Corporations - Court's discretion as to whether to order repayment of moneys, or damages.

Companies (Queensland) Code ss.5(1), 5(4), 94(2), 95, 169

Solicitors for the applicant: Australian Securities Commission

Solicitors for the respondent: Paul Williams and Associates

(a) issuing, in breach of s.1019 of the Corporations Law, a form

of application for the issue of, or an invitation to subscribe

for or buy, securities of a corporation that has not been

formed;

(b) making available, offering for subscription or purchase, or

issuing an invitation to subscribe for or buy, any prescribed

interest within the meaning of s.1064(1) of the Corporations

Law, contrary to the provisions of that sub-section-

where such corporation or prescribed interest has any

connection with Estate Mortgage Depositors Trust No. 4.

The respondent pay the applicant's costs of and incidental to these

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an application made under the Companies (Queensland) Code and the Corporations Law to restrain the respondent from conduct which, if the allegations made are accepted, might be described as illegally inviting subscriptions of money for the purposes of a business venture. The applicant, the Australian Securities Commission, also asked for an order that money collected by the respondent be paid back.

2. The respondent is an accountant. Many of his clients, on his advice, invested monies in what are called in the evidence Estate Mortgage Depositors Trusts. It is common ground that those moneys are in danger of being lost. The application relates to the activities of the respondent in, as he would have it, attempting to assist his clients and others similarly placed to recover their money invested in one of the Trusts, namely Estate Mortgage Depositors Trust No. 4. The respondent gave evidence that his clients, 50 to 60 in number, invested about $750,000 in Estate Mortgage Depositors Trust No. 4.

3. The respondent spent a considerable amount of time and money investigating the affairs of Trust No. 4, attending meetings relating to it and communicating with beneficiaries under that Trust; the content of these communications has resulted in his being sued in these proceedings. He began by asking beneficiaries under the Trust for money to fund the work he had undertaken in their interests, but later - and this is the complaint made against him - asked that funds be sent to him, at least partly for the purpose of investment in a new entity which he proposed to establish.

4. The application is based upon provisions of the Companies (Queensland) Code ("the Code") and upon those of the Corporations Law; the latter came into force on 1 January 1991. The applicant alleges breaches of ss.95 and 169 of the Code.

5. Section 95 reads, so far as relevant, as follows:

"(1) It is unlawful to issue -

(a) a form of application for shares in, or debentures of, a

corporation that is to be formed ...

(2) Sub-section (1) does not apply if-

(a) the form is not issued to the public;

(b) the invitation or offer to which the form relates is not

issued or made to the public".

Section 169 reads as follows:

"A person, other than a company or an agent of a company authorized

for that purpose under the common or official seal of the company,

shall not issue to the public, offer to the public for subscription

or purchase, or invite the public to subscribe for or purchase, any

prescribed interest".

6. As counsel for the respondent, Mr David Hall, emphasised, there is no liability under either provision if there is no issue or offer to the public, made or in contemplation. However, s.5(4) of the Code provides, among other things, that:

"A reference in this Code to, or to the making of, an offer to the

public or to, or to the issuing of, an invitation to the public

shall, unless the contrary intention appears, be construed as

including a reference to, or to the making of, an offer to any

section of the public or to, or to the issuing of, an invitation to

any section of the public, as the case may be, whether selected as

clients of the person making the offer or issuing the invitation or

in any other manner ...".

7. Counsel for the respondent argued that on the facts set out below, it should be held that the requirements of s.5(4) were not satisfied.

8. As to the Corporations Law, breaches of ss.1019 and 1064 were alleged. These provisions correspond with those of the Code which have just been mentioned, but an important difference is that the Corporations Law does not require that there be an offer to the public. Section 1019 reads, so far as relevant, as follows:

"A person shall not:

(a) issue a form of application for the issue of, or an invitation to

subscribe for or buy, securities of a corporation that has not

been formed ...

...

even if it is proposed to form the corporation".

Section 1064 of the Corporations Law reads, so far as relevant, as follows:

"A person, other than a public corporation, must not make available,

offer for subscription or purchase, or issue an invitation to

subscribe for or buy, any prescribed interest".

