MFGA was part of a global group of companies, known as the MF Global Group, and its ultimate holding company was MFGH, which was incorporated in Delaware in the United States. On 31 October 2011, MFGH filed for protection under Chapter 11 of the Bankruptcy Code (US) and MFGA was then placed in administration and subsequently passed into liquidation.
Mr Hopper was employed by the predecessors of MFGA from 3 August 1998. A letter dated 3 August 1998, signed by Mr Fay on behalf of Ord Minnett Group Limited, documented the terms of Mr Hopper's then employment as a commodities broker within its futures department. Clause 12 of that letter contemplated that either party could terminate the arrangement by one month's notice in writing other than for misconduct, incompetence or prejudicial behaviour. Mr Hopper was subsequently appointed as the head of the Agricultural Commodities Desk in 1999 (Hopper 28.2.14 [15], Fay 27.2.14 [3]). As part of arrangements for the sale of Ord Minnett Group Limited's futures business, Mr Hopper's employer changed from Ord Minnett Group Limited to Ord Minnett Jardine Fleming Futures Limited from 30 March 2001 (Ex P5, 10), and Mr Hopper was employed by that entity (which later changed its name to MFGA) in the position of an agricultural broker, initially on the terms of a letter dated 22 March 2001. Under informal arrangements made in 2001, Mr Hopper was given the ability to determine bonus arrangements for staff of the Agricultural Commodities Desk, including himself, subject to Mr Fay's approval. Mr Hopper's base salary or "draw" was increased to $250,000 per annum from 1 May 2010 (Ex P5, 94).
In Mr Hopper's second affidavit, he refers to conversations with Mr Corzine, commencing in October 2010, about his undertaking principal trading and he gives evidence, admitted as his understanding only, that the conversations referred to MF Global and its subsidiaries, including MFGA. It seems to me more likely that Mr Corzine's attention was directed to the entity of which he was Chief Executive, MFGH, or to US entities within the MF Global Group, rather than to MFGA. Mr Hopper also refers to communications between him and an employee of the MF Global Group in the United States, Ms Cantor, from late October 2010, by which he made trading suggestions for trades by the Principal Strategies Group within the MF Global Group, and a number of emails concerning such trades are in evidence. Mr Hopper also refers to a suggestion by Mr Blomfield (who was, as I noted above, the chief executive officer of MF Global Group's Asian Region) concerning his taking up principal trading and to a request that Mr Hopper be available for a meeting with Mr Corzine on 18 February 2011, which was also attended by Mr Fay, as I noted above.
In February 2011, Mr Hopper met with Mr Corzine and Mr Fay. In his affidavit dated 28 February 2014, Mr Hopper gives evidence that that meeting included discussion of Mr Hopper's then salary, and Mr that Corzine said, in respect of a proposed arrangement for Mr Hopper to undertake principal trading, that:
"I'll structure it that once you make $5 million for the year, you will get 20% over that as a bonus. Given it is close to the end of the fiscal year it will be easier to set your accounts up for the start of the new [US] fiscal year in April.
I want you to continue doing what you're doing with [US executive] on my account. What I'll do is pay you 20% of the profits on the trades you have already done and anything else you make to the end March.
I'd like you to move to New York, you and your family will love it there. We'll set you up in a nice brown stone on the upper east side or upper west side. I'm on a few school boards so we can get your kids into great schools. We've got guys in New York who'll look after all this and you won't be out of pocket.
I've heard you like to do handshake deals."
Mr Hopper refers to Mr Corzine having "stuck out his hand" and asked whether they had a deal, Mr Hopper's evidence is that he was reluctant to shake Mr Corzine's hand and commit to the deal before speaking to his wife, and he refers to his concern that, if Mr Corzine left the MF Global Group, it would shut down its principal trading business and return to an agency business, and to further discussion between Mr Corzine and Mr Hopper as to Mr Hopper's need to discuss the matter with his wife. Mr Hopper says that Mr Corzine then said that:
"I'm not going anywhere; I've got some big plans here with the company. I do understand your concerns, so I will guarantee you $2 million over the two years, so $1 million a year guaranteed, if you get terminated without cause, we'll pay you the $2 million on termination.
I'll also offer you a free put if you ever get terminated and find you something else to do in the company if you want it for $500,000. … [sic] guaranteed for a year.
My wish and desire is that you move to New York. But I understand you have commitments down here in Oz. If we can't get it to work in New York, I am comfortable in you working in Australia as long as you to come to New York sometimes so that I can eye ball you.
We are a global company and have people doing different things all over the world.
Garry, I am not taking no for an answer. Have we got a deal?"
Mr Hopper's evidence is that he then said "Yes" and he and Mr Corzine then shook hands.
Mr Fay's account of the meeting between Mr Corzine, Mr Fay and Mr Hopper is that it went for approximately 30 minutes, and that a conversation took place in words to the following effect:
"Corzine said: 'Garry, you are a good trader. I would like you on my staff. I want you to move to New York. We want to beef up the proprietary trading side of the business. I am not taking no for an answer. What are you earning now?'
Mr Hopper said: 'About a million a year'.
Jon Corzine replied: 'I'll guarantee that for two years and 20% of what you make above $5 million in trading.'
There was some discussion around existing trades the detail of which I don't recall.
Garry Hopper said: 'What happens if it doesn't work out?'
John Corzine said: 'If it does not work out you can have the option of going back into your old job.'"
There are significant differences between Mr Hopper's and Mr Fay's evidence as to the meeting on 18 February, particularly so far as Mr Hopper refers to matters which Mr Fay does not address. Mr Fay's account of the conversation supports at least the proposition that Mr Corzine's discussion with Mr Hopper contemplated that Mr Hopper would move to New York, and possibly also that he would work with US entities within the MF Global Group, so far as Mr Corzine referred to his wish to have Mr Hopper "on [his] staff" as well as to his wish that Mr Hopper move to New York. Mr Hopper's, but not Mr Fay's evidence, refers to discussion of payment of a share of profits to Mr Hopper in respect of trades done up to March 2011, a suggestion that Mr Corzine was comfortable with Mr Hopper working in Australia rather than New York, Mr Corzine's question "have we got a deal?" and with shaking of hands on the deal. The liquidators submit, and I accept, that the absence of evidence corroborating this aspect of Mr Hopper's account is significant. The liquidators also submit that, even if there had been a shaking of hands at that meeting, it would have been of limited significance, and refer to Gleeson CJ's recognition that such conduct may be potentially ambiguous in Geebung Investments v Varga Investments (1995) 7 BPR 14,551 at 14,552. I accept that submission.
I do not accept Mr Hopper's evidence that Mr Corzine agreed, at the February meeting, that Mr Hopper could trade from Australia. That evidence is not supported by Mr Fay's evidence of the meeting, which does not refer to such an agreement. That proposition is inconsistent with the fact that, as I will note below, Mr Fay's references to the possibility of Mr Hopper being permitted to trade from Australia in subsequent correspondence do not treat that matter as having been previously agreed, and Mr Hopper does not refer to such an agreement at times that he would be expected to do so, had it previously been reached, and also later expresses doubt as to the feasibility of that course without suggesting that it had been previously agreed. The liquidators submit that Mr Hopper's evidence that Mr Corzine agreed that Mr Hopper was not required to relocate to the United States was an invention, intended to improve Mr Hopper's case and provide the means for explaining away the fact that he would not relocate to New York. It is not necessary for me to reach that finding, and it may be that Mr Hopper is genuinely mistaken in his recollection of events. I do, however, find, having regard to the balance of the dealings between the parties to which I refer below, that Mr Corzine had not then agreed to an arrangement by which Mr Hopper could undertake principal trading in Australia rather than New York. While Mr Hopper immediately commenced such trading in Australia pending his possible relocation to New York, an agreement that he could continue such trading from Australia in the longer term was not reached until a much later time.
That finding is of considerable importance because, where that matter had not been agreed, it seems to me inconceivable that the parties, and particularly Mr Hopper, would have objectively intended to be contractually bound by discussion of these matters at the 18 February meeting. The most obvious reason why they would not have held that intention is that it would have been entirely inconsistent with Mr Hopper's consistent position, explained to Mr Corzine at the time, that he would not agree to move to New York without discussion with his wife and her consent. It would also have been inconsistent with Mr Hopper's then recognition of the significant practical difficulties involved in a move to New York, which included the fact that he had several school age children and he and his wife owned a number of rural properties, with which he had a close involvement, including having managed those properties personally for a period prior to February 2011, after an injury to his brother-in-law, who was also his farm manager. Mr Hopper's subsequent conduct, to which I will refer below, also shows that he did not consider that he was bound to any such arrangement, unless terms acceptable to him and consistent with his understanding of the proposal were agreed.
