Skyworks v 32 Drummoyne Road

Relevant procedural history

1. On 8 June 2016, the builder obtained ex parte a freezing order against the developer, in an amount of almost $8.2 million.
2. On 15 June 2016, the builder served on the developer a payment claim pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW). The claimed amount was a little under $3.5 million. The developer disputed its liability to pay the claimed amount.
3. On 4 August 2016, an adjudicator determined that the builder was entitled to be paid, in round figures, $230,000. That amount has been paid, together with interest and relevant adjudication fees.
4. On 10 October 2016, the builder amended its list statement to claim delay costs of about $2.4 million. That was amended again, on 8 March 2017, reducing the amount claimed to about $1.5 million.
5. Against that background, the freezing order was discharged, on the basis that (by consent but without admissions) the builder could protect its position by lodging caveats. The caveats were thereafter withdrawn to enable the developer to complete the sales of lots. The net balance of the proceeds of sale, $1.9 million, has been retained in trust. That is the subject of the developer's undertaking to the court.

The test to be applied

1. The parties agreed that there were two matters to consider. First, the builder must show that (on the facts of this case) it has a good arguable case on its cause of action. Second, it must show that (again on the facts of this case) there is a danger that the developer will remove its assets from the jurisdiction or dissipate them, so that in either case, should the builder recover judgment, satisfaction of that judgment may be frustrated.
2. For the reasons that follow, I am satisfied that the builder has made good the threshold conditions enlivening the court's discretion to grant a freezing order.

Good arguable case?

1. The defendants accepted that there was an arguable case. They made no concession as to its strength.
2. The builder relied on a report that it had obtained from Tracey Brunstrom & Hammond (TBH) dated 22 February 2017 (the TBH report). That report noted that the original Superintendent under the contract had certified 611 days of extensions of time (EOTs). The developer accepts that the Superintendent had so certified, but says that he did not do so in accordance with the requirements of the contract.
3. TBH has assessed the EOTs that the Superintendent certified. It has determined that, allowing for concurrency, the builder is entitled to delay costs for 417 of those days. In addition, TBH is of opinion that the builder is entitled to a further 180 days of EOTs, not certified by the Superintendent.
4. TBH expresses the opinion that the actual costs incurred by the builder for the compensable delays were in the amount of about $1.5 million to which I have referred earlier. If some or all of the further 180 days are held to be compensable, that figure would increase.
5. The contract entitles the builder to delay costs where EOTs are granted for compensable causes. Its case is that the delays in question were for compensable causes, and thus that it is entitled to be paid at least the amount to which I have referred.
6. In addition, the contract provided that the builder was entitled to an early completion bonus of, in effect, $100,000 for each 30 calendar days by which the date of practical completion preceded the date for practical completion. The builder says that it achieved practical completion in fact on either 15 December 2015 or 1 April 2016 (I say "in fact" because the current Superintendent has not certified practical completion; the builder says that the Superintendent, and thus the developer, are in breach of their obligations accordingly). Regardless, depending on the actual date of practical completion and on the number of days of EOTs that should be allowed, the builder's case is that its claim for an early completion bonus will fall in a range between $100,000 and $1.2 million.
7. Under the contract, the builder was entitled to have half the retention fund ($490,000.00) returned upon achieving practical completion. It says that, having achieved practical completion in fact, it is entitled to have that amount paid to it.
8. On the basis of the TBH report, I am satisfied that the builder has what may be described as a good arguable case for at least (again in round figures) $1.8 million, and, it may be, substantially more.

The test

1. Mr Roberts of Senior Counsel, who appeared with Mr Byrne of Counsel for the builder, submitted that the question was not whether the defendants intended to frustrate any judgment that the builder might recover but, rather, whether there was a serious risk that the builder's recovery under any judgment might be frustrated.
2. Mr Giles of Senior Counsel, who appeared with Mr Sheldon of Counsel for the defendants, submitted that the purpose of a freezing order was not to convert an unsecured creditor into a secured creditor, but to prevent dissipation of assets so as to frustrate satisfaction of any judgment that the builder might recover. He referred to PT Bayan Resources TBK v BCBC Singapore Pte Ltd [1] .
3. Mr Giles referred to a number of cases that framed the test by reference to the quality or evaluation of the risk. With great respect, and without wishing to write a treatise on freezing orders, I think that all that can be drawn from those cases is that there must be a real basis to think that there is a risk of dissipation, and hence of frustration. Mere suspicion, based on generalities, that this is so will not suffice.
4. The Court is required to undertake a qualitative evaluation of all the evidence that is available, to see if there is a sufficiently serious risk of frustration to justify the making of a freezing order. Further, the two considerations should be analysed together (as each may impact on the other), and with an appreciation of both the underlying purpose of the rule and the relative risks of granting or withholding relief - the customary discretionary calculus.

The facts

1. In the present case, the facts are these. The builder is a sole purpose vehicle (SPV). The single function of its corporate existence was to carry out the development that was the subject of its contract with the builder. It is one of a number of companies controlled by the directors. On the evidence, the directors control a group of companies (which the parties called, and I shall call, the HIGA Group), which historically has utilised SPVs for each of its property development ventures.
2. The evidence shows, further, that as a matter of business practice, the net proceeds of property developments carried out by those SPVs, are frequently moved around within the HIGA Group so as to assist in funding current or proposed developments by other SPVs.
3. The defendants are natives and citizens of the People's Republic of China, but are permanent residents of, and maintain a home in, Australia. They control the affairs of the HIGA Group, including the way in which the resources of individual companies within the group are moved around in the way that I have briefly described. The directors have said that they wish to utilise the sum of $1.9 million, presently held in trust pursuant to the developer's undertaking to the court to which I have referred, to repay debts owed by other group companies.
4. Mr Thomas Koski, the General Counsel of the HIGA Group, affirmed an affidavit in which, among other things, he put into evidence what he said was a current statement of assets and liabilities for the defendants. In reality, it appears to be some sort of balance sheet for the developer only. It shows a net deficiency of assets in the sum of, again in round figures, $206,000. That takes account of relatively small amounts (about $25,000.00 and $24,000) in two bank accounts. Mr Roberts challenged the proposition that they were bank accounts of the developer, but I am prepared to assume that they are.
5. Far more significantly: 1. the vast bulk of the so-called current assets - some $4.48 million - is comprised of intercompany loans: loans to other companies in the HIGA Group. There is no evidence of the recoverability of those loans. 2. The vast bulk of the current liabilities consists, again, of intercompany loans: loans from other companies in the HIGA Group, in the sum of $13.2 million.
6. The other significant disclosed assets are the amount held in trust - $1.9 million - and a book entry described as "Total Inventory - Drummoyne Site". That is classified as a non-current asset, valued in round figures at $4.3 million. It appears to comprise the sunk costs relating to the development. In circumstances where all the lots have been sold, that is clearly an "asset" of no monetary value. If one excludes that figure, the net deficit shown in the balance sheet would be of the order of $4.5 million.
7. I accept, as Mr Giles submitted, that there are other assets, including a boat and motor vehicles that are said to have some value (although their value is said to be their purchase prices minus accumulated depreciation, not realisable value). The significance of those assets may rather be, as Mr Giles submitted, that they show that the directors intend to remain in this country and to pursue their business interests here.
8. Regardless, the balance sheet for the developer gives no ground whatsoever for believing that it would be able to pay from its own resources any claim that the builder manages to prove, let alone a claim of at least (as the builder says it has) $1.8 million.
9. It may not be without significance that at some time undisclosed in the evidence, the Superintendent originally appointed under the contract was replaced. The new Superintendent was the chief executive officer of the HIGA Group. There is no evidence as to why the first Superintendent was replaced by the new Superintendent. It may be that the first Superintendent had shown alarming independence by certifying 611 days of EOTs. Clearly (and, the cynical might say, not surprisingly), the new Superintendent appeared to have a different view. He purportedly certified on 9 March 2017 that the builder had been overpaid by some $378,000.00, and demanded repayment of that sum. Absent some explanation, this could be viewed as a ruse or, at best, tactical manoeuvre.
10. The significance of the replacement of the Superintendent and the remarkable and unexplained change of attitude as to EOTs is not so much its impact on the strength of the builder's claim (although the independent but reasonably well informed observer might think that a contemporaneous certification by an independent Superintendent was of more weight than an ex post facto certification by a Superintendent who happened to be the chief executive officer of the Principal). The significance lies, rather, in the obvious inference: namely, that the developer does not wish to pay the amount (or any amount) that the builder claims. That seems to me to be something that may be taken into account in assessing the risk of frustration of any judgment that the builder might recover.
11. Mr Giles submitted that the developer held a 40 year lease of a marina site from the Department of Roads and Maritime Services (RMS), and that this was an asset of some value. He relied on a marketing proposal for its sale to suggest that it had a value perhaps in excess of $3 million. I rejected the tender of that proposal. It was not prepared with any regard to UCPR r 31.27. More significantly, it lacked probative force. It consisted of mere assertion, and provided no guide whatsoever as to how the projected possible price that might be achieved on sale was derived, or of how it reflected the application of any expertise to any (unproved and unstated) facts. In short, the marketing proposal was worthless as evidence.
12. Even on an interlocutory application, the evidence relied upon in support of the proposition that the marina had some real tangible realisable value was utterly unsatisfactory and totally unpersuasive.
13. Further, although this is very much a secondary consideration, the marina appears to be in some way appurtenant to, or for the benefit of, those who reside in the development. The evidence did not show way how it was that the lease could be sold (assuming, which was not proved, that RMS would consent to any sale). Nor was it shown how the purchaser could use the marina without trespassing on common property. Indeed, it was not shown what (if any rights) the Owners Corporation or proprietors had, which might perhaps entitle them to interfere in any attempt at sale.
14. Leaving aside the position of the directors, it is quite obvious that if the developer is relieved of its undertaking to the court, and the amount of $1.9 million is applied as the defendants say they wish it to be applied, the developer will be in no position, from its own resources, to satisfy any judgment that the builder might recover. Its ability to do so would depend entirely on the directors procuring funds either from their own resources or from other companies in the HIGA Group. It is very difficult indeed to understand why the directors, or the other group companies, would wish to apply those resources to discharge a debt for which (in the case of the other companies) they are not primarily liable.
15. I turn to the asset position of the directors.
