Federal Court of Australia
Paras v Westpac Banking Corporation [2021] FCA 616
ORDERS
First Appellant STEPHEN MATTHEW APPERLY Second Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellants will pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANDERSON J:
INTRODUCTION
1 By their notice of appeal dated 23 June 2020, the appellants appeal from a judgment of the Federal Circuit Court of Australia delivered on 22 May 2020: see Westpac Banking Corporation v Paras & Anor [2020] FCCA 1156 (Primary Judgment). Following delivery of the Primary Judgment, the primary judge made the following orders on 23 June 2020:
1. The deceased estate of John Paras be sequestrated under the Bankruptcy Act 1966 (Cth).
2. The estate of Stephen Matthew Apperly be sequestrated under the Bankruptcy Act 1966 (Cth).
3. [Westpac Banking Corporation’s] costs, including reserved costs, be taxed and paid on a joint and several basis from the estates of the … debtors in accordance with the Bankruptcy Act 1966 (Cth).
2 For the reasons that follow, the appeal will be dismissed with costs.
GROUNDS OF APPEAL
3 The appellants’ notice of appeal dated 23 June 2020 raises 11 grounds of appeal. Those grounds fall within the following broad categories:
(1) Whether the respondent (Westpac) was entitled to issue a bankruptcy notice upon default under a Deed of Settlement (grounds of appeal 1 to 5) (Competency Grounds).
(2) Whether the Deed of Settlement was an accord and satisfaction or accord executory (grounds of appeal 6 and 7) (Construction Grounds).
(3) Whether there was conduct of Westpac that disentitled it to remedies under the Deed of Settlement, being either lack of good faith, breach of an express term of the Deed of Settlement and/or unconscionable conduct (grounds of appeal 8, 9, 10(c)) (Good Faith/Unconscionable Grounds).
(4) Whether the primary judge considered or gave sufficient weight to evidence of events prior to the settlement (grounds of appeal 10(a) and 10(b)) (Evidentiary Grounds).
(5) There was then what might be described as an overarching ground, ground of appeal 11, which stated:
It ought to have been found that there was no default as alleged; that [Westpac] engaged in unconscionable conduct; and that otherwise the claims made summarised in [ground] 8 …, and alleged as to Westpac’s breaches of the settlement deed and its conduct in the appellants’ amended grounds of opposition dated 9 October 2019 … and in their Amended Application, were made out, and that the bankruptcy notice was bad, the creditor’s petition was incompetent, and that the [first instance] proceeding should [have been] dismissed.
NATURE OF APPELLATE REVIEW
4 Before turning to consider the grounds of appeal, it is instructive to recall that the exercise of this Court’s appellate jurisdiction under Div 2 of Pt III of the Federal Court of Australia Act 1976 (Cth) involves an appeal by way of a rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Branir) at [20] per Allsop J (as his Honour then was) with Drummond and Mansfield JJ agreeing, and Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 (Aldi) at [45] per Perram J. The task of the appellate court is the correction of error: Branir at [22]; Aldi at [45]. It is necessary for an appellate court to demonstrate error in the primary judge’s findings or conclusion: Branir at [21]. Error is demonstrated where it is shown that some aspect of the trial judge’s reasoning is wrong: Aldi, [45].
5 The submissions in this appeal must be considered in light of those basal principles. As will become apparent, the appellants have failed to identify any error in the trial judge’s reasoning. Indeed, a number of the appellants’ grounds and submissions were attempts to impermissibly re-litigate on appeal factual findings made by the primary judge.
THE RELEVANT LEGISLATIVE PROVISIONs
6 The relevant legislative provisions should be briefly referred to. Section 52 of the Bankruptcy Act 1966 (Cth) (Act) relevantly provides:
52 Proceedings and order on creditor’s petition
(1) At the hearing of a creditor’s petition, the Court shall require proof of:
(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…
(2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a) that he or she is able to pay his or her debts; or
(b) that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition.
7 Section 245 of the Act provides:
245 Debtor dying after presentation of creditor’s petition
(1) Subject to subsection (2), where a person against whom a creditor’s petition has been presented under Part IV dies after he or she has been served with the petition but before a sequestration order has been made on the petition or the petition has been dismissed, an order may be made on that petition for the administration of his or her estate under this Part.
(2) The matters of which the Court is to require proof before making such an order in a case to which subsection (1) applies are those of which the Court would have required proof before making a sequestration order on the petition if the deceased person had not died.
(3) If the Court makes an order that the estate be administered under this Part, the creditor who obtained the order must, before the end of the period of 2 days beginning on the day the order was made, give a copy of the order to the Official Receiver.
Penalty: 5 penalty units.
Note: See also section 277B (about infringement notices).
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
8 It was in that statutory context that the present appeal arose. I turn to set out relevant facts which underpin the appeal.
FACTUAL BACKGROUND
9 On 2 December 2020, the appellants filed a chronology of relevant events, which provided the following background in respect of what the appellants referred to as the “Sanctuary demand” and the “Epping matter”.
The Sanctuary demand
10 In respect of the “Sanctuary demand”, the appellants’ chronology provided the following relevant factual overview.
11 On 5 February 2007, Westpac agreed to advance $4.8 million to re-finance Sanctuary Townhouses Pty Ltd (Sanctuary Townhouses) secured by 13 completed but unsold townhouses (from a development totalling 40 townhouses).
12 On 22 March 2007, a guarantee and indemnity was provided by Mr Apperly (and another person) for the Westpac Sanctuary Townhouses loan facility.
13 On 11 February 2009, Westpac appointed receivers to Sanctuary Townhouses.
14 On 1 June 2009, Mr Apperly commenced work with receivers to sell the remaining Sanctuary Townhouses’ assets and repay the Westpac debt.
15 On 7 September 2009, Longreach Capital Partners Pty Ltd entered into a put option deed with Sanctuary Townhouses and Westpac to better secure Westpac’s outstanding debt.
16 On 1 December 2012, Mr Apperly completed the sale of all 13 of the relevant Sanctuary Townhouses’ properties.
17 On 21 May 2013, the Sanctuary Townhouses receiver resigned.
18 On 6 March 2014, Westpac issued a notice of demand to Mr Apperly regarding the Sanctuary loan facility guarantee.
19 On 23 June2017, Westpac issued a notice of demand to Mr Apperly for $1,881,155 in relation to Sanctuary Townhouses.
20 In late July 2017, Mr Apperly met with a developer regarding “tak[ing] over” the “Doncaster Project”.
21 On or around 3 August 2017, it is said that Mr Apperly met with Westpac and Minter Ellison to discuss the Sanctuary demand and its consequences for the Doncaster project.
22 On 5 September 2017, Westpac’s solicitors wrote to Mr Apperly and reduced Westpac’s Sanctuary demand to $500,000 to be paid in two $250,000 instalments, with the first payment to be an upfront payment by 31 October 2018.
The Epping matter
23 The appellants’ chronology provided the following factual overview in respect of the “Epping matter”.
24 On 29 November 2007, Westpac agreed to advance $6.195 million to Epping Fresh Food Market Pty Ltd under a business finance agreement.
25 On 5 December 2007, a guarantee and indemnity was given by Mr Paras and Mr Apperly to Westpac in respect of the Epping Fresh Food Market Pty Ltd facility.
26 On 23 December 2007, Epping Fresh Food Market Pty Ltd acquired vacant leasehold land at 551 High Street, Epping.
27 On 1 October 2008, construction of a pre-leased fresh food market commenced at 551 High Street, Epping.
28 On 1 January 2010, Epping Market opened, and then closed in 2012.
29 In the period 2012 to 2015, Epping Fresh Food Market Pty Ltd undertook re-zoning of the site.
30 On 11 August 2015, Westpac commenced a proceeding in the Supreme Court of Victoria (proceeding S ECI 2015 000294) against the appellants, Mr Paras and Mr Apperly.
31 On 10 March 2016, the Supreme Court Victoria gave judgement in the amount of $8,350,791 (judgement debt) in favour of Westpac against the appellants, Mr Paras and Mr Apperly.
32 On 2 August 2016, Bankruptcy Notice 193404 was issued against Mr Paras and Mr Apperly.
33 On 1 February 2017, a creditor’s petition was filed against Mr Apperly and Mr Paras in the Federal Circuit Court.
34 On 31 March 2017, solicitors for Mr Apperly, RB Flinders, sent correspondence to a representative of Westpac which relevantly stated:
We confirm we act for Stephen Apperly.
We have been specifically engaged to assist Mr Apperly formulate and document a commercial outcome to resolve his outstanding liability to Westpac.
We have been instructed by Mr Apperly that the proposals set out in this letter are aimed to provide Westpac with a solution with a far improved financial return than it would otherwise receive if the current bankruptcy proceedings against Mr Apperly are completed.
Should any agreement be reached with Westpac in relation to Mr Apperly’s debt, we will prepare a deed formalising the terms for Westpac's review and approval.
Accordingly we are instructed to make the following proposals for Westpac’s consideration[.]
35 The letter then set out various proposals. One of those proposals related to 444-448 Doncaster Road, Doncaster. That proposal stated the following:
We are instructed by Mr Apperly as follows:
• That Mr Apperly’s Longreach Group has executed agreements with each of the three owners of 444, 446 & 448 Doncaster Road, Doncaster which provide for Longreach to manage the development of these sites into 18-townhouses;
• By way of background, each owner has agreed to contribute (unencumbered) their respective sites into the project. Further, the owners will acquire a total of ten townhouses from the completed development;
• This project does not have a town-planning permit at this stage. It is located, however, in the Doncaster Hill precinct, which specifically encourages medium density projects such as this; and
• This project will be concluded within 2 ½ years. Mr Apperly estimates that this project will return a profit of approximately $1.2 million to Longreach.