Mr Hopper's evidence, in his second affidavit, is that he commenced work as a proprietary trader shortly after the meeting on 18 February 2011. After that meeting, Mr Neville, who dealt with personnel matters in respect of MFGA, sent an email to Mr Fay attaching a schedule detailing the remuneration paid to Mr Hopper for calendar years 2009 and 2010. The liquidators submit, and I accept, that that inquiry is consistent with the making of further inquiries to develop the terms of a contract, where the level of Mr Hopper's remuneration had been discussed at the meeting on 18 February 2011, rather than with a binding arrangement having already been reached at that meeting. Mr Docker submits that that matter was not put to Mr Fay who was not required for cross-examination. It does not seem to me that the matter needs to have been put to Mr Fay, where it is not inconsistent with his evidence, but relates to an inference which is to be drawn from that evidence and other evidence.
Internal email correspondence within the MF Global Group, on 4 March 2011, referred to the question "how terms are being sorted out and who is responsible for doing so" and to an approach made by Mr Hopper to Mr Neville the day before, presumably in respect of that question (Ex P5, 243-244). An email dated 9 March 2011 (Ex P5, 262, T75 - 76), sent by Mr Fay to staff in the Sydney Office, referred to Mr Hopper's future as follows:
"During his recent visit Jon Corzine outlined the planned strategy of developing of proprietary trading capability. It is in this context that Garry Hopper has been assigned temporarily to New York, initially for a month, and he will be leaving Sydney in mid-March. The intention is that that Garry will then relocate his family and undertake a longer term secondment in the US. As an interim measure the Ag[ricultural] Desk will report directly to me as we search for Garry's replacement."
There is no reason to think that Mr Fay did not accurately record the then position in that email, and there is no suggestion that Mr Hopper took any issue with the accuracy of that statement. That email is significant, not only because of the somewhat tentative way in which it is expressed, but also of its emphasis on the relocation of Mr Hopper and his family to the United States.
Mr Hopper's evidence, in his second affidavit, is that went to New York to work out of MF Global's New York office from 20 March to 22 April 2011, and that accounts for him to trade were established from March 2011 and that he had no further contact with clients on the Australian agricultural desk of MFGA in a broking capacity, after he left for New York at that time. Mr Hopper also ceased to receive quarterly distributions from the Agricultural Commodities Desk pool (Ex P5, 847) after he commenced proprietary trading. That is not surprising, in circumstances that it was contemplated that he would receive bonuses under the new arrangement. It does not require that that new arrangement had at that time taken contractual effect.
On 29 March 2011, Mr Hopper met with Mr Corzine in New York. Mr Hopper's evidence of that meeting (Hopper 21.5.14 [12]) is that Mr Corzine suggested a two month trial and Mr Hopper responded that was "not what we agreed to in Sydney" and that Mr Corzine had previously said "the position would be for two years guaranteed" and suggested that Mr Corzine and Mr Hopper contact Mr Fay for his recollection of the meeting. Mr Hopper subsequently reported what had occurred at that meeting by email to Mr Fay. He referred to differences between the view expressed by Mr Corzine at that meeting and what had been discussed on 18 February, including whether the term of the arrangement was for two years, and whether Mr Hopper would have a "put" allowing him to return to his former position. That email provides support for Mr Docker's submission that Mr Hopper had exercised a degree of caution as to the way in which he approached the matter, since he notes that he had told Mr Corzine of his earlier position that Mr Corzine wanted him in New York "for two years, with a put back in the business in Australia", that Mr Corzine responded referring to two months and that Mr Hopper was "not about to argue with" Mr Corzine about that matter. It is notable, however, that that email does not refer to there having been a previous discussion of Mr Hopper trading from Sydney, which would have been a matter of significance, to the extent that any difficulties arose in respect of Mr Hopper's relocating to New York.
Mr Fay replied to that email, observing that:
"That doesn't sound good. My impression was two years. Did you discuss trading from Sydney?"
That email supports Mr Hopper's evidence that there had been reference to a two year period at the February meeting, although Mr Fay's reference to his "impression" does not suggest a specific or concluded arrangement as to that matter. Mr Fay's email is ambiguous as to whether trading from Sydney had previously been discussed, or that was a suggestion first made by Mr Fay in that email to address the difficulties that were beginning to emerge from Mr Hopper's email. Mr Hopper did not respond to confirm that trading in Sydney had in fact been agreed at the meeting in February, or put that proposition to Mr Corzine or others in MFGH, so far as the evidence goes, even after Mr Fay had raised it with him.
Between 1 April 2011 and the appointment of administrators to MFGA on 1 November 2011, MFGA paid Mr Hopper the monthly equivalent of his previous salary of $250,000 per annum, and paid additional amounts on a quarterly basis corresponding to $750,000 per annum, but did not pay bonuses referable to trading performance before or after 1 April 2011. Mr Fay's evidence, admitted as evidence of his understanding only, was that Mr Hopper remained employed by MFGA in Sydney after the conversation in February 2011, and started his proprietary trading role immediately, and that he was paid by MFGA in accordance with the arrangements with Mr Corzine. Mr Fay also notes that MFGA was paying Mr Hopper, but not obtaining any benefit from his trades, and that in turn affected MFGA's profit and its entitlement to a bonus out of MF Global Group's bonus pool. Mr Fay gives evidence of seeking to reach a reimbursement arrangement with MFGH in that respect.
By a further email exchange between Mr Hopper and an employee of MF Global Group in the United States, Ms Cantor, on 30 March 2011, Mr Hopper recorded the difficulty that "I haven't got a job when I go back to Sydney", because Mr Fay had required him to tell clients that he was leaving the broking function, to meet compliance requirements (Ex P5, 286-287, T82-83). Mr Hopper's email indicates, it seems to me, that he was then in an uncertain position, with discussions towards his accepting a position in New York unresolved, but possibly unable to return to his previous position because clients had been advised of the change of his role, and without a permission, at that point, to undertake a proprietary trading role from Sydney. That email is inconsistent with Mr Hopper's claim that an agreement was reached on 18 February 2011, which expressly permitted him to undertake proprietary trading from Sydney, if he did not wish to relocate to New York. The proposition that Mr Hopper did not have a job, when he returned to Sydney, would obviously be incorrect if such an agreement had previously been reached.
A further email from Mr Hopper to Mr Javeri on 30 March 2011 (Ex P5, 288, T83-85) indicated that Mr Hopper was thinking that he should return to Australia, but:
"Unfortunately I feel I can't go back to my old job as I have told clients, at the request of Sydney management and compliance, I have left to do this."
As the liquidators point out, there was no need for Mr Hopper to raise this difficulty if it had previously been agreed that Mr Hopper could undertake proprietary trading, whether or not he relocated to New York, at least without Mr Hopper pointing to that agreement. This difficulty would not have existed if his version of the agreement reached on 18 February 2011 was correct.
By a further exchange of emails between Mr Fay and Mr Hopper on 31 March 2011, Mr Hopper referred to the difficulties which he was then having with working in the United States, while being telephoned from Australia at night, and again recorded his concern as to his position if MF Global Group, or its US entities, did not commit to the arrangement. Mr Fay again suggested that "you should talk to them about trading from down here" and Mr Hopper responded:
"I think you are right.
I don't think I can come back to my old job now, after telling clients I had left."
Again, it seems to me that these emails are inconsistent with Mr Hopper's account of the agreement reached on 18 February 2011. Mr Fay there makes a constructive suggestion, that Mr Hopper could undertake proprietary trading from Australia, and Mr Hopper indicates agreement with that possibility, also noting that he could not return to his previous position with MFGA. Neither Mr Fay's nor Mr Hopper's approach, in that exchange, is consistent with there existing an earlier agreement formed in February 2011 that, if Mr Hopper did not relocate to the United States, he was entitled to undertake proprietary trading from Australia. The liquidators submit, and I accept, that Mr Hopper's evidence in cross-examination did not provide any sensible answer to this difficulty (T87 - T88).
By a further exchange of emails between Mr Hopper and Mr Fay on 14 April 2011, by which Mr Hopper recorded his wife's lack of enthusiasm for the move to New York, Mr Fay again suggested that:
"If it's not going to work over there ask them about trading from Sydney."
Mr Hopper responded that:
"I don't think that would work. I think communicating with them here would be too hard." (Ex P5, 311-312, T91-93).
Again, these emails read as the discussion of a possibility that Mr Hopper could undertake proprietary trading from Australia, and not as reflecting an agreement to that effect formed with Mr Corzine in February 2011. Mr Hopper's response, doubting the feasibility of that approach, also seems to me to be inconsistent with such an agreement. If an agreement had been formed in February 2011 as to that matter, then it seems to me that it would be natural that Mr Hopper would have referred to that agreement before expressing his reservations as to whether it would work. Again, Mr Hopper had difficulty in explaining, in cross-examination why there was no reference to the agreement which he claims had been reached in February 2011 in this email, when one might ordinarily expect such a reference (T93).
An extended process of documentation of Mr Hopper's arrangements then commenced, involving discussions between Mr Hopper, Mr Javeri, Mr Blomfield, and Mr Connolly. The liquidators submit that such correspondence indicates that Mr Hopper appreciated he did not then have a binding agreement. I do not accept that submission since, even if an agreement had been reached in an oral exchange at the February 2011 meeting, all parties would have contemplated that it would be recorded, and potentially expanded, in a written document.
Mr Hopper was sent a draft employment contract dated 6 May 2011, which provided for his employment by MF Global Holdings USA Inc ("MFG US") and that he would relocate to New York and obtain work authorisation to work in the United States. He rejected that draft contract on the basis that he considered it was not consistent with the terms of the discussion in February 2011 (Ex P5, 414 - 421). On 9 May 2011, he responded to Mr Fay and Mr Neville that:
"I will be declining the assignment in New York.
Not sure whether this leaves me, as Tony [Fay] said no longer an option to return to my old job.
Can we discuss?" (Ex P5, 427, T103-104)
Mr Hopper's evidence in cross-examination was, at this time, he had no doubt that he would be undertaking proprietary trading from Sydney, if he did not relocate to New York, and Mr Corzine had agreed to that position (T102). Mr Hopper's email of 9 May seems to me to be wholly inconsistent with that position, and with the agreement to that effect which he claims was entered in February 2011. If that agreement had been reached, or if Mr Corzine had accepted in February 2011 that Mr Hopper could undertake proprietary trading from Australia if he did not wish to relocate to New York, then there would have been no uncertainty as to Mr Hopper's position and no difficulty arising from the fact that he could not return to his old job, because he could simply undertake proprietary trading from Australia as had, on his case, been contemplated since February 2011. His concern as to the uncertainty as to his position cannot be reconciled to the position for which he now contends. That is a fundamental difficulty for Mr Hopper's case because, as I noted above, without that term of the agreement, it would have committed Mr Hopper to move to New York without his wife's agreement, and the contemporaneous evidence indicates, and he confirmed in cross-examination, that he would not have committed to move to New York without her agreement.
Further internal correspondence within MFGA is also inconsistent with any suggestion that Mr Fay understood an agreement to have been reached in February 2011 that Mr Hopper could undertake proprietary trading from Australia. By email dated 9 May 2011, he suggested to Mr Blomfield that:
"We need to see [Mr Hopper] about him trading from Aus[tralia]." (Ex P5, 430)
That email seems to me to be consistent with Mr Fay's earlier emails, which treat that matter as a possibility, not agreed between MFGA, the MF Global entities or Mr Hopper rather than a matter that had previously been agreed in February 2011.
Mr Fay in turn advised Mr Blomfield by email, on 9 May 2011, that Mr Hopper had told him that he felt the draft contract was "not in the spirit of [Mr Corzine's] overtures to him" (Ex P5, 438, T104-106). It seems to me that there was no reason for Mr Hopper then to understate the extent of any agreement that had been reached in February 2011 or for Mr Fay not accurately to record what Mr Hopper had said to him. Mr Hopper's statement may well accurately reflect differences between the discussion in February 2011 and the draft contract which had been presented to him, but it does not provide any support for a view that a binding agreement had previously been formed in February 2011.
Mr Hopper undertook further discussions with Mr Neville, in early May 2011, which contemplated that MFGA might approach MFG US to seek to resolve the difficulties with his proposed contract. I do not understand that course to be inconsistent, in itself, with Mr Hopper's case that a concluded agreement had been agreed in February 2011 since, as I noted above, it would have been necessary to document the arrangement, even if it had been agreed at that time, and Mr Hopper could also reasonably have been prepared to accept that aspects of that arrangement might need to be varied to meet the needs of MFG US. However, the matters to which I have referred above seem to me to indicate that no such contract had in fact been agreed at that time.
Mr Hopper responded to Mr Neville's email (a matter which he initially denied in cross-examination) on 13 May 2011 (Ex P5, 457) indicating concerns about aspects of the draft contract proposed by MFG US. Mr Hopper's email presses for a bonus of "a flat 20% over $5 million to make it easy", and expresses an understandable concern about a suggestion of a group bonus and a preference for an individual bonus. Importantly, that proposal is again not put by Mr Hopper on the basis that that matter had been agreed with Mr Corzine in February 2011, as distinct from seeking to persuade MFG US of its commercial merit. It is also of considerable importance that Mr Hopper noted in his email that:
"I would like it documented that if agreement can't be reached for a renewal of term in this capacity with the company or I feel anything else offered to me is unsuitable for me, either in the US or Australia, I will be made redundant and all LTIP, and outstanding bonus payments will be paid or vest upon my leaving".
It seems to me that Mr Hopper's seeking to negotiate a potential redundancy, if the terms of an arrangement with the US could not be agreed, or if he was not comfortable with any other proposal, is inconsistent with there then existing an earlier agreement that he was entitled to undertake proprietary trading from Australia if he did not wish to relocate to the United States. Had such an agreement existed, there would have been no uncertainty as to what other position might be offered to Mr Hopper and no question of redundancy would have arisen.
Mr Hopper was sent a further draft employment contact on 20 May 2011, and he was unhappy with parts of that contract. His evidence is that he had agreed to some, but not other, parts of that draft contract and, in particular, he had not agreed to its relocation and bonus components, which he regarded as inconsistent with the suggested agreement made with Mr Corzine in February 2011 (Hopper 21.5.14 [39]-[40]). Mr Hopper was cross-examined as to his position, after he had declined the proposal made by MFG US on 20 May 2011, and gave somewhat confusing evidence in cross-examination, initially accepting that his position was that he would then "simply be able to do the job from Australia", because agreement had been reached as to that matter in February 2011 and he was already undertaking proprietary trading from Australia, and then somewhat inconsistently indicating that he "needed confirmation" that he could still trade from Australia at that time, because MFGA would need to ensure there were proper Chinese walls and proper compliance (T125). I found it somewhat difficult to follow that evidence where, as he noted, he was already doing so, and he had previously been separated from the agency trading desk to address the compliance issues arising from his doing so.
On 24 May 2011, in an email to Mr Connolly in response to the 20 May proposal, Mr Hopper again expressed uncertainty as to his position with MFGA, recording his view that the relocation terms proposed by MFG US did not meet his family's requirements and stating that:
"Not sure where this leaves me with MF. I believe my old job is no longer available, not that I believe that it would be appropriate for me to return to it, given people would think I failed in my brief capacity to trade, which I have not." (Ex P5, 665-666)
Again, at the risk of repeating an observation that I have made in respect of earlier communications of a similar character, Mr Hopper's expressed uncertainty as to his position with MFGA, or MF Global Group, is inconsistent with an agreement having been in place, by then for several months, that entitled him to undertake proprietary trading from Australia if he wished.
By a further email to Mr Connolly on 25 May 2011 (Ex P5, 664 - 665), Mr Hopper in turn requested Mr Connolly to:
"… advise in what capacity I am employed with MF Global if there is no agreement on the above for relocation to New York. Am I to continue to work in PSG [proprietary trading] from Australia?"
As with other emails at this time, Mr Hopper's expressed uncertainty as to his future is inconsistent with the agreement which he contends was formed in February 2011 to permit proprietary trading from Australia. Mr Hopper was also cross-examined as to why he did not refer to that agreement in that email, and could provide no better explanation than that he wished he had done so, and that it must have been an oversight that he did not. It was put to Mr Hopper that, in fact, he had put in something "completely to the contrary", a proposition which he denied. It seems to me that Mr Hopper's email, and the uncertainty as to his future expressed in it, is wholly inconsistent with the suggested agreement, and his explanation for why there was no reference to that agreement, by reference to an unexplained "oversight", cannot be accepted. That email does, however, raise the possibility of undertaking proprietary trading from Australia, which Mr Fay had urged Mr Hopper to raise over a lengthy period.
