Judgment
1 HANDLEY JA: This is an appeal by Youyang Pty Limited, the trustee of the Bill Hayward Discretionary Trust (the plaintiff), and a cross-appeal by Minter Ellison (the firm), from the award by Brownie AJ in favour of the plaintiff of $414,009 equitable compensation for a breach of trust. The plaintiff seeks to have the award increased, and the firm seeks to have it set aside or reduced. The proceedings arose from an investment of $500,000 made by the plaintiff with EC Consolidated Capital Ltd (ECCCL) on 24 September 1993. ECCCL offered investors the opportunity to profit from dealings on international money markets. Investors such as the plaintiff subscribed $500,000 or multiples thereof for redeemable preference shares in ECCCL. The subscription agreement which the plaintiff entered into provided for this sum to be invested in two ways. $256,800 was to be paid to Dresdner Bank AG, or one of its wholly-owned subsidiaries (Dresdner), for a bearer deposit certificate with a face value of $500,000 payable in ten years' time. The certificate was to be held by National Registries Pty Limited until maturity.
2 After payment of some costs and expenses, the balance of $221,558 was payable to ECCCL as the plaintiff 's contribution to its working capital. The plaintiff 's client account with ECCCL was credited with the full amount of $500,000. The plaintiff hoped to derive profits from this investment but if the worst came to the worst it would get back its original investment, without interest, when the bearer certificate of deposit matured. The subscription agreement (4/922) provided for the firm, as solicitors for ECCCL, to receive the plaintiff 's funds in trust to be disbursed in accordance with the agreement (cl 2.1).
3 For some reason which was never explained the firm procured a certificate of deposit from Dresdner which did not comply with the subscription agreement. It was for the appropriate amount, and for the appropriate term, but it was in the name of ECCCL, and was not payable to bearer. The subscription agreement was entered into and completed on the same day when the various payments were made. On 27 September the firm's Melbourne office sent the plaintiff its counterpart of the subscription agreement and the share certificate for its redeemable preference shares. The plaintiff was not informed of the breaches of duty (4/953). On the same day the firm's Melbourne office forwarded the certificate of deposit to National Registries Pty Limited (4/956).
4 The "plaintiff 's" monies remained with Dresdner until September 1994. ECCCL attempted to withdraw the funds deposited with Dresdner pursuant to subscription agreements, but Dresdner would not release them without the formal consent of the investors. The plaintiff gave its formal consent by a deed poll executed on 2 September 1994. This in terms instructed ECCCL to withdraw the funds deposited with Dresdner and deposit them with another prime bank. It also requested and authorised Dresdner to release the funds to ECCCL without being in any way responsible for their application.
5 The deed poll was not executed by ECCCL, and did not bind it to invest the funds in a bearer deposit certificate to be left with National Registries. The plaintiff simply trusted ECCCL with the funds.
6 On 20 September 1994 Dresdner having received the deeds paid the funds to ECCCL. They were invested from time to time with other banks, but on 27 March 1996 ECCCL withdrew them from the NatWest Bank and used them in its business. This was done without the knowledge or approval of the plaintiff or the other investors. On 2 May 1997 ECCCL wrote to the plaintiff, and inferentially its other investors, to inform them that it had suffered substantial losses as a result of an investment in the bonds of the Bangkok Bank of Commerce. On 28 May provisional liquidators were appointed and on 15 June ECCCL was ordered to be wound up. The plaintiff received no dividend in the winding-up and lost the whole of its investment.
7 The plaintiff commenced proceedings against the firm to recover equitable compensation for their breaches of trust. The summons alleged receipt of its $500,000 and its disbursement in breach of trust, by paying for a certificate of deposit which did not comply with the subscription agreement, and by accounting to ECCCL for the rest of the funds. The firm admitted these breaches.
8 It was common ground that the partner handling these transactions knew at the time that the certificates of deposit which the firm obtained did not comply with the subscription agreement.
9 The Judge upheld the claim based on the failure to obtain a certificate of deposit in the required form and awarded $414,009 as equitable compensation. He refused to award compensation for the breach of trust committed in accounting for the rest of the funds to ECCCL. He found that if there had been no breach of trust by paying for and obtaining a certificate of deposit in the wrong form the plaintiff would have had its capital returned to it in 2003 but would have lost the rest of its investment. He rejected the plaintiff 's argument that it was entitled to have the whole trust fund replenished, accepting the submissions on behalf of the firm based on Target Holdings Ltd v Redferns [1996] AC 421, 433-5.
10 The Judge also upheld the plaintiff 's claim in negligence, but found contributory negligence which he assessed at 20%. This did not affect the plaintiff' 's right to equitable compensation. The firm brought a cross-claim against the plaintiff seeking contribution on the basis that its liability to its beneficiaries for breach of trust was co-ordinate with the firm's liability for breach of trust. The Judge held that they were not co-ordinate liabilities to make good the same loss and rejected the claim for contribution. The plaintiff has appealed against the rejection of its claim to recover in full and the firm has cross-appealed against the award of compensation and the rejection of its contribution claim.
11 The Judge held that the plaintiff could recover for the funds paid for the deposit certificate on 24 September 1993, but not for the misapplication of the balance because "if there had been no breach … the plaintiff would have lost the rest of its investment". Mr Martin SC, for the plaintiff, submitted that these findings were inconsistent and the Judge had overlooked the separate breach of trust involved in paying the balance of the funds to ECCCL.
12 The plaintiff executed the deed poll without obtaining independent advice, without making any enquiries, and without attempting to withdraw its investment. Although cl 4.5 of the subscription agreement entitled it to a full refund if the firm failed to comply on completion with the requirements of the subscription agreement, Mr Martin accepted that there was no automatic right to a refund and an election was necessary. The plaintiff made no attempt to "redeem" in this or any other way in 1993, 1994 or 1997 although it was not aware of the facts in 1993 and by 1997 it would have been too late.
13 Mr Hayward, who controlled the plaintiff and made decisions on its behalf, said in his evidence-in-chief that if he had known "at any time" that the deposit certificate was not in bearer form the plaintiff would have sought to redeem its investment. He was challenged on this in cross-examination and the Judge did not accept his evidence. He was not satisfied that the plaintiff would have sought to redeem if Mr Hayward had learned that the certificate of deposit was in the wrong form.
14 Mr Martin submitted that the Judge's adverse findings did not relate to Mr Hayward's state of mind on 24 September 1993, but the cross-examination was not limited to particular dates or periods. The finding cannot be disturbed and Mr Martin's submission that it did not cover Mr Hayward's state of mind on 24 September 1993 must be rejected.
15 This conclusion provides the basis for deciding the question of causation raised by the appeal and cross-appeal. The breaches of trust are admitted, and the whole of the plaintiff 's original investment has in fact been lost. The only matter in dispute is the existence of the required causal connection between the breach and the loss.
16 The principles which govern the assessment of compensation for breaches of trust and other breaches of equitable duty are not in dispute. They are those stated by Lord Browne-Wilkinson in Target Holdings Ltd v Redferns [1996] AC 421, 433-9. This decision has been followed and applied by this Court in Greater Pacific Investments Pty Ltd v Australian National Industries Ltd (1996) 39 NSWLR 143, 153-4; O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262, 272-7; and Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1, 89-93; and by the High Court in Maguire v Makaronis (1997) 188 CLR 449, 469-70. The relevant principles are:
(i) the object of equitable compensation is to restore persons who have suffered loss to the position in which they would have been if there had been no breach of the equitable obligation ( O'Halloran 272C);
(ii) the Court must decide, using hindsight and commonsense, what loss was in fact caused by the breach of equitable duty ( O'Halloran 273C);
(iii) the question is whether the loss would have occurred if there had been no breach ( O'Halloran 275C, 275F);
(iv) the question is whether the loss would have been caused even if the breach had not occurred ( Beach Petroleum , para 434);
(v) if these issues are determined favourably to the beneficiary, it does not matter that the immediate cause of the loss was the dishonesty or breach of duty of a third party, since there is no scope in equity for the common law rules of remoteness and the effect of new intervening acts ( O'Halloran 275 E-G);
(vi) there is a sufficient connection between the loss and the breach when the loss would not have occurred if there had been no breach of duty (O'Halloran 277A).
17 The application of these principles to the objective facts, and the Judge's finding as to Mr Hayward's state of mind, leads to only one conclusion. The acceptance of the wrong form of deposit certificate made no difference to the result. The loss would have occurred anyway, "even if " the right form of deposit certificate had been obtained. The breach of trust committed when paying $221,558 to ECCCL was consequential on the earlier breach and was not an independent breach in its own right. The existence of this consequential breach does not enlarge the plaintiff 's rights against the firm. In any event the Judge's finding as to Mr Hayward's state of mind establishes that if he had been told about the form of certificate that had been issued, he would not have been concerned and would have proceeded with the investment.
