Federal Court of Australia

Kidd v Kwek (No 2) [2024] FCA 194

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment for the applicant in the sum of $100,000 against the second, third and fourth respondents for oppressive conduct pursuant to ss 232 and 233 of the Corporations Act 2001 (Cth).

2.    The second, third and fourth respondents pay interest to the applicant on the amount in paragraph 1 in the sum of $16,510.14, as calculated in the attached schedule.

3.    There be judgment for the fourth respondent against the second and third respondents for breaches of fiduciary duty and breaches of ss 180 to 183 of the Corporations Act, with the quantum of such damages and, or alternatively, an account of profits to be assessed, following which final judgment may be entered with respect to either of those measures at the election of the applicant.

4.    The applicant’s costs of and incidental to the proceeding up to the date of these orders be paid by the second and third respondents.

ANNEXURE A

SCHEDULE - CALCULATION OF INTEREST As per the Federal Court of Australia Interest on Judgments Practice Note (GPN-INT)

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

REASONS FOR JUDGMENT

MCEVOY J:

1    Before the Court is an interlocutory application for default judgment dated 2 October 2023 and amended on 28 February 2024. It seeks orders for default judgment against the second, third and fourth respondents pursuant to rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) as well as s 233(1)(j) of the Corporations Act 2001 (Cth).

2    The application is made in the context of an originating application seeking relief under various sections of the Act filed on 18 June 2021 and amended on 26 October 2022.

3    On 24 October 2023 a Registrar of the Court made orders by consent that the present application be discontinued as against the first respondent with no order as to costs. On 2 November 2023 the Registrar made further orders that the hearing of the interlocutory application be adjourned to a date to be fixed before a Judge of the Court. On that occasion the Registrar noted that there had been no appearance for the second, third and fourth respondents. The applicant filed updated written submissions and an amended interlocutory application on 28 February 2024, together with a minute of proposed orders and interest calculations as at that day. The application came on for hearing on 1 March 2024. The second, third and fourth respondents did not appear.

4    The applicant relies upon:

(a)    written submissions originally filed 13 October 2023 but amended 28 February 2024 insofar as the first respondent is concerned;

(b)    affidavits of Mr Liam Currie dated 14 July 2023, 9 August 2023, 29 August 2023 and 29 February 2024 (respectively the First, Second, Third and Fourth Currie Affidavits);

(c)    affidavits of Mr James Naughton dated 2 October 2023 (Naughton Affidavit) and 19 October 2023 (Second Naughton Affidavit);

(d)    affidavit of service of Mr Geoffrey Dunlop, process server, sworn 25 August 2023 and filed 29 August 2023 (Dunlop Affidavit);

(e)    affidavit of service of Mr Trent Del Monaco, process server, sworn 28 August 2023 and filed 29 August 2023 (Del Monaco Affidavit); and

(f)    interest calculations provided by the applicant’s solicitors to my chambers by email on 28 February 2024.

5    The applicant seeks relief as follows:

(a)    that pursuant to r 5.23(2)(c) of the Rules and s 233(1)(j) of the Act, the second, third and fourth respondents pay the applicant the sum of $100,000;

(b)    interest;

(c)    that pursuant to r 5.23(2)(c) and (d) of the Rules, judgment be given for the fourth respondent as against the second and third respondents for the relief sought at items I and J of the prayer for relief in the statement of claim dated 24 March 2023, with the quantum of the damages and/or account of profits to be assessed, following which final judgment may be entered with respect to either of those measures at the election of the applicant; and

(d)    the second and third respondents jointly and severally pay the costs of and incidental to the proceedings.

6    For the reasons that follow I have determined that the applicant should have judgment against the second, third and fourth respondents and that there should be orders substantially in the form sought in the applicant’s minute of orders provided on 28 February 2024.

The applicant’s claims

7    By statement of claim dated 24 March 2023, the applicant pleads, in summary, that:

(a)    the first, second and third respondents have engaged in conduct in the affairs of the fourth respondent, Terrawood, which is contrary to the interests of members as a whole, and/or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, the applicant, within the meaning of ss 232(d) and 232(e) of the Act;

(b)    as a consequence:

(i)    the fourth respondent’s assets have been improperly depleted with the effect that the applicant has not been repaid capital contributions he made when the company was commenced or the money he mistakenly paid to the fourth respondent, and the applicant has not received any dividends which might have been paid by the fourth respondent had its assets not been depleted; and

(ii)    the applicant has not received a fair value for his shares in the fourth respondent after being excluded from the business;

(c)    further, or in the alternative, the first, second and third respondents owed fiduciary duties to Terrawood (the fourth respondent) not to use their position to gain a profit or advantage for themselves and not to obtain a benefit by entering into transactions in conflict with their duties and by reason of the matters pleaded they have breached their fiduciary duties to Terrawood; and

(d)    further, or in the alternative, the first, second and third respondents as directors and/or officers of the fourth respondent owed duties to Terrawood under ss 180-183 of the Act to exercise their powers with reasonable care and diligence, act in good faith in the best interests of the company, not improperly use their position or information to gain an advantage for themselves, someone else or to cause detriment to the company, and that by reason of the matters pleaded they have breached their directors’ and officers’ duties.

Relevant background

8    On 24 March 2023, the Court made orders that the parties were to each make discovery pursuant to a Redfern Discovery Procedure on or before 4:00pm on 6 April 2023. Mr Currie deposes in his First Affidavit that the parties agreed on 2 May 2023 to exchange lists of documents by 5 May 2023 in relation to various categories of documents.

9    On 8 May 2023 the first respondent swore, filed and served an affidavit and list of documents on behalf of himself and the fourth respondent. The second respondent and the third respondent did not serve any list of documents. On 14 July 2023 the applicant made an application for particular discovery to resolve perceived deficiencies in the first and fourth respondents’ discovery, and to seek discovery of certain documents from the other respondents. Until this point, the second, third and fourth respondents had been participating in the proceeding.

10    On 1 August 2023 the second and third respondent’s lawyer filed notices of ceasing to act, and on 9 August 2023 filed a notice of ceasing to act for the fourth respondent. It appears from company searches dated 3 August 2023 and 29 February 2024 that at all relevant times since 24 May 2022 the third respondent, Ms Cheong, has been recorded on ASIC’s register as the sole director of the fourth respondent, Terrawood. To date, neither the second, third nor the fourth respondent have filed notices of address for service in accordance with r 4.05(2) of the Rules.

11    On 10 August 2023 a Registrar of the Court made orders that the respondents make particular discovery (r 20.21 of the Rules) by 24 August 2023. The second, third and fourth respondent (through the third respondent) did not attend the hearing before the Registrar on 10 August 2023.

12    The applicant’s solicitor deposes that on 15 August 2023, the applicant served copies of the 10 August 2023 orders as follows:

(a)    by email to the second and third respondents at the email addresses for each of those respondents which had been provided to the applicant’s solicitor by the second and third respondent’s former solicitor; and

(b)    by express post to the third and fourth respondents at an address in Pakenham Victoria, being the address of fourth respondent’s registered office as recorded on ASIC’s records.

13    The applicant also attempted personal service on the second and third respondents at a Glen Waverley address, being the address identified in affidavits sworn by the second respondent and the third respondent on 15 July 2022 and an address in Officer, being the address identified by their former solicitor in the notices of ceasing to act. In the Del Monaco Affidavit, Mr Del Monaco deposed that on 23 August 2023 he was unable to effect service at the Officer address but spoke with a woman who had no knowledge of the subjects and had resided at the property for a couple of years. The applicant submits that it seems that the address specified in the second and third respondents’ former lawyers’ notice of ceasing to act is an incorrect address. The applicant contends that the Dunlop Affidavit indicates that the second the third respondents actually reside at an address in Glen Waverley, however personal service was unable to be effected at that address despite a number of attempts on 17, 18, 19 and 21 August 2023.

14    The applicant has also attempted to notify the second and third respondents by text message.

15    Neither the second, third, nor fourth respondent filed any affidavits of discovery by 24 August 2023 in compliance with the 10 August 2023 orders. The applicant submits that this discovery includes critically important documents including bank records, bookkeeping records and communications between the respondents (being current or former directors and shareholders) in relation to conduct which is alleged to constitute the alleged oppression or alleged breaches of fiduciary and directors’ duties. For various reasons, it seems that the first respondent no longer has access to those documents and communications. The applicant contends that the records are critical to quantifying the value of the oppression claim in that they would enable the company to be valued prior to the commencement of the alleged oppression so that a fair value for the applicant’s shares at that date could be obtained. Without these documents (as a result of to the non-compliance by the second, third and fourth respondents), the applicant is unable to undertake the necessary valuation.

16    On 30 August 2023 there was a further hearing in relation to the respondents’ discovery. Neither the second, third nor fourth respondent attended that hearing. The Registrar made orders extending the time for compliance with the 10 August 2023 orders until 13 September 2023 and provided that the orders be served on the respondents by various methods. The applicant served those orders on the second, third and fourth respondents in accordance with the methods specified in the 30 August 2023 orders. Neither the second, third nor fourth respondent filed any affidavits of discovery by 13 September 2023 in compliance with the Registrar’s orders of 10 and 30 August 2023.

17    The original application for default judgment was listed for hearing before the Registrar on 20 October 2023 along with a hearing regarding the respondents’ compliance with orders for particular discovery and the costs of the application for those orders. The Registrar determined that the applicant should have the costs of the discovery application paid by the respondents and that the hearing of the default judgment application should be adjourned. As has been mentioned, the applicant and first respondent consented to orders that the default judgment application be discontinued against the first respondent. The default judgment application was listed on 2 November 2023 before the Registrar, however the applicant requested the application be determined by a Judge of the Court. There had been no appearance from the second, third and fourth respondents.

18    Mr Currie deposes in the Fourth Currie Affidavit that an email from my Associate notifying the parties of the hearing date and time for the default judgment application was sent to the email addresses that Mr Currie understands to be the email addresses of the second and third respondents. Mr Currie also deposes that in February 2024 the applicant sent letters to the second, third and fourth respondents and text messages to the second and third respondents notifying them of the hearing. The applicant submits that the ongoing failure to participate in the proceeding is in and of itself oppressive.

Relevant principles

19    Rule 5.22 of the Rules provides:

A party is in default if the party fails to:

(a)     do an act required to be done, or to do an act in the time required, by these Rules; or

(b)     comply with an order of the Court; or

(c)     attend a hearing in the proceeding; or

(d)     prosecute or defend the proceeding with due diligence.

20    Rule 5.23(2) of the Rules provides:

(2)     If a respondent is in default, an applicant may apply to the Court for:

(a)     an order that a step in the proceeding be taken within a specified time; or

(b)     if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

(i)     the debt or liquidated damages; and

(ii)     if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

(c)     if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d)     an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e)     an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

21    The Court retains a discretion as to whether or not to make any order or an order of a particular kind in relation to an application pursuant to r 5.23, and whether that discretion should be exercised depends, inter alia, upon “the nature of the default itself, any explanation provided for the default, the manner in which the party in default has conducted the proceeding to-date and whether the Court could have any confidence that a proceeding would henceforth be conducted in an orderly and proper manner”: BJ International Limited v Asghar (No 2) [2013] FCA 580 at [13] (Flick J). An order may be made entering default judgment against a respondent in circumstances where the default is such as to manifest an intention on the part of a respondent not to comply with orders which have been made with a view to preparing a case for hearing; a single act of default may be sufficient; and in other circumstances a single act of default may not warrant an order being made: BJ International at [14].

22    Whatever a defaulting party’s state of mind or resources, where the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the other parties, it may be appropriate for the Court to make orders for default judgment: Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ).

23    In Maylord Equity Management Pty Ltd v Parazelsus Ltd [2014] FCA 979, Gleeson J recorded the following relevant principles at [10]-[14]:

[10]     The condition in rule 5.23(2)(c) of the Rules, that the Court be satisfied that the applicant is entitled to relief before judgment is entered against the respondent, does not require proof by way of evidence of the applicant’s claim, although evidence may be adduced: Australian Competition and Consumer Commission v Dataline Net AU Pty Ltd (2006) 236 ALR 665, [2006] FCA 1427 at [44]; Yeo v Damos Earthmoving Pty Ltd, Re Beachwood Developments Pty Ltd (in liq) [2011] FCA 1129 at [9].

[11]     However, the applicant must demonstrate, on the face of the statement of claim:

a. a claim for relief sought; and

b. that the court has jurisdiction to grant that relief.

See Luna Park Sydney Pty Ltd v Bose [2006] FCA 94 at [20].

[12]     An applicant will appear to be entitled to the relief sought in the statement of claim if each element of the relevant civil wrong is properly and discretely pleaded: Macquarie Bank Ltd v Seagle [2005] FCA 1239; (2005) 146 FCR 400 at [24]; Macquarie Bank Ltd v Seagle (2008) 79 IPR 7, [2008] FCA 1417 at [20].

[13] The Court may permit recourse to further limited evidence but cannot admit evidence that would alter the case as pleaded: Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [25] (“Speedo”).

[14]     If an order for relief under rule 5.23(2)(c) is made, it gives the applicant a special privilege to gain judgment without proof of the applicant’s claim – a severe disadvantage to the respondent. As a result, the rules governing default judgment are strictly construed and the discretion must be exercised cautiously: Clayton v Thomas C Denton & Co Pty Ltd [1972] VicRp 5; [1972] VR 46 at 49; Speedo at [20].

24    In Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]-[14] Yates J set out the principles relating to r 5.23(2)(c):

[13]    The power to give judgment against a defaulting party is undoubtedly discretionary. The discretion must be exercised cautiously. Where the defaulting party is a respondent to a pleaded claim, the giving of judgment for final relief on the application will deliver complete success to the applicant without investigation of the merits of the pleaded claim: ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27]. There is no requirement that the act or acts of default be intentional or amount to contumelious conduct. There is no requirement that the act or acts of default result in inordinate or inexcusable delay. That said, such features, if present, will be relevant to the exercise of the Court’s discretion. So too will conduct that persuades the Court that the defaulting party is manifesting an inability or unwillingness to cooperate with the Court and the other party or parties to the proceeding.

[14]     Rule 5.23(2)(c) requires the Court to be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement has been interpreted as meaning that the Court must be satisfied that “on the face of the statement of claim” the applicant is entitled to the relief that is claimed. It is not a requirement that the applicant prove its claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42]. If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18]-[19]; Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [23]. The Court may permit further evidence to be adduced, but not evidence that would alter the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [45], [48]-[50]; United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413 at [42]-[44]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62]-[63].

Relief sought by the applicant

25    By the originating application and statement of claim the applicant seeks relief against the respondents including the following on behalf of Terrawood as against the other respondents:

I.     An account of profits derived by Mr Kwek, Mr Seck and Ms Cheong by reason of the contended conduct, and an order that they pay such sum as found to be due to Terrawood upon the taking of an account.

J.     Further or in the alternative, a compensation order under section 1317H of the Corporations Act that Mr Kwek, Mr Seck and Ms Cheong compensate Terrawood for damage suffered by it by reason of the breaches of sections 180 to 183 of the Corporations Act...

26    As has been mentioned, the applicant does not press the present application against the first respondent, Mr Kwek.

27    The applicant submits that the relief sought in the present application is claimed in the statement of claim and that accordingly, the Court should grant that relief pursuant to r 5.23(2)(c) of the Rules if satisfied that the applicant is entitled to it. The applicant contends that he is not required to prove the claim by evidence but is only required to establish on the face of the statement of claim that there is a claim for the relief sought and that the claim falls within the jurisdiction of the Court: Yeo v Damos Earthmoving Pty Ltd, in the matter of Beachwood Developments Pty Ltd (in liq) [2011] FCA 1129 at [9] (Gordon J). Further, the applicant contends that the relief he claims with respect to the oppression is a liquidated amount, meaning that the Court has the power to grant relief pursuant to r 5.23(2)(b) of the Rules.

28    The applicant also seeks relief pursuant to s 233 of the Act which provides:

(1)     The Court can make any order under this section that it considers appropriate in relation to the company, including an order:

...

(j)     requiring a person to do a specified act.

29    The applicant contends that it is within the jurisdiction of the Court to make an order requiring the respondents to repay the capital investments and other money which he paid to the fourth respondent, Terrawood, as pleaded in the statement of claim. The applicant alleges that he paid $30,000 to Terrawood as starting capital in or about August 2019, that between September and November 2020 he made loans to Terrawood in the sum of approximately $70,000, and that these amounts have not been repaid. The applicant also alleges that the first, second and third respondents have refused to repay $3,000 which he mistakenly transferred to Terrawood’s bank account. According to the applicant, an order in the terms sought is the most appropriate form of relief to remedy the alleged oppressive conduct in circumstances where the claims include that the respondents have depleted the assets of Terrawood by diverting business to a related entity and making payments to themselves and related entities (to the detriment of the applicant), and they have by reason of their default denied the applicant the ability to quantify the full value of his claim by means of other potential remedies, such as the purchase of his shares for fair value based on the value of the business prior to the oppressive conduct. It is also submitted that there can be no potential prejudice to any other person by the making of such an order given that the evidence of the respondents is that Terrawood has ceased trading and all external creditors have been paid.

30    The applicant submits that the account of profits and compensation orders sought are common remedies for breaches of fiduciary and directors’ duties that are pleaded in the statement of claim, that they are within the jurisdiction of the Court, and that they should be made pursuant to r 5.23(2)(c) and (d) of the Rules. The applicant also submits that it is appropriate for an order to be made providing that he may make an election between the two measures before final judgment is entered: see Pilmer v The Duke Group Ltd (in liq) (2001) 207 CLR 165; Dr Martens Australia Pty Ltd v Bata Shoe Co of Australia Pty Ltd (1997) 75 FCR 230.

Consideration

31    The applicant contends that by sending the 10 August 2023 orders to the Pakenham address, service was properly effected against the third and fourth respondents pursuant to s 109X of the Act. The applicant also submits that it served the second, third, and fourth respondents the 30 August 2023 orders in accordance with the methods in those orders.

32    I am satisfied that the second, third and fourth respondents were served in accordance with the Rules and that they were on notice of each of the hearings before the Registrar and the hearing before me on 1 March 2024.

33    Accordingly, I am satisfied that the second and third respondents have:

(a)    failed to make any discovery at all in the proceeding and consistently failed to comply with Court orders in relation to discovery (including the orders made on 24 March 2023, 10 August 2023 and 30 August 2023);

(b)    failed to file notices of address for service in accordance with r 4.05(2); and

(c)    failed to attend hearings in relation to discovery on 10 August 2023 and 30 August 2023 and hearings in relation to this application.

34    I am also satisfied that the fourth respondent has:

(a)    failed to comply with Court orders in relation to discovery (including the Orders made on 10 August 2023 and 30 August 2023);

(b)    failed to file notices of address for service in accordance with r 4.05(2); and

(c)    failed to attend hearings on 10 August 2023, 30 August 2023, 20 October 2023, and 2 November 2023.

35    It is apparent from the chronology that since their solicitors ceased to act in August 2023, the second, third and fourth respondents have not engaged in these proceedings and have evinced no intention of complying with the orders of the Court. They have proffered no explanation for their continuing defaults. The applicant submits, and I accept, that their conduct demonstrates continued non-compliance with discovery orders, failure to provide addresses for service, and failures to attend hearings. They have been given ample opportunity to remedy their defaults by way of extensions of time for compliance with discovery orders and the adjournment of relevant hearings.

36    In these circumstances, the continuing default by the second, third and fourth respondents is causing unacceptable delay and expense to the applicant such that the Court cannot be satisfied that the proceeding can continue against any of the respondents in a just, orderly and proper manner. I am satisfied that on the face of the statement of claim the applicant is entitled to the relief that is claimed in so far as the oppression claim and derivative claim for breaches of fiduciary duty and ss 180-183 of the Act are concerned. The elements of the oppression claim, the derivative claim for breaches of fiduciary duties and for breaches of ss 180-183 of the Act are pleaded. Although conscious that default judgment should not be entered lightly, in the present circumstances I am satisfied that it is appropriate to enter judgment in default against the second, third and fourth respondents in respect of those claims. Having regard to the fact that the second, third and fourth respondents had previously participated actively in the proceeding, it may be observed that their attitude is inexplicable and unsatisfactory.

37    There will be judgment for the applicant against the second, third and fourth respondents substantially in the form of the orders sought in the applicant’s minute of orders provided on 28 February 2024. There is no apparent reason why the second and third respondents should not pay the applicant’s costs of the proceeding up to the date of those orders.

Associate:

Dated:    5 March 2024

SCHEDULE OF PARTIES