FEDERAL COURT OF AUSTRALIA

Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 1) [2014] FCA 437

THE COURT ORDERS THAT:

1.    Leave be granted to the Applicants to file and serve an amended points of claim in the form provided.

2.    The Applicants to pay the costs thrown away by reason of that amendment.

3.    The Applicants to file and serve the amended points of claim on or before 12 noon on Wednesday 16 April 2014.

4.    The Respondents file and serve a points of defence to the amended points of claim on or before 23 April 2014.

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

REASONS FOR JUDGMENT

1    On Wednesday 16 April 2014 I granted the Plaintiffs leave to amend their points of claim and made other orders of a consequential nature. These are my reasons for taking that course.

2    The matter is fixed for trial on Monday 14 July 2014 for three days. Both sides are adamant that this hearing date must be preserved. The reason for this unexpected pocket of concordance is that the First Defendant is in the process of being wound up and these proceedings are thought by all to be delaying the payment of a dividend to creditors by the Second Defendant who is the First Defendant’s liquidator.

3    Not only do both parties agree that the trial date should be preserved but they also agree that if the amendments sought by the Plaintiffs are allowed, it will be possible to preserve that hearing date. This is not a case, therefore, where a late pleading amendment threatens to derail a trial.

4    Given that the amendments can be made without imperilling the trial why then should leave to amend be refused? The reasons advanced by the Defendants were, in essence, five:

(a)    the case now to be advanced will enlarge the ambit of the proceedings;

(b)    the proposed amendments are raised very late in the proceedings and in circumstances where no good explanation has been advanced as to why they could not have been raised earlier;

(c)    the Defendants had attended an unsuccessful mediation with the Plaintiffs on the basis of the case as it then stood so that now that a new case was foreshadowed the inconvenience and cost of the mediation was to be seen as having been wasted;

(d)    there would be prejudice to the Defendants in terms of wasted expenditure; and

(e)    there would be prejudice to the creditors of the First Defendant, the finalization of whose proofs of debt might be further delayed.

5    To understand these points it is necessary to grasp the case as it has been put until now and the case as it will be if the amendments are permitted. The case began in 2012. The Plaintiffs originally claimed that they were induced to buy shares on the ASX in the First Defendant by its misleading and deceptive conduct. That conduct was that its financial reports did not reflect a true and fair view of its position because, so it was said, they did not disclose that dividends which had been recently paid had not been paid out profits, as they should have been, but rather out of capital. The Plaintiffs sought by way of compensation the total purchase price paid by each of them for the shares.

6    Six months after its commencement the case was expanded. On 13 June 2013, a fresh allegation was made that the Plaintiffs had relied upon a newsletter published on 28 March 2008 entitled ‘Huntleys’ Newsletter’.

7    A few months later still these two cases were swept aside when a further amended statement of claim was served (but not filed). It eschewed the original allegation that the Plaintiffs had themselves relied on the First Defendant’s misleading conduct. Now advanced instead was what was called a market based causation or indirect reliance claim. As I apprehended the point, this allegation is that the First Defendant misled the entire market with the consequence that its share price was inflated. Although the Plaintiffs do not themselves allege to have relied upon the misleading conduct they say, nevertheless, that it has caused them loss. That loss is said to consist of the difference between the price paid by the Plaintiffs for the shares (in the wrongly inflated market) and their true value. I shall refer to this as the ‘indirect causation case’.

8    Six weeks later, on 30 September 2013, a points of claim was then filed. This was a new document rather than an amendment of an old one. For present purposes, it was not that very different to the proposed further amended statement of claim. Its mainspring remained the allegation that dividends had been paid out of capital and it continued to press the indirect causation case. Various other claims were dropped.

9    On 11 December 2013, this case was fixed for hearing on 14 July 2014 by Jacobson J. On 25 and 26 February 2014 an unsuccessful mediation took place before the Honourable Michael McHugh AC QC. Of course, as Mr Lockhart SC who appeared for the Defendants emphasised, the metes and bounds of that mediation were defined by what the case then was. One may assume, and I do, that the respective postures adopted by the parties in their negotiations with Mr McHugh QC reflected a just appreciation of each of their weaknesses and strengths in respect of the case then advanced.