18 The acceptance of the deposit certificate in the wrong form did not cause the loss of the invested funds. The funds remained intact and safe until the plaintiff 's deed poll of 2 September 1994 was delivered to Dresdner. The funds were paid to ECCCL and lost not because the deposit certificate was in the wrong form but because the deed poll authorised the payment to ECCCL. Using hindsight and commonsense the breach of trust in paying for and accepting the wrong form of deposit certificate was not a cause of the plaintiff 's ultimate loss.
19 In my judgment therefore the plaintiff 's appeal fails and the firm's cross-appeal from the award of equitable compensation succeeds. This means that the cross-appeal from the dismissal of the firm's cross-claim must fail because there was no liability on which its cross-claim could be based. However the cross-claim would have failed in any event because the liability of the plaintiff to the trust beneficiaries was not of "the same nature and to the same extent" as any liability of the firm to the plaintiff. There was no "common obligation" on the firm and on the plaintiff. See Smith v Cock [1911] AC 317, 326. The authorities were reviewed in Alexander & Ors (trading as Minter Ellison) v Perpetual Trustees WA Ltd & Anor [2001] NSW CA 240 in which judgment was given on 30 July.
20 If the plaintiff had succeeded in recovering from the firm in full, any liability to its trust beneficiaries for breach of trust would have been extinguished. If a new trustee had been appointed, in Court or out of Court, the new trustee, on this supposition, would also have been entitled to recover from the firm. In that event any cross-claim by the firm against the former trustee would also have failed because its liability to restore the trust fund would have been extinguished by the recovery effected by the new trustee. If the plaintiff had been sued by the trust beneficiaries, and compelled to restore the trust fund, its rights against the firm would not have been affected, but it would have no outstanding liability to its beneficiaries on which a claim to contribution could have been based.
21 The plaintiff 's position is analogous to that of a surety for a surety. The liability of a surety for a surety is secondary to that of the guaranteed surety, and one further removed from the liability of the principal debtor. A surety for a surety is entitled to be indemnified by the surety whom he has guaranteed and also by the original principal debtor. He is also entitled to recover contribution from any co-sureties who have co-ordinate liability with the surety he has guaranteed, but is not liable for contribution at the suit of the surety he has guaranteed, or any other co-sureties with the same liability. See "Rowlatt on Principal and Surety", 4th ed, 1982, pp 153-4. As the Privy Council said in Scholefield Ltd v Zyngier [1986] AC 562, 575 "Contribution is founded on the principle that equality is equity, and there is no room for this doctrine unless the surety against whom contribution is claimed has placed himself on the same level of liability as the surety who claims contribution from him".
22 During the closing stages of the hearing, the Court asked counsel for the firm whether there had been any interim payments under the judgment appealed from. The question was not answered immediately, but some days later we were informed that the firm had paid the amount of $414,009 and interest thereon in accordance with orders 1 and 3 made by the trial Judge. Counsel for the firm should have drawn these facts to the Court's attention in their written submissions, or at the latest during the hearing, and relief, by way of restitution, should have been sought. If the Court gives judgment on the appeal, without being made aware of interim payments, the orders it makes will fail to deal with the question of restitution, and the party which made the interim payments will be forced to seek appropriate relief by motion resulting in delay, increased costs, and waste of court time. Compare TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381.
23 The firm, having succeeded on the relevant part of their cross-appeal, are entitled to an order for the repayment of the monies paid to the plaintiff under the orders reversed, together with interest thereon at judgment rates, from the date or dates of payment to the date of these orders.
24 In my opinion the following orders should be made:
(1) Appeal dismissed with costs;
(2) Cross-appeal allowed in part;
(3) Orders 1, 3, 4 and 5 made by Brownie AJ on 16 August 2000 set aside;
(4) In lieu thereof order that there be judgment for the defendants in the proceedings;
(5) Judgment for the firm for the sum of $414,009 and any interest thereon at judgment rates paid by the defendants to the plaintiff under the orders reversed, such sum or sums to bear interest at judgment rates from the date or dates of payment until the date of these orders;
(6) Cross-appeal from the dismissal of the defendants' cross-claim dismissed;
(7) Appellant to pay 70% of the respondents' costs of the appeal and their cross-appeal;
(8) Plaintiff to pay the defendants' costs of the proceedings in the Equity Division and the defendants to pay the plaintiff 's costs of their cross-claim.
25 HODGSON JA: The circumstances of this appeal are set out in the judgment of Handley JA. I agree with Handley JA that the cross-appeal should be allowed, to the extent of setting aside the primary judge's order in favour of the respondent for equitable compensation amounting to $414,009.00. However, in my opinion, the appeal should be allowed, and the appellant should have judgment against the respondents for $221,588.00 plus interest at Supreme Court rates from 24th September 1993.
26 The respondents committed at least two breaches of trust:
(1) payment of $256,800.00 of the appellant's money to Dresdner Bank AG or its subsidiary (Dresdner) without obtaining a bearer deposit certificate with a face value of $500,000.00 payable in ten years' time; and
(2) payment of $221,558.00 to E.C. Consolidated Capital Limited (ECCCL) when such a bearer deposit certificate had not been obtained.
27 In relation to the first of those breaches, what was obtained was a deposit certificate for the appropriate amount and for the appropriate term, but in the name of ECCCL and not payable to bearer. The significance of the difference was this. The bearer certificate stipulated for would in itself have been worth its face value, and upon presentation to Dresdner, Dresdner would have had to meet it. Further, the bearer certificate was to be held for the appellant by National Registries Pty. Limited, which would have been required to act on the instructions of the appellant and not ECCCL. On the other hand, the certificate in the name of ECCCL, not payable to bearer, was not in itself worth anything, but rather was evidence of money held by Dresdner for ECCCL, which ECCCL might be able to obtain from Dresdner without production of the certificate.
28 The breach had this additional significance. ECCCL had been advised by the respondents in May 1993, in connection with earlier similar transactions, that a deposit certificate of the type obtained in this transaction was in breach of ECCCL's agreement in that it was not in bearer form; and yet ECCCL persisted in procuring non-conforming certificates and the respondents persisted in paying over investors' money, without advising investors, including the appellant, of ECCCL's continuing, deliberate, and deliberately concealed breaches of its agreement. These circumstances, if known, would be likely to discourage investors such as the appellant from entrusting large sums of money to ECCCL. This background also makes it clear that the respondents could not have obtained a bearer deposit certificate for the appellant; so that they could have proceeded with the investment consistently with their duty only by obtaining instructions from the appellant to proceed with the investment notwithstanding that the deposit certificate offered did not comply with the agreement.
29 Turning to the question of loss consequent on the first breach, as it happened Dresdner refused to pay over money evidenced by the ECCCL certificate without the consent of the appellant. Accordingly, until that consent was given by means of the appellant's deed poll of 2nd September 1994, the appellant suffered no compensable loss from the first breach of trust. Because of Dresdner's attitude, the appellant's rights in relation to payment from Dresdner have not been shown to be worth any less than they would have been had a bearer certificate been obtained, or indeed to be worth less than the value of the appellant's money paid to Dresdner together with appropriate interest on that money from 24th September 1993.
30 All that changed by reason of the deed poll of 2nd September 1994. As noted by Handley JA, the effect of the deed poll, entered into by the appellant at the request of ECCCL and without the involvement of the respondents, was to entrust the proceeds of the money which had been paid to Dresdner to ECCCL's unfettered control. In my opinion, unless the entry into the deed poll can itself be regarded as a consequence of the respondents' breach of trust or other wrong-doing, the loss of money due to the deed poll cannot, as between the appellant and the respondents, and as a matter of common sense and experience, properly be seen as caused by the respondents' breach of trust.
31 The question of whether entry into the deed poll was itself a consequence of the breach of trust or other wrongdoing does not appear to have been squarely contested at the hearing. It may have been possible for the appellant to show that, had the breach not occurred, the appellant would have learnt of ECCCL's deliberate and persistent and deceptive misconduct in relation to such certificates, as referred to earlier, and would therefore not have entered into the deed poll and entrusted the money to ECCCL's unfettered control.