16. Mr Giles submitted that the directors were possessed of substantial assets. Those assets were identified as a home unit in central Sydney, and their shareholdings (direct or indirect) in companies in the HIGA Group, including SPVs that were carrying on individual property developments. The home unit was said to be worth somewhere between $1.76 million and $2.2 million dollars, and to be unencumbered. Although there was no attempt to value the shares in the HIGA Group companies, it was submitted that those companies were carrying on very substantial developments.
17. The evidence as to value of the home unit was not entirely satisfactory. It, too, was prepared without regard to UCPR r 36.17. However, the author of the opinion as to its likely selling price (who was a real estate agent, not a valuer) did at least refer to sales data that, he said, supported his opinion. In the circumstances, I decided that the opinion should be admitted.
18. The proposition that the home unit is unencumbered is not, strictly speaking, correct. It is encumbered by a mortgage to the National Australia Bank (NAB). The evidence is that NAB is the bank (at least in this country) with which companies in the HIGA Group transact their business. NAB advanced project finance for the Drummoyne development, and appears to have advanced project finance for other developments carried on by other companies in the HIGA Group.
19. It is correct to say that the specific debt that had been secured by the NAB mortgage was repaid. That occurred when the developer repaid the project loan borrowed for the purpose of completing the Drummoyne project. However, the mortgage was not discharged. I infer that it remains available to support loan facilities granted to other companies in the HIGA Group. I draw that inference more comfortably because the defendants (who must know the true state of affairs) have not offered any explanation as to why the mortgage itself has not been discharged.
20. I do not mean to suggest that there is anything wrong in leaving the mortgage undischarged. Obviously enough, if it were to be discharged and then, for whatever reason, a fresh mortgage were needed, substantial duty would be payable. Nonetheless, that commercial consideration does not serve to displace the inference that I have drawn; if anything, it reinforces it.
21. Thus, although the evidence suggests that on sale of the home unit, anything from about $1.7 million to $2.14 million might be raised (allowing for commission and costs of sale), there is no certainty that, at the time any such sale were to take place, there would be nothing owing to NAB that was secured by the undischarged mortgage.
22. As to the HIGA Group companies: the evidence is that they are carrying on very substantial property developments around the Sydney Metropolitan Area. On the assumption (which the evidence seems to bear out) that the HIGA Group is a successful developer, it may be inferred that those projects are likely to return a profit on completion. However, incomplete, it is impossible to ascribe any real value to them.
23. If there were in evidence some consolidated balance sheet for the HIGA Group, I was not taken to it. Thus, there is no evidence as to the assets held by the Group, nor as to the Group's liabilities. I do however note that the company searches for each of the companies in the Group show that they have given charges over their assets and undertakings. It follows from what I have just said that there is no evidence of the amounts (if any) secured by those charges.
24. There is no basis in the evidence for concluding that the guarantors' shareholdings in the HIGA Group companies are readily realisable, let alone that, upon realisation, they would produce significant funds.
25. It is obvious that the guarantors are persons of substantial means. Their evidence (given on information and belief through Mr Koski) is that they have substantial moneys available to them in China, and bring those moneys into this country as needed for the purpose of the HIGA Group's activities. There is however a suggestion in Mr Koski's evidence [2] that in recent months, it has become more difficult for the guarantors to transfer funds out of China. Apparently, they "now need to give extensive evidence justifying why the money should be transferred outside of China". There is no evidence as to the kinds of justification that might be acceptable to the authorities in China.
26. Putting all the evidence together, I conclude that if the amount of $1.9 million presently held in trust is made available to the defendants to use as they wish, it will be utilised to pay down debt owed by other companies in the HIGA Group. Although that could well be a legitimate business purpose (and perhaps one not properly described by the somewhat pejorative word "dissipation"), it will nonetheless lead to a situation where: 1. the primary debtor, the developer, will be bereft of assets from which it could pay any judgment in favour of the builder (indeed, would be even more hopelessly insolvent than at present it appears to be); and 2. there is no basis in the evidence for concluding that secondary debtors (the guarantors) would be able to pay any such judgment (accepting, as I do, that their financial position is not in any way hopeless, let alone as hopeless as that of the developer appears to be).
27. In short, if the sum of $1.9 million is paid away as the defendants wish, there is a very real likelihood that none of the defendants would have available assets from which the builder could satisfy any judgment that it might recover.
28. Mr Giles submitted that the order sought to do what is not permitted: namely, to put the builder in the position of a secured creditor. I do not agree. The order is certainly unusual, because it fastens on a particular asset rather than upon the assets of the developer (or for that matter, the directors) generally. However, if the builder recovers a judgment, it will be an unsecured creditor, although one with an identified fund to which it could have recourse. But in the likely event (on the hypothesis presently under consideration) that the developer then went into liquidation, any payment in favour of the builder would be preferential, and one that it would be liable to disgorge for the benefit of creditors generally. And it must be at least open to question, whether the court would permit the builder to garnishee the deposit when the effect might be to give it a preference, properly so called. See Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [3] .
29. In those circumstances, I conclude that if the defendants are released from their undertaking to the court and an equivalent order is not made, there is a very real likelihood that the amount presently held in trust will be paid away, beyond the reach of the builder, and a very real risk that if the builder recovers judgment against the defendants, that judgment will go unsatisfied.
30. I add two comments as to the unusual form of the order.
31. First, it was originally recast from an orthodox freezing order into the form that (although by way of undertaking) it now bears at the request of the defendants. It is a little harsh of them now to seek to take forensic advantage of the particular form of the order. The same comment may be made as to Mr Giles' submission that the order was unusual in other ways, including because it provided no carve-out for legal fees and living expenses.
32. Second, Mr Giles did not submit that r 25.11 did not authorise a freezing order in respect of specific (defined) assets, rather than assets generally. Since the parties did not address this point, I will say only that as a matter of first impression, a power to make an order in respect of "any assets" would seem to justify the limited form of the order that the builder seeks.

