Ariss v Express Interiors Pty Ltd (In Liquidation) [1996] 2 VR 507

Beach Petroleum NL v Johnson [1992] FCA 110; (1992) 7 ACSR 203

Demag-Lauchammer Maschinenbaur GmbH v John Holland Constructions [1966] 2 NSWR 3

Good Motel Co (In Liquidation) v Shepherd (1992) 110 FLR 87

Interwest Ltd v Tricontinental Corp Ltd (1991) 5 ACSR 621

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97

National Bank of New Zealand v Donald Expert Trading Ltd [1980] 1 NZLR 97

Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 87 ALR 289

Visco v Minter [1969] 2 All ER 714

Warren Mitchell Pty Ltd v Australian Maritime Offices Union (1993) 12 ACSR 1

1. The plaintiff provide security for costs in the sum of $30,000

2. The parties be heard on the form of security, and on the question of costs

1. This is an application for security for costs brought by the respondent pursuant to s1335 of the Corporations Act 2001, and alternatively Order 33B of the Supreme Court Rules. An application for security for costs is a matter properly within the jurisdiction of the Master.

2. The substantive action was commenced in 1997 and is in the nature of a claim for royalties said to be owing pursuant to an agreement entered into in 1991 between the plaintiff and defendant. The plaintiff company is the trustee of a family trust. The principals behind both the plaintiff and defendant companies were at one time business partners, and it is very apparent that there has been a substantial falling out between them.

3. The substantive proceedings have not progressed with any real speed, and there was an application brought in March 2001 for them to be dismissed for want of prosecution. This was abandoned in June, and a timeline for the further conduct of the matter was set. An application for security for costs was also brought at this time by the defendant, but was also not proceeded with upon the filing by the plaintiff company of affidavit evidence that showed that the plaintiff company held substantial assets by way of real estate in the Australian Capital Territory.

4. A substantial amended defence and counterclaim was lodged by the defendants in March 2002. This alleged that substantial sums had been paid by the defendants in the interest of the plaintiff, and claimed that this set off any debt claimed by the plaintiff, and sought damages and an account of excess payments.

5. The present application was brought by notice of motion of 1 July 2002. An affidavit of 1 July 2002 by Mr Lux, the defendant's solicitor, says that the defendants became aware in early March 2002 that the real estate which had been held by the plaintiff company and which had been identified in affidavits filed in opposition to the earlier application for security for costs, had been sold. The defendants wrote to the plaintiff, and on 19 April received a response from the solicitors for the plaintiff stating that

"our client's company has sold its assets in order to fund the ongoing requirements of the business. The business is trading profitably and is in a position to meet its debts as and when they fall due."

6. The defendant brings this application on the basis that the sale of the investment properties significantly altered the position of the plaintiff company. Documents filed in support of this application show that Stelmag itself, according to an Australian Securities and Investments Commission search of 15 May 2002, is a company with a paid up capital of $4.00 only. Stelmag operates as the trustee of the Compucraft Discretionary Trust, and a balance sheet of the trust was provided to the defendants for the year ending 30 June 2000 in reply to the earlier application for security for costs. This revealed a net deficiency of trust liabilities over assets of $97,689. Included in the assets at that time were three investment properties, valued in the balance sheet at a total of $373, 985. The defendant argues that, as these substantial assets have now been sold and, on the evidence of the letter of the plaintiff's solicitors, used to "fund the ongoing requirements of the business", the plaintiff is in a substantially weaker financial position to that revealed on the last occasion, justifying an application for security for costs.

7. The basis on which an application for security for costs may be brought by a defendant against a corporate plaintiff is set out in s 1335 of the Corporations Act 2001 as follows:

"1335(1) [Court may require security] Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given."

8. It seems to me that this establishes the threshold question as whether it appears by credible testimony that the plaintiff corporation will be unable to meet a costs order.

9. In Beach Petroleum NL v Johnson [1992] FCA 110; (1992) 7 ACSR 203 Von Doussa J explained the effect of this section as follows:

"In my opinion the power of the Court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendants on service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then taken into account in the exercise of discretion and in framing the orders of the court if the discretion is to order security."(at 205)

10. It is not necessary for an applicant to establish that the plaintiff company is presently insolvent, or will be likely to become so (Warren Mitchell Pty Ltd v Australian Maritime Offices Union (1993) 12 ACSR 1).

11. The purpose of such a provision is clear, in avoiding injustice in circumstances where a corporate plaintiff with limited worth would otherwise bear no risk in litigation, because a successful defendant with a judgment in their favour plus costs would have only a corporate shell to enforce the costs order against. The purpose of the order is to redress this imbalance.

12. This application proceeded on the basis that, although Stelmag itself has no assets and a very limited paid up capital, it sues as the trustee of the Compucraft Discretionary Trust, and would be entitled to an indemnity from that trust, so that for the purposes of determining whether, in the terms of the statute, Stelmag would be unable to pay the costs of the defendant, the relevant question was the financial position of the Compucraft Discretionary Trust. Throughout these reasons this entity will be referred to as "Compucraft".

13. In support of its application the defendant filed an affidavit from Mr Ian Jones, a chartered accountant, which included a report that he had prepared for the directors of the defendant of 16 July 2002. In preparing this report Mr Jones had access to material filed in the previous application, being the balance sheet of Compucraft as at 30 June 2000, a profit and loss statement of Compucraft for the year ending 30 June 1999, and a report from Mr Tino Di Placido, chartered accountant for Stelmag, dated 10 April 2001.

14. Mr Di Placido in that report stated that he had

"verified that the three rental properties exist and have appreciated in value"

This was clearly an important factor in the earlier application, and it is common ground that the three properties have now been sold. Mr Di Placido also said in this report that

"The value of goodwill held by the company is not a figure that I can place so readily, however I have spent some time participating in negotiations with various interested parties who are interested in acquiring the intellectual property of Stelmag Pty Ltd at a significant premium."

The balance sheet as at 30 June 2000 does not purport to show any figure for value of goodwill or intellectual property.

15. Mr Jones said that on the figures available to him Compucraft as at the end of June 2000 had an excess of liabilities over assets of $97,689 and showed a very low level of profitability over the years. He expressed the view that

"Stelmag was in a weak financial position, and that this financial position appeared to be deteriorating. The company has very poor working capital situation and its ability to pay its debts as and when they fall due is impaired. The company's liabilities exceed its assets by a substantial margin."

16. In response to this report Mr Pollard, director of the plaintiff, filed an affidavit of 28 July 2002. This included a set of financial statements for Compucraft for the year ended 30 June 2001. This showed a net asset position as having improved from a shortfall of $87,397 for the year ended 30 June 2000 (being a figure broadly comparable to the defendant's understanding) to a positive net asset position for the year ending 30 June 2001 of $975,439. The significant turnaround is from the inclusion in the accounts, for the first time, of an asset described as "other intangibles-R&D" of $1,062,836.

17. It is clear that, if these accounts are accepted, the plaintiff enjoys a substantial net asset position, and it could not be said that it would be unlikely to be able to meet a costs order. Without the claimed research and development asset, however, the position would revert to a significant net shortfall, of $87,397.

18. The basis of the asset was explained in Mr Pollard's affidavit. I am satisfied from this, and from his oral evidence, that he is the principal figure in the organisation, and that its business over the years has been the development of computer software applications. Mr Pollard is hired out to government agencies and other entities as a consultant, and also works to develop a particular software application that Compucraft markets to end users.

19. The principal activity over recent years, according to Mr Pollard, has been the development of an application that will enable end users to develop and maintain an internet site with minimal technical skills. This application has the name "ComWeb". It has been sold to a number of organisations, and Compucraft has entered into an agreement with an international information technology company, Tower Software, to sell ComWeb as part of a package being developed and sold to end users by Tower. Attached to Mr Pollard's affidavit was extensive material in the nature of advertising and promotional material extolling the virtues of the product.

"As at 30 June 2001, total assets stood at $1.605 million, with total liabilities of $630,253. The intellectual property was valued at $1.062 million. I am informed, by Ms G Roper, Management Consultant, and believe on the strength of international interest, that an appropriate value for ComWeb as at 30 June 2002 is $1.7 million."

21. Mr Jones in a further affidavit of 31 July 2002 commented on these assertions. He said

"A major change in the financial statements for 2000/01 is the inclusion of an item shown as an intangible asset as Other Intangibles-R&D of $1,062,836.00. No information has been provided at all in the Financial Statement as to what this item represents and how the figure was arrived at. Para 20 of Mr Pollard's affidavit states that this is a valuation of intellectual property, and goes on to state that a Ms G Roper has placed a value of $1.7 million on the intellectual property. No further details are given. In the absence of further information as to how the values were arrived at, what was being valued, when the valuation was made, the qualifications and experience of the valuer, and other relevant criteria, I discount these values to zero. Intellectual property is a very difficult matter to value at the best of times even with full knowledge of the facts.... The introduction of the Intangible Asset for Research and Development Costs is virtually identical treatment to that used by World.Com in the USA. That company is now under Chapter 10 Bankruptcy."

22. On Mr Pollard's figures, Compucraft had a net asset position of a surplus of $974,747 at 30 June 2001, based on an acceptance of the value of the intellectual property at $1.062 million, but if this was not taken into account, there would be a net liability of $87,253. The real issue between the parties was whether it was appropriate to take the intellectual property valuation into account.

23. Mr Jones in his oral evidence was very critical of the claimed value of the intangible asset. He maintained his analogy with World.Com in cross-examination, by saying that what it appeared the company was doing was claiming as an asset the cost of expenditure in developing a potential product. In his cross-examination Mr Pollard broadly confirmed that the sum claimed was based on the full costs that would be charged out for his services during the period that he had been developing the product, which it seems to me gives rise to the legitimate criticism that the claimed asset is based on the actual expenditure in research and development. I note that, although this work has been going on for some years, it was not included in the previous financial statements which were verified by the accountant.

24. Mr Jones maintained that it was inappropriate to include in the accounts an item for intangible assets that was not justified on the basis of any independent valuation. The only evidence to support the claim is the affidavit of Mr Pollard. Mr Pappas made the point that, for the earlier application, the accountant for Compucraft, Mr Di Placido, provided a report, and enclosed the accounts under his report, thus lending the veracity of a chartered accountant to the financials to 30 June 2000. There is no report from Mr Di Placido in the present material, nor any confirmation from any accountant of the financials to 30 June 2001 which include, for the first time, the claimed million-dollar asset for intellectual property. Mr Pappas invited me to draw the inference from the non appearance of any report from the accountant that it would not assist the case of the plaintiff company. (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). This submission is particularly strong given that in that earlier report Mr Di Placido expressly said that

"the value of goodwill held by the company is not a figure that I can place so readily".

25. Mr Mossop was very critical of Mr Jones for failing to disclose in his report that he was a long time personal friend of Mr King, and including in his report the normal disclaimer that he had never acted professionally for either the defendant company or Mr King. This disclaimer was true, but he had been a personal friend for 30 years. Such a relationship might be relevant to the weight that would be given to his evidence, particularly when deciding which of two competing expert views should be preferred, but in this case there was no evidence from an accountant or valuer in the plaintiff's case.

26. The test is whether there is credible testimony that there is reason to believe that the company will be unable to pay costs in the event of an adverse costs order. Mr Jones, a chartered accountant of many years experience, has expressed the view that it would not, based on the financial reports provided by the company. In response, Mr Pollard says that the 2001 reports show a significant turn around, based on the inclusion for the first time of a claimed million dollar plus asset. There is no affirmation of these figures by a qualified accountant, and the basis of the million dollars appears to be the charge out costs of Mr Pollard in developing a computer software product, and the view of a management consultant.

27. Mr Jones was cross examined as to whether his view that it was inappropriate to include this as an asset would change if he was told that the ComWeb product "was going to generate very substantial income to the business", and he replied "I can only deal in facts, and you are talking about the future." It seems to me that this is an entirely proper view for an accountant to take, and a proper conclusion for a court to draw.

28. Mr Pollard is clearly very confident that his company has developed a world standard product that will find an enormous market in the worldwide information technology industry. He may well be right, and the court can only wish him well. In an application for security for costs, however, I must act on the evidence before me as to the financial position of the company, and it seems to me inappropriate to determine this by speculating as to the possibility or even probability that an information technology product may become very successful in the future.

29. To go back to the test set down by Von Doussa J in Beach Petroleum NL v Johnson, the power to order security for costs in s 1335 may be enlivened if credible evidence establishes that

"there is reason to believe there is a real chance that in events that can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant."

30. I am satisfied that there is credible evidence that the company has for some years up to the end of the financial year to 30 June 2000 had a substantial excess of liabilities over assets, but that at this time it held real property identified in its books and confirmed by its accountant. I am satisfied that figures produced by Mr Pollard, but not confirmed by his accountant, show that this net liability position remains for the end of the year to 30 June 2001, unless a figure in excess of one million dollars is applied to the value of the intellectual property said by Mr Pollard to be held by the firm. There is no expert valuation of this claimed asset, and it seems to be based on the expenses the firm has incurred in developing the product and the assertion by Mr Pollard and a management consultant that the yet to be realised market potential of the software is worth over one million dollars.

31. Mr Jones says that it is inappropriate to include this as an asset, and indeed attacks this practice of counting as an asset the expenses incurred by a company as an inappropriate accounting practice that has been exposed in recent major scandals. I accept Mr Jones' description of the proper role of the accountant, and in this case the court, as being to deal with facts not speculation, and it seems to me that on the evidence before me, and taking into account the absence of any expert evidence from the plaintiff and in particular the absence of anything from the accountant for the plaintiff, there is credible testimony that the plaintiff company would not be able to meet any costs order. Disregarding the claimed million dollar asset, which I consider to be appropriate because I am not satisfied that this is indeed an asset with the asserted value, the company on what purports to be its last figures (being figures not verified by its accountant) had a net deficit of liabilities over assets at the end of the financial year to 30 June 2001 of some $87,000, and since that time it has disposed of its only real property assets.

32. I am of the view that I am able to come to this conclusion even in the face of Mr Pollard's testimony that he is very confident that the ComWeb package will be very successful and that the company will generate very substantial income. Von Doussa J in Beach Petroleum noted that the power to invoke s 1335 can arise

"even if in other events which can also be fairly described as reasonably possible the plaintiff corporation the plaintiff corporation would be able to pay the costs."

On Mr Pollard's evidence I can be so satisfied, but this involves a projection of the success of the product.

33. It seems to me that the threshold has thus been reached by the defendant to invoke s1335.

34. The mere establishment of the criteria does not, however, predispose the court to make the order (Heller Factors Pty Ltd v John Arnold Surf Shop (1979) 22 SASR 20). The finding that the plaintiff may be unable to meet a costs order is, however, a factor to take into account:

"the discretion conferred by s 1335 should be accepted now as altogether unfetted but upon the footing that the very fact of which there must be credible evidence in order to enliven the jurisdiction in the first place may itself be a factor, even a most significant factor in the exercise of the discretion." (per Phillips JA in Ariss v Express Interiors Pty Ltd (In Liquidation) [1996] 2 VR 507 at 514).

35. It seems to me that the financial position of the plaintiff is a significant factor favouring the exercise of the discretion, as the defendant, who is always the unwilling party to litigation, faces the possibility of being entirely successful in its defence and obtaining a judgment in its favour with costs, yet being unable to enforce such an order.

36. The plaintiff company argued that as the defendant applicant for security has set up a significant cross claim in addition to its defence, which is now by way of a set off. This is a factor to be taken into account, but it is clearly the law that

"the mere fact that the defendant brings a cross action arising out of the same transaction does not de bar him from having advantage of the rule that generally an order for security for costs would be made in the circumstances of that case."(per Macfarlan J Demag-Lauchammer Maschinenbaur GmbH v John Holland Constructions [1966] 2 NSWR 3).

37. The test is whether in the overall analysis of the litigation the defendant is in the commercial sense the aggressor. In this case I am satisfied that, while the defendant's case is that, if successful, its claim will entirely set off the plaintiff's claim and result in an overall award of damages to the defendant on the cross claim, the cross claim arises out of the same matter and transaction as the defence pleaded to the action. As Ormond J said in Visco v Minter [1969] 2 All ER 714

"The principle seems to be that where a defendant counter attacks on the same front on which he is being attacked by the plaintiff, it will be regarded as a defensive manoeuvre. But if he opens a counter attack on a different front, even to relieve pressure on the front attacked by the plaintiff, he is in danger of an order for security for costs depending on the Court's assessment of the position in each case."

38. I am not satisfied that the defendant's defence and cross-claim is a basis for refusing to exercise the discretion to order security for costs, although this may be relevant to the question of quantum, a matter that I will discuss below.

39. Delay by a defendant is a factor relevant to the exercise of the discretion (Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 87 ALR 289). In this case the defendant company and individuals were at first represented (with appropriate leave being given by this Court) by Mr King. The original defence denied the existence of any debt. The defendants have subsequently been legally represented, and the present defence and cross claim, drafted by their legal advisers, acknowledges the existence of an obligation under the original agreement, but pleads the set off and cross claim.

40. To the extent that there has been a delay in finalising the defence, I do not think that this is in itself a ground for refusing relief, although again this may go to the quantum of security for costs. Delay in making an application for security for costs may be relevant, but in this case I am satisfied that, when the original application was made in March 2001 the defendants became satisfied, on information provided by the plaintiff, that the plaintiff then held sufficient assets by way of real estate to be able to satisfy any order for costs. The present application, although brought late in the litigation, was prompted by the discovery that these assets had been disposed of. This is a factor which supports, rather than weighs against, the exercise of the discretion.

