Suchand Pty Ltd v Johnathon Kingsley Colbran & Richard Stone as Receivers & Managers of Suchand Pty Ltd

The applications for security

1. Suchand commenced these proceedings by statement of claim filed on 17 January 2023. That claim was overtaken by an amended statement of claim filed on 12 February 2023. Robtamy's motion for security for costs was filed on 14 April 2023. The Receivers' motion for security for costs was filed on 27 April 2023. Various interlocutory steps in preparing the motions for hearing have meant that the motions were not able to be heard until 23 February 2024, with a further short hearing today.
2. Each of the motions invokes both Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Part 42 r 42.21 and Corporations Act 2001 (Cth) s 1335. These provide: UCPR r 42.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant - … (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or … the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. (1A) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant - (a) the prospects of success or merits of the proceedings, (b) the genuineness of the proceedings, (c) the impecuniosity of the plaintiff, (d) whether the plaintiff's impecuniosity is attributable to the defendant's conduct, (e) whether the plaintiff is effectively in the position of a defendant, (f) whether an order for security for costs would stifle the proceedings, (g) whether the proceedings involves a matter of public importance, (h) whether there has been an admission or payment in court, (i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant, (j) the costs of the proceedings, (k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute, (l) the timing of the application for security for costs, (m) whether an order for costs made against the plaintiff would be enforceable within Australia, (n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff ..… (2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct. (3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed. … Corporations Act 2001 (Cth) - s 1335 Costs (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 ..… (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.
3. There was no dispute between the parties about the applicable principles. Because the defendants generally adopted each other's submissions I will deal with them in what follows without differentiating by whom they were advanced.

The proceedings

1. I gratefully adopt this helpful summary from Ms Nolan's written submissions setting out the background to the proceedings: 4. Briefly, on or about 10 November 2017, the receivers entered the Motel and commenced conducting the business of the Motel, formerly conducted by the plaintiff. It perhaps should be noted that the Motel business, by dint of its location, is seasonal in nature, it being located proximate to the Snowy Mountains. It cannot reasonably be expected that summertime trade would be significant. 5. By January 2017, the receivers sought the second defendant's consent to surrender the lease, which consent was not forthcoming. It is contended that on 18 January 2017, the receivers abandoned the lease and the business by paying rent to that date and returning the keys. The receivers allege that they did this pursuant to a Deed of Partial Retirement. The plaintiff contends that the receivers did not retire or relinquish control over the plaintiff's business, in accordance with their obligations under ss 422B and 427(4) of the Corporations Act, until much later, on 22 September 2017. 6. This so-called "Abandonment" of the lease is alleged to be an act taken entirely in disregard for the interests of the plaintiff, in contravention of the receivers' duty of good faith to it, which breach, has occasioned it loss and damage. 7. On 18 January 2018, despite payment of rent to that date, the landlord re-entered the property and has occupied it since and has whether by itself or through a manager run the Motel business. 8. The plaintiff alleges that the receivers remained in control of the plaintiff's Motel business until 22 September 2017, and thereby remain liable for rent under the lease until that date. The landlord's rights to terminate the lease was stayed until that date and the termination notices that it had issued (there being three) following its re-entry were invalid. The plaintiff contends that it is by these actions that it has lost a business of value. 9. Further claims are advanced against the second defendant in both conversion and debt in respect of the chattels, which belonged to the Motel business the plaintiff conducted. Importantly, assuming a valid termination on 18 January 2017, the claim in debt is calculated under the Lease (the subject of the relevant tenancy between the plaintiff and the second defendant) dated 6 August 2014. 10. Clause 14.5 of the Lease provides a mechanism for the valuation of the Motel business' chattels, whereby, the parties agree to appoint a valuer to act as an expert and produce an irrevocable decision as to the value of the chattels based on their existing use in situ in the Motel and as a going concern. This valuation becomes a purchase price payable by the landlord to the tenant under clause 14.5 of the Lease. The amount payable by the landlord to the tenant must be paid 14 days following, relevantly, the date upon which the price for the chattels is agreed and determined by the valuation. 11. The valuation pursuant to this clause was conducted by the agreement of the parties in the form of the Leeson Valuation dated 2 November 2023, which values the chattels at $409,590. Under cl 14.5 and cl 16.3 of the Lease, the second defendant is required to pay the plaintiff, $409,590, which was payable on or before 16 November 2023. It is estopped from asserting any right to withhold payment pursuant to clause 16.3 of the Lease by reason of the operation of s 14 of the Limitation Act 1969 (NSW); and, accordingly, the second defendant is indebted to the plaintiff in $409,590. 12. As at the date of preparing the submissions, the second defendant has not tendered any amount in respect of the purchase of the Chattels and has not sought to pay the $409,590 into Court or a controlled monies account pending the outcome of this proceeding.
2. Because they later assume relevance, two other background matters should be noted.
3. First, before hearing the present motions, I disposed of an application by Suchand by granting it leave to file a further amended statement of claim which added the claims in debt and conversion referred to in Ms Nolan's summary. The inclusion of these claims were not matters taken into account by the parties' joint expert costs assessor, Mr John Bartos, in assessing the defendants' likely costs for the purposes of their applications for security.
4. Second, the affidavit evidence in support of Suchand's resistance to the applications was deposed to by Mr Chandra Singh, now the sole director, secretary and shareholder of Suchand. However, Mr Chandra Singh only took up those positions on 10 October 2017, being after the date of the appointment of the Receivers. The directors and shareholders of Suchand during its operation of the Motel (including the time at which the Receivers were appointed) were the son and daughter-in-law of Mr Chandra Singh.