The expression "prescribed interest" is defined in a way which is discussed below.

9. The applicant delivered particulars of its claim on 9 April 1991. Annexed to that document there are to be found copies of reports which the respondent sent out in November 1990, December 1990, January 1991 and March 1991. The applicant has caused parts of each copy to be underlined in blue, red or green ink or combinations of those colours. The underlining has significance as showing which part of each report is relied on as supporting each separate allegation of breach. In order fully to comprehend what the respondent is alleged to have done, it is necessary to read the underlined parts in their context. What I propose to do in these reasons is to state what the effect is of those parts of the three reports which are relevant.

10. Each of the three reports was sent to numerous people; the precise number is unknown. The respondent said that, to save money, he sent the November 1990 report only to those unit holders in Estate Mortgage Trust No. 4 who had invested $3,000 or more in that trust. In respect of the December and January reports, he set higher cut-off points, but seemed uncertain precisely what they were.

11. The November 1990 report told the recipients that they were to be offered "AN OPPORTUNITY TO SEPARATE THE NO 4 TRUST WHEREUPON YOUR CHANCE OF FULL RECOVERY WILL BECOME VERY STRONG". The report went on to suggest that unless it were separated from the rest of the trusts, No. 4 would go down with them. The report placed emphasis upon the prospect of fully recovering all losses. It proposed the establishment of a limited company with a single share "issued and held by preferably all current unitholders in Depositors Trust No 4 ONLY". It said that the company would be trustee for a unit trust, the holders of units in which would be "all No. 4 unitholders who have contributed to its establishment". The document went on: "A further beneficiary of the Unit Trust would be Estate Mortgage Depositors Trust No. 4". It suggested that the company so constituted would sue to recover losses and that "(t)o take this action in the name of Depositors Trust No. 4, may place all the assets of No 4 in jeopardy if the action was lost. This separate Company would obviate this risk." The document went on: "... if a legal action was taken and lost, the Company and not the unitholders is liable."

12. This is not easy to follow. One may agree that there would be a risk as to costs falling on someone if a suit brought to recover losses of Trust No. 4 failed, but how that risk would be avoided by forming a new company is unclear; presumably those sued would seek security for costs. When asked about this at the hearing, the respondent explained (in a passage which is incompletely recorded in the transcript) that he was concerned that the parties sued might recover damages; he appeared to me to imply that it was the risk of being sued for damages for bringing an unsuccessful suit that he was concerned about. He gave no clear explanation as to how any right which the trustee of Trust No. 4 might have to recover losses incurred would be vested in the new company.

13. The report went on to say that if the action succeeded, then such part of the proceeds as was "by nature, income" would go to the "unitholders of the newly established unit trust". Such part of the proceeds as was of a capital nature would be paid firstly in refund of contributions by unit holders of those trusts and secondly "to the No 4 Trust to recover capital losses made therein".

14. The respondent gave a different account of his intention as to the proceeds, when asked about the point at the hearing in this Court; he said that all the unit holders in Trust No. 4 would be beneficiaries of the new trust, whether they had subscribed or not.

15. Although the respondent claimed to have discussed with lawyers his idea of setting up a separate entity to sue for the Trust's losses, my impression is that he had taken no definitive advice about it. One thing which became clear from the reports complained of by the applicant was that the respondent regarded the legal situation relative to Trust No. 4 as extremely complex. It had, he believed, wrongly been used to give security to support the liabilities of other trusts. It had been wronged in other ways. The general idea he had in mind was to achieve a disentangling of Trust No. 4 so that, relieved of the obligations to which he thought it had wrongly been subjected, it could (by use of the new entity he wished to form) sue to recover large sums of money, including sums due on a bank guarantee.

16. As will appear, it is relevant to consider not only whether what the respondent did was lawful, but also whether it was blameworthy in a broad sense. The respondent's legal ability was not at such a level as to enable him to form a useful opinion as to whether or not the scheme he had in mind was feasible. In my opinion, the respondent did not act sensibly in soliciting money from people who were, justifiably, anxious about the fate of their investment, to go into a hazily formulated scheme of this kind. The respondent must have known that the people who received his reports, or at least some of them, might grasp at any straw and might assume that the proposal for the formation of a new entity had been determined, on competent advice, to be legally feasible.

