Taylor v Crossman

Federal Court of Australia (Full Court)|2011-11-07|Before: Besanko J, Flick JJ

THE COURT: 1 On 29 June 2011 the primary Judge, Besanko J, delivered a judgment in this proceeding: Crossman v Taylor (No 3) [2011] FCA 734. Orders were made on 11 July 2011 ordering Mr Brendan Taylor to pay Ms Lynette Crossman damages in the sum of $955,305.76. A costs order was also made against Mr Taylor. "Freezing Orders" had previously been made by the primary Judge on 28 May 2010 restraining Mr Taylor from dealing with assets identified in those orders, in particular two houseboats. 2 On 14 July 2011 Mr Taylor filed a Notice of Appeal in this Court. The appeal has been "assigned" to the Court as presently constituted and is set down for hearing on 21 November 2011. 3 On 30 August 2011 an Interlocutory Application was filed on behalf of Ms Crossman. By that Interlocutory Application she sought either a dismissal of the appeal or an order that it be permanently stayed. 4 That Interlocutory Application was heard by the Full Court on 28 October 2011. During the course of that hearing an oral application was also made on behalf of Ms Crossman seeking security for the costs to be incurred in the event that the appeal was not dismissed or stayed.

A Proceeding Assigned to a Full Court 5 Reference should briefly be made to the reason why the Interlocutory Application was heard by a Court constituted as a Full Court. 6 That reason may be traced to s 25 of the Federal Court of Australia Act 1976 (Cth) which provides for the manner in which the appellate jurisdiction of this Court is to be exercised. That section provides in part as follows: Exercise of appellate jurisdiction (1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court. … (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: (a) … (aa) … (ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or (b) … (ba) … (bb) … (bc) … (bd) … (c) … … (2BB) An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless: (a) … (b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 7 What may amount to a proceeding being "assigned to a Full Court" may presently be left to one side. It would, however, be curious if a mere administrative arrangement within the Registry of this Court could itself affect the manner in which the power of the Court is to be exercised. 8 For present purposes, it may be accepted that Mr Taylor's appeal has been "assigned" to the Court as presently constituted. It may further be accepted that "it is appropriate" for the present Interlocutory Application to be heard and resolved by all three Judges who constitute that Court. An application for dismissal or a permanent stay of an appeal, if successful, would self-evidently bring that appeal to conclusion. The practical difficulties that such applications may occasion are nevertheless equally self-evident. It may be difficult, for example, to gather all three Judges together in the one place sufficiently in advance of the hearing of an appeal to grant meaningful relief. And, as in the present proceeding, if evidence is to be called - including the prospect of cross-examination - it may be that each of the three Judges may form a different view. In the present proceeding it was truly fortuitous that the Full Court could sit some three weeks in advance of the hearing of the appeal. Other interlocutory applications may well have to await the hearing of an appeal. 9 Whether other interlocutory applications seeking different relief may be dealt with in the same manner need not be resolved. Had the Interlocutory Application presently made been confined to an application for security for costs, for example, it would be difficult to see why it would have been "appropriate" for all three Judges to have participated in the making of that decision. 10 The present hearing involved Ms Crossman relying upon seven affidavits (or parts of those affidavits) that had previously been sworn by Mr Taylor and some nine further affidavits (or parts of affidavits). The prospect of Mr Taylor being cross-examined receded when his Counsel indicated that he would not be calling Mr Taylor as his witness. A bold submission advanced by Senior Counsel on behalf of Ms Crossman that there may otherwise have been an option whereby he could nevertheless cross-examine Mr Taylor was not pursued.

An Abuse of Process - The Principles Invoked 11 The position confronting Ms Crossman was on her approach invidious. She had been successful in obtaining a judgment against Mr Taylor. But it was believed that assets were being dealt with by Mr Taylor in a manner which may preclude her obtaining real relief in the event that the appeal was dismissed. On her approach, she may have obtained a judgment and been successful on appeal - but the assets which could be realised to satisfy the judgment would have long disappeared. Mr Taylor's appeal, on this approach, was characterised as a "free hit". 12 The appeal was said on behalf of Ms Crossman to involve an abuse of process. 13 Senior Counsel for Ms Crossman formulated the following three findings of fact he invited the Court to make, namely that: (i) Mr Taylor procured acts that resulted in the sale of the two houseboats (one called "Flat White" and the other called "White Water") by the mortgagee in contravention of the Freezing Orders; and/or (ii) Mr Taylor did so with a deliberate and contumacious intention to defeat his creditors and the Freezing Orders; and/or (iii) Mr Taylor took the steps he did in relation to the sale of the assets with a view to frustrating the appeal. Notwithstanding the terms in which the second of these contentions was advanced, Senior Counsel expressly did not advance any submission that the conduct of Mr Taylor amounted to a contempt of court. It was the first of these three findings which was the subject of detailed oral submissions. 14 Any of these three findings of fact was said on behalf of Ms Crossman to fall within the following observations of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286: Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. This passage was cited with approval by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [15], 226 CLR 256 at 267. Their Honours in that case further addressed the circumstances which may constitute an abuse of process as follows: [6] Accordingly, in Hunter v Chief Constable of West Midlands Police [[1982] AC 529 at 536] Lord Diplock used the term "inherent power" rather than "inherent jurisdiction". In Walton v Gardiner [(1993) 177 CLR 378 at 393], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter in which Lord Diplock spoke of "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". His Lordship went on to describe as "very varied" the circumstances where "abuse of process" can arise. 15 Reliance was also placed upon the observations in Smart Company Pty Ltd v Clipsal Australia Pty Ltd (No 6) [2011] FCA 419 at [562] that the circumstances in s 31A(3) of the Federal Court of Australia Act would "ordinarily only come about if the Court were of the opinion that the applicant's failure to comply with an order or orders of the Court meant that it was in the interests of justice that the applicant not be permitted to prosecute the proceeding". 16 The conduct of Mr Taylor, it was submitted, made it "unjustifiably oppressive" to Ms Crossman to allow him to remain free to prosecute his appeal or, alternatively, his conduct was such as "to bring the administration of justice into disrepute". 17 A step which is otherwise permitted by the processes of the Court, such as the institution of an appeal, may in some circumstances amount to an abuse of process. It is equally of importance, however, to recall that it is in the "interests of justice" to permit a party to avail himself of such procedural or substantive rights as he may have - especially a right of appeal - unless there is a compelling reason to preclude him from doing so.

The Terms of the Freezing OrderS 18 The conduct of Mr Taylor was said to fall within either Order 4(a) or (c) of the Freezing Orders as made on 28 May 2010. Order 5 identified the assets the subject of the Order. Subsequent variations to the terms of the Freezing Orders assume no present relevance. 19 Orders 4 and 5 appeared in the following terms in the Freezing Orders: FREEZING OF ASSETS 4. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia ("Australian assets") up to the unencumbered value of AUD$1,000,000 ("the Relevant Amount"). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. (c) You must not cause Maritime Ten Pty Ltd, Brendan Taylor and Associates Pty Ltd or any company you control either as director or shareholder to remove from Australia or in any way dispose of or deal with the assets identified in paragraph 5 below. 5. For the purposes of this order, (1) your assets includes: (i) the net proceeds of the sale of property known as No 1303/23 Shelley Street - King Street Wharf, Sydney NSW 2000; (ii) the property known as 3/330 The Esplanade, Moana SA 5169 or, if it has been sold, the net proceeds of the sale; (iii) the houseboat known as "Flat White" or, if it has been sold, the net proceeds of the sale; (iv) the houseboat known as "White Water" or, if it has been sold, the net proceeds of the sale; (v) the Regal 2200 cruiser speedboat bearing registration 55633 or, if it has been sold, the net proceeds of the sale; (vi) the Porsche motor vehicle bearing registration SA CC4-52E or, if it has been sold, the net proceeds of the sale; (vii) the Jeep vehicle or, if it has been sold, the net proceeds of the sale; (viii) the GPR Yamaha waverunner jet ski bearing registration RP 180 S or, if it has been sold, the net proceeds of the sale; (ix) the Super Jet Yamaha jet ski bearing registration PT 139 S or, if it has been sold, the net proceeds of the sale; (x) the Triumph solo motorbike or, if it has been sold, the net proceeds of the sale; (2) the value of your assets is the value of the interest you have individually in your assets. 20 The conduct of Mr Taylor the subject of submissions was said to fall within the phrase "deal with or diminish the value" of his assets for the purposes of Order 4(a) or to fall within the phrase "deal with the assets" for the purposes of Order 4(c). Although submissions were also directed to Mr Taylor's further conduct in respect to the sale of other assets, it was implicit in the case advanced on behalf of Ms Crossman that her best chances of success rested with the manner in which Mr Taylor had dealt with Flat White and/or White Water.

The Conduct the Subject of Complaint 21 According to the findings as made by the primary Judge, Mr Taylor and Ms Crossman "were in a personal relationship" for part of the period between July 2005 and about February 2010: [2011] FCA 734 at [2]. His Honour also found that the "relationship came to an end and there is now considerable antagonism between [Ms Crossman] and [Mr Taylor]". 22 A primary question for present purposes is whether the alleged conduct of Mr Taylor constitutes a contravention of the Freezing Orders. Even if it does, questions of discretion would remain to be addressed. The alleged conduct of Mr Taylor focussed upon the manner in which Flat White and White Water came to be sold. 23 The registered owner of Flat White was Mr Taylor. It was "launched" in January 2005 and was said by Mr Taylor to have cost $560,000.00. Mr Taylor's mother is said to have lent her son $150,000.00. The houseboat was the subject of a chattel mortgage with Capital Finance Australia Limited ("Capital Finance"). That chattel mortgage set forth the cash price of the houseboat as $217,116.00, which was based on the residual payout figure of the houseboat's previous chattel mortgage, also with Capital Finance. Regrettably there was not available a complete copy of that chattel mortgage. In one of his affidavits Mr Taylor stated that as at 31 March 2010 the payout sum was $231,260.71. He further stated that he had had that houseboat "on the market at an asking price of $675,000.00" and estimated that the "realistic sale price could be anywhere from $450,000.00 to $650,000.00". A photocopy of an advertisement placed in the Adelaide Advertiser newspaper on 9 July 2011 was headed "$425,000 DUE TO FORCED SALE". The advertisement stated that the houseboat was "TO BE SOLD WITH OVER $90,000 CONFIRMED FORWARD BOOKINGS". A statement of Mr Taylor's assets and liabilities estimated the value of the houseboat to be $365,000.00. 24 The registered owner of White Water was Maritime Ten Pty Ltd ("Maritime Ten"). As sole director of Maritime Ten, Mr Taylor signed a contract to build White Water in April 2006 and the contract price was said to be $660,000.00. A further "$40,000 or so" was spent "on fittings and furnishings". It, too, was the subject of a chattel mortgage with Capital Finance. The cash price of that houseboat was stated to be $660,000.00. The commencement date of the mortgage was 28 September 2006 and was for a period of 5 years. That meant that a final payment of $264,000.00 was payable as at about September 2011. Mr Taylor stated that as at 31 March 2010 the payout figure was $365,706.39. 25 Little is known, however, as to the manner in which either houseboat was sold by Capital Finance. Subpoenas that had apparently been served upon Capital Finance led, for whatever reason, to few documents being produced. The decision was nevertheless made on behalf of Ms Crossman for the Interlocutory Application to proceed to hearing upon the basis of the limited materials then available. No criticism can be made of that decision. If the hearing of the appeal was to be stayed (or some other order made), the Interlocutory Application had to be made sufficiently far in advance of that hearing and before further costs were incurred in readying the appeal for hearing. 26 From the limited materials produced by Capital Finance, one in particular attracted the attention of Senior Counsel for Ms Crossman. It was an internal handwritten note of an officer of Capital Finance and headed "Repo Notice". The date of the note is uncertain but it states in part (without alteration) as follows: Customer stressed he does not want ex to purchase boats. Customer looking not sell through tender process as ex could possibly bid on boats. Valuation - cd brochure on hand Customer wants to understand Sale process. what documents are required by Capital Court order allows flat white to be sold but additional funds over payout need to go to solicitor trust fund. The note also went on to state as follows: - Ex taking brendan to Court. - Current $845k legal & freeze Customer assets. - both Contract & Bank frozen. - Capital can take what ever action they deem fit - 30 - 40x legal fee's. - running off credit cards - June - July - Aug - low season little to no income - Sept Oct Nov - cashflow increases charter increases. - Customer wants to put his hands up. If the contents of the note are accepted, Mr Taylor was telling Capital Finance that he did not want any process of sale put in motion which would permit Ms Crossman even the possibility of herself buying one or other of the two houseboats. An email emanating from within Capital Finance also recorded that Mr Taylor had "contacted Capital Finance… and advised that he was unable to continue with repayments on" the White Water agreement. 27 Both houseboats were sold - White Water was sold in July 2011 and Flat White was sold in about August 2011. Both houseboats were sold to persons introduced to Capital Finance by Mr Taylor. And both houseboats continued to be available to Mr Taylor. 28 The prices at which the houseboats were sold also attracted attention. The tax invoice for White Water, for example, was dated 11 July 2011 and disclosed a sale price of $300,000.00 with apparently two payments being made of $150,000.00 each. The invoice was issued to "James Dyer/Jacali Investments Pty Ltd". Mr Taylor had told Mr Dyer "that Capital Finance had repossessed the houseboat known as 'White Water' and he had to deal with them". Mr Taylor did not tell Mr Dyer "about the freezing order". Mr Dyer at some point in time agreed with Mr Taylor that he would be engaged "to supply booking, management and mooring services" in respect to this houseboat. 29 Mr Taylor was told by a Mr Peter Walker on 29 August 2011 that he had purchased Flat White. Mr Walker agreed to lease Flat White to Mr Taylor for 3 years. Monthly lease payments were expressed to be $5,133.33. 30 A further affidavit by Mr Taylor stated that he had told both Mr Walker and Mr Dyer that he "could not keep up payments and that if they were interested they should talk to Capital Finance". 31 The sale of both houseboats in such circumstances certainly invites careful scrutiny. 32 But such evidence as there is, it is concluded, falls short of establishing either a contravention of Order 4(a) or (c) of the Freezing Orders or, alternatively, conduct which constitutes an abuse of process as described by McHugh J in Rogers. This conclusion is reached because: (a) there was no evidence, or insufficient evidence, upon which it could be found that Mr Taylor had available as at the dates the houseboats were sold sufficient money to continue making payments pursuant to the terms of each of the chattel mortgages or sufficient money to pay out the last of the payments payable in respect to White Water. The finding of the primary Judge, albeit a finding which may be the subject of challenge on appeal, was that Mr Taylor was "evasive" in the evidence he gave and the primary Judge formed the view that pauses in his evidence "resulted from an overriding concern not to give an answer which he thought might be damaging to his case rather than a concern to tell the truth": [2011] FCA 734 at [15]. The primary Judge found Mr Taylor to be "not a credible or reliable witness". What weight can thus be placed upon his account or his evidence is thus open to question. Given this reservation, it may thus be noted that the assumption of a liability to meet a monthly lease payment of $5,133.33 in respect to Flat White seems inconsistent (for example) with a present expression of an inability to provide $40,000.00 security for costs - assuming security were to be ordered. Whether or not any monthly payment was ever made was left unexplored in the evidence. So, too, was there an absence of any explanation as to whether the "OVER $90,000 CONFIRMED FORWARD BOOKINGS" in respect to Flat White was received by Mr Taylor or paid to Mr Peter Walker. Whatever may be the inconsistencies in the evidence, the absence of relevant evidence - or the insufficiency in the evidence - as to an ability to continue to make payments or to finance the last payout sum for White Water remains. (b) there was no evidence, or insufficient evidence, upon which it could be found that Mr Taylor had "procured" or involved Capital Finance in any course of dealing whereby the houseboats were sold in anything other than the normal course of the business of Capital Finance. Although a broad submission was advanced that Capital Finance owed a duty to protect an interest said to be comparable to an "equity of redemption", no authority was cited to support any proposition that a finance company owed in the circumstances of the present case any greater duty to act otherwise than in accordance with the instructions of Mr Taylor. An available inference, and an inference that cannot be displaced by reference to the scant evidence otherwise available, is that Capital Finance may well have formed the view that it was better to secure a sale in the immediate future and thereby recover its own interest, especially in circumstances where it was being told by Mr Taylor that he could not afford to continue to make repayments. An available sale of both houseboats may have been seen by Capital Finance as a highly desirable opportunity and an opportunity not to be forsaken by reason of some possible future sale at a possibly higher price. (c) there was, in any event, little evidence to support any finding that either of the two houseboats was sold otherwise than for their then market value, or at least at a value significantly different to the market value. Such evidence as there was included, for example, the advertisement in the Adelaide Advertiser. The evidence also included Mr Taylor's own estimates of value. But there was no independent evidence as to the value of the houseboats or the ability to sell houseboats for any significantly greater sum or to sell even at the same price on the open market in the short term. (d) although the established interest or control still exercised by Mr Taylor over both Flat White and White Water may legitimately give rise to speculation as to the true nature of the entire agreement as between Mr Taylor (on the one hand) and either Mr Dyer or Mr Walker (on the other), such other terms of any agreement remain a matter of speculation. If it be the case that Mr Taylor is unable to provide any security, the assumption of a liability to pay monthly payments in respect to Flat White, certainly invites scrutiny. But dissatisfaction with the present state of evidence cannot transform itself so as to fill deficiencies in Ms Crossman's present application. 33 Although fleeting reliance was placed on behalf of Ms Crossman upon Jones v Dunkel [1959] HCA 8, 101 CLR 298 at 308, such reliance was (with respect) misplaced. In an oft-repeated passage, Kitto J there held: … any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. But it was there also noted the absence of a particular witness "cannot be used to make up any deficiency of evidence": (1959) 101 CLR 298 at 312 per Menzies J. See also: Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [634], 247 FLR 140 at 155 per Spigelman CJ, Beazley and Giles JJA. Where there is an explanation for the absence of a witness, the principle in Jones v Dunkel is not applicable: Pacific Publications Pty Limited v Next Publishing Pty Limited [2005] FCA 625 at [111], 222 ALR 127 at 153 to 154 per Tamberlin J. In the present proceeding, it was up to Ms Crossman to make out her case of an abuse of process and it was not for Mr Taylor to supplement any deficiencies in her evidence. Moreover, given the prospect that Mr Taylor may have been found to have engaged in conduct which was tantamount to a finding of contempt of court - even if a finding in those terms had not been sought on behalf of Ms Crossman - it was hardly surprising that Counsel for Mr Taylor elected not to call him as a witness.

Security for Costs 34 In the alternative to seeking a dismissal or permanent stay of Mr Taylor's appeal, Ms Crossman also made an oral application seeking security for costs in the sum of $40,000.00 in respect to the conduct of the appeal. 35 That alternative application, however, has to be now considered in light of the fact that the principal application made on her behalf has been unsuccessful. In such circumstances, Ms Crossman should be ordered to pay the costs of the present Interlocutory Application. The separate costs that have already been incurred in the hearing at first instance and in respect to which Ms Crossman has an existing order for costs in her favour, would undoubtedly be considerable; so, too, will be the costs to be incurred in respect to the forthcoming appeal. 36 Although it may be possible to effect some sort of "set-off" such that the quantum of any security which would otherwise be ordered could be reduced by the amount of costs she should now be ordered to pay Mr Taylor, the preferable course is to not make any order for security. 37 That course is also supported by the fact that the hearing of the appeal is now imminent. Any application for security should have been made at a far earlier point in time. Moreover, any order against Mr Taylor for security may have the effect of stifling the appeal itself. The evidence as to Mr Taylor's ability to meet any order for security is far from satisfactory. The application seeking to stay the appeal is to be dismissed; Mr Taylor remains free to prosecute his appeal, as does any appellant. 38 After the conclusion of the hearing, leave was granted to Ms Crossman to file and rely upon further written submissions. Mr Taylor was given an opportunity to respond. Those further submissions have been taken into account but do not lead to any contrary conclusion being reached. 39 The application for security is dismissed.

Conclusions 40 The application for a dismissal or permanent stay of the appeal is to be dismissed. 41 So, too, is the application for security for costs. 42 It follows that Ms Crossman is to pay the costs of her unsuccessful Interlocutory Application.

ORDERS The Orders of the Court are: 1. The Interlocutory Application filed on 30 August 2011 is dismissed. 2. The application for security for costs is dismissed. 3. The Applicant on the Interlocutory Application, the Respondent in the appeal, is to pay the costs of the Respondent, the Appellant in the appeal, of the Interlocutory Application. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lander, Cowdroy and Flick.

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