Success Capital Pty Ltd (ACN 091 989 874) v Hope Island Resort Holdings Pty Ltd

Success Capital Pty Ltd (ACN 091 989 874) v Hope Island Resort Holdings Pty Ltd - [2007] FCA 1562 - FCA 1996 case summary — Zoe

[6]

Relevant legislation 8 Section 1335 Corporations Act 2001 (Cth) provides as follows: (1) 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. (1A) Subsection (1) does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation. Note: Similar provision is made in relation to Aboriginal and Torres Strait Islander corporations under section 581-20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. (2) The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs. 9 Section 56 of the Federal Court of Australia Act 1976 (Cth) provides: (1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. (3) The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given. (4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security. 10 The respondents have sought an order for security for costs pursuant to s 1335 Corporations Act 2001 (Cth) and, in addition and in the alternative, s 56 of the Federal Court Act 1976 (Cth). The parties have not addressed the issue whether the content of the requirement to act judicially is different under s 56 to that under s 1335. In my view, it is not necessary for me to consider this issue separately. The only issue in contention is whether the Court should grant an order for security for costs in this case under either provision.

[7]

Affidavit material filed by the respondents in support of the notice of motion 11 The first and second respondents rely on three affidavits in support of the notice of motion for security for costs. 12 First, an affidavit sworn 22 August 2007 by Mr Michael Graham, solicitor, in which he deposes that he has been retained by McCullough Robertson, solicitors for the first and second respondents, to prepare an estimate as to future costs to be incurred, on a party and party basis, for the period up to and including the hearing of the substantive proceedings. Mr Graham is the principal of a legal costs firm "grahamcosts legal + forensic costs consultants". Mr Graham has worked from the following assumptions: · a four day trial within the next 6-12 months · senior and junior counsel being briefed with briefs of 3-4 volumes · an expert real estate valuer's report being required · five witnesses · evidence in chief in person · affidavit preparation being four days · three interlocutory hearings · costs being limited to the defence and making no allowance for costs with respect to the cross-claim. 13 Mr Graham's calculation is $114,120.63 by way of costs in preparation for trial. 14 The admissibility of Mr Graham's affidavit and the accuracy of his calculations are not in dispute. 15 Second, an affidavit sworn 23 August 2007 by Mr Russell Thirgood, partner at McCullough Robertson. In his affidavit Mr Thirgood deposes as to the factors that lead him to believe that the applicant would be unable to meet an order for his client's costs in the proceedings: · the applicant has a paid up capital of $1.00 · a fixed and floating charge over all its assets in favour of St George Bank Ltd to a maximum amount of $6,560,000 has been granted · the applicant does not own property in Queensland · the applicant owns three properties in Western Australia each subject to a mortgage · the applicant has not satisfied a previous costs order made in these proceedings (on 6 February 2007 by Siopis J) in favour of the respondents · the applicant has, in the view of the respondents, failed to explain how it could meet an adverse costs order in correspondence with the respondents' solicitors in March-July 2007. 16 Third, an affidavit sworn 12 September 2007 by Ms Angela McDermott, solicitor at McCullough Robertson, was filed in Court on 8 October 2007. In that affidavit Ms McDermott deposes that she caused the affidavits of Messrs Graham and Thirgood together with an unsealed copy of the notice of motion to be served on MacKinlays, the solicitors for the applicant, by prepaid express post sent on 28 August 2007, and a sealed copy of the notice of motion to be served on MacKinlays by pre-paid express post sent on 6 September 2007.

[8]

