FEDERAL COURT OF AUSTRALIA

Nichol v Discovery Africa Limited [2016] FCAFC 182

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to appeal.

2.    The appeal be allowed.

3.    Paragraphs 1 and 2 of the declarations, and paragraphs 1 and 3 of the orders from the judgment of the Honourable Justice Gilmour in WAD 87 of 2014 given on 23 December 2015 at Perth be set aside.

4.    The respondent’s application dated 7 July 2015 in WAD 87 of 2014 for summary judgment against the applicant be dismissed.

5.    As to costs,

(a)    the applicant file submissions not exceeding 3 pages within 5 days;

(b)    the respondent file submissions not exceeding 3 pages in reply within 5 days;

(c)    final orders be determined by the Full Court on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to appeal.

2.    The appeal be dismissed.

3.    The respondent, following consultation with the applicant, file a minute of proposed orders giving effect to these reasons within 5 days.

4.    If the parties are unable to reach agreement on a minute of proposed orders, the applicant file a minute of proposed orders together with supporting submissions not exceeding two pages within 5 days. The respondent file within 7 days thereafter a minute of proposed orders together with supporting submissions not exceeding two pages in answer to that.

5.    The final orders be determined by the Full Court on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

TWO APPEALS

1    The day before an inevitable change in board control of Discovery Africa Limited ACN 147 324 847, Mr Kevin Nichol and Mr Danie Van Den Bergh received substantial payments from Discovery Africa. They then resigned. Discovery Africa obtained summary judgment against the directors for recovery of those payments. The directors now seek leave to appeal and to appeal from the summary judgment. For the following reasons, such leave is granted. In the case of Mr Van Den Bergh, the appeal is dismissed. In the case of Mr Nichol, the appeal is allowed.

THE STATUTORY SCHEME

2    The primary judge granted summary judgment in favour of Discovery Africa in the exercise of his Honour’s discretion under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Subsection 31A(1) and subs 31A(3) provide as follows:

Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

…

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

…

3    Judgment was given pursuant to specific statutory provisions. Chapter 2D of the Corporations Act 2001 (Cth) deals with officers and employees generally. Part 2D.2 within Ch 2D deals with restrictions on indemnities, insurance and termination payments, and Division 2 of Pt 2D.2 specifically deals with termination payments.

4    The opening provision in this Division is s 200, which provides as follows:

200    Interpreting this Division

For the purposes of this Division, in determining whether a benefit is given:

(a)    give a broad interpretation to benefits being given, even if criminal or civil penalties may be involved; and

(b)    the economic and commercial substance of conduct is to prevail over its legal form.

5    It is apparent that this opening provision is necessary to address the numerous devices that have been adopted over the years under this and preceding legislation. Such devices have been designed to overcome the general requirement that, in specified circumstances of termination, significant payments should not be made to certain company officers without approval being first obtained from the members of the company.

6    In Mr Van Den Bergh’s argument, he challenges whether the Division applies to him. He refers to and relies upon s 200AA which provides:

Meaning of managerial or executive office

If the company is a disclosing entity

(1)    For a company to which section 300A applies for the previous financial year for the company, a person holds a managerial or executive office in the company during the current financial year if the person’s details were included in the directors’ report for that previous financial year for the company in accordance with paragraph 300A(1)(c).

Note:    A person holding a managerial or executive office ceases to do so if the person’s details are not included in the next directors’ report. However, this is not relevant to whether the person has retired from an office or position in the company (see paragraph 200A(1)(f)).

(2)    The person is taken to hold the managerial or executive office for the whole of the current financial year unless and until the person retires from an office or position in the company before the end of that year.

Note:    Retires has an extended meaning (see section 200A).

Otherwise

(3)    For a body corporate not covered by subsection (1), a managerial or executive office for the body corporate is:

(a)    an office of director of the body corporate; or

(b)    any other office or position in connection with the management of the body corporate’s affairs that is held by a person who also holds an office of director of the body corporate or a related body corporate.

7    As will be seen, an argument raised in Mr Van Den Bergh’s appeal is that because s 200AA(1) is prescriptive, the absence of a person’s details in a relevant report means that the person cannot satisfy the definition of “managerial or executive office”.

8    Section 200A provides :

When benefit given in connection with retirement from an office or position

General rules

(1)    For the purposes of this Division:

(a)    a benefit is given in connection with a person’s retirement from an office or position if the benefit is given:

(i)    by way of compensation for, or otherwise in connection with, the loss by the person of the office or position; or

(ii)    in connection with the person’s retirement from the office or position; and

(b)    giving a benefit includes:

(i)    if the benefit is a payment—making the payment; and

(ii)    if the benefit is an interest in property—transferring the interest; and

(c)    a person gives a benefit even if the person is obliged to give the benefit under a contract; and

(d)    a pension or lump sum is paid or payable in connection with the person’s retirement from an office or position if the pension or lump sum is paid or payable:

(i)    by way of compensation for, or otherwise in connection with, the loss by the person of the office or position; or

(ii)    in connection with the person’s retirement from the office or position; and

(e)    retirement from an office or position includes:

(i)    loss of the office or position; and

(ii)    resignation from the office or position; and

(iii)    death of a person at a time when they hold the office or position; and

(f)    when working out whether a person has retired from an office or position, disregard whether or not the person’s details are included in a directors’ report in accordance with paragraph 300A(1)(c).

9    It is clear from s 200A(1)(c) that the existence of a contractual obligation does not affect the question of whether or not a benefit is given. A benefit, in turn, is very widely described (s 200AB).

10    The main machinery provision is s 200B, which provides that a company or an associate of the company must not give a person a benefit in connection with a person’s retirement from an office or position when it is a managerial or executive office or the retiree has at any time during the last three years before the retirement held such an office in the company or a related body corporate, unless there is first member approval under s 200E for the giving of the benefit. This is a strict liability offence under s 200B(1A).

11    Section 200E prescribes the manner in which members must give approval. It does not fall for consideration on these appeals as it is accepted that no approval was sought or obtained.

12    Section 200F is of importance as it stipulates which benefits will be exempt. (Section 200G does exclude from application certain benefits, such as pensions and lump sum payments in accordance with a specified formula. It is unnecessary to consider s 200G, which has no application in these appeals.)

13    Section 200F(1) is directed to a benefit in respect of leave of absence under an industrial instrument, or a benefit given under a court order, or a benefit given in prescribed circumstances. Subsection (2), relevantly to these appeals, prescribes that s 200B(1) does not apply to benefit given in connection with a person’s retirement from an office or position in relation to a company if:

(a)    the benefit is:

…

(ii)    given to the person under an agreement made between the company and the person before the person became the holder of the office or position as the consideration, or part of the consideration, for the person agreeing to hold the office or position; and

(b)    the value of the benefit, when added to the value of all other benefits (if any) already given in connection with the person’s retirement from offices or positions in the company and related bodies corporate, does not exceed the amount worked out under whichever of subsections (3) and (4) is applicable.

(Emphasis added)

14    Those subsections then set out various formulae. There is a debate in Mr Nichol’s appeal as to whether the exemption under s 200F(2)(a)(ii) has application at all and then a further debate as to the computation of the value of the benefit. It is common ground that if (b) does apply, the relevant formula is that in subs (4).

15    Section 200H specifically provides that s 200B(1) does not apply to a benefit given by a person if a failure to give the benefit would constitute a contravention of a law enforced in Australia or elsewhere (otherwise than because of breach of contract or breach of trust). Consideration of this provision briefly arises in Mr Nichol’s appeal.

16    A key provision in the Division is s 200J which provides as follows:

Benefits to be held on trust and repaid

(1)    If an entity (the giver) contravenes section 200B by giving a benefit to a person (the recipient), then the amount of the benefit, or the money value of the benefit if it is not a payment:

(a)    is taken to be received by the recipient on trust for the giver; and

(b)    must be immediately repaid by the recipient to the giver.

(1A)    An amount repayable under subsection (1) to the giver:

(a)    is a debt due to the giver; and

(b)    may be recovered by the giver in a court of competent jurisdiction.

(2)    Subsection (1) applies to the whole of the amount of a payment or of the money value of the benefit even though giving the benefit would not have contravened section 200B if that amount or value of the benefit had been less.

17    Of those provisions and the Division generally, Perry J, in her Honour’s examination of the statutory framework in Queensland Mining Corporation Ltd v Renshaw (2014) 229 FCR 13, said (at [14]-[16]):

14    The seriousness with which the Parliament views such breaches is apparent from the fact that a breach of s 200B(1) constitutes an offence of strict liability: s 200B(1A) of the Act.

15    The term “benefit” and the circumstances in which “a benefit is given in connection with a person's retirement” are broadly defined in ss 200AB and 200A respectively of the Act, while s 200 requires that a broad interpretation be adopted of when a benefit is given, affording priority to substance over form. The Corporations Regulations 2001 (Cth) also specify that certain things are, and are not, benefits pursuant to s 200AB(1)(e) and (2) of the Act respectively, and when a benefit is given in connection with a person's retirement pursuant to s 200A(1A). Those things which are specified in the Corporations Regulations as not constituting a benefit for the purposes of the Division include, relevantly, a genuine superannuation contribution paid by an employer or employee: see reg 2D.2.02(2)(c) of the Corporations Regulations made pursuant to s 200AB(2)). The Act also provides that certain benefits and benefits given in certain circumstances are exempt from s 200B(1), namely,

(a)    a payment for leave of absence to which a person is entitled under an industrial instrument (s 200F(1)(a));

(b)    a benefit given under an order of a court (s 200F(1)(aa));

(c)    a genuine payment by way of damages for breach of contract or for past services where the value of the benefit is less than the person's average annual base salary (ss 200F(2) and 200G respectively);

(d)    a benefit given in prescribed circumstances (s 200F(1)(b)); or

(e)    a benefit given where the failure to do so would contravene a law in force in Australia (otherwise than because of breach of contract or trust) (s 200H).

16    In effect, the statutory scheme can be summarised as casting a broad net so as to ensure that all payments or other things given in connection with retirement are caught by the statutory requirement for shareholder approval save where the Act or regulations creates an exemption.

18    Later in the same case her Honour said:

71    The phrase “in connection with” was considered generally by the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. In their joint reasons, Black CJ, Kiefel, Sundberg, Katz and Hely JJ explained that:

“28.    The case law on the phrase ‘in connection with’ indicates that it is an expression of wide connotation that merely requires a relation between one thing and another: for example, Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. But in Burswood at 146 the Full Court quoted with approval a statement made by Davies J as follows:

‘Expressions such as “relating to”, “in relation to”, “in connection with” and “in respect of” are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute … The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.

29.    The phrase ‘in connection with’ does not necessarily require a causal relationship between the matters said to be connected: Perrett, and phrases such as ‘having to do with’ are sometimes referred to as a useful synonym: Re Nanaimo Community Hotel Ltd v British Columbia [1944] 4 DLR 638. But so too are phrases such as ‘in the course of’, or ‘forming part of’: Dawson v Hoffman Brick & Potteries Ltd [1924] VLR 208. As the Full Court emphasised in Burswood at 146 reference to reported cases is of little assistance, because the nature of the relationship between one thing and another which is encompassed by the phrase ‘in connection with’ depends so much upon the statutory context in which the words appear.”

