Tsui v Westpac Banking Corporation [2001] QCA 276

COUNSEL: K D Dorney QC, with him G K Flint for the appellant / J D McKenna for the respondent

SOLICITORS: Gateway Lawyers for the appellant / Allen Allen & Hemsley for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Mackenzie J; I agree with them and do not wish to add anything.

The appeal should be dismissed with costs to be assessed.

MACKENZIE J: This is an appeal by a non-party, Raymond Yee Ping Tsui, against an order for costs made against him in an action in the Trial Division. Judgment in the action was delivered on 27 October 1999 and a costs order made against the plaintiff Babsari Pty Ltd to pay the costs of the issues between it and the eighth defendant, Westpac, on a standard basis.

On 17 November 1999 after an inquiry was made of Babsari as to its ability to meet the obligations imposed by the costs order, Mr Tsui replied on 17 November 1999 that it was not and that the company was in the process of winding up. Mr Tsui was a shareholder and director along with his wife Janet Yin Hing Tsui.

The order that Mr Tsui pay Westpac's costs ordered to be paid by Babsari was not made until 27 October 2000, by another judge of the Trial Division. The application for payment of costs by the appellant was made a considerable time both after the initial judgment had been given and after the time it had become apparent that Babsari was unable to pay costs. However, it was conceded by the appellant that Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 234-6 supported the conclusion that the court has jurisdiction to make an order of this kind at a later time in a separate application if it is not sought to alter the original order, but circumstances have arisen which render a supplemental order necessary.

The Full Court of the Federal Court said at 235:

"There are many cases where supplemental orders will be made and the jurisdiction, while no doubt requiring caution, is not limited merely, as the respondents say, to the making of orders in aid of the enforcement and working out of original orders, although the making of supplemental orders may be appropriate in such cases.

...

That the present case involves the making of a supplemental order is made more apparent when the form of the appropriate order is considered. In our view that order would be that the solicitors pay the costs of White Industries (Qld) Pty Ltd on an indemnity basis and that payment by the solicitors operate to discharge the liability of Caboolture. So framed it is clear that the Court has no need in any way to vary or alter any order previously made by it."

Rule 680(1)(a) and r 680(1)(b) Uniform Civil Procedure Rules were conceded to be the analogous powers under the new rules.

It was also conceded that difficulties may occur in some cases if the judge who heard the original application does not hear the application for a non-party to pay costs. In this case the appellant took no issue merely because another judge heard the new application.

In some cases there would seem to be advantages in having the new application heard by the judge who heard the original application, if possible. Cases where the decision on the fresh application turned on interpreting what the original trial judge had meant in reasons for judgment or where inferences had to be drawn from the original trial judge's reasons are examples. However, in light of the concessions by the appellant it is not necessary to examine this issue further. Nor is it necessary to consider the kind of evidence admissible in an application of this kind since there was no point taken in this regard. (See e.g., Symphony Group PLC v Hodgson (1994) QB 179; Flinn v Flinn [1999] VSCA 134).

To understand the basis of the order appealed against, it is necessary to understand the background of the action. Babsari's claim was that Asean had borrowed funds from Westpac. In about August 1987, in consideration of Westpac forebearing to sue in respect of advances or accommodation already granted or afforded to Asean, Babsari gave Westpac mortgages over a number of properties which it owned to secure Asean's debt.

In about August 1987 the first and second defendants Douglas Wong and his sister Janet Wong gave Westpac personal guarantees to secure the debts of Asean.

In about October 1987 the third and fourth defendants, Mr and Mrs Chow, executed a mortgage over a number of properties which they owned in circumstances referred to in paras [17] and [18] below.

In about August 1987 the fifth and sixth defendants Mr and Mrs Tsang granted an equitable mortgage over a property owned by them by giving the certificate of title to Douglas Wong who deposited it as security with Westpac for Asean's indebtedness.

Babsari alleged that because of these transactions the first to sixth defendants became liable as co-debtors in respect of any liability arising in Babsari to repay Westpac in respect of advances to Asean. When Asean failed to pay its debt Westpac made demands on Babsari which discharged Asean's indebtedness in full. Babsari claimed entitlement to contribution from the first to sixth defendants as co-debtors.

In a separate action which was consolidated with Babsari's action, Mr and Mrs Chow claimed against Westpac that the mortgages which they had given were invalid because they had been given as a result of misleading or deceptive conduct on the part of Westpac, or that the bank had taken the benefit of the mortgages in breach of a fiduciary duty owed to Mr and Mrs Chow. Both of these claims were held by the learned trial judge to be without foundation, but for reasons which appear below, he held that the mortgage was not the product of agreement between Mr and Mrs Chow and Westpac.

By the time the action came to trial Douglas Wong was bankrupt and his estate had made a settlement with Babsari. Janet Wong had settled with Babsari. Babsari and Mr and Mrs Tsang had reached a settlement which gave nothing to Babsari. Asean was defunct. The only live issues were therefore Babsari's claim against Mr and Mrs Chow and their claim against Westpac.

Asean was a company involved in designing, manufacturing and selling a particular item of furniture. The individual defendants were all members of an extended family. Douglas and Janet Wong were originally directors of Asean. Mr Tsui was appointed an additional director in May 1987. At that time Babsari acquired a 20% interest in Asean and Mr Tsui paid an active but not dominant part in Asean's affairs.

In August 1987 Janet Wong transferred her 20% interest in Asean to Babsari and was desirous of being released from her personal guarantee to Westpac. Negotiations in which Mr Tsui actively participated to achieve this were undertaken with Westpac. Douglas Wong proposed obtaining mortgages over real property owned by Mr and Mrs Tsang and Mr and Mrs Chow as replacement security. If that occurred, Westpac agreed to release Janet Wong from her guarantee.

The learned trial judge, however, found that Mr and Mrs Chow had a different understanding of the reason why Westpac was to be given mortgages over their property. He found that Mr and Mrs Chow had believed that the certificates of title were to be used as security for a loan to assist their son-in-law, Richard Wong, to acquire a business being sold by Douglas Wong. Their certificates of title were given to Richard Wong in the belief that they would be used to allow him to obtain the loan from Westpac. However, he passed them to Douglas Wong who then conducted the dealings with the bank. As things turned out, sufficient moneys to fund the purchase without the loan having to be obtained became available from another source. Although the mortgage documents signed by Mr and Mrs Chow showed that the mortgage was to secure indebtedness of Asean, Mr and Mrs Chow believed that it gave effect to the business deal between their son-in-law and Douglas Wong.

The learned trial judge concluded that Westpac and Mr and Mrs Chow had never reached agreement because the bank intended to accept the benefit of their mortgage only as a means of releasing Janet Wong from her guarantee and only if Mr and Mrs Tsang also provided a mortgage. Mr and Mrs Chow intended to support their guarantee of Asean's obligations by a mortgage over their property only in order to obtain a loan for Richard Wong from Westpac.

Indeed, Westpac had from an early time accepted that Mr and Mrs Chow were not bound by their mortgage. The substitute security arrangements never came into force because Mr and Mrs Tsang never executed the mortgage although Westpac held a certificate of title of property they owned. In the event, the learned trial judge dismissed Babsari's claim against Mr and Mrs Chow with costs on the standard basis. He also ordered Mr and Mrs Chow to pay Westpac's costs of the issues litigated between them on an indemnity basis. He also found that Babsari was trustee of a trust which existed to benefit the family of Mr Tsui. Although Mr and Mrs Tsui were both directors, Mr Tsui controlled the company without reference to his wife. During the trial Mr Tsui gave evidence that he and Mrs Tsui were giving instructions to the solicitors for Babsari about the conduct of the litigation and that they were paying the legal bills for Babsari, since it had no money.

