//
[2009] WASCA 166
General information, not legal advice.
Court of Appeal (WA)
2009-09-25
Wheeler JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : WESTPAC BANKING CORPORATION ACN 007 457 141 & ORS -v- THE BELL GROUP LTD ACN 008 666 993 (IN LIQ) & ORS [2009] WASCA 166
BETWEEN : WESTPAC BANKING CORPORATION ACN 007 457 141 & ORS
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : THE BELL GROUP LTD (IN LIQ) -v- WESTPAC BANKING CORPORATION [No 9] [2008] WASC 239
Sixth and Twenty-ninth Respondent : Mr N J O'Bryan SC and
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Re The Bell Group Ltd (in liq) ACN 008 666 993 and certain of its subsidiaries as listed in the schedule to the originating process; Ex parte Woodings as liquidator of The Bell Group Ltd (in liq) ACN 008 666 993 and as liquidator or provisional liquidator or provisional liquidator of certain of its subsidiaries as listed in the schedule to the originating process [2009] WASC 235
Smolarek v McMaster [2006] WASCA 216
Somerset Marine Inc v New Cap Reinsurance Corporation Ltd (in liq) [2003] NSWCA 338
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
1 On 28 October 2008, Owen JA handed down reasons for decision in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239. His Honour made some findings of fact in that case, and set out his conclusions of law concerning the appropriate relief. His Honour then published reasons on 30 April 2009 dealing with the form of appropriate relief.
2 The defendants to the action (the present appellants) are numerous banks. Some, such as the first appellant, are major Australian banks. The appellant group includes foreign banks, including German and French banks. The respondents are essentially members of the former Bell Group of companies, which are in liquidation. The liquidator Mr Woodings has had the conduct of the action.
3 The trial was one which, the parties have been at pains to emphasise, lasted a very, very long time (some 404 sitting days between July 2003 and September 2006 for the trial proper). Owen JA made orders for relief in an amount which, the parties have also been at pains to emphasise, is a very, very large sum of money. Some amounts ordered to be paid are in pounds sterling, but the bulk are in Australian dollars. The orders require, among other things, that the appellants pay to certain of the respondents sums totalling in excess of $1.42 billion and costs at first instance in the sum of over $82 million. It is not suggested that either the length of the trial, or the magnitude of the sums involved, affects the relevant legal principles, but those matters do have some relevance to the balance of convenience, if the discretion to grant a suspension order is enlivened.
4 The appellants have filed grounds of appeal. The respondents intend to cross-appeal, but their grounds of cross-appeal are not yet due to be filed.
5 It is anticipated by the parties that it may be two years, or thereabouts, from the date of the appeal notice, before the appeal is completed by delivery of judgment. That may be a generous estimate. This is a case in which the court should insist that its resources are sensibly used, and it does not appear to me at present that it would be appropriate to accept the parties' estimates at face value. Looking, for example, to the appellants' grounds of appeal as filed, the 143 grounds which are common to all of the banks appear to be, even on a cursory analysis, diffuse, repetitive and prolix. It seems to me most unlikely that any court hearing the appeal would deal with them individually. Rather, there appear to be a relatively limited number of issues of significance which are capable of being dealt with in a sensible time frame. However, for present purposes, I assume that the appeal may not be completed until May 2011, two years from the filing of the notice of appeal.
6 The appellants seek orders in the following terms:
The Applicants apply under Rule 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) for the following orders:
2.1 provides to the judgment creditors a letter of credit or bank guarantee (Bank Guarantee) given by an authorised deposit-taking institution, whether an Australian corporation, a foreign bank branch or an Australian subsidiary of a foreign bank, which is authorised under Part II of the Banking Act 1959 (Cth) to carry on banking business in Australia and which is able to issue such a Bank Guarantee (Approved Guarantor) for the whole of the amounts otherwise required to be paid by that Appellant pursuant to Orders 5 and 6 as at the date of the guarantee; or
2.2 pays, or procures payment of, any amount otherwise required to be paid by that Appellant, pursuant to Orders 5 and 6 as at the date of the payment, into an interest bearing account (Suspension Account) held with any branch of any of Australia and New Zealand Banking Group Limited, Commonwealth Bank of Australia, National Australia Bank Limited, or Westpac Banking Corporation, HSBC Bank Australia Limited or Societe Generale, provided that such deposit is mortgaged and charged in favour of the judgment creditors in a form satisfactory to the Court; and that amounts deposited into the Suspension Account, together with any accrued interest from time to time, are protected pursuant to the Australian Government Guarantee Scheme for Large Deposits and Wholesale Funding (for so long as that scheme remains operative); or
2.3 pays into court any amount otherwise required to be paid by that Appellant pursuant to Orders 5 and 6 as at the date of the payment.
4.1.1 into the Suspension Account pursuant to these orders, at the rate of interest paid on that account from time to time (after deducting the cost of obtaining protection pursuant to the Australian Government Guarantee Scheme for Large Deposits and Wholesale Funding); and
4.1.2 in Court, at a rate which is equivalent to the after tax earnings on those funds; and
4.2.1 for those judgment sums denominated in Australian Dollars, at the 90 day Bank Bill Swap Rate from time to time; and
4.2.2. for those judgment sums denominated in Pounds Sterling, at the 90 day LIBOR Rate from time to time.
(Application as amended by leave on 24 August 2009.)
Grant of suspension order: relevant principles
7 Section 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) relevantly provides:
(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -
...
(b) a court that is dealing with an appeal against the judgment.
...
(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.
(4) A suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise.
8 The principles applicable to the grant of a suspension order are materially the same as those which applied to an application for a stay of execution pending appeal, prior to the coming into force of the Act: Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 at [3], Smolarek v McMaster [2006] WASCA 216 at [33]. The accepted principles are conveniently set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 at [9]:
9 It is not necessary in the present case to consider the prospects of success which the appeal might have. That is because counsel for the respondents conceded, that "the appeal has sufficiently reasonable grounds that that is not an issue that our learned friends need to address on this application" (ts 35). That must be read, in the context of the principles applicable to an application of this kind, as a concession that if there otherwise can be demonstrated special circumstances (for example, the need to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of relief), then I can proceed on the assumption that the appeal has such reasonable prospects of success as to justify the grant of relief to the appellants.
10 Another important concession made by the respondents is that it has never been intended that the liquidator should simply receive payment of the sums ordered to be paid by Owen JA, in order to distribute them in the liquidation of the various companies. Mr Woodings deposes that it is not now, and has never been, his intention to distribute any funds received from the appellants as a consequence of the proceedings before Owen JA until after completion of all appeals (Woodings' affidavit filed 15 July 2009, par 36). It appears that Mr Woodings (quite properly) accepts that the appeal might well, in large part, be rendered nugatory if the judgment sum were paid and distributed to the companies in liquidation. It appears to be common ground that the respondent companies have effectively no assets other than their interest in the various judgment sums. Mr Woodings proposes, upon receipt of the judgment sums, to pay them into a trust for which an independent trustee will be appointed. He has sought directions and orders from the Supreme Court, as liquidator, to enable him to take that course: Re The Bell Group Ltd (in liq) ACN 008 666 993 and certain of its subsidiaries as listed in the schedule to the originating process; Ex parte Woodings as liquidator of The Bell Group Ltd (in liq) ACN 008 666 993 and as liquidator or provisional liquidator of certain of its subsidiaries as listed in the schedule to the originating process [2009] WASC 235.
11 The only significant issue of principle joined between the parties appears to be this. In circumstances where it is accepted that, but for the arrangement proposed by Mr Woodings, there would plainly be a high degree of risk that the appeal would be rendered nugatory in the absence of a suspension order, are there "special circumstances" justifying the making of a suspension order? The respondents submit that the arrangement proposed by Mr Woodings has the effect that no suspension order is necessary to preserve the subject matter of the litigation or to obviate practical difficulties in respect of relief and that no special circumstances therefore exist.
12 The appellants, on the other hand, submit that the expression "special circumstances" is not to be understood as being confined only to the situation where a stay is necessary in order to preserve the subject matter of the litigation or to obviate practical difficulties in respect of relief. Rather, it is submitted that the fact that Mr Woodings recognises that there would otherwise be a dissipation risk, and in his affidavit proposes an arrangement which would effectively deny the respondents the enjoyment of the fruits of their litigation until the completion of the appeal, are circumstances which are "special" and enliven the court's discretion to make a suspension order. The detail of the arrangement proposed by Mr Woodings would then be one of the factors which, the discretion being enlivened, the court would consider in determining whether, in all the circumstances of the case, it is appropriate to make an order.
