CBX2 Pty Ltd v National Australia Bank Limited (No 3)

[2015] NSWSC 1555

Supreme Court

New South Wales

Medium Neutral Citation:

CBX2 Pty Ltd v National Australia Bank Limited (No 3) [2015] NSWSC 1555

Hearing dates:

17 August 2015

Date of orders:

27 October 2015

Decision date:

27 October 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The defendant’s notice of motion filed 8 May 2015 for security for costs is dismissed.

 

(2) The defendant is to pay the plaintiff’s costs of this motion.

 (3) The plaintiff’s notice of motion filed 8 May 2015 to amend the statement of claim and the defendant’s notice of motion filed 21 May 2015 to strike out the statement of claim are stood over for directions at 9.00 am on 3 November 2015 before the Registrar.

Catchwords:

SECURITY FOR COSTS - threshold issue – relevant considerations under UCPR 42.21(1A) – stultification – whether those standing behind the company are also without means to satisfy an adverse costs order – whether there has been full and frank disclosure of assets and liabilities – whether the plaintiff’s impecuniosity was caused by the defendant’s actions

Legislation Cited:

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Beach Petroleum NL v Johnson (1992) 7 ACSR 203
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 52 ALR 176; (1984) 2 FCR 1
Equity Access Ltd v Westpac Banking Corporation [1989] ATPR 40-972
Fiduciary v Morningstar Research (2004) 208 ALR 564; [2004] NSWSC 664
Fitzpatrick v Waterstreet (1995) 18 ACSR 694
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Narradine Pty Ltd v Mascot Steel and Tools Pty Ltd [2012] NSWSC 385
Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Limited [2012] NSWCA 113
Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) [2011] WASC 161
Whyked Pty Limited v Yahoo Australia and New Zealand Pty Limited [2006] NSWSC 1236

Category:

Procedural and other rulings

Parties:

CBX2 Pty Ltd (ABN 40 105 653 094) (Plaintiff)
National Australia Bank Limited (ABN 12 004 044 937) (Defendant)

Representation:

Counsel:
A McQuillen (Plaintiff)
P Reynolds (Defendant)

  Solicitors:
Sullivan Fernan Lawyers (Plaintiff)
Corrs Chambers Westgarth (Defendant)

File Number(s):

2014/243692

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 17 August 2015 there were three motions before this Court for hearing:

1. A notice of motion for security for costs pursuant to Rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and/or s 1335 of the Corporations Act 2001 (Cth) filed by the defendant on 8 May 2015;

2. A notice of motion to amend the statement of claim (“S/C”) filed by the defendant on 8 May 2015; and

3. A notice of motion to strike out the S/C filed by the plaintiff on 21 May 2015.

2. The notices of motion referred to in (2) and (3) above have been adjourned to 30 October 2015 before the Registrar as the parties are attempting to resolve these issues. The plaintiff is CBX2 Pty Ltd (“CBX2”). Mr Charles Blinkworth (“Mr Blinkworth”) is the sole director and shareholder of CBX2. The defendant is National Australia Bank Limited (“NAB”).

3. CBX2 relied upon four affidavits of its solicitor Terrence Anthony Sullivan dated 8 May 2015, 22 May 2015, 27 May 2015 and 12 August 2015 and the affidavit of George Sanna, a former horse coach and trainer at CBX2, dated 4 June 2015. NAB relied upon five affidavits of Samuel Peter Delaney dated 6 May 2015, 20 May 2015, 29 May 2015, 21 July 2015 and 3 August 2015 and the affidavit of Roland Patrick Matter dated 8 May 2015.

4. Both Mr Sullivan and Mr Sanna gave short evidence and were cross examined.

Background

5. These proceedings concern claims brought by CBX2 against NAB in respect of dealings with CBX2’s account with NAB.

6. In 2003, CBX2 was incorporated with Mr Blinkworth and his accountant and friend Mr Craig Ball (“Mr Ball”), as directors and equal shareholders. At that time, Mr Ball was the Chief Financial Officer of Reliance Security Group Pty Ltd (“Reliance”). The business of CBX2 was purchasing, breeding and training equestrian horses.

7. On 15 November 2005, Mr Ball resigned as a director and transferred all of his shareholding to Mr Blinkworth.

8. From 2005 until 2010, Mr Blinkworth was employed as Chief Executive Officer of ISS Facility Services Australia Ltd (“ISS”).

Events in 2008 – as alleged by CBX2

9. In August 2008, Mr Blinkworth separated from his wife and moved out of his family home. He had a home loan with NAB which was secured against that family home.

