Federal Court of Australia

Westpac Banking Corporation v Forum Finance Pty Limited (Sale of Properties) [2022] FCA 171

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the first named applicant (Westpac) on 8 February 2022 be dismissed.

2.    Westpac and the second named applicant, Westpac New Zealand Limited (WNZL), be given leave to file a fifth further amended originating application (5FAOA) to include the relief sought by Westpac in prayers 4 and 5 to the interlocutory application.

3.    Pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth) and s 37P(2) of the Federal Court of Australia Act 1976 (Cth) the claims for relief set out in prayers 11I, 11J, 103A and 103B of the 5FAOA, be determined on a separate and final basis instanter and before any other issue in the proceeding.

THE COURT DECLARES THAT:

4.    Upon the proper construction of the Sale Process Deed dated 3 September 2021 (Deed) between Westpac Banking Corporation (Westpac), Vincenzo Frank Tesoriero (Mr Tesoriero) and 23 Margaret Street Pty Ltd ACN 623 614 373 (in its own right and as trustee for the 23 Margaret Street Trust (Company)), on settlement of the property contained in Folio Identifier 106/1021924, and known as 23 Margaret Street, Rozelle NSW 2039 (Property), all amounts payable to the vendor (including the deposit) less the Approved Deductions and Payments (as defined in clause 2.2(m) of the Deed), are required to be paid into an interest bearing, controlled monies account to be opened in the joint names of Westpac and Mr Tesoriero, which can only be operated on the joint signature (that is, both to sign) of their respective solicitors and which shall not be dispersed with without the written agreement of Westpac and Mr Tesoriero, or further order of the Court.

AND THE COURT FURTHER ORDERS THAT:

5.    Mr Tesoriero and the Company are to pay fifty percent (50%) of Westpac’s costs of the separate hearing.

6.    The interlocutory application filed by Mr Tesoriero on 6 February 2022 be dismissed with costs.

7.    By 16 February 2022, Mr Tesoriero, through his solicitors, is to advise Westpac and WNZL in writing, by correspondence to their solicitors, whether evidence will be relied upon (including as to whether the affidavits of Mr Tesoriero and Mr Nasimi which have been served in proceedings will be read) in support of his foreshadowed strike out application and is to provide a copy of this correspondence to the Associate for Lee J.

8.    The parties have liberty to apply to Lee J forthwith should there be any issue arising in connexion with the above declaration.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    Introduction and Background

1    This judgment concerns two interlocutory applications made in two related proceedings.

2    The first is made on behalf of the first applicant (Westpac) in NSD616/2021, by which it primarily seeks specific performance of a deed executed by the third respondent, Mr Vincenzo Tesoriero and the thirteenth respondent, 23 Margaret Street Pty Ltd (23 Margaret Street) in September 2021 or an order that Mr Tesoriero and 23 Margaret Street “do all things necessary to ensure compliance” with two subclauses of the deed (Westpac Interlocutory Application).

3    The second interlocutory application, filed by Mr Tesoriero (Tesoriero Interlocutory Application) in NSD747/2021, pursues two ends, namely:

(1)    the variation of orders made in relation to real property, which would have the effect of preventing Jason Ireland and Jason Preston of McGrathNicol (Receivers), appointed by order of the Court, from selling certain properties until either the final determination of these proceedings or, as the relief was developed in oral submissions, for a short period in order to allow Mr Tesoriero to raise funds; and

(2)    a further order in relation to the motor vessel known as the “XOXO yacht”.

B    Westpac Interlocutory Application

4    When the matter was called on, I indicated to senior counsel appearing on behalf of Westpac that I considered the interlocutory application seeking final relief to be misconceived. As it turns out, when substantive argument was heard, it became apparent that the relief that was ultimately sought was declaratory, which reinforces my view that the application brought by Westpac seeking what amounts to final relief should have been brought by either a new proceeding or by amendment of the existing application, to be resolved by way of a separate, final hearing.