13 I accept the appellants' submissions. Section 15(3) of the Act is predicated on the assumption that the successful litigant will ordinarily be entitled to enforce the judgment. There are, in my opinion, at least two principles associated with that assumption. One is that ordinarily an order made after trial is not to be regarded as provisional only, pending the outcome of an appeal, because an appeal is not merely another step in the trial process. The other, stemming from the distinct nature of the appellate process, is that a successful litigant at trial should ordinarily be entitled not only to enforce a judgment, but to take the fruits of the judgment and deal with them as he or she pleases. An appeal in which it is conceded that the respondents should not be entitled to deal with the fruits of the judgment as they see fit is, in my view, properly to be regarded as an appeal in which there are "special circumstances" for the purposes of s 15(3) of the Act.
14 It falls then to consider what are effectively balance of convenience questions. To oversimplify the competing contentions, they are as follows. As their primary focus, both parties submit that they are concerned about a risk of loss of some or all of the judgment sum, either through financial instability, or poor investment. Both the appellants and the respondents assert that their own preferred course would have the benefit not only of avoiding possible loss, but of ensuring a reasonable rate of return on the judgment sum, so that there would be moneys available from that return either to pay post-judgment interest to the respondents on the judgment sum if the appellants should ultimately prove unsuccessful, or to provide for interest which might be payable to the appellants if the judgment sums are to be refunded to them following a successful appeal.
15 The written submissions of the parties also dealt with potential taxation disadvantages (both under Australian and foreign law) which might flow from different possible orders. I am not persuaded that any have been shown to be risks of such likelihood, or such magnitude, as to be given significant weight. That is particularly so, in the light of the correspondence which the respondents have had with the Australian Taxation Office, which suggests that, to date, the latter has been prepared to take a flexible and fair approach to the uncertainty facing parties involved in a complex appeal.
16 So far as the appellants are concerned, the appellants note that there is evidence before the court that the banks have (generally, at least) very substantial net assets and equity. There is evidence that independent agencies have assigned to the banks favourable long-term credit ratings. It is asserted therefore that each of the banks has sufficient assets to cover its liability to the judgment creditors and should not be required to provide security as a condition of obtaining suspension orders. In particular, it is asserted that what the appellants' counsel described during the course of oral submissions as the "rock solid Aussie banks" would plainly be able to pay the judgment sums at any time at which an order for payment might come to be made.
17 It is further submitted on behalf of the appellants that it is not appropriate to require the banks to provide security in the form of a guarantee, charged account or payment into court, because the provision of the guarantee would involve costs which are the subject of evidence in the affidavit of John Christopher Vaughan filed 3 August 2009 at par 13. The costs of a guarantee of this kind are described as "substantial" and so they may be if one considers the figures in absolute terms, although, as a proportion of the total sum, they appear to be less than 1%.
18 Mr Vaughan also deposes that a bank that put funds on deposit by way of security would receive less than the bank would earn on those funds if they were deployed in its own business as a lender (a conclusion which is not surprising) and that the making of such substantial deposits also has the capacity to affect a bank's capacity to conduct business in the ordinary course, by occupying or exhausting existing single concentration limits or credit lines between banks (deposed to in Mr Vaughan's affidavit 3 August 2009 at par 17).
19 It is for those reasons that the appellants contend that the most appropriate suspension order is one which is unconditional. Alternatively, it is submitted that the most appropriate order is one which permits each of the appellants, at its election, to comply with whichever of orders 2.1, 2.2 or 2.3 as proposed are most appropriate to it. Those submissions are reinforced by pointing to evidence which suggests that it is at least possible that French and German banks may be subject to detrimental taxation regimes if required to pay money into court and that so far as some of the Australian banks are concerned, there is a "regulatory issue" regarding the giving of security as proposed by proposed order 2.2.