Mr Connolly's response to Mr Hopper's email, by email dated 25 May 2011 (Ex P5, 663 - 664) is also inconsistent with the suggested agreement, formed in February 2011, that Mr Hopper could undertake proprietary trading from Australia, since he instead confirmed that:
"We of course respect your decision and have always kept your current role open and available to you. Mere consideration of a new role with the Firm certainly doesn't cause the prior one to go away. This is particularly true in a case like this, where you've taken a good look, and decided that it doesn't work for you at this time."
I accept that Mr Connolly's email is of lesser weight than Mr Hopper's own emails in respect of this matter, since it is possible that Mr Connolly would not have known of an agreement reached between Mr Hopper and Mr Corzine in February 2011. However, the position which he took at this time seems to me to be consistent with that which Mr Hopper also took, so far as neither of them proceeded on the basis that an earlier agreement had been reached permitting proprietary trading by Mr Hopper from Australia.
Subsequently, by email dated 26 May 2011 to Mr Neville, Mr Fay expressed concern as to the possibility that Mr Hopper would return to his old job (Ex P1, 670) and, by email dated 26 May 2011 to Mr Hopper (Ex P5, 693), Mr Fay advised Mr Hopper that he had spoken to Mr Javeri who was prepared to permit Mr Hopper to undertake, proprietary trading from Australia. Mr Hopper's evidence, in his affidavit dated 28 February 2014, is that he received that email from Mr Fay on 26 May 2011, which advised that Mr Javeri would allow him to trade from Australia as a proprietary trader, and that he understood that meant he would not be required to move to New York. Mr Fay's email is the latest of several occasions on which Mr Fay had raised that possibility, and is once again inconsistent with an agreement to that effect having been formed in February 2011. Mr Hopper, consistent with his position throughout, did not respond to the suggestion in that email by noting that there was nothing novel about it, because an agreement to that effect had been reached several months ago. Mr Hopper's evidence is that, on 26 May 2011, he also spoke to Mr Javeri who said that:
"I want you to be a part of the PSG team and will fix the problems you are having. You can remain in Australia and trade from there as the relocation appears to be causing a lot of angst."
I should note, for completeness, that the liquidators advance other criticisms of Mr Hopper's credit in respect of the manner in which he treated these emails, and a conversation with Mr Javeri at about the same time, in his affidavit evidence and his cross-examination. I do not consider it necessary to reach a finding as to those matters, given the findings that I have reached on other grounds.
Mr Hopper's evidence (Hopper 28.2.14 [108]) is that he had a further conversation with Mr Corzine and Ms Cantor on or about 9 June 2011, in which Mr Corzine advised him that Mr Javeri had left MF Global, and also said that:
"… At this stage it is best if you trade from Australia for the PSG Desk until and if you are ready to relocate. I have heard there is angst in relation to the agreement, and I want to resolve this.
I have spoken to Connolly and confirmed our agreement; any issues with this have now been rectified."
I do not accept Mr Hopper's evidence so far as he seeks to attribute an acknowledgement of an "agreement", implicitly formed in February 2011, to Mr Corzine, given the surrounding correspondence that is inconsistent with the existence of such an agreement. The liquidators also submit that that conversation is inconsistent with an agreement previously reached that Mr Hopper could perform proprietary trading from New York or Sydney. I do not accept that submission, since the conversation could be understood as Mr Corzine expressing a view as to the preferable course, after Mr Javeri had left MFG and where there were issues as to the terms of the agreement, rather than leaving that matter to Mr Hopper's choice. However, I am not satisfied that such an agreement had previously been formed, for the reasons noted above.
Mr Hopper's evidence is that, in a further meeting with Mr Corzine in New York on 12 June 2011, Mr Corzine advised that:
"You are not required to move to New York to be trading for the PSG as long as you have regular visits to the New York Office, once every six weeks for a minimum of two weeks at a time."
Further communications as to the terms of the suggested arrangement continued with Mr Connolly in the period from 16 June 2011. Mr Hopper's evidence in his third affidavit (Hopper 21.5.14 [36]) is that, by late June 2011, he had decided that he wanted to relocate to New York, although he had received confirmation from Mr Corzine that he did not have to do so, because of the time difference between Sydney and New York and difficulties in trading from Sydney and providing reports and communicating with others in New York as a result. The liquidators point out, and I accept, that that evidence is inconsistent with the pleading, in paragraph 12 of the Statement of Claim, that Mr Hopper had, between March 2011 and June 2011, investigated and considered relocating to New York but decided against it.
In July 2011, Mr Hopper's wife fell pregnant with their fifth child and Mr Hopper's evidence is that pregnancy involved a degree of risk. Mr Hopper's evidence, in his second affidavit, is that he advised Mr Corzine of that development by a telephone conversation and Mr Corzine said that he wanted Mr Hopper to stay in Australia. As late as 19 July 2011, Mr Hopper wrote to Ms Cantor recording that he was "uncomfortable" signing a contract without addressing matters such as having a house in New York ready for rental and confirming that his wife and children would definitely come with him, although also recording that he had "every intention to sign" (Ex P5, 877).
Mr Hopper's evidence is that, about September 2011, he decided that he would not relocate to New York with his family due to concerns as to his wife's pregnancy and ongoing taxation litigation involving a company with which he was associated. As late as 12 September 2011, Mr Hopper sent an email to Mr Corzine, Mr Connolly and Ms Cantor which asked:
"What happens if I can't/don't come to the NY? [sic] My job in Aust[ralia] is gone. I've been told I no longer have a job in Aust[ralia]. Am I redundant?" (Ex P5, 960)
That email may have been intended to provoke a redundancy, in circumstances that there had been previous confirmation to Mr Hopper, to which I have referred above, that he could return to his earlier position in Australia in that situation. To the extent that it genuinely reflected Mr Hopper's position, then that position was once again inconsistent with an agreement having been reached in February 2011 that Mr Hopper could undertake proprietary trading from Australia. Mr Corzine's response was to confirm, consistently with the other advice to which I have referred above, that it was not correct that Mr Hopper's Australian position was no longer there.
The evidence as to Mr Hopper's understanding following this conversation is confusing, with Mr Fay having recorded, in an email to Mr Blomfield on 13 September 2011, Mr Hopper's claim that he was no clearer, following his conversation with Mr Corzine, whether or not he was able to trade from Sydney. That uncertainty would have been inconsistent, as the liquidators point out, with the agreement which Mr Hopper claims had been formed in February 2011. Mr Hopper gave contrary evidence in cross-examination, contending that Mr Corzine had told him in that conversation that he could trade from Australia, a position which is in turn inconsistent with that recorded in Mr Hopper's email of 12 September and Mr Fay's email of 13 September.
Mr Campbell and others were appointed as joint and several administrators of MFGA on or about 1 November 2011 and were appointed as joint and several liquidators of MFGA on or about 2 March 2012. After the administrators' appointment, they sent circulars to MFGA's employees, including Mr Hopper, on 4 and 8 November 2011 which proceeded on the basis that Mr Hopper was employed by MFGA, was paid by MFGA and had not signed a written agreement with MFG US (Ex D1, 707A-B). It is common ground that, on 18 November 2011, the administrators gave Mr Hopper a notice terminating his employment with MFGA on the ground of redundancy on two months' notice.
On 4 October 2012, Mr Hopper lodged a proof of debt with the liquidators claiming a total amount of $3,218,799.30 made up of base salary, guaranteed incentive award payments, bonus, a sign-on bonus and other amounts, calculated consistent with his claim based on an agreement formed in February 2011. That proof of debt was partly rejected by the liquidators in October 2013, although they allowed the amounts of $385,702.89 referable to unpaid company expenses in the amount of $65,279.47; long service leave entitlements in the amount of $195,423.42; and redundancy pay in the amount of $125,000. Mr Hopper contends that the liquidators wrongly rejected or failed to allow additional amounts totalling $2,813,598.63.
On 29 October 2013, Mr Hopper lodged a further proof of debt claiming a total amount of $3,712,712.80, which claimed additional amounts by way of an annual incentive award based on his trading performance and for long service leave. That second proof of debt was rejected by the liquidators by notice of rejection dated 30 October 2013 for the same reasons as the first notice of rejection and also on the basis that it was not open to Mr Hopper to lodge two proofs of debt. Mr Hopper contends the liquidators wrongly rejected or failed to allow amounts totalling $3,307,512.04 from the further proof of debt.