Affidavit material filed by the applicant in respect of the notice of motion 17 The applicant relies on two affidavits in response to the notice of motion seeking security for costs. 18 First, I gave leave for an affidavit sworn 13 September 2007 by Mr Julian Hosgood, solicitor at MacKinlays Solicitors, to be read in Court on 8 October 2007, subject to the original being filed by Mr Hosgood within two days of the hearing. In summary, Mr Hosgood deposes that: · the applicant is the registered proprietor of a property, the street address being 98 Canning Road Kalamunda in Western Australia ("the Canning Road Development") subject to a mortgage to St George Bank Ltd · he was informed, based on a valuation, that the total aggregate market value as complete of the Canning Road Development was $4,775,000 · the applicant in its own right and as trustee for the Success Development & Property Group Unit Trust and St George Bank Ltd are parties to a loan facility relating to the Canning Road Development including a fixed and floating charge and a first registered mortgage · the chief assets of Success Development & Property Group Unit Trust are nine units of the Canning Road Development valued in total at $4,775,000 · a document issued by the bank to the applicant in its own right and as trustee for the Success Development & Property Group Unit Trust for the period 1 August 2007 to 31 August 2007 stated a closing balance of $1,974,414.03. 19 Mr Piggott appearing for the applicant objected to para 4 of Mr Hosgood's affidavit and to the annexure (JOH-01) to which reference was made in that paragraph. I shall return to this objection later in the judgment. 20 Second, an affidavit sworn 5 October 2007 by Mr Alistair MacKinlay, principal of MacKinlays Solicitors, was filed in Court on 8 October 2007. In that affidavit Mr MacKinlay deposed that: · his firm had received a letter from McCullough Robertson on 20 September 2007. The letter was annexed to the affidavit. · on 3 October 2007 Mr Hosgood sent McCullough Robertson under cover of an email a proposed Deed of Guarantee. That document was annexed to the affidavit. · on 5 October 2007 he had a conversation with Ms McDermott who informed him that her clients had instructed her that they were not prepared to accept the proposed Deed of Guarantee and wished to have a bank guarantee or cash deposit in lieu thereof · he was instructed that his client was prepared to consider any reasonable amendments to the guarantee to meet any concerns that respondents had that the terms proposed in the letter of 20 September 2007 had not been complied with.

[11]

Submissions of the respondents 25 Referring extensively to Mr Thirgood's affidavit, Mr Piggott for the applicant submitted in summary that the bases for the belief that the applicant will be unable to meet a costs order are as follows:

The applicant pleads in its statement of claim that it did not complete the contracts because it was unable to raise the necessary funds.
The applicant has a paid up capital of $1.00.
The applicant has granted a fixed and floating charge over all of its assets to St George Bank Ltd to secure up to $6.56 million, and a fixed charge over a motor vehicle to BMW Australia Finance Ltd to secure in excess of $43,000.
The applicant owns no real property in Queensland, and although it is the registered proprietor of three real properties in Western Australia each of those properties is subject to a registered mortgage and two are subject to a registered caveat.
Property of which the applicant is the registered proprietor in Western Australia - the Canning Road Property - is held by the applicant on trust for the Success Development & Property Group Unit Trust. The applicant entered the relevant contracts the subject of its claim as trustee for a different trust, namely the SDA Tarameo Unit Trust.
The applicant is yet to meet a costs order made by Siopis J on 6 February 2007.
In correspondence and in affidavit material filed on the notice of motion: a) The applicant has not asserted, and has made no attempt to show, that it could meet a costs order out of assets it owns beneficially. b) The applicant has not explained or identified the level of its indebtedness presently secured by each of the registered charges and mortgages identified by the respondent. c) The applicant has not explained the registered caveats over two of its real properties. 26 Submissions 1-6 were not disputed by the applicant. 27 In addition to this the respondents challenge the alleged value of property held by the applicant. As I noted earlier in this judgment, Mr Piggott objected to para 4 in Mr Hosgood's affidavit which reads as follows: "On 11 September 2007, I obtained a document from my client titled 'Executive Summary Valuation' annexed hereto and marked JOH-01. I am informed by this document that on 15 April 2007, the total aggregate market value as complete of Canning Road Development was $4,775,000." 28 The annexure JOH-01 titled "Executive Summary Valuation" appears to be a document of 14 pages in length relating to the Canning Road Development prepared by Hegney Property Valuations for the applicant. Mr Piggott directed my attention to the extensive disclaimer in cl 13 of the document which includes, inter alia, the following statements: "Neither the whole nor part of this report, nor any reference thereto may be included in any document, circular or statement without our written approval of the form and context in which it will appear. In accordance with standard practice it is stated that this report is prepared for the addressee only and no liability for damages incurred by a third party using the whole or any part thereof will be accepted. This valuation has been prepared on specific instructions from Keith Amor for the purpose of establishing current market value. The report is not relied upon by any other person of for any other purpose. We accept no liability to third parties nor do we contemplate that this report will be relied upon by third parties. We invite other parties who may come into possession of this report to seek our written consent to them relying on this report. We reserve our right to withhold consent or to review the contents of this report in the event that our consent is sought." 29 Mr Piggott further submitted that the Executive Summary Valuation did not comply with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia. In summary, Mr Piggott submitted that in light of these issues, the probative value of the evidence as to value of the Canning Road Development was low and should not be admitted.

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Findings 31 In my view, on the basis of the evidence before me and the submissions of the parties, there is reason to believe that the applicant is unable to pay the costs of the respondents if they are successful in their defence. I take this view for the following reasons: · As I noted earlier, there is no dispute that the costs of the respondents are as calculated by Mr Graham. · As I also noted earlier, there is no dispute as to the reason for the failure of the applicant to complete the relevant contracts, the low paid-up capital of the applicant, the failure of the applicant to date to meet the costs order of Siopis J, the substantial securities given to financial services providers over both real and personal property of the applicant, the absence of real property in Queensland, and the fact that what seems to be the primary assets of the applicant are held by the applicant on trust for an entity which appears to have no interest in this litigation. · No evidence has been produced by the applicant as to the value of assets, if any, held by the applicant in its own right or on trust for any entity which has an interest in this litigation, including the SDA Tarameo Unit Trust. · Even assuming that the Canning Road Development would be available to satisfy an order for security for costs, at present, there is no satisfactory evidence before the Court as to the value of that property. In my view, to accept the evidence in the "Executive Summary Valuation" annexed to Mr Hosgood's affidavit would unfairly prejudice the respondents. I uphold the objection of Mr Piggott as to the admissibility of both para 4 and annexure JOH-01 of Mr Hosgood's affidavit. In particular, I note: o As a general proposition, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) Evidence Act 1995 (Cth). An exception to the rule in s 76(1) is where a person has specialised knowledge based on the person's training, study or experience, in which case evidence of an opinion of that person that is wholly or substantially based on that knowledge is admissible: s 79 Evidence Act o In this case no evidence has been produced as to whether Hegney Property Valuations, or the person at that firm who prepared the "Executive Summary Valuation", possessed specialised knowledge within the meaning of s 79 Evidence Act so as to render admissible the "Executive Summary Valuation" and its contents. o Even if the "Executive Summary Valuation" was prepared by a person with specialised knowledge within the meaning of s 79 Evidence Act, the disclaimers in the document are such that not only is it clear that the document was not prepared with a view to it being relied on by the applicant in litigation, it appears that the author of the document specifically disqualified the document from such use. The Court has a general discretion to exclude evidence under s 135 Evidence Act where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time. The fact that the "Executive Summary Valuation" is relied upon by the applicant as evidence, in circumstances where the person who prepared the report did not appear to appreciate that the document would be the subject of such use, in my view strongly militates in favour of its exclusion as evidence under s 135: cf Campbell J in United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [15]. o Finally, I note that the "Executive Summary Valuation" does not comply with the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued 6 June 2007, or its predecessor the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued 11 April 2007. While I note that the guidelines are not intended to address all aspects of an expert witness's duties, they are clearly intended to assist expert witnesses prepare reports which avoid the criticism that the expert lacks objectivity. In this case, it is clear that no consideration has been given by the person who prepared the document as to Guidelines, or their duty to the Court.

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Letter of 20 September 2007 34 Mr Hosgood submitted that on 20 September 2007, as was clear from Mr Thirgood's letter of that date, the respondents were prepared to entertain a deed of settlement based on all the evidence that was before them. 35 Mr Thirgood's letter was annexed to Mr MacKinlay's affidavit and read as follows: "We write further to the court hearing of this matter on 13 September 2007. As discussed at court, please provide us with the exact terms of the guarantee that your client is willing to provide with respect to costs. Once we have this confirmation from your client, we will take our client's instructions immediately. We expect that the terms of the guarantee would include the following: a) that your client undertakes to borrow no further moneys on the security of the first mortgage; b) that your client maintain repayments to the bank; c) that your client promptly pay any rates or outgoings at the property; d) that your client maintain equity in the property to the sum of $114,000. We look forward to hearing from you." 36 Mr Hosgood submitted further that MacKinlays had prepared the proposed Deed of Guarantee including every term proposed by Mr Thirgood in his letter of 20 September 2007, however it was not until Friday 5 October 2007 that the respondents had advised that they were no longer willing to entertain a deed of guarantee for the trust assets of the Success Development Property Group Unit Trust. 37 However in relation to this issue in my view: · there is nothing in the letter of Mr Thirgood which committed the respondent to accepting a personal guarantee from the applicant (in any capacity) in lieu of security for costs. The letter clearly requests that the applicant provide the terms of the guarantee proposed by the applicant, and indicates that Mr Thirgood will then seek instructions from his client. · The four criteria listed in Mr Thirgood's letter are, at best, suggestions as to some terms which could make a proposed guarantee acceptable to the respondents. They are clearly not an exhaustive list of terms, inclusion of which in a guarantee would unambiguously satisfy the respondents. · Although the parties were continuing to negotiate the possibility of settlement of the claim for security for costs until the business day prior to the hearing of 8 October 2007, in my view this fact is not relevant to the exercise of my discretion concerning consideration of an order for security for costs.

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Deed of Guarantee 38 In relation to the proposed Deed of Guarantee I note that the "guarantor" proposed in the Deed of Guarantee was the applicant itself. No reference is made in the document to the entity on whose behalf the applicant entered into agreements with the respondents - indeed, the document simply states that the applicant issued proceedings against the respondents in the Federal Court. 39 The document bears some characteristics of guarantee however in that, as is clear from Mr Hosgood's submissions, the proposal of the applicant was that assets of one unit trust be committed as security for the costs of the applicant as trustee of another unit trust. The submission of Mr Hosgood with respect to cl 12.1(d) of the unit trust Deed of the Success Development & Property Group Unit Trust supports the applicant's contention that the document is a guarantee. 40 However in my view, even assuming that the document is a guarantee as a matter of law, in the absence of supporting evidence or authority I am not prepared to accept that cl 12.1(d) empowers the applicant to either assume an obligation or give a guarantee - binding the assets of the Success Development & Property Group Unit Trust - of a substantial sum as security for the costs of the applicant in its capacity as trustee for another Unit Trust in litigation in which, prima facie, the beneficiaries of the Success Development & Property Group Unit Trust have no interest. Irrespective of any commonality of trusteeship, I am not persuaded that the broad terms of the power vested in the applicant by cl 12.1(d) permit the applicant to act in potential disregard of the interests of the beneficiaries of the Success Development & Property Group Unit Trust (cf, by analogy, Walker v Wimborne (1976) 137 CLR 1). Indeed although the proposed Deed of Guarantee, annexed to the affidavit of Mr MacKinlay, contains a statement that the applicant is "entitled to be indemnified out of the trust property of the SDPG Unit Trust for any liability which (sic) incurs (sic) behalf of the trust", it contains no reference to the applicant being entitled on behalf of the Success Development & Property Group Unit Trust to enter this transaction, and be indemnified out of that property for liabilities arising out of this transaction. 41 If the respondents sought to enforce payment of security for costs against the applicant, the respondents would have a claim against the applicant, which presumably would then claim a right of indemnity out of the trust assets of the Success Development & Property Group Unit Trust. This assumes, of course, that the applicant's liability was properly incurred in the affairs of the trust (cf comments of McPherson J in General Credits Ltd v Tawilla Pty Ltd (1984) 1 Qd R 388 at 390, followed by White J in Westpac Banking Corporation v Garrett [2004] SASC 265 at [27]). As I have already discussed, it is uncertain in this case whether the liability of the applicant would be properly incurred on behalf of the Success Development & Property Group Unit Trust, such as to entitle the applicant to a right of indemnity. 42 In any event, in relation to this Deed of Guarantee, I am further disinclined to exercise my discretion in favour of the applicant where this Court has previously indicated that a personal guarantee given in satisfaction for security for costs is acceptable in only exceptional circumstances: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93, cf Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (formerly Turnbull Cooktown Pty Ltd) (No 3) [2007] FCA 1078 at [30]-[31]. The applicant has demonstrated no circumstances in this case justifying the acceptance of a personal guarantee as distinct from a cash payment or a bank guarantee.

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