B.1    Legal Principles

5    As to the relief sought by way of an order for specific performance, this is, of course, final equitable relief. This is a court of law and equity. The power of this Court to grant equitable remedies arises by reason of s 6(3) of the Federal Court of Australia Act 1976 (Cth). The position in Chancery prior to the passing of the Judicature Act 1873 (UK) was plain. The Court would ordinarily require a party to proceed by a separate bill if the agreement which was sought to be specifically performed involved matters extraneous to the initial suit. It regarded an agreement as falling within this general category if:

(1)    it dealt with property in respect of which no question was raised in the suit; or

(2)    the enforcement involved giving effect to equities of a different nature from those involved in the suit; or

(3)    the parties to the agreement were not parties to the suit.

6    It has become the practice for interlocutory applications to be made which seek to enforce litigation settlement agreements, as a reflection of the rule that a court will enforce an agreement of compromise upon a motion in the action whenever the circumstances are such that it would have been enforced by Chancery.

7    But if, such as here, one is dealing with the enforcement of a deed which involves matters extraneous to the action, involving a suite of obligations which exist entirely independently from the matters canvassed in the litigation, then clearly the better view is that this be done by way of a separate proceeding.

8    In relation to a declaration, the position is even clearer as to the inaptness of this relief being sought by interlocutory application. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 540; (2002) 211 CLR 540, the final judgment in a negligence action was entered in relation to the individual claim of a representative applicant, but the primary judge went on to make a declaration in connexion with the claims of group members. Put another way, the Court purported to make an interlocutory order in the form of a declaration affecting the rights of the respondent and group members. Noting that the making of the declaration was “wrong”, Gummow and Hayne JJ said (at 590 [128]) that an ““Interlocutory declaration” is a form of order not known to the law”. The same point was made by Hayne and Callinan JJ in another representative proceeding, Dovuro Pty Ltd v Wilkins [2013] HCA 51; (2013) 215 CLR 317 (at 363 [143]).

9    Away from the context of representative proceedings, the notion that the Court should not make any form of interlocutory declaration has long been regarded as fundamental. This is because an interim declaration is inimical to the very nature of declaratory relief, which is determined on a final basis: see, for example, International General Electric Co of New York v Customs and Excise Commissioner [1962] Ch 784; the cases collected in Heydon J D, Leeming M J, and Turner P G, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, LexisNexis Butterworths, 2014) (at [19.140]) and Dillon v RBS (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150.

B.2    Consideration

10    In any event, after these issues were raised, a final hearing was sought by Westpac and then held; but when the hearing commenced, it was apparent that the controversy that had been agitated between the solicitors relating to the deed evaporated. This is hardly surprising given the terms of the deed (which were pellucid) but, to avoid any confusion and further disputation, it is appropriate to grant a declaration in the terms ordered. A declaration is a preferable course to take than an order for specific performance. Aside from anything else, this is because the obligation under the deed to perform the task of opening a controlled moneys account and depositing funds has not yet arisen (as it only arises for performance after settlement and upon the identification of the funds to be paid into that account).

11    I do not anticipate that there will be any difficulty with the parties complying with their obligations. However, against the prospect that this does not occur, I grant Westpac liberty to apply to the Court forthwith should there be any difficulty in the joint controlled moneys account being opened and the appropriate funds being deposited into it.

C    Tesoriero Interlocutory Application

12    In approaching the Tesoriero Interlocutory Application, it is necessary to have regard to some background to these proceedings. Pursuant to orders made on 3 September 2021, the Receivers were appointed as receivers and managers of various real property assets and the XOXO yacht. It is plain that the Receivers were appointed to the assets in circumstances where those assets were legally held by trustee companies.

C.1    The relevant real property

Background

13    The real property the subject of the Tesoriero Interlocutory Application is:

(1)    5 Bulkara Street, Wagstaffe, New South Wales 2257 and 6 Bulkara Street, Wagstaffe, New South Wales 2257 (Wagstaffe properties); and

(2)    properties owned by 14 James Street Pty Ltd (In Liquidation) as trustee for the 14 James Street Unit Trust, located in Clayton South, Victoria 3169 (Clayton South properties), namely:

(a)    8 Olive Street;

(b)    10 James Street;

(c)    12 James Street;

(d)    14 James Street;

(e)    16 James Street;

(f)    18 James Street;

(g)    1/9 Parsons Street;

(h)    2/9 Parsons Street; and

(i)    3/9 Parsons Street.