10. Also in August 2008, Mr Blinkworth was expecting to receive a cheque from ISS in the amount of $1,950,000 (“the ISS cheque”) into the CBX2 NAB account. Mr Blinkworth says he informed a NAB employee, Ms Karyn Wright (“Ms Wright”), that he was expecting the ISS cheque and that it was to be used for the sole purpose of off-setting or repaying his NAB home loan.

11. In late August 2008, Mr Blinkworth became aware that the ISS cheque had been banked into the CBX2 account.

12. On 20 August 2008, another NAB employee, Nicole Evans (“Ms Evans”), signed a cheque on the CBX2 account made payable to Reliance in the amount of $1,000,000. On 26 August 2008, Mr Ball signed a cheque on the CBX2 account made payable to the Australian Tax Office for $654,908. On 5 September 2008, Ms Evans signed a cheque on the CBX2 account made payable to herself for the amount of $100,000. Various other smaller amounts were also signed off on by Ms Evans. All of these amounts were debited from the CBX2 account.

13. In late 2008 or early 2009, Ms Wright informed Mr Blinkworth that there were insufficient funds in the CBX2 account to repay his home loan. It was at that time Mr Blinkworth became aware of the payments out of the CBX2 account authorised by Ms Evans and Mr Ball.

14. According to Mr Blinkworth, he was planning to use the funds from the ISS cheque firstly, to discharge the mortgage over his home which required payment of approximately $930,000; and secondly, for the business purposes of CBX2 (Aff. Sullivan 22/5/2015).

15. As at August 2008, CBX2 says that it required the sum of approximately $500,000 in order to maintain its equestrian business. It did not have access to that amount. CBX2’s investment in its equestrian business was devalued to the point where its assets, primarily equestrian horses, were sold as a “fire sale” for amounts considerably less than their otherwise market value. Following the sale of the horses, CBX2 could not continue the equestrian business because the funds were not available (Aff. Sullivan 22/5/2015).

The statement of claim

16. On 19 August 2014, CBX2 filed a statement of claim against NAB. The current pleaded claims can be summarised as follows:

1. (a)   First, a claim that NAB had allowed an unauthorised person, Ms Evans, to effect transactions on the account between 10 July 2007 to 30 October 2008 (S/C [1]-[40], [113]-[132]);

2. (b)   Second, a claim that Ms Wright, as a NAB employee, had:

1. (i)   Failed to carry out instructions given by Mr Blinkworth in relation to the ISS cheque (S/C [52]-[68]);

2. (ii)   Promised or represented that she would give Mr Blinkworth a copy of account authority documentation, which she failed to do. This was a breach of a promise and was misleading or deceptive conduct which caused loss and damage (S/C [69]-[88]);

3. (iii)   Deliberately or wilfully impeded CBX2’s investigations, or engaged in some manner of concealment, calculated to damage CBX2, causing loss and damage (S/C [89]-[92]);

3. (c)   Third, a claim that NAB breached the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) in relation to payment of funds from the account (S/C [93]-[112], [133]-[138]);

4. (d)   Fourth, a claim that NAB breached a duty of care by failing to take all reasonable steps to protect the interests of CBX2 by allowing money to be transferred from the account (S/C [139]-[144]);

5. (e)   Fifth, a claim for $200,000 in legal fees and other expenditure incurred prior to the lodgement of the statement of claim (S/C [146]) and exemplary damages calculated with reference to an alleged loss on a forced sale of Mr Blinkworth’s wife’s home, estimated at an amount of $200,000 (S/C [147]).

17. CBX2 claims damages in the sum of $1,838,566.80 plus interest, costs and exemplary damages. CBX2 is currently in the process of amending the current statement of claim.

Security for costs

18. The tests stipulated by s 1335 of the Corporations Act and UCPR 42.21(1)(d) are similar: Fitzpatrick v Waterstreet (1995) 18 ACSR 694.

(1)   Threshold issue

19. The threshold issue under s 1335 of the Corporations Act is whether it appears to the Court “by credible testimony that there is reason to belief that [the plaintiff] will be unable to pay the costs of [the defendant] if successful in its defence”. According to von Doussa J in Beach Petroleum NL v Johnson (1992) 7 ACSR 203 at 205, the test is satisfied where:

“Credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant on service of the allocator, if judgment goes against it. This will be so even in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs.”