[2]
Whether a contract had been formed in February 2011
Whether, as Mr Hopper pleads, a contract was formed by the meeting in February 2011, as clarified or confirmed by subsequent dealings, and its terms is to be determined objectively. The essential issue is "what each party by words and conduct would have led a reasonable person in the position of the other party to believe" and relevant matters include the text of documents passing between the parties; the surrounding circumstances known to the parties; the purpose and object of the transaction and its genesis; and the background, context and markets in which the parties were operating: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22]. The principle of objectivity was in turn summarised by a unanimous High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40] as follows.
"This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction."
In closing submissions, Mr Docker identifies the legal principles applicable to deciding whether a contract has been entered into, and its construction, by reference to the observations of Campbell JA in Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 at [262]-[263], where his Honour observed that:
"For the purpose of deciding whether a contract has been entered, or what construction it bears, the common intention that the court seeks to ascertain is what is sometimes called the "objective intention" of the parties. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had, concerning the subject matter of the alleged contract: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462, [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179, [40]; Investors Compensation Scheme Ltd v West Bromwich Building Society [1988] 1 All ER 98 at 114-115; 1 WLR 896 at 912-913; Taylor v Johnson (1983) 151 CLR 422 at 429; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549-550.
There is also authoritative recognition that a factor to be taken into account in deciding whether a contract has been entered and if so what are its terms is "the purpose and object of the transaction": Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462, [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179, [40]. In Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462, [22] the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ recognised the appropriateness of taking into account the purpose and object of the transaction."
Mr Docker also submits, and I accept, that strict requirements for the identification of an offer and acceptance may not be applicable where an ongoing relationship between the parties varies over time: Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [68]-[75].
In Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154, Campbell JA (with whom Beazley JA agreed, and Basten JA agreed with one qualification) referred (at [59]) to authority that subsequent communications cannot be looked at as an aid to construction of a contract, but can be looked at as an aid to deciding whether a contract has been entered into at all. In Mouti v Nguyen [2015] NSWCA 93 at [90] and [93]-[98], the Court of Appeal in turn noted that subsequent conduct must be assessed in its commercial context, and that one party's having acted inconsistently with a suggested contract will not necessarily displace that contract. In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143], Campbell JA observed that:
"… the task in ascertaining what are the terms of a contract that is not wholly in writing … is finding as a fact what the parties have agreed. A range of postcontractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task."
In Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 at [98]-[99], Edelman J similarly observed that "… subsequent conduct is a relevant matter to consider in finding whether, as a fact, the alleged oral promises were made", referred to several authorities supporting that view and also observed that:
"This approach also accords with principle. It would be peculiar if courts were to be constrained in the exercise of finding facts from considering any relevant matter subsequent to the alleged occurrence of the fact in issue."
Mr Docker also referred to Ashton v Pratt [2015] NSWCA 12; (2015) 318 ALR 260 at [92] as authority that the Court will seek to give effect to an agreement reached between parties, particularly where the relevant obligations have been partly performed.
In closing submissions, Mr Docker emphasised that the terms of the contract on which Mr Hopper relies are set out in paragraphs 10 and 14 of his Statement of Claim, referring to the discussion between Mr Corzine, Mr Fay and Mr Hopper at the 18 February 2011 meeting, and the matters that were "clarified and confirmed" between July and October 2011. Mr Docker summarised the terms of that contract affecting Mr Hopper's monetary claims as being that his base or non-discretionary salary was AUD$1 million per annum, with $250,000 paid in monthly instalments and the remaining $187,500 paid quarterly; this amount was guaranteed for two years from 1 April 2011 unless he was terminated with cause; he was entitled to a bonus of 20% on profits he made over $5 million each year; and he would be paid as a bonus 20% of the profits he made up to the end of March 2011 trading on Mr Corzine's account.
Mr Docker submitted that contract was made orally in the terms pleaded in paragraph 10 of the Statement of Claim at the meeting between Mr Hopper, Mr Corzine and Mr Fay, as a variation to his existing contract with MFGA, and submitted that some of the details of that contract were worked out, in the terms pleaded in paragraph 14 of the Statement of Claim, by reason of the conduct of the parties. In closing submissions, Mr Docker submitted that, alternatively, the contract was made in the terms pleaded in paragraphs 10 and 14 by reason of conduct of the parties, being the meeting on 18 February 2011 and conduct of the parties after that date, particularly Mr Hopper's conduct in performing the role of a proprietary trader and MFGA's having paid him in accordance with the agreement with Mr Corzine at the February 2011 meeting. Mr Docker also submitted that the alternative to a contract having been formed in February 2011 are that Mr Hopper was already employed by a US entity within the MF Global Group which, as he submits, is inconsistent with the evidence that he remained on MFGA's payroll. It seems to me, however, that the more obvious alternative to such a contract is that Mr Hopper was then employed by MFGA on the basis on which he had previously been employed, albeit that the parties were conducting themselves in anticipation of the arrangements which were then under negotiation between Mr Hopper and US companies within the MF Global Group.
Mr Hopper also relies on conduct after the meeting in February 2011 as supporting the existence of the agreement reached on February 2011, or as confirming and clarifying that agreement. In particular, Mr Hopper relies on the fact that he commenced proprietary trading after that date, and continued to work as a proprietary trader until he was directed to stop trading on 31 October 2011 at about the time MFGA was placed in administration and MF Global in bankruptcy in the United States. Mr Docker emphasises that, after the February 2011 meeting, Mr Hopper's trading activity was in competition with his former clients, and Mr Fay and another employee of MFGA visited those clients to advise them that Mr Hopper was no longer working as a broker and was now undertaking proprietary risk trades. I have referred to aspects of that conduct in the findings of fact I have set out above.
I recognise that, as Mr Hopper contends, he was paid by MFGA on a basis that was consistent with the discussion at the February meeting, at a total annual rate of $1 million per annum, of which $250,000 was paid monthly, consistent with his previous arrangements with MFGA, and $750,000 paid quarterly (Ex P5, 292, 377, 714, 754, 755, 895, 953, 1059, 1104). It does not seem to me that that matter provides significant support for the existence of a binding agreement formed in February 2011, where it is equally consistent with anticipation of the contracts that were then under discussion. It does not seem to me that the conduct to which Mr Hopper refers allows a finding of the existence of the contract claimed to have been formed in February 2011, in itself or as clarified and confirmed by subsequent conduct. That conduct seems to me to be more readily explained as taken in anticipation of the arrangements which were then being negotiated, for Mr Hopper's employment by a US entity within the MF Global Group, on the terms broadly discussed at the February meeting, as potentially varied by the subsequent discussions between Mr Hopper and several other executives of the MF Global Group.
[3]
Conclusion as to whether a binding agreement was formed in February 2011 as clarified and confirmed by subsequent conduct
Given the factual findings that I have made above, I am not satisfied that a binding agreement was formed by the meeting on 18 February 2011 (as pleaded in Statement of Claim [10]) or as clarified and confirmed by subsequent conduct (as pleaded in Statement of Claim [14]).
So far as Mr Hopper seeks to rely on subsequent dealings between the parties as either confirming or establishing a contract that had not been established by the meeting on February 2011, there were differences between the parties as to an important term of the suggested agreement as at 13 May 2011, namely the basis of the bonus payable to Mr Hopper, where Mr Hopper was pressing for a flat 20% bonus over $5 million and rejected MFG US's proposal for a group-based bonus (Ex P5, 457). As I noted above, the further draft contract dated 20 May 2011 was also not acceptable to Mr Hopper, who identified issues as to the level of rental allowance, travel and clarity around an exit after two years (Ex P5, 664-666). The subsequent discussions, in which Mr Hopper raised the question of his future with MF Global are inconsistent with an agreement, particularly one permitting proprietary trading from Australia, having been formed by conduct by that point. Where substantial issues had not been agreed in respect of the draft contract of 20 May 2011 or subsequently, it does not seem to me that the subsequent dealings between the parties were capable of confirming a contract that had not been concluded by the discussion in February 2011.
The liquidators also submit, and I accept, that neither Mr Hopper's nor Mr Fay's account of the conversation on 18 February supports the oral term of the contract pleaded in paragraph 10(i) of the Statement of Claim, that Mr Hopper would continue to be paid by and employed by MFGA unless and until he had relocated to New York. It is not surprising that matter was not discussed where, on the findings I have reached, the prospect that Mr Hopper would not relocate to New York, if he went forward with the position, had not then been agreed. The question of whether MFGA or other entities in the MF Group would pay Mr Hopper's salary, whether directly or by a reimbursement arrangement, was a matter of detail which would not then have been of obvious relevance to Mr Hopper, although it is obviously now of substantial relevance where the entities are insolvent. The liquidators submit that, where the contract does not provide for which entity is to make the relevant payments, then it is impossibly uncertain. There is substantial force in that submission, but I do not consider it necessary to determine that question given the other findings I have reached.
The liquidators also submit that term of the contract pleaded in paragraph 10(b) of the Statement of Claim, which referred to the payment of a specified amount in salary to Mr Hopper, is expressed in the passive tense, so as not to identify the entity which was obliged to make that payment. The terms pleaded in paragraphs 10(c), 10(d), 10(e) and 10(f) also do not identify the party intended to make the relevant payments. The liquidators also submit that the contract terms alleged in paragraphs 10(a) - (f) are uncertain and imprecise, and the lack of precision in them indicates the absence of a binding agreement, or alternatively has the result that the agreement fails for lack of certainty. There is substantial force in that submission, but I also do not consider it necessary to determine that question given the other findings I have reached.
[4]
Whether Mr Corzine had authority to bind MFGA
Mr Hopper's claim against MFGA, relying on the February 2011 meeting, also depends on the proposition that Mr Corzine had authority to bind MFGA (as distinct from MFGH or MFG US) to the claimed contract. In oral closing submissions, Mr Docker characterised Mr Corzine's authority for MFGA as being actual authority, because he was the chairman and chief executive of MFGA's ultimate holding company, or ostensible authority. Mr Docker submits that Mr Corzine "clearly had authority to speak for MFGA given his position at MFG[H] and its position in respect to MFGA". Mr Docker also submitted that the Court should infer that Mr Corzine, as chief executive officer and chairman of the board of directors of MFGH, had the authority to speak for and bind MFGA to a contract with Mr Hopper, at least in discussions undertaken in the presence of Mr Fay. Mr Docker also relied on the proposition that Mr Fay reported to Mr Blomfield, who reported to Mr Corzine, and that MFGA took instructions from MFGH and that "what it said went" (Fay 27.2.14 [11]-[13], [22], Hopper 31.10.14 [10(c)]). Mr Docker also referred to global reporting arrangements within the MF Global Group and to the existence of a centralised long term incentive scheme for MF Global employees, and the existence of a global employee handbook and the maintenance of records, in the United States, of bonuses paid in Australia.
I am unable to accept the submission that Mr Corzine had actual authority to commit MFGA to the claimed arrangement. I accept, of course, that the chief executive of a holding company likely has significance influence over the conduct of its subsidiaries, and Mr Fay's evidence, which I accept, is that MFGA would act in accordance with instructions of its holding company. However, the fact that the chief executive of a holding company may well be able to procure the board and senior executives of a subsidiary, who do have actual authority, to act in accordance with the holding company's wishes does not establish that he or she has actual authority to commit the company, rather than procuring those who do have such authority to do so.
It is also does not seem to me that Mr Corzine had ostensible or apparent authority to commit MFGA. The parties did not place any focus, in submissions, on the circumstances in which such authority can be shown, which are well established. Broadly, three essential elements need to be established in order to give rise to an apparent authority of a person to bind a company in a transaction with third parties: Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503; Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 at 80. First, there must exist a representation made by the company to the third party that that person had authority to enter a contract of the kind which the third party seeks to enforce on behalf of the company. In Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd above, Diplock LJ observed that:
"The representation which creates 'apparent' authority may take a variety of forms of which the commonest is representation by conduct, that is, by permitting the agent to act in some way in the conduct of the principal's business with other persons. By doing so the principal represents to anyone who becomes aware that the agent is so acting that the agent has authority to enter on behalf of the principal into contracts with other persons of the kind which an agent so acting in the conduct of his principal's business has usually 'actual' authority to enter into."
Second, to establish ostensible authority, a representation as to the authority of the person must be made to the third party by a person or persons who have actual authority to manage the business of the company, either generally or in respect of matters such as contracts with the third party. A representation as to the scope of an officer's authority made by that officer to a third party does not bind the company, if the officer has no actual authority from the company to enter the particular transaction: J C Houghton and Co v Nothard, Lowe and Wills Ltd [1928] AC 1. Third, the third party must have been induced by the representation to enter into the contract.
In Pacific Carriers Ltd v BNP Paribas above at [36], the High Court of Australia summarised the relevant principles as follows:
"Where an officer is held out by a company as having authority, and the third party relies on that apparent authority, and there is nothing in the company's constitution to the contrary, the company is bound by its representation of authority ... It is not enough that the representation should come from the officer alone. Whether the representation is general, or related specifically to the particular transaction, it must come from the principal, the company. That does not mean that the conduct of the officer is irrelevant to the representation, but the company's conduct must be the source of the representation. In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company's constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have."
There is here no evidence of any practice by which MFGA permitted Mr Corzine to conduct its Australian business or enter agreements in its name with third parties, and no particular reason to think that the chief executive of MFGA's global holding company would have wished to have involved himself in its Australian subsidiary's affairs in that way. There is also no suggestion that MFGA's directors regularly permitted Mr Corzine to enter contracts or transactions in the course of MFGA's business and, as I noted above, that question is unlikely to have arisen in practical terms. It is not necessary to address the question of any inducement of Mr Hopper to enter a contract by any representation of authority by MFGA where the first and second elements of ostensible authority are not here established. I should note, for completeness, that neither party sought to rely on ss 128 and 129 of the Corporations Act in respect of this issue and it is therefore not necessary to address any possible application of those sections.
[5]
Determination as to disputed items in the proof of debt
I turn now to the particular items in the proof of debt that are in dispute between the parties. It is common ground between the parties that Mr Hopper was paid a monthly salary equivalent of $250,000 per annum, subject to the deduction of PAYG tax, up to 18 January 2012. The liquidators point out that MFGA also made superannuation contributions in respect of Mr Hopper over that period. The liquidators contend that, from mid-February 2011, or alternatively 1 April 2011 and up to 1 November 2011, those payments were made by MFGA on behalf of a US-based MF Global entity. Mr Hopper also pleads that he is owed and was not paid a monthly salary for the period 19 January 2012 to 31 March 2013, quantified as $300,694.44, and the liquidators admit that he has not been paid that amount. Mr Hopper pleads that he was owed and not paid the balance of a guaranteed annual amount of $1 million for the period 1 October 2011 to 31 March 2013, and $12,528 for the period April - June 2011, totalling $1,137,528; and that alternatively he is owed $1,438,222.44, being the remainder of the guaranteed $2 million which became owing on termination of his employment, and the liquidators admit that MFGA has not paid those amounts.
The parties are at issue as to Mr Hopper's claim for base salary from 8 January 2012 to March 2012 in the amount of $70,192.31; to a guaranteed incentive award for two quarterly sums of $187,500 for the year ending March 2012 in the amount of $375,000; and for $12,528, being the difference between a guaranteed incentive award amount for the first quarter in 2011 of $187,500 and the amount of $174,972 paid to him on 15 August 2011, by reason of the conversion rate between Australian dollars and US dollars. In closing submissions, Mr Docker accepted that Mr Hopper's claims for those amounts depend upon the Court finding there was a contract providing for a base salary of AUD$1 million per annum and a guarantee of that amount for two years from 1 April 2011, formed in February 2011 and confirmed and clarified by subsequent dealings. These claims must fail because I am not satisfied that contract is established or that, if it had been agreed, Mr Corzine had authority to bind MFGA to that contract.
The parties are also at issue as to Mr Hopper's claim to base salary and guaranteed incentive awards from March 2012 to March 2013 in the amount of AUD$1 million. In closing submissions, Mr Docker also accepted that Mr Hopper's claim for this amount depended upon the Court finding there was a contract providing for a base salary of AUD$1 million per annum and a guarantee of that amount for two years from 1 April 2011. Because this claim turns on Mr Hopper's claim for a minimum two year term under the contract alleged to have been formed in February 2011 and confirmed and clarified by subsequent dealings, it must fail where I am not satisfied that contract is established or that, if it had been agreed, Mr Corzine had authority to bind MFGA to that contract.
