FEDERAL COURT OF AUSTRALIA

Tyne v UBS AG (No 3) [2016] FCA 5

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 23 of the Federal Court of Australia Act 1976 (Cth), these proceedings are permanently stayed.

2.    Mr Scott Francis Tyne as trustee of the Argot Trust pay the costs of the respondent of and incidental to the proceedings including the costs of and incidental to the stay application, on an indemnity basis.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1    This proceeding concerns an interlocutory application made by UBS AG (“UBS”), the respondent in the principal proceeding, by which it seeks a permanent stay or dismissal of the principal proceeding.

2    It does so either pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) or in the exercise of the Court’s inherent or implied power to control its own process and procedure on four grounds: abuse of process; Anshun estoppel; res judicata; or, issue estoppel, arising from the claims advanced and orders made in proceedings in the High Court of Singapore (in proceeding 801 of 2010 – the “Singapore 801 proceedings” and proceeding 1160 of 2010 – the “Singapore anti-suit proceedings”) and, or alternatively, proceedings in the Supreme Court of New South Wales (in proceeding 2010/363808 – the “SCNSW proceedings”).

3    Alternatively, UBS seeks summary dismissal of the principal proceeding, in whole or in part, pursuant to s 31A of the Federal Court of Australia Act in conjunction with r 26.01 of the Federal Court Rules 2011 (Cth) on the ground that the proceeding has no reasonable prospect of success or is an abuse of process.

4    In the further alternative, UBS seeks orders that the statement of claim filed on 13 January 2014 and the subsequent amended statement of claim filed 24 March 2014 be struck out, in whole or in part, pursuant to r 16.21 in respect of the claims pleaded by the applicants or by either of them on the ground that the pleading fails to disclose a reasonable cause of action or other case appropriate to the nature of the pleading; or, the pleading is otherwise an abuse of process of the Court.

5    The first applicant in the principal proceeding is Mr Scott Tyne. He sues solely in his capacity as the sole trustee of the Argot Trust. Mr Tyne was appointed trustee of the Argot Trust on 9 January 2014, four days before the commencement of the principal proceeding. The Trust is governed by a settlement and Deed of Trust dated 26 February 1997.

6    The second applicant is Ms Clare Elizabeth Marks. Ms Marks is the spouse of Mr Tyne.

7    In the originating application filed on 13 January 2014, the applicants claim the following relief. As to the first applicant:

1.    Damages for the infringement of section 12DA, Australian Securities and Investments Act 2001 (Cth).

2.    Damages for the infringement of section 1041H, Corporations Act 2001 (Cth).

3.    Damages for the infringement of section 42, Fair Trading Act 1987 (NSW) (as in force at the relevant time).

4.    Damages for the infringement of section 38, Fair Trading Act 1989 (Qld) (as in force at the relevant time).

5.    Damages pursuant to the common law of negligence.

6.    Equitable compensation for breach of fiduciary duty.

7.    Such other order as the Court sees fit.

8    As to the second applicant, the claims are these:

8.    Damages for the infringement of section 12DA, Australian Securities and Investments Act 2001 (Cth).

9.    Damages for the infringement of section 1041H, Corporations Act 2001 (Cth).

10.    Damages for the infringement of section 42 Fair Trading Act 1987 (NSW) (as in force at the relevant time)

11.    Damages for the infringement of section 38, Fair Trading Act 1989 (Qld) (as in force at the relevant time).

12.    Such other order as the Court sees fit.

Some aspects of the statutory provisions relied upon by the applicants

9    Section 12DA falls within Div 2 of Pt 2 of the Australian Securities and Investments Commission Act 2001 (Cth) (the “ASIC Act”) and provides that a person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive. For the purposes of Div 2 of Pt 2 of the ASIC Act, financial service has the meaning given by s 12BAB, and in other provisions of the ASIC Act, it has the same meaning as it has in Ch 7 of the Corporations Act 2001 (the “Corporations Act”).

10    Section 1041H(1) of the Corporations Act falls within Ch 7 of that Act and provides that a person must not, in this jurisdiction, engage in conduct in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive. Conduct for the purposes of s 1041H(1) includes the 10 classes of conduct set out at s 1041H(2). The terms financial product and financial service have the meanings attributed to them by Ch 7 of the Corporations Act.

11    At para 5(e) of the amended statement of claim filed on 24 March 2014, the applicants plead that UBS, was at all material times, and remains, a provider of financial services within the meaning of s 12BAB of the ASIC Act. The applicants also plead that in respect of the series of representations pleaded and relied upon, those representations were “made in relation to ‘financial services’ within the meaning of section 12BAB [of that Act] and section 766A [of the Corporations Act]”. The applicants probably intended to convey, by that pleading, an assertion that each of the various representations relied upon were made in relation to the provision of a financial service by UBS in the pleaded circumstances.

12    By s 12BAB(1) of the ASIC Act, a person provides a financial service, for the purposes of Div 2 of Pt 2 of that Act if they: (a) provide financial product advice; (b) deal in a financial product; (c) make a market for a financial product. Then, five other categories of conduct are identified: see s 12BAB(1)(a), (b) and (c) of the ASIC Act as to the first three categories, and s 12BAB(1)(d) to (h) as to the remaining categories. Each of s 12BAB(1)(a), (b) and (c) are the subject of statutory meaning according to s 12BAB(5), (7) and (11) respectively, of that Act.

13    Although the precise content of the pleading in relation to s 12BAB of the ASIC Act and s 766A of the Corporations Act is not identified, the applicants presumably contend, having regard to the totality of the pleading, that UBS was, relevantly, engaged in the provision of a financial service for the purposes of each Act because it was providing financial product advice to Mr Tyne, in the manner pleaded.

14    Section 766A(1) of the Corporations Act adopts the same formulation reflected in s 12BAB(1) and as to s 766A(1)(a), (b) and (c), each category of conduct has a statutory meaning attributed to it set out at ss 766B, 767C and 766D respectively in the same terms as s 12BAB(5), (7) and (11) respectively.

15    Having regard to the formulation of the relief in the originating application and the matters pleaded in the amended statement of claim, I proceed on the assumption (as the matter is not precisely pleaded) that (apart from any other causes of action asserted in the pleading), the applicants contend, as to the statutory matters, that UBS was, in the relevant circumstances of the pleading, engaged in the provision of financial services to Mr Tyne (in the capacity and circumstances pleaded) as UBS was providing financial product advice to him because it was, relevantly, making (in terms of s 12BAB(5) of the ASIC Act):

… a recommendation or statement of opinion, or a report of either of those things, that:

(a)    is intended to influence a person or persons in making a decision in relation to a particular financial product or class of financial products, or an interest in a particular financial product or class of financial products; or

(b)    could reasonably be regarded as being intended to have such an influence;

…

16    Section 38 of the Fair Trading Act 1989 (Qld) was in the following terms at the date of the events pleaded in the statement of claim filed 13 January 2014 and the amended statement of claim filed 24 March 2014:

38    Misleading or deceptive conduct – TPA s 52

(1)    A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Nothing in this division shall be taken as limiting by implication the generality of subsection (1).

17    Section 42 of the Fair Trading Act 1987 (NSW), at the date of the relevant events, contained the same proscription in the same terms as s 38 of the Fair Trading Act 1989 (Qld).

UBS’s contentions

18    The essence of UBS’s position is this.

19    First, UBS says that both applicants are seeking, in substance, to re-litigate issues which have been finally determined in the Singapore 801 proceedings and the SCNSW proceedings and which (so far as Mr Tyne as trustee of the Argot Trust is concerned) breach the terms of the anti-suit injunction granted by the High Court of Singapore in the Singapore anti-suit proceedings. UBS says that, as a result, the Federal Court principal proceeding constitutes an abuse of process. UBS says that making good this ground does not require any conclusion that the present applicants are “privies” of the parties to the Singapore 801 proceedings, the Singapore anti-suit proceedings or the SCNSW proceedings (that is to say, privies of Mr Tyne in his personal capacity, or an entity called Telesto Investments Limited (“Telesto”)), for the purposes of Anshun estoppel, res judicata or issue estoppel.

20    Second, UBS says that both applicants in the present Federal Court proceeding acted unreasonably in failing to bring the claims made in the Federal Court proceeding in either or both the Singapore 801 proceedings or the SCNSW proceedings with the result that, consequent upon the final determination of those earlier proceedings, an Anshun estoppel has arisen which prevents the applicants from prosecuting the Federal Court proceedings.

21    Third, UBS says that just as Sackar J in the SCNSW proceedings concluded that a res judicata had arisen, a res judicata has arisen so far as the Federal Court proceedings are concerned. UBS says that the causes of action advanced in the Federal Court proceedings were the subject of final judicial determinations in the Singapore 801 proceedings and in the SCNSW proceedings. UBS says that those final determinations bind both applicants as privies of parties to the earlier actions.

22    Fourth, UBS says that the issue of the entitlement to raise the present claims was fully heard and determined in the Singapore 801 proceedings thus giving rise to an issue estoppel which was recognised and enforced in the SCNSW proceedings. UBS says that both applicants, as privies of parties to the earlier actions, are likewise precluded by an issue estoppel from contending in the Federal Court proceedings that they are entitled to pursue the present claims.

23    Fifth, UBS says that if any one of the four grounds is made good, it follows that the Federal Court proceeding should be dismissed or permanently stayed. UBS says that if none of the four grounds are made good, then UBS nonetheless contends that the Federal Court proceeding should be summarily dismissed or the applicants’ pleadings struck out (both pleadings), in whole or in part, on the footing that the statement of claim and the amended statement of claim fail to disclose a reasonable cause of action or that the proceeding is otherwise an abuse of process of the Federal Court of Australia. UBS relies upon r 16.21(1) and s 31A of the Federal Court of Australia Act.

24    In dealing with the merits of these contentions which, if made good, will result in the foreclosure of the applicants’ proceedings, the whole of the relevant circumstances must be considered. The starting point is to identify the case pleaded against UBS in the Federal Court proceeding.

The Federal Court proceeding

25    Since UBS frames its application having regard to both the statement of claim filed on 13 January 2014 and the amended statement of claim filed on 24 March 2014, I propose to have regard to the amended statement of claim (which I call “the pleading”) as the extant final pleading framing the case the applicants seek to litigate by invoking the Court’s jurisdiction.

The participants to the pleaded events

26    As already mentioned, the applicants to the proceeding are Mr Scott Francis Tyne in his capacity as trustee of the Argot Trust (and in no other capacity) and Ms Marks in her individual capacity.

27    The pleaded factual contentions (and asserted matters of law) are these.

28    At all material times, Mr Tyne was and remains an Australian citizen; is presently resident in Australia; was a director of two companies incorporated in Australia, Pole Star Investments Limited (“Pole Star”) and ACN 074 971 109 Pty Limited (“ACN 074”); and, by reason of an Investment Management Deed made between ACN 074 as trustee of the Argot Trust and Mr Tyne dated 13 April 2000, Mr Tyne was and remains engaged by the Argot Trust to manage the Argot Trust’s investment portfolio pursuant to the terms of the Deed: para 3.

29    In his capacity as a director of ACN 074, Mr Tyne was empowered to do the things ACN 074 did as pleaded throughout the amended statement of claim. In his capacity as a director of Pole Star, Mr Tyne was empowered to cause Telesto to do the things Telesto did as pleaded. By reason of cl 3.1 of the Trust Deed, Mr Tyne was empowered to cause the Argot Trust to do the things the Argot Trust did as pleaded: paras 3A, 3B, 3C and 3D.

30    In the pleading, the applicants use the phrase “Tyne Related Entities” and that term is defined to mean a “collective reference” to Mr Tyne, ACN 074 in its capacity as trustee of the Argot Trust, Pole Star and, through Pole Star, Telesto: para 1.

31    Ms Marks is an Australian citizen; resident in Australia; the spouse of Mr Tyne; and, as regards all things to do with the construction of a dwelling on particular land, Ms Marks was the principal of Mr Tyne, including as to such matters as the funding of the construction of the dwelling. A reference in the pleading to Ms Marks being induced to act through Mr Tyne is a reference to Mr Tyne taking action for and on behalf of Ms Marks in Mr Tyne’s capacity as agent of his principal, Ms Marks: paras 4 and 4A.

32    At all material times, UBS was (and remains) a corporation incorporated in Switzerland operating through offices in Zurich, Sydney and Singapore; a corporation engaged in trade or commerce; and, a provider of financial services within the meaning of s 12BAB of the ASIC Act: para 5.

33    Prior to the appointment of Mr Tyne as trustee of the Argot Trust, the sole trustee of that trust was ACN 074: para 8.

34    At all times material to the events set out in the pleading, Telesto was an investment company incorporated in Jersey: para 9.

35    At all such material times, Pole Star was exclusively engaged by Telesto to manage Telesto’s investment portfolio pursuant to the terms of an Investment Management Deed made between Telesto, Pole Star and others dated 9 October 2006: para 10. However, it should be noted that the deed dated 9 October 2006 in evidence for the purposes of the application is a deed made between Telesto, Chiltern Trust Company (Jersey) Limited as trustee of “The Dog Star Trust” created by the “Dog Star Trust Deed” (a trust which is recited as being the owner of all the issued shares in Telesto), Malba Limited, a Cayman Islands incorporated entity, as the “Enforcer” of the trust obligations, and Pole Star Funds Management Pty Limited (“PSFM”), an Australian incorporated company, recited as appointed to act as the discretionary investment manager for Telesto in accordance with the obligations set out in cl 2.2 of the Investment Management Deed.

36    The pleaded entity, Pole Star, is not the investment manager appointed under the Investment Management Deed. Nor is PSFM one of the “Tyne Related Entities”.

37    At all such material times, each of Mr Steven Betsalel and Mr Edward Farrell was a representative of UBS for the purposes of s 910A of the Corporations Act as that term is understood for the purposes of Pt 7.6 of that Act. Mr Betsalel and Mr Farrell had the actual or ostensible authority of UBS to act on its behalf in its dealings with Mr Tyne: para 11.

38    At all such material times, Mr Tyne, and through him Pole Star and the Argot Trust were in Australia and all pleaded telephone conversations were conducted with Mr Tyne whilst he was in Australia. In all its dealings with Mr Tyne and through him the Tyne Related Entities, UBS was engaged in trade or commerce between Australia and places outside Australia: paras 6 and 7.

39    Mr Tyne and through him the Tyne Related Entities, reasonably and in good faith relied upon, the conduct of Mr Betsalel and Mr Farrell as pleaded (in relation to the provision of the financial service) within the meaning of s 917A of the Corporations Act. The conduct of Mr Betsalel and Mr Farrell gave rise to loss or damage for the purposes of s 917E of the Corporations Act (suffered by the Argot Trust and Ms Marks and other Tyne Related Entities) giving rise to a contended obligation to compensate Mr Tyne as trustee of the Argot Trust for that loss as contemplated by s 917F(1) of the Corporations Act.

40    Prior to 2007, ACN 074, as trustee of the Argot Trust (through Mr Tyne as director) and Telesto (through the activities of Pole Star) had been clients of the Wealth Management Division of the Zurich branch of UBS. Prior to 2007, Mr Tyne was resident in the United Kingdom: para 13.

41    In the first quarter of 2007, Mr Tyne moved to Australia. He retained UBS Wealth Management Australia Limited (“UBS Australia”), a wholly owned subsidiary of UBS, for the purpose of obtaining investment advice. Mr Betsalel, based in Australia, was UBS Australia’s client adviser to Mr Tyne. Mr Betsalel in 2007 (sometime after April 2007) relocated from Australia to Singapore retaining his position with UBS and continued to provide financial advice to both Mr Tyne and Telesto, on behalf of UBS: paras 14 and 15.

Investments and equity markets

42    At August 2007, consistent with Mr Tyne’s investment preferences and experience, the Telesto portfolio of investments was principally invested in equities and managed funds. Telesto’s investments included securities the subject of an Initial Securities Lending Arrangement (the “ISLA”) made between Telesto and ACN 074 as trustee of the Argot Trust (made between those entities through Mr Tyne with Mr Tyne acting on behalf of both Telesto (through Pole Star) and the trustee of the Argot Trust). It also included securities acquired by Telesto in accordance with the ISLA or securities acquired by Telesto as particularised at para 16(c): para 16.

43    The Telesto portfolio of investments included securities lent to Telesto by ACN 074 as trustee of the Argot Trust pursuant to the ISLA. Mr Tyne told Mr Betsalel and Ms McCreery (of UBS Singapore) in a meeting in Singapore in August 2007 that the Telesto portfolio included securities lent to Telesto by the trustee of the Trust and also told Mr Gretener, an employee of the Zurich branch of UBS, at a meeting in London, the same information: para 17.

44    Throughout mid to late 2007, Mr Tyne and Mr Betsalel had a number of telephone conversations regarding the prevailing state of global equity markets and the exposure of Telesto’s portfolio to investments in equities: para 18. In these conversations, Mr Betsalel recommended that Telesto reconfigure its portfolio to include bonds recommended by UBS in order to reduce the risk in Telesto’s portfolio investments: para 19. In mid-2007, Mr Betsalel suggested that Mr Tyne speak to Mr Farrell for the purpose of UBS providing Telesto with advice in connection with the possible investment by Telesto in emerging market debt securities: para 19.

45    UBS, through Mr Betsalel and Mr Farrell (and otherwise), held itself out as having specialist knowledge and expertise in the analysis of debt capital markets including the debt capital markets of emerging countries: para 21.

The Expertise Representations – the para 21 representations

46    At para 21, thirteen particular representations are pleaded as having been made by UBS through Mr Betsalel and Mr Farrell (and otherwise) to Mr Tyne concerning UBS’s specialist knowledge and expertise. They include (among others) that UBS was a leading underwriter and arranger in relation to debt capital markets of emerging countries; Mr Farrell (and others of UBS in Singapore) were expert and experienced in the debt capital markets of emerging countries; Mr Farrell was particularly knowledgeable about the debt capital markets of Russia and the Commonwealth of Independent States including Kazakhstan; UBS had people on the ground in Almaty providing the benefits of local knowledge and connections; UBS was one of the most active traders of relevantly corporate bonds of Kazakh companies; UBS had a close relationship with Kazakhstan; Mr Farrell had traded Russian debt throughout the Russian debt crisis; and, Mr Farrell kept abreast of developments in Russia and the Commonwealth of Independent States, including Kazakhstan, both from a debt capital markets perspective and as regards current and political affairs. These representations are described in the pleading as the Expertise Representations. As to the time when those representations were said to have been made, see [49] below, although the pleading is imprecise in this regard.

47    Mr Tyne, and through him, the Tyne Related Entities, relied upon the para 21 Expertise Representations in all subsequent dealings with UBS: para 24. Each of the para 21 Expertise Representations was made in relation to financial services within the meaning of s 12BAB of the ASIC Act and s 766A of the Corporations Act.

48    By reason of a document called UBS Client Profile and Acceptance Checklist dated 20 November 2007 and an email from Mr Tyne to Mr Farrell dated 21 November 2007, UBS was aware (prior to the opening by Telesto of an account with UBS Singapore described later in the pleading) that Mr Tyne “would rely upon financial and investment advice and recommendations proffered by UBS to him”: para 20.

Bonds and market parameters – the paras 25 and 26 representations

49    As a result of telephone conversations between “mid to late 2007” (see particulars to para 21) and a particular telephone conversation between Mr Tyne and Mr Betsalel (with no date pleaded – see para 25(b)(i)) together with an email from Ms Chan (an employee of UBS and a colleague of Mr Farrell) dated 2 November 2007 to Mr Tyne, UBS and Pole Star (on behalf of Telesto) agreed to reconfigure the Telesto portfolio to include bonds selected by UBS having regard to two particular parameters (the “para 25 criteria”). First, the bonds were to be limited to those issued by financial institutions that were “important” in the context of their country of residence. Second, such countries were to have the “liquidity and motivation” to support those financial institutions: para 25.

50    In a number of telephone calls made in the period mid to late 2007, representations were made by Mr Betsalel and Mr Farrell to Mr Tyne (and through him to other Tyne Related Entities) that bonds issued by select Kazakhstan financial institutions met the para 25 criteria, as: the nation of Kazakhstan had little or no external debt; Kazakhstan had tens of billions of dollars of liquid assets due to its national oil and gas revenues; Kazakhstan had repaid International Monetary Fund loans early and in full; and Kazakhstan was ruled by President Nazarbayev who aspired for Kazakhstan to be the banking and financial centre of central Asia: para 26.

The First Oral Kazakhstan Representations – the para 27 representations

51    In a number of telephone calls made in mid to late 2007 to Mr Tyne, Mr Betsalel and Mr Farrell made 11 representations pleaded at para 27(a) to (k). At para 27(a) to (c), the representations were that Kazakh financial institutions were audited by “Big 4 accounting firms”; Kazakhstan had a “best practice” financial regulatory regime; and President Nazarbayev and his family held interests in Kazakh financial institutions and, in particular, Bank Turan-Alem (“BTA”) and Astana Finance (“Astana”).

52    Paragraph 27(d) concerns a future matter, namely, that the government of Kazakhstan would support its banking and finance sector and especially financial institutions in which President Nazarbayev’s family held an interest.

53    Paragraph 27(e), (j) and (k) plead opinions to this effect: in the opinion of UBS, BTA was “too big to fail” and would be supported by the government of Kazakhstan; in UBS’s opinion, BTA and Astana could count on support from the government of Kazakhstan; and, in UBS’s opinion, BTA and Astana Eurobonds were “good buying” at the prices prevailing in late 2007.

54    Two other opinions are pleaded at 27(h) and (i), namely, the concerns expressed by ratings agencies as to the exposure of Kazakh banks to the retail estate sector had been exaggerated; and, Kazakhstan had the best banking system in Eastern Europe and Central Asia including Russia.

55    These para 27 representations are described in the pleading as the “First Oral Kazakhstan Representations” and to the extent that any of the representations are a statement of opinion, those opinions were made, it is said, without any reasonable basis for making them having regard to particular matters pleaded at paras 74 to 77 of the pleading.

The First Written Kazakhstan Representations – the para 32 representations

56    At para 32, the applicants plead that UBS made further “statements” concerning the creditworthiness of Kazakh financial institutions and the attractiveness of investing in Eurobonds issued by those institutions. These statements were made to Mr Tyne (and through him to the other Tyne Related Entities) between mid-October 2007 to April 2008.

57    Paragraph 32 pleads 22 such statements.

58    It is not necessary in these reasons to set out all of these statements. The representations can be illustrated by these pleaded statements: “We do not currently observe any signs of deterioration in the fundamentals of Kazakh banks under coverage [which include BTA and Astana]”; “The imminent risk for the banking sector is a decline in real estate prices, which would cause a deterioration of asset quality and collateral valuation and may lead to rising NPL levels … We see the leading Kazakh banks as well protected from this risk. The banks are well provisioned …”; “… we believe there is no threat to banks being unable to service their external debt in the mid term”; “S&P (and UBS) do not have concerns with KZ banks liquidity”; “We are no longer concerned about banks’ [including BTA’s and Astana’s] ability to repay international debt. It is now a question of whether there will be further growth in the banks’ franchises”; and “Emerging market bonds become a safe haven”.

59    The 22 statements pleaded at para 32 are said to be drawn, variously, from a document published by UBS entitled UBS Investment Research – Kazakhstan Banks” dated 11 October 2007 and emailed by Mr Betsalel to Mr Tyne on 17 October 2007 and by Ms Chan to Mr Tyne on 2 November 2007; an email written by Mr Viacheslav Shilin of UBS dated 1 October 2007 and emailed by Mr Betsalel to Mr Tyne on 17 October 2007 and by Ms Chan to Mr Tyne on 2 November 2007; a UBS document entitled UBS Analyst Comments on SP’s Kazakh Downgrade emailed by Mr Betsalel to Mr Tyne on 13 December 2007; a UBS document entitled UBS Investment Research – Notes from our trip to Almaty dated 13 February 2008 and emailed to Mr Tyne by Mr Farrell and/or Mr Betsalel by early April 2008; and a paper prepared by Mr Farrell entitled Emerging Markets High Yield Bonds provided to Mr Tyne by Mr Betsalel by email on 1 April 2008.

60    These 22 statements at para 32 are described in the pleading as the “First Written Kazakhstan Representations”.

61    The applicants say that five of the para 32 statements are representations as to future matters within the meaning of s 12BB of the ASIC Act, s 769C of the Corporations Act, s 37 of the Fair Trading Act (Qld) and s 41 of the Fair Trading Act (NSW) and to the extent that any of the statements amount to an expression of an opinion, that opinion was expressed without any reasonable basis for it having regard to the matters pleaded at paras 74 to 77.

The Ratio Representations – the para 37 representations

62    On 17 October 2007, Mr Betsalel sent an email to Mr Tyne (which was also sent by Ms Chan to Mr Tyne on 2 November 2007) attaching a UBS document entitled UBS Investment Research – Kazakhstan Banks dated 11 October 2007 which contained projections concerning five “key balance sheet and profit and loss ratios for BTA”. The applicants say that to the extent the representations are a statement of opinion, they were made without a reasonable basis having regard to the paras 74 to 77 matters: para 37.

63    The para 37 representations are described in the pleading as the “Ratio Representations”.

The UBS Representations – the para 41 representations

64    At para 41, the applicants plead that, by making the Expertise Representations (mid to late 2007); the First Oral Kazakhstan Representations (mid to late 2007), the First Written Kazakhstan Representations (17 October 2007 to 1 April 2008) and the Ratio Representations (17 October 2008), and by “subsequently advising Telesto to purchase and retain Eurobonds issued by banks in Kazakhstan”, UBS made eight pleaded representations collectively described as the “UBS Representations”: para 41.

65    The para 41 UBS Representations are these:

    UBS had sufficient expertise to advise in respect of proposed investments in Eurobonds issued by Kazakhstan banks;

    UBS had conducted a reasonable amount of research into the viability of investments in Eurobonds issued by Kazakhstan banks;

    there was no information reasonably available to UBS or to investors and professional investment advisers generally that cast material doubt over the correctness of the statements and opinions expressed by UBS that had not been communicated to Mr Tyne by UBS;

    to the extent that information became reasonably available to UBS or to investors and professional investment advisers generally that would cast material doubt over the correctness of any of the statements and opinions expressed by UBS to Mr Tyne, that information would be communicated to Mr Tyne by UBS;

    BTA and Astana were the subject of appropriate financial regulation to justify an investment in bonds issued by them;

    in the opinion of UBS, the Kazakhstan government would support BTA and Astana should they otherwise be at risk of defaulting on their loans;

    in the opinion of UBS, the purchase of a substantial amount of bonds issued by BTA and Astana would be a sound investment decision having regard to the circumstances and the information reasonably available to UBS; and

    in the opinion of UBS, there was no reason to be concerned about BTA’s and Astana’s ability to repay international debt, it now being a question whether there would be further growth in the balance sheets of those entities.

66    The applicants plead that to the extent that these representations constitute the expression of opinion, there was no reasonable basis for it having regard to the paras 74 to 77 factors.

Reliance steps

67    The applicants plead that in the period from August 2007 to February 2008, in reliance upon: (a)  the First Oral Kazakhstan Representations; (b)  the UBS Representations (which, in turn, are pleaded as deriving from the paras 25, 27, 32 and 37 representations – see [49], [51], [56] and [62] of these reasons); and, (c)  the First Written Kazakhstan Representations (qualified, by the phrase, “to the extent that they had then been made”), Mr Tyne did five things: para 45. These representations are later described as the representations referred to in the preamble to para 45.

68    Those five things were these.

69    First, he arranged for the Zurich branch of UBS to provide an inter-branch “guarantee” of any account opened by Telesto with UBS Singapore (called the “Inter-Branch Arrangement”).

70    Second, he arranged for ACN 074 as trustee of the Argot Trust to acquiesce in the pledge by Telesto of nominated securities “lent” to Telesto under the ISLA, as security for the Inter-Branch Arrangement: see Table 1 to the pleading as to the securities lent prior to 6 September 2007.

71    Third, he arranged for ACN 074 as trustee of the Argot Trust to lend to Telesto other nominated securities pursuant to the ISLA as collateral security for the Inter-Branch Arrangement: see Table 2 to the pleading as to the securities lent to Telesto on 6 September 2007.

72    Fourth, he arranged for Telesto to open an account with UBS Singapore including a credit facility secured by a mortgage called the “Lombard Loan”.

73    Fifth, he arranged for Pole Star, as agent for Telesto, “to call upon the Inter-Branch Arrangement as security for the Lombard Loan” which enabled Telesto to acquire bonds recommended by Mr Farrell as described in Table 3 to the pleading: bonds issued by BTA on 14 January 2008, 16 January 2008, 17 January 2008, 11 March 2008 and 17 March 2008 (being six bond issues in all) and 10 bond issues in all by Astana on 14 January 2008, 15 January 2008, 16 January 2008, 18 January 2008 and 5 February 2008. Thus, 16 bonds were taken up by Telesto. Some were issued in Pounds Sterling. Others were issued in Euros and others in United States Dollars. The subscription price for three of the bonds issued in Pounds Sterling was £2,166,031.25. The subscription price for seven of the bonds issued in Euros was €12,179,552.21. The subscription price for six of the bonds issued in United States Dollars was USD$7,362,937.50.

74    The applicants plead that each representation referred to at [67] was false when made and remained false throughout the para 45 periods, namely, mid-2007 to 1 April 2008: para 46. They plead that those representations induced ACN 074 as trustee of the Argot Trust to do the things described at [70] and [71] and but for those representations ACN 074 as trustee of the Argot Trust would not have done those things: para 48.

Margin Calls

75    In the first quarter of 2008, the market value of the bonds (a reference to the bonds acquired by Telesto as pleaded at para 45(e) – see [73]) declined and UBS made, and continued to make, by telephone calls, a number of “Margin Calls” upon Mr Tyne demanding a reduction in the balance of the Lombard Loan used by Telesto in the purchase of the bonds: para 49.

The Second Oral Kazakhstan Representations – the para 50 representations

76    The applicants pleaded that in the “context of those telephone calls” UBS, through Mr Betsalel and Mr Farrell, made further oral representations as to the “creditworthiness” of BTA and Astana and the “sensibleness” of Telesto meeting Margin Calls in order to have Telesto retain the Bonds. The representations were that BTA and Astana were fundamentally sound; BTA was “too big to fail”; Astana was a “quasi-sovereign credit”; and the Kazakh government “would support BTA and Astana”: para 50.

77    These para 50 representations are described in the pleading as the “Second Oral Kazakhstan Representations”.

The Default Representation – the para 51 representation

78    In the second quarter of 2008, Mr Farrell represented to Mr Tyne that BTA “is not a bank that is going to default”: para 51.

79    This representation is described in the pleading as the “Default Representation”.

80    The applicants plead that to the extent that each para 50 representation and the para 51 default representation is a representation as to a future matter, they rely upon s 12BB of the ASIC Act, s 769C of the Corporations Act, s 41 of the Fair Trading Act (NSW) and s 37 of the Fair Trading Act (Qld) and to the extent that any such representation is a statement of opinion, it was made without any reasonable basis for it.

Reliance Steps

81    In the period February 2008 to August 2008, in reliance upon the para 45 representations now described as the “preamble representations” (described at [67]), the para 50 Second Oral Kazakhstan Representations and the para 51 Default Representation, Mr Tyne did two particular things: para 56.

82    First, he arranged for ACN 074 as trustee of the Argot Trust to lend to Telesto particular nominated securities pursuant to the ISLA thereby enabling Telesto to meet Margin Calls made upon it in order to retain the bonds it had acquired and, in addition, to acquire in April 2008 additional bonds.

83    Second, he arranged for ACN 074 as trustee of the Argot Trust to agree with Telesto (which was then acting through its agent Pole Star whose affairs were conducted by Mr Tyne), a replacement securities lending arrangement (described in the pleading as the “Second Securities Lending Arrangement”). The replacement “Securities Lending Agreement” is dated 4 August 2008 and made between ACN 074 as trustee of the Argot Trust and Pole Star.

84    The applicants plead that the para 45 preamble representations described at [67], the para 50 Second Oral Kazakhstan Representations and the para 51 Default Representation were false when made and remained false at all times thereafter (including the period February 2008 to August 2008) and give rise to contraventions of s 12DA of the ASIC Act, s 1041H of the Corporations Act and contraventions of the two State Fair Trading Acts.

85    The applicants plead that the representations described at [84] induced ACN 074 as trustee of the Argot Trust to do the things described at [82] and [83] and but for those representations ACN 074 as trustee of the Argot Trust would not have done those things.

The Second Written Kazakhstan Representations – the para 60 representations

86    After the first quarter of 2008, UBS made further representations by the provision of written materials to Mr Tyne as to the “creditworthiness” of BTA and Astana and the “sensibleness” of Telesto meeting Margin Calls in order that Telesto retain the bonds taken up by it: para 60. On 19 September 2008, Mr Farrell sent Mr Tyne an email concerning BTA in which Mr Farrell said the position was: “Overall: very, very positive. Usual disclaimer, mainly I don’t have a crystal ball, but this is one bank that is NOT having problems”. On 24 October 2008, Mr Farrell sent an email to Mr Tyne attaching a document entitled UBS Investment Research, Astana Finance dated 14 October 2008 which contained the following remarks:

“Total assets for Astana Finance grew 19.4% during the 1H08 to USD $2.4bn”, “NPL’s/Gross loans increased to 1.5% but are covered by 2.4x”, “Given the capital injections by shareholders, paid in share capital increased over 5x to US $248mn” and “CAR stands at a healthy 19%”.

87    These para 60 representations are described in the pleading as the “Second Written Kazakhstan Representations”.

88    The pleading adopts the usual format of asserting that the representations were made in relation to financial services within the meaning of the ASIC Act and the Corporations Act and to the extent that the representations are a statement of opinion, the opinion was made without any reasonable basis for it having regard to paras 74 to 77 of the pleading.

The Third Oral Kazakhstan Representations – the para 64 representations

89    After the first quarter of 2008 and before 24 September 2008, UBS made further representations, by way of oral statements made by Mr Betsalel and Mr Farrell in the course of telephone conversations with Mr Tyne, as to the “creditworthiness” of BTA and Astana and the “sensibleness” of Telesto meeting Margin Calls in order that Telesto retain the bonds taken up by it. The applicants plead statements to the effect that “the Bonds are good” and the “Bonds are money good” (sic): para 64.

90    These para 64 representations are described in the pleading as the “Third Oral Kazakhstan Representations”.

Reliance Steps

91    After August 2008, Mr Tyne, in reliance upon the para 45 preamble representations (see [67]), the para 60 Second Written Kazakhstan Representations (see [86]) and the para 64 Third Oral Kazakhstan Representations (see [89]) (again qualified by the phrase “to the extent that they had been made”), did two things: para 65.

92    First, he caused ACN 074 as trustee of the Argot Trust to refrain from requesting the return of the securities lent to Telesto as identified in the pleading described as the “Lent Securities”.

93    Second, he caused ACN 074 as trustee of the Argot Trust to agree to Telesto pledging or liquidating the Lent Securities in order to enable Telesto to meet Margin Calls and retain the bonds.

94    The applicants plead that the representations referred to at [91] of these reasons were false when made and false when the steps described at [92] and [93] were taken.

95    By reason of those matters, the applicants contend that UBS contravened s 12DA of the ASIC Act, s 1041H of the Corporations Act and the relevant provisions of the State Fair Trading Acts.

96    The applicants contend that but for the para 64 Third Oral Kazakhstan Representations, ACN 074 as trustee of the Argot Trust, would not have undertaken the steps described at [92] and [93] of these reasons and only took those steps in reliance upon the representations.

The Fourth Oral Kazakhstan Representations – the para 69 representations

97    On or about 24 September 2008, Mr Tyne met with Mr Farrell, Mr Betsalel and other UBS employees in Singapore to discuss the global financial crisis and its effect upon the bonds taken up by Telesto: para 69. The applicants plead that at this meeting Mr Farrell made at least five representations described in the pleading as the Fourth Oral Kazakhstan Representations: para 69.

98    The representations were: UBS was “comfortable with the Bonds”; Kazakhstan had “virtually no foreign debt and massive foreign currency reserves”; the Kazakh government “could refinance the entire banking sector if it had to”; the banking system was “well regulated with key financial institutions including BTA and Astana audited to international accounting standards”; and, the Kazakh government “will support the nation’s key financial institutions [including] BTA and Astana which were both ‘fundamentally sound’”: para 69(a) to (e).

Reliance Steps

99    After 24 September 2008, Mr Tyne, in reliance upon the para 45 preamble representations (see [67]), the para 60 Second Written Kazakhstan Representations (see [86]) and the para 64 Third Oral Kazakhstan Representations (again qualified by the phrase “to the extent that they had then been made” – (see [89])), did two things (although it is not pleaded that he did so in reliance upon the Fourth Oral Kazakhstan Representations): para 70.

100    First, he caused ACN 074 as trustee of the Argot Trust to refrain from requesting the return of the Lent Securities.

101    Second, he caused ACN 074 as trustee of the Argot Trust to “acquiesce” in Telesto pledging or liquidating the Lent Securities in order to meet Margin Calls so as to enable Telesto to retain the bonds.

102    In the way earlier described, the applicants contend that these representations (and each of the Fourth Oral Kazakhstan Representations) were false when made and remained false thereafter including after 24 September 2008: para 71; contraventions of the legislation (as earlier mentioned) arise and, but for the representations, ACN 074 as trustee for the Argot Trust would not have taken the steps described at [100] and [101] of these reasons.

Undisclosed matters of fact – the para 74 facts

103    At para 74, the applicants plead that “at no time” did UBS “inform” any “Tyne Related Entity” of any of 26 matters of fact each of which, they say, was “true” when each of the para 64 representations (namely, the Third Oral Kazakhstan Representations) were made (subject to two matters each of which, they say, was true at the date of a document particularised in the pleading).

104    It is not necessary in these reasons to set out the content of each of the 26 contended undisclosed matters of fact. It is sufficient for present purposes to note that the substance of para 74 is that from a period in 2003 to 2008 a series of reports were issued from bodies including the International Monetary Fund (“IMF”), the United Nations (“UN”), the Organisation for Economic Cooperation and Development (“OECD”), the World Bank, the Asian Development Bank and other sources, which are said to suggest that serious concerns were held about: Kazakhstan banks; the regulatory environment within Kazakhstan concerning banking institutions; ownership structures relating to Kazakhstan banks; non-compliance by Kazakhstan with eight out of 25 core principles recited as part of the “Basel Core Principles for Effective Banking Supervision”; the insolvency of two Kazakhstan banks largely attributable to substantial fraudulent activities conducted by bank management; lack of proper risk management systems; and matters relating to BTA and Astana in particular. Other factual matters pleaded suggest that there was no reason to believe that President Nazarbayev or any member of his family ever had an interest in BTA or Astana: see para 74(a) to (z) and particulars at (a) to (z).

105    Two contended matters of fact at para 74 of later relevance to the pleading are these.

106    First, the Chairman of the Board of Directors of BTA, Mr Mukhtar Ablyazov (who also “headed” the Credit Committee of BTA) had approved “USD billions of dollars in loans to companies controlled by him, with no trading history, in remote jurisdictions and without adequate security”: para 74(v).

107    Second, the Chairman and Chief Financial Officer of Astana had caused Astana to enter into transactions to the value of “around USD $1.1 billion … with parties related to them on the basis of fictitious security”: para 74(w).

108    The applicants plead that the para 74 factual matters were matters that UBS ought to have known of, having regard to “the specialist expertise [UBS] professed to possess”, and that much of the information was ascertainable to UBS before it made the First Oral Kazakhstan Representations (mid to late-2007) and thus before UBS recommended, first, the purchase by Telesto of the relevant bonds (being 16 bond issues, issued between 14 January 2008 and 17 March 2008 – see Table 3), and second, the subsequent retention of the bonds: para 77.

109    The applicants contend that the failure of UBS to ascertain and advise Mr Tyne (and through him each Tyne Related Entity) of the para 74 factual matters, or any of them, rendered each of the representations made to Mr Tyne (which must be taken to be a reference to the First Oral Kazakhstan Representations referred to in para 77(b) and cross-referenced to para 74) misleading or deceptive, or representations likely to mislead or deceive, Mr Tyne (and through him each Tyne Related Entity) with the result that UBS contravened the relevant statutory provisions earlier mentioned: para 78.

110    The applicants contend that had UBS advised Mr Tyne of the para 74 undisclosed matters (or any of them – “to the extent that such things then should have been known to UBS”), Mr Tyne would not have caused ACN 074 as trustee of the Argot Trust to do the things set out in paras 45(b) and 45(c), 56, 65 and 70 of the pleading being those matters described at [70], [71], [81] to [83], [91] to [93] and [99] to [101] of these reasons.

Negligence

111    Apart from contentions that UBS engaged in contraventions of s 12DA of the ASIC Act, s 1041H of the Corporations Act and provisions of the two State Fair Trading Acts, the applicants rely upon a cause of action in negligence as the basis for a claim against UBS.

112    The applicants plead that UBS, in providing investment advice to Mr Tyne as the Investment Manager of ACN 074 as trustee of the Argot Trust and to him in his capacity as a Director of Pole Star (and thus, through him, in that role to Telesto), in relation to: the opening of the pleaded account giving rise to the funding facility; the purchase of the bonds; the meeting of Margin Calls; and the liquidation of securities to meet Margin Calls (including securities that UBS knew had been loaned by ACN 074 as trustee of the Argot Trust to Telesto), gave rise to a duty in UBS to exercise reasonable care in the provision of investment advice so as to avoid foreseeable loss being suffered by the Tyne Related Entities: para 80.

113    The applicants say that it was reasonably foreseeable that if UBS failed to exercise due care in the provision of investment advice in connection with those matters, Telesto would suffer loss and especially so if BTA and Astana defaulted on their obligations under the bond issues, and further, such loss could amount to a loss of the entire value of the Telesto portfolio of investments: para 80.

114    The applicants plead that no Tyne Related Entity had expertise as regards investments in bonds issued by Kazakhstan banks or as regards emerging market debt generally. This circumstance was known to UBS: para 80.

115    The applicants plead that UBS breached its duty of care by “making the representations in the circumstances pleaded above” and by failing to undertake proper due diligence and give proper advice to Mr Tyne (and through him the Tyne Related Entities) as to the likelihood of the issuer of the bonds defaulting upon obligations owing to the bond holder: para 81.

The loss suffered by Mr Tyne as trustee of the Argot Trust

116    At paras 81A to 86, the applicants plead the first applicant’s loss.

117    At para 81A, assertions are made about the transactions pleaded at para 74(v): see [106] and [107] of these reasons.

118    As to those para 74(v) transactions (which concern substantial loans approved by BTA’s Chairman to companies controlled by him), the applicants say that those transactions were the type of related party transactions criticised by the UN, the IMF, the OECD, the World Bank, the Asian Development Bank and others as reflected in the documents particularised at paras 74(a), (b), (c), (e), (g), (h), (i), (k), (l), (m), (r), (x), (y) and (z).

119    The applicants plead that the transactions were components of a long running fraud perpetrated by the Chairman of BTA by which BTA was defrauded of more than USD$6 billion.

120    The transactions were enabled by poor internal controls and poor risk management practices being risk factors identified by the UN, the IMF, the OECD, the World Bank and the Kazakhstan Deposit Insurance Fund in the manner described in paras 74(d), (f), (g), (k), (m), (n), (o) and (r).

121    The transactions ultimately motivated BTA to default upon the bonds issued by it being bonds UBS had recommended to Mr Tyne and through him the Tyne Related Entities as pleaded at paras 20 to 25 of the pleading.

122    The applicants also contend that BTA, in defaulting upon the bonds issued by it, acted upon the advice of UBS. The applicants plead that on 9 April 2009, UBS was engaged by BTA to advise it as regards restructuring its debt and UBS acted upon that engagement and profited from it: paras 81A and 88. These matters go to contended breaches of fiduciary duty giving rise to a claim for equitable compensation.

123    At para 82, assertions are made about the transactions pleaded at para 74(w): see [106] and [107] of these reasons.

124    As to the para 74(w) transactions (which concern allegations that the Chairman and also the Chief Financial Officer of Astana caused Astana to enter into transactions valued at approximately USD$1.1 billion with parties related to them on the basis of fictitious security), the applicants say that those transactions were the type of related party transactions criticised by the UN, the IMF, the OECD, the World Bank, the Asian Development Bank and others as reflected in the documents particularised in support of the allegations in paras 74(a), (b), (c), (e), (g), (h), (i), (k), (l), (m), (r), (x), (y) and (z).

125    The applicants plead that the transactions were a fraud perpetrated by the Chairman and Chief Financial Officer of Astana by which Astana was defrauded of approximately USD$1 billion.

126    The transactions were enabled by poor internal controls and poor risk management practices being risk factors identified by the UN, the IMF, the OECD, the World Bank and the Kazakhstan Deposit Insurance Fund in the manner described in paras 74(d), (f), (g), (k), (m), (n), (o) and (r).

127    The transactions ultimately caused Astana to default upon the bonds issued by it including bonds UBS had recommended to Mr Tyne and through him to the Tyne Related Entities as pleaded at paras 20 to 25 of the pleading.

128    The market value of the bonds substantially declined by reason of the default by BTA and Astana rendering the bonds “essentially valueless” thus rendering Telesto unable to return the Lent Securities to ACN 074 as trustee of the Argot Trust or to pay to the trustee of the Trust the “Benchmark Value” in lieu of the return of the deposited Lent Securities: para 83.

129    Thus, the estate of the Argot Trust was “diminished and the beneficiaries suffered loss and damage”.

130    The applicants plead that the contraventions by UBS of s 12DA of the ASIC Act, s 1041H of the Corporations Act and the provisions of the two State Fair Trading Acts “caused that loss”: para 85. Alternatively, the loss was caused by the negligence of UBS: para 86.

Breach of fiduciary duty

131    The applicants also plead that UBS owed Mr Tyne, and through him, the Tyne Related Entities (including ACN 074 as trustee of the Argot Trust), a fiduciary duty not to cause or permit any conflict of interest to arise between, on the one hand, the interests of UBS and on the other, the interests of the Tyne Related Entities, and also a duty not to prefer its own interests, on the one hand, to the interests of any beneficiary of the duty, on the other.

132    The applicants say that on 9 April 2009, UBS accepted an engagement to advise BTA. On 24 April 2009, BTA declared that it would cease payment of principal sums owing by it. On or about 29 April 2009, BTA defaulted on payment of coupons owed to bond holders including the payment of coupons under the bond issues taken up upon the advice of UBS. At para 91, the applicants plead that the acceptance by UBS, for reward, of advising BTA, as pleaded, put UBS in a position in which its duties to BTA on the one hand, and Mr Tyne (and through him Tyne Related Entities) on the other hand, were in actual or, alternatively, potential conflict. Thus, UBS breached its fiduciary duty, it is said, to Mr Tyne (and through him duties owed to the Tyne Related Entities).

133    Mr Tyne as trustee of the Argot Trust seeks equitable compensation flowing from the breach of the pleaded fiduciary duty.

The claim by Ms Marks

134    As to Ms Marks, the applicants plead that at all material times, Ms Marks was the registered proprietor of particular land in Queensland.

135    On 14 October 2007, Mr Tyne and Ms Marks entered into a Building Construction Agreement with Deep North Developments Pty Limited and Mr Neil Lyford for the construction of a dwelling upon the land. An Amending Agreement dated 19 December 2008 was also entered into by those same parties: paras 93 and 94.

136    The applicants plead that at all times Mr Tyne acted as an agent for Ms Marks in relation to “all matters to do with the construction of the Dwelling … including the funding of such construction”. The agency arrangement as between Mr Tyne and Ms Marks is pleaded as having arisen through “written and oral agreements” and in so far as written agreements are concerned, the agreements are the two agreements mentioned at [135] of these reasons: para 95.

137    To enable construction of the dwelling to occur, Mr Tyne, in November 2007, arranged for “the extension of an extant debt facility between Telesto and the ANZ Bank”. The extension arrangement is contained in a letter from the ANZ Bank dated 15 November 2007. The arrangement is pleaded as the “Facility Extension”: para 96.

138    Pursuant to (presumably the terms of the) Facility Extension, Ms Marks executed what is pleaded as a “replacement guarantee” on or about 15 November 2007 of Telesto’s obligations under the Facility Extension and on the same date, Mr Tyne executed a guarantee of Telesto’s obligations “under that extended debt facility”. The terms and conditions of Ms Marks’s guarantee are said to be set out in an undated Guarantee document. The terms and conditions of Mr Tyne’s guarantee are set out in a Guarantee document dated 21 December 2007: para 97.

139    The obligations of Ms Marks under her guarantee were secured in favour of the ANZ Bank by a registered mortgage over the land upon which the dwelling was to be constructed. The First Registered Mortgage, however, is pleaded as having a date of 5 September 2006 (although the instruments of guarantee seem to be dated on or about 15 November 2007 and 21 December 2007): para 98.

140    Construction of the dwelling commenced in approximately February 2008 “with construction initially funded by Mr Tyne and Ms Marks as required by the terms of the Facility Extension”: para 99.

141    By 22 October 2008, approximately $6 million had been drawn down under the terms and conditions of the Facility Extension and expended upon construction of the dwelling: para 100(a).

142    By 22 October 2008, Mr Tyne believed that the Telesto portfolio of investments (which, by then, comprised almost exclusively the bonds) was not at risk from circumstances relating to the emergence of a global financial crisis, and believed that Telesto’s investments were “in all respects sound”: para 100(b).

143    The applicants plead that Mr Tyne held that belief in reliance upon the representations referred to in the preamble of para 70 “(to the extent that they had then been made)”. Those representations referred to in the preamble to para 70 are cross-referred to “the representations referred to in para 56”. Paragraph 56, in turn, is cross-referenced to para 45. The preamble to para 70 also refers to the Second Written Kazakhstan Representations and the Third Oral Kazakhstan Representations (to the extent that they had then been made – remembering that those oral representations are said to have been made between the end of the first quarter of 2008 and before 24 September 2008). The representations referred to in para 56 are the Second Oral Kazakhstan Representations and the Default Representation (to the extent that they had then been made) and also the para 45 preamble representations which are the First Oral Kazakhstan Representations, the UBS Representations and the First Written Kazakhstan Representations (again, to the extent that they had then been made).

144    The net effect of this style of water running uphill pleading, is that Mr Tyne and Ms Marks plead that Mr Tyne held the para 100(b) belief that Telesto’s investments were “in all respects sound” in reliance upon: the First Oral Kazakhstan Representations, the Second Oral Kazakhstan Representations, the UBS Representations, the First Written Kazakhstan Representations, the Second Written Kazakhstan Representations, the Default Representations, and the Third Oral Kazakhstan Representations: see paras 70, 56 and 45 of the pleading.

145    From 16 January 2009, Mr Tyne caused drawdowns to be made under the Facility Extension. The applicants plead that he did so in reliance upon “the representations referred to in the preamble of paragraph 70” which is the same formulation described at [143] and [144] and in reliance upon the para 100(b) belief which he is said to have held in reliance upon those representations: para 101.

146    The applicants plead that by reason of the non-disclosure of the factual matters recited at para 74 of the pleading (all of which are said to be matters that UBS ought to have known of) each representation forming part of the representations described at [143] was false at the time it was made and false “at the times referred to in paras 94, 96, 97, 100 and 101”. Those pleaded dates, in the order of those paragraphs, are 14 October 2007, November 2007, 15 November 2007, 22 October 2008 and 16 January 2009.

147    The applicants then plead at para 103 that “[i]n the premises of paragraph 71”, UBS contravened s 12DA of the ASIC Act, s 1041H of the Corporations Act and the relevant provisions of the State Fair Trading Acts. The premises of para 71 are that by reason of the matters pleaded in paras 74 to 77 (being the non-disclosure of particular matters in circumstances where UBS ought to have known of, and the truth of, those matters), each representation referred to in para 65 of the pleading (that is, the representations cross-referenced by that paragraph to para 56 which is, in turn, cross-referenced to the preamble representations of para 45 and also the Second Written Kazakhstan Representations and the Third Oral Kazakhstan Representations (as expressly mentioned in para 65)), was false at the time it was made and at all times thereafter including the times referred to in para 70 (that is, any time after 24 September 2008).

148    Each of these rolled up aggregated paragraphs of the pleading have to be deconstructed to understand precisely the factual contention the applicants are seeking to plead and rely upon.

149    The applicants then plead that the representations referred to in para 70 of the pleading (as to which again see the identification of those representations at [143] and [144] of these reasons) and the failure of UBS to advise Mr Tyne of any of the matters described as the undisclosed matters, induced Mr Tyne, and through him Ms Marks, to: enter into the Building Construction Agreement on 14 October 2007 and the Amending Agreement on 19 December 2008; enter into the Facility Extension with the ANZ Bank on 15 November 2007; enter into the guarantees on or about 15 November 2007 (of which Mr Tyne’s guarantee is dated 21 December 2007); draw down by 22 October 2008 $6 million under the Facility Extension; and, make further drawdowns under the Facility Extension from 16 January 2009: para 104.

The formulation of the loss suffered by Ms Marks

150    The applicants plead that by reason of the default by BTA and Astana (the subscription price of which is set out at [73] of these reasons), the market value of the bonds declined substantially which, in turn, caused Telesto to default upon its obligations to the ANZ Bank under the Facility Extension.

151    The guarantee given by Ms Marks to the ANZ Bank was called upon.

152    The obligations of Ms Marks under the guarantee were supported by a first ranking registered mortgage over the land of which she was the registered proprietor. The mortgagee exercised a power of sale under the mortgage and sold the property.

153    Ms Marks’s right of indemnity against Telesto as guarantor to the ANZ Bank was rendered worthless by Telesto’s default.

154    Ms Marks lost the property by reason of the mortgagee’s exercise of the power of sale and was unable to recoup the value of the loss through her right of indemnity against Telesto.

155    The applicants plead that the loss suffered by Ms Marks was caused by the pleaded contraventions by UBS of s 12DA of the ASIC Act, s 1041H of the Corporations Act and contraventions of the relevant provisions of the State Fair Trading Acts.

Context

156    The discussion from [25] to [155] of these reasons addresses all the causes of action and the factual foundation for those causes which Mr Tyne as trustee of the Argot Trust and Ms Marks seek to litigate in this Court. These are the facts the applicants would seek to make good in the proceeding. It is now necessary to identify the history and content of the earlier proceedings, the parties to those proceedings, any relevant relationship between those proceedings (in terms of parties and causes of action litigated) and these proceedings, and any legal consequences that might arise, for the applicants, having regard to orders made and steps taken in one or more of the earlier proceedings.

The commencement of the UBS proceedings in the High Court of Singapore

157    On 15 October 2010, UBS commenced proceedings (801/2010) in the High Court of the Republic of Singapore (the “Singapore High Court”) against Telesto and Mr Tyne individually, the Singapore 801 proceedings.

158    In those proceedings, UBS asserted that Telesto was an account customer of UBS (Account No. 116731 opened in Singapore in December 2007). The account was subject to terms and conditions contained in 14 pleaded documents (including “Account Terms and Conditions”, a “Charge Over Assets” document and a “Request for Subscription of Bond Linked Notes”) all collectively called the Account Agreement. Pursuant to a “Credit Services Notification Letter” (“CSNL”) dated 12 December 2007 (and CSNL letters dated 13 February 2008, 1 June 2008 and 1 August 2008), UBS made available to Telesto a short term overdraft facility limited to USD60 million, an exchange traded derivative facility and a further derivative trading facility, all subject to the terms of the CSNL.

159    The terms of the CSNL are pleaded and include a term that the short term advances were repayable at maturity in the currency drawn down. The overdraft was repayable on demand. Telesto was to provide collateral acceptable to UBS and UBS enjoyed an “unrestricted right” to sell or realise the collateral should Telesto not comply with a request by UBS to reduce the outstanding amount or provide additional collateral. The terms and conditions of each facility are pleaded. It is not necessary to recite the details of those matters.

160    UBS pleads that Mr Tyne entered into an all monies guarantee with UBS of Telesto’s obligations. The material terms of the guarantee are pleaded.

161    Pursuant to the CSNL, Telesto utilised the facilities to purchase various investments including bonds secured by the collateral. UBS pleads that pursuant to the CSNL terms, including the “Account Mandate” terms, Telesto admits (and is estopped from denying) the total liabilities owed by it to UBS.

162    In September 2008, the value of the collateral fell and UBS made a margin call upon Telesto on 28 October 2008.

163    UBS pleads that the margin shortfall was then USD28,159,607; Telesto failed to meet the call; and, after negotiations between UBS, Telesto and Mr Tyne, a “Standstill Agreement” (the terms of which are set out in a letter from UBS to Telesto dated 14 December 2009), was accepted by Telesto on 31 December 2009.

164    Under the Standstill Agreement, UBS agreed not to realise the account collateral or make further margin calls until 31 March 2011 or until an “Event of Default” occurred. Telesto agreed to apply all cashflows towards repayment of the total liabilities and provide or procure four things in favour of UBS by 31 December 2009 to support Telesto’s total liability to UBS. They were: the deposit of custody of particular shares; the assignment of particular litigation proceeds; the procuring of a particular letter of undertaking from ACN 074 as trustee of the Argot Trust; and, the provision of an overview, signed by Mr Tyne, of the assets and liabilities of Mr Tyne and entities beneficially owned by him.

165    As part of the Standstill Agreement, UBS also reduced the maximum available facility amount to USD13 million with effect from 31 December 2009.

166    UBS also pleads that in consideration of it having entered into the Standstill Agreement, Telesto and Mr Tyne “impliedly agreed” to waive or not raise any claims or defences they might have in relation to the account investments including the acquisition and management of those investments (including the bonds). UBS also pleads that by reason of the Standstill Agreement or alternatively the implied agreement, Telesto and Mr Tyne compromised (or are estopped from asserting) any claims they may have against UBS in relation to the account investments and the management of those investments (including the bonds).

167    Events of default were said to have occurred between 31 December 2009 and October 2010. One of those events was a contended failure by ACN 074 as trustee of the Argot Trust to comply with obligations under the letter of undertaking provision. The Standstill Agreement was terminated by UBS by notice on 15 October 2010. The total liabilities became immediately due and payable. At 14 October 2010, Telesto’s outstanding liability to UBS was USD12,617,499.56 plus a default rate of interest of 3% above the UBS cost of funds.

168    Demands were made upon Telesto on 15 October 2010 for payment of that amount and upon Mr Tyne, as guarantor, on 15 October 2010. In the proceedings, UBS sought an order against both defendants for payment of the sum of USD12,617,499.56 plus interest.

169    UBS also sought a declaration that both defendants were estopped from asserting any claims (or defences) they may have arising out of, or in relation to, the investments and/or the total liabilities including but not limited to the acquisition or management of the investments and/or those liabilities. UBS also sought a declaration that both defendants had “compromised” any such claims (or defences).

The commencement of the New South Wales Supreme Court proceedings

170    On 2 November 2010, Telesto, Mr Tyne and ACN 074 as trustee of the Argot Trust, commenced proceedings in the Supreme Court of New South Wales (proceedings 2010/363808 (the “SCNSW proceedings”)) against UBS.

171    In those proceedings, as filed, essentially two groups of issues were agitated against UBS.

172    First, the plaintiffs contended that as Pole Star only had limited authority to transact on behalf of Telesto (confined to particular classes of securities) and Mr Tyne had made those limitations plain to UBS with the result that UBS had assured Mr Tyne that it would obtain direct written instructions and the relevant written authorities from Telesto necessary to enable UBS to transact for the acquisition of other classes of securities described as “less than investment grade” securities, and UBS had failed to obtain the necessary direct written instructions and authorities from Telesto, it followed that UBS simply never had authority to purchase the Kazakh bonds on behalf of Telesto when it purported to so act for Telesto on instructions from Pole Star.

173    Second, Telesto contended that in the event that the transactions were those of Telesto, it maintained that it had suffered losses arising out of the negligence of UBS or alternatively, as a result of misleading or deceptive conduct on the part of UBS occasioned through representations made by Mr Farrell. UBS was said to have proffered to Pole Star, as disclosed agent for Telesto, certain advice in relation to transacting in the Kazakh bonds and had made a number of representations, in reliance upon which, Telesto purchased the bonds. The bonds are set out in a schedule to the commercial list statement (Table 1). The same schedule of bonds is attached to the amended statement of claim in the Federal Court proceedings. Those representations were conveyed to Pole Star through Mr Tyne whilst Mr Tyne was in Australia. The plaintiffs contended that the representations were ones to which the ASIC Act, the Fair Trading Act 1987 (NSW) and the Fair Trading Act 1989 (Qld) applied. The plaintiffs contended that UBS had contravened those Acts and that Telesto had suffered loss by reason of the contraventions.

174    The plaintiffs also contended that UBS had procured, for itself, an engagement by the Kazakhstan government to provide advice concerning the crisis that had arisen as a result of alleged bank frauds on the part of Kazakhstan banks. The plaintiffs contended that UBS had advised the Kazakhstan government, and through it, the banks, to default on the payment of interest under the bonds issued by Kazakh banks including the bonds taken up by Telesto. The plaintiffs contended that this separate engagement of UBS caused UBS to breach fiduciary duties owed to Telesto.

175    The plaintiffs also alleged that following Telesto’s investment in the bonds, and its continuing reliance on the advice and representations made by UBS, Mr Tyne and the trustee of the Argot Trust entered into certain guarantees and security instruments in support of the trading account Telesto had opened with UBS. Mr Tyne and the trustee of the Argot Trust sought orders which would have the effect of releasing them from those securities or, alternatively, an award of damages or equitable compensation to the extent of their liabilities under those securities.

176    On 17 December 2010, the three plaintiffs in the SCNSW proceedings filed an amended summons and amended commercial list statement.

177    In the amended claim, the three plaintiffs sought a declaration that the investment transactions purportedly entered into by UBS on behalf of Telesto between 14 January 2008 and 5 February 2008, were entered into by UBS without any authority to do so for Telesto and that they were not transactions done by or on behalf of Telesto. The plaintiffs sought an order that six particular instruments be declared void ab initio. They also sought damages in respect of that conduct and damages for conduct said to be in contravention of the ASIC Act and the two State Fair Trading Acts.

178    In the amended statement, the plaintiffs plead the lack of authority point in some detail. The plaintiffs also develop, in the amended statement, the factual contentions concerning the provision of advice by UBS said to be negligent and the making of representations said to be misleading.

179    As to these latter issues, the plaintiffs plead that representations were made to Mr Tyne and through him to Pole Star, Telesto and the trustee of the Argot Trust and that a duty was owed by UBS to all three plaintiffs to exercise reasonable care in the provision of the advice and a statutory duty not to engage in misleading conduct. The plaintiffs plead representations made to Mr Tyne, and through him, to Pole Star and Telesto, and also plead that UBS failed to inform all three plaintiffs of 11 particular matters. The plaintiffs say that but for UBS’s negligent and misleading or deceptive conduct, Telesto would not have purchased the bonds and the trustee of the Argot Trust would not have provided particular identified additional security. Nor would Mr Tyne have given a guarantee to UBS.

180    The plaintiffs say that in reliance upon the advice of UBS, Pole Star procured the trustee of the trust to provide third party security in the form of a mortgage over assets of the unit trust to UBS (the “Mortgage”). The Mortgage took the form of an old style deed of assignment dated 23 December 2009. Pole Star also procured the trustee of the trust to provide UBS with a Letter of Undertaking dated 23 December 2009. The plaintiffs plead that to the extent that the Mortgage and the Letter of Undertaking are enforceable against the trustee, loss has been suffered by the trustee of the trust. By reason of the conduct of UBS (bearing the pleaded contended character), all three plaintiffs have suffered loss.

181    It is convenient to mention at this point the further amendment which was made to the SCNSW proceedings although this amendment is much further on in the chronology of events: see [238] of these reasons.

182    On 21 February 2012, a further amended summons and further amended commercial list statement was filed by the plaintiffs. By those amendments, Mr Tyne and ACN 074 as trustee of the Argot Trust sought to be removed as plaintiffs leaving only Telesto as the plaintiff in the proceedings. Telesto sought a declaration that the various investment transactions purportedly entered into by UBS for Telesto between 14 January 2008 and 17 March 2008 (as set out in Table 1) were validly rescinded by Telesto pursuant to provisions of the Corporations Act 2001 (Cth) and that each such transaction be declared void ab initio. The proceedings were amended such that Telesto abandoned the notion that UBS had no authority to act for Telesto in the transactions for the acquisition of the bonds.

183    Telesto maintained its position that it had suffered losses by reason of representations made by Mr Farrell and that UBS had engaged in misleading or deceptive conduct in contravention of the nominated Commonwealth and State legislation. Telesto contended that UBS had acted in a conflict of interest (as earlier described) and had breached fiduciary duties owed to Telesto. The claims by Mr Tyne and ACN 074 as trustee of the Argot Trust were not pressed and those parties withdrew from the SCNSW proceedings without objection from UBS. As to that latter matter, see [234] to [237] of these reasons.

184    It is, of course, necessary to compare the pleading in the SCNSW proceedings as filed and then amended and then further amended with the amended statement of claim in the Federal Court proceedings to form a view about the degree of symmetry between the causes of action which were sought to be litigated (and on whose behalf) in the SCNSW proceedings (both over time and ultimately) with the causes of action now pleaded in the Federal Court proceedings by the trustee and Ms Marks. It is also important to compare the suite of factual allegations made in each proceeding.

185    It is not necessary, however, to set out in these reasons the detail of the factual pleading in the SCNSW proceedings concerning the way in which the representations have been pleaded for the purposes of demonstrating, in these reasons, the degree of symmetry or overlap between the two proceedings. It is enough to say that having considered the various commercial list statements in detail, it is fair and accurate to conclude that the essential underlying facts and circumstances as the foundation for the conduct of UBS, in the SCNSW proceedings, are reflected in the Federal Court proceedings as the complained of conduct of UBS. In the Federal Court proceedings, the extent of the contended representations made by UBS are more expansive but the essential allegations are the same as those made in the SCNSW proceedings.

186    However, in the SCNSW proceedings, the conduct is said, initially, to have given rise to reliance by and losses suffered by Telesto, Mr Tyne individually and ACN 074 as trustee of the Argot trust, in the way earlier described so far as the trustee is concerned, the UBS conduct, in the SCNSW proceedings, is said to have led to Pole Star procuring the Mortgage and the Letter of Undertaking from the trustee in favour of UBS, rather than representations made directly to the trustee which induced reliance conduct in the way pleaded in the Federal Court proceedings. The UBS conduct, in the SCNSW proceedings, is said to have constituted contraventions of Commonwealth and State legislation.

187    Later, only Telesto asserted claims in the SCNSW proceedings.

188    In the Federal Court proceedings, claims are made by the trustee of the Argot Trust (Mr Tyne having replaced ACN 074 as trustee of that trust shortly before the commencement of the Federal Court proceedings) and Ms Marks. It should also be noted that in the NSW Supreme Court proceedings the plaintiffs refer to Telesto’s engagement of Pole Star Funds Management Pty Limited as manager of Telesto’s investment portfolio consistent with the recitals in the Investment Management Deed of 9 October 2006. In the Federal Court proceedings, the applicants plead that Pole Star Investments Limited was the relevant manager of Telesto’s investment portfolio. This may be however simply a mis-description of the Pole Star entity.

Other events

189    On 19 October 2010, the Singapore High Court made orders allowing UBS to serve the originating process in the Singapore 801 proceedings on Telesto in Jersey and on Mr Tyne in the United Kingdom. It seems that sometime after 23 October 2010, UBS received notification from the United Kingdom Royal Mail that the delivery of the UBS initiating process upon Mr Tyne was refused. On 5 November 2010, service of the Singapore 801 proceedings was effected upon Telesto in Jersey by the Royal Court of Jersey.

190    On either 3 or 5 November 2010, the summons and commercial list statement filed in the SCNSW proceedings was served upon UBS in Singapore.

191    On 11 November 2010, UBS commenced proceedings in the Singapore High Court to restrain the three plaintiffs in the SCNSW proceedings from carrying on those proceedings (the “Singapore Anti-Suit Application”): see O.S. No. 1160 of 2010/V. In that application, UBS sought relief against the trustee of the Argot Trust notwithstanding that that entity was not a party to the Singapore 801 proceedings.

192    On 24 November 2010, a Singapore law firm, Tan Kok Quan, filed an appearance on behalf of Telesto in the Singapore 801 proceedings. Mr Tyne says that this appearance was a conditional appearance to contest the jurisdiction of the Court.

193    On 9 December 2010, the New South Wales Supreme Court heard a motion filed by UBS in the SCNSW proceedings for an order that those proceedings be temporarily stayed pending the determination of the Singapore Anti-Suit Application. Consent orders were made, that day, for a temporary stay of those proceedings without prejudice to the respective positions of the parties in the Singapore 801 proceedings: see the orders entered in the NSW Supreme Court proceedings on 14 January 2011 and, in particular, the matters noted as Items (a) and (b) at the foot of the orders.

194    It seems that on 14 December 2010 the originating process in the Singapore 801 proceedings was served upon Mr Tyne in Sydney by service upon his solicitors consequent upon an order for substituted service made on 14 December 2010.

195    On 21 December 2010, Telesto applied in Singapore for a stay, on the ground of forum non coneniens, of the Singapore 801 proceedings in favour of the continuation and prosecution of the SCNSW proceedings. On 10 January 2011, Mr Tyne applied before the Singapore High Court for a stay of the Singapore 801 proceedings in favour of the continuation and prosecution of the SCNSW proceedings. Telesto and Mr Tyne were represented in these applications by Tan Kok Quan Solicitors.

The anti-suit injunction order and the stay applications

196    On 11 February 2011, the Singapore Anti-Suit Application brought by UBS and the stay applications brought by Telesto and Mr Tyne respectively were heard by Assistant Registrar Ms Tan Wen Hsien. On 21 February 2011, the Assistant Registrar made an order in these terms:

1.    The Defendants are to forthwith withdraw and discontinue, and are hereby restrained from prosecuting, or continuing to prosecute, proceedings number 2010/363808, commenced by the Defendants against the Plaintiffs, in the Supreme Court of New South Wales in Australia, by filing a Summons and Commercial List Statement on 2 November 2010 (the “Australian Proceedings”).

197    The defendants referred to in that order were Telesto, Mr Tyne individually and ACN 074 as trustee of the trust. At this point, the commercial list statement in the SCNSW proceeding was the version as amended at 17 December 2010 reflecting the claims described at [176]-[180].

198    By Order 2, the Assistant Registrar restrained the defendants from commencing or continuing any further or other proceedings of any nature in Australia or anywhere else in the world against UBS arising from, relating to, or in connection with: Account No. 116731, the account agreements as pleaded by UBS, the Credit Services Notification Letter dated 12 December 2007, Mr Tyne’s guarantee dated 26 September 2008, Telesto’s utilisation of the facilities made available by UBS to purchase the investments, the collateral provided by Telesto in support of the facilities, the conduct of the account, margin calls, the Standstill Agreement and obligations under it, the Letter of Undertaking executed by the trustee of the trust on 28 January 2010, any alleged breaches of fiduciary duties on the part of UBS in relation to “the crisis in Kazakhstan banks”, any and all claims or defences the defendants may have in relation to the investments and the total liabilities due by Telesto to UBS including the acquisition or management of the investments and, finally, the assignment of all litigation proceeds receivable by the trustee of the trust to UBS in the form of a deed of assignment dated 31 December 2009, otherwise than in the High Court of Singapore.

199    By para 3 of the orders, the Assistant Registrar noted that notwithstanding paras 1 and 2 of the orders, UBS and the defendants had agreed that in the event that an appeal was filed against the Assistant Registrar’s decision, no steps would be taken in the Australian proceedings which was to be suspended pending disposal of any appeal.

200    By para 4, the Assistant Registrar ordered the defendants to pay UBS’s costs of the application on an indemnity basis.

201    The applications for a stay of the Singapore 801 proceedings by Telesto and Mr Tyne were dismissed.

Further other events

202    On 28 February 2011, Telesto, Mr Tyne and ACN 074 as trustee of the Argot Trust filed notices of appeal from the decision of the Assistant Registrar.

203    On 8 March 2011, UBS advised Telesto that if UBS did not receive payment of all amounts due on Account No. 116731, it would take steps to realise the collateral and apply the proceeds of realisation towards discharge of the account liabilities. On 24 March 2011, UBS informed Telesto that it would take immediate steps to realise the collateral and apply the proceeds in reduction of the account liabilities.

The appeal before Chong J

204    On 16 May 2011, the appeal from the orders made by the Assistant Registrar was heard before Justice Stephen Chong of the Singapore High Court. There were two appeals before Chong J (No. 58 of 2011/V in the Singapore 801 proceedings and No. 59 of 2011/Z in O.S. No. 1160 of 2010/V). In other words, the three defendants in O.S. No. 1160 (the “Anti-Suit proceedings”) appealed from the orders restraining their prosecution of the NSW Supreme Court proceedings (and the other restraining order – see [198]), and Telesto and Mr Tyne appealed from the dismissal of their applications for a stay of the Singapore 801 proceedings.

205    On 14 July 2011, Chong J made orders dismissing both appeals with costs on an indemnity basis. By this time, UBS had already taken further steps to realise the collateral securing Telesto’s liability under the terms and conditions of the account and had applied the proceeds of realisation to reduce the total liabilities owed by Telesto to UBS to nil. That left extant a claim by UBS in the Singapore 801 proceedings for declarations as to certain matters and a claim for costs on an indemnity basis. Apart from the claim for costs, the money claims of UBS had been extinguished by realisation of the collateral.

206    The appeals before Chong J from the decision of Assistant Registrar Ms Tan Wen Hsien are, in effect, a hearing de novo. At the outset of his Honour’s reasons for judgment he observes that the appeals before him concern the issue as to which of two jurisdictions, that is, Singapore or Australia, is the more appropriate forum to hear and decide a dispute between the parties arising out of a “customer-banker relationship”.

207    In the proceedings before Chong J, counsel for the defendants (Telesto, Mr Tyne and ACN 074 as trustee of the Argot Trust) conceded that the claims based on deceptive or negligent misrepresentation in the Australian proceedings “could essentially be mounted as a defence to [UBS’s] claim in Singapore”: [2]. Thus, “the Singapore proceedings mirror the Australian proceedings”: [2]. The defendants contended, however, that their prospects in Australia were enhanced based on their contended reliance upon the Commonwealth and State Acts.

The conclusions reached by Chong J

208    It is convenient to mention some of the conclusions Chong J reached in dismissing the appeal from the anti-suit injunction and Telesto’s and Mr Tyne’s appeal from the dismissal of the stay applications: UBS AG v Telesto Investments Limited, Scott Francis Tyne and ACN 074 971 109 Pty Ltd as Trustee of the Argot Unit Trust [2011] SGHC 170.

209    As to the stay applications, Chong J applied the test deriving from Spilada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spilada”) and observed that the legal burden of proof fell on the defendants to demonstrate that some forum other than the Singapore High Court was available having competent jurisdiction and, if the Singapore High Court was so satisfied as to that matter, the burden fell upon UBS to show special circumstances requiring a refusal of the stay applications. It is convenient at this point to mention that the principles which would be applied by an Australian court when considering a stay application are the principles which derive, essentially, from CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Henry v Henry (1996) 185 CLR 571; Puttick v Tenon Ltd (2008) 238 CLR 265. In the Australian context, the question is whether the Australian Court is a clearly inappropriate forum.

210    Chong J noted that UBS’s claims were made pursuant to contractual documents and that the account was “booked in Singapore” and serviced by officers of UBS in Singapore: [10], [56]. Chong J also observed that the issues raised by the defendants in the Australian proceedings were essentially in the nature of defences to avoid liability to claims brought in the Singapore proceedings: [57]. Chong J concluded that it was “beyond debate” that the governing law of the contractual documents was Singapore law: [62]. The Standstill Agreement was also governed by Singapore law: [64].

211    Pursuant to cl 19.1 of the account terms and conditions, the account facilities are governed by and construed in accordance with the law of the country in which the account was booked (that is, Singapore) and Telesto irrevocably and unconditionally submitted to the non-exclusive jurisdiction of the Courts of Singapore: [13(a)]. Pursuant to the terms of the guarantee given by Mr Tyne (paras 27.1 and 27.2), the guarantee is governed by the laws of Singapore and Mr Tyne submitted to the non-exclusive jurisdiction of the Singapore Courts: [13(b)].

212    The Letter of Undertaking given by the trustee of the Argot Trust, by para 4, was governed by Singapore law and provides that the exclusive place of jurisdiction for any dispute arising out of and in connection with the Letter of Undertaking is Singapore: [111].

213    Counsel for the defendants conceded that Singapore was clearly the natural forum for the determination of UBS’s claims: [66], [71]. Notwithstanding that Singapore was the natural forum for those claims, counsel for the defendants contended that since the misrepresentations were received by the defendants in Australia, the natural forum for the dispute was Australia. Chong J concluded that since Mr Tyne acted upon the representations by communicating instructions to officers of UBS in Singapore, the place of the tort for the contended misrepresentations was Singapore and not Australia: [80]. In any event, the natural forum for the “entire dispute between the parties [is Singapore]”: [80].

214    Counsel for the defendants accepted that if the appeal in relation to the stay applications should fail, the defendants would simply raise the issues in the Australian proceedings as a defence and counter-claim in the Singapore proceedings: [85]. The tort of misrepresentation could be raised as a defence to UBS’s claims in the Singapore proceedings: [87]. The defendants’ attempt to displace Singapore as the natural forum for determining UBS’s claim was found to be “disingenuous” and “an instance of forum shopping by the defendants”: [87].

215    Based on an opinion by Mr Justin Gleeson SC, the defendants contended that they would be deprived of juridical advantages under Commonwealth and State Acts of Australia if precluded from pursuing their claims in the SCNSW proceedings. Based on that opinion, the defendants asserted that the identified claims they would seek to agitate based upon contraventions of Commonwealth and State legislation were broader than the common law regimes of causation, negligent misrepresentation, deceit and claims under the Singapore Misrepresentation Act (Cap 390, 1994) which would be the source of rights and obligations the defendants would assert in Singapore under Singapore law.

216    Chong J observed that if an assumption is made that Australia is the natural forum rather than Singapore, no injustice would befall UBS if the case were to be heard in Australia. However, Chong J was satisfied that the natural forum for the entire proceeding was Singapore.

217    As to the anti-suit injunction, it was common ground between the parties that the defendants were amenable to the jurisdiction of the Singapore Court: [110]. Again, the natural forum for the resolution of the dispute was Singapore: [110].

218    The institution of the Australian proceedings was not in breach of any contractual obligation other than the Letter of Undertaking given by the trustee of the Argot Trust: [127]. However, while that claim in the Australian proceedings “viewed in isolation, could be construed as a breach of an exclusive jurisdiction clause, that breach would only assume significance if the commencement of the Australian proceedings by Telesto and Mr Tyne is somehow wrongful and/or vexatious”: [113]. As to that, Chong J found that there is no presumption that multiplicity of proceedings is vexatious: [151(b)]. The claims and issues in both proceedings are essentially similar though not identical and although there might be some differences between Australian law and Singapore law on the common issues, the differences are overstated and not of sufficient materiality to displace the natural forum, Singapore: [151(c) and (d)]. Having regard to those matters, no disadvantage arose for the defendants if the foreign proceedings were restrained and, in consequence, the Court would be entitled to “conclude or infer that the defendants in instituting such foreign proceedings are indeed acting vexatiously or oppressively”: [153], [155].

219    At [155], Chong J said this (among other things):

Given my finding that there are no differences of sufficient materiality between the laws of Australia and Singapore on the issues in dispute, it must follow that there would be no injustice to the defendants [Telesto, Mr Tyne and the trustee of the Argot Trust] if the Australian Proceedings are restrained by the grant of an anti-suit injunction. I should add there is also nothing unjust about the laws of Singapore on the issue of misrepresentation. As I have observed in [99] – [101] above, if Telesto and Mr Tyne are able to adduce evidence to prove the facts as pleaded in the Australian pleadings (a burden which they similarly bear under the Australian Proceedings), they should be able to establish a prima facie case of misrepresentation in which event, the burden would be on [UBS] to prove otherwise even under Singapore law. … In the premises, it must follow that there would be no legitimate reason for the defendants to pursue the Australian Proceedings. In any event, even if the differences can amount to some juridical advantages (which I have determined to be overstated), the court can still grant the anti-suit injunction particularly in this case since the advantages are only available in the Australian Proceedings which is not the natural forum of the dispute. It is of significance that in Bhojwani and Evergreen International, the courts did not find any injustice in depriving the defendants of the juridical advantages because the advantages were only available in New York and Belgium respectively which were not the natural fora of the dispute. There is no reason for a different outcome, on the specific facts of this case especially given my finding that Australia is not the natural forum of the dispute.

Further other events

220    In a judgment delivered by Sackar J on 9 May 2013 in Telesto Investments Limited v UBS AG [2013] NSWSC 503, his Honour set out further facts at [24] and [25] in relation to the Letter of Undertaking. These facts do not seem to be controversial but explain the context of the Letter of Undertaking more fully. As part of the Standstill Agreement, Telesto undertook to procure the trustee of the Argot trust to enter into a letter of undertaking in favour of UBS and on 28 January 2010 Argot executed the Letter of Undertaking. Under the Letter of Undertaking, the trustee for the trust undertook to open an account with UBS and to charge all assets as continuing security for Telesto’s liabilities to UBS.

221    On 25 July 2011, an application was made by Telesto, Mr Tyne and ACN 074 as trustee of the trust for leave to appeal from the decision of Chong J. It seems that the defendants in the Singapore 801 proceedings also agreed to file their defence by 15 August 2011.

222    On 5 August 2011, Assistant Registrar Ms Ong Luan Tze, made orders in O.S. No. 1160 of 2010/V that Messrs Tan Kok Quan Partnership has ceased to be the solicitor acting for Telesto, Mr Tyne and ACN 074 as trustee of the trust (the defendants in that proceeding) and that the firm’s costs as solicitors for the defendants be taxed and paid by the defendants.

223    On 16 September 2011, Chong J heard an application for leave to appeal from his Honour’s orders of 14 July 2011 (dismissing the two appeals) to the Court of Appeal. No appearance was made on behalf of the applicants for leave to appeal. The application for leave was dismissed by Chong J.

224    On 24 October 2011, UBS filed a notice of motion in the SCNSW proceedings seeking a permanent stay of those proceedings.

The stay application made before Ward J in the Supreme Court of New South Wales

225    On 21 November 2011, Ward J heard that application. Her Honour gave judgment on 7 February 2012: Telesto Investments Ltd & Ors v UBS AG [2012] NSWSC 44.

226    UBS sought the stay on four grounds.

227    First, as a matter of comity, the Court ought to stay the proceedings as the plaintiffs were continuing to prosecute those proceedings in defiance of the subsisting anti-suit injunction granted in Singapore.

228    Second, the plaintiffs were prevented from contending in the proceedings that Singapore is not the appropriate forum for the dispute or that it is not vexatious or oppressive for them to continue to prosecute the proceedings, because an issue estoppel arose out of the dismissal by the Singapore High Court of the application by the Telesto parties for a stay of the Singapore proceedings in which, Chong J had decided that Singapore was the natural forum for the dispute.

229    Third, if no issue estoppel arose “in the strict sense” then it was an abuse of process for the plaintiffs to seek to re-litigate in the NSW Supreme Court proceedings the forum non conveniens issues which had already been determined in Singapore.

230    Fourth, the continuation of the proceedings would be vexatious and oppressive having regard to the controversy as a whole.

231    Her Honour summarised her conclusions and these issues in this way:

4    For the reasons set out below I am of the view that:

(i)    the principles of comity do not require the grant of a permanent stay of the proceedings in this Court, although the principles of comity warrant due recognition being given (in determining whether a stay should be granted) to the exercise of judicial power in Singapore in granting the subsisting anti-suit injunction;

(ii)    while I consider that there is an issue estoppel which precludes the Telesto parties from contending in the present proceeding that it is not vexatious or oppressive for them to continue to prosecute the present proceedings, in the sense in which those terms were used in Voth v Manildra Flour Mills Pty Limited [citation omitted], I do not consider that this is determinative of the issue as to whether a stay should be granted;

(iii)    it would be an abuse of process for the Telesto parties to seek to re-litigate in this Court the forum non conveniens issues which have already been determined in Singapore, subject to the qualification that where matters have subsequently come to light which may affect the conclusions that would be reached in relation to that issue then there is no such abuse of process; further, where there is at this stage only the prospect that the same issues will be required to be determined in the substantive proceedings in each jurisdiction I am not satisfied that there is an abuse of process in the maintenance of the present proceedings (in contrast with the position that would apply if the present proceedings were seeking in substance to re-litigate issues already decided in the Singapore proceedings); and

(iv)    having considered the factors to be taken into account on a forum non conveniens application in this jurisdiction, if the Singapore proceedings will involve the determination of the issues raised in these proceedings in relation to the alleged misleading and deceptive conduct or misrepresentation in relation to the acquisition of investments for the Telesto account (and related issues) then the continuation of these proceedings would be vexatious and oppressive having regard to the controversy as a whole; however, I am not satisfied that there will necessarily be such an overlap any longer in circumstances where the Singapore proceedings are now confined to the claims for declaratory relief and indemnity costs (and whether there is such an overlap will largely be dependent on the course that the Telesto parties now take in relation to their defence of the Singapore proceedings).

                                [emphasis added]

232    Having regard to those conclusions, Ward J granted a temporary stay rather than a permanent stay of the SCNSW proceedings pending the outcome of the claim by UBS in the Singapore 801 proceedings for declaratory relief and indemnity costs.

233    On 21 February 2012, Ward J made formal orders.

234    Order 1 provides that subject to the condition that UBS prosecute expeditiously the Singapore 801 proceedings (and subject to Order 2), the SCNSW proceedings be stayed pending the final determination of the Singapore 801 proceedings or further order. Order 2 provides that notwithstanding the temporary stay, leave be given, so far as necessary, to Telesto, Mr Tyne and ACN 074 as trustee of the Argot Trust to file and serve an amended summons and an amended commercial list statement.

235    The orders made on 21 February 2012 presumably took into account submissions made to the Court on 20 February 2012 by Telesto, Mr Tyne and ACN 074 as trustee of the Argot Trust which foreshadowed a proposed amendment to remove Mr Tyne and ACN 074 as trustee of the Argot Trust from the proceedings. The proposed withdrawal was, by para 1 of the written submissions, put on the basis that since Telesto’s principal liability to UBS had been extinguished, Mr Tyne no longer had any liability to UBS under the guarantee given to UBS. Further, ACN 074 as trustee of the Argot Trust no longer had any obligations under either the Mortgage or the Letter of Undertaking.

236    UBS contends, in these proceedings, that, on the footing that ACN 074 as trustee of the Argot Trust had elected to abandon its claims in the SCNSW proceedings and had no further claims against UBS, UBS did not object to the withdrawal of Mr Tyne or ACN 074 as trustee of the Argot Trust from those proceedings. However, the submissions suggest that those parties withdrew from the proceedings on the identified footing that no liability arose on their part under any of the relevant instruments namely, the Tyne guarantee, the Mortgage and the Letter of Undertaking.

237    That is to say, no liability arose upon the claims made by UBS against Telesto and Mr Tyne.

238    On 6 March 2012, the three plaintiffs in the SCNSW proceedings filed a further amended summons and further amended commercial list statement pursuant to Order 2 made by Ward J. By those amended documents, Mr Tyne and ACN 074 as trustee of the Argot Trust were removed as plaintiffs: see [181] of these reasons.

The amended Singapore 801 proceedings

239    In the Singapore 801 proceedings, UBS was given leave to file an amended statement of claim. The amended claim was filed on 19 January 2012. In an affidavit affirmed on 15 December 2014 by Ms Catherine Mary Mills, the solicitor for UBS in these proceedings, Ms Mills says that the amended claim was served on Telesto and Mr Tyne, the defendants in the Singapore 801 proceedings, on 2 February 2012.

240    The amended claim makes amendments to the pleading of the terms and conditions of the account between Telesto and UBS. More particularly, the amended claim introduces extensive amended particulars of the contention that in consideration of UBS entering into the Standstill Agreement (and conferring the benefits of that agreement upon the defendants) the defendants impliedly agreed to waive and/or not raise any claims or defences they may have arising out of or in relation to the “Investments” (as pleaded) and/or the “Total Liabilities” owed to UBS (including but not limited to the acquisition or management of the investments or liabilities arising in the account).

241    In those particulars, UBS says that prior to Telesto’s acceptance of the Standstill Agreement on 31 December 2009, the defendants were aware of claims they allegedly had against UBS relating to the acquisition or management of the investments and the total liabilities relating to the account. By Mr Tyne’s affidavit of 20 December 2010, the defendants alleged a number of matters which were said to give rise to claims against UBS. UBS says that by Mr Tyne’s affidavit filed on 31 January 2011, the defendants alleged that at the time of execution of the Standstill Agreement they were aware of alleged claims against UBS, sounding in damages, for misrepresentation.

242    In the affidavit of Ms Mills affirmed 15 December 2014, she says that she is instructed that the amended claim in the Singapore 801 proceedings did not include claims for declaratory or other relief against ACN 074 as trustee of the Argot Trust or Ms Marks because, at that time (19 January 2012), UBS was not aware that either ACN 074 as trustee of the Argot Trust or Ms Marks asserted that they had any claims against UBS. Ms Mills further says that she is informed that had such claims been raised, UBS would have joined both those parties to the proceedings and sought declarations against them in the Singapore 801 proceedings or relief in the anti-suit proceedings to estop those parties from raising claims (or defences) in relation to the investments made by UBS for Telesto and/or the total liabilities due by Telesto to UBS under the terms and conditions of the UBS account.

243    Neither ACN 074 as trustee of the Argot trust nor Ms Marks were parties to the Singapore 801 proceedings.

Further other events

244    On 1 March 2012, the Australian solicitors for Telesto and Mr Tyne, Eakin McCaffery Cox (“EMC”), wrote to the solicitors for UBS, King & Wood Mallesons (“KWM”), advising that their clients did not intend to file an appearance in the Singapore 801 proceedings and nor were they instructed to accept service on behalf of any party in respect of those proceedings.

245    The following procedural events then occurred. This sequence of events seems to be uncontroversial.

246    On 8 March 2012, UBS filed an application to amend the amended statement of claim in the Singapore 801 proceedings. On 12 March 2012, Telesto’s Australian lawyers advised UBS’s Australian lawyers that Mr Tyne’s address for service was 26 Knightsbridge Parade, East Sovereign Islands, Queensland. On 2 April 2012, UBS arranged for a copy of its application to amend the claim to be served on Telesto and Mr Tyne. On 12 April 2012, Telesto’s Australian solicitors and also Mr Tyne sent correspondence to UBS stating that neither Telesto nor Mr Tyne would contest the merits of the Singapore 801 proceedings. In Mr Tyne’s letter of 12 April 2012 he asserted that the Singapore High Court did not have personal jurisdiction over him and he would not contest the hearing on the merits especially since Telesto’s lawyer had withdrawn from the proceeding after the stay application and a defence had not been filed in the proceeding. Mr Tyne also said that many of the facts set out in UBS’s statement of claim and the affidavit of Sng Sannie dated 29 March 2012 were known by UBS to be incorrect and, in some respects, represented facts which were not known to UBS. Other facts had been otherwise been contradicted.

247    On 13 April 2012, the Singapore High Court granted UBS leave to amend its claim. UBS’s further amended statement of claim filed on 13 April 2012, was served on Telesto on 16 April 2012 and on Mr Tyne on 18 April 2012. On 19 April 2012, directions orders were made in the Singapore 801 proceedings for the filing of a defence and the filing of a list of documents. UBS, by its Singaporean solicitors sent a letter to Telesto and Mr Tyne setting out those orders.

248    On 17 May 2012, the solicitors for UBS in Singapore, Drew & Napier, filed a List of Documents and an affidavit of Mr Sing verifying the List on behalf of UBS. On 13 June 2012, Ms Mills received a letter from Mr Sutherland of EMC in which he proposed to re-list the SCNSW proceedings and file further amended pleadings. On 14 June 2012, Ms Mills responded stating that UBS would oppose the re-listing of those proceedings on the footing that a timetable had been set for the trial of the Singapore 801 proceedings with evidence-in-chief to be filed by 10 July 2012 and the hearing scheduled for 27 July 2012. As to those matters, the chronology seems to have been this. On 24 May 2012, UBS attended a pre-trial conference before Registrar Ng. On 24 May 2012, UBS’s Singapore solicitors sent a letter to Mr Tyne and Telesto setting out details of the directions made by Registrar Ng. On 11 July 2012, UBS sent copies of its affidavits of evidence in chief and its supplementary list of documents to the Registrar. On 12 July 2012, UBS’s Singapore solicitors sent a compact disc containing that material to Telesto and Mr Tyne by courier and ordinary post. On 12 and 20 July 2012, UBS filed its bundle of documents and its opening statement in the Singapore 801 proceedings. On 17 July 2012, UBS’s Singapore solicitors sent a compact disc containing all that material to Telesto and Mr Tyne by courier.

249    On 24 July 2012, Ms Mills caused copies of relevant Court documents including the trial bundle of documents, UBS’s opening statement, UBS’s affidavit evidence-in-chief and its supplementary list of documents to be delivered on compact disk to EMC. The compact disk is said to contain an electronic version of 15 documents including affidavits, correspondence and other documents.

250    The trial of the Singapore 801 proceedings occurred on 27 July 2012 before Justice Lai Siu Chiu (“Lai J”).

The hearing before Lai J

251    The trial was a hearing of the claims of UBS on the merits rather than a default judgment arising out of a failure on the part of the defendants to contest the merits. The transcript of the proceedings on 27 July 2012 is in evidence. The defendants failed to appear.

252    In the result, Lai J made five declarations in these terms:

THIS ACTION having been tried before the Honourable Justice Lai Siu Chiu on the 27th day of July, 2012, IT IS THIS DAY ADJUDGED AND DECLARED that (all capitalised terms as defined in the Statement of Claim (Amendment No. 2) filed on the 13th day of April 2012 (the “SOC”)):-

1.    The Investments were authorised.

2.    The Defendants are estopped from asserting, and/or have compromised, any claims or defences they may have arising out of, or in relation to, the Investments and/or Total Liabilities due and owing to the Plaintiffs [UBS], including but not limited to, the acquisition or management of the Investments and/or the Total Liabilities.

3.    By reason of the Events of Default, the Standstill Agreement was terminated and the Total Liabilities were immediately due and payable to the Plaintiffs.

4.    As at 14 October 2010, the Defendants were liable to the Plaintiffs in the total sum of USD12,617,499.56, and with interest at a rate of 3% thereon over and above the Plaintiffs’ cost of funds.

5.    Pursuant to clauses 11.5 and 13.3 of the Account T&C – General Conditions, clause 1.8 of section C of the Account T&C – Product Conditions, clause 6 of the Charge, clause 2 of the Account T&C – Risk Disclosure Statement, and the CSNL, the Plaintiffs were entitled to realise the Collateral in the Account and apply the proceeds received to satisfy the Total Liabilities owed by the 1st and 2nd Defendants.

253    Apart from these five declarations, Lai J ordered the defendants to pay the costs of the plaintiffs “on a full indemnity basis”. The orders were entered on 8 August 2012. The declarations and the costs order were made in proceedings in which UBS called evidence and at least some of UBS’s witnesses were asked questions by the primary Judge about the factual questions upon which the claims were made.

254    It seems that on 30 July 2012 UBS’s Singapore solicitors sent a letter to Telesto and Mr Tyne setting out a summary of the hearing before Lai J.

255    On 24 August 2012, Ms Mills received a copy of a letter from Mr Sutherland (EMC) to the Associate to Ward J requesting that the SCNSW proceedings be re-listed for directions and reciting that Telesto would bring on an application to discharge the temporary stay.

256    On 24 August 2012, Ms Mills responded to Ward J’s Associate advising that UBS proposed to file a motion seeking a permanent stay of the proceedings or in the alternative, the dismissal of the proceedings.

257    That motion was filed on 6 September 2012.

258    Telesto’s application was filed and served on 10 September 2012.

259    Both applications were heard on 23 November 2012.

260    On 9 May 2013, Sackar J made an order permanently staying the SCNSW proceedings which were then being prosecuted by Telesto as the only plaintiff in the proceedings. Sackar J dismissed Telesto’s notice of motion seeking the discharge of the temporary stay.

The content of UBS’s further amended statement of claim

261    Before examining the basis upon which Sackar J made those orders, it is necessary to say something further about the issues framed by UBS’s amended statement of claim filed by leave on 13 April 2012. That is necessary because UBS says that both applicants in the Federal Court proceedings are seeking, in substance, to re-litigate issues which were finally determined in the Singapore 801 proceedings and the SCNSW proceedings, and so far as Mr Tyne as trustee of the Argot Trust is concerned, breach the terms of the anti-suit injunction. Thus, the Federal Court proceedings are said to constitute an abuse of Court process.

262    What were the questions in issue which were finally determined in the Singapore 801 proceedings as against Telesto and Mr Tyne?

263    Consistent with the earlier pleading, UBS continued to plead the full extent of the contractual obligations as between UBS and Telesto and the source of those obligations in the various documents and steps taken by UBS under them.

264    UBS, however, also pleads that Telesto accepted under the terms and conditions of the account, all risk arising from opening and operating Account No. 116731 including any investment or trading risk. UBS pleads that Telesto acknowledged that it had read and understood UBS’s Risk Disclosure Statement (through Mr Tyne) and that it was relying on its own judgment in making the investments. The pleading asserts, in effect, that the whole of the investment risk was entirely a matter for the assessment and analysis of Telesto and Mr Tyne.

265    UBS then pleads the roles performed by Mr Betsalel and Mr Farrell in their dealings with especially Telesto and Mr Tyne. UBS describes Mr Betsalel as a client adviser and Mr Farrell as an emerging market specialist. The dealings between the parties are pleaded in detail. So too are statements UBS says it made to Mr Tyne (for Telesto) including the observation that bonds issued by BTA and Astana were “interesting ideas” and “suitable investments” for investors seeking out “high yield” investments at that time.

266    UBS pleads, however, that it advised Telesto to diversify its investments across both issuer and countries as the investments were “risky”. UBS says it represented that the potential to lose more than the investments made, was always possible if the investments were financed and thus leveraged.

267    UBS says that Mr Farrell passed on the contents of a conference call conducted by BTA, for investors and analysts, in February 2008, to Mr Tyne which formed the basis for Mr Farrell’s statement to Mr Tyne that based on the BTA presentation and the financial information provided by BTA, it did not appear to Mr Farrell to be a bank on the verge of collapse.

268    As to these statements (and all of what is called the paras 16 and 17 statements), UBS pleads that the statements were true when made or, alternatively, there was a reasonable basis for making them when made: para 18.

269    UBS pleads that Telesto and Mr Tyne sought investment recommendations from Mr Betsalel and Mr Farrell. UBS, however, pleads that Telesto “expressly agreed” that it was not relying on UBS in making the investments but rather was relying on its own assessment and judgment: para 21. The pleading addresses matters going to the Standstill Agreement, Mr Tyne’s guarantee, the conduct of the account and circumstances concerning the margin call events.

270    The pleading then asserts the contention made in the earlier version of the pleading that in consideration of UBS entering into the Standstill Agreement, Telesto and Mr Tyne impliedly agreed to waive and/or not raise against UBS any claims (or defences) they may have arising out of, or in relation to the investments and the management of the total liabilities of Telesto and Mr Tyne to UBS.

271    UBS also pleads that on 20 December 2009, Mr Tyne discovered a seminar paper prepared by Ms Bakayt Mezhenova, Chair of the Kazakhstan Deposit Insurance Fund setting out matters in relation to investments in Kazakhstan. UBS pleads that Mr Tyne sent the paper to Mr Betsalel which led to a discussion with him about it. UBS pleads that notwithstanding Mr Tyne’s apparent knowledge that UBS, on one view of it (although disputed by UBS), ought not to have recommended investments in Kazakhstan instruments, the defendants nevertheless executed the Standstill Agreement and chose not to pursue their alleged claims against UBS.

272    UBS also pleads that the defendants were independently advised by Singaporean solicitors about the Standstill Agreement.

273    UBS pleads the contention pleaded in the earlier pleading that by reason of the Standstill Agreement and/or the implied agreement, Telesto and Mr Tyne are estopped from asserting claims or alternatively they have waived any claims they may have in connection with the investments, the management of the account and the total liabilities of the defendants arising under it to UBS.

274    All of this represents the foundation for the relief sought by UBS against the defendants in the Singapore 801 proceedings at trial and, in particular, the second declaration in the terms ultimately as made and recited at [252] at para 2. In this way, UBS asserted an affirmative case of compromise, waiver or estoppel preventing either Telesto or Mr Tyne from asserting claims (or defences in answer to any of UBS’s claims) in relation to the Investments as defined (including the acquisition of the bonds) or the management of the liabilities arising under the account. No cross-claim was filed by Telesto or Mr Tyne to assert such claims and no matters going to these questions were put by way of a defence. The defendants to the Singapore 801 proceedings elected not to plead to or contest the proceedings on the merits. All of the claims made by UBS in the proceedings merge in the final judgment in the form of the declaration. A question arises of whether that final judgment is a final determination, on UBS’s affirmative case on the issues and the causes of action the present applicants seek to bring in the Federal Court proceedings.

Further aspects of the Singapore 801 proceedings

275    It is now necessary to say something about the way in which the Singapore 801 proceedings were presented for a trial of the pleaded factual and legal issues on the merits before Lai J.

276    UBS relied upon a 74 page opening statement. In it, UBS contended that: Mr Tyne was described as a sophisticated investor who made his own decisions about the Kazakh bonds; UBS shared its views with Mr Tyne based upon research undertaken diligently and with reasonable care; and, Telesto and Mr Tyne entered into the Standstill Agreement with UBS an element of which involved a compromise of the claims of the defendants. The evidence of UBS at the hearing consisted of 11 volumes of documents. Mr Heimlicher, Mr Farrell and Mr Singh gave affidavit evidence. Mr Heimlicher gave an extensive affidavit of 70 pages comprising four volumes of documents. He told Lai J that Mr Betsalel was the “client adviser”. He said that he had not engaged with Mr Tyne except for about, at the most, 10 or so conference calls. He regarded Mr Tyne as a “very savvy” investor and a man in full control of his “account” and the investments he made. Mr Heimlicher said that when he dealt with Mr Tyne, Mr Tyne had already invested in the Kazakh bonds and Mr Heimlicher tried to persuade him to sell some of the investments although Mr Tyne said he was very comfortable with them.

277    Mr Farrell told Lai J that Mr Tyne was genuinely interested in investments in emerging markets with potential for high returns and did not mind taking risk. The coupon rate for the Kazakh bonds was approximately 9% to 10% whereas the US Treasury bond rate was approximately 4% to 5%. Mr Farrell told Lai J that he did not believe that the Kazakh banks would default on the bonds but that it might be difficult to sell the bonds. Mr Betsalel had resigned from UBS in May 2009. He had given a statement to the solicitors for the defendants and when approached by UBS, Mr Betsalel had said that he would want the solicitors for the defendants to be present when he spoke to UBS. No evidence from Mr Betsalel was put before Lai J.

278    Lai J gave extempore reasons in support of the orders made on 27 July 2012. Lai J said this at T, p 103, lns 20-25 and T, p 104, lns 1-19:

I considered the documents before the Court and looked at the AEICs. I’ve also asked questions of the three witnesses called by the plaintiffs, and I’m satisfied that whatever may have been the rights and liabilities between the plaintiffs UBS and the 1st defendant [Telesto] and the 2nd defendant [Mr Tyne], all those rights and liabilities were subsumed became irrelevant after the standstill agreement was signed by 1st defendant on 31 December 2009.

Consequently, and since UBS appears to have complied with the standstill agreement, they have given time to the 1st defendant and 2nd defendant on the obligations and on the margins and on the margin shortfalls, et cetera, and I don’t see why therefore that the 1st defendant and 2nd defendant should not be made to comply with that standstill agreement.

The standstill agreement, I agree with Mr Kumar, was in every sense a compromise agreement, so everything prior to that was subsumed in that compromise agreement and has therefore become irrelevant.

Consequently, I would give judgement to the plaintiffs on their claim.

279    Lai J then examined the terms of the relief, further engaged with UBS’s counsel, Mr Kumar, and made the declarations in the terms recited at [252] of these reasons. In doing so, Lai J also engaged with UBS’s counsel concerning matters of fact-finding sought from the Judge. Mr Kumar sought findings in terms of paras 13 to 96 of his opening statement: T, p 110, lns 2-9. Lai J was reluctant to make findings about factual matters prior to the Standstill Agreement as those findings may not have been relevant because, in Lai J’s view, everything prior to the Standstill Agreement, that is, the rights and liabilities of the parties, had been subsumed in the Standstill Agreement. Mr Kumar then pressed for findings in terms of paras 113 to 139 of the opening statement as “facts which justify or support the declaration”: T, p 111, lns 6-8.

280    As to that, Lai J said this at T, p 111, lns 18-22:

Yes, I can confirm that the facts set out in paragraph 113 all the way to 139 of the plaintiff’s opening statement accords with the documentation and the evidence that is before this Court.

281    Lai J also said this at T, p 111, lns 9-13:

On paragraph 114, from what I can see, I don’t think investments were unauthorised in any event. I think they were certainly carried out with the full authority of the 2nd defendant [Mr Tyne] on behalf of the 1st defendant [Telesto].

282    Sackar J in the stay application before him treated the adoption of these paragraphs of the opening statement as giving rise to these findings of fact (and law):

    the investments were authorised: Opening Statement (“OS”), para 115: [117] of the reasons of Sackar J.

    Mr Tyne and Telesto were contractually estopped by reason of the terms and conditions of the account from contending: that they relied upon UBS’s advice or representations; that UBS owed them a duty to give investment advice; that UBS owed them a duty to act in their best interests; or that UBS owed them a fiduciary duty: OS, para 116; [117].

    UBS was not in breach of any fiduciary duty it may have owed the defendants by entering into the Kazakhstan investments: OS, paras 117 and 118; [118].

    Telesto was not entitled to deny the total liabilities due to UBS on the account or deny that UBS was discharged from all obligations to Telesto and Mr Tyne: OS, para 119; [119].

    Telesto was estopped from asserting that the investments were unauthorised and that UBS was negligent or that it had misled or deceived Telesto and/or Mr Tyne: OS, para 119; [119].

    By entering into the Standstill Agreement, the defendants had impliedly agreed to waive and/or not raise any claims or defences they may have had arising out of or in relation to the investments or the total liabilities to UBS: [119].

    Telesto and Mr Tyne understood, when entering into the Standstill Agreement that Telesto had decided to settle matters with UBS and abandon its (their) causes of action against UBS in exchange for UBS agreeing to give Telesto and Mr Tyne more time to meet the total liabilities and not enforce its right to the collateral: OS, para 123; [120].

    The matters Telesto and Mr Tyne sought to rely upon as the basis for their claims were matters they were aware of when they entered into the Standstill Agreement: [121].

283    Sackar J also observes that Lai J found by adopting a series of factual assertions at paras 125(a) to (j) of the opening statement (see [122] of Sackar J’s reasons) that Telesto and Mr Tyne had impliedly agreed to waive or not raise any claims (or defences) against UBS. These matters at para 125 concern the state of knowledge of Mr Tyne in the period March 2009 to August 2009 concerning the particular difficulties confronting BTA and Astana in relation to the bonds, leading up to the Standstill Agreement of 31 December 2009. The critical matter seems to be that Lai J, in reliance on an acceptance of these factual matters, found that the Standstill Agreement was, and was intended to be, a compromise of Telesto’s and Mr Tyne’s claims because Telesto and Mr Tyne were aware of all of the relevant facts concerning their alleged claims, had contemplated legal proceedings and had chosen to negotiate and execute the Standstill Agreement: [123].

284    Whilst it is true that Lai J made findings of fact based on a general acceptance of factual matters at paras 113 “all the way to 139” of UBS’s opening statement, there was no cross-examination of witnesses, no contest on the facts and no apparent evaluation of any of the evidence by the trial judge going to each factual matter at paras 113 to 139. Nevertheless, it was plainly open to Lai J to accept the evidence put on by UBS and make findings of fact if those findings were properly supported by the affidavit and oral evidence of UBS at the hearing.

The basis for the orders of Sackar J in the Supreme Court of New South Wales

285    It is now necessary to consider the basis upon which Sackar J made orders permanently staying Telesto’s SCNSW proceedings and dismissing Telesto’s motion to discharge the temporary stay.

286    On 6 November 2012, Telesto served a further amended commercial list statement in the SCNSW proceedings and sought leave to file that statement in the event that it succeeded on the primary motion. The new formulation of the claims sought to be made by Telesto reflects the substance of the factual foundation of the claims the trustee makes in the Federal Court proceedings except that the contended reliance steps and contended loss of Telesto is not precisely the same reliance and loss asserted by the trustee.

287    Ms Marks frames her claims on a different but related footing.

288    In substance, however, the foundation facts are the same.

289    In the proceedings before Sackar J, his Honour examines the expert evidence given by Mr Gleeson SC (by affidavit and annexed opinion) for Telesto and the opinion of Professor Tan, Professor of Law at the National University of Singapore, for UBS, concerning whether Telesto, enjoyed a juridical advantage in litigating its claims before the Supreme Court of New South Wales rather than the High Court of Singapore. That advantage might have arisen by reason of the sources of Federal and State legislation available to Telesto contended contraventions of which by UBS would form the basis of some of the causes of action asserted against UBS (with, put simply, a particular set of provisions about reversal of the onus of proof as to representations concerning future matters), as compared with the sources of Singapore law applicable to the contended conduct of UBS.

290    It seems that Professor Tan ultimately accepted that Telesto could not bring the same causes of action in Singapore that it could bring in New South Wales due to the particular provisions of the applicable Federal and State statutes relied upon and Professor Tan agreed that in his earlier opinion he had tended to equate the notion of misleading and deceptive conduct with the actionable tort of deceit in Singapore: [159].

291    Sackar J concluded that Telesto’s pleadings raised questions concerning representations as to future matters and pleaded representations in relation to an investment, its profitability and the likelihood of default by a financial institution which might amount to representations as to future matters depending upon the precise formulation of the claim, its content and the evidence. Thus, the separate statutory causes of action in misleading or deceptive conduct or, alternatively, conduct likely to mislead or deceive, coupled with the statutory mechanism by which a representation as to a future matter would be taken to be misleading in the absence of reasonable grounds (and the deeming effect of no reasonable grounds in the absence of adduced evidence to the contrary), represented a significant material juridical advantage to Telesto: [169] and [170].

292    Thus, no estoppel arose on the issue of juridical advantage by reason of Chong J’s conclusions: [171].

293    Sackar J reached these further conclusions.

294    First, the underlying facts giving rise to the proceedings in Singapore and New South Wales are identical. The precise wrong-doing alleged against UBS by Telesto is the same, although the legal effect flowing from proof of the conduct; the method of proof; and variety of remedies available in New South Wales under the statutes “might be different”: [196].

295    Second, given the breadth of the relief granted by Lai J, Telesto could not succeed in the SCNSW proceedings without creating inconsistency with the ultimate relief granted in Singapore: [198].

296    Third, if the SCNSW proceedings were permitted to proceed, the material Telesto would put before the Court would be substantially, if not entirely, identical to the material it would have put before the Singapore Court had it elected to participate there: [200].

297    Fourth, the Singapore and SCNSW proceedings, as a matter of substance, concern the same cause or causes of action and thus the judgment of Lai J in Singapore creates a res judicata: [201].

298    Fifth, the brevity or apparent lack of analysis (on the part of Lai J) does not necessarily defeat a plea of res judicata: [189].

299    Sixth, an issue estoppel may be founded upon a foreign judgment. However, there are real conceptual difficulties where the reasons for judgment do not precisely identify the legal and factual grounds on which the foreign judgment rests (such as the judgment of Lai J): [210] and [211].

300    Seventh, those matters which are “legally indispensable” (in the sense discussed by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-533) to the decision itself (of Lai J) are unable to be “precisely identified”, subject to one matter: [220] and [222]. The one exception is that Lai J found that whatever may have been the rights and liabilities between UBS and Telesto and Mr Tyne, all rights and liabilities were subsumed in (and became irrelevant after) the Standstill Agreement of 31 December 2009. Thus, an issue estoppel arose that all rights and liabilities in existence at the time of entry by the parties into the Standstill Agreement were compromised or settled by entry: [221].

301    Eighth, the appropriate course to take when considering whether an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) should be found in New South Wales, on the basis of a foreign judgment, is to be satisfied, first, that the law of Singapore recognises a doctrine equivalent to Anshun estoppel and, second, to “exercise caution” when determining whether such an estoppel “actually arises”: [239]. On the evidence before Sackar J, Singapore law recognised a doctrine equivalent to Anshun estoppel. Sackar J asked, was it unreasonable in the Anshun sense for Telesto to not file and rely upon by way of defence and cross-claim before Lai J, the matters it sought to rely upon and litigate in the SCNSW proceedings?: [241] and [242]. Sackar J concluded that having regard to the deprivation of significant juridical advantage by doing so, it was not “relevantly unreasonable”: [243] and [247].

302    Ninth, having regard to the “highly significant” juridical advantage available to Telesto in litigating in New South Wales in reliance upon Federal and State statutes, no abuse of process arises in bringing the claims in the SCNSW proceedings: [259].

303    Tenth, Telesto’s contention that the judgment of Lai J should not be recognised for want of jurisdiction is rejected: [272], [282] and [283].

304    Eleventh, it would not be contrary to public policy to recognise Lai J’s judgment in Australia as the submission to jurisdiction clause in the relevant instruments did not operate so as to oust the operation of Federal and State legislation in Australia: [284] and [285].

The decision of the High Court of Australia in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750 (“Tomlinson”)

305    Before examining the contentions of the parties in the present proceedings, it is necessary to note the observations of the High Court of Australia in Tomlinson in which the Court explains the essential principles, relevant to these proceedings, including issues of res judicata, issue estoppel, Anshun estoppel, the doctrine of abuse of process and the explanation of when a person is a privy in interest of another. In this decision, the High Court deals with many of the authorities relating to all of these issues. The decision in Tomlinson is explanatory of the law as it is and has been relevant to these proceedings, according to the principal authorities.

306    The discussion of the plurality, French CJ, Bell, Gageler and Keane JJ and that of Nettle J needs to be understood in the context of the particular facts of the case although their Honours deal with matters of principle.

307    The facts in Tomlinson are these.

308    The Fair Work Ombudsman (“FW Ombudsman”) is established under the Fair Work Act 2009 (Cth) (the “FW Act”) and has as one of its statutory functions: to commence proceedings in a court “to enforce” the Workplace Relations Act 1996 (Cth) (the “WR Act”) and awards made under that Act. In the exercise of that function the FW Ombudsman commenced a proceeding against Ramsey Food Processing Pty Ltd (“Ramsey”) seeking the imposition of a civil penalty in respect of Ramsey’s contended breaches of a term of a relevant Award made under the WR Act and a term of a relevant “Standard” (both instruments being defined as an “applicable provision”) the breach of which by Ramsey would engage the power of the Court to impose a civil penalty.

309    Ramsey operated an abattoir at South Grafton from 2005 to 2009. Mr Tomlinson commenced work at the abattoir in 2005. In October 2006, Mr Tomlinson and other abattoir workers were told that their previous employment was at an end and they would now be employed by Tempus Holdings Pty Ltd (“Tempus”).

310    In November 2008, Mr Tomlinson and other workers were told that Tempus had ceased “providing labour” to Ramsey and thus Tempus was unable to offer ongoing employment.

311    Mr Tomlinson complained to the FW Ombudsman that his “entitlements” had not been paid when he was made redundant.

312    The FW Ombudsman alleged in the Federal Court proceeding that Ramsey had been the employer of Mr Tomlinson (and 10 others), not Tempus; that Ramsey was bound by a relevant Award in the meat industry and a relevant Standard; and that Ramsey, as employer, had failed to pay Mr Tomlinson (and 10 others) amounts it was required to pay under the Award and the Standard on termination of his (their) employment. The section of the WR Act conferring the power on the Court to impose a civil penalty also conferred power to order that a person found to be an “employer”, pay an amount to a person found to be an “employee”. The section provides that where an employee of an employer has not been paid an amount the employer was required to pay under an applicable provision, the Court may order the employer to pay the employee the amount of the underpayment.

313    The primary question in the proceeding was whether Ramsey or Tempus had been the employer of Mr Tomlinson and the 10 other persons at the abattoir.

314    The primary judge, after a trial on the merits, in which Mr Tomlinson gave evidence, found that Ramsey was the “true employer”; that everything done by Tempus was done on behalf of Ramsey; and that the interposing of Tempus was a sham. The primary judge made declarations that Mr Tomlinson and eight of the 10 others had been employed by the abattoir since at least October 2006 (with the other two employed since at least October and November 2007 respectively); that the employment of each person had been terminated by Ramsey in November 2008; and that Ramsey had breached particular terms of the Award and the Standard in failing to make the required payments to those employees as so found.

315    Ramsey was ordered to pay Mr Tomlinson and each of the other 10 persons, the underpayment in each case plus interest.

316    A civil penalty was imposed on Ramsey.

317    Subsequently, Mr Tomlinson brought a proceeding in the District Court of New South Wales (the “DCNSW proceeding”) in which he claimed damages in negligence in respect of personal injuries he suffered when working at the abattoir in 2008. The plurality observe at [10] that the case Mr Tomlinson sought to bring was that while Tempus was his employer, Ramsey as the party in control of the workplace owed him a duty of care akin to that owed by an employer and that Ramsey’s breach of that duty caused his injuries.

318    If Ramsey was Mr Tomlinson’s “employer” in June 2008, Mr Tomlinson was prevented from bringing the claim or recovering damages by provisions of particular New South Wales legislation.

319    Ramsey relied upon those provisions in its defence to the claim and contended that Mr Tomlinson was estopped by the declarations and orders of the primary judge in the Federal Court proceeding from denying that Ramsey was his employer. Ramsey contended, in the alternative, that it was, in fact, Mr Tomlinson’s employer. No contention was made by any party that there was any relevant difference between an “employer” for the purposes of the New South Wales legislation and an “employer” for the purposes of the FW Act or the WR Act.

320    In the DCNSW proceeding after a trial on the merits, the Court found that Mr Tomlinson’s employer in June 2008 had been Tempus, not Ramsey. The issue estoppel argument of Ramsey was rejected. The Court found that Mr Tomlinson’s claim in negligence had been made out and entered judgment for damages against Ramsey.

321    The New South Wales Court of Appeal unanimously allowed Ramsey’s appeal and entered judgment for Ramsey holding that the declarations and orders in the Federal Court created an estoppel on the issue of who had been Mr Tomlinson’s employer between October 2006 and November 2008. The Court of Appeal held that the estoppel was binding upon Mr Tomlinson in the DCNSW proceeding by reason of Mr Tomlinson having been privy in interest with the FW Ombudsman in the Federal Court proceeding according to the principle identified and applied in Ramsay v Pigram (1968) 118 CLR 271. The Court of Appeal held that according to that principle, Mr Tomlinson was privy in interest with the FW Ombudsman because the FW Ombudsman, having sought declarations and orders for his benefit in a proceeding in which he participated and gave evidence, was, in the Federal Court proceeding, claiming “under or through” or “on behalf of”, Mr Tomlinson.

322    Thus, Mr Tomlinson, as privy in interest, was estopped from denying that Ramsey was his employer.

323    Before the High Court, Mr Tomlinson contested that he was privy in interest with the FW Ombudsman and contested the holding of the Court of Appeal that he was estopped from denying that Ramsey was his employer.

324    In this context, the plurality observes that to put in perspective the principle governing who is privy in interest with another, stated and applied in Ramsay v Pigram, “it is appropriate to say something more generally as to the place of issue estoppel in Australian law”: [19]. As to that, the High Court made a number of observations about the general principles. In the result, the High Court determined that Mr Tomlinson was not privy in interest with the FW Ombudsman and set aside the orders of the New South Wales Court of Appeal and reinstated the orders of the trial judge.

The general principles

325    I have drawn these principles from the observations of the High Court in Tomlinson together with other relevant references.

326    The rendering of a final judgment in the exercise of judicial power, as between persons or classes of persons, “quells” a controversy between those persons or classes of persons with the result that questions in controversy as to the existence of rights or obligations as between them cease to have an independent existence because they merge in the final judgment: [20]; Blair v Curran (supra) at 532.

327    As to the matter of “quelling a controversy”, it should be noted that Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 608 observe that the unique and essential function of judicial power is the quelling of controversies by ascertaining facts, applying the law and, where appropriate, exercising judicial discretion. Put simply, the underlying public interest is that there should be finality in litigation and a party should not be twice vexed in the same matter.

328    The plurality observe that estoppel in relation to judicial determinations is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness: [21].

329    However, its operation is not confined to an exercise of judicial power: [21]. In that context, Gibbs J observes in Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453 that “a fairly obvious example is the case of a court-martial, whose sentence might in some circumstances be pleaded as an estoppel … although not made in the exercise of judicial power”.

330    The plurality observe that estoppel operates as a rule of law to preclude the assertion of a right or obligation or the raising of an issue of fact or law: [21]. The plurality observe that three forms of estoppel are recognised by the common law of Australia as having preclusive potential by the rendering of a final judgment in adversarial proceedings.

331    The first is sometimes called “cause of action” estoppel although it is largely redundant where final judgment was rendered in the exercise of judicial power and where res judicata in the strict sense therefore applies bringing about the merger of a right or obligation in the judgment: [22]. It precludes assertion in a subsequent proceeding of a claim or right or obligation asserted in the proceeding determined by the judgment.

332    The second form of estoppel is almost always now referred to as “issue estoppel”: [23]. It operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment: [22].

333    As to that matter and that formulation, Dixon J in Blair v Curran (supra) said this at 531-533 which is regarded as the “classic expression” (Tomlinson at [22]) of the primary consequence of its operation:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. … the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point in issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

334    It should also be noted that in Jackson v Goldsmith (1950) 81 CLR 446 at 466, Fullaghar J observes that the term “issue estoppel”, first used by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 at 561, had been adopted by Dixon J in Blair v Curran and the term has the “great advantage of being quite unambiguous”.

335    The third form of estoppel is Anshun estoppel: [22], Port of Melbourne Authority v Anshun Pty Ltd (supra). The plurality observe that it is sometimes referred to as the “extended principle” in Henderson v Henderson (1843) 3 Hare 100 at 115, Sir James Wigram V.C.; 67 ER 313 at 319. The plurality observe that Anshun estoppel is an extension of res judicata and issue estoppel: [22]. In this extended form, an Anshun estoppel operates “to preclude the assertion of a claim or the raising of an issue of fact or law if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of the first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding”: Tomlinson, [22].

336    In Anshun, Gibbs CJ, Mason and Aickin JJ observe at 598 that although the principle operates so as to extend the doctrines of issue estoppel as well as res judicata, its application to cases of issue estoppel is to be treated with “caution” in part because Lord Wilberforce in Carl Zeiss Stifung v Rayner and Keeler Ltd (No 2) [1967] 1 A.C. 853 at 966 observed that Henderson v Henderson was an instance of res judicata and Lord Reid in Carl Zeiss at 916 noted that confusion had arisen by applying to issue estoppel, without modification, rules designed to deal with res judicata.

337    Importantly, however, the extended form of estoppel “has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense” [emphasis added]: Tomlinson, [22].

338    In this context, Deane, Toohey and Gaudron JJ observe in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 509 that:

In truth Henderson v Henderson was not concerned with res judicata in its strict sense but rather with its implications when an issue is sought to be raised “which could and should have been litigated in the earlier proceedings”: Port of Melbourne Authority.

                                [emphasis added]

339    Each of these three forms of estoppel has the potential to preclude assertion of a right or obligation or the raising of an issue of fact or law between parties to a proceeding or their privies: Tomlinson, [23].

340    It is important to keep in mind that for all three forms of estoppel, the operation of an estoppel is to preclude the assertion in a subsequent proceeding of what is claimed to be the truth: Tomlinson, [38].

341    The plurality observe that one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding: [23].

342    In Tomlinson at [22], the plurality observe that considerations similar to those which underpin Anshun estoppel may support a preclusive abuse of process argument. The doctrine of estoppel so explained in its three forms overlaps with the doctrine of abuse of process. As to the relationship between the two or the degree of overlapping, the plurality make these observations at [24] and [25]:

[24]    To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

[25]    Abuse of process, which may be involved in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

                                [emphasis added]

                                [footnotes omitted]

343    As to the scope of the doctrine of abuse of process where an estoppel might not arise or where the party making the claim was neither a party nor a privy of a party to the earlier proceeding, the plurality said this at [26]:

[26]    Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

                                [emphasis added]

                                [footnotes omitted]

344    The footnote to the second sentence in [26] is in these terms: “47 O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 at [99] – [111] and the cases there cited. See to similar effect Reichel v Magrath (1889) 14 App Cas 665 and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 at [25], explaining Johnson v Gore Wood & Co [2002] 2 AC 1”.

345    In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, Lord Sumption JSC at 185, [25] (with whom Baroness Hale, Lord Clarke and Lord Carnwath JJSC agreed) explains that neither Lord Millett nor Lord Bingham in Johnson v Gore Wood & Co took the view that because Henderson v Henderson was concerned with abuse of process it could not also be part of the law of res judicata. Leaving aside the aspect of res judicata for present purposes (because at least, so far as the “extended principle” of Henderson v Henderson is concerned, the Anshun extension of res judicata and issue estoppel (Tomlinson, [22]) is, in Australia, a “true estoppel” (Tomlinson, [22])), Lord Sumption at [25] observes that the focus in Johnson v Gore Wood & Co “was inevitably on abuse of process because the parties to the two actions were different, and neither issue estoppel nor cause of action estoppel could therefore run …”.

346    As to abuse of process, Gleeson CJ, Gummow, Hayne and Heydon JJ said this in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 28 [74]:

The circumstances in which proceedings might be classified as an abuse of process have been described in various ways. In Hunter v Chief Constable of the West Midlands Police to which extensive reference was made in the speeches in Arthur J S Hall v Simons, Lord Diplock spoke of abuse of process as a misuse of a court’s procedure which would “be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”. In Rogers v The Queen Mason CJ observed of Lord Diplock’s speech that, with what had been said in this court, it indicated:

“that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute”.

                                [footnotes omitted]

347    In Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, Gleeson CJ, Gummow, Hayne and Crennan JJ at [15] accepted the correctness of the observations of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286 that:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

348    In O’Shane v Harbour Radio Pty Ltd (supra) at 723, Beazley P (McColl JA and Tobias AJA agreeing) observes at [105]:

The relevance, for present purposes, of an abuse of process not being dependent upon the existence of an estoppel, is that a court may intervene to prevent an abuse, notwithstanding that the subsequent proceedings are not between the same parties or their privies. As the authorities state, the court will act upon an abuse of process where the use of the court’s procedures would bring the administration of justice into disrepute.

349    However, it is important to recall the observations of Heydon JA (Spigelman CJ and Mason P agreeing) in R v O’Halloran (2000) 159 FLR 260 at 289 that the “position” in relation to the parties in the two proceedings in question “does create certain difficulties” (in the application of the doctrine of abuse of process) for the party contending (that case) that the earlier civil proceeding to which neither the appellant nor the DPP were parties rendered reliance by the DPP on certain prohibited acts (in the DPP’s later proceedings) an abuse of process. Heydon JA also observed that, secondly, if the abuse is said to arise out of an attempt to “re-litigate” determinations made in earlier litigation, “there cannot be ‘re-litigation’ if there has not been litigation”: at 290.

350    On the question of caution about parties, Heydon JA said this about some of the earlier authorities at [108] and [109]:

108    Reichel v Magrath was a case in which Reichel was defeated on an issue in proceedings he brought against certain parties, and it was held to be an abuse of process for him to re-agitate it in later proceedings brought against him by different parties. Walton v Gardiner raised the issue of whether, where a moving party had brought disciplinary proceedings against medical practitioners which had been stayed, there ought to be a stay of the second set of disciplinary proceedings brought by that moving party against the same practitioners in relation to allegations substantially overlapping the allegations in the first proceedings. Hunter v Chief Constable of West Midlands Police was a case where an accused was convicted on the basis of an allegedly coerced confession: civil proceedings by him against the police claiming damages for injuries allegedly suffered when the confession was obtained were struck out as an abuse of process. ...

109    In all these cases the person whose role in later proceedings, whether as moving party or defendant, was characterised as an abuse of process was a person who had been a party to the earlier proceedings. The Director of Public Prosecutions was not party to the civil proceedings before the Supreme Court. In all these cases, too, the persons said to have abused process had lost on an issue in the earlier proceedings.

                                [citations omitted]

351    It should be noted, however, that in Reichel v Magrath (supra), the House of Lords held that a defence which was not barred by res judicata estoppel may nevertheless be struck out as an abuse of process, as an expression of the principle put by Lord Halsbury LC in that case in these terms:

… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again … there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure ...

                                [emphasis added]

352    This statement of principle has been adopted by the High Court in Walton v Gardiner (1993) 177 CLR 378 at 393 and Rogers v The Queen (supra) at 287-288. It is cited at fn 46 to support the proposition in the second sentence in Tomlinson at [26] in circumstances where the party seeking to make the claim was neither the party (or to use Lord Halsbury’s term “the litigant”) to the earlier proceeding nor the privy of such a party and therefore could not be precluded by an estoppel in any of the three forms discussed by the plurality.

353    As to privy in interest, in Ramsay v Pigram (supra), Pigram brought an action for damages for personal injuries arising out of a motor vehicle accident said to have been caused by the negligent driving of a vehicle (owned by the State of New South Wales), by a police officer.

354    Ramsay was the appointee of the Nominal Defendant.

355    Ramsay pleaded that Pigram was estopped from asserting negligence on the part of the police officer in the course of his duty because an issue estoppel arose out of an earlier action in the District Court in a proceeding brought by the police officer against Pigram arising out of the same collision. In the earlier proceeding, the jury found a general verdict for the police officer on the issue of negligence and the issue of contributory negligence.

356    The High Court (by the whole Court) found that there was no privity of interest between Ramsay and the police officer so as to entitle Ramsay to rely upon the findings in the police officer’s proceeding in which there was a final judgment in his favour personally.

357    At 279, Barwick CJ said this:

Clearly in this case the actual parties to the Supreme Court action are not the same as the parties to the District Court action. But it is said that the Government was a privy of the police officer who in its service drove its vehicle on the occasion out of which the claims of the parties arose. The question in this case therefore at this point is simply whether there was relevant privity between the Government and the police officer.

Of the three classes of privies of blood, of title and of interest, the only one which is submitted and indeed could be submitted to be relevant is that of a privy in interest. But I am unable to conclude that the Government or the Police Department was in this sense a privy of the police officer. The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy. Here it is quite clear that the Government had no interest in the action between [Pigram] and the police officer: nor can it be said that the action brought by the police officer was brought by him in any sense on behalf of the Government or that in relation to the defence of contributory negligence [Pigram] could have been treating the Government as the real “defendant” to that claim. In every respect the action between [Pigram] and the police officer was personal to each of them, neither being in any sense in relation to the action or any of the issues involved in it, representative of another. Nor can it be said that the Government in any sense claims under or in virtue of the police officer or of any right of his, or that it derives any relevant interest through him.

                                [emphasis added]

358    This principle in Ramsay v Pigram governs the identification of whether a person is privy in interest with a party to proceedings for the purpose of determining whether an estoppel results from the rendering of a final judgment. The principle is informed by a “higher-level principle” of: “who takes the benefit ought also to bear the burden” and the notion that “[a] man will be bound by that which bound those under whom he claims”: Tomlinson, [29].

359    In the result, neither Pigram nor the police officer were the representative of another in the earlier action or the issues in it and nor could it be said that the State of New South Wales was asserting a position “under” the police officer or asserting any right “of” the police officer or that it “derived” any relevant interest “through him”. Barwick CJ’s explanation that the State was not privy in interest with the police officer was based on two limbs: the absence of either representation of interest or derivation of interest under or through the police officer: Tomlinson, [32].

360    The plurality in Tomlinson explain that consistently with the rationale for the principle and the explanation of it by Barwick CJ, a party to a later proceeding (A), can be privy in interest with a party to an earlier proceeding (B) in one of two ways. First, (A) might have had some legal interest in the outcome of the earlier proceeding which interest was represented by (B), or (B) has some legal interest in the outcome of the later proceeding which interest is represented by (A): Tomlinson, [33]. The “extent to which the representation by (A) or (B) will be sufficient to bind the other is the critical issue”: Tomlinson, [33].

361    Second, after the earlier proceeding is concluded by judgment, (A), the party to the later proceeding, might acquire from (B), the party to the earlier proceeding, some legal interest which would give rise to an estoppel in the later proceeding.

362    The plurality recognise that an economic or other non-legal interest of (A) in the outcome of the earlier proceeding is not sufficient to render (A) a privy of (B): Tomlinson, [35]. Also at [35] the plurality said of subsequent applications of the Ramsay v Pigram principle that:

Those applications have also correctly emphasised that, absent a legal interest, such influence as A might have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control. Thus, directors of a company, who also held shares in its parent company, were held not to be estopped from pursuing a later action to recover damages to compensate for a loss on their own account in circumstances where they had stood to gain financially from an earlier action by the company claiming damages for loss on the company’s account. That was despite the directors having been found to have exercised effective control over the company’s conduct of the earlier action.

                        [emphasis added; citations omitted]

363    The authorities (which I will simply call the Effem Foods cases both at first instance and on appeal) referenced at fn 58 in support of the quoted propositions at [35] of Tomlinson are these: “Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In liq) (1993) 43 FCR 510 [the Full Court decision; Northrop and Lee JJ with a separate judgment by Burchett J dismissing an appeal from Gummow J]. See also Trawl Industries of Australia Pty Ltd (In liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 [the first instance decision of Gummow J] and Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 353 [a further decision of Gummow J dismissing a second application for a stay of the claims of applicants other than Trawl Industries of Australia Pty Ltd]”.

364    It is not necessary to examine the decisions in Effem Foods before Gummow J or the decision of the Full Court as the proposition deriving from those decisions has been affirmed by the High Court in Tomlinson at [35].

365    The point of the proposition, however, can be illustrated by noting that in the earlier proceedings Trawl Industries sought relief against Effem Foods in reliance upon causes of action including rectification of an agreement; breach of it; and claims based on ss 82 and 52 of the Trade Practices Act 1974 (Cth). Final judgment, however, was entered for Effem Foods on all causes notwithstanding that only the contract claims were heard at trial as separate questions with no trial of the ss 82 and 52 claims.

366    The later Federal Court proceedings were instituted by Trawl Industries (receivers and managers appointed); Cumbeline, the owner of all shares in Trawl Industries; (H) and (S), directors of Trawl Industries and Cumbeline and each a one third owner of the shares in Cumbeline; (P), a director of Trawl Industries and Cumbeline; Meridoc, the remaining one third owner of Cumbeline and Idobook, a lender to Trawl Industries and Cumbeline. All of these applicants sought damages suffered by each of them measured by their respective loss suffered in reliance upon representations said to have been in contravention of s 52. Although the shareholders and others held economic interests in the claims made by Trawl Industries in the earlier Supreme Court proceedings (and the directors exercised control over Trawl Industries in the earlier proceedings), Trawl Industries did not claim in the earlier proceeding as representative of the interests of others nor did it claim under or through them and thus they were not privies of Trawl Industries.

367    No estoppel arose against them although an estoppel arose against Trawl Industries.

368    There is another principle which derives from Ramsay v Pigram that should be mentioned. An issue estoppel can only be asserted in the subsequent proceeding by a party who was a party to the earlier proceeding or a privy of a party to the earlier proceeding. Relevantly here, UBS was a party to both the Singapore 801 proceedings and the SCNSW proceedings.

369    Having set out the propositions at [35] affirming the principle of the Effem Foods decisions, the plurality made this further observation in the final sentence of [35]:

The constraint on the conduct of A in such circumstances lies not in an estoppel but, in an appropriate case, in abuse of process.

                                [emphasis added]

370    In support of that observation, the plurality at fn 59 refers to the speech of Lord Bingham in Johnson v Gore Wood & Co (HL (E)) [2002] 2 AC 1 at 30-31 (Lord Goff, Lord Cooke and Lord Hutton agreeing and Lord Millett agreeing in the result). Lord Bingham said this:

It may well be, … that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But in Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

                                [emphasis added]

371    Lord Bingham also said this:

I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim.

                                [emphasis added]

372    As to the proper method of approach, Lord Bingham said this:

While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.

373    As to estoppel, the plurality in Tomlinson also recognise that, as a matter of principle, a person does not become bound, as a party to a later proceeding, by an estoppel by reason of a party having represented legal interests of that person in an earlier proceeding merely as a consequence of that party having lawfully asserted a claim which, if accepted, would have resulted in a determination embracing or enforcing a legal entitlement of the person (such as the assertion of an entitlement by a claimant discharging a statutory jurisdiction in respect of such a claim): [37]. The plurality observe at [37]:

[37]    … In the absence of the person having authorised the assertion of the claim, the representation must at least have been of such nature as to have protected the person from being unjustifiably subjected to an unwanted estoppel.

374    At [38] and [39], the plurality explain why that is so.

375    At those paragraphs, their Honours said this:

[38]    Why that should be so is not difficult to explain. It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded. There are countervailing considerations, some of which operate to create exceptions to that principle. Finality and fairness, including maintaining the certainty of past adjudicated outcomes and ensuring the predictability of future adjudicated outcomes, are amongst those countervailing considerations, and the estoppels informed by those considerations are amongst the exceptions to the principle. …

[39]    The justice of binding to an estoppel a person who was a party to an earlier proceeding is readily apparent: the person has already had an opportunity to present evidence and arguments. The justice of binding to an estoppel a person whose legal interests stood to benefit from the making or defending of a claim by someone else in an earlier proceeding will often also be apparent. With the benefit of the claim or defence also comes the detriment of the estoppel. That, at least, is the underlying theory. But it is a theory which has limitations. It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in an earlier proceeding or in the conduct of the earlier proceeding.

                                [emphasis added]

The application of these principles to the present case

376    In considering the application of the general principles to the circumstances of the present proceedings, I have had regard to the extensive written submissions of the parties and, of course, the oral submissions as well. I have also had regard to the affidavit material including the affidavit of Mr Tyne sworn 8 January 2015.

377    The parties to the SCNSW proceedings were originally Telesto, ACN 074 as trustee of the Argot Trust and Mr Tyne personally.

378    On 21 February 2012, leave was given by Ward J to amend those proceedings and on 6 March 2012, orders were made giving leave to the trustee and Mr Tyne to discontinue their respective claims against UBS in those proceedings. UBS says it took no objection to that course because it believed that neither of those parties any longer asserted any rights against it. Mr Tyne and the trustee assert that since the debt due to UBS had been satisfied and no money claims were any longer being asserted against either Telesto or him, there seemed no point in those parties continuing to participate in the SCNSW proceedings against UBS.

379    That left Telesto as the only party to the SCNSW proceedings.

380    In the Singapore 801 proceedings, UBS filed an amended statement of claim by leave on 19 January 2012. A further amended statement of claim was filed on 13 April 2012. As to the scope of the claims then advanced see [261] to [273] of these reasons.

381    At the time of the discontinuance by Mr Tyne and the trustee of their participation as parties asserting claims against UBS in the SCNSW proceedings, UBS contended as part of its earlier pleading in the Singapore 801 proceedings, although not an aspect of the money claim, that Telesto and Mr Tyne had waived all claims against UBS (or defences to claims of UBS) by reason of the Standstill Agreement.

382    Telesto and Mr Tyne chose not to contest the Singapore 801 proceedings nor cross-claim in those proceedings to assert that rights owed to each of them had been denied or that duties or obligations owed to each of them had been breached by UBS giving rise to damages (however those damages might be measured or calculated).

383    Telesto was sued in Singapore as a principal debtor or obligor to UBS and Mr Tyne was sued as guarantor of Telesto.

384    The trustee of the Argot Trust was not a party to the Singapore 801 proceedings.

385    The trustee is, and was, bound to discharge its duty (or his duty as Mr Tyne is now the trustee) according to the terms of the trust deed and according to law for and on behalf of the beneficiaries of the trust estate.

386    Assuming for the moment that res judicata or issue estoppel arises as between UBS on the one hand and Telesto and Mr Tyne on the other by reason of a final judgment of the High Court of Singapore arising out of the decision, judgment and orders of Lai J, I do not accept that in subsequent proceedings, the trustee of the Argot Trust is bound by the terms of the final orders in the sense that any cause of action it would seek to assert for loss suffered in reliance upon contended conduct of UBS in contravention of Federal and State statutory law constituted by the making of misleading or deceptive representations, or alternatively, representations likely to mislead or deceive (or for breaches of duty by UBS at common law or breaches of fiduciary duty owed by UBS) in the way pleaded in the Federal Court proceedings, can be successfully met with a plea by UBS of res judicata.

387    I accept that Telesto and Mr Tyne may be successfully met with such a plea (leaving to one side for the moment the effect of the orders of Sackar J in the SCNSW proceedings) should they, for example, seek to assert rights of a similar kind having regard to the declaration made in Singapore and the findings of fact made in Singapore.

388    It is not necessary to consider that question as no such claim is made.

389    Nor do I accept that in later proceedings commenced by the trustee of the Argot Trust asserting causes of action just described, can the issue of whether Telesto and Mr Tyne have compromised, waived or abandoned (by reason of the construction and effect of the Standstill Agreement of 31 December 2009 claims they may have had against UBS), be relied upon to establish an issue estoppel precluding the trustee from making its claims on the contended ground that that issue was necessarily decided in a final sense on the merits by Lai J and that that merits-based final finding, in the earlier proceedings, on the issue of waiver and compromise binds the trustee to an issue finally determined between other parties.

390    The trustee contends that it is seeking to advance legal interests of its own.

391    The trustee of the Argot Trust was not joined by UBS as a party to its Singapore 801 proceedings at the outset as UBS’s claims were asserted against only its principal obligor and the guarantor. UBS did not join the trustee to put in controversy, as against it, the content of the declaration which was confined to a position declaratory of matters inter se between UBS, and on the other side of the record, Telesto and Mr Tyne. Telesto and Mr Tyne could have elected to engage in and with the Singapore 801 proceedings, defend the claim to Declaration No. 2, resist the factual contentions and cross-claim in that proceeding to assert their causes of action and claims for remedial relief, but chose not to do so.

392    Mr Tyne contends in submissions in these proceedings that he and Telesto (of which he is the guiding mind) elected not to engage in the Singapore 801 proceedings because they had lost their legal representation in Singapore and were thus disadvantaged and, more importantly, they suffered significant juridical disadvantage in asserting cross-claims against UBS because in order to frame their claims concerning the contended conduct of UBS they would have had to rely upon the Singapore Misrepresentation Statute and causes of action in deceit, fraud and other causes recognised by Singapore law which were not, put simply, symmetrical with causes of action reliant upon contraventions of Federal and State legislation in Australia concerning conduct shown to be misleading or deceptive or alternatively conduct shown to be likely to mislead or deceive.

393    Those are matters relevant, of course, to Telesto and Mr Tyne.

394    I accept that had Telesto and Mr Tyne chosen to engage in the Singapore 801 proceedings, Mr Tyne as the controlling mind of ACN 074 as the trustee of the Argot Trust could have also caused the trustee of the trust to join the Singapore 801 proceedings as a cross-claimant and assert the factual matrix now asserted in the Federal Court proceedings (out of which the claims of Telesto and Mr Tyne also emerge).

395    I also accept, however, that there is some force in the proposition that those parties, had they so engaged, would have suffered at least some degree of juridical disadvantage in seeking to characterise UBS’s contended conduct as relevantly contravening conduct in Singapore, as compared with the way in which it would have sought to characterise that conduct under Australian law with its range of available remedial orders.

396    As to the Singapore 801 proceedings more generally, I accept that the extempore reasons of Lai J are very brief and it is difficult to identify any deliberative assessment of the evidence put on by UBS (both as to the affidavit material and the oral evidence) leading to exposed reasoning, in turn, leading to particular findings of fact arising out of that material. Nevertheless, the proper inference to be drawn from the exposed extempore reasons is that the hearing judge was satisfied (notwithstanding that the evidence was uncontested and uncontradicted as the defendant chose not to engage with the proceedings) that the evidence put on by UBS supported and made out the findings in terms of paras 113 to 139 as Lai J records.

397    I accept that res judicata or an issue estoppel can arise in a later proceeding commenced in Australia based upon an earlier final foreign judgment on the merits (within the limits of the general principles governing the preclusive effect of those doctrines upon a party in a later proceeding). The notion that an earlier foreign judgment to which a person was a party cannot give rise to res judicata or an issue estoppel in later domestic Australian proceedings against that person as a party to the later proceeding simply because the earlier judgment is a judgment of a foreign jurisdiction, is contrary to authority. The important question is whether the principles governing the doctrines of res judicata, issue estoppel and Anshun estoppel are made good in the particular circumstances of the later proceeding by reason of relevant matters having regard to the earlier proceedings, foreign or not.

398    A further but separate aspect of a consideration of whether a stay should be ordered in the exercise of the Court’s discretion in circumstances where a preclusive consequence is asserted against a party to later Australian proceedings in reliance upon a final foreign judgment on the merits is the accord to be given by an Australian court to the judgment of a court of the foreign jurisdiction. An Australian court will have, and give due regard to, final orders of the High Court of the Republic of Singapore and weigh in the balance in the exercise of the discretion as to the granting or withholding of a stay, all of the relevant circumstances relating to the foreign proceeding including: the precise parties to the proceeding; the causes of action agitated; the findings of fact; the applicable law; the character of the proceedings (whether final or interlocutory); and whether a hearing on the merits or a procedural determination was reached.

399    In any event, I am not satisfied that the trustee of the Argot Trust is to be precluded by either res judicata or issue estoppel or an Anshun estoppel from maintaining its claims as formulated in the Federal Court proceedings by reason of a final judgment on the merits by Lai J in the proceedings commenced and prosecuted in Singapore to a final hearing against Telesto and Mr Tyne.

400    The trustee of the Argot Trust is not privy in interest with Telesto or Mr Tyne.

401    As to the anti-suit injunction, an order was made by Assistant Registrar Ms Tan Wen Hsien on 21 February 2011 and affirmed on appeal by Chong J on 14 July 2011 directing Telesto, Mr Tyne and ACN 074 as trustee of the Argot Trust to forthwith withdraw and discontinue the SCNSW proceedings and restraining them from prosecuting those proceedings: see [196] of these reasons.

402    By Order 2 of the orders made on 21 February 2011, Telesto, Mr Tyne and the trustee of the Argot Trust were restrained from commencing or continuing other proceedings in Australia (or elsewhere) against UBS in relation to all those matters described at [198] of these reasons which includes the claims the trustee now makes in the Federal Court proceedings.

403    Thus, the trustee is acting, in Australia, in contravention of the affirmed order of the High Court of Singapore.

404    The Federal Court must pay due regard to the orders of the High Court of Singapore and accord proper respect to those orders in the exercise of the discretion to stay (or not) a proceeding in this Court by which a party seeks to engage an invested jurisdiction of the Court. That respect and accord might properly be called “comity” as between courts but the respect and accord so afforded to the orders of the High Court of Singapore does not mean that the order itself is determinative of that party’s right to engage the relevant jurisdiction of an Australian Court on a justiciable question within that Court’s jurisdiction; agitate a particular controversy of fact and law in that Court; and seek a remedy in resolution of a particular controversy which would quell that controversy.

405    Nevertheless, all of those steps, may fall within the textual terms of a prohibitive order of a foreign court. It is then necessary for the court of the forum to examine the factors described at [398] informing the making of the orders so as to determine whether the court of the forum will preclude the party from asserting its claims in the forum.

406    The anti-suit injunction orders were made in Singapore in Proceeding No. 1160 of 2010V in aid of the integrity of the High Court of Singapore’s adjudicative processes in the Singapore 801 proceedings as the contended natural forum for the “dispute” in those proceedings: see the reasoning of Chong J discussed at [208] to [219] of these reasons.

407    The Singapore 801 proceedings did not engage the trustee of the Argot Trust as a party and, obviously enough, no relief was sought by UBS against the trustee. The “dispute” for which Singapore was ultimately found to be the natural forum was one between UBS, its debtor (Telesto) and Mr Tyne personally as guarantor. Yet, the trustee of the Argot Trust was ordered to withdraw and discontinue its own claims in respect of its separate legal interests in the SCNSW proceedings along with Telesto and Mr Tyne, and ordered not to commence any other proceeding in Australia (or elsewhere) concerning the subject matter of Order 2: see [198]. On that footing, by reason of the making of those orders, UBS says the trustee of the Argot Trust is to be forever deprived of the opportunity to make its claim, assert its legal interests, and have a hearing on the merits before a court of competent jurisdiction in Australia.

408    It is true that at the time the Singapore Court made the anti-suit injunction orders, the trustee of the Argot Trust was asserting facts (and making a claim to remedial relief) in the SCNSW proceedings based essentially upon the same factual contentions relied upon by Telesto and Mr Tyne concerning aspects of UBS’s alleged conduct. Nevertheless, the trustee was asserting a different legal interest to that of Telesto and Mr Tyne, the parties to the Singapore 801 proceedings.

409    The decision of Chong J (on the appeal) is concerned with whether Singapore is the natural forum for the dispute as between UBS on one side and Telesto and Mr Tyne on the other. Although the Singapore Court may have thought it necessary to grant an anti-suit injunction against the trustee, in aid of its own proceedings in the High Court of Singapore in a dispute to which the trustee was not (and never became) a party, (recognising that there is no discussion of that aspect of the matter by either the Assistant Registrar or Chong J), I am not satisfied that those circumstances ought operate to deprive the trustee of an opportunity to commence and prosecute a claim properly engaging the jurisdiction of a relevant Australian Court if it is proper to do so.

410    As to the SCNSW proceedings and the orders of Sackar J, I accept that those orders represent a final determination of the proceedings. I am not satisfied that the trustee of the Argot Trust is privy in interest with Telesto (or Mr Tyne) and thus I am not satisfied that res judicata arises by reason of that final judgment which precludes the trustee from commencing and maintaining the causes of action it asserts in the Federal Court proceeding. Nor am I satisfied that an issue estoppel arises on the question of a compromise, waiver or abandonment of claims the trustee would seek to make, by reason of any aspect of the findings or orders made by Sackar J which precludes the trustee from asserting a claim said to be inconsistent with a determination of Sackar J that no claim can be maintained by Telesto.

411    Nor am I satisfied that an Anshun estoppel arises.

412    It seems to me that the answer to these three forms of estoppel is that the trustee of the Argot Trust is not Telesto and nor is the trustee privy in interest with Telesto.

413    The position, however, is entirely different in relation to the doctrine of abuse of process.

414    Although the trustee is not privy in interest with Telesto (or Mr Tyne), Mr Tyne was the controlling mind of ACN 074 as trustee of the Argot Trust throughout the period of that entity’s role as trustee and today Mr Tyne is the trustee. Mr Tyne as director and guiding mind of the trustee, throughout the period of all of the relevant events, made the decision to cause the trustee to discontinue its participation as a plaintiff in the SCNSW proceedings and not agitate, by the proposed amended proceedings as put to Sackar J, the causes of action asserted by the trustee for and on behalf of the trust in the Federal Court proceedings based upon the contended contraventions of Federal and State legislation quite apart from the common law claims and the claims of breaches of fiduciary duty.

415    The Supreme Court of New South Wales was invested with Federal jurisdiction in respect of all of the Federal sources of law upon which the trustee would seek to rely and it otherwise had jurisdiction under the relevant State legislation. It, of course, had jurisdiction in respect of the common law claims and the contentions of breaches by UBS of fiduciary duties it owed to the trustee.

416    The trustee chose not to bring, agitate or maintain those claims when it could have done so and should have done so.

417    Mr Tyne submits that because UBS had no money claims against the trustee of the trust or him, he caused those parties to discontinue their participation in the SCNSW proceedings. Nevertheless, the trustee of the trust and Mr Tyne (and, of course, also Telesto) had, prior to the discontinuance, asserted that UBS had contravened Federal and State legislation giving rise to causes of action in the trustee of the Argot Trust and had breached common law duties owed to the trustee and breached fiduciary duties owed to the trustee. All of those claims arose out of a common substratum of fact and the formulation of the proceedings in the Federal Court of Australia is very substantially in the same terms as the factual contentions asserted in the SCNSW proceedings.

418    Had Mr Tyne caused the trustee of the trust to bring its claim based on the common substratum of fact along with the participants who had also suffered the contended loss in the form of Mr Tyne personally and Telesto, the trustee would not have been met with res judicata, an issue estoppel or an Anshun estoppel having regard to the state of the law as it was and as it has been affirmed by the High Court in Tomlinson. The trustee was at no time privy in interest with either Telesto or Mr Tyne. A question might have arisen as to whether the trustee ought to have joined in the Singapore 801 proceedings as a cross-claimant to assert its claims arising out of the common substratum of fact. Had it done so, it would have suffered the same juridical disadvantage that Telesto and Mr Tyne complain about and which Sackar J found to be a material highly significant juridical disadvantage.

419    However, the trustee did not suffer any juridical disadvantage by seeking to join the SCNSW proceedings to advance the claims in precisely the same terms as formulated in the Federal Court proceedings. The trustee would, of course, have had to “re-join” those proceedings having earlier elected, without objection from UBS, to discontinue its participation in those proceedings.

420    Mr Tyne says that the losses the trustee complains about are losses brought about by UBS and that UBS’s conduct is at the centre of the proceedings. Mr Tyne says that UBS ought not to be allowed to profit from its own contended misadventure by securing a stay preventing the trustee from having a hearing on the merits of its claims. I weigh that matter in the balance.

421    There is no doubt that the trustee of the Argot Trust could and should have brought its claims in the SCNSW proceedings. It had every opportunity to do so. There is no proper explanation of why it chose not to do so.

422    The entire factual matrix was before the Supreme Court of New South Wales and three parties had chosen to invoke the jurisdiction of the Supreme Court to agitate claims. Ultimately, Telesto sought to continue to agitate claims by seeking to have a final hearing on all of the factual matters out of which the trustee’s also claim arose. The conduct of the SCNSW proceedings seems to suggest that a claim which the trustee could and should have brought was held back on the footing that such a claim might be brought in another court if the outcome of the SCNSW proceedings, having regard to the Singapore 801 proceedings, resulted in a stay of a claim by Telesto.

423    More fundamentally, as a matter of principle, the trustee of the Argot Trust does not have an unqualified and absolute right to a trial of its claims on the merits, regardless of any other considerations. It has, without any doubt, a right to an opportunity to have a hearing on the merits on which it can present evidence and arguments to establish the factual foundation for its claims and the legal framework within which those claims are to be made good.

424    The trustee had that opportunity and it chose not to exercise that opportunity, no doubt according to decisions made by the guiding mind of the trustee, Mr Tyne. I am satisfied that the claims now made by the trustee in these Federal Court proceedings should have been raised in the SCNSW proceedings if they were to be raised at all. Bringing the proceedings now, raising as they do, substantial complex questions of fact and law with which UBS has been vexed before, is an abuse of the processes of the Federal Court of Australia. I am satisfied that the proceedings commenced by the trustee should be permanently stayed.

425    The remaining question is that of the claim of Ms Marks.

426    The claim by Ms Marks is in every sense a derivative claim in that it is entirely reliant for its foundation of fact and its related reliance loss formulations upon the events which occurred by reason of the entire portfolio of misrepresentations said to have been made by UBS to Mr Tyne. All of the events upon which Ms Marks relies occurred during the period from 2007 to 2009. All of the central events are directly related to the entire conduct alleged against UBS.

427    Ms Marks is the partner of Mr Tyne. I am satisfied that the claims made by Ms Marks as formulated in the amended statement of claim in these proceedings is a claim which could and should have been brought along with the claim by the trustee in the SCNSW proceedings. That Court had jurisdiction to hear the claims, was seized with the proceeding and was seized with all of the foundation factual matters which were required to be ventilated and ultimately made the subject of findings in that proceeding.

428    I am satisfied that the claims by Ms Marks could have and should have been brought in the SCNSW proceedings.

429    I am satisfied that the joinder of the claims by Ms Marks in the Federal Court proceedings is an abuse of this Court’s processes and that the proceedings commenced by Ms Marks must also be stayed.

430    The remaining question concerns the disposition of the costs of and incidental to the application for a stay and the costs of the proceedings. As to the costs, I am satisfied that a proper exercise of the discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is that the trustee of the Argot Trust must pay the costs of the respondent of and incidental to the application for the stay. Because I have found that these proceedings commenced by the applicants are an abuse of the processes of this Court, the question that arises is whether costs ought to be ordered on an indemnity basis. Having regard to the history of the various proceedings and in particular the history of the SCNSW proceedings and the relationship between the foundation matters of fact asserted in that proceeding as compared with the matters sought to be asserted in these proceedings, and all of the other considerations I have discussed throughout these reasons, I am satisfied that a proper exercise of the discretion requires an order to be made that the trustee of the Argot Trust pay the costs of UBS of and incidental to the application on an indemnity basis.

431    The claims made by Ms Marks are derivative and, I suspect, have been joined with the proceedings by the trustee in order to establish an independent claim by an independent party. Nevertheless, Ms Marks’s claim is necessary entirely bound up with the claims the trustee seeks to make and I have already found that Ms Marks ought to have made her claim in the SCNSW proceedings along with the trustee of the Argot Trust.

432    Nevertheless, the merits of this application have been consumed with a consideration of the issues as between UBS, Telesto, Mr Tyne and the trustee of the Argot Trust.

433    The order as to costs which I have already made against the trustee of the Argot Trust addresses all of those matters. I make no order as to costs as against Ms Marks.

434    Because the proceedings have been not only maintained in circumstances of an abuse of process but were commenced in such circumstances, I further order that the trustee of the Argot Trust pay the respondent’s costs of and incidental to the action on an indemnity basis.

Associate:

Dated:    8 January 2016