Treloar Constructions Pty Limited v McMillan

Judgment

1. BEAZLEY P: The appellant, Treloar Constructions Pty Limited (Treloar Constructions), brought proceedings in the District Court of New South Wales against the respondent, Mr Brian McMillan, claiming that it was entitled to recover from him as a debt due, the sum of $639,191.77 pursuant to the Corporations Act 2001 (Cth), s 588M(3), in circumstances where Treloar Constructions had obtained judgment against McMillan Prestige Pty Limited (the Company), of which Mr McMillan was a director.
2. Treloar Constructions had claimed in the proceedings giving rise to the judgment debt that the Company had incurred liabilities to it for project management and building services between January 2006 and September 2006 at a time when it was insolvent, or that by incurring the debts became insolvent.
3. Treloar Constructions alleged in the District Court proceedings against Mr McMillan that at the time that the Company incurred the liabilities, Mr McMillan failed to prevent the company from incurring the debts and either was aware that there were reasonable grounds for suspecting that the Company was insolvent or would become insolvent by incurring the debts or, alternatively, a reasonable person holding office as a director of the Company would be aware that there were reasonable grounds for suspecting that it was incurring the debt when it was insolvent or would thereby become insolvent.
4. On 19 February 2016, her Honour Gibb DCJ dismissed Treloar Constructions' claim against Mr McMillan and ordered a verdict and judgment in his favour with costs. Subsequently, on 17 March 2016, consent orders were made in relation to costs such that Treloar Constructions was ordered to pay the Company costs as assessed on the ordinary basis up to and including 5 December 2015 and on an indemnity basis as and from 6 December 2015.
5. Treloar Constructions has appealed against the dismissal of its claim and against the costs orders made against it.
6. By notice of motion filed 5 October 2016, Treloar Constructions sought an order that the execution and enforcement of the costs order made against it by the primary judge be stayed pending the determination of the appeal (the stay application).
7. By notice of motion filed 21 September 2016, Mr McMillan sought an order pursuant to the Corporations Act, s 1335 for security for his costs of the appeal in the sum of $88,125 or such other sum as the Court orders, by way of payment into Court or by irrevocable bank guarantee, and a consequential stay of the appeal until such time as security is provided in accordance with the Court's orders. The application was brought alternatively under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50 (the security for costs application).
8. It is convenient to deal with the security for costs application first.

The security for costs application

1. An order for security for costs may be made against a corporation that is, relevantly, an appellant, if it appears by credible testimony that there is a reason to believe that the corporation will be unable to pay the costs of the respondent if the respondent is successful in opposing the appeal. The Court may require sufficient security to be given for those costs and stay all proceedings until security is given: the Corporations Act, s 1335(1); Pioneer Park Pty Ltd v Australia and New Zealand Banking Group [2007] NSWCA 344 at [20].
2. The principles governing the making of an order for security for costs under s 1335(1) are well established. Unlike the position where an application for security is made under UCPR, r 51.50, it is not necessary, under s 1335 that an applicant for security for costs demonstrate special circumstances for the making of an order: Pioneer Park at [22].
3. The test to be applied in determining whether an applicant has satisfied the jurisdictional requirements of s 1335 has been described as "undemanding": HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 at [17]. In Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93, Maxwell P and Buchanan JA stated, at [15], that the phrase "reason to believe" in s 1335 "is the touchstone of jurisdiction. It requires a rational basis for the belief - and no more". See also HP Mercantile v Dierickx at [6]-[10]; Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245 at [29]-[30]; Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 at [16].
4. In Livingspring v Kliger Partners their Honours further observed, at [15], that the section required the making of a risk assessment as to whether the corporation would be unable to pay, and that: "The section calls for a practical, commonsense approach to the examination of the corporation's financial affairs."
5. Relevantly, for the purposes of this case, their Honours stated, at [16], that the assessment that must be made under s 1335 is "a low threshold", reflecting the policy of the section, which is to protect a party against the risk of a corporation's impecuniosity. Maxwell P and Buchanan J stated, at [17], that the foremost consideration in determining whether to exercise the discretion conferred by s 1335 was whether "an order for security would work an injustice".
6. Specific factors that have been identified in the authorities as relevant to the exercise of the discretion conferred by s 1335 include whether the applicant's conduct was the cause of the company's impecuniosity; and whether an order for security for costs would stifle the proceedings: KP Cable Investments Pty Ltd v Meltglow (1995) 56 FCR 189 at 196-197; Pioneer Park at [48]-[51].
7. The onus in proving that a party will be unable to pay costs ordered against it remains at all times on the party making the application: see Livingspring v Kliger Partners at [20]; HP Mercantile Pty Ltd v Dierickx at [11]. However, as discussed in Wollongong City Council v Legal Business Centre at [30], if a corporation who seeks to resist an order for security for costs, in circumstances where the applicant for security has established that there is reason to believe that the corporation will be unable to pay the costs of litigation if successful, contends that an order should not be made, for example, because it would stifle the litigation, there may be an evidentiary burden on the corporation to demonstrate that this is the case.
8. In this case, Treloar Constructions did not advance any such contention. Rather, the issue in this case was whether Mr McMillan had satisfied the threshold requirement for the making of an order under s 1335(1), that is, whether he had established by credible evidence that there was reason to believe that Treloar Constructions would be unable to pay the costs of the appeal if it is unsuccessful.
9. The evidence before the Court as to Treloar Constructions' financial position was that its shares comprised 100 ordinary shares and that it had a total paid-up share capital of $100. Its sole shareholder was Treloar Holdings Pty Ltd. The Company had three directors, all being Treloar family members. A search of the database of Land and Property Information NSW revealed that there were no current property holdings in the name of Treloar Constructions.
10. A search of the database of Land and Property Information NSW revealed that its directors all had real property registered on the database.
11. A search of the records of the Australian Securities and Investments Commission (ASIC) in respect of Treloar Holdings Pty Ltd revealed that its share capital comprised 100 ordinary shares and that it had paid up capital of $100. It had the same directors as the directors of Treloar Constructions and its shares were held by two Treloar family members, one of whom was also a director.
12. Prior to the bringing of the application for security for costs, Mr McMillan's solicitors had written to Treloar Constructions' solicitors, on 22 August 2016, expressing its concern as to the ability of Treloar Constructions to pay the costs if it was unsuccessful and advising them that unless it provided satisfactory proof of Treloar Constructions' ability to meet a costs order of the magnitude of approximately $100,000, they anticipated that they would receive instructions from Mr McMillan to apply to the court for an order for security for costs.
13. Mr McMillan's solicitors wrote a follow-up letter on 30 August 2016, noting that Treloar Constructions' solicitors had not responded to their earlier letter. Mr McMillan's solicitors advised that unless Treloar Constructions provided its balance sheet or other materials sufficient to demonstrate that it would be able to meet a costs order, an application for security for costs would be filed. There was no response to that letter.

Submissions

1. Mr McMillan contended that he had established, by credible evidence, that there was reason to believe that Treloar Constructions would be unable to pay an order for costs if it was unsuccessful on the appeal. He also submitted that in circumstances where the directors of Treloar Constructions had real estate, and in circumstances where it had not filed any evidence on the application, there could be no suggestion that the making of an order would stultify the appeal.
2. Mr McMillan also relied upon the fact that should Treloar Constructions be unsuccessful on the appeal, it remained indebted to him for the costs of the proceedings at first instance, including in respect of indemnity costs for a portion thereof. In that regard, Mr McMillan's solicitors, in their correspondence with Treloar Constructions' solicitors, stated that the costs for the first instance proceedings had been estimated to exceed $200,000. Mr McMillan's solicitors subsequently served upon Treloar Constructions' solicitors a bill of costs claiming a total sum, including disbursements, of $270,371.34. Treloar Constructions' solicitors intend to challenge the quantum claimed in that bill.
3. Treloar Constructions contended that Mr McMillan had not satisfied the threshold test for the making of an order for security. Treloar Constructions accepted that it does not own any property, that it had not put on any evidence, and that it had a limited share structure. It pointed out that in Cornelius, Macfarlan JA had observed at [16] that a "conclusion that there is a risk that [a corporation will be unable to meet an adverse costs order] is insufficient". Treloar Constructions contended that Mr McMillan had not established anything more than a risk that it may not be able to meet a costs order if unsuccessful on the appeal. It contended, in the absence of a notice to produce requiring the production of financial information Mr McMillan had not established "a reason to believe" that it would be unable to do so.
4. The parties' submissions, distilled in the manner which I have described, focussed the outcome of the application on whether, in this case, in the absence of a notice to produce financial information, Mr McMillan had satisfied the terms of s 1335. In dealing with that question, both parties referred to the decision of the Western Australian Court of Appeal in FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241; [2000] WASCA 69.
5. In that case, the court examined the difference in the language of s 1335 from its predecessor provisions. In doing so, Pidgeon and Owen JJ observed, at [11], that there had been a lessening of the threshold requirements for the engagement of the court's jurisdiction and that it was no longer necessary to prove that a party would be unable to pay costs if an order was made against it. Their Honours added: "What was required was that there be credible testimony giving rise to a belief. We would see the rule in Jones v Dunkel as having no application in determining this question. This rule normally arises when a matter is sought to be proved and in that situation the question is what inferences can be drawn. Here the applicant is not seeking to prove the state of the company's finances. The applicant is required to do no more than place on the record credible testimony and the exercise of the court at this stage is in judging the testimony and its quality rather than seeing if a matter has been proved by inference. The company, at this stage, is not being asked to explain or contradict something for the purposes of avoiding an inference being drawn. If there is credible testimony, then the court has jurisdiction to make the order and a company which called no evidence to show it could meet a costs order would run the risk of having an order made against it."
6. The applicant in FFE Minerals had adduced evidence that the respondent to the application had a limited share capital and no land on the relevant land register. Their Honours observed, at [25], that there was no evidence of an apparent lack of other assets, although the financial returns produced suggested that was the position. Their Honours considered that the absence of land combined with low share capital gave rise to appearance that there was reason to believe that there were no assets to meet the costs. Their Honours noted that the respondent company could have adduced evidence but did not. They concluded that the evidence led, combined with the absence of evidence from the respondent, objectively gave rise to the necessary belief that the company was not in the position to pay costs if an order was made against it.
7. Treloar Constructions accepted that there were aspects of the decision in FFE Minerals that were against it, but submitted that it was relevant in that case, unlike this case, that there was evidence of five years of financial returns in evidence: see FFE Minerals at [3]. However, those returns were available to the applicant in circumstances where there had been an obligation on proprietary companies to file financial returns. That regulatory requirement had ceased at the end of 1995, whereas the application for security appears to have been made in 1999. It would appear from the court's disregard of the financial returns some years prior to the date of the application for security for costs that little or no weight was given to them.
8. In my opinion, Mr McMillan has satisfied the threshold requirements of s 1335. As the evidence established, Treloar Constructions is a company with no real estate and a limited share capital. It is a project management and building services company and as such would not be expected to have any stock. Prior to the bringing of the application, it was asked to provide proof that it could meet an order for costs but chose not to do so. Although Mr McMillan would have been in a stronger forensic position had a notice to produce been issued, I am, as I have said, nonetheless satisfied that Mr McMillan has established by credible evidence that there is reason to believe that Treloar Constructions would be unable to pay an order for costs if unsuccessful on the appeal.
9. My conclusion in this regard is reinforced by the fact that Treloar Constructions, on its stay application, did not adduce any evidence that it would be in a position to pay the costs it had been ordered to pay in respect of the first instance proceedings should it not be successful on its appeal. I refer to this below.
10. That leaves for consideration the amount of security that ought to be ordered. Mr Rosenblatt, solicitor, who has carriage of the matter on behalf of Mr McMillan, deposed in his affidavit that if Mr McMillan is successful on the appeal, costs are likely to be assessed in the sum of $88,125. In coming to that assessment, Mr Rosenblatt made an allowance for the possibility that on assessment solicitors' costs might be reduced in the order of 10-15 per cent. To accommodate that possibility, Mr Rosenblatt applied a midrange reduction of 12.5 per cent to the costs he had calculated would be incurred on the appeal.
11. For its part, Treloar Constructions filed an affidavit of Mr Zwar, sworn 12 October 2016, in which he estimated that the costs on the appeal would be in the order of $60,000.
12. Both solicitors were experienced practitioners with experience in assessing costs likely to be incurred in appellate litigation of the type involved here. Mr McMillan's counsel suggested that the assessments advanced by each party were likely to be at the higher and lower end of the scale respectively. Whilst there was no evidence to enable the Court to assess whether that was so, it is likely to be a reasonably accurate assessment of the position that parties tend to take in matters of this kind.
13. In the circumstances, I consider that an appropriate amount of security is $75,000. I will return below to the manner in which that security is to be provided.