It is against this background that the costs order against Babsari referred to in para [3] was made. The learned judge of the Trial Division who made the costs order against the appellant referred to the principle stated by Mason CJ and Deane J (with whom Gaudron J agreed) in Knight v FP Special Assets Limited (1992) 174 CLR 178 at 192-3. She found that Babsari was unable to fund the litigation and could not have met an order for costs in the event that it was unsuccessful and that the appellant had actively conducted the litigation on behalf of the company not merely as a director but as a person with a personal interest in the successful conclusion of the litigation for himself and his family.

It was submitted on the appellant's behalf that Babsari was impecunious because it had paid the debt to Westpac and, in seeking to restore its fortunes, was a real plaintiff. But the point made below that the ultimate beneficiaries would be Mr Tsui and his family because Babsari was trustee of the family trust of which they were beneficiaries is not without importance in this regard.

It was conceded by the appellant that the learned judge had properly stated the principle in a passage immediately following those findings:

"This is not to advocate making a director liable for costs where a company has unsuccessfully brought or defended proceedings funded by the director. To do so without more would erode the concept of the separate liability of the company. Knight makes clear that the prima facie rule is that an order for costs is only made against a party to the litigation. Something more must be present before a director will be made liable for costs if the company is unsuccessful."

In the Trial Division the conduct relied on in support of the order for costs against the applicant included the following:

Babsari brought and continued the action for contribution against Mr and Mrs Chow in circumstances where the appellant knew that the arrangements for substituted security for Janet Wong's personal guarantee did not eventuate;

Babsari, instructed by the appellant, sued Janet Wong and Mr and Mrs Chow knowing that there could not be binding securities from both of them;

The appellant had a personal interest in the outcome since Janet Wong's exit from Asean gave Babsari a further 20% interest in it;

The Bank's solicitors had pointed out well in advance of the trial to Babsari's solicitors that the Bank's preferred course would have been to interplead and transfer the securities in accordance with the order of the court. This required an agreement by all the alleged co-debtors but while Babsari continued to pursue Mr and Mrs Chow they maintained their claim against the bank.

Reference was also made to the fact that the appellant had misrepresented in the application to deregister Babsari in April 2000 that it had no outstanding liabilities and was not a party to legal proceedings. In concluding that the appellant should pay costs the learned judge described this conduct in the following terms:

"I conclude that Mr Tsui should pay the costs ordered by Chesterman J to be paid by Babsari to Westpac. Although not determinative, his conduct in seeking to deregister Babsari immediately following the adverse costs order lends some support to the exercise of the discretion because this was plainly a dishonest attempt to avoid the consequences of the judgment."

The costs which the learned trial judge ordered to be paid by Babsari to Westpac were costs of and incidental to the issues between those two parties. In the passage just quoted and in para [32] of the judgment appealed from, the limitation inherent in the learned trial judge's finding that Babsari should not be held responsible for the institution of the action by Mr and Mrs Chow against the bank is preserved. In each of these passages the focus was on responsibility for payment of costs.

The grounds of appeal are that the learned judge erred in finding the following:

"(a) had Mr and Mrs Chow not been sued by Babsari for contribution they would not have brought their case against Westpac to have the mortgages set aside;

while Babsari continued to pursue Mr and Mrs Chow they maintained their claim against the bank;

Westpac would have been unsuccessful in a security for costs application;

a director in Mr Tsui's position did not need the warning referred to in Metalloy;

it was relevant to consider Mr Tsui's conduct in seeking to deregister Babsari."

With regard to grounds (a) and (b) it was common ground that Mr and Mrs Chow's claim against Westpac was filed on 5 March 1993. Babsari's claim against Mr and Mrs Chow was not filed until 1 November 1994. The respondent filed a notice of contention seeking to uphold the judgment in case the learned judge's comments that had Mr and Mrs Chow not been sued by Babsari for contribution they would not have brought their case against Westpac to have the mortgages set aside were interpreted as involving a reversal of the true chronology. It was submitted that the judgment could nevertheless be upheld on the basis that had Babsari not sought contribution from Mr and Mrs Chow they would not have brought or continued the case against the respondent to have the mortgages set aside.

To focus on whether or not Mr and Mrs Chow would have brought or continued proceedings against Westpac is in my view somewhat of a side issue. The real focus, given the extent of the costs order is that Babsari's resistance to the notion that the mortgage was unenforceable as between Westpac and Mr and Mrs Chow was the reason why Westpac was forced to be an active participant rather than a party who would abide the order of the court and deal with the mortgage in accordance with the court's determination. The latter was Westpac's preferred position and Babsari was told of it in a timely way.

The fact that Westpac was forced to fight on a second front to resist the unsubstantiated claims brought against it by Mr and Mrs Chow is not immediately relevant in light of the learned trial judge's acceptance that Babsari should not be liable for the consequences of the Chow's action against Westpac. Nevertheless, as a statement of fact there is no reason to suppose that the observation that the action brought by Mr and Mrs Chow was consequential upon Babsari pursuing them for contribution was wrong. In any event it may well be that in paras [19] to [21] the learned judge was not expressing findings of fact but simply reciting arguments advanced upon Westpac's behalf.

Even allowing for the possibility that the chronology of commencing actions was inadvertently reversed, Babsari had been claiming contribution from Mr and Mrs Chow before they commenced their proceedings against Westpac. In that sense the proceedings by them were a response to those demands, designed to assist in establishing that they were not liable to Babsari. The precise sequence in which legal proceedings were commenced is not therefore critical. But for Babsari maintaining that Mr and Mrs Chow were liable to it in respect of the debt discharged by Babsari they would not have felt the need to proceed against Westpac to protect themselves against any sums they might be ordered to pay to Babsari. Westpac had accepted that the mortgage was unenforceable as between itself and Mr and Mrs Chow, but because of the conduct of Babsari, it became necessary for Westpac to participate actively in the proceedings when it would not otherwise have done so. In my view, even assuming the best position for the appellant, there is no substance in these grounds.

In respect of ground (c), the argument was based on the proposition that had Westpac sought security for costs against Babsari in a timely way, there were no discretionary factors against such an order. The learned judge held there was not much prospect of Westpac making a successful pre-trial application because Babsari made no substantive claim against it. All that was sought was the securities in exercise of a right of subrogation. The respondent submitted that at a time when Westpac might appropriately have made an application it would have been unable to point to any substantial costs for which Babsari could have been said to be responsible. The learned judge observed that it was not until the evidence unfolded and findings were made that Babsari's role through the appellant became clearer. I am not persuaded that there was any substantial possibility of Westpac successfully obtaining an order for security for costs or that the learned judge's assessment of the situation was wrong. Ground (c) therefore fails.

Ground (d) raises the question whether the appellant should have been put on notice at an appropriately early time that if he continued to participate in pursuing the claim on Babsari's behalf, Westpac would seek a costs order against him. The appellant relies on the lack of warning as a reason why an order that he pay the costs personally should not have been made. Discussion of giving such a warning may be found in a number of authorities including Symphony Group PLC v Hodgson (1994) QB 179, 193; CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (Supreme Court of Victoria, 2662 of 1987, 1 September 1995) where Batt J said that the proposition was not an absolute one; Metalloy Supplies Ltd v M.A. (UK) Ltd (1997) 1 WLR 1613, 1618; Vestris v Cashman (1998) 72 SASR 449; and Yates v Boland [2000] FCA 1895 where the court said the following:

"33 In [House v The King (1936) 55 CLR 499] a distinction is drawn between an error of principle and other errors, such as the failure to take into account a material consideration. For the purpose of this distinction a principle is a rule which governs all cases of a particular type under consideration. Thus, the relevant principles governing the exercise of discretion to award costs against non-party are set out in the passage from the judgment of Mason CJ and Deane J in Knight extracted in par 10 of these reasons. Her Honour referred to that passage and addressed each principle in turn. That is to say she considered whether the company was insolvent, whether the appellant played an active role in the litigation, whether the appellant had an interest in the subject of the litigation and whether the interests of justice required the order to be made. In our view her Honour made no error in identifying the relevant principles.

34 The necessity, if it existed of warning the appellant was not a principle for the purpose of the test formulated in House. The discussion concerning Symphony and Vestris in pars 18 to 32 of these reasons shows that the question of warning has been treated as a material consideration in certain circumstances. Whether such a requirement arises in a particular case depends on the facts and circumstances of the individual case. The necessity to warn a non-party of an intention to claim costs is not a principle applicable in every case in which costs are sought against a non-party. Rather it may be a material consideration depending on the situation disclosed in the case under consideration."

It was submitted for the respondent that the learned judge was correct in concluding that in the circumstances of the case no warning of the possibility of an application that he be made liable for costs would be necessary, since the appellant was a director, fully seized of the relevant facts. It was also submitted that the case was distinguishable from one where the person against whom the costs were being sought was not in a position to influence the conduct of the action; and that Mr Tsui had effectively conducted and financed the action, knowing facts which suggested that the action against Mr and Mrs Chow was unlikely to succeed.

It is a matter of judgment in any particular case whether a non-party should have been warned specifically in advance of the risk that an order for costs may be sought against him. Failure to do so is one of the factors to be taken into account and in some cases may be a factor counting against exercising the discretion in the applicant's favour. In other cases it may be apparent that it is not unjust to order costs even though the non-party has not specifically been put on notice, for example, if the person was the force behind continuation of the action in circumstances where the prospects of success were, objectively, minimal. I am not persuaded that the learned judge's approach displayed any error in principle or was wrong in this regard. Therefore ground (d) fails.

In ground (e) it is complained that the learned judge erred in taking into account an event subsequent to the judgment, steps to deregister Babsari, in considering whether to award costs against the appellant. What the learned judge said in this regard appears in para [26] above. I am not convinced that the learned judge was saying in that passage that this was a primary component of the decision to order the appellant to pay costs. Use of the phrases "although not determinative" and "lends some support" suggests that the primary reasons were those set out in para [25]. The better view is that the learned judge was simply saying that the subsequent conduct was merely confirmatory of the view taken of the quality of the appellant's conduct in continuing in the action knowing the matters referred to in paras (a), (b) and (d) of para [25]. As there is no substance in the ground it fails.

The decision appealed from was within a sound exercise of discretion. The appeal is dismissed with costs to be assessed.

CHESTERMAN J: The complex litigation which gave rise to the application before White J of 5 September 2000 and her Honour’s order of 27 October 2000 are admirably summarised in Mackenzie J’s reasons for judgment. The appeal is no more than a challenge to the exercise of a discretion made with respect to an order for costs where it is conceded that the Chamber Judge determined the application by reference to correct principles. The challenge was advanced on the ground that her Honour had misapprehended matters of fact. I agree that, for the reasons given by Mackenzie J, there was no misunderstanding of the circumstances which led to the order appealed against.

The order was:

“Raymond Yee Ping Tsui (the appellant) pay Westpac Banking Corporation’s costs of and incidental to action number 874 of 1995 (consolidated with action number 340 of 1995) ordered to be paid by Babsari Pty Ltd by (Mr) Justice Chesterman on 2 November 1999 to be assessed on a standard basis.”

Although irrelevant to the appeal I wish to make some observations about the effect of the order for costs made consequent upon the delivery of judgment in the principal litigation, in favour of the respondent (“the bank”). I make these observations only because I anticipate from what was said during the hearing of the appeal that the parties are likely to engage in further expensive conflict over the question of costs and because there is an element of misunderstanding as to what was intended by the original costs orders, which I, the trial Judge, made. I therefore feel a sense of responsibility to make clear what was intended in the hope that further litigation will be unnecessary.

Clarification could have been obtained had the application for the order that the appellant also be liable for the costs which Babsari Pty Ltd (“Babsari”) has to pay the bank been made to the trial Judge. However, as Mackenzie J points out, there was no obligation to do so and no request was made that the application be referred to me.

The main point of difference between the parties is whether Babsari, and hence the appellant, were responsible for instigating the action brought by Mr and Mrs Chow against the bank. If they were it seems to be assumed, at least by the bank’s representatives, that Babsari and the appellant should pay the bank’s costs of defending Babsari’s claim for contribution against the Chows.

White J held

“Had Mr and Mrs Chow not been sued by Babsari for contribution they would not have brought their case against Westpac to have the mortgages set aside. … The bank’s solicitors pointed out well in advance of the trial … the bank’s preferred course would have been to interplead and transfer the securities in accordance with the order of the court. This required an agreement by all the alleged co-debtors. But while Babsari continued to pursue Mr and Mrs Chow they maintained their claim against the bank.”

The appellant submitted that this finding was erroneous, essentially on the ground that the Chows commenced their action against the bank before Babsari instituted its proceedings for contribution against the Chows. However, like Mackenzie J, I do not regard this particular chronology as conclusive of the point. The reality is that Babsari’s claims and contentions had been adumbrated prior to the institution of legal proceedings and the Chows’ claim for relief against the bank was prompted by their apprehension (which turned out to be correct) that they would be sued by Babsari.

From this reality the bank contends that the order for costs made in its favour against Babsari (and the additional order made by White J against the appellant) extend to the costs incurred by it in resisting Babsari’s claim against the Chows. The bank prudently took that course as an adjunct to its own defence against the Chows’ claim against it.

I made a different analysis of the circumstances when I made the costs orders. I thought both my reasons and orders were clear but it appears I was wrong.

The essential point is that had the Chows not instituted proceedings against the bank alleging contraventions of the Trade Practices Act and breach of fiduciary duty there would have been no need for it to resist Babsari’s claim against them for contribution. It did so as a legitimate tactic in the litigation but there would have been no need for that action if the Chows had not made those allegations against the bank. When giving reasons on 2 November 1999 I wrote

“The Chows invented their case. They were not compelled to it by anything done by (Babsari) or the bank.”

It was for that reason that I ordered the Chows to pay the bank’s costs on an indemnity basis.

With respect to the submission that Babsari should pay the bank’s costs, also on an indemnity basis, I wrote

“The plaintiff joined the bank in the action only so that it could be bound by any order for the release or assignment of securities should the plaintiff have succeeded in its claim for contribution. The relief sought was ancillary to the remedies claimed against the other alleged co-guarantors. The bank’s role in the proceedings would have been minimal but for the case mounted against it by the Chows.”

I intended (as I thought those passages made clear) that Babsari should pay the bank’s costs incurred by it in being made a party so that it would be bound in the event that an order for the release or assignment of securities was made. The order made by White J extends that liability to the appellant. I did not intend that Babsari should be liable for costs incurred by the bank consequent upon the Chows’ fabricated claim against it.

But for that claim the bank would not have played an active role in the litigation. Its debt had been paid in full. It had no legal, or even commercial interest, in the outcome of the claim by Babsari to recover part of the debt it had paid. It developed an interest in the contribution proceedings only when the Chows alleged that, if they were liable as co-guarantors, they become so because of the bank’s misconduct. Babsari’s claim may have provided the occasion for the Chows to commence their action against the bank but the substance of that claim was wholly unnecessary and was invented. Babsari cannot be held responsible for it, or its consequences.

I do not offer these remarks in any way as an apologia nor as any criticism of the order appealed from. I make them in the hope that they will reduce further quarrelling between the parties. As I indicated I agree that the appeal should be dismissed with costs.