72    That decision, in turn, was considered by Besanko J in White v Norman (2012) 199 FCR 488 (White) in construing the phrase “in connection with” in the context of s 200B of the Act as in force immediately before the 2009 amendments: White at [10]. In White, the plaintiff sought to enforce a contractual provision under a contract entitling him to amounts based on his remuneration where his employment was terminated without notice. The defendant receivers and managers of his prior employer resisted the claim on the basis, relevantly, that payment of the remuneration benefits was prohibited by s 200B(1) of the Act. One of the issues raised concerned whether those benefits were sufficiently connected with the plaintiff's loss of office to fall within s 200B(1), given that the obligation to pay the benefits derived from the fact that the employer chose to terminate the office under the contract without notice, rather than choosing to terminate the office in accordance with the requisite period of notice.

73    Besanko J saw no reason for reading down the width of the words “in connection with” in the context of s 200B and held in line with Singh that they did not require a direct causal connection. Specifically, his Honour held at [67] that:

“I do not think that there is any doubt that the termination of the plaintiff's employment was a loss of his office of chief executive officer and therefore his retirement from that office (s 200A(1)(e)). The direct cause of the engaging of the contractual obligation to make the NDR [Non-Discretionary Remuneration] and DR [Discretionary Remuneration] payments was the decision to proceed that way rather than by way of a notice of termination. In a sense, the NDR and DR payments are not directly linked to the loss of office per se, but to the mechanism adopted to bring about the termination. But, as the authorities show, the words ‘in connection with’ are words of wide import and there is no need for a direct link. On the face of it, the NDR and DR payments follow from the plaintiff's loss of office, albeit, one must add, the circumstances in which that came about. Is there reason, having regard to the subject matter and purpose of the provisions, to read down the phrase, ‘in connection with’? I am not able to identify any such reason. In fact, the breadth of the exceptions in s 200F, particularly that in s 200F(2)(a)(ii), suggest the broad interpretation is the correct one.”

(Emphasis added.)

74    In my opinion, there is nothing in the 2009 amendments that suggests that the Parliament intended that a narrower construction of the words “in connection with” be adopted. To the contrary, the amendments are consistent with those words being interpreted broadly in the manner suggested given, in particular, the insertion of s 200 requiring that a broad interpretation be adopted in determining whether a benefit is given and requiring that the substance of conduct is to prevail over its form and the insertion of s 200A which makes it clear that a person gives a benefit even if obliged by contract to do so.

19    Her Honour’s decision was upheld on appeal in Renshaw v Queensland Mining Corporation Ltd (2014) 229 FCR 56. In Renshaw v Queensland Mining the Full Court (Rares, Griffiths and Gleeson JJ) said (at [34]-[35]):

34    The appellants' contention that cl 2.3 of the Settlement Deed recognised that QMCL's obligation to pay the termination benefit was separate from its obligation to pay the termination sum under cl 2.1 does not avail them. That is because the Settlement Deed made the payment and corresponding receipt of the termination sum, conditional upon the signing of the Deed, the occasion of both QMCL terminating the November 2011 Agreement and Mr Renshaw resigning as its managing director. The commercial substance of the conduct that occurred in the signing of the Deed, the payments and receipts of the termination sum and Mr Renshaw's contemporaneous resignation, as provided in cll 1 and 2 of the Deed, established a sufficient connection between all those events. Those circumstances resulted in QMCL giving the appellants a benefit, being the payment of the termination sum in connection with Mr Renshaw's loss of or retirement from his office or position as QMCL's managing director, within the meaning of s 200A(1)(a).

35    The primary judge was correct to conclude that the termination sum was given in connection with Mr Renshaw's retirement from the office of managing director.

BACKGROUND

20    The imminent boardroom spill came about as a result of an announcement by Discovery Africa in July 2013 of a friendly off-market takeover of Argosy Minerals Limited. The bid for Argosy Minerals closed on 12 December 2013 and Discovery Africa acquired nearly 90% of Argosy Minerals’ shares. Shortly after, on 13 February 2014, Mr Peter Lloyd requisitioned a shareholders meeting of Discovery Africa seeking resolutions to remove Mr Van Den Bergh, Mr Nichol and another director who has not participated in these appeals.

21    On 6 March 2014, Discovery Africa provided shareholders with a notice of meeting with respect to the requisitioned shareholders meeting. In separate proceedings, issued on 21 March 2014, Discovery Africa sought to restrain the holding of the meeting. Mr Van Den Bergh and Mr Nichol were then still directors of Discovery Africa. That application was dismissed by Gordon J in Discovery Africa Limited v Sunbreaker Holdings Pty Ltd (2014) 98 ACSR 328. Mr Van Den Bergh, Mr Nichol and another resigned as directors of Discovery Africa shortly thereafter, on 9 April 2014. On 10 April 2014, they were replaced by three new directors.

22    The facts pertaining to the payment and the circumstances of the payment were not in dispute. Mr Van Den Bergh was directly employed by Discovery Africa pursuant to the Van Den Bergh Employment Agreement, dated 22 November 2013. That Agreement was entered into between Mr Van Den Bergh and Discovery Africa, which was then known as Baru Resources Limited. Mr Van Den Bergh was then the Executive Chairman of Discovery Africa. He also provided consultancy services to the company through the Sindise Mining Consultancy Agreement. Sindise Mining was also a company which Mr Van Den Bergh controlled.

23    On 8 April 2014, the Board of Discovery Africa, with Mr Van Den Bergh not voting, resolved that, subject to receiving a resignation letter and an executed deed of release from Mr Van Den Bergh (Van Den Bergh Deed of Release), Discovery Africa would make a payment of $185,338.50 to Mr Van Den Bergh. The following day, 9 April 2014, the board resolved to approve the execution of the Van Den Bergh Deed of Release. The Van Den Bergh Deed of Release provided that Discovery Africa would terminate the Sindise Mining Consultancy Agreement and the Van Den Bergh Employment Agreement. Mr Van Den Bergh would resign as a director and would be paid a termination payment of $185,338.50. This was money due under the provisions of both the Sindise Mining Consultancy Agreement and the Van Den Bergh Employment Agreement. Significantly, Mr Van Den Bergh’s resignation letter stipulated that he was resigning as a director of Discovery Africa as a result of his inevitable removal at the meeting of 10 April 2014.

24    Mr Nichol had been a director of Discovery Africa from 23 November 2010 to 9 April 2014, and from in or about March 2011 was an executive director of Discovery Africa. Baru Resources Pte Ltd, also known as Baru Singapore, was a wholly owned subsidiary of Discovery Africa, incorporated in Singapore. Mr Nichol was a director of that company. In or about November 2012, Mr Nichol was appointed as Managing Director of Discovery Africa. It was a condition of his appointment to that office that Baru Singapore enter into a consultancy agreement with Discovery Africa (then known as Baru Resources). The resulting Baru Consultancy Agreement was executed on 22 January 2013. On the same date, Mr Nichol also entered into an employment agreement with Baru Singapore (Nichol Employment Agreement). Under the terms of the Baru Consultancy Agreement, Baru Singapore was to perform the services specified in Item 3 of the Schedule, and any other services the parties agreed to from time to time in writing, through Mr Nichol as the representative under that agreement.

FIRST INSTANCE JUDGMENT

25    The primary judge noted that Mr Van Den Bergh was paid $185,338.50 by Discovery Africa on 9 April 2014. On the same day, Mr Nichol was paid $274,005.78. They then resigned from their offices with the company.

26    Discovery Africa contended (and still maintains) that the payments were made in contravention of s 200B(1) of the Act because the payments constituted benefits in connection with their respective retirements from managerial or executive office where no member approval under s 200E for the giving of the benefits was obtained. The payments were made swiftly in light of an imminent boardroom spill. That is not to say that the payments were not otherwise due, but the question at first instance and in these applications is whether summary judgment should be given in circumstances where there was a failure to obtain member approval for the payments.

27    As the primary judge noted, by cl 12.2, except where the Baru Consultancy Agreement was terminated due to cl 12.3, on termination by Discovery Africa:

(a)    Discovery Africa had to pay to Baru Singapore an amount equivalent to 12 months’ services fees; and

(b)    Baru Singapore had to cause the resignation of Mr Nichol from the Board of Discovery Africa unless agreed otherwise in writing between Discovery Africa, Baru Singapore and Mr Nichol.

28    Further, by cl 7.3(c), upon termination of the Baru Consultancy Agreement, Discovery Africa was obliged to pay Baru Singapore a pro-rata amount for unclaimed “Break Days” (as defined in the agreement). By cl 5.3 of the Baru Consultancy Agreement, Baru Singapore was liable to Mr Nichol for any employee entitlements in relation to the provision of the services under the agreement and indemnified Discovery Africa in respect of those entitlements. By cl 2.2 and cl 7.1 of the Nichol Employment Agreement, the Agreement could be terminated by either party giving one month’s notice, and if Baru Singapore terminated the agreement it could pay Mr Nichol salary in lieu of notice. By cl 7.5, if the Nichol Employment Agreement was terminated because the Baru Consultancy Agreement was terminated and Baru Singapore was entitled to be paid and was paid an amount equal to 12 months’ service fees payable under that agreement, Baru Singapore was obliged to pay Mr Nichol an amount equivalent to 12 months’ salary.

29    In short, termination of the Baru Consultancy Agreement would have triggered Discovery Africa’s obligations to make certain payments to Baru Singapore and for Baru Singapore to cause Mr Nichol’s resignation. Termination of the Nichol Employment Agreement would have triggered Baru Singapore’s obligations to make certain payments to Mr Nichol.

30    On 8 April 2014, the directors of Discovery Africa, with Mr Nichol not voting, resolved that, subject to receiving a signed resignation letter from Mr Nichol, he be paid amounts in line with the draft deed of release tabled at the meeting. It was also noted that the draft deed of release, subject to final review, would be executed by Discovery Africa.

31    On the following day, the board, again without Mr Nichol voting, resolved to execute a deed of release between Discovery Africa, Baru Singapore and Mr Nichol. The Nichol Deed of Release was executed during the course of that directors’ meeting.

32    The primary judge noted that the key terms of the Nichol Deed of Release were as follows (at [24(a)-(g)]):

(a)    Discovery Africa terminated the Baru Consultancy Agreement with immediate effect (cl 4.1(a));

(b)    Baru Singapore terminated the Nichol Employment Agreement with immediate effect (cl 4.1(b));

(c)    Baru Singapore directed Discovery Africa to pay to Nichol the Termination Payment (as defined) in discharge of Discovery Africa’s obligations under the Baru Consultancy Agreement and, thereby, Baru Singapore discharged its obligations under the Nichol Employment Agreement (cl 4.2).

(d)    The Termination Payment was defined to mean the payment to Nichol by or on behalf of Baru Singapore on, in effect, termination of the Nichol Employment Agreement as set out in the Schedule (cl 1.1).

(e)    The Schedule set out the Termination Payment as the amount of $274,005.78 comprised of:

(i)    $198,814.00 for termination;

(ii)    $56,858.45 for leave entitlements; and

(iii)    $18,333.33 in lieu of notice;

(f)    Discovery Africa and Baru Singapore represented and warranted to Nichol, amongst other things, that:

(i)    they had capacity unconditionally to sign and deliver and comply with its obligations under the Nichol Deed of Release (cl 8.1(b));

(ii)    they had taken all necessary action to authorise the unconditional signing and delivery of and compliance with its obligations under the Nichol Deed of Release (cl 8.1(c));

(iii)    the Nichol Deed of Release was enforceable against Discovery Africa in accordance with its terms and was not void or voidable (cl 8.1 (d));

(iv)    any information that it had given to Nichol in connection with the Nichol Deed of Release was true and accurate in all material respects and not misleading in any material respect (including by omission) as at the date of the document (cl 8.1(g));

(v)    the Termination Payment correctly reflected the amount for which Baru Singapore was liable to pay Nichol under the Nichol Employment Agreement, including the amount payable under cl 7.5 of that agreement (cl 4.2 of the Nichol Deed of Release);

(g)    Discovery Africa and Baru Singapore acknowledged that Nichol had entered into the Nichol Deed of Release in reliance upon the representations and warranties made by Discovery Africa and Baru Singapore in clause 8.

33    On 9 April 2014, after execution of the Nichol Deed of Release, Mr Nichol provided his letter of resignation, thereby retiring from his office and/or position of employment with Discovery Africa and its wholly owned subsidiary, Baru Singapore. Pursuant to cl 4.2 of the Nichol Deed of Release, Discovery Africa transferred to him $274,005.78. By that resignation letter, Mr Nichol noted that he was receiving the payment as “a termination benefit and [by reason of] loss of office.”

34    After discussing the principles pertaining to summary judgment and the relevant statutory framework, which we have set out above and will consider further below, the primary judge went on to examine the matters which Discovery Africa was required to prove in order to establish that neither Mr Van Den Bergh, nor Mr Nichol, had any reasonable prospects of defending the claim that the payments made to each of them were in contravention of s 200B(1) of the Act. His Honour noted (at [36(a)-(g)]) that Discovery Africa was required to establish the following matters:

(a)    Discovery Africa is an “entity" within the meaning of s 200B(1AA);

(b)    Discovery Africa gave a “benefit” within the meaning of s 200AB(1);

(c)    the benefit must have been “in connection with a person's retirement from an office, or position of employment”;

(d)    the “retirement” must have been from Discovery Africa itself or a related body corporate;

(e)    the “retirement” must be in respect of an office or position which is “managerial or executive office” within the meaning of ss 200AA and 200A(1)(f);

(f)    the “benefit” was not approved by members of Discovery Africa under s 200E; and

(g)    the “benefit” was not exempt, relevantly, pursuant to s 200F(2)(a)(ii) in that:

(i)    it was not given to the person under an agreement made between the company and the person before the person became the holder of the office or position as a consideration, or part of the consideration, for the person agreeing to hold the office or position; and

(ii)    the value of the “benefit” exceeds the prescribed minimum calculated under either subs 200F(3) or subs 200F(4), whichever is applicable.

35    It was accepted by Mr Nichol that Discovery Africa was an “entity” and that by his resignation as a director he retired from a “managerial or executive office” for the purposes of s 200B(1), but the balance of the matters were put in issue at first instance. Mr Nichol submitted that he had an arguable defence to the claim by reason of estoppel and cross-claimed for damages based on contraventions by Discovery Africa of s 18 of the Australian Consumer Law (ACL) (Competition and Consumer Act 2010 (Cth), Sch 2) (ACL Claims) and/or breaches of warranties and other terms of the Nichol Deed of Release.

36    Mr Van Den Bergh argued that the Van Den Bergh Deed of Release could be pleaded as a bar to the claim against him; secondly, Discovery Africa had not established that he held a managerial or executive office; and, thirdly, that the termination payment made to him was not made “in connection with” his retirement from Discovery Africa.

37    The primary judge referred to the meaning of “benefit” under the Act, which expressly includes a payment. However, Mr Nichol submitted that the economic and commercial substance of the parties’ conduct was that Discovery Africa paid Baru Singapore the termination payment and Baru Singapore paid Mr Nichol the termination payment. Put another way, Baru Singapore gave Mr Nichol the benefit of Discovery Africa’s obligation to Baru Singapore in discharge of Baru Singapore’s obligations to Mr Nichol. On that basis, he contended, it was Baru Singapore, not Discovery Africa, which gave him the benefit for the purposes of s 200B(1). He further contended that the transfer did not “flow from” his resignation as a director of Discovery Africa, but rather from the termination of the Nichol Employment Agreement.

38    Mr Nichol also argued that even if Baru Singapore may have a claim against him, Discovery Africa did not have such a claim against him.

39    The primary judge rejected these arguments, referring to s 200 of the Act which emphasised that in determining whether a benefit was given there was to be a broad interpretation to benefits being given, even if criminal or civil penalties may be involved, and, secondly, the economic and commercial substance of the conduct was to prevail over its legal form.

40    His Honour said (at [49]) that the legal form and the contractual route by which the moneys travelled was subsidiary to the “economic and commercial substance of the conduct”. That substance reflected benefits given to Mr Nichol by Discovery Africa. His Honour also noted that the objective of the provisions is to protect shareholders and creditors from unapproved golden handshakes. “That these provisions could be avoided by interposing other entities and a chain of interwoven agreements would be antithetical to those objectives.”

41    The primary judge then considered the submission for Mr Nichol that, upon a detailed analysis of the contractual relationships and the respective obligations of Mr Nichol, Baru Singapore and Discovery Africa, none of the payments were made to him “in connection with” his retirement as Managing Director of Discovery Africa. Mr Nichol contended that the proper characterisation of the transferred sum after the execution of the Nichol Deed of Release is that it was a “payment” made by Baru Singapore to him in discharge of Baru Singapore’s obligations to him for termination of the Nichol Employment Agreement without notice. He submitted that Discovery Africa transferred the sum to him in consideration for Discovery Africa’s obligations to pay Baru Singapore that amount upon termination of the Baru Consultancy Agreement and that Discovery Africa gave Baru Singapore that “valuable consideration” in connection with the termination of the Baru Consultancy Agreement; it was not consideration given in connection with Mr Nichol’s resignation. His Honour concluded (at [61]) that Mr Nichol’s submissions put form above the substance of what occurred, which was that the payment to him was, within the broad meaning of the phrase, one made “in connection with” his retirement as Managing Director.

42    Mr Van Den Bergh focussed on a more succinct argument. (That succinct argument is repeated before the Full Court.) For similar reasons the primary judge rejected arguments advanced by Mr Van Den Bergh as to the effect of the interposition of a different corporate entity, noting that the submissions raised on behalf of Mr Nichol and Mr Van Den Bergh simply echoed arguments rejected at first instance and by the Full Court in Renshaw v Queensland Mining.

43    Mr Van Den Bergh argued that Discovery Africa could not establish that he held a managerial or executive office with Discovery Africa. He relied upon s 200AA(1) of the Act which provides that for a company to which s 300A applies for the previous financial year, “a person holds a managerial or executive office in the company during the current financial year if the person’s details were included in the directors’ report for that previous financial year for the company”. He was not referred to in the report for the financial year prior as he occupied the office in that year only between November 2013 and April 2014. His contention was that, at least arguably, that point was determinative of the question. Particularly so when regard was had to the fact that s 200AA(3), which showed a distinction, it was submitted, between a public listed company and a “non-public listed company” (which the primary judge took to be a reference to an unlisted public company) and different definitions of when a person would be said to have held a “managerial or executive office” in the company in the case of the latter.

44    The primary judge rejected this argument, saying (at [81]-[85]):

81    [Mr Van Den Bergh’s] construction of the provision would lead to the absurd result that someone who held a managerial or executive office would not be regarded as holding such office during their first year in the position and until such time as their details were included in the Director’s report for that year.

82    I do not accept that s 200AA(1) is determinative of the question. The question is one of fact. I do not regard s 200AA(1) as an exhaustive and exclusive provision for establishing whether a person in a publicly listed company holds a managerial or executive office. It is but one means of establishing the fact.

83    As Discovery Africa submits, ss 200B and 200J are intended to apply to officers who hold their position within a company for only part of a year. Section 200F, as outlined below, exempts benefits from s 200B where, under certain conditions, the value of the benefit does not exceed amounts calculated under the relevant formulae. These formulae expressly contemplate periods of holding office of less than one year: s 200F(3). This is also supported by reg 2D.2.01 of the Corporations Regulations 2001 (Cth), which contemplates a period of office of less than one year for the purposes of calculating a person’s base salary for the purposes of the Act.

84    The Van Den Bergh Employment Agreement expressly provided that Van Den Bergh would perform the duties and responsibilities of the Executive Chairman of Discovery Africa and would, subject to the direction of the Board of Discovery Africa, have day to day control of the responsibility for managing Discovery Africa’s affairs (cl 6(a)). Van Den Bergh, for obvious reasons, does not argue that his role was not of a managerial or executive function.

85    I am satisfied that at the time of his retirement Van Den Bergh held a managerial or executive office with Discovery Africa, for the purposes of s 200B.

45    The primary judge also rejected an argument for Mr Nichol that the termination payments were exempt under s 200F(2). The primary judge reasoned that no exemption was available, his Honour noting (at [90]-[93]):

90    Neither the submissions by Nichol or Discovery Africa are persuasive. Section 200F(2)(a)(ii), in this case, contemplates that the benefit given to Nichol was under an agreement made between Discovery Africa and Nichol before he became Managing Director in 2012 as consideration, or part consideration, for his agreeing to hold that office.

91    There is no such agreement. Nichol was not employed by Discovery Africa. He was employed by Baru Singapore under a written employment agreement dated 22 January 2013. His entitlement to receive payments was as an employee of Baru Singapore under cl 7.5 of his employment agreement. His entitlement was to receive an amount equivalent to 12 months’ salary. The entitlement was conditioned by two prior events: the termination by Discovery Africa of the Baru Consultancy Agreement and the payment by Discovery Africa to Baru Singapore of an amount equal to 12 months’ service fees.

92    Discovery Africa assumed no obligation to pay Nichol any monies, whether as Director fees or salary.

93    Accordingly, no exemption arises under s 200F(2)(a)(ii) in respect of the benefit given to Nichol.

46    Mr Nichol relied upon s 200H (and s 200AB(2) and r 2D.2.02(2)(d) of the Corporations Regulations 2001 (Cth)) to argue that the termination payment to him included amounts by way of leave and payments in lieu of notice entitlements that did not constitute a “benefit” for the purpose of s 200B(1). The primary judge held that Mr Nichol’s submissions in this respect failed at the outset, as he was never an employee of Discovery Africa and it had no obligations to pay Mr Nichol payments in lieu of notice or untaken annual leave. The primary judge’s construction of ss 200H and 200AB and r 2D.2.02(2)(d) of the Regulations falls for consideration on Mr Nichol’s appeal.

47    The primary judge noted (at [117]) that, by reason of his conclusion that s 200F(2)(a)(ii) of the Act was not engaged, it was unnecessary to consider whether the payment made to Mr Nichol exceeded the relevant threshold.

48    There was consideration and rejection of an argument Mr Nichol also pursues on appeal to the effect that the correspondence with Discovery Africa’s solicitors before the 8 and 9 April 2014 directors’ meetings and the terms of the Nichol Deed of Release drafted by those solicitors was to represent to him for and on behalf of Discovery Africa that he was lawfully entitled to receive $274,005.78 upon Discovery Africa terminating the Baru Consultancy Agreement and Baru Singapore terminating the Nichol Employment Contract. Mr Nichol also argued that he relied upon those representations and entered into the Nichol Deed of Release and resigned as a director of both companies in reliance on such. If he is in fact not lawfully entitled to all or part of the sum, he says the representation made would be false, misleading or deceptive or likely to mislead or deceive. It would also be a breach of warranties.

49    Mr Nichol claimed an entitlement to a set-off in respect of any liability by virtue of the cross-claim in damages that he would have against Discovery Africa.

50    This argument was also rejected by the primary judge (at [133]-[141]) who noted that the receipt of a benefit in contravention of s 200B(1) is a strict liability offence: s 200D(2). Such a recipient is taken to hold the payments received on trust for the giver: s 200J(1)(a). Thus, Mr Nichol holds the payments made to him on trust for Discovery Africa. Moreover, the recipient must “immediately” repay the amount of the benefit to the giver. The amount is a statutory debt due to the giver and may be recovered in a court of competent jurisdiction. These provisions collectively underscore, his Honour said, the policy objective of the legislature to protect members of companies from unapproved benefits being given to officers of companies in connection with their retirement. The creation of contraventions as strict liability offences and the statutory requirement that the benefit be held on trust and be immediately repayable are telling: see also Commonwealth ‘Parliamentary Debates’, House of Representatives, 24 June 2009, 6969-6970 (The Hon. Chris Bowen MP).

51    The primary judge held that Mr Nichol had no arguable basis to be able to set-off claims for damages against a statutory obligation upon him to repay immediately the monies which are taken to be held by him on trust for Discovery Africa. His Honour said the statutory obligation to repay immediately the monies taken to be held on trust by him implicitly excludes any equitable set-off upon the statutory debt: see e.g. James v Commonwealth Bank of Australia (1992) 37 FCR 445 (at 459). His Honour said that Mr Nichol's argument that Discovery Africa was contractually required to put the benefit to members in the general meeting for approval in order to give Mr Nichol the benefit of the Nichol Deed of Release, was rejected at first instance in Renshaw (at [178(b)-(c)] and [179]-[182]).

52    As to estoppel, the primary judge said (at [140]) that Mr Nichol's assertions of entitlements to an estoppel, whether by convention or representation, also fail. His Honour noted that in Renshaw at first instance that Perry J (at [168]) said:

[I]t is clear from the language and purpose of Div 2 of Part 2D.2 of the Act that no estoppel could be raised against the express prohibition on the payment of benefits without shareholder approval and the obligation to repay such moneys enforceable by the giver. In so providing, Div 2 is not concerned merely with the interests of the giver and the recipient, but with protecting the interests of the public generally and of shareholders as a section of the public against excessive termination payments or “golden handshakes” as they are colloquially known. The public nature of that concern is reinforced, among other things, by the fact that a breach of s 200B is a criminal offence. In short, as QMCL submitted, if correct, the Renshaw defendants' construction "would mean that Division 2 of Part 2D.2 is a dead letter: the requirement for shareholder approval of termination benefits could be bypassed by agreement between the company and executive. That would be an extraordinary result, and would permit companies and executives to do with impugnity the very thing the provisions in Division 2 are designed to prevent." There is nothing that the Renshaw defendants pointed to in the decision of the High Court in Commonwealth v Verwayen (1990) 170 CLR 394 that detracts from these principles.

53    There was also a claim by Mr Van Den Bergh, not pursued on appeal, that the claim against him was statute barred. That argument was also rejected. Summary judgment was awarded in favour of Discovery Africa in respect of both the payment to Mr Nichol and the payment to Mr Van Den Bergh.

MR VAN DEN BERGH’S APPEAL

Appeal grounds

54    The sole issue raised for Mr Van Den Bergh is whether he held a “managerial or executive office” for the purpose of s 200B(1) of the Act.

Appeal arguments and consideration

55    Mr Van Den Bergh argues that the resolution of that issue turns upon the proper construction of s 200AA(1) of the Act which, for convenience, is repeated (with emphasis):

200AA    Meaning of managerial or executive office

If the company is a disclosing entity

(1)    For a company to which section 300A applies for the previous financial year for the company, a person holds a managerial or executive office in the company during the current financial year if the person’s details were included in the directors’ report for that previous financial year for the company in accordance with paragraph 300A(1)(c).

…

56    The short point made for Mr Van Den Bergh is that, on its proper construction, s 200AA(1) of the Act is determinative of whether or not a person holds “managerial or executive office” in a listed company for the purposes of s 200B(1) of the Act. In particular, Mr Van Den Bergh challenges the primary judge’s observation that the question was one of fact saying (at [82]) that he did not regard s 200AA(1) as an exhaustive and exclusive provision for establishing whether a person in a publicly listed company holds a managerial or executive office. His Honour said it is but one means of establishing the fact.

57    Mr Van Den Bergh acknowledges the following general principles in respect of his arguments:

(a)    statutory construction requires an examination of the (legislative) text, which may require regard to their context, general purpose and policy of a provision: Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 (at [47]), applying Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 (at [39]); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (at [47]); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at [69]);

(b)    section 15AA of the Acts Interpretation Act 1901 (Cth) provides:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation;

(c)    Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 is what has been described as "an enduring authority, much relied on since, for the proposition that a literal reading of a statute may be displaced by another construction where a literal meaning will lead to absurd or inconvenient results" (Statutes and the Contemporary Search for Meaning by the Honourable Susan Crennan, State Law Society Paper, London, 1 February 2010 at p 7 (referring specifically to the joint judgment of Mason and Wilson JJ (at 321)); and

(d)    a construction to avoid a result that would be irrational "may properly encompass a departure from the literal or natural and ordinary meaning of the text. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a "realistic solution” to the difficulty". However, there are limits on the judicial role which require that the courts "abstain from any course which might have the appearance of judicial legislation". Three matters of which the court must be sure before interpreting a statute in this way are the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions has been described as being of "crucial importance". "Otherwise any attempt to determine the meaning of the enactment will cross the boundary between construction and legislation": Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 (at [9]) per French CJ and Bell J, citing in part Inco Europe Ltd First Choice Distribution [2002] 2 All ER 109 (at 115).

Mr Van Den Bergh says this conclusion is reinforced when one has regard to the fact that, as observed by Lord Nicholls in Inco Europe (at 115) (referred to with approval by the Victorian Court of Appeal in Director of Public Prosecutions v Leys (2012) 44 VR 1 (at [74])), satisfaction of Lord Diplock's three conditions may not be sufficient to permit departure from the ordinary meaning where the subject matter calls for a strict interpretation, for instance in penal legislation (such as the provisions at hand).

58    Mr Van Den Bergh also points to the recent decision of the High Court of Australia in Taylor v Owners - Strata Plan Number 11564 (2014) 253 CLR 531, particularly in the joint judgment of French CJ, Crennan and Bell JJ (at [35]-[40]) and in the joint judgment of Gageler and Keane JJ (at [65]-[66]). Mr Van Den Bergh says from those and other judgments, the following principles are clear:

(a)    It should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation;

(b)    The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgement of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against the construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”;

(c)    It is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature;

(d)    If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances;

(e)    Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe, Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”;

(f)    In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution;

(g)    Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning… But not always…” Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation;

(h)    The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair; and

(i)    Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

59    Mr Van Den Bergh argues that the broad interpretation contended for by Discovery Africa is simply not permitted when applying the canons of interpretation referred to above. In other words, and in particular noting that the provision in question is a definition of a term for the purpose of the specific sections of the Act upon which the respondent relies to establish liability on the part of the appellant, the Court should not adopt the “broad interpretation” contended for by Discovery Africa because it:

(a)    is not a matter of adding or omitting words;

(b)    is not a case of “simple, grammatical, drafting errors”;

(c)    is “too big, or too much at variance with the language in fact used by the legislature”;

(d)    is wholly inconsistent with the language in fact used by the legislature;

(e)    involves a “tortured and unrealistic” interpretation of the words used;

(f)    is an alteration to the language of the provision which is “too far-reaching”;

(g)    is not an application of “ungrammatical legal meaning”;

(h)    is an exercise in remedying “perceived legislative intention” and is an exercise of “repair”; and/or

(i)    is “wholly ungrammatical” and “unnatural”: it is not a choice between alternative meanings.

60    Mr Van Den Bergh refers to the primary judge’s view (at [82]) that:

The question is one of fact. I do not regard s 200AA(1) as an exhaustive an exclusive provision for establishing whether a person in a publicly listed company holds a managerial or executive office. It is but one means of establishing the fact.

Mr Van Den Bergh contends that the only reason given by his Honour for this view was set out in [83] of the reasons below dealing with ss 200B, 200F and 200J as well as reg 2D.2.01 of the Regulations, where his Honour said:

As Discovery Africa submits, ss 200B and 200J are intended to apply to officers who hold their position within a company for only part of a year. Section 200F, as outlined below, exempts benefits from s 200B where, under certain conditions, the value of the benefit does not exceed amounts calculated under the relevant formulae. These formulae expressly contemplate periods of holding office of less than one year: s 200F(3). This is also supported by reg 2D.2.01 of the Corporations Regulations 2001 (Cth), which contemplates a period of office of less than one year for the purposes of calculating a person’s base salary for the purposes of the Act.

61    Mr Van Den Bergh argues that there is nothing in any of those provisions which justifies construing s 200AA(1) in the manner of the primary judge. He accepts that there is nothing in Div 2 of Pt 2D.2 of the Act that suggests that its provisions do not apply to officers who hold their position with a company for any part of a year, but that does not affect the proper construction of s 200AA, he says.

62    Mr Van Den Bergh complains that the primary judge did not address arguments advanced at the hearing concerning subs (2) or subs (3) of s 200AA. In particular, Mr Van Den Bergh stresses that s 200AA(3) is very clear and provides a much broader definition for what constitutes a managerial or executive office of an unlisted public company. In effect, what the primary judge did, Mr Van Den Bergh argues, is to hold that s 200AA(3)(b) of the Act should also be applicable to a company covered by subs (1), a proposition which Mr Van Den Bergh submits is wholly inconsistent with the clear words used in the section.