Stay application

1. Treloar Constructions seeks a stay of the execution and enforcement of the costs ordered by the primary judge on the grounds that the respondent is impecunious and if the costs are paid over it is likely that they will not be recoverable.
2. As is the case with applications for security for costs, the principles in relation to the grant of a stay are also well established. In Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 this Court stated, at 694, that it was "sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion [to order a stay] in [the applicant's] favour".
3. In New South Wales Bar Association v Stevens [2003] NSWCA 95 Spigelman CJ (Meagher and Sheller JJA agreeing) observed, at [83], that the overriding principle was to ask "what the interests of justice require". His Honour referred to the statement in Alexander v Cambridge Credit Corporation set out in the paragraph above and, at [88], summarised the principles that the Court in that case had indicated were relevant, as follows: "'The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties.' (694F) 'In the exercise of its discretion, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.' (694G) '… where there is a risk that the appeal will prove abortive if the appellant succeeds and the stay is not granted, courts will normally exercise their discretion in favour of granting a stay.' (695C) '… where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay.' (695D) '… although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success … this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the appellant has an arguable case.' (695E)"
4. In Kalifair Pty Ltd v Digi-Tech (Australia) Pty Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Australia) Pty Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 the Court, at [28], referred to the prima facie principle that a successful party to litigation is entitled to the fruits of the judgment and is entitled to be protected so far as is practicable from the risk that should an appeal be unsuccessful, assets which were earlier available to satisfy the judgment might no longer be available for that purpose. To that end, the court indicated that it may be appropriate to require, as a condition of a stay, that the applicant for the stay provide security.
5. In Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 McColl JA observed that in that case, there was no question that if the judgment was stayed, the appellant who sought the stay of the first instance judgment would not be able to meet the judgment sum ordered against it should the appeal fail. In those circumstances, her Honour granted the stay without the imposition of any conditions.
6. Treloar Constructions submitted that it had arguable grounds of appeal. Included in its argument was that in circumstances where the primary judge had rejected the evidence of its expert, Mr Palmer, on the question of the solvency of the Company, her Honour erred in failing to determine the question of insolvency herself, on the evidence available.
7. Treloar Constructions' solicitor, Mr Mazzone, also deposed in his affidavit to having received a bill of costs and that it had been served with an application for assessment of costs. He deposed that if the assessment proceeded and if Treloar Constructions were successful on the appeal, the assessment process, and the costs involved, would have been wasted.
8. Mr McMillan acknowledged that the test for determining whether there was an arguable case was low, but nonetheless submitted that failure on any one of the issues raised with respect to insolvency on the appeal was sufficient for it to fail. In this regard, the question of the insolvency of the Company was said to be of particular importance. Unless Treloar Constructions proved insolvency, Mr McMillan's liability under s 588M did not arise.
9. Mr McMillan pointed to the fact that the expert, Mr Palmer, had made concessions and admissions in his evidence such that her Honour's characterisation of his report and his opinion as "flawed" was correct. Mr McMillan also pointed to the fact that, as her Honour stated at p 50 of her judgment, if the expert did not have sufficient information to form a view of the Company's insolvency, she was in a worse position. Mr McMillan submitted, therefore, that Treloar Constructions' complaint as to her Honour's failure to determine insolvency herself was without substance.
10. Mr McMillan conceded that he was impecunious. At an early stage of the application for the stay either being made or foreshadowed, he had offered to consent to a stay on condition that the estimated amount of the costs be paid into his solicitor's trust account. Treloar Constructions had not acceded to this proposal, relying on an earlier failure of Mr McMillan's solicitors to honour an arrangement that he pay for half the transcript. The solicitors had refused to do so after judgment was handed down on the basis that as a result of the costs order made against it, Treloar Constructions had a much larger liability to Mr McMillan. Treloar Constructions stated to this Court that it has real concerns that if any condition was imposed for the grant of a stay order requiring it to pay an amount in respect of the costs that it has been ordered to pay, those moneys should be paid into court.
11. In my opinion, this is an appropriate matter in which to order a stay. Mr McMillan concedes that he is impecunious. Although the submission made by Mr McMillan's counsel in respect of the insolvency point appears to be of real merit, I am not satisfied that the appeal is not arguable. Indeed, Mr McMillan has effectively conceded that a stay is appropriate, but subject to a condition that security be provided for the monies that he is entitled to in respect of the costs order.
12. In my opinion, in circumstances where I have concluded that there is a reason to believe that Treloar Constructions will be unable to pay the costs of the respondent if the respondent is successful in opposing the appeal, and where Treloar Constructions has not demonstrated by any other evidence that it will be able to satisfy the costs order already made against it in respect of the first instance proceedings should the appeal fail, I consider that a condition of the stay, that it provide security in respect of those costs, should be imposed.
13. The parties were given an opportunity to agree as to the terms of any condition which might be imposed, and in the absence of agreement, to advise the order which each considers to be appropriate. Agreement was not forthcoming. Treloar Constructions proposed that an amount of $60,000 be paid into a joint controlled account in the name of both solicitors on the record. Mr McMillan proposed an order that an amount of $225,000 be paid into such account.
14. In the circumstances, I see no reason why an amount that reflects the likely amount for costs ordered for the first instance proceedings ought not be secured. Mr McMillan has served a bill of costs on Treloar Constructions, claiming an amount of 270,371.34. The proceedings were conducted over five days before the primary judge and experts were involved. Although Treloar Constructions proposed to challenge various aspects of the bill, an amount in the sum of $225,000, as proposed by Mr McMillan, appears to be appropriate. I also consider it appropriate to stay the assessment of the bill of costs pending the outcome of the appeal.
15. There is a question as to the appropriate orders for costs that ought to be made on these applications. The applications were heard together. Mr McMillan has been successful in his application for security for costs. Treloar Constructions has been successful in the primary aspect of its application for a stay. Mr McMillan had indicated his agreement to an order for a stay, but suggested that it be on condition that money be paid into his solicitor's trust account. However, Treloar Constructions essentially resisted that any condition be imposed upon the grant of the stay.
16. As I have indicated, the repository of any such security was in issue, although Mr McMillan readily conceded that payment into a joint account of the solicitors for the respective parties would be appropriate. It would have been sensible for that arrangement to have been offered at the outset. It is a fairly usual arrangement and a more usual arrangement than that initially suggested by Mr McMillan.
17. However, having regard to the submissions made in this matter and the orders proposed by Treloar Constructions, I doubt that Treloar Constructions would have agreed to securing an amount in the order or what was sought by Mr McMillan. In those circumstances, I am of the opinion that Mr McMillan should be entitled to the costs of the stay application from the time that he indicated the terms on which he would consent to an order for a stay.
18. Accordingly, I make the following orders: 1. The appellant, Treloar Constructions Pty Limited, provide security for the costs of the respondent, Brian McMillan, of the appeal in a sum of $75,000, such sum to be paid into court or by way of an irrevocable bank guarantee issued by an Australian bank and realisable on an order of the Court; 2. The proceedings be stayed until such time as the appellant has provided security for costs in accordance with order (1); 3. Upon the appellant paying $225,000 into a joint controlled monies account in the names of both solicitors on the record on this appeal, the execution and enforcement, including by way of a costs assessment, of the order made on 17 March that: 1. the appellant, Treloar Constructions Pty Limited, pay the respondent, Brian McMillan's costs: 1. on an ordinary basis up to and including 5 December 2015; and 2. on an indemnity basis thereafter, as and from 6 December 2015 is stayed until 7 days after judgment is given on the appeal or until further order of the Court.

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