Shield Lifestone Holdings Pty Ltd v LSKF Holdings Pty Ltd

[This Headnote is not to be read as part of the judgment] Shield Lifestone Holdings Pty Ltd (Shield) challenged an ex tempore decision of a judge of the Equity Division ordering it to pay certain costs of LSKF Holdings Pty Ltd (LSKF). The costs arose out of proceedings between Shield and LSKF regarding Litestone Holdings Pty Ltd (Litestone), a company in which the parties each owned a 50 per cent shareholding. The order was made on the basis that the primary judge found LSKF achieved "a substantial victory" or that Shield "effectively surrendered". The conclusion derived from the effect of a settlement agreement entered into by Shield and LSKF. The underlying dispute concerned Shield's obligation to provide loans to Litestone under a shareholders' agreement between Shield, LSKF and Litestone. Shield provided such loans and also a performance bond in favour of Litestone, but eventually, declined to provide further funding. LSKF then attempted to acquire Shield's shareholding under a term in their agreement. Shield resisted by commencing proceedings. In a cross-claim, LSKF contested the validity of the agreement, but alternatively, sought orders to acquire Shield's shares pursuant to the agreement. Shield indicated in a written outline of submissions its concerns about securing repayment of its loans to Litestone and managing its performance bond liability. The parties agreed to a settlement on 13 March 2018, the day of the hearing. LSKF agreed to pay $530,500 to Shield and acknowledged that Litestone owed that sum to Shield. If that sum was not repaid by 16 March 2018, LSKF consented to a Corporations Act 2001 (Cth), s 461(1)(k) winding up order. The Court still had to determine the validity of the shareholders' agreement. The settlement provided that should the agreement be valid, the shares would be valued so that LSFK could acquire them under the agreement. The primary judge found the agreement was valid. LSKF sought costs against Shield. The primary judge determined that there was a "proper factual basis" to award costs "to the successful party", being LSKF. This was because LSKF wished to retain control of Litestone, and through the litigation and settlement with Shield, LSKF achieved that commercial object. The principal issue before the Court was: (i) whether the primary judge erred in concluding that LKSF had had a "substantial victory" or that the Shield "effectively surrendered" by agreeing to LSKF's acquisition of its Litestone shares under the Settlement Agreement. The Court held (Emmett AJA, McCallum JA and Simpson AJA agreeing), granting leave to appeal and allowing the appeal: As to issue (i)

1. Shield also received a significant advantage from the settlement because it resolved a dispute over the amount of money owed to Shield and provided a date for repayment. The primary judge incorrectly proceeded on the basis that these issues were not in dispute (Emmett AJA at [30]).
2. The primary judge's attention had been adequately directed to Shield's concerns in the written outline regarding loan repayments and its liability under the performance bond, despite counsel not raising them in oral submissions (Emmett AJA at [34]).
3. The primary judge mischaracterised the parties' commercial objects such that the conclusion that the settlement represented a "substantial victory" for LSKF was erroneous. Accordingly, his Honour exercised his discretion on a misapprehension of all of the circumstances (Emmett AJA [36]).
4. Shield's opposition to LSKF's share acquisition of was not its primary object, but rather a means to manage its loans and liabilities. In those circumstances, the appropriate order would have been to direct that there be no other order as to costs of the proceedings (Emmett AJA at [36]-[37]).

Judgment

1. McCALLUM JA: I agree with Emmett AJA.
2. EMMETT AJA:

Introduction These proceedings arise out of a dispute between Shield Lifestone Holdings Pty Ltd (Shield) and LSKF Holdings Pty Ltd (LSKF) in relation to the affairs of Litestone Holdings Pty Ltd (Litestone). The dispute was the subject of proceedings brought in the Equity Division by Shield against LSKF and Litestone (the Equity Proceedings). The question before this Court concerns an order for costs made in the Equity Proceedings on 2 July 2019 (the Costs Order) by a judge of the Equity Division (the primary judge). The effect of the Costs Order was to require Shield to pay part of LSKF's costs of the Equity Proceedings. Before dealing with the Costs Order, it is necessary to say something about the background to the dispute that was the subject of the Equity Proceedings.