41. One factor to take into account in any application for security for costs against a plaintiff company is whether the making of the order would stultify the plaintiff's ability to pursue the proceedings: M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97. The plaintiff argues that had the defendant paid the amounts admittedly due under the agreement the plaintiff would have been $335,307 better off, and to the extent that it is now in a poor financial position (a fact which is denied, but advanced, properly, as an alternative argument) the defendant is the cause. In these circumstances, it is said, it would be unfair to deny the plaintiff the ability to run its case.

42. But against such an argument there has been no evidence lead to suggest that the company would be shut out of this litigation if security was ordered. Moreover, it is relevant to consider the extent to which it is reasonable to expect creditors or shareholders to make funds available to satisfy any order for security which is made, and there has been no evidence lead to suggest that this is not an option for this company (National Bank of New Zealand v Donald Expert Trading Ltd [1980] 1 NZLR 97).

43. It is apparent from the financial records for the year ending 30 June 2001 tendered in the plaintiff's case that there are substantial beneficiary loans owed by Compucraft to Mr and Mrs Pollard, in the sum of $424,604. Where it appears that a company in liquidation sues for the benefit of another there is a predisposition to order that security for costs be given, because justice requires that the real beneficiaries of the action, if it succeeds, be as much at risk of paying costs as the defendants: per Higgins J in Good Motel Co (In Liquidation) v Shepherd (1992) 110 FLR 87. By analogy, the fact that the directors of the company stand to be the real beneficiaries in this action is a relevant factor in the exercise of my discretion.

44. Taking all of the factors into account, it seems to me that the weight of material favours the exercise of the discretion in favour of the applicant defendant, and I am satisfied that security for costs should be ordered. I turn now to the question of the quantum of security.

45. The notice of motion sought security for costs in the sum of $50,000. This was supported by an affidavit of Mr D'Amico, a partner in the firm of Phillips Fox Solicitors, who set out an appropriate skeleton bill of costs in this sum. He was cross-examined by Mr Mossop, and he acknowledged that of the sum of $20,000 which was identified as recoverable costs, some $7,000 related to the costs of the previous security for costs application. He also acknowledged that at the time of that previous application he had estimated the total costs for running the action to be $18,000. He agreed that the difference between that figure and the $50,000 was attributable to a number of factors, being the cost of the previous security for costs application, the institution of the defendants counter claim, the increasing complexity of the matter, and the hearing being likely to take longer than previously estimated. In re examination he was asked whether he had attempted to apportion these additional costs between costs of the defence and costs of the counter claim. He conceded that he had not, but he said that the counter claim would be a small additional component compared to the defence.

46. The previous application for security for costs was discontinued before Justice Gray on 6 June 2001, and the bench sheet on that occasion clearly states that no order for costs was made. It seems to me that it follows that it is inappropriate to require the plaintiff to give any form of security for the costs incurred by the defendant in this application, identified by Mr D'Amico as $7,000.

47. The evidence from Mr D'Amico satisfies me that there is a legitimate increase in the expense the defendants will have to incur in defending this action, but there is also a degree of expense which has been occasioned by the counter claim, which is not properly the subject of a security for costs order. The evidence is somewhat lacking in precision here, as he acknowledged that he had not broken this down, although he maintained that the greater proportion of the additional cost related to the defence as opposed to the counter claim. It is appropriate in exercising the discretion in ordering security for costs to make a partial order where the amount claimed cannot be justified (as in the $7000 component relating to the prior security application where there was no order for costs), or where part of the cost of the defendants relates to offensive action by way of a counter claim as opposed to a straight defence. In Interwest Ltd v Tricontinental Corp Ltd (1991) 5 ACSR 621 Ormiston J said that the existence of a counter claim can be

"a basis for reducing the amount of security ordered to a sum related to the costs of those claims which cannot be characterised as defensive" (at 627)

His Honour there referred at 628 to the difficulty that may be occasioned in settling on an appropriate sum.

48. In the present case, I note that on the earlier occasion the defendants estimated a total cost of $18,000, which has been raised to $43,000 (taking into account the $7,000 attributable to the prior costs application) due to the more extensive defence and counter claim. Part of this sum should be awarded, but not all. Taking all of the material into account, I consider it appropriate and fair in the exercise of my discretion to make an order for security for costs in the sum of $30,000, and I can do no more than echo Ormiston J in stating

"It is impossible to analyse that figure further, and I say only that I believe in the circumstances it represents what it would be fair to require the corporate plaintiff to provide by way of security for the trial, having regard in particular to those claims which might go beyond those which are merely defensive and which will have to be tried in any event."(at 628)

49. I will hear the parties on the question of the appropriate form of security, and on the question of the costs of this application.

I certify that the preceding forty nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly