Super Vision Resources Ltd v AC Holdings Co Pty Ltd

Judgment

1. THE COURT: The Court delivered its reasons for judgment in this appeal on 10 December 2020: Super Vision Resources Ltd BVI Registered No 1810534 v AC Holdings Co Pty Ltd [2020] NSWCA 319 ("Judgment"). Two matters remain in issue. They concern the form of the orders and declarations to be made to give effect to those reasons and whether there should be a stay of execution of any of those orders pending the outcome of a foreshadowed application of the first and second respondents (respectively ACH and Ms Wang) for special leave to appeal to the High Court.

The orders and declarations to be made

1. In accordance with this Court's directions made on 10 December 2020, the parties have exchanged written submissions supporting the orders and declarations contended for by each. The appellant (SV) formulated draft short minutes of order and provided submissions which were said to support the making of those orders. In a material respect the terms of one of the proposed orders are not the same as the order contemplated by SV's written submissions. The relevant order is that proposed for the repayment of moneys released to ACH and Ms Wang from the Controlled Moneys Account (Judgment [13]). That proposed order, and SV's proposed declarations concerning the application of Conveyancing Act 1919 (NSW), s 37A, are included in the orders as to which ACH and Ms Wang say they are "content". Nevertheless, it is for the Court to determine whether those and the other declarations and orders proposed accord with what has been decided, and should be made.
2. The remaining contests between the parties as to the orders and declarations to be made are as follows: first, whether additional declarations should be made to reflect the success or partial success of Ms Wang in relation to questions concerning the May 2017 Mortgage and the earlier July 2015 IOU; secondly, and relatedly, whether SV should pay 75% of Ms Wang's costs at first instance incurred with respect to those questions; and thirdly, as to the costs orders which should be made in relation to the appeal, taking account of what are said to be the different positions of ACH and Ms Wang and a Calderbank offer made by SV to ACH and Ms Wang by letter dated 28 September 2020.

The orders and declarations not contested

1. Except for those formulated in paras (4), (5) and (7) below, the following orders and declarations are as formulated by SV, and ACH and Ms Wang do not contest the making of them. The declarations and orders in paras (4), (5) and (7) differ from those formulated by SV (and not contested by ACH and Ms Wang) in the respects dealt with below. 1. That the appellant, Super Vision, have leave pursuant to Bankruptcy Act 1966 (Cth), s 58(3) to commence and continue this appeal against the third respondent, Lawrence Xu. 2. Order that the appeal be allowed. 3. Order that order 1 made by the primary judge on 21 February 2020 (that order encapsulating paragraphs 1 and 3 of Short Minutes of Order dated 21 February 2020) be set aside. 4. Declare that the transfers of the Sandringham and Milsons Point properties from Lawrence Xu to AC Holdings on 19 September 2018 by Registered Dealings Nos AN717583 and AN717636 were alienations of property made by Lawrence Xu with intent to defraud creditors within the meaning of Conveyancing Act 1919 (NSW), s 37A. 5. Declare that as between AC Holdings and Lawrence Xu those transfers are void, it not being established that at the time of those transfers AC Holdings was a purchaser in good faith not having notice of Lawrence Xu's intent to defraud creditors. 6. Order that Super Vision, AC Holdings and Qiao Wang forthwith cause the credit balance of the Controlled Moneys Account (as defined in the joint undertakings given to this Court and dated 26 June 2020) to be paid to the trustee-in-bankruptcy of Lawrence Xu. 7. Order that AC Holdings and Qiao Wang pay to the trustee-in-bankruptcy of Lawrence Xu the amount of $197,373, being the sum of three payments made to AC Holdings and Qiao Wang from the Controlled Moneys Account for the payment of legal fees incurred by them in their defence of Super Vision's claim.
2. As to the declarations in paras (4) and (5), the date of the transfers has been altered to 19 September 2018. Settlement took place on that day. The reformulated declaration in para (4) does not purport to be made "pursuant to s 37A" and more closely reflects the reasoning at Judgment [47], [48]. Finally, the separate declaration in para (5) records the finding at Judgment [126] that ACH had not established that it had the benefit of the proviso in s 37A(3).
3. As to the order in para (7), that proposed by SV is that only ACH "disgorge and pay" to the trustee in bankruptcy the sum of $197,373; whereas SV's written submissions propose "orders that these funds" be returned "by the respondents to Lawrence Xu's trustee in bankruptcy". There is no good reason why the proposed order should be limited to ACH in circumstances where the three payments sought to be recovered were made to ACH and Ms Wang to enable payment of the legal fees jointly incurred by them in responding to the appeal (Judgment [13]; and see Super Vision Resources Ltd v AC Holdings Co Pty Ltd [2020] NSWCA 244 at [3]-[18], which shows that the second and third payments were made to them for the same purpose).
4. The written undertakings to the Court dated 26 June 2020 contemplate, in respect of the first of the payments made from the Controlled Moneys Account that, in the event that the appeal was successful and ACH and Ms Wang were ordered to pay SV's costs, it might seek an order that those payments were recoverable as a debt due and payable by ACH "and/or" Ms Wang. The second payment, of $80,000, was made subject to the same condition. See order 3 made by consent by McCallum JA on 14 September 2020. The consent orders made by McCallum JA on 6 October 2020 in relation to the third payment are not expressed to be subject to that same condition. However, that payment of $50,000 was made pursuant to the same notice of motion as the second, and for the same purpose. In the circumstances it is to be treated as made subject to the same condition as to its repayment.
5. As SV submits, and ACH and Ms Wang do not contest, the trustee in bankruptcy is entitled to the funds paid into the Controlled Moneys Account. The condition on which the moneys were paid and received was that they were to be restored to the fund from which they were paid in the event that the appeal was successful and costs orders made in favour of SV. The intent was that the moneys paid to ACH and Ms Wang ultimately would be treated in the same way as the moneys remaining in the Controlled Moneys Account. As they were paid to and for the benefit of ACH and Ms Wang, the order for their repayment should be made against each of them. As appears below, the condition as to there being a costs order in favour of SV will be satisfied.

Costs orders and declarations relating to issues concerning May 2017 Mortgage and 2015 IOU

1. SV seeks an order that its costs of the proceedings at first instance be paid by ACH, Ms Wang and Lawrence Xu. In response it is said that "Ms Wang was only joined to the proceeding on 30 September 2019" and that she succeeded against SV "in relation to the 2017 Mortgage and in relation to the enforceability of the 2015 IOU... and only lost on an issue [ie the 2015 Security Issue] which took up only a small amount of the time at trial". It follows, it is contended, that rather than Ms Wang paying SV's costs of the proceedings, SV should pay 75% of her costs "incurred from 30 September 2019 for work relating to the 2017 Mortgage" and "establishing the validity of a loan from Ms Wang to Mr Xu in 2015 for CNY 20 million".
2. It is also submitted that the orders and declarations to be made "should deal with SV's claim against Ms Wang in paras 5A to 5D of the second further amended summons." That summons, filed in court on 23 October 2019, was dated 30 September 2019 and added paras 5C and 5D to a further amended summons, which included paras 5A and 5B and was filed on and dated 30 September 2019. Each named Ms Wang as the fifth defendant. The relevant relief, which specifically relates to the May 2017 Mortgage and underlying loan and the 2015 IOU was: 5A A Declaration, pursuant to s 37A of the Conveyancing Act 1919 (NSW), that the alienation of property by the Second Defendant to the Fifth Defendant under Registered Mortgage AM544882 (registered on 7 July 2017) is void. 5B A Declaration, pursuant to s 37A of the Conveyancing Act 1919 (NSW), that any alienation of property by the Second Defendant to the fifth Defendant under the purported Deed of Loan dated 1 May 2017, is void. 5C Further or in the alternative to prayers 5A and 5B, a Declaration that Registered Mortgage AM544882 does not secure any sum owing by the Second Defendant to the Fifth Defendant. 5D A Declaration that the document executed by the Second Defendant on 29 July 2015 and provided to the Fifth Defendant shortly after 8 October 2015 is unenforceable, or, in the alternative, does not secure any sum owing by the Second Defendant to the Fifth Defendant.
3. To address each of these submissions, it is necessary to understand the circumstances in which this relief was sought and Ms Wang joined as a party, as well as what occurred thereafter.
4. It is to be noted at the outset, however, that although the relief claimed by paras 5A and 5B was directed to the validity and enforceability of the May 2017 Mortgage and the loan it secured, those prayers for relief were described as "unnecessary" and not pressed before the primary judge or in this Court. The issues underlying the declarations sought by paras 5C and 5D were considered by the primary judge, and this Court, to be relevant to whether Super Vision was a person "prejudiced" by Mr Xu's transfers of the Sandringham and Milsons Point properties (Judgment [17], [19], [20]). A declaration incorporating para 5C continued to be sought in the amended notice of appeal. However, no cross-appeal was brought by ACH or Ms Wang seeking any declaratory or other relief. At first instance and in this Court the fact of the security and underlying loans was also relied on by ACH and Ms Wang as relevant to whether ACH was a purchaser in good faith not having notice of Mr Xu's intention to defraud (Judgment [21], [103]).
5. The first day of the hearing was 23 September 2019, the proceedings having been commenced on 1 March 2019. Although not then a party, as sole director and shareholder of ACH, Ms Wang was financially interested and intimately involved in the proceedings from the outset. She first instructed Zhang Shijing Lawyers to act for her and on behalf of ACH in 2018. By September 2019 Ms Wang had sworn two affidavits in the proceedings, the first on 31 July 2019 referring, though not exhaustively, to the circumstances of the 2015 IOU relevant to the CNY 20 million loan and "2015 Security Issue". Neither affidavit made any reference to the May 2017 Mortgage.
6. On 23 September 2018 there was confusion as to whether Ms Wang, speaking for ACH, had terminated the retainer of its solicitors and counsel. After that confusion was resolved, SV's case was opened. There was no reference to the 2015 IOU or the 2017 Mortgage. Nor had SV's written outline of submissions, dated 19 September 2019, identified the issues to be resolved as including whether SV was a person "prejudiced" within the meaning of s 37A(1) in view of enforceable securities which Ms Wang held over the Sandringham or Milsons Point properties. Those issues were first formulated in ACH's written outline of submissions provided on the morning of 24 September 2019. Those submissions made plain for the first time that the existence and circumstances of the 2015 IOU and 2017 Mortgage were relied on in relation to the issue whether SV was a person "prejudiced" and as establishing that ACH was a purchaser in good faith not having notice of any intent to defraud creditors. In response to those submissions, on 24 September 2019 SV sought and was granted an adjournment of the hearing to enable it to amend its pleading "to attack the 2017 mortgage and seek that it be voided under s 37A". It was not controversial that ACH's pleading at that time made no reference to that mortgage or to the significance of any earlier equitable charge in Ms Wang's favour. Having heard argument, the primary judge granted SV's application, ordered ACH to pay the costs thrown away by the adjournment, and made directions for the filing of further pleadings, and further evidence from Ms Wang.
7. ACH and Ms Wang's joint commercial list response dated 14 October 2019 put in issue Mr Xu's intent to defraud in relation to the transfers of the two properties, pleaded that the circumstances of the 2015 and 2017 loans affected "an analysis of whether the 2018 Transfers are voidable under s 37A", and maintained (relying on facts and circumstances deposed to by Ms Wang) that those transfers were made to ACH as a purchaser in good faith not having notice of Mr Xu's alleged intent to defraud creditors.
8. Before the hearing resumed on 23 October 2019, Ms Wang swore three further and lengthy affidavits on 9 October 2019, 11 October 2019 and 22 October 2019 addressing her financial dealings with Mr Xu in the period from September 2012, including the 2015 IOU, 2017 Mortgage and the loan it secured.
9. On 23 October 2019, SV filed its revised outline of submissions dated 22 October 2019 and ACH and Ms Wang jointly filed an outline of submissions also dated 22 October 2019. The circumstances of the 2015 IOU and 2017 Mortgage were dealt with by SV as relevant to ACH's defence under s 37A(3). ACH and Ms Wang's joint outline relied on those same circumstances as relevant to the "prejudice" issue as well as the issues as to Mr Xu's intent to defraud and ACH's defence under s 37A(3).
10. Turning to the additional relief sought by ACH and Ms Wang, first, it is suggested that a declaration "could" be made that the 2015 IOU "does not secure any sum owing by Mr Xu to Ms Wang". Where SV did not press its claim for such a declaration, where ACH and Ms Wang argued that the position was otherwise (Judgment [20]), and where there is no apparent utility in or need for the making of such a declaration, the Court declines to do so. To the extent that the proceedings give rise to any issue estoppels between the parties concerning matters which remain relevant to the ultimate disposition of the moneys in the Controlled Moneys Account, they have the benefit of those estoppels without the need for any declaration.
11. Secondly, ACH and Ms Wang seek an order "along the lines" that SV's "claim against [Ms Wang] is otherwise dismissed". The immediate difficulty with such an order is that SV ultimately did not press, before the primary judge and in this Court, for any particular relief against Ms Wang, and certainly not relief in terms of paras 5A or 5B, assuming those are claims to which the order is intended to be addressed. As formulated, the order sought is uncertain as to its subject and unnecessary. Accordingly, it should not be made.
12. As to the costs at first instance, although Ms Wang was only joined as a party on 30 September 2019, presumably because of the relief sought by paras 5A to 5D, she thereafter joined ACH in its defence of the whole of SV's claim, putting in issue Mr Xu's intent to defraud, SV's being a person "prejudiced", and ACH's good faith and absence of knowledge of Mr Xu's intent. That position was supported by their joint outline of submissions dated 22 October 2019, which expressly replaced ACH's earlier outline, and relied on Ms Wang's affidavit evidence sworn before and after 30 September 2019. Neither those submissions nor ACH and Ms Wang's closing written submissions dated 22 November 2019 addressed the circumstances of the 2015 IOU and 2017 Mortgage as giving rise to issues other than those responding to SV's claim under s 37A with respect to the alienation of the Sandringham and Milsons Point properties. Thus, as sole director and ultimate shareholder of ACH, from when the proceeding was commenced in March 2019, Ms Wang directed its defence, and from 30 September 2019 she also did so as a party jointly with ACH. At that time their joint defence pleaded reliance on the 2015 IOU and 2017 Mortgage. SV contested the intermediate issues relating to those matters, including whether they were determinative of the issues arising under s 37A(1) and (3). In the appeal SV succeeded in relation to each of those principal issues, and it is not suggested that it acted unreasonably in contesting the intermediate issues on which it had minimal success.
13. In the result, SV should have its costs of those intermediate issues, it having succeeded in relation to the principal issues to which the circumstances giving rise to the intermediate issues remained of relevance. Furthermore, where Ms Wang directed ACH's defence from the outset, joined in it as a party, and did not seek to limit her apparent participation to individual issues, she should be liable jointly and severally with ACH for SV's costs at first instance.

Costs of the appeal

1. SV proposes that ACH and Ms Wang be ordered to pay its costs of the appeal. It contends those costs should be assessed on an indemnity basis from 5pm on 30 September 2020, when a Calderbank offer made two days earlier expired. ACH and Ms Wang submit that their non-acceptance of that offer in the two business days permitted is not shown by SV to have been unreasonable. A relevant consideration is the time during which the offer was open, and on the face of it, two days was insufficient to allow its proper consideration: see Perisher Blue v Nair-Smith (No 2) [2015] NSWCA 268 at [14], [16] and [60]. They separately submit, relying on SV's substantial lack of success on the issues related to the 2015 IOU and May 2017 Mortgage, that no order should be made requiring Ms Wang to pay SV's costs of the appeal and that instead SV should pay 75% of Ms Wang's costs of the appeal for work relating to the 2017 Mortgage and secured loan.
2. In relation to the Calderbank offer, we are not satisfied that two days allowed sufficient time for ACH and Ms Wang to respond to SV's offer. At the time that offer was made, the parties had recently completed the exchange of written submissions, SV's submissions in reply having been served on 23 September 2020. Looking forward, the appeal was fixed for hearing for three days commencing on 6 October 2020. As ACH and Ms Wang point out, SV's submissions in reply dealt in some detail with its case that Ms Wang had actual notice of Mr Xu's intent to defraud. Having regard to the complexity of the factual and legal questions arising in the appeal, we are not satisfied that in the circumstances two days was sufficient to allow the parties and their advisors to give proper consideration to SV's offer.
3. In the appeal, the primary relevance of the 2017 Mortgage and underlying loan remained to the issue whether SV was a person "prejudiced" by the challenged alienations. That issue was unsuccessfully contested by ACH and Ms Wang, although they were successful on the issues raised by grounds 4 to 7 with respect to that mortgage. While by its amended notice of appeal SV sought a declaration that the mortgage did not secure any sum, there was no separate consideration of that issue from the perspective of Ms Wang's position as mortgagee. Rather, the arguments in the appeal were made jointly in answer to the claim against ACH. Though they had some successes on particular issues, ACH and Ms Wang were unsuccessful on the three principal issues in the appeal: Mr Xu's intent to defraud, prejudice, and ACH's absence of knowledge of Mr Xu's intent to defraud. That being the position, they should be jointly and severally liable for the costs of the appeal.