63    Mr Van Den Bergh stresses that s 200AA is not a deeming provision, but, rather, operates to expressly define the words “managerial and executive office”. This argument is reinforced by s 9, which sets out that “managerial or executive office has the meaning given by section 200AA” (emphasis added). No reference to s 9 was made in the reasoning of the primary judge. Particularly in circumstances where s 200B and s 200D create offences of strict liability, it is contended that the ambit of s 200B should not be extended to circumstances which involve a strained and artificial interpretation of the Act: R v Adams (1935) 53 CLR 563 (at 567-568).

64    Mr Van Den Bergh says that, although Discovery Africa points out a number of practical difficulties with the construction proposed on his behalf, in substance, the answer lies in the statute itself. We agree that the answer is found in the statute, but do not reach the construction contended for Mr Van Den Bergh.

65    The approach by the primary judge saw the identification of whether a person holds or held a “managerial or executive office” in relation to a company which is a disclosing entity as something that can be established factually rather than under s 200AA(1) in some circumstances. There may be some difficulty with this approach on its face given that the term “managerial and executive office” is defined in s 9 as having the meaning given by s 200AA, and s 200AA appears to set out a meaning for the expression.

66    There is an alternative construction of s 200AA, however, which involves reading s 200AA(3) as applicable in cases where a person’s name does not appear in the directors’ report for the previous financial year. When the section is read in the context of the history of legislative amendments, this is the preferable construction.

67    Section 200AA was introduced in 2009 and was designed to extend the range of persons covered by the termination payment provisions. In summary:

(a)    Prior to the 2009 amendments referred to in (b), the Division applied to benefits in connection with the retirement of a person from a “board or managerial office in a company” (s 200B(1), as it then stood); the expression “board or managerial office” was defined in s 9 as meaning (when used in the Division in relation to a body corporate): (a) an office of director of the body corporate; and (b) any other office in connection with the management of the body corporate that is held by (i) a person who also holds an office of director of the body corporate or a related body corporate; or (ii) a person who has held such an office in the 12 months before retirement.

(b)    Proposed s 200AA was included in the Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 (Cth).

(c)    The explanatory memorandum for that Bill (2009 EM) indicated that the amendments were intended (among other things) to “expand” the range of personnel whose termination benefits were covered by the termination payment provisions; that is, the provisions were to be expanded from directors to also include key management personnel (see p 7, p 9 (the table), and paras 2.20-2.21 on pp 11-12).

(d)    The second reading speech dated 24 June 2009 also stated that the Bill “widens the scope of individuals subject to the regulatory framework, by extending the application of the provisions to ‘key management personnel’ for companies that are disclosing entities” (see p 6969).

(e)    The 2009 Bill was referred to the Senate Economics Legislation Committee which reported in September 2009. This committee’s report confirms that the Bill “extends the Act to cover termination payments for all ‘key management personnel’ (i.e. not just the CEO and directors but other senior people)” (p 3, see also p 36). It does not appear that the committee recommended any changes of present relevance to the provisions.

(f)    The Corporations Amendment (Improving Accountability on Termination Payments) Act 2009 (Cth) (the 2009 Act) is in the same terms as the 2009 Bill.

68    It is apparent then against the discussion in this extrinsic material and from the structure of s 200AA that it approaches the task of defining “managerial or executive office” in two distinct ways. First, in subsection (1), the office is defined by reference to a person whose details appear in a particular part of a particular directors’ report. Secondly, in subsection (3), the expression is defined by reference to certain offices or positions. The latter method is structurally similar to the previous definition of “board or managerial office”.

69    It appears that the draftsperson has adopted the technique in s 200AA(1) of referring to persons in the previous financial year’s directors’ report as the way of identifying the “key management personnel” now to be covered by the provisions. The expression “key management personnel”, which is also used in s 300A, is defined in s 9 of the Act by reference to the accounting standards. There is some judgement involved in determining who falls within this category. This may well explain why reference is made to the previous year’s directors’ report – so that there is certainty as to who is, or is not, covered by the termination payment provisions, as extended. (Also to be noted for completeness, the terms of s 300A(1)(c) have changed since the time when the 2009 Bill was enacted. Prior to the enactment of the amendments, there was also a requirement to list the five group executives or company executives that received the highest remuneration for the relevant year. There is no longer such a requirement in s 300A(1)(c). But that is beside the point for present purposes.)

70    It is not altogether clear why s 200AA(2) was thought necessary. In part, at least, it merely restates what is stated in s 200AA(1). It was perhaps included to deal with the situation where a person held a key management personnel role in the previous financial year and retired in the previous financial year. In that situation, it was not intended that the person be subject to the benefit provisions (ie, s 200B). This analysis of the purpose of the subsection is supported by the 2009 EM at para 2.21. (It may be that s 200A(1)(f) was inserted to make clear that the benefit provisions (in particular, s 200B) are intended to operate when a person actually retires, notwithstanding that his or her name may still appear in the directors’ report. In either case s 200A(1)(f) supports a broader construction than that advanced on appeal.)

71    Turning, then, to s 200AA(3), it is open to construe it as applicable in cases where a person’s name does not appear in the directors’ report for the previous financial year.

72    Admittedly, the opening words of s 200AA(3) – “For a body corporate not covered by subsection (1)” – and the heading before subsection (1) may suggest that subsection (3) is dealing with bodies corporate other than companies that are disclosing entities (which are covered by subsection (1)). But the opening words of subsection (3) are certainly open to be read as simply referring to bodies corporate not covered by subsection (1) in the sense that the relevant person’s name was not listed in the previous year’s directors’ report.

73    Section 200AA(1) was designed to expand the range of personnel covered, and s 200AA(3) was intended to provide the definition of “managerial or executive office” for a body corporate where the person’s name did not appear in the previous year’s directors’ report. When the section is read in the context of the legislative history, this is the preferable construction. Given that directors were already covered by the termination payment provisions, and the intention of the amendments was to expand the range of personnel covered, it cannot have been intended that henceforth directors would only be covered if their name appeared in the previous year’s directors’ report (and thus a director appointed during the current financial year was no longer covered). That would be an anomalous result.

74    This approach is preferable because it means that the expression “managerial or executive office” is fully defined by s 200AA. Although the primary judge did not explicitly reason in this way, it may be said that his approach (particularly at [82], where his Honour said that s 200AA(1) is not exhaustive) is consistent with this approach. Further, this addresses the contention on appeal as to the failure to address the proper role of s 200AA(3) which was said to support the argument for Mr Van den Bergh.

75    The construction proposed by Mr Van Den Bergh could lead to the policy objective of Pt 2D.2, Div 2, which requires shareholder approval for termination payments that exceed prescribed exemptions, to be severely undermined in circumstances where companies and executives seek to avoid obtaining shareholder approval for “golden handshakes”. Such a construction could pose a real risk to protecting the interests of creditors, shareholders and the public against excessive termination payments, not that it is suggested that these payments were necessarily excessive.

76    Further, the classification of whether persons held managerial or executive office by sole reference to the annual report, which in turn, may simply reflect the amount of time a person has been in that position, could lead to other unintended or absurd consequences. These include an executive chairman being exempt from the application of the Division because he retired within the same financial year as he or she was appointed, or, alternatively, directors adopting devices such as appointing for a day spouses or related persons so that payments may be made to those persons who would immediately retire and similarly avoid the Division.

77    For all those reasons, Mr Van Den Bergh’s appeal must be dismissed.

MR NICHOL’S APPEAL

Appeal grounds

78    The grounds of appeal and the arguments for Mr Nichol were far more complex, including his supplementary submissions after completion of the appeal as to whether the sum received by Mr Nichol was within an exempt threshold amount.

79    There are 10 grounds of appeal advanced on behalf of Mr Nichol, if leave to appeal is granted. In summary form only, they are as follows:

(1)    The primary judge misdirected himself as to the correct construction of s 31A of the FCA Act;

(2)    The primary judge incorrectly construed s 200B of the Act;

(3)    The primary judge incorrectly construed s 200F of the Act;

(4)    The primary judge incorrectly construed s 200H and s 200AB of the Act and r 2D.2.02(2)(d) of the Regulations;

(5)    The primary judge incorrectly construed s 200J(1A) of the Act by concluding that s 200J implicitly excludes equitable defences;

(6)    The primary judge incorrectly construed s 200B and s 200J of the Act in concluding that estoppel cannot be raised as a defence;

(7)    The primary judge erred in law in failing to consider and determine if there were serious, important, complex and difficult or unsettled real questions of law as to whether the Act should be construed as set out in grounds 2-6 without a full trial;

(8)    The primary judge failed to take into account that there were real mixed questions of fact and law;

(9)    Substantively repeats ground 8; and

(10)    The primary judge erred in law in exercising his Honour’s discretion “to refuse to grant summary judgment”.

Appeal arguments and consideration

Summary judgment

80    Mr Nichol stressed that the principal issues raised in the appeal involve important, difficult and novel questions as to the proper construction of the provisions of the Division and associated provisions of the Regulations. That the issues should be so described is evident, it is said, from the nature of the grounds of appeal advanced, if leave is permitted.

81    Much of the argument for Mr Nichol relies on the fact that in the context of a corporate group it is possible that more than one entity may meet the description of an entity that gives a benefit to a person, and a benefit may be given to a person in connection with retirement from more than one office or position in a corporate group. Mr Nichol argues that a benefit given by each entity in respect of each retirement may be, in effect, the same unit of value, e.g. (a) pays a person, (c), money because (b) assigns to (c) the right of (b) to receive payment from (a). The question of statutory interpretation will be which entity has the right to recover the benefit given and is the entity for the purpose of s 200B(1) and the giver for the purposes of s 200J.

82    Mr Nichol says that the effect of the primary judgment was that to establish a person’s liability under s 200J of the Act, a claimant need only demonstrate that it was an entity that gave a benefit. The primary judge’s construction “cannot be correct because it leaves open the possibility of a liability to more than one entity for, in substance, the same benefit given.” He argues that, in effect, the primary judge also concluded that an entity, (a), that gives a benefit to a person in connection with a person’s retirement from an office or position of employment in (a) will contravene s 200B(1) of the Act, even though the benefit was also given in connection with a person’s retirement from an office or position of employment in (b) (a related body corporate of (a)) and the benefit given in connection with retirement from the office or position in (b) is permitted by s 200F(2)(a)(ii) or s 200H. That construction, he says, also cannot be correct because it does not give effect to the evident purpose or object of the Division articulated as “to permit benefits to be given in connection with a person’s retirement if certain criteria are met.” Mr Nichol also argues that it was wrong to exclude equitable set-off, estoppel and injunctive relief for breach of the ACL as available defences to claims made under s 200B(1) and s 200J of the Act. He argues that the notice of appeal is manifestly of a kind for which leave to appeal should be granted in accordance with the principles established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398-400).

83    In contrast, on these general points, Discovery Africa submits that Mr Nichol’s proposed appeal raises few issues or contentions which have not already been addressed or considered at appellate level in Renshaw v Queensland Mining which approved the first instance decision in Renshaw in which the decision of the primary judge dismissed similar artificial stratagems that had attempted to defeat the objectives of the Act. To the limited extent that the issues raised by Mr Nichol are not so addressed, Discovery Africa submits that the primary judge was plainly correct in following other uncontroversial single judge decisions, such that leave to appeal should not be granted.

84    In the case of Mr Nichol, as in the case Mr Van Den Bergh, it is plain that these submissions cannot sensibly be considered without reasonably close regard to the proposed grounds of appeal. It was for that reason that the question of leave to appeal was referred to the Full Court in Nichol v Discovery Africa Limited [2016] FCA 254.

Grounds 2, 3 and 4

85    The argument Mr Nichol advances in these three grounds of appeal raise questions of:

(a)    whether a payment made by Discovery Africa to Mr Nichol, which Mr Nichol asserts by reason of various contractual arrangements and provisions is attributable to a payment made by a subsidiary of Discovery Africa, Baru Singapore, to himself as a termination of his employment with Baru Singapore, constitutes “a benefit” for the purpose of s 200B(1) of the Act where that payment has been made in connection with Mr Nichol’s resignation as the Managing Director of Discovery Africa;

(b)    whether, as it was Baru Singapore and not Discovery Africa which employed Mr Nichol, notwithstanding the fact that Mr Nichol held “managerial or executive office” in Discovery Africa by reason of the terms of the Baru Consultancy Agreement between Discovery Africa and Baru Singapore and the Nichol Employment Agreement between Baru Singapore and Mr Nichol, the relevant “entity” for the purpose of s 200B(1) was Baru Singapore;

(c)    whether the benefit was given to Mr Nichol under an agreement between “the company” and Mr Nichol “before” Mr Nichol became the holder of the office or position as consideration for Mr Nichol agreeing to hold the office or position, for the purpose of the exemption in s 200F and satisfying the requirement in s 200F(2)(a)(ii) therein; and

(d)    whether an order for repayment or even an initial refusal to pay would constitute a contravention of the Fair Work Act 2009 (Cth) and/or the corresponding laws of Singapore and therefore could not be a prohibited benefit pursuant to s 200H.

86    These grounds were, in most part, well-traversed and disposed of in Renshaw at first instance and on appeal in Renshaw v Queensland Mining.

Whether a “benefit” was conferred by the relevant “entity” for the purpose of s 200B(1)

87    Section 200B of the Act provides that a termination benefit given in connection with a person’s retirement from office requires shareholder approval, unless an exemption applies. The purpose of s 200J is to enable the entity to recover the benefit from the person to whom it was transferred. Mr Nichol argues that it follows, in spite of the width of the meanings of “benefit” and “in connection with” in the provisions, such as s 200, that the inquiry for the purpose of s 200B(1) is “more nuanced” than simply identifying that an entity gave a benefit to a person in connection with a retirement of a person. It requires consideration of the nature and circumstances of the transaction in question to determine its true character. He argues that that proposition is not inconsistent with “in connection with”, being words of wide import. This is important, he says, by way of an example, because if an exception to a contravention of s 200B(1) is available to one entity in the group but not to another entity in the group, consistently with the purpose or object of the provisions, the availability of an exception to one and not to the other entity will inform and indicate that the entity to which the exception applies is, in substance, the entity for the purposes of s 200B(1).

88    Accordingly, Mr Nichol contends the primary judge was in error for failing to consider or determine that there was a real prospect, as a matter of substance, that Baru Singapore was the entity that gave the benefit in this case and/or that, as a matter of substance, the benefit was given in connection with Mr Nichol’s retirement from his office or employment with Baru Singapore.

89    The termination payment made to Mr Nichol by Discovery Africa was a benefit given in connection with his retirement from a managerial or executive office of Discovery Africa and (subject to consideration of the exemption in s 200F(2)(a)(ii)) a contravention of s 200B(1) for the simple reasons that:

(a)    the economic and commercial substance of the contractual terms between Discovery Africa, Baru Singapore and Mr Nichol under the Nichol Deed of Release were such that the payment made by Discovery Africa was triggered by the resignation of Mr Nichol from his position as Managing Director of that company. The payment would not have been made had he not resigned from office immediately prior to being removed by shareholders. The payment was made directly by Discovery Africa to Mr Nichol; and

(b)    as follows clearly from Renshaw, if the construction proposed by Mr Nichol was accepted, the policy objectives of the provisions would be undermined. On his approach, the simple device of interposing corporate entities in a chain of agreements relating to the payment to the person retiring from office would suffice to avoid the provisions of the Act.

90    Throughout all these considerations, it should be firmly borne in mind that the introductory words of the Part in s 200 of the Act stress that the term “benefit” is to be given a broad interpretation requiring determination of the economic and commercial substance over legal form. The arguments and agreements relied upon by Mr Nichol are, in substance, artificial contrivances designed to avoid the economic or commercial substance of the realities. There is no doubt, as held by Perry J in Renshaw (at [80]), that the provisions have been framed so as to cast the net widely. Her Honour said (and this was approved on appeal in Renshaw v Queensland Mining):

The Renshaw defendants' submission would require an additional consideration that the payment benefit the recipient in the sense that the recipient receives something more than that to which they would otherwise have been contractually entitled. However, there is no warrant in the statutory language for that added criterion. A “benefit” as defined in s 200AB is not limited to payments aside from those which were the subject of pre-existing contractual obligations. To the contrary, s 200A(1)(c) expressly provides that “a person gives a benefit even if the person is obliged to give the benefit under a contract”, while s 200H provides that s 200B(1)“does not apply to a benefit given by a person if failure to give the benefit would constitute a contravention of a law in force in Australia or elsewhere (otherwise than because of breach of contract or breach of trust)” (emphasis added). There is no distinction drawn in these provisions between payments under a contract entered into prior to or after the person's retirement, even though that distinction may be relevant when determining whether a statutory exemption applies. As I have earlier explained, Div 2 of Pt 2D.2 has been framed so as to cast the net widely in terms of what constitutes a “benefit” from which exemptions are then expressly “carved-out”, rather than by starting with a narrow concept of “benefit” such as that urged by the Renshaw defendants.

91    The interposition of an entity in the contractual arrangements relating to a payment or transfer of a benefit more broadly would in effect limit what constitutes a “benefit”, contrary to the express terms of s 200 of the Act so as to defeat the policy objectives. The construction of s 200B(1) by the primary judge was correct.

92    Mr Nichol’s approach ignores the clear commercial substance of the transaction that Mr Nichol was to be voted off the board on the morning of 10 April 2014 and he resigned as the Managing Director of Discovery Africa seeking a benefit for loss of that office. His resignation letter specifically says that he tendered his resignation as Managing Director of Discovery Africa and the payment “is a termination benefit and loss of office.” The only question the argument raises is whether the existence of a corporate entity in a structure solely to provide the services of director affects the application of the prohibition contained in s 200B. That is clearly not the case.

Whether benefit exempt as conferred under an agreement of the character required by s 200F(2)(a)(ii)

93    Mr Nichol submits that the identification of the precise entity that conferred the benefit is of import because it was on the basis that Discovery Africa was the entity for the purpose of s 200B(1) of the Act that his Honour found s 200F(2)(a)(ii) did not apply because there was no agreement between Mr Nichol and Discovery Africa before he became its Managing Director as consideration for his agreeing to hold that office. This was in error, it is argued, because there is a real question of mixed fact and law as to whether, as a matter of substance, the payment to Mr Nichol was made “under an agreement” between Discovery Africa and Mr Nichol of the character referred to in s 200F(2)(a)(ii). Additionally, there is a real question of law and fact as to whether s 200F(2)(a)(ii) applies because, as a matter of substance, the payment was made in connection with Mr Nichol’s retirement from an office or position of employment with Baru Singapore, a related body corporate of Discovery Africa, under an agreement with Baru Singapore that was otherwise of the character referred to in s 200F(2)(a)(ii).

94    In contrast to the conclusions reached by the primary judge, Mr Nichol submits there is a real prospect that, as a matter of substance, Discovery Africa and Mr Nichol made an agreement and part of Mr Nichol’s consideration for agreeing to hold the office of Managing Director of Discovery Africa was that he would be entitled to a termination payment by the back-to-back provisions of the Baru Consultancy Agreement and the Nichol Employment Agreement. Mr Nichol relies upon an affidavit of 4 August 2015 which was before the primary judge, in which Mr Nichol deposed that he was appointed as Managing Director of Discovery Africa in November 2012, and annexed a letter from Discovery Africa to Mr Nichol dated 5 November 2012. In this regard, Mr Nichol notes that an agreement that varies or replaces an existing agreement may be an agreement for the purposes of s 200F(2)(a)(ii) of the Act: Nair v Arturus Capital Ltd (2010) 78 ACSR 43 (at [9]-[23]).

95    In this instance, it is argued, there is a real prospect that insofar as the payment to Mr Nichol discharged Baru Singapore’s obligations under the Nichol Employment Agreement, that part of the payment was, in substance, made “under an agreement” between Discovery Africa and Mr Nichol of the character referred to in s 200F(2)(a)(ii). Alternatively, or additionally, there is a real prospect, he says, that on the proper construction of s 200F(2)(a)(ii), it should be read as meaning that s 200B(1) does not apply to a benefit given in connection with a person’s retirement from an office or position of employment in relation to a company or related body corporate if given to the person under an agreement made between the company or a related body corporate and the person, before the person became the holder of the office or position etc.

96    Mr Nichol stresses that the evident purpose or object of s 200F(2)(a)(ii) (which may be accepted), is to permit a benefit to be given where the benefit is part of the consideration for the person agreeing to hold an office or position of employment and it does not exceed certain limits. It would be an arbitrary outcome if a benefit given to a person by (a) in connection with a person’s retirement from an office in (a) would be permitted if there was an agreement between (a) and the retiree, but the same benefit given in connection with a person’s retirement from a position of employment in (b) (a related body corporate of (a)) would not be permitted because the relevant agreement was between (b) and the retiree and not (a) and the retiree.

97    Mr Nichol contends that, as s 200B(1) of the Act refers to a “person’s … retirement from an office, or position of employment, in a company or a related body corporate”, to give s 200F(2)(a)(ii) an interpretation congruent with s 200B(1) and consistent with the purpose or object of the provision, “a person’s retirement from an office or position in relation to a company” in the opening lines of s 200F(2) must be read as shorthand for “a person’s retirement from an office or position of employment in relation to a company or related body corporate”. Further, “the company” in s 200F(2)(a)(ii) is to be read as shorthand for “the company or related body corporate”. Otherwise, it is submitted, the literal text of s 200F(2)(a)(ii) would defeat its evident purpose or object and result in arbitrary outcomes.

98    On the primary judge’s view, s 200F did not apply as the payment was made by Discovery Africa which had no payment obligations to Mr Nichol. The employer was Baru Singapore. Therefore, the exemption did not arise.

99    The Directors’ Report as at 30 June 2011 records that Mr Nichol was appointed as a director of the company now known as Discovery Africa on 23 November 2010. The Report also records that Mr Nichol was an Executive Director of Discovery Africa under an agreement that commenced on 1 March 2011 with an initial term of 12 months. The initial term expired on 1 March 2012.

100    The circumstances arguably altered on or about 5 November 2012, which was reflected in the letter from Mr Avery, as Chair of (what is now) Discovery Africa, and Mr Nichol. In this letter, Mr Avery wrote regarding Mr Nichol’s “appointment and continued engagement” as Managing Director of Discovery Africa, which was conditional on his agreement to the terms set out in the letter and a consultancy agreement to be entered into between Baru Singapore and the company (the Baru Consultancy Agreement) and his signing and returning a copy of the letter and Consultancy Agreement. In that letter, Mr Avery said:

I write to you regarding your appointment and continued engagement as an (sic) Managing director of Baru Resources Limited [ACN number] (Company).

The purpose of this letter is to set out the terms of your appointment and continued engagement and to further assist in your understanding of the operations of the Company and the role and responsibilities of the Board of the Company.

Your appointment and continued engagement is conditional on you agreeing to the terms set out in this letter and the consultancy agreement entered into, or to be entered into, between Baru Resources Pte Ltd (Consultant) and the Company (Consultancy Agreement) and you signing and returning, at your earliest convenience, a copy of the letter and the Consultancy Agreement …

…

Consultancy Agreement

In view of the fact that your remuneration as Managing director has been structured through the Consultancy Agreement, you will not be entitled to any separate director’s fee. It is also important to note that the amount of your remuneration, including all monetary any (sic) non-monetary components and termination entitlements will be subject to disclosure obligations under the Corporations Act and the Listing Rules.

Should the Consultancy Agreement be terminated for any reason, unless agreed otherwise in writing between the Company, the Consultant and you, you must immediately resign as a director of the Company. By signing a copy of this letter you irrevocably appoint each of the other directors of the Company from time to time as your attorney to do all things necessary to effect your resignation in those circumstances.

101    The Baru Consultancy Agreement was executed as a deed on 22 January 2013. The effective date of the Consultancy Agreement was 1 December 2012, rather than the date of Mr Avery’s letter of 5 November 2012. Under that Agreement, Mr Nichol became an employee of Baru Singapore, a foreign company and wholly owned subsidiary of Discovery Africa of which Mr Nichol was the sole director.

102    It is possible that the reference to Mr Nichol’s “appointment and continued engagement” as Managing Director could be read as indicating that he already in substance held this position as, at that stage, he was already an Executive Director of Discovery Africa (and had been from at least 1 March 2011). The benefit would therefore not be given under an agreement made before Mr Nichol became the holder of the office or position.

103    There is also scope for arguing that s 200F(2)(a)(ii) is inapplicable because the benefit was not given “under an agreement” between Discovery Africa and Mr Nichol but rather under the Nichol Employment Agreement. This is the basis on which the primary judge disposed of the contention in relation to s 200F(2)(a)(ii) (see [90]-[92] of the primary reasons).

104    However, the affidavit of Mr Nichol of 4 August 2015 and the letter of 5 November 2012 give rise to an arguable position that s 200B(1) does not apply to a benefit given by Discovery Africa in connection with Mr Nichol’s retirement from the office of Managing Director of Discovery Africa because the payment was given to him in circumstances which might be characterised as a benefit given under an agreement made between Discovery Africa and Mr Nichol before Mr Nichol became the holder of the office or position as the consideration, or part of the consideration, for Mr Nichol agreeing to hold the office or position.

105    If the “agreement” between Mr Nichol and Discovery Africa (through its Chair, Mr Avery) contemplated the subsequent agreements, and if Mr Nichol accepted the position of Managing Director in reliance upon this “agreement”, although the benefit that was subsequently conferred was effected under the subsequent agreements it may arguably be referable to the earlier “agreement”. For instance, the letter of 5 November 2012 foreshadowed that Mr Nichol’s “remuneration as Managing director” was to be structured through the Baru Consultancy Agreement, and presumably the Nichol Employment Agreement by extension.

106    Although Mr Nichol was already an Executive Director of Discovery Africa, if it is the case that he commenced as Managing Director in November 2012 then this may constitute the relevant “office or position” for the purpose of the exemption in s 200F(2)(a)(ii). Further and in any event, it is arguable that the exemption is capable of application where a person is appointed to an office for a term and then is re-appointed for a further term. It may also apply where a person is appointed to a different position within the company. If the person negotiates retirement benefits as part of agreeing to the new term or position, it is arguable that the exemption is engaged.

107    The references to “continued engagement” in the 5 November 2012 letter may refer to Mr Nichol’s continued engagement with Discovery Africa, albeit in the new position of Managing Director. Hence, the references are not necessarily inconsistent with the proposition he was being appointed to a new office or position (of Managing Director) in November 2012.

108    It may be that the arrangements between Mr Nichol and Discovery Africa do not amount to an enforceable agreement because the terms are too uncertain, particularly as the Baru Consultancy Agreement was not then negotiated. It may also be that the benefit was not conferred “under” any “agreement” of 5 November 2012. Nevertheless, we consider that the material that was before the primary judge gives rise to an arguable, at least, contention that an agreement was made between Discovery Africa and Mr Nichol for his appointment as Managing Director on or about 5 November 2012 and that the benefit was paid by Discovery Africa under that agreement.

109    On the basis of the principles governing the exercise of the discretion under s 31A of the FCA Act, which we consider in more detail below, there are questions of fact and law going to the issue of whether the arrangements between Mr Nichol and Mr Avery (for Discovery Africa) amount to an “agreement” for the purpose of s 200F(2)(a)(ii) and whether the termination payment made by Discovery Africa directly to Mr Nichol is capable of bearing the character of a payment referable to the anterior agreement as well as a payment made in discharge of the contractual obligations under the Baru Consultancy Agreement and the Nichol Employment Agreement. The particular arrangement between Mr Nichol and Discovery Africa from 1 March 2012 to on or about 5 November 2012 and then the particular engagement between Mr Nichol and Mr Avery on or about 5 November 2012 leading to the formal agreements of January 2013 are topics about which Mr Nichol is entitled to test questions of fact and law.

Whether the benefit was within the threshold calculated under s 200F(4)

110    The primary judge did not address the question of whether the payment exceeded the specified amount, as his Honour concluded that the argument in relation to s 200F failed at the earlier hurdle of s 200F(2)(a)(ii).

111    A deal of material has been supplied on the issue of whether or not the termination payment was in excess of the threshold.

112    The parties agree that, if the question of whether the benefit was within the statutory threshold is enlivened, the threshold amount under s 200F(2)(b) is to be worked out under s 200F(4)(e).

113    Mr Nichol says part of the payment is attributable to s 200F(1)(a) and within the limit as calculated under s 200F(2)(b), and part of the payment was within what would be statutory entitlements under the Fair Work Act. When the two are added the amount is under the threshold. Mr Nichol says this factual question should be dealt with at trial.

114    Discovery Africa disputes Mr Nichol’s contentions in, essentially, three respects. First, Discovery Africa says that both payments in respect of accrued leave entitlements and payments in lieu of notice constitute part of the “benefit” for the purposes of s 200B and s 200F, and thus the whole of the benefit paid is relevant in making the comparison with the threshold amount determined under s 200F(4)(e). Secondly, the amount payable in lieu of notice is $5,322.58, not $18,333.33 as submitted by Mr Nichol. Thirdly, the amount payable for accrued leave is $22,905.38, not $56,858.35 as submitted by Mr Nichol. Discovery Africa also draws attention to Mr Nichol’s contention before the primary judge that accrued leave amounted to only $16,316.16.

115    There is also a dispute between the parties as to Mr Nichol’s average base salary and the sums that were “paid” for the purposes of the Act in the relevant three year period.

116    It is sufficient to say that, as questions of fact and law arise in relation to the applicability of s 200F(2)(a)(ii), clearer evidence is necessary to warrant reaching a positive conclusion one way or the other. For example, further evidence is required in relation to when the base salary was actually earned (that is, accrued). Questions of fact and law also arise in relation to the payment to which Mr Nichol was entitled in respect of accrued annual leave and in lieu of notice, as well as the propriety of the inclusion of this sum as part of the “benefit” for the purpose of s 200F (by reference to provisions such as s 200AB, s 200A(1)(c), reg 2D.02.02(2)(d) and s 200H). Whether the threshold was exceeded is therefore an issue on which it is inappropriate to grant summary judgment in the absence of more detailed submissions and evidence.

Whether the conferral of the benefit was required by law

117    The primary judge found that, on the basis that Discovery Africa was the entity for the purpose of s 200B(1), it followed that s 200H and s 200AB(2) and r 2D.2.02(2)(d) had no application because Mr Nichol was not an employee of Discovery Africa and it had no obligation to pay Mr Nichol for accrued leave entitlements or in lieu of notice. However, Mr Nichol submits the primary judge was in error because there are real questions of law as to whether s 200H, s 200AB(2) or r 2D.2.02(2)(d) apply irrespective of the entity that is the giver of the benefit. There are further real questions of law and fact, he argues, as to whether Baru Singapore would have contravened the Fair Work Act or a law of Singapore if part of the payment Discovery Africa made to Mr Nichol was not made.

118    Mr Nichol stresses that there is a real prospect that the natural and ordinary meaning of s 200H is that s 200B(1) does not apply to a benefit given by a person if a failure to give the benefit in connection with the retirement of a person from an office, or position of employment, in a company or related body corporate would constitute a contravention of law in force in Australia or elsewhere by the company or related body corporate. It is submitted there is no foothold in the text for the primary judge’s limitation on the operation of the provision to the entity that is the giver. Mr Nichol also argues that there is a real prospect that Baru Singapore could have contravened the Fair Work Act or a law of Singapore if it failed to pay Mr Nichol for accrued annual leave and in lieu of notice if there is sufficient connection with Australia; in the absence of proof of a foreign law, there is a presumption that the law of the foreign country is the same as the domestic law.

119    In light of our conclusion in favour of Mr Nichol in relation to an arguable contention for the purposes of s 200F(2)(a)(ii), it is unnecessary to consider these further arguments.

Grounds 5 and 6

120    Mr Nichol complains that little reasoning was given for the conclusion that the defence of set-off to a claim under s 200J of the Act is excluded by necessary implication. Rather, he says, there is nothing in the language of the Part that discloses an unambiguous legislative intention that the statutory right created by s 200J is not subject to ordinary principles of equity or common law affecting that right. There is also a finding that Mr Nichol had no reasonable prospect of defending Discovery Africa’s claim on the basis of estoppel, but this finding was made without any findings to the effect that there was no reasonable prospect of establishing the legal and factual foundation of an estoppel, he says. Rather, the primary judge found the estoppel could not be raised as a matter of law. The reliance on Renshaw was misplaced in that regard, Mr Nichol says.

121    Mr Nichol contends that he does not seek by estoppel to enforce a benefit (that is, a release from a liability), that itself may be a prohibited benefit under s 200B(1) of the Act. Rather, his defence is based upon his reliance on representations made by Discovery Africa before his resignation to the effect that he was lawfully entitled to receive the sum. Such an estoppel is not contrary to the purpose or object of s 200B(1). Rather, he argues, it is consistent with and gives effect to the purpose and object of the Part as a whole.

122    Similarly, there is no reason, he says, why he should not be able to rely upon s 18 of the ACL and to injunctive restraints on Discovery Africa recovering sums under s 200J of the Act. There is no reason, he argues, for concluding that s 200J of the Act is to be construed as abrogating Mr Nichol’s statutory rights under the ACL. The primary judge was in error, he argues, in concluding that the defence of equitable set-off is excluded by necessary implication for claims made under s 200J and that estoppel is not an available defence to such claims in this case, and by failing to address and conclude that a defence based on the ACL was available. Further or alternatively, he contends these arguments raise important, difficult and novel questions of statutory interpretation that should not have been resolved summarily. As there is no cross-appeal to the primary judge’s findings that Mr Nichol’s cross-claims were arguable, there are real questions of law and fact as to whether the cross-claims gave rise to defences based on equitable set-off, estoppel or injunction.

123    These submissions cannot be accepted. As the primary judge correctly concluded (at [137]-[138]), a contravention of s 200B of the Act results in the payment being received by the recipient on trust for the giver and requires an immediate payment by the recipient to the giver. The provisions collectively underscore the policy objective of the legislature to protect members of companies from unapproved benefits being given to officers of companies in connection with their retirement. The creation of such contraventions as strict liability offences, with the statutory requirement that the benefit be held on trust and be immediately repayable, clearly expresses an intention by the legislature that payments made in contravention of s 200B cannot be avoided by application of set-off claims.

124    The terms of s 200J are mandatory. They do not give rise to a right on the part of Discovery Africa that may be the subject of some estoppel or set-off as a counter claim. To do so would be void against public policy, where the clear public policy is to protect shareholders from directors paying themselves golden handshakes or golden parachutes on their removal.

125    A key authority relied upon by Mr Nichol for the proposition that an equitable set-off could impeach a statutory claim of the kind contained in s 200J was the decision of Gummow J in James. His Honour there referred to McPherson v Minister for Natural Resources (1990) 22 NSWLR 671 (at 682-683), which involved a question of whether there could be relief against forfeiture. There was discussion by Kearney J as to whether, expressly or by implication, the statute excluded what otherwise would be the operation of equitable set-off upon those statutory debts and liabilities.

126    Here, however, under the statute there is an immediate obligation to repay being the right contained in s 200J(1) of the Act. The statute creates a trust in which the recipient is rendered the trustee holding the moneys for the giver, coupled with an obligation to immediately repay it to the beneficiary, coupled with an enforceable right. Taking all of those things together, there could not be implied into the statute a right to preserve a set-off and counter-claim. In contrast, in James, Gummow J was dealing with a claim for damages under certain contractual instruments as distinct from a specific statutory trust for a defined amount.

127    In circumstances where Mr Nichol was a party to the transactions by which he and other directors of Discovery Africa arranged and agreed to make the payment to him in connection with his resignation from Discovery Africa as Managing Director, this would be a further barrier. Mr Nichol received legal advice from external solicitors that the proposed termination payment was lawful. While that advice had regard to the Australian Stock Exchange (ASX) listing rules, it did not consider the provisions of the Act now under consideration.

128    It may be assumed for the sake of argument that Mr Nichol received advice that it was permissible to receive the payment, relied upon that advice and received the payment that is now subject to an order requiring it to be repaid. It is not evident from this circumstance that the policy of the Division would permit the members of the company being deprived of the benefit of s 200J of the Act simply because of advice received by Mr Nichol, even if it was from the company or its agents. It is also not apparent that he derives a detriment in being required to comply with statutory provisions.

129    It may be that Mr Nichol has other rights in relation to representations made to him, but that does not bear upon the relief to which the company is entitled under the Division. While we express no view on the possibility, Mr Nichol may in theory have recourse elsewhere in respect of the advice he received in relation to the payment. But that does not mean that the company or its members should be deprived of the strict remedy to which the Division is directed.

130    If Mr Nichol has a claim against the solicitors or others, he can pursue it. If he has a claim under the Fair Work Act, he can pursue that. But, subject to the arguable contention in relation to s 200F(2)(a)(ii), s 200J creates a mandatory obligation to repay the money forthwith. The words “must be immediately repaid by the recipient to the giver” are plain.

131    It is claimed that if Discovery Africa had not paid Mr Nichol the sum that it did, there would have been a prospect of contravention of the Fair Work Act or comparable laws of Singapore in respect of accrued annual leave and in lieu of notice. Similarly, it is argued, an order that Mr Nichol repay the sum may give rise to such a prospect. The primary judge was entitled to be satisfied that there was no arguable point in relation to this defence as Mr Nichol was not employed by Discovery Africa and therefore there was no obligation for Discovery Africa to pay Mr Nichol annual leave or any benefits in lieu of notice under the Fair Work Act. Further, there was no indication that an order for a payment under s 200J would not affect Mr Nichol’s legal entitlements as against Baru Singapore under the Fair Work Act or relevant Singaporean law.

Grounds 1, 7, 8, 9 and 10

132    These grounds are all directed to the complexity of the facts and law and the caution which should have been exercised by the primary judge in those circumstances in granting summary judgment.

133    Mr Nichol submits that where there is a real question of fact, in the sense that a decision could be reached in favour of the party if the matter were to proceed to trial, and possibly where there is a real question of law, it is not appropriate to give summary judgment as the Court cannot be satisfied that there is no reasonable prospect of defending the proceeding: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (at [28]-[31]) where Spender, Graham and Gilmour JJ said:

28    It may be observed that the word “may” in the expression “may give judgment” in s 31A(1) and (2) is, in the context in which it is used, permissive, not mandatory. Furthermore the use of the word “unmeritorious” in the Explanatory Memorandum and both of the Second Reading Speeches, along with the use of the word “unsustainable” in both of the Second Reading Speeches, indicates that a generally cautious approach should still be adopted to the exercise of the Court's powers under s 31A.

In relation to the use of the word “may” it is instructive to note the recent observations of Gordon J in Jefferson Ford 167 FCR 372 at [128]. However, in our respectful opinion, the preconditions for the exercise of the relevant power, which require value judgments to be made in the absence of a full and complete factual matrix and full argument thereon, lead us to the view that a discretion is reposed in the judge hearing the relevant application to grant summary judgment.

29    The concept of “no reasonable prospect of successfully prosecuting” a proceeding, which is a relevant issue where summary dismissal is sought under s 31A(2) of the Federal Court Act, was addressed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720. At [43] his Honour said:

“ … The concept of a party having ‘no reasonable prospect of successfully prosecuting a proceeding’ has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. … ”

(Emphasis added.)

At [44] Rares J said:

“[44]In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle [a reference to [43] and to Hocking v Bell (1945) 71 CLR 430 at 441-442], and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. … ”

30    In White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) Lindgren J said at [50] that s 31A“is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”.

31    It remains a matter for a judge hearing a summary dismissal application to exercise some discretion as to whether questions of law that have been raised are so difficult that they ought not to be decided summarily.

134    Mr Nichol argues that the Court should at least have refused to give summary judgment over part of the proceedings, if giving summary judgment would not have resulted in a sufficient saving of costs or time or if part of the claim must, in any event, proceed to trial, e.g. Crocker v Toys 'R' Us (Australia) Pty Ltd (No 3) [2015] FCA 728 (at [10]). Further, where there is a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel, it is not appropriate to determine the question of law summarily and give summary judgment: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (at [23]) where Finkelstein J said:

In other words, [s 31A] requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party's assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial. On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done — see Rosser v Austral Wine & Spirit Company Pty Ltd [1980] VR 313 at 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.

135    At [74] and [114] of Jefferson Ford, Rares J said:

74    Accordingly, if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the Court's discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.

…

114    I am of opinion that these matters demonstrate that there was a triable issue on the evidence as to whether the exception in s 51AC(9), properly construed, excluded the operation of s 51AC(1) in the circumstances. Because the appeal has been conducted upon materials which may be quite different to the evidence that may be adduced at a trial, it is important, not to descend into the detail of individual dealings. Rather, the question is whether on the pleaded case and having regard to the evidence Jefferson Ford has no reasonable prospects of succeeding in establishing at a trial a real issue of fact and or law. There are some inadequacies in the pleading of the cross-claim, which may require further attention. But this appeal is not concerned with the issue of striking out or reformulating the cross-claim relating to the unconscionable conduct claims. I am satisfied that his Honour applied an erroneous construction to s 51AC and erred in dismissing that claim.

136    At [131] of Jefferson Ford, Gordon J said:

[T]he existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed”: General Steel Industries 112 CLR at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.

137    Mr Nichol complains that the primary judge did not direct himself to any of these issues of principle. We cannot accept this argument. The primary judge held that the principles in relation to summary judgment are well settled, as they are. It was not necessary for his Honour to repeat each and every one of the principles for which Mr Nichol now contends. He did, of course, refer specifically to Jefferson Ford and expressly noted the principles outlined by Finkelstein and Gordon JJ.

138    In Spencer v The Commonwealth (2010) 241 CLR 118, French CJ and Gummow J observed (at [24]) that the “exercise of powers to summarily terminate proceedings must always be attended with caution” even “where such a disposition is sought in a summary judgment application supported by evidence”. Their Honours said (at [25]) (in connection with s 31A(2), but equally applicable to s 31A(1)):

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

139    Justices Hayne, Crennan, Kiefel and Bell said (at [51]-[52] and [56]):

51    First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.

52    Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

…

56    Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.

140    The majority also reasoned (at [58]-[60]) (footnotes omitted):

58    How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

59    In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

60    Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

141    The Full Court (per Perram, Jagot and Beach JJ) has also set out a helpful summary of the above relevant principles in relation to s 31A in the recent decision of Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 (see particularly [46]-[49]).

142    There are also policy considerations in relation to summary judgment. It is inappropriate that the parties and the Court and, indirectly, the public, should incur the cost of protracted proceedings when they are not necessary. That is a general proposition. More specifically here, Discovery Africa, as its accounts show, was an exploration company with very limited means to raise funds. It was not a trading entity. The recovery of these payments was therefore important, particularly, if possible, on a summary basis.

143    The legislature intended that in an appropriate case where the facts and law in relation to the Part was relatively well settled, recovery of the funds incorrectly paid should be achieved as a matter of priority in the interests of the company and its members.

144    In this case, we have concluded that in relation to one issue only of the numerous arguments raised, there was an arguable defence. With the exception of that argument, which was not strikingly obvious on the papers, Mr Nichol has not demonstrated error on the part of the primary judge in his approach or analysis.

CONCLUSION

145    In the circumstances, it has been necessary in each instance to consider in detail the grounds of appeal which would be advanced if leave were granted. It is appropriate in each application that leave to appeal from the interlocutory decision of the primary judge be granted.

146    Mr Van Den Berg’s appeal is dismissed. Given that Discovery Africa has succeeded in resisting the appeal, it should frame suitable orders within five days disposing of the appeal, the question of costs and necessary orders concerning the recovery of funds paid into Court. The applicants will have an opportunity to respond if the orders are not agreed. If necessary, the resulting orders will be made on the papers.

147    Mr Nichol’s appeal is granted.

148    We will hear the parties on costs, to be resolved on the papers.

Associate:

Dated:    15 December 2016