1. In March 2016, Shield acquired 50% of the issued capital of Litestone, with the result that Shield and LSKF were equal shareholders in Litestone. The two directors of Litestone were Mr Kyri Kyriakouleas, who was the sole shareholder and director of LSKF, and Mr Feng Ye, who was the shareholder and sole director of Shield. In around April 2017, Shield, LSKF and Litestone entered into a written shareholder's agreement (the Shareholders' Agreement). The terms of the Shareholders' Agreement are not before the Court. However, it appears that cl 5.2 of the Shareholders' Agreement relevantly provided that, so long as Shield remained a shareholder of Litestone and Litestone requested loans from Shield in specified circumstances, Shield was required to provide loans on terms specified in the Shareholders' Agreement. Loans were made by Shield to Litestone pursuant to cl 5. It also appears that, in addition to the making of loans to Litestone, Shield, or an entity related to Shield or Mr Ye, provided a performance bond for the benefit of Litestone, although the terms of the bond are not before the Court.
2. A dispute arose between Shield and LSKF in relation to the obligation of Shield to provide further loans to Litestone. That dispute gave rise to a question, as between Shield and LSKF, as to the enforceability of the Shareholders' Agreement. In addition, a further question arose as to the consequences of alleged breaches of cl 5 of the Shareholders Agreement, assuming it was enforceable.
3. It appears that the Shareholders' Agreement provided a mechanism whereby, where one shareholder was a "defaulting shareholder", the other shareholder could require the defaulting shareholder to transfer the defaulting shareholder's shares to the non-defaulting shareholder. The mechanism appears to have involved the non-defaulting shareholder first giving a default notice to the defaulting shareholder requiring remedy by the defaulting shareholder of the alleged breach.
4. On or about 7 December 2017, LSKF served a default notice on Shield. On 18 December 2017, Shield commenced the Equity Proceedings and, on 20 December 2017, the duty judge accepted LSKF's undertaking not to deal with Shield's shareholding in Litestone.
5. On 27 December 2017, LSKF served two further default notices on Shield. On 10 January 2018, LSKF filed a cross-summons seeking declaratory relief and orders based on the notices served on 27 December 2017.
6. On 15 January 2018, LSKF's solicitors wrote to Shield's solicitors making an offer to acquire Shield's shares in Litestone at "fair value" as agreed or pursuant to an agreed valuation mechanism or process. The offer said that there would need to be an agreement as to the purchase price or, alternatively, a mechanism agreed on for the determination of value before a binding agreement would arise. The offer was not accepted. In any event, the offer was not one the acceptance of which would have given rise to a binding contract.

The Equity Proceedings

1. On 22 January 2018, Shield filed an amended summons in the Equity Proceedings and, on 23 January 2018, LSKF filed an amended cross-summons. On 12 February 2018, Shield filed a statement of claim and LSKF filed a defence to the statement of claim on 14 February 2018. On 15 February 2018, LSKF filed a statement of cross-claim. Shield filed a defence to the statement of cross-claim on 20 February 2018.
2. By its amended summons, Shield disputed the validity of the notices given by LSKF and sought declarations that the various notices were invalid for the purposes of the Shareholders' Agreement. Shield also sought an order under s 461(1)(k) of the Corporations Act 2001 (Cth) that Litestone be wound up on the ground that it was just and equitable for Litestone to be wound up. By its cross-claim, LSKF sought declarations that the Shareholders' Agreement was not a valid, effective or binding contract between the parties. LSKF also sought, in the alternative, declarations that Shield was obliged, pursuant to the Shareholders' Agreement, to transfer its shares to LSKF at the "Fair Market Value" determined in accordance with the Shareholders' Agreement.
3. The Equity Proceedings were fixed for hearing before the primary judge on 13 March 2018. Shield prepared an outline of opening submissions dated 9 March 2018 (the Outline). It appears that the Outline was served and filed. The Outline made the following assertions:

• The central question for Mr Ye was how best to extricate himself from the failure of Litestone;
• Mr Ye's primary concerns were as to how liability under the performance bond might be managed and as to the financial capacity of Mr Kyriakouleas to make good an undertaking to make repayment of the advances made by Shield to Litestone;
• Mr Ye's concerns led him to revisit the question of what relief should be sought on behalf of Shield and that Mr Ye's view was that purchasing LSKF's shareholding in Litestone best permitted Mr Ye to manage the difficult position in which he found himself;
• Shield accordingly, by proposed amendment, would seek an order that Shield "buy out" LSKF's shares in Litestone or, alternatively, the winding up of Litestone either on the ground that it was just and equitable or under s 459A of the Corporations Act on the ground of insolvency by reason of the failure to repay the loans, and
• Such relief would permit Mr Ye to seek to manage his losses and asserted that a "buy out" by LSKF would not permit him to manage the liability incurred under the performance bond and other securities given in support of "a factoring agreement" entered into by Litestone.

1. On 13 March 2018, the day fixed for hearing of the proceedings before the primary judge, Shield, LSKF, Litestone, Mr Ye and Mr Kyriakouleas entered into a settlement agreement (the Settlement Agreement). The Settlement Agreement included the following terms: "1. LSKF shall pay the sum of $530,500 to [Shield] by 5pm on Friday 16 March 2018 and in respect to that obligation the parties agree that time is of the essence; 2. If LSKF does not pay the said amount by the above mentioned date, then LSKF irrevocably consents to an order being made for the winding up of [Litestone] pursuant to s 461(1)(k) of the Corporations Act; 3. The sole issues to be determined by the Court are: (a) whether a winding up order should be made pursuant to s 459A on the ground of insolvency; (b) whether the Shareholders' Agreement is a void and ineffective contract in consequence of the absence of consideration and/or uncertainty; 4. In relation to 3(a), LSKF: (a) admits that the sum of $530,500 is presently owing by [Litestone] and Shield agrees that that it is the only amount owing and the sole question to be determined by the Court is whether [Litestone] is able to pay such debt by 4pm on 14 March 2018; (b) in that regard the Court notes that agreement between the parties that the undertaking given by [Shield]'s counsel not to call upon such debt until 15 March 2018 be varied to 4pm on 14 March 2018; 5. In the event the Court does not order the winding up of [Litestone] and does not declare that the Shareholders' Agreement is void and ineffective, then the parties agree that: (a) an independent valuer … should be appointed … to determine the fair market value of the shares in accordance with the process specified in … the Shareholders' Agreement with [specified] amendments … 6. LSKF agrees and is willing to pay into its solicitor's trust account the amount of $32,000 to be held for six months as security in the event of that and to the extent that CMEC calls Shield Constructions [sic] performance bond and succeeds in actually recovering an amount up to $32,000 but this security is not to be released to Mr [Ye] if Shield Constructions is wound up or deregistered but only if the outcome of the valuation process is that LSKF buys [Shields]'s shares in [Litestone]."
2. Having been informed of the Settlement Agreement, the primary judge proceeded to hear argument on the enforceability of the Shareholders' Agreement and, for reasons published on 20 March 2018, [1] concluded that there was no ground for holding that the Shareholders' Agreement was void for uncertainty. It appears that his Honour did not consider the question of whether or not a winding up order should be made in respect of Litestone on either on the ground it was just and equitable to do so or under s 459A of the Corporations Act. An appeal to the Court of Appeal by LSKF was dismissed on 20 June 2018 for reasons published on that day. [2]

The Costs Dispute

1. LSKF then sought orders for costs against Shield. In its written submissions of 15 November 2018, LSKF sought orders as follows:
2. In respect of the claims made by Shield in its summons, amended summons and statement of claim: (a) LSKF pay Shield's costs on the ordinary basis in respect of the period up to and including 27 December 2017; (b) Shield pay LSKF's costs on the ordinary basis in respect of the period from 28 December 2017 to 15 January 2018; (c) Shield pay LSKF's costs on the indemnity basis in respect to the period from 15 January 2018 up to and including 13 March 2018.
3. In respect of the claims made by LSKF by its cross-summons, amended cross-summons and statement of cross-claim: (a) Shield and Mr Ye pay 90% of LSKF's costs on the ordinary basis in respect of the period up to and including 15 January 2018; (b) Shield and Mr Ye pay 90% of LSKF's costs on the indemnity basis in respect of the period from 15 January 2018 up to and including 13 March 2018; and (c) LSKF pay Shield's and Mr Ye's costs on the ordinary basis in respect of the period from 14 March 2018 to 20 March 2018.
4. Shield and Mr Ye pay LSKF's costs (including in respect of the costs application) on the ordinary basis in respect of the period after 20 March 2018.
5. LSKF's rationale for the different periods advanced by it is as follows:

• 27 December 2017 was the date of its second and third notices that purported to trigger share acquisitions and share valuations under the Shareholders' Agreement, LSKF having abandoned its claim based on the first notice. Thus, from 28 December 2017, LSKF was contending that it was entitled to acquire Shield's shareholding in Litestone at an agreed value or as valued under the requirements of the Shareholders' Agreement.
• 15 January 2018 was the date of LSKF's offer to acquire Shield's shareholding at "fair value".
• 20 March 2018 was the day on which the primary judge delivered judgment on the remaining question being agitated by LSKF in the cross-claim and LSKF accepted that it ought to pay the costs in respect of that issue.

1. The proceedings came before the primary judge on 2 July 2019 for argument on the question of costs. For reasons given ex tempore on that day, his Honour ordered Shield to pay all LSKF's costs of the proceedings save for the costs of and in connection with the questions raised by the contention that the Shareholders' Agreement was void and ineffective and the contention based on the first notice. His Honour ordered LSKF to pay Shield's costs of those questions.
2. In his reasons, the primary judge said that Shield and LSKF had fallen out and that LSKF wanted to retain ownership and control of Litestone but Shield would not agree. His Honour referred to the Settlement Agreement as providing a mechanism for the appointment of a valuer to determine the fair market value of Shield's shares in Litestone so that LSKF could exercise "an option" to purchase the shares. His Honour found that that process had been undertaken, that a fair market value of nil had been arrived at and that LSKF had acquired Shield's shares in Litestone. His Honour said that that was precisely what LSKF had been seeking to achieve in the Equity Proceedings, that that was its commercial object and that the legal means by which LSKF sought to achieve its commercial objective was through the lengthy series of claims for relief in its cross-claim. His Honour held that the ultimate object of the claims for relief made by LSKF was for Shield to transfer its shareholding in Litestone to LSKF.
3. The primary judge said that the notices issued by LSKF pursuant to the Shareholders' Agreement were designed to trigger or enliven LSKF's entitlement to acquire Shield's shareholding in Litestone at fair market value. His Honour found that LSKF was at all times willing, from the date of filing its cross-claim, to assume the liability of Litestone for the repayment to Shield of the net balance of monies recoverable by Shield from Litestone representing funds that had been advanced by Shield and said that that was the price that LSKF was prepared to pay for the acquisition of Shield's shareholding in Litestone. His Honour also referred to the offer made by LSKF and Mr Kyriakouleas on 15 January 2018 to purchase Shield's shareholding in Litestone "for fair value".
4. The primary judge then said that, at all times, Mr Ye contended that he should be entitled to purchase LSKF's shareholding in Litestone, as was made clear in the Outline. His Honour said that when the parties reached a resolution by the Settlement Agreement, Shield agreed to allow LSKF the option of purchasing its shares in Litestone and had effectively "given in" to the claims by LSKF, subject to the repayment of the loans made to Litestone. His Honour said that repayment of the loans was a commitment that LSKF had undertaken, and was spelt out in its cross-claim.
5. Shield disputes that LSKF ever made a commitment in the cross-claim. Thus, the relevant provisions of the cross-claim may be restated as follows:

• LSKF acknowledges that, during 2016 and 2017, Shield provided Litestone with access to various funds, purportedly as loans under the terms of the Shareholders' Agreement and maintains its entitlement to have Shield prove that such funds were advanced and the balance said to remain owing.
• To the extent that Shield establishes that a net balance of monies remains recoverable by Shield from Litestone, LSKF hereby irrevocably undertakes and acknowledges that it will be jointly and severally liable to Shield for the obligation to return any such funds.
• The above undertaking and acknowledgement is given without prejudice to LSKF's claim that any other monetary award (including costs) as may be awarded against Shield may be set off against this obligation to reimburse the loan funds.

1. I have added emphasis to indicate that there was no consensus as to the amount owing by Litestone. In that regard, it is also significant that, on 15 January 2018, LSKF's solicitors wrote to Shield's solicitors referring to an assertion in earlier correspondence that Shield had lent to Litestone a total amount of $632,581.32. The letter requested Shield to provide documentary evidence proving both the amount of money that Mr Ye said Shield had lent to Litestone and the amount of money that Mr Ye said remained payable by Litestone to Shield.
2. It is clear from the terms of the cross-claim and that letter that there was no consensus as to the amount owing. Ultimately, the Settlement Agreement resolved any dispute by the agreement that LSKF would pay the sum of $530,500 to Shield and the acknowledgement by LSKF that that sum was presently owing by Litestone to Shield. It is apparent, therefore, that, while LSKF may have been prepared to repay monies advanced to Litestone by Shield, the amount was in dispute. Nevertheless, his Honour purported to find that the payment of the sum of $530,500 by LSKF "was never a matter in serious contention or, perhaps, any contention at all". The basis for that finding is unspecified and is difficult to justify in the light of the cross-claim and the letter referred to above.
3. The primary judge concluded that the case before him was one where, although there had been no determination of all of the issues on the merits, one party had had "a substantial victory" or one party had "effectively surrendered" to the other. His Honour considered that there was "proper factual basis" for the exercise of the Court's discretion to make an order for costs "to the successful party". His Honour concluded that LSKF was the successful party, except as to the question of the enforceability of the Shareholders' Agreement and the abandoned claims for relief.

The Application for Leave

1. By summons filed on 1 October 2019, Shield sought leave to appeal from the Costs Order. A direction has been given that the appeal, if leave is granted, be heard concurrently with the application for leave.
2. The draft notice of appeal filed in support of the application for leave asserts that the exercise of discretion by the primary judge miscarried because his Honour: (a) misapplied the relevant principle in concluding that an order awarding costs to LSKF should be made in circumstances where the Settlement Agreement did not resolve all issues in dispute; and (b) erred in concluding that LSKF had a "substantial victory" over Shield or that Shield "effectively surrendered" to LSKF by agreeing, by the Settlement Agreement, to LSKF's acquisition of Shield's shares in Litestone.
3. The two letters of 15 January 2018 referred to above and the Settlement Agreement were before the primary judge and are before this Court. However, while a copy of the Shareholders' Agreement was in evidence before his Honour, it is not presently before this Court. There is no evidence before this Court concerning the advances made by Shield to Litestone or as to the performance bond referred to in the Settlement Agreement. Further, neither this Court nor the primary judge had evidence of the default notices said to have been given by LSKF under the Shareholders' Agreement invoking the provisions for the acquisition of shares from Shield.
4. LSKF contends that Shield has failed to identify any real issue of principle, question of public importance or any reasonably clear injustice going beyond something that is merely arguable. Accordingly, it says, leave should be refused. In any event, LSKF contends, if leave to appeal were granted, Shield has failed to establish any error in the exercise of the discretion. LSKF supports his Honour's analysis and assessment of the Settlement Agreement as amounting to a substantial victory in relation to the issues other than those reserved for determination by cl 3 of the Settlement Agreement. LSKF contends that, in so far as Mr Ye and Shield wanted to be extricated from the joint venture constituted by Litestone, it was unreasonable for Shield not to have accepted LSKF's offer of 15 January 2018 and to have consented to the alternative relief claimed by LSKF in relation to the transfer of shares in Litestone. It asserts that it was unreasonable for Shield to resist the proposal that its shareholding be acquired by LSKF at a price to be determined by an appropriate valuation process.
5. Shield accepts that an award of costs such as that made by the primary judge is essentially the exercise of discretion. Accordingly, it must be demonstrated [3] that his Honour:

• acted upon a wrong principle or made an error of law;
• allowed extraneous or irrelevant matters to guide or affect his decision;
• was mistaken as to the facts;
• did not take into account some material consideration; or
• reached an outcome that, upon the facts, is unreasonable or plainly unjust.

1. Shield contends that his Honour misapprehended the parties' respective commercial objectives in pursuing the litigation and the Settlement Agreement and that that misapprehension rendered his Honour's exercise of discretion erroneous. Shield asserts that his Honour erred in so far as he assessed the effect of only the Settlement Agreement upon the overall outcome of the proceedings, in circumstances where the effect of the remaining dispute as to the validity of the Shareholders' Agreement was a matter that had a direct bearing on the effect of the Settlement Agreement.
2. In so far as Mr Ye's commercial objectives in the litigation were to extricate himself and Shield in relation to the outstanding advances and the performance bond, LSKF points to its willingness to pay whatever was found to be owing by Litestone and the failure on the part of counsel for Shield to advert to the performance bond in the course of argument. As indicated above, however, there was a dispute as to the amount owing by Litestone to Shield and there was a question as to when the balance of advances would be repaid. That dispute was resolved by the Settlement Agreement. It was resolved favourably to LSKF in so far as the amount agreed was less than that referred to in the letter 15 January 2018. On the other hand, and significantly, Shield achieved a significant advantage in having a date fixed for repayment, time being of the essence, with the sanction of a winding up order of Litestone if the payment were not made.
3. Shield contends that the primary judge erred in accepting the contention advanced by LSKF that the dispute turned entirely upon which party succeeded in acquiring the shares of the other in Litestone, in circumstances where, Shield asserts, its commercial interests extended well beyond the acquisition of shares in Litestone. Thus, Shield asserts, the proposition that it would have been reasonable for it to accept LSKF's offer of 15 January 2018 reflects a misunderstanding of Shield's commercial objectives. Further, Shield says, to suggest that a reasonable course of action for Shield was to consent to the relief sought by LSKF in the cross-claim disregards the fact that the relief sought by LSKF primarily contested the validity and enforceability of the Shareholders' Agreement or alternatively facilitated the transfer of Shield's shares in circumstances where Shield was to be declared insolvent.
4. The latter matter, Shield asserts, could not have been one to which it could have been expected to consent when it intended to continue to trade following the resolution of the proceedings. In any case, consenting to the relief claimed in the cross-claim would have failed to address Shield's potential liability in respect of the performance bond. In that regard, the security provided in relation to the performance bond under cl 6 of the Settlement Agreement, Shield asserts, vindicates its commercial interests such that his Honour's assessment of the Settlement Agreement as involving the effective surrender by Shield may be seen to be erroneous.
5. While some emphasis was placed on cl 6 of the Settlement Agreement in the argument before this Court, cl 6 was not expressly referred to in the argument before the primary judge. Shield asserts, however, that it must be taken to have been apparent to his Honour that that was a matter of concern for Mr Ye and Shield since his Honour referred to the first paragraph of the Outline, which referred expressly to the advances made by Shield to Litestone and to the performance bond question as the reason for Mr Ye's wish to extricate himself from the joint venture constituted by Litestone.

Endnotes

1. See Shield Lifestone Holdings Pty Limited v LSKF Holdings Pty Limited [2018] NSWSC 335.
2. See LSKF Holdings Pty Ltd v Shield Lifestone Holdings Pty Ltd [2018] NSWCA 129.
3. See House v The King (1936) 55 CLR 499; [1936] HCA 40 and Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [53]. 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: 06 April 2020