St George Bank Ltd v Rabo Australia Ltd

Background 2 Rabo's business was that of a bank. One of its customers was Parle Foods Pty Ltd ('Parle'). Parle's business included the farming and processing of pickles, which it supplied to both McDonalds and Hungry Jacks in Australia. Parle's assets included a factory which had been constructed on a property at Hanwood, near Griffith ('the Hanwood property'). 3 On or about 22 December 1999 Rabo entered into a facility agreement with Parle (referred to as 'the Original Facility Agreement'). That agreement was amended on 28 April 2000 by an Amendment and Restatement Agreement. The Original Facility Agreement provided that Rabo make various loans and facilities available to Parle up to an overall limit of $17.53 million. Security of various kinds was provided by Parle, including a mortgage over the Hanwood property. 4 Under the Original Facility Agreement, Parle was obliged to provide Rabo with accounts and other information disclosing Parle's financial position on a regular basis, and was required to comply with minimum solvency and other financial ratios, and to certify such compliance at regular intervals. 5 In and after May 2000 negotiations ensued between St George, Rabo CF and Rabo centring on a proposal whereby: (a) the amount made available to Parle would be increased from $17.53 million to $21.52 million, plus a $3.6 million loan facility for the Parle family; (b) Rabo would reduce its exposure to Parle from $17.53 million to $10.76 million, plus half of the loan facility for the Parle family (ie $1.8 million); and (c) St George would assume an exposure to Parle of $10.76 million, plus half of the loan facility for the Parle family (ie $1.8 million). Initially, the principal negotiators were Ms Elise Taylor, an Associate Director of Corporate Advisory at Rabo CF, and Mr James Macfarlane, then a Senior Relationship Manager at St George. 6 St George contends that during the course of those negotiations, Ms Taylor made the following representations to Mr Macfarlane: (a) 'All the debt requirements and associated servicing and repayment costs … were factored into the 2001 onwards projections, and therefore we are confident the existing financial and other covenants can be complied with and maintained at existing levels'; (b) 'Due to Parle's strong growth phase, it is likely that the debt will not reach the limits of the facility and Parle will be overfunded'; (c) 'This is an excellent opportunity. There is a significant upside and potential for both St George and Rabo'; and (d) 'Rabo has a strong relationship with Parle and a long history with the company'. Insofar as those representations are about future matters, the burden of proof is on Rabo/Rabo CF to show that it had reasonable grounds for making the representation. 7 On or about 14 June 2000 Rabo CF provided St George with a business plan concerning Parle which Rabo CF had prepared upon the basis of information provided by Parle. Amongst other things, the business plan contained financial and performance projections relating to Parle. The projections were accompanied by various warnings as to their reliability, and disclaimers of any responsibility on the part of Rabo CF in relation to the accuracy or completeness of the information supplied. The business plan concluded: 'Parle is a company which is well positioned in its markets, with a myriad of opportunities and alternative strategies available to it. The company is currently entrenched in its strongest growth period to date, and management attention is devoted to ensuring this phase reaches its successful conclusion. A period of consolidation will follow to the extent this is possible considering the state of the industry and the opportunities which become available following expected changes within it. With the assistance of its numerous business partners, Parle expects to exceed current expectations at each milestone.' 8 On 3 August 2000 Mr Macfarlane and another officer of St George prepared an Advance Application and Credit Approval Memorandum, recommending that St George proceed with the Participation Facility. That recommendation was made even though the proposal fell outside the Bank's policy in relation to the provision of security. 9 On or about 10 October 2000 Mr Macfarlane received a Finance Report in relation to Parle together with the operating results to September 2000. The Report included the following: 'Cash Working capital shortage continues to require careful management, manifesting itself very much as overdue creditor balances leading to creditor enquiries. There are strong indications in the near future trading projections, however, that we may be over the worst.' … 'Accumulating the funds to pay large bills such as group tax and income tax has always been a difficulty as day to day creditor requirements tend to take priority. Introduction of the GST has removed this problem.' 