Stay of execution

1. ACH and Ms Wang have foreshadowed making a special leave application. They ask that this Court stay execution of its orders (presumably the orders for the payment of moneys by them to Mr Xu's trustee in bankruptcy or out of the Controlled Moneys Account to that trustee) either for 21 days, to permit any contested stay application to proceed, or, alternatively, until the earlier of the determination of their special leave application or an order of a judge of this Court or the High Court lifting the stay. In either case it is assumed that the special leave application will be filed forthwith.
2. SV does not consent to a stay. Its reasons for not doing so include that there is "no risk of the controlled moneys being irrevocably dissipated if the proposed final orders are made and carried into execution resulting in payment to Mr Xu's trustee in bankruptcy". The underlying assumption - that if the moneys in the Controlled Moneys Account or the moneys to be repaid by ACH and Ms Wang are released to the trustee in bankruptcy, he or she will not distribute or pay them away whilst any application for special leave to appeal or appeal is pending - is not self-evidently correct. If there is to be a stay, SV contends that it should only be on condition that the moneys to be repaid by ACH and Ms Wang to the trustee are repaid, or security is provided to ensure their repayment in the event of an unsuccessful appeal.
3. The Court proposes to stay the operation of its orders for payment of moneys to the trustee in bankruptcy by ACH and Ms Wang and from the Controlled Moneys Account for 14 days on condition that any stay application is filed within 10 days. That should give ACH and Ms Wang sufficient time to commence the foreshadowed proceedings for special leave and file any application for a stay of execution in this Court. Any such application should be supported by evidence addressing the risk of dissipation of moneys paid to the trustee in bankruptcy, as well as the risk that ACH and/or Ms Wang may be unable to pay the sum of $197,373 to the trustee in the event that they do not pursue or are not ultimately successful in any application to the High Court.

Conclusion

1. Accordingly, the Court makes the following orders: 1. Grant the appellant, Super Vision, leave pursuant to Bankruptcy Act 1966 (Cth), s 58(3) to commence and continue this appeal against the third respondent, Lawrence Xu. 2. Allow the appeal. 3. Set aside order 1 made by the primary judge on 21 February 2020 (that order encapsulating paragraphs 1 and 3 of Short Minutes of Order dated 21 February 2020). 4. Declare that the transfers of the Sandringham and Milsons Point properties from Lawrence Xu to AC Holdings on 19 September 2018 by Registered Dealings Nos AN717583 and AN717636 were alienations of property made by Lawrence Xu with intent to defraud creditors within the meaning of Conveyancing Act 1919 (NSW), s 37A. 5. Declare that as between AC Holdings and Lawrence Xu those transfers are void, it not being established that at the time of those transfers AC Holdings was a purchaser in good faith not having notice of Lawrence Xu's intent to defraud creditors. 6. Order that Super Vision, AC Holdings and Qiao Wang forthwith cause the credit balance of the Controlled Moneys Account (as defined in the joint undertakings given to this Court and dated 26 June 2020) to be paid to the trustee-in-bankruptcy of Lawrence Xu. 7. Order that AC Holdings and Qiao Wang pay to the trustee-in-bankruptcy of Lawrence Xu the amount of $197,373, being the sum of three payments made to AC Holdings and Qiao Wang from the Controlled Moneys Account for the payment of legal fees incurred by them in their defence of Super Vision's claim. 8. Order that AC Holdings, Lawrence Xu and Qiao Wang pay Super Vision's costs of the proceedings at first instance, assessed on the ordinary basis. 9. Order that AC Holdings and Qiao Wang pay Super Vision's costs of the appeal, assessed on the ordinary basis. 10. Stay the operation of orders (6) and (7) for 14 days after the day on which these orders are entered. 11. Direct that any notice of motion seeking a stay and any affidavit and submissions in support be filed and served within 10 days after the day on which these orders are entered. At the same time copies of those documents should be provided to the Associate to Meagher JA. On receipt of those documents the Court will make directions for the determination of the motion.

Amendments 22 February 2021 - Corrected case title. 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: 22 February 2021