Proposal to Westpac …
In the circumstances we are instructed by Mr Apperly to make the following proposal to Westpac:
1. Mr Apperly provide Westpac with a monthly report detailing the progress of this project; and
2. Mr Apperly pays to Westpac $1 million from this project within 7-days of its completion - but no later than 31st September 2019.
Timing: This payment would be made by 31st September 2019.
(Bold and underlined text in the original.)
36 On 10 May 2017, the parties executed a deed of settlement, which is addressed in more detail below.
37 On 11 May 2017, the creditor’s petition against Mr Paras was dismissed by consent.
38 On 22 June 2017, the creditor’s petition against Mr Apperly was dismissed by consent.
39 As stated above in relation to the Sanctuary demand, on 23 June 2017, Westpac issued a notice of demand against Mr Apperly for $1,881,155 in relation to Sanctuary Townhouses.
40 As stated above, on or around 3 August 2017, Mr Apperly met with Westpac and Minter Ellison to discuss the 23 June 2017 Sanctuary demand and its consequences for the Doncaster project and “Epping matter”.
41 On 7 August 2017, Mr Apperly sent correspondence to a representative of Westpac, which relevantly stated:
I refer to Westpac's demand dated 23rd June, 2017.
Westpac is aware of the protracted background and terms of the Settlement Deed I signed with it on 10th May, 2017.
This Settlement Deed proposed that I pay Westpac:
• $15,000 payable by 10th May, 2017 [paid]
• $1 million in total over two instalments, plus
• 25% of the net proceeds of [certain] potential legal claims …
In the period up to Westpac's second Federal Court bankruptcy hearing against me (set down for 11th May), I stressed repeatedly to Westpac that the terms ultimately agreed in this Deed were the absolute limit of my financial capacity.
The Deed negotiated and settled with Westpac (10th May) included all outstanding matters between myself and Westpac. Prior to the current demand, it had been more than two years since Westpac had even raised the Sanctuary Townhouses matter separately to Epping.
As I stated to you last Thursday, my inability to pay Westpac anything further was the result of my sole funding of all Epping related costs (since 2010) and my four years of almost full time work spent reducing the Sanctuary Townhouses Westpac facility from 2009 until 2012.
Proposal
I have been pursuing in good faith each of the recovery items listed in the 10th May Settlement Deed with Westpac. Should Westpac seek to pursue this (23rd June) demand I will simply be unable to proceed with any of the proposed payments to Westpac under this Settlement Deed with Westpac.
If Westpac effectively ends this Settlement Deed by now overlaying this new demand, then it would not be logical (or even possible) for me to continue to pursue these payments to Westpac.
…
Since our meeting of last week, I have had no choice but to suspend my involvement in the Doncaster project given this new claim by Westpac. I cannot, in good faith continue in this joint venture whilst this demand remains on foot.
So in summary, I am seeking a written declaration from Westpac that it is not and will not pursue any further claims from me.
…
42 As stated above, on 5 September 2017, Westpac’s solicitors wrote to Mr Apperly and reduced its Sanctuary demand to $500,000, to be paid in two $250,000 instalments, the first an upfront payment by 31 October 2018.
43 On 4 December 2018, a deed of variation extended the time for payment of the first $500,000 payment from 31 October 2018 to 28 February 2019
44 On 1 March 2019, a default letter was sent on behalf of Westpac to Mr Paras and Mr Apperly.
45 On 4 April 2019, Bankruptcy Notice No 239831 was issued against Mr Paras and Mr Apperly.
46 On 7 August 2019, a creditor’s petition was filed against Mr Paras and Mr Apperly. That creditor’s petition relevantly stated:
The applicant creditor, [Westpac], applies to the Court for a sequestration order under section 43 of the Bankruptcy Act 1966 against the estate of John Paras … and against the estate of Stephen Matthew Apperly …
1. [Mr Paras and Mr Apperly] owe [Westpac] the amount of $8,335,791.96, being the amount [owed] pursuant to a guarantee given in support of a business finance facility for which [Westpac] has received a judgment debt in the Supreme Court of Victoria and for which [Westpac] has applied and obtained a bankruptcy notice with identifier BN239831, less a payment of $15,000.00 made to [Westpac] by [Mr Apperly].
2. [Westpac] does not hold security over the property of [Mr Paras or Mr Apperly].
…
4. The following act of bankruptcy was committed by [Mr Paras and Mr Apperly] within 6 months before presentation of this petition:
[Mr Paras] failed to comply on or before 29 April 2019 with the requirements of a bankruptcy notice served on him on 8 April 2019 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.
[Mr Apperly] failed to comply on or before 1 August 2019 with the requirements of a bankruptcy notice served on him on 8 April 2019 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.
47 On 30 October 2019, Mr Paras passed away.
48 On 20 February 2020, Westpac filed an application in the Federal Circuit Court for a sequestration order under s 245 of the Act against the deceased estate of the first appellant, Mr Paras.
49 On 23 June 2020, sequestration orders were made against Mr Apperly and the estate of Mr Paras.
50 It should be said that there is no indication that Westpac necessarily agreed with the factual matters set out above. However, they are set out above not as findings of fact, but as a useful general overview of the nature of matters which have given rise to the dispute between the parties to this appeal.
The terms of the Deed of Settlement
51 As will become apparent later in these reasons, the grounds of appeal advanced in this appeal largely concern a “Deed of Settlement & Release” dated 10 May 2017 (Deed of Settlement). The parties to the Deed of Settlement were Westpac, Mr Paras and Mr Apperly.
52 The relevant recitals of the Deed of Settlement are as follows:
RECITALS
A. By a business finance agreement dated 29 November 2007 (“Facility Agreement”), Westpac agreed to provide financial accommodation to Epping Fresh Food Market Pty Ltd (ACN 127 544 049) (“Epping Fresh Food”).
…
D. By a guarantee and indemnity dated 5 December 2007 between Westpac and Paras (“Paras Guarantee”), Paras (amongst other things to [sic]) guaranteed to Westpac payment of all of the money which Epping Fresh Food, at any time, owed to Westpac for any reason, under or in relation to the Facility Agreement up to a limit of $6,915,000 plus a further 20% of that figures [sic] to cover ‘Excesses’ (as defined in the Paras Guarantee) plus government duties and charges, fees, costs, expenses and interest.
E. By a guarantee and indemnity dated 5 December 2007 between Westpac and Apperly (Apperly Guarantee), Apperly (amongst other things to [sic]) guaranteed to Westpac payment of all of the money which Epping Fresh Food, at any time, owed to Westpac for any reason, under or in relation to the Facility Agreement up to a limit of $6,915,000 plus a further 20% of that figures [sic] to cover ‘Excesses’ (as defined in the Apperly Guarantee) plus government duties and charges, fees, costs, expenses and interest.
F. Epping Fresh Food defaulted under the terms of the Facility Agreement.
G. On 11 August 20215, Westpac commenced Supreme Court of Victoria Proceeding No. S ECI 2015 000294 (“Proceeding”) against Paras and Apperly in relation to the Paras Guarantee and the Apperly Guarantee as described in the Originating Process-Redcrest dated 11 August 2015 (“Claims”).
H. On 10 March 2016 Westpac obtained default judgment against each of Paras and Apperly in the Proceeding in the total sum of $8,350,791.96 (“Debt”).
I. On 2 August 2016, the Official Receiver issued Bankruptcy Notice BN1933404 addressed to Paras and Apperly in respect of the Debt.
J. On 1 February 2017, Westpac filed a creditor’s petition in Federal Circuit Court of Australia Proceeding No. MLG210 of 2017 against Paras and Apperly seeking that (amongst other things) a sequestration order be made in relation to the respective estates of Paras and Apperly (“Bankruptcy Proceeding”).
K. The parties to this Deed have agreed to settle the Claims, the Proceeding and the Bankruptcy Proceeding as between them in accordance with the terms of this Deed.
53 The relevant terms of the Deed of Settlement were as follows:
2. SETTLEMENT
2.1 In full and final settlement of the Claims, the Proceeding and the Bankruptcy Proceeding insofar as it relates to the parties the subject of this Deed, Paras and Apperly agree to:
2.1.1 pay to Westpac the sum of $1,015,000 (“Initial Settlement Sum”) by way of the following instalments:
2.1.1.1 the amount of $15,000 to be paid in cleared funds by 4:00pm on 10 May 2017 into [a certain bank account];
2.1.1.2 the amount of $500,000 by 31 October 2018; and
2.1.1.3 the amount of $500,000 by 13 September 2019;
2.1.2 pay to Westpac 25% of the net proceeds received from each of the individual Project Proceedings within 7 business days of receipt of any settlement sum or judgment debt related to each of the Project Proceedings (“Final Settlement Sum”).
2.2 Time is of the essence in relation to obligation to pay the amounts described in clause 2.1.1.
3. PAYMENT
3.1 Payments of the amounts referred to in clauses 2.1.1.2 and 2.1.1.3 above must be paid to Westpac by way of bank cheque or by electronic funds transfer to an account nominated by Westpac.
4. WITHDRAWAL OF CREDITOR’S PETITION
4.1 Upon execution of this Deed, the parties consent to Westpac seeking the following orders in the Bankruptcy Proceeding:
4.1.1 leave to withdraw the creditor’s petition.