10 After receiving that report, Mr Macfarlane had discussions with Ms Taylor, during which she made representations in relation to Parle's cash position, and as to the nature of its creditors. 11 On 15 November 2000 St George received a copy of a compliance certificate which Parle had given to Rabo for the period ending 30 September 2000. The certificate recorded a failure to comply with the interest cover ratio, and requested a waiver in relation to that ratio as at 30 September 2000. Mr Macfarlane was not concerned about this failure, because the business was about to enter its peak season, and, based on all information provided, was going to produce strong cash flows and positive interest cover. 12 On 16 November 2000 St George and Rabo executed the Club Participation Agreement, whereby St George agreed to indemnify Rabo for up to 50 per cent of the revised facility limits (totalling $24.63 million). By cl 10(d) of the Club Participation Agreement, Rabo represented and warranted to St George that Rabo was 'not aware of any subsisting Event of Default under the Transaction Documents'. The phrase 'Transaction Documents' included the Original Facility Agreement. 'Event of Default' was defined so as to include a failure to comply with any of Parle's obligations under the Original Facility Agreement including the requirement that Parle comply with the five financial ratios and requirements set out in Item 12 of the First Schedule to the Original Facility Agreement, including the interest cover ratio. 'Event of Default' also included any material adverse change in the business, assets or financial condition of Parle which, in the good faith opinion of Rabo, may adversely affect the security of Rabo, or the ability or willingness of Parle to comply with any of its obligations under any Transaction Document. 13 On 19 December 2000 St George received a letter on Parle's letterhead, signed by Ms Taylor 'per Anthony Parle' requesting a further $1 million loan. The letter included the following statement: 'We are confident of a strong result for the full year following the completion of the current season processing …' On 4 January 2001 St George consented to the provision of a further $1 million to Parle. 14 In March 2001, only four months after the Club Participation Agreement was signed, St George became aware that Parle was experiencing significant financial difficulties and that there was a 'cash hole' in the company. In that regard: (a) in the quarter ended 24 December 2000, Parle failed to comply with at least 3 of the 5 ratios and requirements set out in Item 12 of the First Schedule to the Original Facility Agreement and thereby had actually committed more than 1 Event of Default in the quarter in which the Club Participation Agreement was signed; (b) by 28 February 2001, Parle's financial position was such that it was unable to repay the relatively small amount of $11,413.42, being interest due on that date, nor could Parle meet other interest payments due in March 2001; (c) on 27 March 2001, Parle notified Rabo and St George that it would be unable to repay the sum of $333,333.33 due on 31 March 2001, nor the amount of $333,333.33 due on 30 April 2001; (d) on the same day, Parle gave notice that it would 'certainly' be in breach of 3 of the 5 ratios and requirements set out in Item 12 of the First Schedule to the Original Facility Agreement and would thereby commit more than 1 Event of Default in the March 2001 quarter; (e) in fact, Parle breached 4 of the 5 ratios and requirements set out in Item 12 in the March 2001 quarter; and (f) by 31 March 2001, Parle was reporting that its aged creditors were $16,190,000, with some $5,569,000 being outstanding for 90 days or more (a debt of $3.4 million due to a shareholder was included in these figures, of which $1.25 million had been outstanding for over 90 days). 15 On 15 June 2001 St George received an investigating accountant's report from KPMG in which KPMG concluded (amongst other things) that 'Parle is most probably insolvent'. Between June 2001 and March 2003 efforts were made to restructure Parle and various strategies were put forward by the Parle management. 16 On 7 April 2003 St George received a report prepared by RSM Bird Cameron Partners. The report concluded that Parle was insolvent. Receivers and managers were appointed to Parle on 16 April 2003. 17 On 9 May 2003 Rabo demanded the sum of $11,781,638.22 from St George pursuant to the Club Participation Agreement. That amount was duly paid by St George. The business of Parle has since been sold. St George has received some funds from Parle, and is entitled to receive further funds pursuant to the sale agreement. However, there will be a deficiency of at least $2 million.

The Hanwood property 18 The Bird Cameron report of 7 April 2003 disclosed that the access road to the Hanwood property was on land owned by Phoenix Foods Pty Ltd ('Phoenix') and that there was no enforceable legal right to use the Phoenix property so as to gain access to the Hanwood property. In May 2003 St George learnt that an environmental planning licence condition required that the Phoenix property be used for the disposal of waste water, but Parle had no enforceable legal entitlement to discharge waste water on the Phoenix property. In June 2003 St George learnt that the Phoenix property was also required to be used as a noise buffer zone for the Parle factory pursuant to an environmental planning licence condition, but Parle had no enforceable legal right to require the Phoenix property to be used in this way. 19 On 3 August 2000 Coffey Geosciences Pty Ltd had prepared an Environmental Impact Study relating to the Hanwood property. An EPA licence was issued pursuant to that study in July/August 2002 which imposed the conditions relating to the noise buffer zone and the ability to discharge waste water on the Phoenix land. 20 The problems relating to the Hanwood property in relation to access, waste water and noise buffer are collectively referred to hereafter as 'the Defects'. St George was unaware of the Defects until 2003. I infer that the Defects adversely impacted upon the value of the Hanwood property.

The involvement of Beverley Waters 21 Mr Beverley Walters was a director of Parle from 21 September 1999 to 13 June 2001, a director of Rabo from 24 February 1995 to 30 November 2001, and a director of Phoenix from 4 July 2000 to the present. The Phoenix land is mortgaged to Rabobank Australia Ltd ('PIBA'), in which Rabo owns 50 million shares. Mr Beverley Walters was a director of PIBA from 24 November 1989 to 30 December 2001 and is a former Managing Director of both Rabo and PIBA.

Correspondence between St George and Rabo 22 St George wrote to Rabo on 26 November 2003 drawing attention to the fact that after the entry into of the Club Participation Agreement matters came to St George's attention which suggested that Parle: 'was already in a parlous financial condition as at 16 November 2000 (being the date St George Bank entered in to the participation agreement) as well as prior to that date when St George Bank was considering the opportunity for participation [that Rabo had] offered to it.' The letter also referred to the fact that the security offered to support the facilities was impaired by the Defects. Confirmation was requested from Rabo that neither Rabo nor Rabo CF was aware of the Defects when the Club Participation Agreement was entered into, nor held any credit concerns regarding Parle's financial position. 23 On 24 December 2003 Rabo replied to that letter. Rabo did not give the confirmation which St George had sought. Instead, the letter stated: 'Given the confidential banker/customer and other relationships we both have with Parle, you will appreciate that it is not appropriate for me to respond in detail to the matters raised in your letter, although you should take it that any implications from your letter that there is any potential liability by Rabo or [Rabo CF] to St George are rejected. … We were most disappointed in Parle's failure and trust that the receiver is successful in minimising the loss we have each suffered. No doubt you take the same view.'

Potential causes of action 24 St George contends that there is reasonable cause to believe that it has or may have a right to obtain relief in this Court from Rabo, or Rabo CF. The potential causes of action which St George identifies are: (a) an action for damages for breach of the warranty set out in cl 10(d) of the Club Participation Agreement; (b) an action for damages under s 52 of the Trade Practices Act 1974 (Cth) ('the TPA') and/or s 12DA of the Australian Securities & Insurance Commission Act (Cth) ('the ASIC Act') in relation to representations made by Rabo CF concerning the financial position and performance of Parle, and its ability to comply with financial covenants in the future; (c) an action for damages under s 52 of the TPA and or s 12DA of the ASIC Act in relation to the failure to disclose the Defects to St George when the Defects were known to Rabo and/or Rabo CF, and when the circumstances were such that failure to disclose those matters was misleading and deceptive; and (d) an action for damages under s 52 of the TPA and/or s 12DA of the ASIC Act based on the failure of Rabo CF and/or Rabo to disclose to St George facts which were known to them and which were material to St George's assessment of Parle's financial position and creditworthiness. That non-disclosure may also found a claim for breach of fiduciary duty upon the basis that Rabo was in a position analogous to that of a lead banker in a syndicated loan (see UBAF Ltd v European American Banking Corporation [1984] QB 713) and by virtue of the following facts: (i) St George was being asked to indemnify Rabo in respect of amounts then owing but unpaid to Rabo by Parle (see clauses 3.1 to 3.4 of the Club Participation Agreement); (ii) Rabo held and would continue to hold (partly for St George's benefit) all of the securities given by Parle in relation to the amounts the subject of the Club Participation Agreement; (iii) Rabo was offering to act as agent for St George in relation to many aspects of the facilities afforded to Parle, including in relation to Parle's compliance with facility limits and financial covenants (see, for example, clause 6.2 of the Club Participation Agreement); and (iv) Rabo was proposing that St George share with Rabo the profits to be made from jointly financing Parle.

Order 15A - rule 6 - Relevant principles 25 Order 15A rule 6 provides: 'Where: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision, the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).' 26 The following propositions emerge from the authorities in which the proper application of Order 15A r 6 has been considered by judges of this Court: (a) the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27]; (b) each of the elements prescribed in sub-paragraphs (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [38]. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 at [5]; (c) the test for determining whether the applicant has 'reasonable cause to believe', as required by sub-paragraph (a), is an objective one: Hooper at [39]; Malouf v Malouf [1999] FCA 710 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391; BC 9602085 at 23. Further, the words 'or may have' cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at [24]; Paxus Services at 733; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679at [13], [14], [17] and [73]; (e) whilst uncertainty as to only one element of a cause of action might be compatible with the 'reasonable cause to believe' required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe: Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215; (f) the question posed by sub-paragraph (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court: Quanta Software at [33] - [34], Alphapharm at 24-26. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279 at [21]; Quanta Software at [33] - [34], Alphapharm at 24-26, Airservices Australia at [5]; (g) whether an applicant has 'sufficient information' for the purposes of sub-paragraph (b) also requires an objective assessment to be made: Minister for Health at [44]; Alphapharm at 23-24, Hooper at [40]. The sub-paragraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a 'fishing expedition': Paxus Services at 733. Indeed Order 15A r 6 'expressly contemplates' what once might have been castigated as 'fishing': Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [27]. As Burchett J commented in Paxus Services, the rule is (at 733): '… designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent …'.

Application of relevant principles 27 The major contest between the parties is as to whether the evidence establishes the elements prescribed in sub-paragraph (a) of the rule. It is common ground that the requirements of sub-paragraph (b) have been satisfied both in terms of the sufficiency of St George's enquiries and the lack of sufficient information. Sub-paragraph (b) contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings. The critical particular piece (or pieces) of information which St George lacks is information as to whether Rabo and/or Rabo CF knew about the parlous financial position of Parle, and/or about the Defects prior to 16 November 2000, when the Club Participation Agreement was concluded. 28 The absence of that information leads to the conclusion that St George has not established in relation to its foreshadowed causes of action that there is reasonable cause to believe that St George has the right to obtain relief in this Court in relation to those claims. However, at its lowest level, sub-paragraph (a) requires that there be reason to believe that the applicant may have the right to obtain relief in this Court in relation to those claims. 29 If the evidence established that Rabo and/or Rabo CF had relevant information which was withheld from St George, otherwise than inadvertently, then the requirements of sub-paragraph (a) of the Rule may well be satisfied in relation to a foreshadowed claim. But the authorities establish that the bare possibility that Rabo and/or Rabo CF may have deliberately withheld material information from St George is insufficient to enliven the operation of the Rule. Whilst St George does not need to go so far as to establish a prima facie case, St George does have to establish that there is reasonable cause to believe that each of the necessary elements of a potential cause of action exists. The evidence must incline the mind to the view that Rabo and/or Rabo CF deliberately withheld material information from St George. The threshold test under sub-paragraph (a) may be set at quite a low level (Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531) but, as I said earlier, it is not sufficient to point to a mere possibility that St George may have a claim, when that claim is completely dependent on the as yet unknown facts. 30 With this introduction, it is convenient to consider individually each of the possible causes of action foreshadowed.

The claim in paragraph 24(a) above 31 St George's evidence establishes that there is reason to believe that Parle may have committed an Event of Default under the original Facility Agreement prior to 16 November 2000. The emergence of the financial problems referred to above within a period as short as four months after the conclusion of that agreement suggests that this may well be so. It may be that upon full exploration of the matter, this inference would be rebutted, but that does not matter for present purposes. 32 However, there is no foundation in the evidence for a conclusion that there is reason to believe that Rabo and/or Rabo CF was aware prior to 16 November 2000 of a subsisting Event of Default on the part of Parle other than the Event of Default which Rabo notified to St George on 15 November 2000 which related to the quarter ended 30 September 2000. The proposition that Rabo and/or Rabo CF was aware of other but un-notified events of default is merely unsupported speculation.