10    It was after this mediation, and only very recently, that the Plaintiffs’ advanced for the first time a new case. On 8 April 2014 fresh grounds were proposed in correspondence. Subsequent refinements reduced the number of these grounds by the time of the amendment hearing before me. Substantively what is now put forward are two new points (although these two points reverberate throughout the proposed pleading so as to affect the form of several claims). These are:

(a)    an allegation that as at 29 November 2008 the First Defendant was in fact insolvent and that this important information should have caused trading in its stock to have been immediately suspended and for its directors to have resolved to place it at once into external administration; and

(b)    an allegation that in the 2007 financial year the revenue of the First Defendant’s subsidiaries was generated from a revaluation of their assets (rather than any real cash flows) and that the dividends paid to the First Defendant by its subsidiaries were funded by loans.

11    There is no doubt that this is a new and quite different case. As articulated thus far the case has been largely about whether dividends were paid out of profits, whether the market was misled and whether the Plaintiffs can recover such a loss. As now proposed, the case has added to it additional debates about the revaluation of the subsidiaries’ assets, the methods by which they paid dividends to the First Defendant and, perhaps most importantly, the solvency of the First Defendant as at 29 November 2008.

12    The Plaintiffs make no bones about the source of their inspiration for these proposed amendments. Candidly they admit they came to an appreciation of them by reading the report to creditors prepared by the liquidators some years ago dated 12 August 2009 which was done by them pursuant to s 439A of the Corporations Act 2001 (Cth).

13    It is this report which discloses the Second Defendant’s own opinion that the First Defendant became insolvent at the latest on or about 29 November 2008.

14    Mr Joukhador is the solicitor for the Plaintiffs. He says that he only became aware of the matters underpinning the amendment application when he first read the report to creditors on 3 March 2014. Since that report is dated 12 August 2009 there has been, on any view, a substantial delay in gathering this information. Mr Lockhart placed considerable emphasis on this delay in his submissions resisting the amendment application.

15    About it one may say a number of things. First, although almost five years have passed between the date of the report and the making of the allegations it is perhaps important to focus on the date that the proceedings commenced as the relevant yardstick. That date was 11 December 2012 and thus it follows that the relevant delay is one of a year and three months and not five years.

16    Secondly, whilst the context of the present litigation may soothe the sharpness of the observation, it is difficult to avoid the conclusion that it might have been useful to examine the report to creditors at an earlier date. Mr Joukhador explained in his evidence the difficulties which had been placed in his way in that regard. Whilst I accept the existence of these difficulties (the copy of the report posted on the liquidator’s public website was password protected; the solicitor for the First Defendant was uncooperative) I do not think that such matters would have prevented Mr Joukhador from obtaining access to the report if he had really desired to obtain it. The password could have been sought and however difficult dealing with his opposite number might have been, I am sure that Mr Joukhador could have prevailed if he had really wanted to.

17    I accept also that it is likely that the initial form the litigation took was to resemble, at least in part, some of the allegations originally made by the Second Defendant against various former officers of the First Defendant. It was said that effectively the Plaintiffs had emulated the liquidators’ own subsequently settled claims. Of course, it was not on the liquidators’ horizon to sue the company itself for misleading the market. That explains why they never made such an allegation and helps one to understand why the Plaintiffs did not initially make the claim either. But even allowing that to be so does not entail that this report should not have been looked at sooner.

18    It follows that there has been a delay in bringing forth the amendments and that the responsibility for that delay is properly to be laid at the feet of the Plaintiffs.

19    On the other hand, as I have already noted it is relevant that it is not suggested that if the amendments are allowed the Defendants will not be able to meet the new case and to do so by the time of the trial. Ultimately the position of the Defendants was put by Mr Lockhart this way:

‘MR LOCKHART: The proposition that the matter – I don’t think there’s any dissent from the proposition that the matter can be – from my friend that the matter can be ready prior to trial. If there is, I can tender a letter. I don’t think there it (sic). The – while one might say these orders pose a tight regime, in all circumstances we say that’s entirely appropriate, and one would hope, do the best one can, would allow the matter to be ready for trial. But our fundamental proposition is that our client should not be subjected to those burdens as this late stage for the reason I’ve outlined.’

20    I was taken by the Defendants to an account of the various forensic steps which the amendments would require the Defendants to address. The principal one of them is to arrange for a revised expert’s report dealing with the question of causation and loss. This matter touches, of course, upon the indirect reliance issue. There were other possible steps involving issues about certain matters (such as solvency) which might need to be addressed. I do not need to set these out in any detail because, whatever they are, the Defendants say they can deal with them by the trial date.

21    On the other hand, it is obvious that having to take such steps so late in the piece is likely to be burdensome both in terms of time and money. I would assess that level of inconvenience as being towards the middle of the upper end. It would include, no doubt, not inconsiderable personal stress both for the lawyers involved but also to persons working within the Second Defendant’s office.

22    There are two other matters which should be mentioned. The first is that the present case takes the form of a decision of the Second Defendant, as liquidator, to reject a number of proofs of debt lodged by shareholders. Since the unearthing of the report to creditors the solicitors for the Plaintiffs (and the litigation funder standing behind the Plaintiffs) have been assiduous in their efforts to find other shareholders in the First Defendant and to persuade them to lodge proofs of debt with the Second Defendant on the basis of the proposed amendments. The point of this exercise was, as Mr Merkel QC for the Plaintiffs explained it, to show that even if the amendments were now refused to the present Plaintiffs the same arguments would inevitably come before the Court in the form of appeals when the liquidator eventually rejected the other shareholders’ proofs of debt. Of course, it is true as Mr Lockhart submitted, that there is an element of speculation about this but it is sufficient to observe that the degree of speculation is not great.

23    Secondly, there was a debate before me as to whether the present action partook of the nature of a test case. There does not seem to be any debate that there are other actions awaiting the outcome of the present case. Regardless of whether this case has formally been structured to resolve the outcome of these other shareholders claims, the fact is that it very likely will. Whether it receives the formal appellation ‘test case’ does not, therefore, matter very much. This rather tends to suggest, and I infer, that it would be of greater utility to ensure that all issues were resolved once and for all in this case.

24    One has therefore this set of circumstances insofar as the parties are concerned:

(a)    a delay in bringing forth the points to be litigated properly to be blamed on the Plaintiffs;

(b)    prejudice in the form of substantial expense and inconvenience to the Defendants if the amendment is allowed; but

(c)    no risk to the trial dates if the amendments are allowed; also

(d)    a significant risk that if the amendments are denied then both the Court and the Defendants will have to deal with the same arguments in separate and later proceedings; and

(e)    a high degree of likelihood that if the issue is resolved in the current case then the result will flow on to the other cases which are pending.

25    Mr Lockhart also submitted that there might be prejudice to the position of third party creditors if the amendments were allowed. However, this seems to me to be more likely if the application is refused. If the amendment is allowed then all claims will be dealt with at the July trial and the liquidator can proceed to distribute after that single case is resolved. If, on the other hand, it is refused, there will only be further litigation after the July trial which will prevent distribution.

26    The overarching purpose of civil practice and procedure is, so we are told, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth), s 37M(1). The prospect of further future claims if the amendment is refused means that is likely to be the case that the quicker, less expensive and more efficient path is to allow the amendments. I do not put at nought the prejudice in terms of expense, inconvenience and stress which allowing the amendments will cause to the Defendants and their legal representatives but I do not regard that as outflanking the procedural advantages of allowing the amendments.

27    For those reasons I granted leave to amend. The Defendants submitted that if I arrived at that conclusion I should order the Plaintiffs to pay the costs thrown away by reason of the amendments on an indemnity basis and forthwith. Of course, the Plaintiffs must bear the costs thrown away by reason of the amendments, but I see no basis for making either of the other suggested orders. Whilst responsibility for the delay certainly lies in the Plaintiffs’ camp, the failure of Mr Joukhador to secure a copy of the report to creditors at an earlier time does not begin to approach the kind of behaviour which authority indicates must be present to justify an indemnity costs order. In Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Sheppard J instanced (at 233) situations which might warrant the infliction of an indemnity costs order: the making of fraud allegations known to be untrue; the fact that proceedings were commenced with some ulterior motive; the fact that proceedings were commenced in the face of known facts or clearly established law and so on. Failing to obtain a report to creditors does not hail from these ports. For similar reasons, I see no basis upon which to make an order that costs be paid forthwith. In those circumstances, the Plaintiffs are to pay the Defendants’ costs thrown away by reason of the amendments on the usual basis.

Associate:

Dated:    2 May 2014