.00 and owns no real property in Australia. It is the subject of an indemnity costs order in favour of EP469 made by Black J on 5 June 2020 in the proceedings referred to at [13]. While yet to be assessed, the amount to be claimed is $149,400.
3. Mr Lambert submitted on behalf of RDS that RDS was a "one man band". He also candidly conceded that while on his instructions RDS would be able to raise the approximately $300,000 required to meet the security for costs sought by the defendants, this would leave the company without resources to pay its own costs of the proceedings (which, as I discuss below, were estimated on a solicitor-client basis to be also nearly $300,000). Although ultimately only a makeweight in the Court's determination, I took this concession as enabling me to find, as I did, the obverse: that if RDS were to spend what it could raise on its own legal expenses in the proceedings, it would then not be in a position to raise further funds to meet a costs order if it did not make out its claim.
4. The sole shareholder of RDS is Dorsch Consultants Pty Ltd, which is the corporate trustee of the Dorsch Family Trust. Mr Carl Dorsch is, for all intents and purposes, the person who stands behind RDS. He is also the sole shareholder, director, secretary and controlling mind of Dorsch Consultants Pty Ltd.
5. There was no evidence about the financial circumstances or capacity of RDS, Dorsch Consultants Pty Ltd, the Dorsch Family Trust or Mr Dorsch himself. There was no evidence from any of those companies or Mr Dorsch as to whether any or all of them either: 1. Had the financial capacity to meet any costs order that might be made against RDS and would do so; or 2. That they lacked such capacity and were therefore not in a position to assist RDS meet any costs order.
6. UK is a company incorporated in Scotland. It has no property in Australia. As at 30 June 2020 it had current liabilities of GBP2,722,684 with total current assets of only GBP109,194.
7. Save as to the matters referred to in [33] and [34] below, there was unchallenged evidence that the defendants' likely recoverable costs of the proceedings on the ordinary basis would be approximately $307,200 (including a three-day final hearing).
8. There was unchallenged evidence that RDS' likely recoverable costs of the cross-claim on the ordinary basis would be $291,900 (including a three-day final hearing).

The defendants' motion for security - Parties' submissions

1. Mr Walker submitted that there could be no doubt on the evidence that there was reason to believe that RDS would not be able to pay any of the defendants' costs which it might be ordered to pay. In those circumstances, the Court should exercise its discretion to order security in the sum sought. RDS had failed to establish positively that an order for security would stifle the proceedings. Nor was it at all realistic to characterise the defendants, and UK in particular, as the aggressors or effective plaintiffs in the litigation. Finally, to negative a submission made in RDS' written outline of argument, UK was prepared to undertake to the Court that it would: 1. Not prosecute its cross-claim during any period when RDS' claim was stayed pending provision of security; and 2. Agree to its cross-claim being dismissed if RDS' claim was dismissed for failure to provide any security that might be ordered.
2. In light of the way the evidence had fallen, Mr Lambert, quite properly, did not dispute that the Court's jurisdiction to order security had been enlivened. However, he submitted that, in the exercise of the Court's discretion, no security should be ordered because RDS had been forced to bring the claim and so stood in the position of a defendant, and that any order for security would stifle the proceedings. He also submitted that the difference in circumstances between the parties (RDS being "a one man band" and the corporate defendants being subsidiaries of a substantial, publicly-listed company) meant that any order for security would be oppressive, such that either no security should be ordered or, at the very least, the amount sought by the defendants should be significantly reduced.

The defendants' motion for security - Consideration

1. Essentially for the reasons advanced by Mr Walker, the Court concluded that security should be ordered, albeit for an amount less than that originally sought.
2. I do not accept that on any fair reading of the pleadings, or having regard to the commercial realities, RDS could be described as standing in the position of a defendant in these proceedings. True enough, as Mr Lambert submitted, RDS has been "forced to bring the claim", but only in the sense that the defendants have denied RDS' claim to be entitled to commission so RDS has had to sue for it. The position would be different if, for example, RDS had been forced to take action to prevent the defendants engaging in a self-help measure of some kind. In both form and reality, RDS is the plaintiff in these proceedings (or given the presence of UK in these proceedings, what would be referred to more graphically in Scotland as the "pursuer").
3. In relation to stultification, I accept Mr Walker's submission that the risk of stifling or stultifying the proceedings by making orders for security is a matter which must be positively proven. So much is established by the decision of the NSW Court of Appeal in Pioneer Park Pty Ltd (In liq) & Ors v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383; [2007] NSWCA 344 (Pioneer Park) in which Basten JA (with whom Tobias and McColl JJA agreed on this point) said at [51]: "The likelihood that an order for security would stifle or stultify the proceedings, if established, is a factor which will tend against an order for security. However, that factor is not made out merely by reference to the company's impecuniosity, but requires proof, as explained in the passage from Bell Wholesale at [43] above. As noted by Austin J in Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 at [74], referring to the judgment of Clarke J in Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 at 545, "the mere fact that the corporate plaintiff is financially unable to provide security does not lead inevitably to the conclusion that the making of an order for security will stultify the plaintiff's claim. It may be that there is someone else who will satisfy the order on the plaintiff's behalf"."
4. In the present case, the absence of evidence about the financial circumstances or capacity of Mr Dorsch or any of the companies or trusts standing behind RDS means that RDS has failed to prove that an order for security would stifle or stultify the proceedings.
5. Mr Lambert sought to rely on a different aspect of Pioneer Park in support of his submission that an order for security would be oppressive given the disparity of size and resources between RDS and the corporate defendants' ultimate holding company, the listed Australian company Warrego Energy Ltd. Mr Lambert emphasised the following passage of Basten JA's judgment in Pioneer Park: "55 The concept of oppression is most likely to operate as a constraint on the making of an order where an order is likely to stifle the appeal. It may also invite some closer attention to the merits of the proceedings than would otherwise be necessary and appropriate. On the other hand, it is not entirely clear what is referred to by oppression. As noted by Beazley J in KP Cable Investments at 197, Needham J referred in MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 at 100 to the need to consider whether "the defendants' application for security is oppressive in the sense that it is being used merely to deny to an impecunious plaintiff a right to litigate". There may be rare cases in which it can be established that an application for security is brought for improper purposes: such conduct could no doubt be described as "oppressive". On the other hand, from the respondent's point of view the question is not whether an impecunious corporate appellant has a "right to litigate" but rather who should be required to bear the costs of the litigation if the appellant is unsuccessful. 56 It may be that a court will be more sympathetic to an application from a respondent with limited funds than a respondent which is a major corporation: see Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180 at 186 (King CJ) and Irwin Alsop Services v Mercantile Mutual Insurance Co Ltd [1986] VR 61 at 65 (Ormiston J), referred to by McClellan CJ at CL in Jazabas Pty Ltd v Haddad [2007] NSWCA 291 at [76]. Nevertheless, as implied by Brooking J in Prime Forme Cutting Pty Ltd v Baltica General Insurance Co (1989) 8 ACLC 29 at 32-33, large corporate defendants should not be seen as standing "outside the policy of the security for costs provisions". However, to accept that they do not, does not in turn require the Court to ignore the fact that they "stand in no special need of care and protection", as Brooking J expressed the point. Thus, it might be seen as oppressive to allow a large corporate defendant to obtain an order for security for costs which would be likely to stifle the litigation in circumstances where it could be seen that the claim had potential merit and that the quantum of costs would in any event be a relatively insignificant amount for the corporate defendant, though beyond the capacity of the corporate plaintiff to pay. To order security in such circumstances may constitute a form of "oppression"."
6. Accepting the correctness of his Honour's observations, they do not apply to this case. This is because Pioneer Park was a case where the defendant applicant for security was undoubtedly a very large enterprise, being the Australian and New Zealand Banking Group Ltd. Turning to these proceedings, it is not open to the Court to pierce the corporate veil to take note of the ultimate holding company of UK and EP469. There is no evidence about what that holding company might do in relation to funding its subsidiaries in this litigation. Corporate legal personality must be respected and RDS must take the corporate defendants as it finds them. So, for example, there is evidence (see [19]) that UK has a significant excess of liabilities over assets. Looking only at these particular corporate defendants, this is not a case of a corporate Goliath oppressing David.
7. I add for completeness that I accept that Basten JA's statement that "the concept of oppression is most likely to operate as a constraint on the making of an order where an order is likely to stifle the appeal" (my emphasis) leaves open the possibility of "oppression" as a freestanding discretionary consideration even when the risk of stultification has not been established. However, to recognise that is not to say very much. The Court has a wide discretion when it comes to ordering security for costs, and there may be cases where, short of demonstrating improper purpose, a consideration in the nature of "oppression" may be a complete, or at least partial, answer to an application for security for costs. Nevertheless, his Honour's observation must also be read in the context of what his Honour says at [56], recognising that large corporate defendants did not stand "outside the policy of the security for costs provisions".
8. Even treating "oppression" as a freestanding discretionary consideration, I am unable to discern any basis on which the Court could conclude in this case that making an order for security would be "oppressive" in the sense discussed by Basten JA.
9. Before leaving Pioneer Park, however, it is important to note that decision does offer a cautionary example applicable to the present case. Mr Lambert submitted in the alternative that even if a ground of oppression would not be sufficient to avoid the making of an order for security for costs, it would provide a distinct basis for the Court to reduce the amount of security which it might otherwise have ordered. Mr Lambert relied on the fact that in Pioneer Park, notwithstanding the bank's evidence that its costs would be within the range of $150,000-$180,000, Basten JA reduced the amount to be secured to $100,000 (see Pioneer Park at [65]-[66]). However, in this respect Tobias and McColl JJA did not agree with Basten JA. They concluded (at [9] and [10]) that there was no justification for reducing the bank's entitlement to security to less than the lower figure specified in the evidence of $150,000. I take this as a reminder that while the Court may wield a broad brush in applications of this kind, that does not warrant painting out the evidence completely.
10. The Court does accept Mr Lambert's submission that any amount ordered by the Court should be less than that sought by the defendants. The figure for costs advanced on behalf of the defendants was derived from calculations made by their undoubtedly qualified solicitor, Mr Buchanan. While Mr Buchanan was not cross-examined, Mr Lambert drew to attention that in estimating the defendants' costs, Mr Lambert had: 1. Assumed that RDS would be relying on two witnesses, with over 100 hours of consultant and senior associate time allowed to review two witnesses from the plaintiff and prepare the affidavits of two witnesses for the defendants; and 2. Allowed 100 hours of consultant and senior associate time in respect of interlocutory processes including (apart from the present application) discovery and the issuing subpoenas and notices to produce.
11. Mr Lambert submitted that RDS had served its evidence in chief in the proceedings, which comprised only one affidavit, and that it was unlikely that discovery or subpoenas would be required in the particular circumstances of this case. Even if they were required, they would be limited and the allowance of 100 hours was excessive. He submitted that these matters taken together warranted a material reduction in the amount claimed by the defendants.
12. While Mr Walker submitted that the Court should approach these submissions with caution because Mr Buchanan had not been cross-examined, Mr Walker conceded that Mr Lambert's submissions, if accepted, provided a proper basis for the Court to make some reduction in the amount claimed. In the end, both parties submitted that the amount that ought to be deducted was a matter for the Court.
13. In a similar vein, I also raised with the parties the possibility that the Court might order security in two tranches: an initial tranche to cover the period up to and including a mediation, to be followed by a second tranche if the matter proceeded to hearing. Without intending any criticism, the calculations of costs in Mr Buchanan's affidavit were not set out in a way that enabled the Court to easily determine how such a division might be achieved. I invited the parties to agree on figures representing such a division. In the time available during the course of the hearing they were not able to do so, but both parties accepted that this was another matter which the Court could deal with in the exercise of its discretion in a broad brush way.
14. For the reasons set out at [25] to [36], the Court concluded that: 1. The Court's jurisdiction to order security for costs had been enlivened; 2. Accepting Mr Lambert's submissions set out at [33] and [34], the amount of security sought by the defendants should be reduced to $250,000; and 3. In circumstances where the evidence did not permit a straightforward calculation of how much should be paid up to mediation and then for the proceedings thereafter, the appropriate course would be for half the sum to be paid for the period up to and including mediation and the other half to be paid in respect of the balance of the proceedings.

RDS' motion for security

1. Mr Walker accepted that, given the matters set out at [19] above, the Court's jurisdiction to make an order for security for costs in respect of UK's cross-claim was enlivened. However, he submitted that in the exercise of the Court's discretion, no such order should be made for at least two reasons, both of which the Court accepts: 1. On no view, and notwithstanding the cross-claim, could RDS be seen as the defendant in the overall proceedings; and 2. The evidence did not permit any rational way of identifying costs which might be solely referable to the cross-claim as opposed to the defendants' Special Defences to RDS' claim.
2. It will be apparent from what I have said at [25] that the Court accepts the submission that RDS cannot be characterised as the defendant in these proceedings. That conclusion is reached notwithstanding the presence of the cross-claim. The cross-claim is no more than the technical means by which the defendants give effect to what they say is the consequence of the acceptance of the Special Defences. Those Special Defences are clearly brought in defence of RDS' claim, but have an incidental positive effect conferring an arguable right of recovery of an amount paid to RDS if those Special Defences are made out. Putting it another way, except for some conclusory submissions that will be peculiar to the cross-claim, everything else relevant to the cross-claim will nevertheless have to be dealt with in RDS' proceedings in considering the Special Defences.
3. I have noted that the parties accepted that their respective prospects of success in the proceedings were a neutral factor on the question of whether security for costs should be ordered. However, even assuming for the sake of the argument in favour of RDS that the Special Defences are likely to fail, Mr Lambert accepted that the evidence did not permit the Court to dissect the various tasks in the litigation so that a figure reflecting only those matters referable to the cross-claim could be determined. He fairly submitted that, as a matter of proportionality, his client would not be entitled to security in the sum of $291,000 in respect of a cross-claim for $19,250. He submitted that there should be a reduction of 60%, but that this was only a "guesstimate". The reality is that there was no evidence as to the legal costs that might be generated solely in respect of the cross-claim as opposed to matters required to be considered in RDS' claim.
4. The Court's discretion in relation to security for costs is wide, but it must be exercised judicially and for proper purposes. This requires there to be an evidentiary basis on which the Court may rationally come to a particular conclusion. In the absence of any evidence that enables it to do so, even if the Court were otherwise minded to grant RDS security for its costs for matters solely referable to the cross-claim that will not be dealt with in relation to the Special Defences, the evidence does not permit such an amount to be rationally determined.

RDS' application for an injunction against EP469

1. EP469's principal asset is the Permit. RDS sought an injunction restraining EP469 "from disposing of any of its interests in Exploration Permit 469 except to a bona fide third party for value".
2. No one suggested that RDS had an in rem claim to the Permit. In those circumstances, while Mr Lambert resisted the description, Mr Walker submitted (and the Court accepts) that what RDS was seeking was an injunction in the nature of an asset preservation order. It was an order, with attendant mechanisms, designed to prevent EP469 from dealing with the Permit other than, in effect, in the ordinary course of business. Mr Walker submitted (and again the Court accepts) that to demonstrate an entitlement to such an order, it would be necessary for RDS to show that there was a risk that EP469 would dispose of the Permit so as to frustrate any judgment which RDS might ultimately obtain against EP469.
3. Mr Lambert submitted that the Court should find there was such a risk, not because of anything which EP469 had done or was threatening to do in relation to the Permit, but because of changes that had occurred in relation to the ownership of EP469. The uncontradicted evidence was that at the time the parties were dealing with each other, UK was the sole shareholder of EP469 and UK was itself a wholly-owned subsidiary of Warrego Energy Ltd. After the proceedings had commenced and before the filing of the defence, UK transferred its ownership of EP469 directly to Warrego Energy Ltd. As recently as 5 January 2021, Warrego Energy Ltd had ceased to be the direct holding company of EP469 and had transferred its ownership of EP469 to a new holding company, Warrego Australia Holdings Pty Ltd. Warrego Australia Holdings Pty Ltd is a $1.00 company which owns no real property in Australia. Mr Lambert also relied on the fact that the third defendant, Mr Donald, is the Chief Executive Officer of the Warrego Group of Companies and the Managing Director of Warrego Energy Ltd, a director of EP469 and the Managing Director of UK, such that it was reasonable for the Court to infer that he knew of and approved the changes in the ownership of EP469.
4. I do not accept that the proven changes in the corporate ownership of EP469 are a proper or sufficient basis for the Court to infer that there is a risk that EP469 might dispose of the Permit so as to frustrate any judgment which RDS might obtain. There is no evidence that any transfer of the Permit has been threatened or contemplated by EP469. The inference which Mr Lambert invites the Court to draw does not arise as a matter of logic, legal or commercial, from the fact that there have been changes in the ownership of EP469 itself. Whatever rights RDS may have in relation to the alleged commission agreement, they are against EP469 and UK. In the absence of any evidence whatsoever that EP469 is or may be intending to sell the Permit on any basis, let alone for something other than proper consideration, the Court does not accept that RDS is entitled to an injunction of the kind which it seeks.
5. I also record that the Court would not have granted an injunction in the absence of an undertaking as to damages. As Mr Walker pointed out, no such undertaking was proffered by RDS.

Conclusion

1. At the conclusion of the hearing I gave the parties draft proposed orders. The parties will be afforded an opportunity to agree upon those orders to give effect to these outcomes: 1. RDS is to provide security for the defendants' costs of the proceedings to be paid in two tranches. The first tranche is to be paid in the near future at a time which the parties agree or the Court determines, in the amount of $125,000. The second tranche is to be paid 14 days after an unsuccessful mediation, also in the amount of $125,000. 2. RDS' proceedings are to be stayed while either tranche which has become payable has not been paid. Failure to pay a tranche that has become payable is to result in the dismissal of RDS' proceedings. 3. The relief summarised in the two preceding sub-paragraphs is conditional upon UK undertaking to the Court that while RDS' proceedings are stayed, UK will not prosecute its cross-claim, and that if RDS' proceedings are dismissed for non-payment of security, UK will consent to its cross-claim also being dismissed. 4. RDS' motion against UK for security for costs and an injunction will be dismissed. 5. Costs should follow the event so that RDS will be ordered to pay the defendants' costs of both motions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2021