The claim in paragraph 24(b) above 33 St George's evidence establishes that there is reason to believe that Rabo and/or Rabo CF made representations to St George as to future matters, including as to Parle's likely financial performance if St George and Rabo entered into the arrangement envisaged by the Club Participation Agreement, and as to the likelihood that Parle would be able to comply with financial covenants thereafter. 34 Those representations were actionable at the suit of St George, unless Rabo and/or Rabo CF had reasonable grounds for making the representations (ASIC Act s 12BB(1); TPA S 51A(1)). Further, Rabo and Rabo CF are deemed not to have had reasonable grounds for making representations with respect to future matters unless they adduce evidence to the contrary (ASIC Act 12BB(2); TPA s 51A(2)). 35 It is unnecessary, for present purposes, to determine whether s 51A of the TPA and s 12BB of the ASIC Act have the effect of reversing the onus of proof (see Miller's Annotated Trade Practices Act (25th Ed, 2004) at [1.51A.37]). It is sufficient for present purposes to observe that as a consequence of the statutory scheme, St George may have the right to obtain relief from this Court in relation to the representations as made by Rabo and/or Rabo CF, although that prima facie position may be defeated if Rabo and/or Rabo CF adduce evidence that they had reasonable grounds for making those representations. 36 One of the 'Relevant Principles' referred to in par 24 above is that preliminary discovery may be ordered in order to determine the strength of the opposition to a prima facie claim. 37 The nature of the relationship between Rabo and/or Rabo CF on the one hand, and Parle on the other, establishes that there is reasonable cause to believe, in terms of sub-paragraph (c) of the Rule, that Rabo and/or Rabo CF have documents in their possession relating to whether representations as to the future made by Rabo and/or Rabo CF were soundly based. Whether those documents would support or deny St George's claim, inspection of them would assist St George in deciding whether or not to commence proceedings. 38 Discovery should thus be made of documents which satisfy that description. It was agreed by both parties that I should, at this stage, confine myself to questions of principle, rather than embarking upon a consideration of any problems with the sufficiency of the description of the documents the discovery of which is sought in the application, as the parties expected that this could be sorted out by agreement once the question of principle is determined. 39 No submissions were put on behalf of the respondents as to any discretionary considerations which might militate against an order for preliminary discovery, if I came to the conclusion which I have reached.

The claim in paragraph 24(c) above 40 All but one of the Defects arise from the terms of an EPA licence which appears to have been issued in July/August 2002, well after the entry into of the Club Participation Agreement. However, these Defects appear to have their origin in an Environmental Impact Study prepared in August 2000. 41 If Rabo had obtained a survey or valuation of the Hanwood property when its facility was originally established, that might sustain an inference that Rabo knew that the Hanwood property was landlocked, although it would not necessarily sustain such an inference in relation to the other Defects. Prior to the execution of the Club Participation Agreement, Mr Macfarlane obtained a valuation of the Hanwood property from Colliers Jardine dated 11 October 2000. This valuation has not been produced. If that valuation revealed the Defects, or some of them, then St George knew of them and to that extent it has no claim. If the valuation did not reveal the Defects, then there is no reason to believe that Rabo knew of them, even accepting that Rabo is likely to have obtained an independent valuation of the Hanwood property when the facility agreement was originally entered into in December 1999. There is another layer to the difficulties which St George faces in this respect. Even if it be inferred that Rabo knew of one or more of the Defects by reason of a valuation then obtained, St George must establish that Rabo's failure to disclose that matter a year later was otherwise than by reason of inadvertence, in a context in which Rabo advanced its own funds on the security of the Hanwood property notwithstanding that the property was landlocked. 42 For these reasons, the evidence does not establish that there is reason to believe that Rabo knew of the Defects and consciously failed to disclose them to St George. In coming to that conclusion, I have not overlooked the multiple positions which Mr Walters occupied (see par 21 above), but there is nothing to suggest that he had any involvement in these matters.

The claim in paragraph 24(d) above 43 Both Rabo and St George relied on information from Parle as to its business and financial affairs. The business plan, for example, was based upon information supplied by Parle. Parle appears to have been experiencing some problems with its accounting systems at the time. Rabo did disclose to St George the failure on the part of Parle to comply with the interest rate ratio which occurred on 15 November 2000. 44 It is at least theoretically possible that Rabo and/or Rabo CF may not have disclosed to St George facts which were then known to them and which were material to St George's assessment of Parle's financial position and creditworthiness. It is also at least theoretically possible that any such failure was otherwise than by inadvertence. But St George has failed to establish that there is reason to believe that it may have the right to obtain relief on this account. 45 Notwithstanding that failure, documents relating to St George's knowledge of Parle's existing financial position and creditworthiness in the period up to 16 November 2000 would nevertheless be discoverable in relation to the par 24(b) claim for the reasons set out above.

Conclusion 46 It follows that preliminary discovery should be made of documents which relate to the general subject matter of the relief sought in par 2 of the Application (with the omission of the final clause of par 2(d), as this clause was not pressed by St George). The parties should endeavour to agree on the formulation of such relief. If agreement cannot be reached as to the appropriate form of orders to give effect to my decision, each party should submit to my associate a draft of the orders which that party proposes should be made. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant: F M Douglas QC, G K J Rich

Counsel for the Respondents: M T Bathurst QC, R Sofroniou