Other relevant considerations

1. The defendants say that some of the works done were defective. They refer in particular to works done by their "Preferred Subcontractors" (the Side Deed to which I have referred earlier entitled the developer to nominate Preferred Subcontractors in various categories). Although the Side Deed purported to exclude the builder's liability for any defective work done by the Preferred Subcontractors, the defendants say that this exclusion is void, by reason of s 18G of the Home Building Act 1989 (NSW). As I understand it, the builder accepts that this is an arguable contention. The rectification costs are said to amount to more than $1.8 million. To the extent that the defects and rectification costs are proved, it is at least arguable (bearing in mind s 18G) that the developer, and hence the directors, would be able to set off the cost of rectification against any claimed proved by the builder.
2. The developer also asserts that (contrary to the apparent view of the original Superintendent) the builder failed to achieve practical completion by the date for practical completion, and hence is liable for liquidated damages in the amount of $1.61 million. It need hardly be said that if the developer makes this aspect of its cross-claim good, it follows necessarily (among other things) that the builder's claim for delay damages will fail.
3. In those circumstances, Mr Giles submitted, the court should accept, as part of the necessary balancing exercise, that there was a good arguable defence to the builder's good arguable claim (assuming, against Mr Giles, that the latter could be described as "good"). The submission is correct in principle (although whether the cross-claim is "good", or merely "arguable", is a matter that is inherently insusceptible of evaluation at this stage in the proceedings). However, it ought be borne in mind also that the builder's claim includes, as a presently unquantified element, an assertion that, as assessed by TBH in its report, the builder is entitled to a further 180 days EOT, and thus that its claim may be even higher than the range to which I have referred earlier.
4. Looking at the matter overall, and on the basis of the information before me, all I can say is that, as is common experience with disputes of this nature, there are arguments each way, none of which can be said to be hopeless and some of which may be capable of being described as "good".
5. Mr Giles submitted, correctly, that the directors are residents of this country and have substantial ties to it. He added that they have substantial assets in Australia. I have dealt with their asset situation, so far as the evidence reveals it, earlier in these reasons.
6. Mr Giles submitted that the effect of the relief sought by the builder would be to tie up for some, presumably not short, time the amount of $1.9 million. He said that this was not justifiable where the claim was seriously in dispute. However, leaving aside the somewhat unusual form of the relief sought under UCPR r 25.11, the usual consequence of any freezing order is that it ties up the defendant's assets, up to the specified sum, for an indefinite period of time. Likewise, Mr Giles' submission that the developer has a legitimate use for the money is no more than a reflection of the position of every defendant whose assets are tied up to some greater or lesser extent by a freezing order.
7. Mr Giles raised a concern as to the ability of the builder to meet any liability that it might have on its undertaking as to damages. He submitted that the builder had transferred its assets to another company, known as "The Decode Group". In those circumstances, he submitted, there was at least doubt as to the value of its undertaking.
8. The position is explained in the builder's evidence in reply. The builder had been controlled by two men: Mr Hussein El Rahini and Mr Billal Hoitat. They have agreed to go their own ways, although on the basis that Skyworks will continue to trade. Mr Rahini now carries on business through Decode Group Pty Ltd (which appears to be the correct name of the company to which Mr Giles referred) and Mr Hoitat carries on business through Roc Build Pty Ltd.
9. The builder's evidence, given on information and belief by a solicitor, Mr Coleman, is that: 1. Decode has a substantial number of development projects on foot, in various stages of completion, with a total construction cost between them of about $140 million; and 2. Roc Build likewise has a number of construction projects on foot, although with a significantly lower construction value (around $5.4 million in total).
10. Each of Decode Group and Roc Build is prepared to offer undertakings (including as to damages) in the same form as those offered by Skyworks; and in addition, Skyworks' undertakings will remain on foot.
11. The damage that the developer identifies, as flowing in the event that it should be found, on a final hearing, that the freezing order ought not have been continued, is loss of use of the money. Its evidence is that the money will be used to pay down debt, but I do not think the evidence disclosed the interest rate (and hence the foregone amount of saved interest). Whilst it is clear that there is a risk of loss, which might run to some hundreds of thousands of dollars (depending on the time that is taken to finalise these proceedings), there is no reason to think that, between them, the builder, Decode Group and Roc Build would not be able to meet any damages assessed by reference to interest that could have been avoided had the developer been free to use the sum of $1.9 million that is presently tied up.
12. I note that Mr Roberts did not submit that additional interest incurred not by the developer, but by related companies, was irrelevant.
13. The builder will consent to the sum's being invested at interest, which will go some way towards alleviating the loss that might otherwise be suffered, should the builder fail in its case against the defendants.
14. Looking at those various matters cumulatively, I do not think that they provide any compelling discretionary reason to require that the discretion that has been enlivened under r 25.11 should be exercised against the continuation of the present position. On the contrary, it seems to me, the matters that have been raised reflect either deliberate choices made by the defendants (or the consequences of their choices) or to be covered adequately by the undertakings as to damages from the three entities to which I have referred.
15. I accept that to continue the present position (either by refusing to relieve the developer of its undertaking, or by ordering injunctive relief in place of that undertaking) will cause monetary inconvenience. I accept that however the position is maintained, it is as a matter of form somewhat unusual. But those matters do not seem to be of themselves, either individually or in combination, a sufficient reason for refusing to grant relief.