Is the jurisdiction enlivened?

1. The defendants' drew attention to what might be described as the "usual letter" seeking financial information about Suchand. That was sent on 14 March 2023. The response provided no such information, but confirmed that Suchand had not traded since 22 September 2017 after the appointment of the Receivers.
2. The defendants also pointed out that Suchand had paid up capital of $100 and, at least as at 9 May 2017, had secured debts in the amount of $1,347,381.79.
3. They also relied on evidence concerning the financial state of Suchand at the time of the appointment of Receivers, which I further consider in [23] below in relation to the submission that the defendants' conduct was responsible for Suchand's impecuniosity (if it be such). By reference to these matters - and those dealt with below in relation to the cause of the impecuniosity - the Court is satisfied that the jurisdiction to order security for costs is engaged.
4. I will next explain why neither of the two matters relied on by Ms Nolan provides a basis to conclude otherwise.
5. First, Ms Nolan's primary submission was that Suchand had a "valuable asset" in the form of its debt claim for $409,590, which was a sum in excess of the costs likely to be incurred by the defendants. The latter half of the submission was correct, given that Mr Bartos has estimated the defendants' likely combined costs to be $288,994.98.
6. Ms Nolan submitted that the debt claim was "incontrovertible", based as it was on the terms of the lease (see paragraphs 10 and 11 of her summary reproduced in [8] above). The difficulty with this argument is that whether or not the terms of the lease have been satisfied is hotly disputed by the parties. It is unnecessary for me to go into detail in these reasons, beyond observing that the relevant provision of the lease clearly contemplated steps being taken at or shortly after the time of the appointment of a receiver, most important being the obtaining of a valuation of the relevant assets. This was not in fact obtained until 2 November 2023 and it is clear there will be a substantial argument at trial as to whether the relevant provisions of the lease have been properly engaged for the purposes of giving rise to the alleged debt. Without in any way prejudging the position, for present purposes it is sufficient for me to record that I am unable to treat Suchand's alleged entitlement to the debt as being sufficiently certain so as to be taken into account in Suchand's favour on the credit side of the ledger for the purposes of the present exercise.
7. While Ms Nolan primarily relied on the debt itself, she also drew attention to the Motel's chattels. The Leeson Valuation obtained in November 2023 put the fair market value of the chattels at $409,590. On any view the chattels are some years old and have been used in the conduct of the Motel. Mr Leeson has also valued the chattels on a forced liquidation value of $30,614 and an orderly liquidation value of $66,944. On the face of that evidence the true value of the chattels is not entirely clear, and certainly is not sufficiently clear for the purposes of being taken into account in Suchand's favour on this application. Fortifying this conclusion is the submission from Robtamy, by reference to evidence filed by its principals, that there will also be issues at trial as to whether or not Suchand is in fact the owner of some of those chattels, whether some are fixtures, and as to their fair value generally.
8. By reason of the matters referred to in [12] to [18] above, the Court finds, for the purposes of the UCPR, that there is reason to believe that Suchand, being a corporation, will be unable to pay the costs of the defendants, if ordered to do so; and, for the purposes of the Act, that it appears by credible testimony that there is reason to believe that Suchand will be unable to pay the costs of the defendants if they are successful in their defence.
9. I will next turn to the discretionary issues that were debated between the parties.

Did the defendants cause Suchand's impecuniosity?