20 However, the bulk of the appellants' oral submissions concentrated on criticising the investment regime proposed by Mr Woodings. The submissions boiled down to a few relatively simple propositions. Those propositions were that the sum concerned was a very large one; that there were difficulties associated with the prudent investment of a very large sum in a manner which was at once appropriately diversified, adequately liquid, and which would give an adequate rate of return; and that it had not been demonstrated by Mr Woodings that the investment regime which he proposed was inherently either more secure or more likely to give rise to a reasonable return than the courses of either leaving the funds with each of the appellant banks or leaving it to each bank to take, at its discretion, one of the courses set out in proposed order 2.
21 So far as Mr Woodings was concerned, the submissions made on his behalf relied upon, inter alia, the following matters. It was submitted that, however safe banks in general might be, it was recognised that an investment in any group of companies, of a particular type (which would be the practical effect of leaving the money with the banks), would be less diversified and therefore carry more risk than investment in a broader range of assets. Not surprisingly, Mr Woodings pointed to what has become known as the "global financial crisis" and its consequences. There is evidence, pointed to by Mr Woodings, disclosing very significant capital injections into some of the appellants, or the taking of significant equity in some of the appellants, by their respective governments. It was submitted therefore that although the risk of loss of the entirety (or even a very substantial portion) of the judgment sums might be low if a suspension order were made, it was a risk which it was not appropriate to require Mr Woodings, as liquidator of the respondent companies, to take. Further, it was submitted that since the respondents had, after all, been the successful litigants below, Mr Woodings' views as to what was an appropriate investment and as to the relative risks involved should be accorded very substantial weight in the event of a dispute.
22 It appears to me that there is, in the end, not a great deal to choose between the proposals suggested by the appellants and the respondents. There is no course which can be shown to involve a nil risk of loss of some portion of the judgment sum. Both the appellants and the respondents contended for regimes which might reasonably be supposed to offer a very good chance of at least preserving the great majority of the judgment sums. Each side professed concern at risks which it said were inherent in the proposals of the other, so I assume that I should proceed on the basis that both the appellants and the respondents sought, so far as possible, a regime which was risk-free.
23 There was clearly some tension between that concern for a risk-free regime and the other concern expressed by each side, which was that it was desirable to ensure that the return was as high as was reasonably possible. That tension arises because in financial matters, as a general rule, the lower the risk which any course carries, the less the return which is likely to be realised. However, as I understood it, the concern was not some abstract concern that the judgment sum should earn the greatest possible return; rather, it was a concern that whichever party was ultimately successful should receive a rate of interest which adequately compensated it for the return which it might have made had it been able to employ those sums in its own way and for its own purposes. That is a matter which can, if necessary, be dealt with by an appropriate award of interest at the conclusion of the appeal.
24 My conclusions as to the balance of convenience are as follows. I accept the validity of some of the criticisms of Mr Woodings' proposal made by the appellants. I accept that there is, at some points in the correspondence from Mr Boys, General Manager, Institutional Sales and Service Perpetual, which is relied upon by Mr Woodings, a target of an unduly optimistic rate of return, which does not appear to take into account management and other fees, and transaction costs. However, most importantly, I accept that the evidence suggests (as common experience would, in any event, reveal) that whatever the long-term benefits of a proposal of this kind, it may in the short-term be volatile to the extent that if the investments were required to be liquidated on relatively short notice in order to satisfy orders made by the Court of Appeal, there might not be sufficient to meet the amount ordered to be paid.
25 I also accept that, although the liquidator has taken proper and careful steps to ensure that the arrangement he proposes avoids what is described in shorthand in the submission as the "competing priority claims risk", there is a risk that an arrangement of this kind may engender further litigation. This is something the court should do its utmost to avoid in the context of what is already far too complex a piece of litigation.
26 It follows from the above that, in my view, I should make a suspension order in some form, notwithstanding the alternatives proposed by Mr Woodings.
27 So far as the orders proposed by the appellants are concerned, I accept that, although the risk of a very substantial loss may not be high, it is not appropriate to expose the respondents to greater risk than necessary. It is not, in my view, appropriate simply to make a suspension order without conditions. I would not make an order in terms of proposed order 1.
28 So far as proposed order 2.1 is concerned, it gives rise to what was in shorthand described as the "Somerset" point. That is, it is submitted by the respondents that, on one possible view of the reasons in Somerset Marine Inc v New Cap Reinsurance Corporation Ltd (in liq) [2003] NSWCA 338, it could be considered that the preference provisions in the Corporations Act 2001 (Cth) extended to encompass a series of steps involving more than two parties over a period of time. In that case, if one of what the respondents described as the "less strong" appellants procured a bank guarantee, then in the event of the insolvency of that less strong organisation within six months of payment, there could be a risk that the preference provisions would be engaged. Somerset was an interlocutory appeal from a refusal of an application for summary dismissal of proceedings, with the (appropriately) brief references to fact and legal principle such matters normally entail. It is not easy to apply to this case. However, I accept that the respondents' concern is not frivolous, and that if alternative orders are open, they should be preferred. There was not, as I understood it, any significant concern expressed by the respondents in the end with either of alternatives 2.2 or 2.3, although there was some concern about the way in which the requirement for payment was expressed.
29 It appears to me that proposed order 2.2 would effectively remove any risk of loss of capital, at least if the words which are crossed out in the amended application (that is, the reference to the Australian Government Guarantee Scheme for Large Deposits and Wholesale Funding) are reinstated. It may be that, as the appellants' counsel submitted, the financial strength of those banks is such that the guarantee is not required. However, for so long as Australian banks and the Australian Government appear to regard the Guarantee Scheme as being an appropriate response to the current financial climate, it seems to me that the respondents should be entitled to the benefit of it. So far as proposed order 2.3 and the accompanying proposed order 3 are concerned, s 42 of the Public Trustees Act 1941 (WA) provides, ultimately, for recourse to the consolidated account (established by the Constitution Act 1889 (WA) s 64) in the event of a deficiency. Again, that appears to me effectively to remove any risk of shortfall.
30 I would therefore be prepared to make an order pursuant to s 15 of the Act, suspending the operation of orders 5, 6 and 7.2 made by Owen JA on 30 April 2009, until the hearing and determination of the appeal or further order, provided that each of the appellants at its election complies with either of proposed order 2.2 (with the reference to the Guarantee Scheme reinstated), or 2.3 and 3. I propose to leave it to the parties to bring in a minute of orders giving effect to that finding.
31 Finally, I turn to the question of interest. I accept that it is unlikely that funds deposited pursuant to proposed order 2.2 will earn interest sufficient to cover an award of interest at the prescribed rate under the Act. I do not know what is the likely return on any amount invested by the Public Trustee, although, no doubt, there will be fees payable, as the Public Trustees Act provides, in relation to that investment.
32 The appellants submit that I should make an order pursuant to s 8(1)(b) of the Act varying the prescribed rate and, in effect, providing that interest shall accrue from the date of the orders I make at the rate at which interest in fact accrues to any amount paid into a suspension account or any amount invested by the Public Trustee after payment into court.
33 I do not see any good reason, at the present time, for doing so. As a matter of principle, at least a principal aim of post-judgment interest is to compensate the judgment creditor for delay. That is, it is intended by the award of interest, in effect, to put the judgment creditor in the position he or she would have been in had the judgment been paid promptly. The focus of the inquiry, then, in my view, should be the amount of interest which the judgment creditor would have been able to earn, rather than the amount which the funds actually earned in the hands of some person other than the judgment creditor.
34 In the present case, there were a number of predictions made about the rates of return which might be able to be earned by funds invested in particular ways over the period between now and delivery of judgment in the appeal. All parties accepted, in supplementary written submissions made to me after the oral hearing of this application, that the court has power, pursuant to s 8 of the Act, to prescribe, retrospectively, a rate of judgment interest. It seems to me that it would therefore be appropriate for this issue to be considered by the Court of Appeal at a time when the parties will be able to point to evidence demonstrating how the type of investments proposed by the respondents had in fact fared, rather than relying upon predictions. It may be that the court will also, at that time, wish to consider in that context the course taken by the appeal, and to evaluate whether its progress was unduly delayed and, if so, by whom. Whether such consideration would be relevant is a matter upon which I express no view.
35 I decline to make any order in terms of proposed order 4. The parties will be free to re-agitate that issue before the court hearing the appeal.
(2003) 28 WAR 308