4.1.2 No order as to costs.
5. COVENANT NOT TO SUE
5.1 Upon execution of this Deed, Paras and Apperly agree:
5.1.1 to forever release and discharge Westpac from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims, including all matters relating to the provision of loan funds to Epping Fresh Food pursuant to the Facility Agreement and all associated securities granted in favour of Westpac and from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the Project.
5.2 Upon execution of this Deed, Paras and Apperly agree:
5.1.2 that if the registration of Epping Fresh Food is at any time in the future re-instated by the Australian Securities and Investments Commission, they will not assist or co-operate with or instigate on behalf of Epping Fresh Food against Westpac any actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims including all matters relating to the provision of loan funds to Epping Fresh Food pursuant to the Facility Agreement and all associated securities granted in favour of Westpac and they will not assist or co-operate with or instigate on behalf of Epping Fresh Food against Westpac any actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the Project.
5.3 Upon receipt of the Initial Settlement Sum and the Final Settlement Sum in full and subject to its retention by Westpac, Westpac agrees to:
5.3.1 forever release and discharge Paras and Apperly from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims;
5.3.2 forever release and discharge Epping Fresh Food (should its registration be reinstated by the Australian Securities and Investments Commission) from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims provided only that Epping Fresh Food does not bring against Westpac any actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims including all matters relating to the provision of loan funds to Epping Fresh Food pursuant to the Facility Agreement and all associated securities granted in favour of Westpac or bring any actions, claims, costs, demands, proceedings, suits and/or writs against Westpac in connection with the Project.
6. DEFAULT
6.1 If Paras or Apperly default on payment of any amount described in clause 2.1 above or fail to meet their obligations in clause 1 above, Westpac can immediately write to Paras and Apperly as follows:
6.1.1 setting out the nature of the default; and
6.1.2 demanding that any default be rectified by Paras and Apperly within five business days of the date of such notice from Westpac.
6.2 Should Paras and Apperly fail to rectify the defaults set out in a notice sent by Westpac in accordance with clause 6.1 above, Westpac will be entitled to proceed with bankruptcy proceedings against them and Paras and Apperly agree not to defend, contest or otherwise dispute a sequestration order being made against each of them. If Paras and Apperly do attempt to defend any such bankruptcy proceeding, Westpac may file an affidavit setting out the terms of this Deed to restrain them from doing so.
6.3 For the purposes of clause 6.1 above, unless Paras or Apperly notifies Westpac of an alternative address, such a notice will be deemed to be delivered if sent to each of Paras and Apperly at [certain] email addresses [referred to in the Deed of Settlement].
THE DECISION OF THE PRIMARY JUDGE
54 The primary judge made sequestration orders against the appellants. It was not in dispute that the formal matters of s 52(1) of the Act had been satisfied and that the appellants had not put forward any evidence as to their solvency: Primary Judgment, [1].
55 The primary judge stated at [1]-[2] of the Primary Judgment:
In this proceeding [Westpac] seeks sequestration orders. In respect of [Mr Paras], who tragically died during the currency of the proceeding, an order is sought against his estate pursuant to section 245 of the [Act]. In respect of Mr Apperly a sequestration order is also sought. The applicants submit, and this is not controversial, that the formal matters in section 52(1) are satisfied, and that [Mr Paras and Mr Apperly] have not put forward any evidence of solvency.
56 The primary judge described at [2]-[4] the controversy between the parties in the following terms:
… [Mr Paras and Mr Apperly] submit that there are two bases upon which [they] resist the making of sequestration orders. Although not articulated in terms, they seem to fall as a matter of analysis within section 52(2) of the Act and to amount to “other sufficient cause a sequestration order not be made”.
Although the matter has been expressed in a somewhat scattergun way from time to time by [Mr Paras and Mr Apperly], they appear to me to advance two central matters which are:
(a) The judgment debt upon which the bankruptcy notice and, as a result, the creditor’s petition were based was extinguished when the parties entered into a deed of settlement, and accordingly, the original debt can no longer exist; and
(b) The conduct of [Westpac] was unconscionable because [Westpac] prevented [Mr Paras and Mr Apperly] (and more particularly Mr Apperly) from complying with the terms of the deed of settlement and [Westpac]’s conduct in so doing was unconscionable.
For the reasons that follow, I do not think that any of the matters advanced by [Mr Paras and Mr Apperly] are made out on the materials, and I will make the sequestration orders that are sought.
57 The primary judge observed that none of the various deponents in the proceeding were required to attend for cross-examination: Primary Judgment, [5]. The position had been adopted by the parties that it was open to the Court to make a proper determination of the facts upon the material filed: ibid.
58 Before the primary judge, the appellants did not suggest that they are solvent in the sense that they are able to pay their debts: Act, s 52(2)(a). In this respect, in Liang v LV Property Investments Pty Ltd [2015] FCA 1057, Beach J stated at [50]:
A petitioning creditor has a prima facie right to a sequestration order once proof of the matters required by s 52(1) has been satisfied (Deputy Commissioner of Taxation v Cumins (2008) 101 ALD 78 … at [14] per Gilmour J; Cain v Whyte (1933) 48 CLR 639 … at 646 and 648, the Court agreeing with Henchman J; Russell v Polites Investments Pty Ltd [2012] FCA 11 … at [23] and [24] per Flick J; Rozenbes v Kronhill (1956) 95 CLR 407 at 414 per Dixon CJ and Webb and Fullagar JJ) … Nevertheless, there is a discretion to refuse such an order if the debtor is able to pay her debts (s 52(2)(a)) or for “other sufficient cause” (s 52(2)(b)). But the onus is on the debtor to establish either or both of the preconditions in s 52(2).
The context for the proceeding
59 The primary judge provided the following summary of certain transactions between the appellants and Westpac:
17. In or about December 2007 [Mr Paras and Mr Apperly] commenced a joint venture company called Epping Fresh Food Market Pty Ltd and each of [Mr Paras and Mr Apperly] signed personal guarantees to Westpac for the loan facility which enabled this to be financed.
18. On 20 August 2015 Westpac commenced recovery of the funds owing under the guarantees and obtained judgment in default on 10 March 2016. Inclusive of interest and costs, the total payable on the default judgment, the debt, was in excess of $8 million.
19. In an unrelated venture, on around 22 March 2007, Mr Apperly executed a guarantee and indemnity in favour of Westpac in relation to what I will describe as the Sanctuary Townhouses Project. In August 2016 [Westpac] served bankruptcy notices on each of [Mr Paras and Mr Apperly] in relation to the judgment debt. On or about 1 February 2017, by which time [Mr Paras and Mr Apperly] had not complied with the bankruptcy notice, the bank filed a creditor’s petition against [Mr Paras and Mr Apperly] in the Federal Circuit Court.
20. On 31 March 2017, Messrs R.B. Flinders, solicitors for Mr Apperly, wrote to the bank advancing various proposals to resolve the dispute (bearing in mind that the bankruptcy hearing was originally posited for 11 April 2017). Various proposals were put in the alternative … Relevantly for these purposes [was] … what has become known as the Doncaster Project … The proposal relevantly provided:
1) Mr Apperly provide Westpac with a monthly report detailing the progress of this project; and
2) Mr Apperly pays to Westpac $1 million from this project within seven days of its completion – but no later than 31 September 2019.
21. Additionally, Mr Apperly offered:
Finally, we’ve been instructed by Mr Apperly to include as a term in any deed of settlement reached with Westpac, that he will make a payment to Westpac of $25,000. This payment will be made on 28 April 2017.
22. Various negotiations followed, but on 10 May 2017 (the day before the, by then, further adjourned hearing of the petition was due) the parties entered into a deed of settlement and release. The proper construction of that … deed of settlement and release is at the heart of [Mr Paras and Mr Apperly]’s first argument.
23. It will be necessary to return to the facts in further detail when considering the second limb of the respondent’s defence. But for present purposes, the forgoing is sufficient to give an indication of how matters [c]ame to pass.
The Deed of Settlement
60 The primary judge then set out the following matters related to the relevant Deed of Settlement:
24. It is necessary to have regard to the whole of the deed of settlement and I have done so. Perhaps, relevantly for these purposes, particular attention might be given to recital K, in which it was provided:
The parties to this Deed have agreed to settle the Claims, the Proceeding and the Bankruptcy Proceeding as between them in accordance with the terms of this deed.
25. The claims were the claims on the Paras and Apperly guarantees which gave rise to the debt of $835,000 [sic] (described as the debt) and the proceeding was the proceeding that led to that debt. The bankruptcy proceeding was the proceeding that was due to be heard on 11 May 2017.
26. By paragraph 1.1 under the heading Project Proceedings, it was provided that [Mr Paras and Mr Apperly] would appoint legal counsel at their own costs to advise them and assist them in relation to financial damages claims against a number of parties therein described.
27. By paragraph 1.2, subject to the legal advice, [Mr Paras and Mr Apperly] were to commence individual proceedings against those parties for damages, promptly and without delay (“the Project Proceedings”).
28. By paragraph 1.3:
During the term of this Deed, legal counsel appointed by Paras and Apperly, will on the 1st day of each month commencing on 1 June 2017, provide to Westpac a written update in relation to the progress of each of the Project Proceedings including a summary of the expenses incurred of each of the Project Proceedings, an estimate of the likely damages to be recovered in each of the Project Proceedings and the likely timing of recovery in each of the Project Proceedings.
29. By clause 2, Settlement, it was provided that:
2.1.1 In full and final settlement of the Claims, the Proceeding and the Bankrupt[cy] Proceeding insofar as it relates to the parties the subject of this Deed, Paras and Apperly agree to:
2.1.1.1 the amount of $15,000 to be paid in cleared funds by 4:00pm on 10 May 2017 into [a certain bank account];
2.1.1.2 the amount of $500,000 by 31 October 2018; and
2.1.1.3 the amount of $500,000 by 13 September 2019;
2.1.2 pay to Westpac 25% of the net proceeds received from each of the individual Project Proceedings within 7 business days of receipt of any settlement sum or judgment debt related to each of the Project Proceedings (“Final Settlement Sum”).
30. By clause 2.2, time was of the essence in relation to the pay[ment] of the amounts in clause 2.1.1. By paragraph 4, Withdrawal of Creditor’s Petition, the parties consented, upon the execution of the deed, to Westpac seeking orders in the bankruptcy proceeding granting leave to withdraw the creditor’s petition with no orders as to costs.
31. Under clause 5[,] Covenant Not to Sue, Paras and Apperly agreed to release Westpac from any claims arising out of the provision of loaned funds to the Epping Fresh Food Project.
32. Paragraph 5.3 should be set out in full:
5.3 Upon receipt of the Initial Settlement Sum and the Final Settlement Sum in full and subject to its retention by Westpac, Westpac agrees to:
5.3.1 forever release and discharge Paras and Apperly from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims;
33. A further release to Epping Fresh Food in clause 5.3.2 is not relevant.
34. By clause 6 “Default” it was provided:
6.1 If Paras or Apperly default on payment of any amount described in clause 2.1 above or fail to meet their obligations in clause 1 above, Westpac can immediately write to Paras and Apperly as follows:
6.1.1 setting out the nature of the default; and
6.1.2 demanding that any default be rectified by Paras and Apperly within five business days of the date of such notice from Westpac.
6.2 Should Paras and Apperly fail to rectify the defaults set out in a notice sent by Westpac in accordance with clause 6.1 above, Westpac will be entitled to proceed with bankruptcy proceedings against them and Paras and Apperly agree not to defend, contest or otherwise dispute a sequestration order being made against each of them. If Paras and Apperly do attempt to defend any such bankruptcy proceeding, Westpac may file an affidavit setting out the terms of this Deed to restrain them from doing so.
61 The primary judge then set out the following matters arising after entry into the Deed of Settlement:
35. It is not controversial that the sum of $15,000 envisaged by clause 2.1.1.1 was paid but neither of the other sums were paid within the time stipulated within the deed of settlement or at all. It is, likewise, uncontroversial that following those defaults the bank issued a default notice dated 1 March 2019 because the sum of $500,000 was not paid by 28 February 2019 and that default was not remedied.
36. It is not in issue, likewise, that this gave rise to further bankruptcy notices. An attempt by Mr Paras to set his bankruptcy notice aside did not proceed. In due course, the petition currently before the Court was issued.
62 The primary judge then summarised the parties’ respective positions before the primary judge:
37. The essential difference between the parties was whether the settlement deed properly construed amounted to an accord and satisfaction such that the original judgment debt merged in the settlement and was therefore no longer extant. This was [Mr Paras and Mr Apperly]’s position and if correct would mean that the original judgment debt upon which the petition is based was no longer a debt and therefore, axiomatically, the bankruptcy notice was not valid and the petition must be dismissed. [Westpac]’s contrary position was that this was an accord executory and that[,] accordingly, the original debt was not extinguished. Following default, it was open to the bank, it was submitted to issue notice of default, and to issue a bankruptcy notice on the basis of the original debt.
Accord and satisfaction
63 The primary judge referred to a statement of Dixon J (as his Honour then was) in McDermott v Black (1940) 63 CLR 161 at 183-184. The primary judge then set out the following findings as to whether the Deed of Settlement was an accord executory or an accord and satisfaction:
39. In my view, the issue the court has to determine is, to paraphrase the words of Dixon J, [whether] the deed when properly construed [is] one that suggests Westpac settle[d] for a promise or settled on the basis that settlement was complete when certain things were done.
40. The first thing to be noted, of course, is that the recitals are described as “Background” and the actual agreement is then set out in paragraphs 1 to 12 of the deed.
41. Recitals A to F inclusive simply set out the manner in which Epping Fresh Food defaulted on their facility agreement and note the guarantees given by Mr Paras and Mr Apperly in respect of that agreement.
42. Recital G defines the proceeding whereby Westpac obtained judgment in the Supreme Court for in excess of $8 million dollars and the claims in that proceedings as the claims. Recital H notes the debt of over $8,350,000 and recital I notes the bankruptcy notice issued against both Mr Apperly and Mr Paras. Recitals J and K read:
J: On 1 February 2017, Westpac filed a creditor’s petition in Federal Circuit Court of Australia Proceeding No. MLG 210 of 2017 against Paras and Apperly seeking that (amongst other things) a sequestration order be made in relation to the respective estates of Paras and Apperly (“Bankruptcy Proceeding”).
K: The parties to this Deed have agreed to settle the Claims, the Proceeding and the Bankruptcy Proceeding as between them in accordance with the terms of this Deed.
43. The operative terms of the agreement, as they can be described, commence in paragraph 1 with a definition of what are described as project proceedings. It was noted that Mr Paras and Mr Apperly would appoint legal counsel at their own cost to advise of their chances of success in relation to various entities (clause 1.1) and that[,] subject to that advice, they would issue proceedings against them promptly and without delay (clause 1.2). By clause 1.3, as already noted, it was provided:
During the term of this Deed, legal counsel appointed by Paras and Apperly, will on the 1st day of each month commencing on 1 June 2017, provide to Westpac a written update in relation to the progress of each of the Project Proceedings, including a summary of the expenses incurred in each of the Project Proceedings, an estimate of the likely damages to be recovered in each of the Project Proceedings and the likely timing of recovery in each of the Project Proceedings.
44. Clause 2 “Settlement” has already been set out in full.
45. By clause 4 it was provided:
Withdrawal of Creditor’s Petition
4.1 Upon execution of this Deed, the parties consent to Westpac seeking the following orders in the Bankruptcy Proceeding:
4.1.1 Leave to withdraw the creditor’s petition.
4.1.2 No order as to costs.
46. Paragraph 5 deals with releases (described as Covenant Not to Sue). By clause 5.1 and 5.2, Mr Paras and Mr Apperly effectively release Westpac. By clause 5.3 (and I appreciate this is repetitive), the following was said as to Westpac’s release of Mr Apperly and Mr Paras:
5.3 Upon receipt of the Initial Settlement Sum and the Final Settlement Sum in full and subject to its retention by Westpac, Westpac agrees to:
5.3.1 forever release and discharge Paras and Apperly from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims;
…
51. In my opinion, the critical clause in terms of whether or not this deed was an accord executory or an accord and satisfaction is clause 5.3, which relevantly states:
Upon receipt of the initial settlement sum and the final settlement sum in full and subject to its retention by Westpac …
52. In my view, this express term of the deed means that the parties did not settle on a mere promise to pay, extinguishing the prior debt and resulting in a wholly new one in the amounts of the settlement sums. Rather, the existing claims which were to be released were preserved until payment was made.
…
57. … The judgment debts were in excess of over $8 million dollars. The notion that the bank intended to give away forever all entitlements to the sums due for a mere promise to pay less than 1/8 of the sums outstanding is not, in my view, a likely contemplation of the creditor. In my view, the deed, properly construed, was an accord executory according to its plain terms.
58. The deed did of course require payment of $15,000 in cash effective immediately, but in my view this payment, which was plainly, as I think all parties agreed before me, merely a reimbursement of the costs of the creditors [sic] petition proceeding, is when viewed properly merely as with the discharge of the petition itself a machinery matter. It did not in any way compromise the pre-existing debt.
The bankruptcy notice
64 The primary judge then considered whether the bankruptcy notice was invalid, as follows:
59. A subsidiary part of [Mr Paras and Mr Apperly’s] arguments was to the effect that the bankruptcy notice was bad because upon default [under the Deed of Settlement] it was incumbent upon the bank to issue further proceedings on that default, obtain judgment and then issue a creditor’s petition.
…
61. Nonetheless, the first matters [sic] to be addressed are the parties’ countervailing positions as to what the deed itself provided. It was [Westpac]’s position that[,] upon default in compliance with the terms of the deed, it was open to the bank to issue a further petition based upon the unsatisfied original debt of in excess of $8 million dollars. [Mr Paras and Mr Apperly’s] countervailing position was that the terms of the deed properly construed could not mean this, both of course because of the original debt had merged in the deed of release (the argument I have just rejected above) and because the terms of the deed did not contemplate such a course in any event.
62. It should be noted that the settlement of the pre-existing bankruptcy proceeding as defined in recital J was the subject of recital K “the parties to this Deed who agree to settle the Claims, the Proceeding and the Bankruptcy Proceeding as between them in accordance with the terms of this Deed.”
63. As earlier emphasised, in my view the release by Westpac to Mr Paras and Mr Apperly did not come into play until the financial obligations in clause 2 were satisfied.
…
71. The default clause in the deed of settlement plainly contemplated that[,] in default of payment of any of the settlement sums set out and/or indeed of default in compliance with the subsidiary provisions relating to the project proceedings, Westpac could immediately write to [Mr Paras and Mr Apperly] setting out the nature of the default and demanding rectification within five days. In default of rectification, Westpac was entitled to proceed with bankruptcy proceedings against them.
72. Given that upon default the settlement fell away, save to the extent with which it had been complied, it was open, in my view, for Westpac to issue a letter of demand seeking the entirety of the monies not paid. There is no material dispute in this matter that the bank did indeed issue letters of default and that there was no compliance.
73. It is plain that the bankruptcy notice issued to Mr Paras and Mr Apperly sought monies “as per the attached final judgment”. It is plain that the attached final judgment was indeed the in excess of $8 million judgment obtained in the Supreme Court.
74. In these circumstances, and notwithstanding the arguments put by [Mr Paras and Mr Apperly], I think that the deed construed properly meant that it was open to the bank to issue a bankruptcy notice in respect of so much of the settlement monies that had not been paid, which is what the bank did. Accordingly, this challenge fails.
Alleged disentitling conduct
65 The primary judge then turned to consider whether there was any conduct by the respondent which disentitled it to issue the bankruptcy notice. The primary judge, after considering the detailed affidavit evidence, made the following findings in relation to that issue:
102. It should be noted that no one was required for cross-examination and the parties have firmly left it up to the Court to try and resolve the factual conflict between the parties on the papers.
103. Both parties in written and oral submissions sought to take the Court in detail to the court book with a view to establishing whether or not the conduct of Westpac was unconscionable in the fashion for which [Mr Paras and Mr Apperly] contended. I have had regard, obviously, to the detailed and helpful submissions made but in the end I have concluded that the conduct of the bank was not unconscionable and does not bring into play the qualification in section 41(3)(b) of the Act. The matters that lead me to this conclusion are as follows.
66 At [104]-[119] of the Primary Judgment, the primary judge then set out the primary judge’s reasons for concluding that there was no conduct of Westpac which was unconscionable and found that there was no other sufficient cause why sequestration orders ought not be made.
THE PARTIES’ SUBMISSIONS
67 The parties’ respective submissions in this appeal can be summarised as follows.
Appellants’ submissions
68 The appellants made the following submissions.
69 As to the Competency Grounds, the appellants submitted that the primary judge erred in two parts of the Primary Judgment. First, it was said that the primary judge erred in concluding, at [72] of the Primary Judgment, that:
… upon default[,] the settlement fell away [and] it was open, in my view, for Westpac to issue a letter of demand seeking the entirety of the monies not paid. There is no material dispute in this matter that the bank did indeed issue letters of default and that there was no compliance.
70 Second, it was said that the primary judge erred in concluding, at [73]-[74] of the Primary Judgment, that:
It is plain that the bankruptcy notice issued to Mr Paras and Mr Apperly sought monies “as per the attached final judgment”. It is plain … that the attached final judgment was indeed … in excess of $8 million judgment obtained in the Supreme Court …
In these circumstances, and notwithstanding the arguments put by [Mr Paras and Mr Apperly], I think that the deed construed properly meant that it was open to the bank to issue a bankruptcy notice in respect of so much of the settlement monies that had not been paid, which is what the bank did. Accordingly, this challenge fails.
71 The appellants submitted that, on a proper interpretation of the Deed of Settlement, the Deed of Settlement did not preserve recourse by Westpac to the original default judgment debt upon default under the Deed of Settlement.
72 As to the Construction Grounds, the appellants submitted that the primary judge erred in finding that the Deed of Settlement was an accord executory. The appellants referred to various particular clauses in the Deed of Settlement. The appellants submitted that, on a proper interpretation of the Deed of Settlement, it was an accord and satisfaction.
73 As to the Good Faith/Unconscionable Grounds, among other things, the appellants submitted that Westpac sabotaged the raising of finance for (a project described as) “the Doncaster project”. The appellants submitted that this arose because Westpac issued a demand for payment in relation to a separate project, being “the Sanctuary project”. The appellants submitted that Westpac knew that the Doncaster project was the sole source of monies from which Mr Apperly could pay Westpac any monies, including the monies to be paid under the Deed of Settlement. The appellants submitted that Westpac issued the demand in respect of “the Sanctuary project” shortly following the parties’ entry into the Deed of Settlement. The appellants submitted that the primary judge should have found that Westpac’s relevant officers knew that, if the demand in respect of the Sanctuary project was issued, it would have serious adverse consequences in respect of Mr Apperly raising finance for the Doncaster project. The appellants submitted that the issuance of the demand in respect of the Sanctuary project prevented development of the Doncaster project and, as a result, prevented the appellants from making payments under the Deed of Settlement.
74 The appellants submitted that the Doncaster project had compelling merit. The appellants submitted that it entailed three unencumbered parcels of land with a combined value of $5 million to $6 million. The appellants submitted that, if a development at this site proceeded, that development would generate revenue which was sufficient to repay Westpac. The appellants submitted that Westpac made the Sanctuary demand, which prevented the appellants raising funds for the Doncaster project and thereby prevented the appellants from paying monies under the Deed of Settlement.
75 As to the Evidentiary Grounds, the appellants made various submissions about the primary judge’s evidentiary findings. The appellants submitted that those findings were wrong in several respects.
Westpac’s submissions
76 Westpac made the following submissions.
77 As to the Competency Grounds, Westpac submitted that there was no error in the primary judge’s findings and the terms of the Deed of Settlement clearly permitted Westpac to recommence bankruptcy proceedings in relation to the original judgment debt upon default by the appellants under the terms of the Deed of Settlement. Westpac submitted that, under the Deed of Settlement, the original judgment debt and existing claims were preserved until payment was made by the appellants. Westpac submitted that the appellants’ proposed construction constituted a commercial nonsense in that it would require Westpac to seek a new judgment enforcing a breach of the Deed of Settlement and then issue new bankruptcy proceedings, in circumstances where Westpac had already obtained judgment and commenced bankruptcy proceedings. Westpac also submitted that the primary judge correctly concluded that the release under the Deed of Settlement did not operate until the payments under cl 2 of the Deed of Settlement had been made. Westpac submitted that, while cl 5.3 of the Deed of Settlement includes a release in relation to the judgment debt, it only operated upon payment of the settlement sum.
78 As to the Construction Grounds, Westpac submitted that the primary judge was entirely correct and that the Deed of Settlement is clearly an accord executory rather than an accord and satisfaction. Westpac submitted that cl 5.3 of the Deed of Settlement plainly ensured that payment of the initial and final settlement sums was a precondition to the release and discharge of the appellants from the “Claims”. Westpac submitted that the terms of the Deed of Settlement plainly show that Westpac did not intend to settle in return for a mere promise of payment.
79 As to the Good Faith/Unconscionable Grounds, Westpac submitted that its conduct in relation to the recovery of an unrelated debt (being the Sanctuary demand) is irrelevant to the appellants’ non-compliance with the Deed of Settlement. Westpac submitted that there is no basis to disturb the factual findings of the primary judge in relation to good faith or unconscionability. In particular, Westpac submitted that, contrary to the appellants’ submissions, it was never the position that Westpac agreed that the monies to pay the settlement sums were to be sourced from proceeds from the “Doncaster project”. Westpac also submitted that the appellants failed to establish at trial that there was any “special disadvantage” on the part of the appellants.
80 In relation to the Evidentiary Grounds, Westpac submitted that the appellants failed to show the relevance of the evidence which the appellants contend should have been given greater weight.
GROUNDS OF APPEAL 1 to 5 – COMPETENCY OF THE PROCEEDING
81 Grounds of appeal 1 to 5 raise the issue of whether Westpac was entitled to issue a bankruptcy notice upon default under the Deed of Settlement in reliance upon the original judgment debt or whether Westpac was required to issue fresh proceedings to obtain a judgment before the issue of a bankruptcy notice. The resolution of that issue turns on the correct construction of the Deed of Settlement.
82 In Findex Group Limited v McKay [2020] FCAFC 182, the Full Federal Court stated at [77]-[81]:
The Court should approach the task of construction on the basis that the parties intended to produce a commercial result, and one which makes commercial sense: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 (Woodside Energy), [35]; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 (Ecosse Property), [17].
A commercial contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience: Woodside Energy, [35]; Zhu v Treasurer (NSW) [2004] HCA 56; 218 CLR 530, [83]; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310, 313-314.
Commercial contracts must be interpreted fairly and broadly, without being too astute or subtle in finding defects: Pan Foods Company Importers and Distributors Pty Ltd v Australia and New Zealand Banking [2000] HCA 20; 170 ALR 579, [14]; Australasian Performing Right Association, 109-110.
A construction that avoids unreasonable results is to be preferred to one that does not, even though it may not be the most obvious, or the most grammatically accurate: Australasian Performing Right Association, 109-110.
Determining the meaning of a contractual term normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165, [40] (Toll); Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 350; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 (Pacific Carriers), [22]; Woodside Energy, [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 (Mount Bruce Mining), [47] and [49]-[50]; Ecosse Property, [17].
83 In Woodside Energy, French CJ, Hayne, Crennan and Kiefel JJ stated at [35]:
The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.
(Citations omitted; emphasis added.)
84 Having regard to those well-established principles of construction, there is, in my view, no error in the primary judge’s construction of the Deed of Settlement nor was there any error in the primary judge’s finding that the appellants had defaulted in payment of the “Initial Settlement Sum” under cl 2.1.1 of the Deed of Settlement: see Primary Judgment, [51], [52], [57], [58], [63], [71]-[74]. This is so for the following reasons.
85 First, cl 2.1.1 identifies the obligation of the appellants to pay the respondent the “Initial Settlement Sum”. Clause 2.1.1 relevantly states:
In full and final settlement of the Claims, the Proceeding and the Bankruptcy Proceeding insofar as it relates to the parties the subject of this Deed, Paras and Apperly agree to … pay to Westpac the sum of $1,015,000 (“Initial Settlement Sum”) by way of [certain] instalments …
86 It was uncontroversial at trial that the amount of $15,000 was paid on execution on 10 May 2017. It was also uncontroversial at trial that the next instalment of the “Initial Settlement Sum”, being a payment of $500,000, was not paid by the due date of 31 October 2018. As a consequence, Westpac was entitled to rely upon the default provisions in cl 6 of the Deed of Settlement. Clause 6.1 provided that, if the appellants “default on payment of any amount described in cl 2.1”, Westpac “can immediately write to [the appellants] setting out the nature of the default … and demanding that any default be rectified by [the appellants] within five days of the date of such notice …”. It is not in dispute that Westpac gave such notice. Clause 6.2 provided that, if the appellants failed to “rectify the defaults set out in the notice sent by Westpac in accordance with cl 6.1”, then Westpac would be “entitled to proceed with bankruptcy proceedings against” the appellants and the appellants agreed “not to defend, contest or otherwise dispute a sequestration order being made against them”. This is precisely the course of conduct followed by Westpac as the primary judge found at [35]-[36] of the Primary Judgment.
87 Second, the covenant not to sue in cl 5 of the Deed of Settlement makes plain that some rights and obligations of the parties arise “[u]pon execution of th[e] Deed [of Settlement]” and others arise “[u]pon receipt of the Initial Settlement Sum and the Final Settlement Sum in full”.
88 In this respect, the introductory words to cll 5.1 and 5.2 are “[u]pon execution of this Deed”. By cl 5.1, “[u]pon execution of th[e] Deed [of Settlement]”, the appellants agreed “to forever release and discharge Westpac from all actions, claims, costs, demands, proceedings, suits and/or writs arising from, or in connection with, the matters the subject of the Claims …”. By cl 5.2, “[u]pon execution of th[e] Deed [of Settlement]”, the appellants agreed “that they will not assist or cooperate with or instigate”, on behalf of the relevant entity, Epping Fresh Food, any claim against Westpac.
89 The prefatory words to cl 5.3 are different: the obligations in cl 5.3 arose “[u]pon receipt of the Initial Settlement Sum and the Final Settlement Sum in full and subject to its retention by Westpac”. By cl 5.3, “[u]pon receipt of the Initial Settlement Sum and the Final Settlement Sum in full”, Westpac agreed to “release and discharge” the appellants “from all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims”.
90 In these circumstances, it is clear from the express terms of the Deed of Settlement that Westpac would only release and discharge the appellants “[u]pon receipt of the Initial Settlement Sum and the Final Settlement Sum in full and subject to its retention by Westpac”. It is uncontroversial that the “Initial Settlement Sum” and the “Final Settlement Sum” were not paid. As a consequence, Westpac has not released the appellants from the judgment debt obtained by default judgment on 10 March 2016 in the sum of $8,350,791.96. The consequences which arose were expressly set out in cl 6.2 whereby Westpac “will be entitled to proceed with bankruptcy proceedings against [the appellants] and [the appellants] agree not to defend, contest or otherwise dispute a sequestration order being made against each of them”. Westpac, in reliance upon the default provisions in cll 6.1 and 6.2, recommenced bankruptcy proceedings which are the subject of this appeal. That was something which Westpac was, in my view, entitled to do under the express terms of the Deed of Settlement. That was what the primary judge found in the Primary Judgment at [71]-[74].
91 Third, Recital J to the Deed of Settlement defines “Bankruptcy Proceeding” to include the creditor’s petition filed in the Federal Circuit Court of Australia proceeding No. MLG210 of 2017 on 1 February 2017. By cl 4.1 of the Deed of Settlement, Westpac, “[u]pon execution of” the Deed of Settlement consented in the Bankruptcy Proceeding to withdrawing the creditor’s petition with no order as to costs. The terms of the Deed of Settlement do not prohibit Westpac from relying upon the default judgment (in the amount of $8,350,791.96) and seeking to enforce that judgment by way of fresh bankruptcy proceedings. If that was what had been agreed between the parties, then it would have been expressly so stated in the terms of the Deed of Settlement.
92 In this respect, the construction of the Deed of Settlement advanced by the appellants has an air of unreality about it in that, on the appellants’ construction, upon execution of the Deed of Settlement on 10 May 2017, Westpac was to be paid $15,000 (which was paid) and Westpac would give up an entitlement to a judgment debt of $8,350,791.96 in return for the mere promise to pay the “Initial Settlement Sum” of $1,015,000 and the “Final Settlement Sum”, being an entitlement to 25% of the net proceeds of legal proceedings which had not yet been commenced against various entities by the appellants. It is, in my view, clear, on the express terms of the Deed of Settlement, that Westpac did not release the appellants from the judgment debt until the “Initial Settlement Sum” and the “Final Settlement Sum” had been received in full by Westpac. In my view, Westpac, under the Deed of Settlement, had an entitlement to issue a bankruptcy notice upon the appellants defaulting under the Deed of Settlement. There is no requirement by the express terms of the Deed of Settlement for Westpac to commence fresh proceedings and to obtain another judgment prior to issuing a bankruptcy notice. That much is clear from the express terms in cl 6.2 of the Deed of Settlement, as the primary judge found at [64] and [71] of the Primary Judgment.
93 For the reasons given, I reject the appellants’ challenge to the competency of the proceeding raised by grounds of appeal 1 to 5.
GROUNDS OF APPEAL 6 AND 7 – WHETHER THE DEED OF SETTLEMENT WAS AN ACCORD AND SATISFACTION OR ACCORD EXECUTORY
94 For the reasons given above, on its proper construction, the Deed of Settlement was an accord executory according to its terms. It was not, as contended by the appellants, an accord and satisfaction. The primary judge was correct to so find at [39]-[58] of the Primary Judgment.
Principles
95 In Reckitt Benckiser Healthcare (UK) Ltd v Glaxosmithkline Australia Pty Ltd (No 5) [2015] FCA 486; 112 IPR 273, Rares J stated at [218]:
The essence of an accord and satisfaction is the acceptance by one party of something in place of his, her or its cause of action, as Dixon J explained in McDermott v Black (1940) 63 CLR 161 at 183–185, as applied by French CJ, Gummow, Hayne, Heydon and Kiefel JJ in Commissioner of State Taxation (SA) v Cyril Henschke Pty Ltd (2010) 242 CLR 508 at 515 [19]. Dixon J said (63 CLR at 183–185):
What he takes is a matter depending on his own consent or agreement. It may be a promise or contract or it may be the act or thing promised. But, whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given the accord remains executory and cannot bar the claim … An executory promise or series of promises given in consideration of the abandonment of the claim may be accepted in substitution or satisfaction of the existing liability. Or, on the other hand, promises may be given by the party liable that he will satisfy the claim by doing an act, making over a thing or paying an ascertained sum of money and the other party may agree to accept, not the promise, but the act, thing or money in satisfaction of his claim. If the agreement is to accept the promise in satisfaction, the discharge of the liability is immediate; if the performance, then there is no discharge unless and until the promise is performed.
96 In Gomez v Kuhadas (No 2) [2015] FCA 561, Gleeson J stated [34]-[36]:
Accord and satisfaction is the purchase of a release from an obligation, not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative: British Russian Gazette and Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616at 643. In Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; 186 CLR 574, Gummow J (at 610) explained that:
Accord and satisfaction (the former being the agreement or consent to accept the latter) requires acceptance of something in place of the full remedy to which the recipient is entitled, coupled with provision of the consideration agreed upon.
For an agreement to constitute an accord and satisfaction, it must clearly demonstrate that the creditor intended to release the debtor from his or her claims in consideration of the payment to be made: Ashton v Pratt [2015] NSWCA 12 at [173] (Bathurst CJ). “When a man has got a judgment it cannot be held that any agreement is to be taken as satisfaction of the judgment unless it is clear that it is so“: Re Feast, Ex parte Feast (1887) 4 MB 36 (Lord Esher MR) at 41. However, this does not involve a standard of proof over and above the usual civil standard: Ashton v Pratt at [173].
In Commissioner of Taxation v Hadidi (1994) 51 FCR 453, a Full Court considered the effect of a settlement agreement made between the parties after the Deputy Commissioner of Taxation had obtained default judgments against the taxpayers in the sum of about $100,000, whereby the taxpayers agreed to pay $75,000. Beaumont and Heerey JJ noted that it was common ground that upon payment of the total sum of $75,000, each debtor was entitled, both at law and in equity, to an unconditional discharge and release from liability under their respective judgments, saying at 461: “It is an unlikely intention to impute to the parties that in November 1989 the [Commissioner of Taxation] was agreeing to accept, in place of judgments totalling about $100,000, a bare promise by the respondent and her husband to pay instalments totalling $75,000, so that upon any default in payment the appellant would have to return to court and commence proceedings all over again on a fresh cause of action“.
97 In Issa v Dairy Farmers Pty Ltd [2018] FCA 542, Bromwich J stated at [34]:
The legal issues at play before the primary judge and in this appeal are succinctly summarised in Cheshire and Fifoot’s Law of Contract (11th Australian Edition, LexisNexis Butterworths, 2017) at [4.24] (omitting footnotes):
…
A compromise agreement falls into two, or possible three, classes. The first is termed an ‘accord executory’ which is in the form of a unilateral contract whereby the plaintiff promises to abandon a claim in exchange for the defendant doing something (usually paying money). The second type of compromise agreement is termed ‘accord and satisfaction’ whereby the plaintiff promises to abandon the claim in exchange for the defendant promising to do something. The significance of the distinction arises when the defendant fails to do what is required and the effect this has on the original cause of action or complaint that is being settled. In the case of an accord executory, where the defendant fails to perform the requested act, the plaintiff’s original rights continue on and can be enforced and no settlement agreement has eventuated. In the case of an accord and satisfaction, the plaintiff has forgone his or her original rights and can only enforce the settlement agreement. Thus, in the case of accord and satisfaction, the plaintiff replaces the original claim (which may or may not have succeeded) with an enforceable contract.
There is a third category whereby the parties make an accord and satisfaction that is conditional, that is, the plaintiff only abandons his or her original rights so long as the defendant carries out her or his promise but, failing that, the plaintiff’s original rights can still be enforced.
The question whether there has been an accord and satisfaction (or another category of settlement) is one of fact. The difference between these three possibilities depends on the drafting of the agreement and, ideally, as Phillips JA pointed out in Osborn v McDermott, the agreement should specify what is the consequence of the defendant failing to perform …
Application
98 Having regard to those principles, cl 5 of the Deed of Settlement was titled “Covenant Not to Sue”. Clause 5 contains three promises. Clause 5.1 is an agreement by Mr Paras and Mr Apperly to “forever release and discharge Westpac” from certain actions and claims, and that release arose “[u]pon execution of [the] Deed”. Clause 5.2 is a promise by Mr Paras and Mr Apperly that they “will not assist or co-operate with or instigate … against Westpac” certain claims, and that obligation arose “[u]pon execution of th[e] Deed”.
99 Clause 5.3 is different. It makes plain that “all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims” are only released and discharged by Westpac “[u]pon receipt of the Initial Settlement Sum and the Final Settlement Sum in full and subject to its retention by Westpac”: Deed of Settlement, cl 5.3. That is, unlike the releases provided by Mr Paras and Mr Apperly (which arose “[u]pon execution of th[s] Deed”), the release provided by Westpac only arose “[u]pon receipt of” the relevant settlement sums. The express terms of the Deed of Settlement as a whole and in particular the release and discharge in cl 5.3 are predicated on receipt of the “Initial Settlement Sum” and the “Final Settlement Sum” by Westpac in full. Westpac did not agree to release the appellants from “all actions, claims, costs, demands, proceedings, suits and/or writs arising from or in connection with the matters the subject of the Claims” upon a mere promise to pay the compromised amount under cl 2.1 of the Deed of Settlement. Properly construed, the Deed of Settlement does not provide for an accord and satisfaction. It is an accord executory.
100 The primary judge was correct to find that the Deed of Settlement was an accord executory. It follows that there is no error in the primary judge’s reasons and each of the grounds relied upon in grounds of appeal 6 and 7 must be rejected.
GROUNDS OF APPEAL 8, 9 and 10(C) – WHETHER THERE WAS ANY CONDUCT OF THE RESPONDENT THAT DISENTITLED IT TO REMEDIES UNDER THE DEED OF SETTLEMENT
101 The primary judge correctly held that there was no disentitling conduct by Westpac, whether by any alleged breach of the Deed of Settlement, alleged lack of good faith and/or alleged unconscionable conduct, which would disentitle the respondent to remedies under the Deed of Settlement or would otherwise disentitle Westpac to proceed under the Act.
Principles
Unconscionability
102 In Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50; 236 FCR 199, Allsop CJ stated at [282]:
Unconscionable conduct, as a coherent basis for relief, had, at its root, the protection of the vulnerable from exploitation by the strong: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at esp 461-462 and 474-475; Blomley v Ryan (1956) 99 CLR 362 at esp 405, 415 and 428-429; Louth v Diprose (1992) 175 CLR 621 at esp 626-627, 637 and 650; Bridgewater v Leahy (1998) 194 CLR 457 at 485-486; and Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392. Equitable relief for unconscionable conduct is based on a principle, not a rule. The applications or exemplifications of the principle are impossible to describe fully. Care should be exhibited in dwelling over technically or textually on individual expressions of the general principle of normative values, rooted in Equity’s remedying of injustice. That said, the expressions of the underlying general principle by Mason J and Deane J in Amadio at 462 and 474 and Lord Selborne LC in Earl of Aylesford v Morris (1873) LR 8 Ch App 484 at 490-491 are enduring.
103 In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (Amadio), Mason J (as his Honour then was) stated at 461-462:
Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest … [There is] an underlying general principle which may be invoked whenever one party by reason of some condition of circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word “disadvantage” by the adjective “special” in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.
104 In Amadio, Deane J stated at 474:
The jurisdiction of courts of equity to relieve against unconscionable dealing … is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or “unconscientious” that he procure, or accept, the weaker party’s assent to the impugned transaction in the circumstances in which he procured or accepted it … Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogue[d].
Good faith
105 In Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72; 368 ALR 441, Colvin J conducted a detailed review of the concept of good faith. Colvin J then summarised the position at [746]-[748] as follows:
Having regard to the above authorities which indicate some progression and development in the understanding of what is required by an obligation to act in good faith in a contractual context, I would summarise the current state of the unwritten law as to the meaning of good faith … in the following terms:
(1) the term ‘good faith’ imports a normative standard to be observed by the parties in dealings as to matters to which the standard is applied;
(2) the normative standard embraces an obligation to act honestly and with fidelity to the bargain concluded between the parties;
(3) the normative standard also embraces an obligation to act co-operatively in matters related to performance;
(4) the standard does not require a party to subordinate its legitimate interests to those of the counterparty, but is does require due regard to the legitimate interests that both parties have in the performance of the contract they have made;
(5) conduct which is dishonest, capricious, arbitrary or motivated by a purpose which is antithetical to the evident object of any provision of the [agreement] that governs the conduct being scrutinised or conduct which is otherwise motivated by bad faith will not meet the standard;
(6) where the scrutinised conduct, viewed in the particular context, is objectively unreasonable then the unreasonableness may form part of the basis for a conclusion that there has been a lack of good faith, but objective unreasonableness is insufficient of itself to amount to a lack of good faith; and
(7) the quality of the scrutinised conduct is to be evaluated having regard to the circumstances of the particular parties, particularly their sophistication, commercial power and the relative significance for each party of the subject matter of the conduct.
I note that sometimes the standard is described as incorporating an obligation to act fairly or engage in fair dealing. However when such terms are used they must be understood as being subject to the ability of a party to pursue its own legitimate interests …
In the early decision in Renard, Priestley JA referred to the ideas of unconscionability, unfairness and lack of good faith having a great deal in common (at 268). Those terms each express a normative standard of behaviour that is imposed by the law in particular contexts. However, there are important differences. As I have explained above, unconscionability involves a considerable departure from accepted business norms of behaviour such that the conduct is plainly or obviously conduct of a kind that is outside the bounds of those norms. Good faith requires both honesty as well as a genuine commitment to the purposes of the agreement.
Application
106 Having regard to those principles, the primary judge, from [75] of the Primary Judgment, undertook a detailed consideration of the evidence advanced by the appellants to provide a foundation for the submission that the conduct of Westpac was such that it was in breach of the terms of the Deed of Settlement, lacked good faith and/or was unconscionable conduct which gave rise to a disentitlement to issue the relevant bankruptcy notice. I am not persuaded that the primary judge fell into error in his analysis of the evidence, nor in the conclusions which the primary judge reached: see Primary Judgment, [103]-[119].
107 It is to be recalled that the parties decided not to cross-examine the opposing parties’ deponents. The parties, as the primary judge recorded at [5] and [102] of the Primary Judgment, left it up to the primary judge to try to resolve the factual conflict between the parties “on the papers”. That is the task which the primary judge undertook. I see no error in the analysis undertaken by the primary judge at [103]-[119] of the Primary Judgment. The Primary Judgement discloses that the primary judge considered and weighed the evidence, but was ultimately not satisfied that the appellants had discharged the onus of proving some conduct on the part of Westpac which would disentitle Westpac to sequestration orders.
108 Of particular significance to whether the appellants had established any disentitling conduct was the primary judge’s analysis at [80] to [86] of the Primary Judgment. There, the primary judge analysed Mr Apperly’s affidavit sworn 4 October 2019. In particular, the primary judge stated at [84]-[85] of the primary judgment:
In paragraphs 11-12, Mr Apperly [in his affidavit] deposed:
11. Then, in the midst of such funding discussions, I received on 23 June 2017 by email from Minter Ellison on behalf of Westpac a Demand for Payment under Guarantee and Indemnity. This demand was made in respect to an alleged debt from my personal guarantee of Westpac funding obtained with my former business partner, Larry Bowtell, in the project known as the Sanctuary Townhouses at Point Cook.
12. After receipt of the Sanctuary demand, I had no option but to suspend, and then ultimately terminate, my involvement as developer of the Doncaster project for the following reasons:
a. each of the participation agreements with the three Doncaster landholders required me through Thames Street Developments Pty Ltd to arrange the financing for the project;
b. no financier would consider funding the project without my personal guarantee and any application for funding would require disclosure of the liability (contingent or otherwise) of the Westpac statutory demand, which would be fatal to the success of the application;
c. accordingly, the funding of the project by me was ‘dead in the water’ without the withdrawal of the Westpac Statutory demand.
At paragraph 15, which dealt with a meeting on 23 June 2017 with a solicitor for the bank and Mr McKillop[,] [Mr Apperly deposed as follows]:
In the course of the meeting I protested to the effect that the demand meant that I would be unable to develop the Doncaster project, with [sic] the Bank knew would be the sole source of my funds to meet the $1M payment obligation under the Settlement Deed. I said further to the effect that if the demand was not withdrawn, then the bank had acted to sabotage the Doncaster project and the ability of Mr Paras and I to meet the obligation to pay $1M under the Settlement Deed. Mr McKillop said little but to reiterate the Bank’s claim under the settlement deed.
109 At [12] of his 4 October 2019 affidavit (as extracted above by the primary judge at [85] of the Primary Judgment), Mr Apperly makes clear that, after receiving the “Sanctuary demand”, Mr Apperly formed the view that he had no option but to suspend, and then ultimately terminate, his involvement as a developer of the Doncaster project for reasons including:
(1) as stated at [12(b)] of his affidavit, that “no financier would consider funding the project without [his] personal guarantee and any application for funding would require disclosure of the liability (contingent or otherwise) of the Westpac Sanctuary demand, which would be fatal to the success of the application”; and
(2) as stated at [12(c)] of his affidavit, that, “accordingly, the funding of the project by me was “dead in the water” without the withdrawal of the Westpac Sanctuary demand”.
110 Mr McEwen of counsel, who appeared for the appellants on the appeal, conceded, properly in my view, that Westpac had an entitlement to issue the Sanctuary demand. It was Mr Apperly, who, after receiving the Sanctuary demand, determined that he had no option but to suspend, then ultimately terminate, his involvement as developer of the Doncaster project because the Sanctuary demand would be fatal to obtaining funding for the Doncaster project. That was not conduct on the part of Westpac which amounted, or could possibly amount, to a lack of good faith and/or unconscionable conduct on its part. It was Mr Apperly who determined that, without the withdrawal of the Sanctuary demand, the funding for the Doncaster project was “dead in the water” and, on Mr Apperly’s case, Mr Apperly’s sole source of funding for the “Interim Settlement Sum” under the Deed of Settlement had evaporated.
111 The primary judge also made critical findings in relation to Westpac and its officers’ knowledge of the Doncaster project being the sole source of funds for the payment of the “Initial Settlement Sum” under the Deed of Settlement. At [115]-[119] of the Primary Judgment, the primary judge stated:
115. Mr Timbs [of Westpac], who is the relevant person for these purposes, has sworn that it was at no time clear to him that, as it were, the deed of settlement was dependent upon the Doncaster project. That is the substance of what he has sworn. He has not been cross-examined. The evidence taken as a whole does not lead to my being satisfied that he being untruthful. To the contrary, I think it is more probable than otherwise, taking the materials as a whole, that while Mr Apperly clearly mentioned the Doncaster project and then did give it a certain prominence, what the bank really did was to accept a promise of real cash within a given timeframe.
116. Had Mr Paras and Mr Apperly applied for a stay of the judgment order for the $8 million on unconscionability grounds, I do not think that they would have succeeded. Even within the most expanded view of section 41(3)(b) [of the Act], the original judgment debt could not be said to have been one that was stayed. As I have explained earlier, it was still a valid judgment and, accordingly, the Doncaster project would never have satisfied it in any event.
117. Even setting that matter aside and looking at the matter of unconscionability in a broader sense, it is not possible to see in what way [Mr Paras and Mr Apperly] were unfairly disadvantaged. Mr Paras and Mr Apperly owed the bank over $8 million together. Mr Apperly owed millions more himself. Mr Paras was never part of the Doncaster project in any event.
118. There is no evidence that Mr Apperly did anything of any moment to his detriment in advancing the Doncaster project before the actions of Mr McKillop, as he puts it, brought it to a complete end. The conduct of the bank was not unconscionable on any legal analysis.
119. I do not think that [Mr Paras and Mr Apperly] have shown that there is other sufficient cause why a sequestration order ought not be made.
(Emphasis added.)
112 In relation to these paragraphs in the Primary Judgment, there was no evidence to which I was taken on appeal which would provide a proper basis for demonstrating error in the reasoning and the findings made by the primary judge in relation to Westpac’s conduct. There is nothing which would demonstrate that the primary judge erred when the primary judge found that there was no disentitling conduct on the part of Westpac such that sequestration orders ought not have been made.
113 In this respect, the appellants argued that the 31 March 2017 letter to Westpac from Mr Apperly’s solicitors openly provided that the monies to be paid under the Deed of Settlement were to be sourced from profits generated by the Doncaster project. However, the primary judge stated at [115] of the Primary Judgment:
[The relevant employee of Westpac,] Mr Timbs, who is the relevant person for these purposes, has sworn that it was at no time clear to him that, as it were, the deed of settlement was dependent upon the Doncaster project. That is the substance of what he has sworn. He has not been cross-examined. The evidence taken as a whole does not lead to my being satisfied that he being untruthful. To the contrary, I think it is more probable than otherwise, taking the materials as a whole, that while Mr Apperly clearly mentioned the Doncaster project and then did give it a certain prominence, what the bank really did was to accept a promise of real cash within a given timeframe.
114 There is no basis to disturb that factual finding on appeal.
115 In addition, the terms of the Deed of Settlement did not identify a source of payment. They only identified a time for payment and the amount to be paid. The relevant source of the payments under the Deed of Settlement formed no part of Mr Apperly’s obligations to make payments under that Deed.
116 Moreover, the appellants submitted that the “Sanctuary demand” sabotaged their ability to raise finance for the Doncaster project and thereby prevented them from making payments under the Deed of Settlement. The primary judge stated at [96] of the Primary Judgment:
In his affidavit[,] … Mr Apperly repeated his assertion that the demand under the Sanctuary guarantee sabotaged his ability to comply with the settlement deed.
117 However, the primary judge also stated at [111] of the Primary Judgment:
I further note that … there is correspondence long postdating the point at which Mr Apperly has deposed that the Doncaster project had been well and truly sunk by the service of the Sanctuary guarantee demand. What that material suggests to me in its entirety is that Mr Apperly was, with commendable energy, seeking to advance his interests on a number of fronts.
(Emphasis added.)
118 In other words, the primary judge did not accept that the “Sanctuary demand” in fact had an adverse impact on the viability of the Doncaster project, or was otherwise the cause of the failure of the Doncaster project. There is no basis to disturb that factual finding of the primary judge.
119 The primary judge further stated at [112]-[113] of the Primary Judgment:
Mr Apperly’s style seems to me to have about it an overly optimistic bent. This is consistent with the view that I take of the likely conversations that took place between him and officers of the bank. Mr Apperly in writing, and as I infer orally also, would have advanced any number of assertions as to how it was that he would be able to pay the bank the moneys he contracted to pay by the deed of settlement. It is no surprise to me that the bank concentrated upon what was actually agreed.
… [T]he notion that the bank wilfully through Mr McKillop destroyed, as it were, the bank’s prospects of receiving $1 million only has to be stated to be rejected. The fact is that Mr Apperly owed the bank under the Sanctuary guarantee and was never in a position to pay any of it. He had raised the question of the Sanctuary guarantee in the lead up to the deed of settlement and, as he well knew, a release from the obligations that the Sanctuary guarantee imposed was not included in it.
120 The primary judge also stated at [117]:
Even setting that matter aside and looking at the matter of unconscionability in a broader sense, it is not possible to see in what way [Mr Apperly and Mr Paras] were unfairly disadvantaged. Mr Paras and Mr Apperly owed the bank over $8 million together. Mr Apperly owed millions more himself. Mr Paras was never part of the Doncaster project in any event.
121 In circumstances where there was no cross-examination before the primary judge, there is no basis to disturb these findings of the primary judge.
122 In addition, the appellants in this appeal sought to emphasise the terms of the 7 August 2017 letter to Westpac from Mr Apperly. That letter states that Mr Apperly “had no choice but to suspend [his] involvement in the Doncaster project given this new claim by Westpac”. However, that is contrary to the primary judge’s finding at [111] of the Primary Judgment that Mr Apperly continued to develop the Doncaster project after it had been “sunk by the service of the Sanctuary guarantee demand”. Again, there is no basis to disturb the primary judge’s findings in this respect. In addition, as I have stated above, in my view, the affidavit evidence indicates that it was Mr Apperly who determined that, without the withdrawal of the Sanctuary demand, the funding for the Doncaster project was “dead in the water” and, on Mr Apperly’s case, Mr Apperly’s sole source of funding for the “Interim Settlement Sum” under the Deed of Settlement had evaporated.
123 For the reasons given, there was no error in the reasons or findings of the primary judge. It follows that each of the grounds identified in grounds of appeal 8, 9 and 10(c) must be rejected.
GROUNDS OF APPEAL 10(A) AND 10(B) – WHETHER THE PRIMARY JUDGE CONSIDERED OR GAVE SUFFICIENT WEIGHT TO CERTAIN EVIDENCE
124 Grounds of appeal 10(a) and 10(b) contend the primary judge failed to take into account and consider the evidence of a telephone call on 10 April 2017. I reject these grounds of appeal as it is apparent that the primary judge was cognisant of the letter sent to Westpac by Mr Apperly’s solicitors, R B Flinders, dated 31 March 2017, and the subsequent telephone call on 10 April 2017, which his Honour considered at [80]-[82] of the Primary Judgment.
125 For the reasons stated, these grounds must be rejected.
GROUND 11
126 Finally, there were no specific submissions advanced in respect to ground of appeal 11. This ground will also be dismissed.
DISPOSITION
127 For the reasons given, each of the grounds of appeal relied upon by the appellants must be rejected.
128 I will order that the appeal be dismissed and that the appellants pay the respondent’s costs of the appeal.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. |