1. Ms Nolan submitted that the defendants were responsible for Suchand's current financial position, relying on the claims made in the further amended statement of claim, the failure of Robtamy to pay the $409,590 which Suchand alleges is owed to it, the Receivers' alleged improper relinquishment of the receivership, and Suchand's belief that the Motel had been operating successfully up until the Receivers' appointment.
2. However, by reason of the following three matters, I accept the defendants' submissions that Suchand was in a poor financial position at the time the Receivers were appointed, and that position is not attributable to the defendants.
3. First, Suchand's profit and loss statement for the 12 months to 30 June 2016 in the possession of the Receivers as part of their control of the books and records of the company and part of Suchand's Xero accounting system, shows that as at 30 June 2016 the Motel had made an operating loss of $215,300.67. Ms Nolan sough to meet this in two ways.
4. First, she referred to evidence from Mr Chandra Singh that what was an apparently contemporaneous financial record was unreliable because "entries to the Xero accounting system were incomplete and unaudited and any financial reports generated using these incomplete records would be unreliable". However, there are two reasons why the Court does not accept this: 1. Mr Chandra Singh's contemporaneous records before litigation commenced, being his report to the Receivers, stated that "All bank transactions were directly imported to Xero." This response was provided to the question "Describe steps you took to ensure that the company would keep financial records that correctly record and explain its transactions and financial position and performance; and would enable true and fair financial statements to be prepared and audited?" 2. In any event, the Court has a real doubt about the basis on which Mr Chandra Singh could say anything about the accounts of Suchand during the time of the company's operation. His statement referred to above is no more than a general assertion. Furthermore, Mr Chandra Singh did not become an officer of the company until 10 October 2017, well after the appointment of the Receivers. The basis on which he might have any knowledge of the facts during the relevant time was not established in the evidence before me.
5. Ms Nolan's alternative answer to the profit and loss statement to 30 June 2016 was to refer to the seasonality of the Motel's business and its dependence on the snow season. As a matter of common sense that is correct. The accounts to which I have referred in [23] above do in fact show profits of $79,895.73 and $23,162.42 for the months of July and August 2015 respectively. However, in each of the other ten months the Motel made a loss.
6. Second, the defendants relied on the fact that, obviously enough, the Receivers had not been appointed as at 30 June 2016. It could not be seriously disputed, and the Court accepts for the purposes of the present applications, that at the time of the appointment of the Receivers, Suchand was apparently unable to meet all of its obligations as and when they fell due. This was not caused by anything the Receivers did. Nor am I satisfied that the evidence discloses any conduct of the Receivers during the course of their administration that might be an independent cause of the poor financial position of Suchand.
7. Third, the defendants relied on the difficulty the Receivers had when trying to sell the Motel business. They ultimately came to the view that the Motel was unsaleable due to what they identified as excessive rent payable under the lease, being above what they considered to be the market rate. In the end, they offered the Motel business back to Suchand for one dollar.