Costs

1. Mr Giles referred to what he said was an excessive amount of material on which the builder had proposed to rely. As I understand it, the defendants have considered only the parts of that material referred to in submissions. If assessment of the builder's costs of this application ever becomes relevant, the costs assessor can deal with that point.
2. In any event, this being an interlocutory application I propose to follow the lead suggested by UCPR r 42.7. In my view, it is appropriate to reserve costs where the ultimate merits of the parties positions will not be known until there is a decision following a final hearing, so that where (in terms of costs) the interests of justice point will likewise not be known until then.

Conclusion and orders

1. The substance of the present position - that the amount of $1.9 million presently held in trust is to be sequestered, so that the developer cannot deal with it - is to be maintained. It is a matter for the parties to decide how and where that sum should be invested, although there is obvious merit in the proposition that it should be invested at interest. Likewise, it is a matter for the parties whether the present position is to be maintained through the undertaking that has been offered, or (should the defendants prefer) by an order to similar effect, coupled with the defendants being relieved of their undertaking.
2. If the parties need a further date for directions, they should provide for that in the draft orders.
3. I will leave it to the parties to bring in orders to reflect whatever they think is appropriate to give effect to these reasons. Accordingly, at this stage, the only orders I make are: 1. Direct parties to bring in draft orders to give effect to these reasons, save as to costs. 2. Stand proceedings over to 7 April 2017 at 10:00am before me for the making of further orders. 3. Order that the costs of the plaintiff's notice of motion filed in court on 23 February 2017 be costs in the cause.

Endnotes

1. (2015) 89 ALJR 975.
2. Longer affidavit affirmed 10 March 2017 at [8].
3. [2017] NSWCA 53 at [112] (Leeming JA). 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: 05 April 2017