32 However, that contention does not appear to have been raised by the pleadings or the evidence or submissions. The respondents' defence included an allegation that the appellant's loss was caused by the appellant's own conduct, including entry into the deed poll dated 2nd September 1994. The appellant's reply merely joined issue with this, and did not allege that the entry into the deed poll was itself caused or contributed to by the respondents' conduct. The appellant's evidence relevantly was to the effect that, if it had learnt that the deposit certificate did not correspond with the contractual requirement, the appellant would have sought to redeem its shares in ECCCL. That evidence does not really touch on the point I have raised, and it was not in any event accepted by the primary judge. There do not appear to have been any submissions going to the point as I have formulated it.
33 In those circumstances, in my opinion the primary judge was in error in finding a loss resulting from the first of the breaches that I have identified.
34 Turning to the second breach, the payment of $221,558.00 to ECCCL did not immediately cause loss to the appellant. The money was subsequently lost, albeit by trading of the type actually contemplated by the appellant when it made the investment. However, in my opinion this does not mean that the loss was not a consequence of the breach. But for the respondents' breach, the payment to ECCCL would not have been made at all, and the appellant would have retained $221,558.00 at 24th September 1993. In my opinion, the appellant's loss, albeit through subsequent trading, is, as between the appellant and respondents and as a matter of common sense and experience, properly to be seen as caused by the respondents' breach of trust.
35 The respondents have relied on the primary judge's finding that he was not satisfied that, if the appellant had learnt that the deposit certificate obtained did not correspond with the contractual requirement, the appellant would have sought to redeem its shares. In my opinion, that finding has no bearing whatsoever on the present question. But for the respondents' breach, the investment would not have been made at all, and there would have been no question of redemption of the investment in ECCCL.
36 In his judgment, Handley JA expressed the view that the primary judge's finding as to Mr. Hayward's state of mind establishes that if he had been told about the form of certificate that had been issued, he would not have been concerned and would have proceeded with the investment. I respectfully disagree. There is in my opinion a world of difference between, on the one hand, an investor seeking to reverse an investment that has already been made because of a matter of the form of a certificate considered in isolation and, on the other hand, a proposed investor instructing a trustee to go ahead and make an investment notwithstanding that the party to whom the money is to be entrusted is deliberately breaching its contract by not proffering the security for the investment which it undertook to provide. In my opinion, the primary judge's finding concerning the former matter says nothing about the latter.
37 The $221,558.00 would not have been lost had the respondents not committed a breach of trust, unless the appellant would have instructed the respondents to go ahead with the payment in such circumstances as to make the payment other than a breach of trust. In my opinion, if a trustee wishes to assert that a breach of trust caused no damage for the reason that the beneficiary would, if asked, have authorised the very action which constituted the breach of trust, then there is at least an evidentiary onus on the trustee to make good that proposition. The question of authorisation is only hypothetical because of the trustee's omission to seek authorisation; and it would in my opinion be plainly unjust to require the beneficiary, as part of its case, to investigate a hypothetical question that did not arise in fact precisely because the trustee breached its trust and omitted to seek the beneficiary's authorisation. If the respondents had sought to discharge the onus, this would have required them to say what they would have done in seeking the instruction to proceed; and in my opinion, if the instruction to proceed was to be effectual, that would have at least included informing the appellant that the certificate being offered was not in accordance with ECCCL's obligation under its contract. Such information would, almost inevitably, have drawn further questions from the appellant, which the respondents would have been required to deal with honestly. Thus, this would probably have raised the issues that I referred to before, namely whether the appellant would have been willing to trust ECCCL upon learning of its misconduct in relation to this matter. In relation to this second breach, the failure to explore this issue does not redound to the disadvantage of the appellant.
38 In his judgment, Handley JA also expressed the view that the breach of trust of paying $221,558.00 to ECCCL was consequential on the earlier breach and not an independent breach in its own right; and that the existence of this consequential breach does not enlarge the appellant's rights against the respondents. I respectfully disagree with that view also. I see no reason for not considering the payment of $221,558.00 to ECCCL as a breach of trust having its own consequences, for which the respondents are liable.
39 I need also to comment on two matters raised by Young CJ in Eq. in his judgment.
40 Young CJ in Eq. has suggested that the loss from the respondent's failure to obtain the appropriate bearer certificate, and the loss from the payment of moneys in breach of trust, was the same; and that because the appellant released its right to compensation for the former of those breaches, it cannot obtain compensation for the latter. I respectfully disagree, for the following reasons: