Redmond Family Holdings v GC Access Pty Ltd & Ors

Supreme Court of NSW|2016-11-24|Before: Black J

Solicitors: LAS Lawyers (Plaintiff) EKM Legal (Second to Sixth Defendants) Burridge & Legg (Fifth Defendant) File Number(s): 2012/13331

Judgment

These proceedings have a difficult history, having taken a substantial time to reach hearing, then having been heard before me on four days on 6-8 and 27 April 2016. I delivered judgment on 16 June 2016 ([2016] NSWSC 796) ("Judgment") and observed (at [168]-[169) that: "There have been several unsatisfactory features of the conduct of this case. There were significant delays before the matter reached a final hearing, largely because Mr Stone and Mr Skinner and their associated companies were unrepresented, and Mr Collins did not appear, for a considerable time and there were failures on their part to comply with directions, during the preparation of the matter for hearing, and hearing dates twice had to be vacated on their application. The case brought by Holdings was complex, and little attention appears to have been paid to the need to establish, not only that the alleged representations were made, but how Mr Redmond understood them in the context of an investment in a start-up technology company, or that they had any relevant impact on his and Holdings' decision-making or were otherwise causative of its loss. Substantial efforts in preparing and conducting the hearing were devoted to evidence as to the Financial Projections and Presentation, when a simple inquiry made by Holdings' legal representatives of Mr Redmond should have established, as emerged on cross-examination, that he had not read and relied on those documents and it should have been apparent that there was also no evidence that his advisers had done so. Holdings' case has succeeded, but only against some of the parties against which it was brought, and on a narrower basis that occupied limited hearing time. In the ordinary course, costs will follow the event, and the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. However, the case law indicates that the Court may not award costs to a successful party relating to an issue on which it lost, when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64]; The Owners - Strata Plan 61162 v Lipman [2014] NSWSC 622 at [241]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [17]. My preliminary view is that Holdings should be ordered to pay the costs of the parties against which it failed and that any costs order against the unsuccessful Defendants should also recognise that a substantial part of the costs incurred by the parties, in preparation and in hearing time, would have been directed to issues on which Holdings has not succeeded. However, I will hear the parties as to costs."

Orders and costs as against the First-Third Defendants

The proceedings are stayed as against the First Defendant, GC Access Pty Limited ("GCA") which entered voluntary administration on 7 April 2014 and ultimately passed into liquidation in July 2015, and there should be no orders as against it.
The Plaintiff submits that, as against the Second Defendant ("Fullham") and the Third Defendant ("H Ridge"), which are companies controlled by the Fourth and Fifth Defendants, Messrs Stone and Skinner, the proceedings should be dismissed and there should be no order as to costs. I held, in Judgment [147], that the claim made against H Ridge in respect of the Martin Place meeting (ASC [33]) failed, because there was no reason to attribute the representations made by Mr Stone at that meeting to H Ridge rather than GCA or Mr Stone. The claim based on the representations alleged to have been made by Fullham by the 23 December 2010 email (ASC [41]) also failed, also because there was no reason to attribute the representation made in that email to Fullham rather than GCA or Mr Stone. In paragraph 169 of the Judgment, I had expressed the tentative view that the Plaintiff should be ordered to pay the costs of the parties against which it failed. Fullham and H Ridge were sometimes represented by solicitors and sometimes by Messrs Stone and Skinner prior to the hearing, and shared common representation with Messrs Stone and Skinner at the hearing. An order for costs should be made in their favour where the Plaintiff failed in its case against them.

Substantive orders as against the Fourth-Fifth Defendants

The Plaintiff proposes that orders be made against the Fourth Defendant, Mr Stone, and the Fifth Defendant, Mr Skinner, which provide for judgment for the Plaintiff in the amount of $900,000, interest on specified amounts and an order that Messrs Stone and Skinner pay 50% of the Plaintiff's costs of and incidental to the proceedings on an ordinary basis.
The first question raised by these orders is the substantive orders that should be made. Mr Stone did not seek to be heard in respect of those orders. Mr Skinner raised questions of apportionment, to which I referred above, in respect of the substantive orders against him. The Plaintiff, and Mr Skinner, previously made detailed submissions as to apportionment in respect of the application to reopen, which was determined by the November judgment. Mr Skinner confirmed, prior to that judgment, that he would not seek to make further submissions if leave to reopen was granted, beyond those he had previously made in respect of that application. The Plaintiff advised, by email from his solicitor dated 18 November 2016, that it also did not seek to make further submissions in that respect. The Second-Fourth and Sixth Defendants also did not seek to make further submissions in that respect. Where Mr Skinner was content to rely on his written submissions and had indicated he only needed to be heard, at any oral hearing, in response to Mr Stone or any oral submissions of the Plaintiff, and Mr Stone and the Plaintiff do not seek to make further submissions, there is also no need for a further oral hearing of the matter.
Mr Skinner submits that an apportionment of liability should be ordered between Messrs Stone and Skinner, such that complete liability should be borne by Mr Stone or such other apportionment as determined by the Court should be made. Mr Skinner submits that, on the findings I had made in the Judgment, it was not possible to establish that Mr Skinner had liability under an omission case, even if that case was open to the Plaintiff. I found to the contrary in the Judgment, and I rejected Mr Skinner's application to reopen in that respect in the November judgment. Alternatively, Mr Skinner submits that the effect of an apportionment of liability should be that Mr Stone is held wholly liable for the relevant damages. As I noted above, I granted leave to Mr Skinner to reopen on that question by the November judgment, and Mr Skinner also amended that claim, by leave, to refer to the relevant provisions in the Corporations Act 2001 (Cth).
Mr Loofs, who appears for Mr Skinner, submits, and I accept, that the proportionate liability provisions in Part 7.10 Div 2A of the Corporations Act apply to a claim under s 1041I of the Corporations Act for damages for economic loss caused by conduct done in contravention of s 1041H of the Corporations Act. Mr Loofs submits, and I also accept, that Messrs Stone and Skinner were "concurrent wrongdoers" for the purposes of s 1041L(3) of the Corporations Act, so far as they were persons whose acts or omissions caused, in this case independently of each other, the damage or loss that is the subject of the claim. Mr Loofs submits that Mr Skinner's conduct was neither intentional or fraudulent so as to attract the operation of the disentitling provision in s 1041M of the Corporations Act and the contrary was not put by Mr Bennett, who appears for the Plaintiff or Mr LePlastrier who appears for Mr Stone.
Section 1041N(1) of the Corporations Act in turn provides that: "In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and (b) the Court may give judgment against the defendant for not more than that amount."
In Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1468 at [94], Palmer J noted that the corresponding provisions of Pt IV of the Civil Liability Act 2002 (NSW) are intended to visit on each concurrent wrongdoer that amount of liability which the Court considers "just", having regard to the comparative responsibilities of all wrongdoers for the plaintiff's loss. The scope of the corresponding provisions in the Civil Liability Act was also considered by the High Court of Australia in Hunt & Hunt Lawyers v Mitchell Morgan Nominees [2013] HCA 10; (2013) 247 CLR 613, where the majority noted (at [16]) that: "The evident purpose of [the provisions] is to give effect to a legislative policy that, in respect of certain claims such as those for economic loss or property damage, a defendant should be liable only to the extent of his or her responsibility. The court has the task of apportioning that responsibility where the defendant can show that he or she is a "concurrent wrongdoer", which is to say that there are others whose acts or omissions can be said to have caused the damage the plaintiff claims, whether jointly with the defendant's acts or independently of them. If there are other wrongdoers they, together with the defendant, are all concurrent wrongdoers."
In determining what is just for the purposes of these provisions, the court will also have regard to the relative causal potency of the conduct of each party: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 at [278]; Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187 at [60]; Lovick & Son Developments Pty Ltd v Doppstadt Australia Pty Ltd [2012] NSWSC 529 at [257].
I had found, at Judgment [162], that the parties' initial arrangement contemplated that Holdings would acquire a specified proportion of the shares of GCA and Global Connect Services Pty Ltd ("GCS"), being 28% of those shares; that the Plaintiff (by Mr Redmond) was content to provide a further amount of $400,000 for a 51% shareholding; and that Mr Redmond was not told of the terms on which Messrs Stone and Skinner or their associated entities could bring about the conversion of their loans to equity. I then referred to the Defendants' submissions in response to the non-disclosure case and observed (at Judgment [163]-[164]) that: "In closing submissions, Mr Le Plastrier [who then appeared for all Defendants including Mr Skinner] submitted that Holdings had not established a causal connection between the Omission (as defined) and entry into the alleged Arrangement (as defined). I do not accept that submission. It seems to me to be simply inconceivable that Holdings would have entered into an agreement to acquire specified percentages of the shares in GCA and GCS, had disclosure been made that any percentage holding which it acquired could be diluted at will by Fullham and H Ridge, at the direction of Messrs Stone or Skinner, by calling upon their loans to GCA and directing that the loans be repaid by an issue of shares in GCA and/or GCS to them or their associated entities. The claim for misleading and deceptive conduct in respect of these matters therefore succeeds against Mr Stone, who made the relevant representations as to the interest that Holdings would acquire in GCA and GCS. It seems to me clear that Holdings would not have invested in GCA and GCS at all, rather than investing on different terms, had it been disclosed that the percentage interest which it acquired could be diluted by Messrs Stone and Skinner and their associated interests at will and without its consent."
I then noted a question as to the form of the pleading in paragraph 52 of the Amended Statement of Claim, and, in finding Mr Skinner liable for misleading conduct in respect of the non-disclosure of the conversion rights under the first loan agreements, I observed (at Judgment [165]) that: "… the Defendants had common legal representation and no submission was made that the position of Messrs Stone and Skinner could or should be distinguished in this regard. I should not distinguish between the position of Messrs Stone and Skinner in this respect, where they did not submit that I should do so and where each of them must have known of the existence of the relevant conversion rights (on the premise that they existed) and could have disclosed them so as to avoid any misleading conduct by non-disclosure."
Mr Loofs now submits that it was not alleged that Mr Skinner was involved in, or had otherwise been aware of, the fact that relevant representations had been made by Mr Stone and that there was no evidence that "implicates" Mr Skinner in the making of those representations. Mr Loofs also points to the Court's finding in respect of Mr Stone at Judgment [164], which I have quoted above, and submits that: "The Court's finding, rather than implicating [Mr Skinner] points to the central role played by Mr Stone in the process that led the Plaintiff to be deceived or misled. In these circumstances, [Mr Skinner's] responsibility for the Plaintiff's loss is negligible. It is appropriate that [Mr Skinner's] proportionate liability should be assessed at 0%."
The Plaintiff points to several matters that, it submits, tend against an apportionment of liability to the exclusion of, or to a reduced extent to, Mr Skinner, including the Court's reasoning at Judgment [165] which I have also quoted above. Mr Bennett also submits that Mr Skinner stood to benefit from the conversion right alleged to have been connected to the loans by H Ridge; he was closely involved in the steps that led to the Plaintiff's investment in GCA, including sending an email dated 14 December 2010 to Mr Redmond that was a significant step in the Plaintiff's assessment of GCA; he attended meetings to advance those investments on 17 December 2010 and 21 December 2010; he had received an email dated 22 December 2010 which made clear that the Plaintiff's initial investment of $500,000 was made to acquire a specified shareholding level, which would be diluted if the conversion right existed and was exercised (Judgment [18]); he took steps to facilitate the Plaintiff's investment, so far as H Ridge transferred shares as a step in the Plaintiff's initial investment (Judgment [19]); and he took steps to implement the conversion of H Ridge's and Fullham's loans to shares at a directors' meeting on 3 May 2011, bringing about the dilution of the Plaintiff's investment in GCA (Judgment [27]). Mr Bennett also refers to the cross-examination of Mr Skinner (T232-233), in which he acknowledged that he knew that the Plaintiff's shareholding was to increase from 28% to 51% on the basis of its further investment of $400,000 into GCA; that he also knew that it was critical to the Plaintiff, and its principal Mr Redmond, that it acquire a 51% shareholding and control for its further investment of $400,000; and that he had not taken steps to make Mr Redmond or his advisers aware of the right of conversion which was alleged to be attached to the loan agreements between GCA on the one hand and Fullham and H Ridge on the other.
Mr Bennett submits, importantly, that the nature of the non-disclosure of the right of conversion that was alleged to attach to the loan agreements was such that either Mr Skinner or Mr Stone could have avoided that non-disclosure and avoided the Plaintiff's loss by simply informing Mr Redmond of the fact of the loan arrangements and the right of conversion; that the fact that the fault is with one of them does not mean it cannot also be with the other; and that that fault is "entirely with both of them". Mr Bennett in turn submits, and I accept, that: "There is no basis to prescribe a negligible amount to Mr Skinner where he largely stood to benefit, knew of the conversion rights and the Plaintiff's basis of investing, was at the meetings soliciting that investment, emailing financial documents and projections to the Plaintiff, voting in favour of the conversion rights and allowing the conversion (and consequent dilution to the Plaintiff's shareholding) to go through."
Mr Loofs submits, in reply, that it is uncontroversial that it was Mr Stone who made the representations that did not disclose the conversion rights. I held, in the Judgment, that Mr Stone did not disclose the conversion rights, in circumstances where that non-disclosure was misleading and deceptive. However, Mr Skinner equally did not disclose the conversion rights, in circumstances where the non-disclosure on his part was equally misleading and deceptive, and also causative of the Plaintiff's loss. Mr Loofs also submits that Mr Skinner was justified in relying upon Mr Stone in some aspects of the matter and the failure of disclosure on Mr Stone's part was in fact misleading and deceptive and in fact causative of the Plaintiff's loss. Mr Loofs also submits that the Plaintiff's submission that either Mr Stone or Mr Skinner could have remedied the problem by informing Mr Redmond of what they (individually) knew applied with force to Mr Stone. I accept that submission, but that proposition applies as much to Mr Skinner as it applies to Mr Stone.
To recapitulate several matters that I had noted in the Judgment and the November judgment, Mr Skinner knew of the conversion rights in the first loan agreements; those rights were plainly material to whether the Plaintiff would acquire the percentage of shares in the companies for which it had bargained; and Mr Skinner did not disclose the first loan agreements or the conversion rights to the Plaintiff, or its representatives, during his several dealings with the Plaintiff and its representatives in respect of the Plaintiff's investment in GCA and GCS. I recognise that Mr Skinner had said, in cross-examination, that he did not know either whether a version of the loan agreement that did not include the conversion right was provided to Mr Redmond in November 2011, or whether a version of the loan agreement that provided for converting the loan to capital was first provided to Mr Redmond in January 2012. However, it seems to me that the consequence of the findings in the Judgment, and Mr Skinner's cross-examination, is that Mr Skinner knew, relevantly, that there had been a non-disclosure by him in his dealings with the Plaintiff and its representatives, just as Mr Stone knew that there had been a non-disclosure by Mr Stone in Mr Stone's dealings with the Plaintiff and its representatives, irrespective of whether either of them knew what the other of them may have conveyed to the Plaintiff.
It seems to me that it is just and equitable, and consistent with the legislative policy reflected in these provisions, to make an order for apportionment of liability as between Messrs Stone and Skinner in this case, where each of them would otherwise bear the risk of being held liable for the entire liability, including on the insolvency of the other. It does not seem to me that, for the purposes of s 1041N of the Corporations Act, it would be just and equitable, having regard to Messrs Skinner's and Stone's common responsibility for the Plaintiff's loss, to apportion a lesser share of that liability to Mr Skinner than to Mr Stone, where each of them could, by disclosure, have avoided the Plaintiff's exposure to that loss. Accordingly, the damages awarded to the Plaintiff should be apportioned equally as between Mr Stone and Mr Skinner.
I should note, for completeness, that Mr Bennett also submitted that the Plaintiff's claim had been brought under the Australian Consumer Law and the Australian Securities and Investments Commission Act 2001 (Cth), and that Part 7.10 Div 2A of the Corporations Act would not entirely address Mr Skinner's liability. It was unclear whether Mr Bennett was contending that that submission would have any impact on the ultimate result. I would not accept that the submission had such an impact, since apportionment provisions exist, in broadly similar terms, in respect of each of those regimes.
A further issue arose so far as the Plaintiff sought interest on the amount of $400,000 (which will be attributed equally to Messrs Stone and Skinner as noted above) from 16 November 2011. I had observed in Judgment [40] that: "Holdings also pleads (ASC [14]) that, on or about 16 November 2011, Holdings on the one hand and GCA, Fullham, H Ridge and Messrs Stone and Skinner varied their agreement, arrangement or understanding, such that Holdings would purchase additional shares in GCA for $400,000, with $100,000 paid on an urgent basis; $19,998.65 approximately being sums that had already been advanced by Holdings to the first defendant, in July 2011; and the balance by the end of 2011; and, in consideration for this, GCA would issue new shares to Holdings such that it would then hold 51% of the ordinary shares of GCA. … There is a dispute, which is not presently material, as to whether the balance of the amount pleaded by Holdings as due by the end of 2011 was payable by that time or within four weeks." I do not consider that interest can be ordered from 16 November 2011, when the full amount of those monies was not paid by that date. In order to avoid further delaying this judgment, I have ordered interest from 1 February 2012, with liberty to the Plaintiff to relist the matter, in order to seek to vary that order, by application to my Associate by 30 January 2017, if it considers that the costs of further submissions as to this matter are warranted in the circumstances.

Costs orders as against the Fourth-Fifth Defendants

I now address the costs orders that should be made, as between the Plaintiff and the Fourth and Fifth Defendants. The Plaintiff submits that a discount of 50% of the costs in favour of Messrs Stone and Skinner reflects the fact that the Plaintiff was successful in respect of its non-disclosure case in relation to loans owed by GCA but unsuccessful in relation to other pleaded representations.
I summarised the relevant principles as to the circumstances in which the Court will differentiate between the issues on which a party was successful and those on which it failed in paragraph 169 of the Judgment, and the Second-Fourth and Sixth Defendants adopt that summary and support the preliminary view expressed in the Judgment, as set out above. They submit that the Plaintiff succeeded in respect of only two of the ten allegations made against Mr Stone. It does not seem to me that a counting of the number of the allegations in this manner is particularly illuminating. However, the Second-Fourth and Sixth Defendants are correct in observing that there was a substantial focus, both in the pleadings, the evidence and at the hearing on misleading or deceptive conduct alleged to have arisen from the provision of financial projections and a presentation to the Plaintiff, which was ultimately not established. The Second-Fourth and Sixth Defendants submit, and I accept, that substantial efforts in preparing and conducting the hearing would have been devoted to the allegations on which the Plaintiff was unsuccessful. The Second-Fourth and Sixth Defendants submit that the appropriate order is that the Plaintiff pay Mr Stone's costs so far as they relate to those eight unsuccessful allegations; they may implicitly accept, although they do not say, that Mr Stone should pay the Plaintiff's costs in respect of the case on which the Plaintiff succeeded. It does not seem to me that that approach is justified, where the Plaintiff was ultimately successful in respect of a substantial money judgment in the proceedings.
Against the contingency that orders would be made against Mr Skinner in respect of liability (as they will be, reflecting the result in the Judgment), Mr Loofs submits that any costs orders that are made against Mr Skinner should reflect the measure of success he had in defending what Mr Loofs describes as the "pleaded case" against him. Mr Loofs submits that the adverse findings against Mr Skinner relate to a "particularly narrow issue" and that it would not be appropriate to award the Plaintiff its entire costs in relation to the claim it brought against Mr Skinner. I accept that the Plaintiff's successful case against Mr Skinner related to one issue, although that issue was an important issue at the hearing, and I also accept (as does the Plaintiff) that it would not be appropriate to award the Plaintiff its entire costs in relation to its claims against Mr Skinner.
Mr Loofs submits that the amount of costs ordered against Mr Skinner should be no more than the proportion of costs which reflects his proportionate responsibility for causing the Plaintiff's loss. I do not accept that submission, where the substantial judgment that the Plaintiff has achieved against Mr Skinner, even after the application of the apportionment regime, supports an order for costs in its favour. Mr Loofs submits that that amount should then be reduced by a further 50% to reflect the measure of success Mr Skinner has had in relation to the various claims brought against him by the Plaintiff. I so consider that the costs that should be awarded against Mr Skinner should be reduced in the manner noted below.
I accept that an order for costs should be made in favour of the Plaintiff and against Messrs Stone and Skinner, where the Plaintiff has been successful against them, and that success has resulted in a significant monetary judgment in its favour. The question is the extent to which that order should be reduced, by reference to the fact that the Plaintiff pursued other claims, in the circumstances to which I referred in the Judgment, which not only did not succeed, but it would have been apparent could not succeed, had adequate instructions been taken from Mr Redmond in relation to his lack of reliance on important pleaded representations prior to the commencement of the proceedings. Those allegations took up a substantial period of time at the hearing, and undoubtedly increased the costs of the proceedings for all parties. The question of the extent of such a reduction is ultimately a matter of impression. The making of no order as to costs as against Messrs Stone and Skinner would not adequately reflect the Plaintiff's success in the proceedings; the reduction of 50% for which the Plaintiff contends does not seem to me adequately to reflect the extent of time wasted, and costs incurred, in dealing with claims as to pleaded representations that did not and could not succeed; and it seems to me that the proper result will be an order that the Fourth and Fifth Defendants pay one-third of the Plaintiff's costs of the proceedings as agreed or as assessed.

Orders as against the Sixth Defendant

The Plaintiff accepts that, as against the Sixth Defendant, Mr Collins, the proceedings should be dismissed and the Plaintiff should pay Mr Collins' costs of and incidental to the hearing in April 2016 on the ordinary basis as agreed or as assessed. That order as to costs reflects the fact that Mr Collins had only participated in the hearing and not at earlier stages of the proceedings. The order for costs in favour of Mr Collins is consistent with the preliminary view that I expressed in paragraph 169 of the Judgment.

Previous costs orders

The Plaintiff submits, and I accept, that previous costs orders in the proceedings should remain, since nothing in this judgment affects those orders, which reflected matters arising from the prior conduct of the proceedings.

Orders

Accordingly, I make the following orders:
As against each of the Fourth Defendant and the Fifth Defendant: a judgment for the Plaintiff in the amount of $450,000; b interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on: i $250,000 from 23 December 2010; and ii $200,000 from 1 February 2012; c order the Fourth Defendant and the Fifth Defendant pay one-third of the Plaintiff's costs of and incidental to the proceedings (other than those referred to in order 4) on the ordinary basis, as agreed or as assessed; and
As against the Second and the Third Defendants: a the proceedings are dismissed; and b order the Plaintiff pay the Second Defendant's and the Third Defendant's costs of and incidental to the proceedings (other than those referred to in order 4) on the ordinary basis, as agreed or as assessed.
As against the Sixth Defendant: a the proceedings are dismissed; and b order the Plaintiff pay the Sixth Defendant's costs of and incidental to the hearing in April 2016 on the ordinary basis, as agreed or as assessed.
All previous costs orders made by the Court continue to have effect.
Reserve liberty to the Plaintiff to relist the matter, by application to the Associate to Black J made no later than 30 January 2017, if it seeks to vary the date from which interest is payable under order 1(b)(ii) above.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2016

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