Mr Chandra Singh's proffered undertaking

1. Ms Nolan's written outline of submissions, provided in the days before the hearing, included: 29. Nonetheless, should the court consider it appropriate, and necessary to justice between the parties, he is willing to provide an undertaking acceptable to the Court to be liable for an appropriate amount of security so as to place the defendants in no worse position than they would have been, had they sued Mr Singh as the person standing behind the company as a litigant in person, without the imposition of a corporate entity between them.
2. Ms Nolan submitted, while acknowledging Mr Singh was without means to meet an adverse costs order, that his undertaking was a fact which the Court should take into account against the ordering of security for costs.
3. The unchallenged evidence was that Mr Chandra Singh is an aged pensioner with net assets of $67,000. In relation to the contention that an order would stultify the litigation, Ms Nolan's submissions had also accepted that Mr Chandra Singh was without sufficient means to meet an adverse costs order of the size postulated by Mr Bartos.
4. The defendants submitted that Mr Chandra Singh's financial circumstances meant that any undertaking he proffered was, for all practical purposes, worthless and should not be taken into account in the exercise of the Court's discretion. There was some debate before me concerning, at least insofar as the application was made under the Act, the decision of Brereton JA (with whom Bell P and Macfarlan JA agreed) in Vintage Marine Art Pty Ltd v Henderson & Cremer (No 2) [2019] NSWCA 252 to the effect that an undertaking by an impecunious director on behalf of an impecunious corporate plaintiff could be taken into account as a discretionary factor against making an order for security.
5. I considered Vintage Marine in my decision Elip Pty Ltd v Arch Finance Pty Ltd [2020] NSWSC 752. My views remain unchanged from those I expressed in that decision: 66 Justice Brereton's consideration of the question is to be found in Vintage Marine at paragraphs [21] to [28]. His Honour begins with the proposition that courts will not usually order security where a case for security is made out only against one or some of multiple plaintiffs. His Honour then goes on to consider the position under s 1335 of the Act, which requires those conducting their affairs through a corporation to be prepared to "come out from behind" that corporation. He noted that in Queensland the rule of practice has become that security will not be ordered if those behind a corporation make their own assets, such as they are, available as security for a costs order. However, his Honour concluded that was not the law of New South Wales, summarising the position in this state as (emphasis added): "28. But while those cases make clear enough that in this Court the proffer of an undertaking of the kind proffered by Ms Edwards does not conclusively determine the question, they also indicate that the existence of such an undertaking is a very powerful consideration which may, in a particular case, be determinative, and that is so whether or not the undertaking or guarantee is supported by any assets. In my view, the proffer of that undertaking, coupled with the other two discretionary considerations to which I have referred, combine to make an overwhelming discretionary case for declining to make an order for further security." … 69 Against the background of those factual matters, there were three reasons why the Proposed Undertaking is insufficient, in the exercise of the Court's discretion, to prevent the making of a security for costs order if the Court is otherwise satisfied (as it is) that such an order should be made. 70 First, it is clear that Vintage Marine was confined to applications under s 1335 of the Act (see paragraphs [6] and [23] of the judgment). It is therefore not binding upon me insofar as the defendants' application is made under the Rules. There is no doubt that the jurisdiction to order security under the Rules has been successfully invoked. In exercising that, the Court is expressly bound by s 56(2) of the Civil Procedure Act 2005 (NSW) to exercise that jurisdiction to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. On the assumption the case for security for costs under the Rules is otherwise made out (which it is in this case), I am respectfully unable to accept how it can facilitate the overriding purpose in this case to give the Proposed Undertaking, offered by an impecunious and likely to be bankrupt person, such weight as to sway the Court's discretionary judgment against making the order for security. 71 Second, insofar as the application is brought under the Act, I respectfully accept and bear in mind Brereton JA's conclusion that the Proposed Undertaking "is a very powerful consideration which may, in a particular case, be determinative". This is not such a case because the evidence does not enable the Court to conclude that there is even the slightest prospect of the Proposed Undertaking being of any real benefit to the defendants if it were ever called upon. As is set out in paragraphs [64] and [68] above, the evidence is in fact all the other way. Furthermore, although not required by statute, I nevertheless consider the overriding purpose to be relevant to the exercise of the Court's discretion under the Act and, in relation to that, rely on what I have said in the preceding paragraph.
6. The third of the three reasons referred to the extract from Elip is not relevant to the case at bar. I respectfully adhere to my view that, irrespective of the jurisdictional basis for an application for security for costs, an undertaking from an impecunious director of an impecunious company will not be an answer to an application for security for costs in every case. I certainly do not consider it to be such in this case, whether the application is assessed under the UCPR or the Act. An impecunious person, having accepted the benefits of incorporation and limited liability for their venture should, in general, be required to accept its burdens, including the possibility that a security for costs order will be made against the impecunious corporate plaintiff.
7. Furthermore, while it may be said that a defendant is no worse off when the impecunious director who comes out from behind the corporation was a director at the time of the events giving rise to the litigation, as a matter of discretion I give such an undertaking little weight where, as here, Mr Chandra Singh became a director after those events.

Stultification

1. Ms Nolan submitted that Mr Chandra Singh's position made it clear that if Suchand was impecunious, nor was Mr Chandra Singh in a position to meet any possible future costs order of the size identified by Mr Bartos. There was, therefore, a very real risk that the proceedings would be stultified.
2. The defendants raised four matters, which in the exercise of the Court's discretion, I accept in support of the Court's conclusion that the risk of stultification has not been made out.
3. First, no explanation was proffered on behalf of Suchand as to how it had funded the litigation to date. Experts reports had been obtained, it had brought its own motion concerning amendments ,and other interlocutory issued had all been addressed.
4. Second, the Court could not be satisfied that all those who stood for the company, or might otherwise benefit from a successful outcome in the litigation, in fact had come forward to explain their financial positions. The previous controllers, who had resigned after the Receivers were appointed, were Mr Chandra Singh's son and daughter-in-law. There was no evidence about their financial circumstances.
5. Third, and following from the previous paragraph, no explanation has been offered as to why the control of Suchand changed in the way it did. This only increased the doubt that the Court already entertained as to whether all relevant persons had come out from behind Suchand who might have an interest in the outcome of the litigation.
6. Fourth, there is no sufficient evidence from Mr Chandra Singh that if orders for security were made, Mr Singh would cause Suchand to abandon the litigation, whether by discontinuance or otherwise. I accept the Receivers' submission that paragraph 47 of Mr Singh's affidavit dated 3 December 2023 where he says "…If an award for security were to be made it would stultify the proceedings" is merely an opinion and is not supported by evidence.