17. The November report attached an invoice from the respondent for "Professional Costs, Research and Reporting expenses". It solicited payment of sums varying between $50 and $500, depending on the amount invested. There followed a note:

"UNITHOLDERS WHO HAVE ALREADY PROVIDED SUPPORT ARE ASSURED THEY WILL

RECEIVE THEIR SHARE/UNIT ENTITLEMENT. FURTHER PAYMENT AT MINIMUM LEVEL

(IF AVOIDABLE) WILL INCREASE UNIT ENTITLEMENT."

18. On the same page appeared a note with a space for signature at the foot, contemplating that the signatory would agree to -

"... accept a partial refund of this account from G. A. Sackley and

Associates of 25 Grafton Street, Cairns, Qld in the form of one share

and units in a Company and Unit Trust respectively to be established for

the purpose of formulating and effecting legal action against those

parties which have financial damage to Estate Mortgage Depositors Trust

No 4".

Commenting on the account just described, the report said:

"At the bottom of the account, is a direction from you, as a unitholder

in Depositors Trust No 4, THAT YOU WOULD ALLOW ME TO REFUND TO YOU A

PORTION OF YOUR PAYMENT. THAT REFUND WOULD BE PAID TO YOU IN THE FORM

OF ONE SHARE IN THE COMPANY AND UNITS IN THE UNIT TRUST THAT IS TO BE

ESTABLISHED BY ME TO FUND AND FIGHT, FUTURE LEGAL ACTION."

19. The report also discussed the sorts of action which might be taken to recover the losses incurred by the trust. It urged "ALL UNITHOLDERS IN DEPOSITORS TRUST NO 4 TO MAKE SOME CONTRIBUTION TO OUR CLAIM FOR COSTS". It expressed the author's determination to see a full recovery of moneys outstanding to unit holders.

20. The December report, again, suggested that there were advantages in separating the control of Trust No. 4 from that of the other trusts. It complained of the high costs being earned by the incumbent trustees and "horrific" legal fees.

21. In discussing the unravelling of the "intertwining of the mortgages" by a "process of exchanging securities at their face value", it was said that Trust No. 4 might be "restructured". However, those who required full details of that proposal had to phone or write to the respondent's office. The report said, "You must be a contributor to receive this Report", and that:

"As stated in the last Report Update, unit holders who render financial

assistance will be given a share and units in a corporate unit Trust to

be established for future litigation purposes. Those unit holders and

not the Trust, will share all recovered income resulting from action

against the Hong Kong Bank. This action will commence IMMEDIATELY the

No 4 Trust is successfully separated from the other five Trusts."

This report, again, sent an invoice for professional costs claiming a fee of from $50 to $500, depending on the amount of the recipient's interest in the trust. It also contained a statement of request along the same lines as that in the November report.

22. The January 1991 report urged separation of No. 4 Trust from the other funds and urged recipients to respond immediately. It advanced arguments in favour of separation of No. 4 along the same lines as the previous reports and, again, contained an invoice of professional costs and a statement of request in similar terms to the preceding reports.

23. The last report, sent in March, mentioned the advantages of separation. It explained that the respondent was incurring significant costs and requested a contribution to those costs, but did not include any such invoice or statement of request as accompanied the previous reports.

24. On the basis of the various identified passages in these reports, the applicant alleged the following infringements.

This allegation that the respondent breached s.95 of the Code was said to be constituted by passages in the November and December reports representing that the unit holders would receive a share in a corporation to be formed.

25. Section 95 of the Code, quoted above, made it unlawful to issue a form of application for shares in a corporation to be formed, but excepted instances in which there was not to be an issue to the public.

26. I find that each of the November report and December report constituted an issue of such a form of application as mentioned in s.95(1)(a) of the Code. There were, therefore, two breaches of s.95, if the form was issued to the public or the invitation or offer to which the form relates was issued or made to the public; here, the same points seem to be involved under para.(a) as under para.(b) of s.95(2).