20. This is to be determined by reference to the plaintiff’s likely financial position at the time of judgment: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [58] per Einstein J; Narradine Pty Ltd v Mascot Steel and Tools Pty Ltd [2012] NSWSC 385 at [5] per Black J.

21. UCPR 42.21(1)(d) similarly provides that, if in any proceedings it appears to the Court that there is reason to believe that a plaintiff, a corporation, will be unable to pay the defendant’s costs if ordered to do so, the Court may order the plaintiff to give such security as the Court thinks fit, in such a manner as the Court directs, and that the proceedings be stayed until the security is given.

22. The tests prescribed by s 1335 of the Corporations Act and UCPR 42.21(1)(d) are premised upon the assumption that the defendants will successfully defend the proceedings: Beach Petroleum at 205.

23. From the publically available information it appears that:

1. (a)   CBX2 has paid up share capital of $2 (SPD-1, Tab 1), it does not own any real property in Australia (SPD-1, Tab 22) and it only had $34.92 in the CBX2 account when closed on 2 July 2010 (SPD-1, Tab 25);

2. (b)   CBX2 was deregistered by ASIC on 12 December 2009 (SPD-1, Tab 2). While it has been re-registered (Aff. Delaney 6/5/2015), there is no evidence to suggest that it is trading or has assets or any source of income;

3. (c)   CBX2 has an adverse record with Veda Advantage (SPD-1, Tab 2) and is regarded by Dun & Bradstreet as having a high risk of failure in the next 12 months (SPD-1, Tab 24).

24. CBX2 says it will be unable to pay the costs if NAB is successful in its defence. CBX2’s own evidence is to the effect that CBX2 is not trading, has no assets or income, and cannot afford security. Mr Sullivan deposed that CBX2 has $8.09 in its bank account, has no assets beyond that money, is not trading anymore, and does not have any present financial capacity to provide security for costs (Aff. Sullivan 22/5/2015). Thus the threshold issue has been satisfied so this Courts discretion is enlivened. The evidentiary onus falls on CBX2 to satisfy this Court that it should not order the security sought: see Idoport at [62] and [65].

(2)   Discretionary factors

25. There are a number of discretionary matters the Courts have regarded as relevant considerations, many of which are listed in UCPR 42.21(1A). It relevantly states:

“42.21   Security for costs

…

(1A)   In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant:

(a)   the prospects of success or merits of the proceedings,

(b)   the genuineness of the proceedings,

(c)   the impecuniosity of the plaintiff,

(d)   whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,

(e)   …

(f)   whether an order for security for costs would stifle the proceedings,

(g)   whether the proceedings involve a matter of public importance,

(h)   whether there has been an admission or payment in court,

(i)   whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,

(j)   the costs of the proceedings,

(k)   whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,

(l)   the timing of the application for security for costs,

(m)   whether an order for costs made against the plaintiff would be enforceable within Australia,

(n)   the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.

…”

26. The discretion to order costs is unfettered, and should be exercised having regard to all the circumstances of the case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196.

27. The focus of this application has been upon the true financial position of Mr Blinkworth and I shall deal with this issue in detail later in this judgment.

The timing of the application

28. Delay by a defendant is a relevant factor in the exercise of the discretion: see Idoport at [68]. Counsel for CBX2 submitted that NAB delayed in seeking security for costs. I do not agree. On 19 August 2014, CBX2 commenced these proceedings. From then, NAB undertook the reasonable steps of completing its inquiries, participating in a mediation by consent and providing CBX2 with several opportunities to finalise the pleading before it applied for security for costs. On 8 May 2015, NAB filed this motion seeking security for costs. In my view, NAB did not delay in its making of this application.

The bona fides of the claim/prospects of success

29. These issues are relevant to the extent that if the claim is not bona fide or clearly has poor prospects then these are matters supporting an order for security. As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, the Court should, in the absence of evidence to the contrary, proceed on the basis that that the claim is bona fide and has reasonable prospects of success: see KP Cable Investments at 197. I accept that this claim is made bona fide and has reasonable prospects of success.

The impecuniosity of the plaintiff and stultification

30. Not only does proof of the unsatisfactory financial position of a plaintiff trigger the Court’s discretion, but that evidence is also substantial factor in the exercise of the discretion: Idoport at [56]-[57]. It is incumbent upon a plaintiff who wishes to resist an application for security to put before the Court a full and frank statement of the assets and liabilities of the plaintiff, and also of its shareholders and creditors (if relevant), and, if there are trust assets, of the beneficiaries of the trust: see Idoport at [66].