Other submissions

1. There are three other submissions to which I should refer before passing to the issue of quantum.
2. First, I have not overlooked the defendants' argument that Mr Chandra Singh's proffered undertaking, such as it was, had been offered very late in the history of the present dispute. The motions for security had been on foot since April 2023. The undertaking was first raised in Ms Nolan's written submissions dated 14 February 2024. Nevertheless, while that lateness may be relevant to costs, I am not persuaded it has any relevance to the question of how the Court's discretion should now be exercised.
3. Second, the defendants pointed to the at least five year delay in the commencement of these proceedings after the time of the relevant events. They submitted, correctly, that there was no explanation from Suchand for this delay. While it is not a dispositive consideration, the Court accepts that it favours security being ordered.
4. Third, Ms Nolan sought to resist an order for security for costs on the basis that there was a public interest element in the present litigation. This was said to be a challenge to what was referred to as the Receivers' partial retirement during the course of their administration. While there may be matters peculiar to this case of which I am unaware, receivers retiring from their control of some assets and retaining control of other assets is not an unprecedented occurrence. In the absence of being aware of some special factor that applies to this case, I am not persuaded that there is an element of public interest in this case that would weigh in the balance against orders for security for costs.

Quantum

1. Pursuant to earlier case management orders, the parties had obtained a joint report on the question of the defendants' reasonable likely costs of the proceedings. That report was prepared by Mr John Bartos, an experienced barrister and costs assessor. The parties, subject to one matter, accepted the amounts proposed by Mr Bartos: $161,606 for the Receivers and $127,388.65 for Robtamy. These figures had been determined after Mr Bartos reached his conclusion as to the defendants' reasonable costs on a party party basis, and then made a further 25% deduction to arrive at a conservative figure for security for costs.
2. While the parties accepted Mr Bartos' figures, the defendants submitted that his calculations had been done without reference to the issues raised by the further amended statement of claim. That submission is correct. The further amended statement of claim which I had granted leave to Suchand to file before beginning to hear the present motions meant that the defendants were now facing two substantial issues (the conversion claim and the debt claim) which had not formed part of Mr Bartos' consideration. The defendants submitted that the Court should do its best to make some additional allowance for those matters, rather than putting them at risk of having to return to court to make a further security for costs application at some later time when the scope and likely expense to be incurred by reason of the two new causes of action could be ascertained.
3. Two things about security for costs applications may be accepted. First, as Mr Bartos recognised in the conservative approach which he adopted, security for costs is not intended to be a complete indemnity. Second, the Court is entitled to take a "broad brush" approach in determining the amount of security to be provided. Nevertheless, without in any way limiting the traditionally broad scope within which the Court is entitled to consider applications such as this, there must be some basis in the evidence from which the Court can at least find a starting point for the exercise of its discretion. Beyond the bare assertions in the amended pleading, the Court has no evidence of the evidentiary or procedural issues that those amendments may open up and, therefore, no basis to even begin to estimate (or guestimate) the costs the defendants might reasonably incur in the meeting those new claims. Flexibility is not an invitation to fiction.
4. In the absence of any evidence of the kind to which I have referred, the Court declines to attempt to make any further adjustment to Mr Bartos' figures to take into account the new causes of action to be advanced by Suchand. If the costs of defending Suchand's case, by reason of the amendments or otherwise, begin to exceed seriously the amounts which the Court proposes to allow by reference to Mr Bartos' report, the defendants are not precluded from bringing a further application for security if they are so advised. I will, however, make a cosmetic concession to the defendants' submission by rounding Mr Bartos' figures up, rather than down as I would normally do.
5. The uncertain impacts of the amended pleadings on the proceedings overall does mean that the Court rejects Ms Nolan's submission that Mr Bartos' figures should be further discounted.

Conclusion

1. Security will be ordered in favour of the Receivers in the sum of $165,000 and $135,000 for Robtamy.
2. The parties accepted that if the Court came to the conclusion that security should be ordered, they should be given an opportunity to attempt to agree milestones and amounts to reflect a staged approach to the provision of security. I will make directions to enable that to occur.
3. Subject to hearing the parties, my preliminary view is that costs should follow the event such that Suchand should pay the defendants' costs of their respective motions.

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 March 2024