14    The registered proprietor of the property at 6 Bulkara Street, Wagstaffe is 6 Bulkara Street Pty Ltd. It is evident from the terms of the deed of trust that that company holds the property on trust. The trust fund of that trust, of which the property may well be the only significant asset, is vested in the unit holders. The original, and apparently the only remaining unit holders, are two companies: one associated with Mr Tesoriero, and one associated with Mr Papas, the second respondent in the Westpac proceeding. Those two companies (which, in the case of Mr Tesoriero, is Tesoriero Investment Group Pty Ltd), are, in turn, trustees of discretionary trusts in respect of which Mr Tesoriero is an object of the trust.

15    A similar position exists in relation to the property at 5 Bulkara Street, Wagstaffe and, as I understand it, a similar (although not identical) arrangement also exists in respect of the Clayton South properties.

16    Clearly, the entities that legally own these properties as trustees have a right of indemnity out of the trust assets to pay the outstanding trust liabilities incurred in acquiring those properties. To the extent that it can be ascertained from the evidence, and speaking generally, the real property acquisitions appear to have been funded by loans granted by the National Australia Bank and what appear to be unsecured loans from Forum Group Financial Services Pty Ltd (In Liquidation) (FGFS).

17    Pursuant to orders of the Court, the liquidators of the trustee companies (being the Receivers) were appointed as receivers of the trust property and granted powers of sale. Without such an appointment being made, the Receivers would not have had the power to realise the trust assets for the purpose of paying down liabilities incurred by the trustee companies in the administration of those assets.

Mr Tesoriero’s contentions

18    The primary point made by Mr Tesoriero is that he is the respondent to these proceedings in which Westpac make a claim against the FGFS directors and other entities which, in general terms, alleges that Westpac was defrauded to the extent of $250 million as a consequence of Mr Papas fraudulently obtaining moneys through falsified transactions.

19    Mr Tesoriero is involved in the proceedings because Westpac alleges that he was part of a conspiracy to defraud Westpac and that he also, allegedly, knowingly assisted transactions and knowingly received the proceeds of the fraud committed by Mr Papas. Mr Tesoriero denies those allegations, and asserted through his senior counsel that the case made against him on the evidence thus far filed is “weak”. Indeed, Mr Tesoriero proposes to make an application for summary dismissal of the proceedings, insofar as they relate to him, in early March 2022.

20    The orders that I made on 3 September 2021 appointing the Receivers to the relevant assets were made by consent. Mr Tesoriero now contends that his agreement to the appointment orders was based on representations made by the solicitors for the Receivers to Mr Tesoriero’s then solicitors, in correspondence leading up to the hearing at which the orders were made. It will be necessary to come back to those alleged representations below.

21    As the application was developed orally, it became apparent that its thrust was that in circumstances where Mr Tesoriero, through any successful defence of the proceedings, may be in a position to raise funds in order to discharge outstanding trust liabilities and where the solicitors for the Receivers have failed to abide by their representations, the Receivers should be prevented from being able to sell the properties for a period. In Mr Tesoriero’s submission, at least initially, this would amount to what was described as a form of “stay” until the Court has the opportunity of either determining or assessing the strength of the case against Mr Tesoriero.

Consideration

22    There are a series of cascading difficulties with the Tesoriero Interlocutory Application.

23    The first seems to me to be determinative in and of itself. The express premise of Mr Tesoriero’s application, that is, if he is successful in either defending or demonstrating the inherent weakness of the proceeding commenced by Westpac against him, he will have a “strong claim to recover possession” of the relevant assets, is misconceived. Even assuming that Mr Tesoriero is successful, it does not follow that the liquidation of the entities which hold the relevant assets and the entitlement of those entities to recoup the trust debts from the sale of trust assets will come to an end. This is because, as the Receivers submit, the trustee entities are still required to pay debts due and payable to trust creditors, and the trustees are correspondingly entitled to recoupment or exoneration for liabilities properly incurred in the administration of the trust. This obligation does not disappear like a will-o’-the-wisp in circumstances where Mr Tesoriero is successful.

24    Secondly, on any view of it, the trust liabilities are substantial. The Annexure to these reasons is a copy of a summary relating to the real property assets which identifies the amounts owing pursuant to a registered first mortgage, an unregistered mortgage and additional amounts said by FGFS to have been loans used by the relevant trustee companies in order to purchase the properties.

25    As noted above, the opportunity that Mr Tesoriero seeks is premised upon his claim to recover possession or, perhaps put more accurately, his ability to obtain funds in order to discharge the relevant outstanding trust liabilities so as to prevent the sale of the trust assets. In this regard, Mr Tesoriero places considerable reliance on finance proposals prepared by Blackridge Finance Pty Ltd (Blackridge Finance).

26    The proposal in relation to the Wagstaffe properties is not an agreement to refinance but, rather, a proposal by Blackridge Finance to act as a broker (apparently on behalf of Mr Tesoriero, however, I note that the proposal is directed to the trustee companies) in order to obtain funds from a private lender. The facility sought would be for $11 million, out of which funds for debt refinance amount to $9,363,090. The significant difference between the amount financed and the amount available for debt refinance is explained by the very large costs associated with this proposed refinance, being $1,636,910 (notably, interest in the amount of 10 per cent per annum payable monthly in advance, together with a 1.65 per cent per annum lender facility management fee and a loan establishment fee of three per cent of the amount financed).

27    Further, the proposal is subject to a number of conditions. The most significant are that the loan-to-value ratio is to be no greater than 60 per cent, a further security could be required by the proposed lender, and what is described as an “acceptable takeout strategy” is to be confirmed as acceptable by the lender. These conditions, it seems to me, will necessarily involve either refinancing in the short term, or the sale of the property nine months from the time when the loan was advanced. I was told from the bar table that on the basis of the valuations obtained by the liquidator, even the amount thus far sought to be procured would result in exceeding the loan valuation ratio referred to in the proposal, let alone a greater excess if further funds were able to be secured. This does not augur well for the success of the refinancing proposal on the current evidence.

28    The simple fact is that on the evidence the debts owing in relation to the real property cannot be satisfied if the Receivers do not have the ability to realise trust assets in order to obtain the requisite funds and discharge the debts owing. I can see no realistic prospect of the outstanding trust liabilities being discharged by Mr Tesoriero on the evidence adduced thus far. I hold this view even leaving aside any complications involved by reason of the fact that Mr Tesoriero is not the legal or beneficial owner of the properties.

29    Thirdly, I am not satisfied that any substantial prejudice will be caused by the realisation of the properties in the usual course of the receivership.

30    The issue as to whether or not 6 Bulkara Street is sold has now become acute. An extensive marketing campaign has taken place and an expression of interest process has come to an end. Consistently with what one would expect in the circumstances of a currently buoyant property market, there has been considerable interest in the property at 6 Bulkara Street. Following the expression of interest process, the Receivers are now in a position to enter into contracts with the successful bidder and realise the market value of that property.

31    Mr Tesoriero gives evidence, which I accept, that he has an attachment to the Wagstaffe properties and wishes to hold onto them with the prospect that he might live at one of the properties in his retirement.

32    Although I am conscious of Mr Tesoriero’s emotional attachment to the Wagstaffe properties, this must be balanced against the necessity to discharge trust liabilities, and the reality that it is impossible to be a soothsayer about the future of the property market. If I was to intervene at the eleventh hour in relation to the sale of 6 Bulkara Street and the property had to be sold at a later date, there is no undertaking as to damages proffered or any other comfort that the sum to be realised on behalf of the trustee company could be augmented if the property market changed.

33    Further, it is clear, on the evidence, that very considerable steps have already been taken by the Receivers to facilitate the sales process and eventual sale not only of 6 Bulkara Street, but of the properties generally, including 5 Bulkara Street. The reality is that those efforts will be wasted if the sale of the properties is now restrained.

34    Fourthly, Mr Tesoriero has not explained why I am being faced with this application at such a late stage. The evidence discloses that Mr Tesoriero has been aware of the intention of the Receivers to sell the properties for a very long period. Despite this, no steps were taken to relist the proceedings in order to bring this application either last year or over the course of the long vacation.

35    Fifthly, as outlined in the paragraphs which follow, Mr Tesoriero’s contention that his agreement to the orders made on 3 September 2021 was based upon representations made by the solicitors for the Receivers is not a sufficient basis upon which to grant the relief sought in the Tesoriero Interlocutory Application.

36    As noted above, there was correspondence between the solicitors for Mr Tesoriero, Fortis Law and the Receivers’ solicitors, Allens Linklaters (Allens) in August and September 2021. On 10 August 2021, Allens sent a letter to Fortis Law, which included the following:

Our clients would be content to liaise with your client in relation to matters such as the identity of any sales agent to be engaged, the order in which the Properties are to be sold and any target price for the properties. Assuming your client is not participating as a potential purchaser, subject to any confidentiality requirements of bidders, our clients would be willing to liaise with your client about offers made for the Properties.

37    Further, on 3 September 2021, Allens sent a letter to Fortis law, relevantly stating:

As receivers, our clients would be content to engage with your client regarding the sales process, including the proposed method of sale and the provision of updates. The extent of that engagement, for example whether details of offers received are provided, will need to be assessed at the relevant time (one consideration relevant to this assessment will be whether your client or related parties are participating in the sale process).

38    As noted above, Mr Tesoriero contends that it was reliance upon this understanding that he gave his consent to the orders being made.

39    It is clear that on 10 December 2021, Allens indicated to Mr Tesoriero’s current solicitors, Madgwicks Lawyers (Madgwicks) as follows:

The liquidators are taking steps to sell the properties, including by commencing marketing of the properties over the Christmas/ New Year [sic] holiday period. In view of this could you please confirm by no later than 14 December 2021 which of the contents listed in the schedule to our letter your client claims are his personal possessions and provide evidence to support this claim. Should your client fail to respond by this time or provide a satisfactory response (including by providing supporting documentation for his claim), the Liquidators will proceed with the sale on the basis that your client does not contend that he has any claim over the contents.

40    Ten days later, on 20 December 2021, Allens wrote to Madgwicks in the following terms:

In accordance with [orders of the Court], the Receivers are entitled to deal with the Properties to realise their value including, without limitation, to take possession of, maintain and sell the Properties and do all things necessary to achieve this purpose …

The Receivers have engaged agents to commence sale and marketing campaigns which are anticipated to commence on approximately 1 January 2022 in respect of 6 Bulkara and late January 2022 in respect of 5 Bulkara.

41    Three days later, Madgwicks told Allens that their client had been informed that another property in Queensland had been sold by the Receivers on or about 1 December 2021, without any prior notification to those appearing on behalf of Mr Tesoriero. The same day, by separate letter, Madgwicks asserted that, in their view, it would be premature to sell the properties until, at the very least, Mr Tesoriero’s strike-out application has been heard and determined. In the absence of an undertaking, it was said that those solicitors would seek to obtain urgent orders preventing the sale and would also seek costs against the liquidators personally.

42    In response, Allens provided various information in relation to the state of the sale of various properties. The Receivers maintain that they were acting appropriately.

43    It appears that the dealings between the solicitors have not been entirely trouble-free. It is unnecessary for me to go into the details. It suffices to say that given the terms of the letters written in August and September 2021, I would have thought that it would have been likely that there would have been greater liaison and engagement with those acting for Mr Tesoriero in relation to the steps that were being taken as to the appointment of the sales agent, the order in which the properties were to be sold and the target price for each property.

44    Having said that, I do not consider on the evidence that I have seen that there was any intention of keeping Mr Tesoriero in the dark. Further, the correspondence does not indicate that Mr Tesoriero was pressing the Receivers’ solicitors for precise information. By the end of 2021, it became apparent that the parties were placed in two separate camps: the Receivers thought that they were not only entitled to proceed but ought to proceed to realise the value of the properties, and Mr Tesoriero was of the view that they should be enjoined from doing so.

45    Whatever shortcomings may exist in the nature and content of the communications made to Mr Tesoriero and his solicitors, I do not consider that the result of these concerns should be that the orderly conduct of the receivership should be interfered with. However, going forward, at the very least as a matter of courtesy, it would be appropriate for the Receivers to ensure that communications are made with those acting for Mr Tesoriero which accord with the spirit of the representations that were made prior to the 3 September 2021 orders being made.

46    In the light of the above, I do not consider that the orders in the Tesoriero Interlocutory Application seeking to restrain the Receivers from dealing with the real property assets should be made.

C.2    XOXO Yacht

47    This leaves the relief sought in relation to the XOXO yacht.

48    The XOXO Yacht is owned by Mangusta (Vic) Pty Ltd (In Liquidation) (Mangusta Company) as trustee of the Mangusta Trust. Mr Tesoriero was the sole director and shareholder of the Mangusta Company.

49    The Receivers were appointed to this asset because the evidence established that the funds used to purchase the yacht were advanced by, among others, FGFS, and that the Mangusta Company had received title upon payment of nominal consideration ($1). It appears on the current evidence that the yacht was purchased using funds from other companies in liquidation. For these reasons, it was appropriate for the yacht to be sold and the proceeds held pending a resolution of all competing claims for those proceeds.

50    Again, the determinative point to be made is that a successful defence of the Westpac proceedings by Mr Tesoriero will not change matters relevant to the basis upon which the Receivers were appointed in the first place.

51    No evidence of any cogency has been adduced as to how Mr Tesoriero claims entitlement to the XOXO yacht.

52    Further, and quite separately, the evidence establishes that substantial repairs must be undertaken in order for the vessel to become seaworthy. The Receivers must either procure substantial sums to effect these repairs and sell the yacht following improvements, or sell the yacht at its lower present market value, allowing a purchaser to complete those repairs.

53    As an ordinary incident of the judgements to be made by receivers, the latter course has commended itself to the Receivers as being preferable. There is no reason why the Court should second-guess such a decision. Mr Tesoriero challenges the Receivers’ course of action on two bases. The first is that the funds to undertake the repairs could be obtained should an insurance claim be successful. The second is that there is some suggestion that the yacht is being sold in such a way that it is likely to result in a sale at an undervalue.

54    The first of these contentions goes nowhere. Any insurance claim will still be able to be maintained irrespective of whether the yacht is sold. The difficulty on the evidence is that Mr Tesoriero was unable to assist the insurers as to the contact details of the person who had chartered the yacht when it suffered the difficulties that gave rise to the need for repairs.

55    In relation to the second contention, even if the sale marketing campaign suggested that the yacht is to be sold at a “fire sale” price (and I am not convinced that this is the case), the owner of the yacht would have recourse, in the ordinary way, of seeking relief, presumably equitable or statutory in nature, regarding the sale at an undervalue. Further, the only evidence as to the current value of the yacht is contained in the sale brochure, which suggests the current asking price is USD$849,000.

56    An amount of $1,283,130.10 is owing by the trust company that initially acquired the yacht before the transfer to the current legal owner for a nominal consideration. Given the substantial repairs that need to be undertaken, it is unclear on the evidence whether the amount realised from the sale of the yacht would be sufficient to discharge this loan.

D    Conclusion and Orders

57    For these reasons, the prayers for relief sought in the Tesoriero Interlocutory Application should be refused.

Associate:

Dated:    3 March 2022

ANNEXURE

SCHEDULE OF PARTIES

No.    NSD 616/2021

Federal Court of Australia

District Registry: New South Wales

Division: General

No.    NSD 747/2021

Federal Court of Australia

District Registry: New South Wales

Division: General