The parties are at issue as to Mr Hopper's claim to 20% of his trading profit for the year ended March 2011 in the amount of $205,865. Mr Docker also accepted that Mr Hopper's claim of $205,865 referable to 20% of profits made on Mr Corzine's house trading account to 30 March 2011 depended on the Court finding a contract that included the term that he would be paid as a bonus 20% of the profits he made up to the end of March 2011 trading on that account. Mr Hopper initially claimed that he earned a profit of $1,029,325 up to 31 March 2011, trading on Mr Corzine's house account and is owed and was not paid the amount of $205,865, being 20% of that profit. Mr Docker submits that the evidence shows that Mr Hopper earned "about $1,100,000" in profit on Mr Corzine's trading account to 31 March 2011 (Hopper 28.2.14 [72], Ex P5, 293, T56-57) which would produce an amount higher than that claimed. The liquidators admit that amount has not been paid, but do not admit that Mr Hopper earned that profit or, if it was earned, that the trading was conducted or the profit was earned on behalf of MFGA. This claim depends, first, on the proposition that a binding contract was formed in the conversation in February 2011 or as confirmed or clarified by subsequent dealings, which I do not accept; and second, on Mr Corzine having had authority to bind MFGA in respect of that arrangement, which I also do not accept. It also does not seem to me that the evidence goes further than estimates of profit from time to time, or establishes either the basis on which the final profit was to be calculated for the purposes of the suggested term, or the amount of the final profit calculated on any such basis.
The parties are at issue as to Mr Hopper's claim to an annual incentive award, initially of $665,550, and increased in the second proof of debt to $887,400. Mr Hopper pleads that he is owed and was not paid the latter amount, being 20% of the profit on a pro rata basis which he earned in the period April 2011 to March 2012. The liquidators admit that MFGA has not paid that amount, but do not admit that Mr Hopper earned that profit and, if he did so, that it was earned on behalf of MFGA. This claim relates to a bonus or incentive payment for profits made by Mr Hopper, over $5 million, in the year 1 April 2011 to 31 March 2012. This claim turns on Mr Hopper's claim to an entitlement to that incentive under the contract alleged to have been formed in February 2011 and confirmed and clarified by subsequent dealings. I do not accept that amount is established, for the same reasons that Mr Hopper's claim for profit made on Mr Corzine's house trading account for 31 March 2011 is not established. I am not satisfied that contract is established or that, if it had been agreed, Mr Corzine had authority to bind MFGA to that contract.
I am also not satisfied that Mr Hopper has established the quantification of the claim for a profit share to March 2012. Mr Hopper contends that he made a profit of $9,889,304, made up of a profit of $6,937,000 for April - June 2011, a loss of $1,679,000 for July 2011, a loss of $3,535,000 for August 2011 and a profit of $8,166,304 for September 2011. In his affidavit dated 28 February 2015, Mr Hopper gives evidence of the basis on which trading profits were calculated within the MF Global Group, and annexes several emails which he contends represented his profit and loss for several periods within the 2011 trading year. His evidence is that those figures were referred to as "estimates" but were reporting on trades that had already happened and were subject to adjustment and correction of errors. Mr Hopper's evidence in cross-examination was that these figures were "not estimates" because futures and contracts were effectively bought and sold on closing each day, and he submits that 20% of $4,889,304 is $977,860.80, which exceeds the amount claimed. Mr Hopper acknowledges that there is no data for his trading in October 2011, a matter which it seems to me is itself fatal to any calculation of his total profit over the relevant period, on which the relevant calculation could be based, where the amount of any profit or loss could well have significantly affected the amount of any bonus, and the variability of the monthly figures noted above does not allow an estimate to be made by the Court.
There is an issue between the parties as to long service leave, initially claimed as $224,384.61 and increased to $496,448.18 in the second proof of debt, as to which the liquidator admitted Mr Hopper's proof of debt as to $195,423.42. The liquidators admit that Mr Hopper was not paid that amount, but contend that he is only entitled to be admitted to proof in the winding up for that lesser amount. In closing submissions, Mr Hopper recalculated the amount of long service leave claimed, in an amount different to either that claimed in the first proof of debt or the second proof of debt, as $216,060.27, based on a figure of $1 million per annum. This claim depends upon the amount of Mr Hopper's "ordinary pay" for the purposes of s 3(1)(b) of the Long Service Leave Act 1955 (NSW). Mr Docker submits that must be based on a per annum figure of AUD$1 million as the quarterly guaranteed payment was mandatory and not a bonus or incentive and an instalment of it was paid in October 2011. I have held above that no contract establishing an obligation to make that payment was established in respect of MFGA. I will afford the parties an opportunity to be heard as to whether the fact that MFGA made payments on that basis, in the absence of such a contract, is sufficient to establish this claim.
There is also an issue as to Mr Hopper's claim for redundancy pay in the amount of $500,000, being 26 weeks' pay for redundancy, as to which the liquidator allowed $125,000. The liquidators admit that MFGA did not pay that amount, but contend that Mr Hopper was only entitled to payment of a lesser amount, if his employment with MFGA terminated on 18 January 2012. This claim depends upon Mr Hopper's claim that his salary should be treated as $1 million per annum, rather than $250,000 per annum, under the contract alleged to have been formed in February 2011 and confirmed and clarified by subsequent dealings and must fail because I am not satisfied that contract is established or that, if it had been agreed, Mr Corzine had authority to bind MFGA to that contract.
Mr Hopper pleads, and the liquidators admit, that he has not been paid the amount of $65,279.47 in respect of expenses incurred in the course of his employment with MFGA; the liquidators rely on paragraph 21 of their Defence in that regard. There is no issue between the parties as to that claim, which was admitted by the liquidator to proof. There is no longer an issue between the parties as to Mr Hopper's claim to a sign-on bonus. Paragraph 13 of the Statement of Claim, which pleaded a variation of the agreement in February 2011 to provide for a sign-on bonus of $100,000 was withdrawn in the course of the hearing, and Mr Hopper does not press a claim in respect of such a bonus (T26).
[6]
The liquidator's defence as to the termination of Mr Hopper's employment and Mr Hopper's estoppel claim
Mr Hopper's position is that he was employed by MFGA until 18 January 2012, when he ceased work after his employment was terminated by the administrators. The liquidators pleaded, by way of defence, that Mr Hopper's employment with MFGA had in fact terminated about mid-February 2011 or alternatively about 1 April 2011 or on 18 January 2012, presumably as a result of discussions at the meeting with Mr Corzine, Mr Hopper and Mr Fay, or as a result of the trading activities undertaken other than for MFGA's benefit. Mr Pike made clear in closing submissions that the liquidator's primary case was not that Mr Hopper's agreement with MFGA came to an end, by reason of the discussions in February 2011 or the subsequent events, at least unless a binding agreement was reached which varied the basis of Mr Hopper's employment. I have held that such an agreement was not reached, and it is therefore not necessary to deal with any alternative proposition raised by MFGA that such an agreement would have brought about a termination of Mr Hopper's employment by MFGA, or with Mr Hopper's claim in estoppel in response to any such contention.
Had it been necessary to determine this question, I would not have accepted that Mr Hopper's employment by MFGA had terminated prior to 18 January 2012. As Mr Docker points out in his opening submissions, the provision of services to a third party, including MFG US, by Mr Hopper is not inconsistent with his continued employment by MFGA. In any event, where I have rejected the claim that any new contract was formed by reason of the discussions in February 2011, the natural inference is that Mr Hopper's arrangements continued with his existing employer, MFGA, notwithstanding that it made additional payments to him in anticipation of the contract which was then under discussion in respect of his proposed work in the United States.
By his reply filed on 8 July 2015, Mr Hopper pleads various communications from MFGA, the administrators and the liquidators after 1 November 2011, which he contends reflected a common assumption between him and the liquidators that Mr Hopper was an employee of MFGA when it went into administration and continued to be such an employee until it terminated his employment. He pleads that he will suffer detriment if the liquidators are permitted to depart from the assumption and, in substance, that they are estopped from doing so. Mr Hopper submits that, even if he ceased to be employed by MFGA on 18 February or 1 April 2011, the liquidators are estopped from relying on that matter by reason of a conventional estoppel or an equitable estoppel. In particular, Mr Hopper contends that he relied on a convention between him and the liquidators that he was employed by MFGA, or alternatively an assumed state of affairs based on representations by the liquidators to him, in not making a claim in any bankruptcy of the MF Global Group in the United States, and that it is now too late for him to make such a claim. Mr Hopper relies on the expert evidence of Mr Villagran in that respect.