27. The notion of an issue to the public is not defined in the Code, but s.94(2) has the effect, so far as relevant, that for the purposes of the application of s.95 -

"... if forms referred to in the section concerned that are the same or

substantially the same are issued to the public or are issued to any

section of the public, whether selected as clients of the person issuing

the forms or in any other manner, each of the forms shall be deemed to

be issued to the public notwithstanding that each form may be used only

by the person to whom it is issued ..."

28. In short, an issue to any section of the public is taken to be an issue to the public, for the purposes of s.95; further, it is clear from s.94(2) that selection of recipients on the basis that they are clients of the person issuing the form may be enough to make the recipients a "section of the public".

29. Each of the reports in question was sent to a substantial number of persons. The respondent estimated that the November report was sent to 7,500 to 8,000 persons. Only a few of the recipients were clients of the respondents; nearly all of them were strangers to him. There is evidence that he met some of them at meetings of unit holders, but the recipients of the reports were not selected as having met or being otherwise acquainted with the respondent; they were simply taken from a list, to which the respondent had access, of all the unit holders in No. 4 Trust. The criterion of inclusion was the amount of their investment.

30. The High Court had to consider s.94 of the Code in Corporate Affairs Commission (South Australia) v Australian Central Credit Union [1985] HCA 64; (1985) 157 CLR 201. The tests adopted in the principal judgment need not be set out at length, but reference should be made particularly to pages 208 and 209. It is enough to say, for present purposes, that an offer is less likely to be caught as made to a "section of the public" if there is a "some subsisting special relationship between offeror and members of a group or some rational connexion between the common characteristic of members of a group and the offer made to them". In Hurst v Vestcorp Ltd (1988) 6 ACLC 286, in a scheme promoted by one Fox, offers were made to 160 persons of whom 140 had borrowed money from the offeror company, Filmco Ltd. The majority of the Court of Appeal held that there had been an offer to the public. Despite the date of the case, the question depended upon the 1961 Companies Act, not the 1981 Code, but it does not appear to me that the 1961 provisions were, for present purposes, significantly different from those enacted in 1981 in determining that there had been an offer to the public. McHugh J.A. (as his Honour then was) relied on the fact that those to whom the offer was made came from every Australian State, that various marketing methods were used by Fox, including an offer of commission to accountants introducing investors, and that it should be inferred that the offerees were accepted as investors as members of the public.

31. In my opinion, the circumstances here point strongly towards the conclusion that the offers were made to a section of the public; they have at least as strong a claim to be so regarded as did the offers in Hurst v Vestcorp Ltd. The offerees were numerous and, in general, unknown to the offeror. It was no personal characteristic which resulted in their selection, nor any connection, direct or otherwise, with the respondent which did so; their names were simply taken from a long list of those unfortunate people who had invested in an enterprise which had gone bad. If all those persons on the list which the respondent obtained had been sent the offer, then there could hardly have been any doubt about the outcome; the fact that smaller investors were excluded cannot save the respondent. The only circumstance which could do so is that there was a connection between the characteristic which resulted in the selection of the offerees and the offer made to them. Although, as I understand the High Court case discussed above, that must assist the respondent, it surely cannot be a strong point in his favour. If a section of the public is selected as having some characteristic, such as owning a certain sort of property, it must often be the case that an offer made to them by an entrepreneur has to do with that characteristic. It is not easy to see why a loan offer made to members of the public selected as owning expensive houses should be treated as not made to a section of the public because the offer is to advance money on the security of the offeree's house, rather than simply to advance money.

32. In my opinion, the point raised by Mr Hall against the first allegation made in the particulars (which makes, as I have pointed out, two allegations in truth) must be held to fail.

2. The respondent admitted, through his counsel, a breach of s.1019 of the Corporations Law in respect of the December, January and March reports, on the basis that each contained a representation to the unit holders that if they paid a contribution to the respondent they would receive a share in a corporation that had not been formed. I accept the admission with respect to the December and January reports but not as to the March report. It does not appear to me that there is anything in the March report which could constitute a breach of s.1019; that provision corresponds with s.95 of the Code, but applies whether or not there has been an imputation to the public.

3. The third allegation in the particulars is that the respondent breached s.169 of the Code in respect of the November and December reports, by representing that if those who received them paid a contribution to the respondent, they would receive units in a unit trust to be established. Section 169 of the Code is set out above.

The question is whether there was any "prescribed interest" involved. That is defined in s.5(1) as meaning, amongst other things, a "participation interest", and that in turn is elaborately defined. I do not here set out the whole of the definition, which is very wide. The most relevant part is as follows:

"'participation interest' means any right to participate, or any

interest -

(a) in any profits, assets or realisation of any financial or business

undertaking or scheme whether in the State or elsewhere;

(b) in any common enterprise, whether in the State or elsewhere, in

relation to which the holder of the right or interest is led to

expect profits, rent or interest from the efforts of the promoter

of the enterprise or a third party; or

(c) in any investment contract ..."

33. The difficulty, as it seems to me, is to think of a good reason why what was offered was not a "participation interest". The offer made by each of the November and December reports was that if money was subscribed, then amongst other advantages the offeror would obtain an interest in a trust which would ultimately distribute money obtained by asserting rights against others. If successfully asserted, those rights would undoubtedly produce assets, namely moneys, and it seems to me to matter little whether one regards what was offered as an interest in those assets or in their realisation.

4. The fourth allegation is admitted. It is of a breach of s.1064 of the Corporations Law in respect of the December, January and March reports in representing to unit holders that, if they paid a contribution, they would receive units in a unit trust to be established. The relevant part of s.1064 is set out above.

35. The expression "prescribed interest" is, again, defined as including a "participation interest". The definition of "participation interest" differs from that in the Code, but not in any way which assists the respondent.

36. I am therefore prepared to accept the admission and find the breaches alleged in the fourth particular, except that again I can see nothing in the March report which could justify the allegation.

37. That is, I hold that there was a breach as alleged in respect of the December and January reports, but not in respect of the March report.

5. The fifth allegation again relies on the November and December reports. It asserts that s.169 of the Code, set out above, included a representation to the unit holders in Trust No. 4 that if they paid a contribution they would receive a right to participate or an interest in the sum they invested in Trust No. 4 or interest on that sum or the contribution paid - if moneys were recovered under the scheme.

38. As I have mentioned above, in discussing the third allegation, the expression "prescribed interest" in s.169 is defined in such a way as to include a "participation interest" and that is widely defined. In my opinion, it is clear that subscriptions were invited for a prescribed interest as defined, for the reasons already set out. I do not hold, however, that there is any extra breach involved. Although each of the November and December reports constituted a breach of s.169 of the code, each constituted one breach only. The theory upon which the particulars are drawn is that those parts of the two reports which offered an interest in the new entity constituted one breach and those parts which offered the prospect of the offerees' money being returned constituted another breach. Although the language used in the reports is in some respects vague, and in others rather contradictory, it is rather artificial to say that there was a breach as to the offer of an interest in the new entity and another breach as to the offer of repayment of money which that interest would produce.

6. The sixth breach alleged is, like the fourth, based upon s.1064 of the Corporations Law. It is open to the same criticism as the fifth: it attempts to extract two breaches from each of the relevant reports, whereas in truth there is only one in each. Again, I am not prepared to find that the sixth allegation is made out.

39. The result is that I find that there were two breaches in respect of each of the first four particulars.

40. An important issue in the case is whether an order should be made against the respondent, based upon my findings, for repayment of funds collected. The application sought an order that the respondent return or repay to each payer all moneys paid to him "pursuant to any of the conduct" referred to in the application. After the evidence was closed and during the course of addresses, counsel for the applicant sought to amend that claim for relief, to add a claim for an order requiring the respondent to identify presently unidentified contributors. In the alternative, it was suggested that the Court might order that the respondent use his best endeavours to identify those people. Further, counsel for the applicant sought to amend, at that stage, to claim damages. I refused leave to amend in the first respect, but allowed an amendment as to the second - that is, by adding a claim for damages.

41. It was argued that the orders sought could be made under s.1324 or s.1325 of the Corporations Law, and I proceed on the assumption that that is so. It requires to be emphasised that these provisions do not create any right to a payment, but give the Court a discretion. The exercise of that discretion may require the Court to look at the whole of the circumstances in which the payments were obtained by the respondent, including the general blameworthiness of what was done.

42. At first sight, there is something to be said for the view that the respondent should be ordered to make a repayment. He obtained substantial sums by use of the reports. Further, the circumstances in which he did so are not entirely to his credit. He did not have any clear idea of what the new entity was to do, nor was its intended functioning ever subjected to proper legal scrutiny. There is reason to think that the respondent was conscious of these deficiencies in his proposals and, rather recklessly, put them forward as a means of inducing people to pay him money to reimburse him for the work he was doing in relation to Trust No. 4.

43. There are other questionable features. The respondent admitted that he did not keep a proper record of the moneys received. Further, he exaggerated whatever confidence he felt in the prospects of ultimate recovery of the depositors' funds.

44. On the other hand, his role was by no means wholly a reprehensible one. It is my opinion that, to a considerable extent, the respondent was motivated by a desire to assist the depositors in Trust No. 4 (and particularly his own clients) rather than by a money-making motive or a purpose of publicising himself. I have the impression that he found the whole enterprise exciting. It put him near the centre of events of national significance, an experience which he might not, perhaps, previously have had. If successful, he might gain the satisfaction of helping others who had been treated badly - including local people whom he had advised to buy units in Trust No. 4. What he was engaged in was by no means a cold-blooded money-grubbing venture. He was carried away by enthusiasm which caused him to put forward proposals which were ill-considered and, as I have held, unlawful.

45. The respondent's evidence was to the effect that the expenses he incurred in sending the reports out were high, and that he and members of his family (who assisted him in the work) did not do well financially from the work. The respondent asserted that his involvement in the matters referred to above cost him, rather than made him, money and I could not, on the evidence, find otherwise.

46. The evidence given on behalf of the applicant was to the effect that a sum of little over $39,000 was received by the respondent as contributions from identified people who had received his reports. According to the respondent's evidence, the amount he received in this way was a little over $70,000. I have no confidence in the latter figure, in view of the unsatisfactory nature of the respondent's records. The witness Suzanne Kneeves, who gave evidence by telephone (a course which did not prove inconvenient) did her best to arrive at a proper figure for the amounts received by use of the reports; her total came to a little under $85,000. I am satisfied that Miss Kneeves performed her work with care and think the total amount received was probably closer to $85,000 than to $70,000. It is, of course, remarkable that no proper record is available of the amounts received and those who paid them.

47. As counsel for the applicant recognised, it would not be possible to make a proper return of the moneys collected because it is not clear how much was collected, and more importantly, much of what came in has no identified source. I would accept that, in general, moneys raised by breaches of the provisions referred to above should be returned to the payers. If they could not be identified, one's inclination would be to arrange matters, if possible, so that they were not simply kept by the wrongdoer. But here the moneys raised were, on the face of the reports, solicited to assist in the work which the respondent was doing, as well as by way of payment for an interest in the new entity to be formed. The applicant did not set out to prove that that work done by the respondent was of no value. In my opinion, the character of the payments has been dual: partly a contribution to the respondent's work generally, and partly payments towards the new entity; this puts this case in a special category.

48. I also take into account that (in my view), the respondent should pay the applicant's costs of these proceedings and they will, no doubt, be substantial.

49. In the whole of the circumstances, I have determined that there will be no order for repayment, nor for damages.

50. It was suggested on behalf of the respondent that an injunction might be unnecessary because the respondent would adhere to the view of the law expressed in the Court's reasons. I think he may well do so, but that it is desirable to discourage any further attempts to raise money for a new entity by granting an injunction. The orders will be as follows:

1. That the respondent be restrained from:

(a) issuing, in breach of s.1019 of the Corporations Law, a form of

application for the issue of, or an invitation to subscribe for

or buy, securities of a corporation that has not been formed;

(b) making available, offering for subscription or purchase, or

issuing an invitation to subscribe for or buy, any prescribed

interest within the meaning of s.1064(1) of the Corporations Law,

contrary to the provisions of that sub-section-

where such corporation or prescribed interest has any

connection with Estate Mortgage Depositors Trust No. 4.

2. That the respondent pay the applicant's costs of these

proceedings in an amount to be agreed.

51. There will be liberty to apply; if the parties cannot agree on the amount of costs, I shall fix them myself.