I do not consider it necessary to determine this matter, which would raise significant issues as to the extent to which the conduct of an administrator, in the period when he or she is likely to have limited information immediately following his appointment, can bind that person in his or her different capacity as liquidator, or the company to which he or she is appointed, which were not addressed by the parties in submissions. The question does not arise in any event, since I have held that the events of February or April 2011 did not terminate Mr Hopper's existing employment with MFGA.
[7]
Orders and costs
It seems to me that, given the findings which I have reached above, the proceedings should largely be dismissed with costs. However, I should allow the parties a short opportunity to consider whether any more qualified or other order is required, including in respect of the question of long service leave to which I referred above. I direct the parties to bring in agreed short minutes of order to give effect to this judgment within 14 days or, if there is no agreement between them, their respective short minutes of order and short submissions as to any differences between them.
[8]
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Decision last updated: 02 October 2015
Parties
Applicant/Plaintiff:
Re MF Global Australia Ltd (in liq); Hopper
Respondent/Defendant:
Campbell in his capacity as liquidator of MF Global Australia Ltd
By Originating Process filed on 22 October 2013, the Plaintiff, Mr Garry Hopper, brought an appeal under s 1321(1)(d) of the Corporations Act 2001 (Cth) and reg 5.6.54 of the Corporations Regulations 2001 (NSW) from a decision of the liquidators of MF Global Australia Limited (in liq) ("MFGA") to reject his proof of debt dated 4 October 2012. Mr Hopper seeks orders that the liquidators' decision to reject that proof of debt be reversed and that the proof of debt be allowed or, alternatively, that the liquidators' decision be modified in such manner as the Court thinks fit. By his Statement of Claim filed on 16 December 2013, Mr Hopper maintained his attack on the liquidators' decision not to allow his proof of debt dated 4 October 2012, and expanded the orders sought also to seek review of their decision dated 30 October 2013 not to allow a second proof of debt dated 29 October 2013. Mr Hopper also seeks an order that the Defendants be directed to pay him the amount of $4,303,173.60, or the amount that the Court finds payable to him, as an unpaid and outstanding priority entitlement under s 556 of the Corporations Act.
Section 1321 of the Corporations Act permits a person aggrieved by an act, omission or decision of, relevantly, a liquidator, to appeal to the Court in respect of that decision and allows the Court to confirm, reverse or modify that act or decision and make such orders and give such directions as it thinks fit. Regulation 5.6.54 of the Corporations Regulations in turn provides that a person may appeal against the rejection of a formal proof of debt or claim within the time specified in the notice of the grounds of rejection or such further period as the Court allows. There is no dispute between the parties as to the principles applicable to the determination of such an appeal. Mr Docker, who appears for Mr Hopper, submits, and I accept, that the fundamental question in such an appeal is whether the claim sought to be provided is a true liability of MFGA enforceable against it according to law: Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332 at 341; Re Young in his capacity as Liquidator of Great Wall Resources Pty Ltd (in liq); Capocchiano v Young [2013] NSWSC 879 at [46]. In such an appeal, a liquidator may rely on any ground on which the company might have defended the claim brought by the creditor and the Court may make its decision in respect of such an appeal on evidence that was not before the liquidator: Re Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; (2004) 50 ACSR 565 at [60].
The affidavit evidence
Mr Hopper relies on his affidavit dated 22 October 2013, which deals with the appointment of the administrators, the winding up of MFGA, the lodgement of his proof of debt and the partial rejection of that proof of debt. Mr Hopper relies on his further affidavit dated 28 February 2014, to which I will refer below. Mr Hopper also relies on his third affidavit dated 21 May 2014 where he refers to further conversations with Mr Corzine and Mr Javeri (who was, as I noted above, the Head of the Proprietary Trading Group in MF Global in the United States) on 29 March 2011 and with Mr Javeri on about 1 April 2011, to discussions as to his bonus arrangements with Mr Fay in late April 2011 and with Mr Corzine in early May 2011 and with Mr Javeri in early May 2011, and to later discussions to which I will refer below. Mr Hopper also relies on a further affidavit dated 31 October 2014 which referred, inter alia, to an email which he had sent to the administrators expressing his understanding that he was employed by MFGA. He also refers to other matters following the appointment of the administrators to MFGA which he contends reinforced that understanding.
Mr Pike submits that Mr Hopper was not a reliable witness and that the Court should not accept his evidence in the absence of reliable and independent corroboration. I do not consider that it is necessary or appropriate to reach an adverse credit finding in respect of Mr Hopper generally, although there are aspects of his evidence which I have not accepted below. I have been conscious of the principle that it is important to have regard to the fallibility of human memory, which increases with the passage of time, particularly where litigation intervenes, and with the value of contemporaneous documents, and an assessment of motive and the overall probabilities, in reaching assessments as to credit: Watson v Foxman (1995) 49 NSWLR 315 at 318-319; Craig v Silverbrook [2013] NSWSC 1687 at [141]; State of New South Wales v Hunt [2014] NSWCA 47 at [56].
Mr Docker submits that a degree of caution is necessary in drawing inferences from any failure by Mr Hopper to protest positions expressed by other employees, within the relevant correspondence, where he was in an ongoing employment relationship within a large multinational group, and would be expected to deal with those executives in documenting the proposed contract. I accept that proposition, in broad terms, and it seems to me that these matters might well explain a restrained approach on the part of Mr Hopper, although I should add that he was, from time to time, prepared to put his position in a direct manner. However, those matters do not explain his failure, at critical times, to refer to critical aspects of the suggested agreement with Mr Corzine, in circumstances that it would be expected that he would have done so had that arrangement existed and where there was no apparent reason not to do so. As I will note below, throughout the period in which Mr Hopper was discussing terms of his proposed written contracts with the several parties involved in the negotiation of them, he did not suggest that a binding agreement had been reached with Mr Corzine on 18 February 2011, although he did refer to aspects of the arrangement that had been discussed on that date. To the extent that Mr Hopper suggested in cross-examination that he advanced that proposition orally, but not in writing, I do not accept his evidence, which is also inconsistent with the suggestion that he could not be expected to have referred to that matter within the context of an employment relationship.
Mr Docker also submits that the Court should more readily accept Mr Hopper's evidence where the liquidators have not called evidence from Mr Corzine, and there is evidence that the liquidators have not sought to contact Mr Corzine to give evidence. I do not accept that submission. It does not seem to me that Mr Corzine can fairly be described as in MFGA's camp, so as to draw any inference from his absence, for the purposes of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. In any event, his absence is readily explained by the evidence given by Mr Campbell in cross-examination that he did not anticipate, for reasons he indicated, that Mr Corzine would cooperate in giving evidence in respect of the affairs of an Australian subsidiary of MF Global and by the difficulties involved in compelling a US resident witness to give evidence in Australian proceedings.
Mr Hopper also relies on an affidavit of MFGA's former managing director, Mr Fay, dated 27 February 2014 which sets the history of Mr Hooper's role with Ord Minnett Jardine Fleming Futures Limited, later known as Man Financial Australia Limited and then as MFGA. Mr Fay was not cross-examined. Mr Fay gives evidence, to which I will refer below, of Mr Corzine's visit to Sydney in February 2011, and also gives evidence of the meeting attended by Messrs Hopper, Corzine and Fay, on which Mr Hopper relies as the basis of the alleged contract. Mr Hopper also relied on an affidavit of Mr David Skelly sworn 31 October 2014, which referred to the nature of Mr Skelly's employment with MFGA in Sydney, in which he undertook trading on MF Global's UK Metals Desk, primarily on the London Metals Exchange. It seems to me that that affidavit was of limited assistance, and did not support any generalisation as to the nature or arrangements for trading in foreign markets by employees of MFGA.
Mr Hopper also relied on an expert report of a US attorney, Mr Jose Raul Alcantar Villagran in respect of his estoppel case. It will not be necessary to address that report at any length, given the findings that I have reached on other grounds below. Mr Hopper also relied on a detailed tender bundle, in five volumes, which contain a significant amount of contemporaneous correspondence in respect of the relevant arrangements.
The liquidators relied on Mr Campbell's affidavit sworn 25 March 2014, which referred to the structure of the MF Global Group, the persons who were officers and employees of MFGA and MFGH respectively, documentation relating to Mr Hopper's employment with MFGA, and documentation sourced from MFGA's records in respect of the issues in the proceedings.