31. A corporate plaintiff seeking to assert stultification must demonstrate that those standing behind the company who are likely to benefit from the action are also without means to satisfy an adverse costs order: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 52 ALR 176; (1984) 2 FCR 1 at 4 (applied in Whyked Pty Limited v Yahoo Australia and New Zealand Pty Limited [2006] NSWSC 1236 at [16]), Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Limited [2012] NSWCA 113 at [15].

32. CBX2 submitted that it is impecunious and that an order for security would stifle proceedings due to the unsatisfactory financial position of both it and that of Mr Blinkworth.

33. As previously stated, CBX2’s own evidence, through Mr Sullivan, is to the effect that CBX2 is not trading, has no assets or income (other than $8.09 in its bank account), and does not have any present financial capacity to provide security for costs. The publically available information shows that CBX2 has paid up share capital of $2, does not own any real property in Australia and had $34.92 in its account when it was closed on 2 July 2010. CBX2 was deregistered by ASIC on 12 December 2009, and while it has been re-registered, there is no evidence to suggest that it is trading or has assets or source of income. CBX2 has an adverse record with Veda Advantage and is regarded by Dun & Bradstreet as having a high risk of failure in the next 12 months.

34. NAB submitted that firstly, the financial position of CBX2 and Mr Blinkworth has not been disclosed in a full and frank way: see Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) [2011] WASC 161 per Allanson J at [15]; and secondly, that the documentary evidence available shows that CBX2 and Mr Blinkworth have access to significant amounts of money; and that they have remained silent on the topic. In these circumstances, according to NAB, CBX2 is not impecunious in the relevant sense; and since CBX2 and Mr Blinkworth have access to significant funds, an order for security would not stifle proceedings.

35. I accept that CBX2 is impecunious. In order to assert stultification however, CBX2 must demonstrate that Mr Blinkworth, as a person standing behind the company who is likely to benefit from the action, is also without means to satisfy an adverse costs order.

36. Mr Blinkworth has not proffered an undertaking to be personally liable for any costs order made against CBX2.

Evidence in Mr Blinkworth’s camp

37. It is important to have regard to the fact that Mr Blinkworth did not file any affidavits on his own behalf. Instead his solicitor, Mr Sullivan, provided evidence based on his (Mr Sullivan’s) information and belief in relation to Mr Blinkworth’s financial position. As mentioned above, Mr Blinkworth’s position is that he has no assets other than $177.57 in a NAB bank account, and is currently living on a disability pension. NAB thoroughly investigated Mr Blinkworth’s financial position, and more financial evidence became available. Mr Blinkworth was called upon to provide further instructions in relation to those additional matters. In response, Mr Sullivan swore further affidavits. My difficulty is that because of the evidence given in this manner, Mr Blinkworth did not have to expose himself to cross examination. Hence, this Court was not given the opportunity to evaluate the veracity of his evidence so I approach this evidence with these reservations.

Mr Blinkworth’s financial position

38. The overall picture that emerges from the financial documentation is that up until 2010, Mr Blinkworth was financially successful and a wealthy man.

39. Mr Blinkworth’s tax returns from 2001 to 2005 indicate that he had income varying between approximately $191,000 and $324,000 for each of those years. He also had interest in several investment properties, which were sold in about 2004 or 2005. Mr Blinkworth says that he recovered the amount of his investment from the sale of those properties.

40. On 28 February 2006 Mr Blinkworth became the Chief Executive Officer of ISS and was employed at ISS until 23 September 2010. The ISS group generated net profit before tax of $20,552,000 in 2009 and $40,421,000 in 2010 from total revenue of $732,758,000 in 2009 and $858,726,000 in 2010. Senior employees of ISS held shares in that company.

41. Mr Blinkworth’s tax returns from 2007 until 2010 show incomes for those years between approximately $780,000 and $950,000.

Funds lent by CBX2 to Mr Blinkworth

42. In 2003, Mr Blinkworth borrowed from NAB the sum of $650,000. Mr Blinkworth then provided loan funds to CBX2. CBX2 purchased horses with those loan funds. The balance sheet attached to the tax return of CBX2 for the financial year ending 30 June 2004, shows that there was a liability of CBX2 for the “Ball Blinkworth loan account” of $342,334.61. The majority of those funds were lent to CBX2 by Mr Blinkworth. As at 30 June 2006, the financial statements for CBX2, under the heading “Cash Flows From Formation & Financing Activities” shows loans from Mr Blinkworth to CBX2 for the financial years 2005 and 2006. As at 30 June 2007, the financial statements for CBX2 also show loans from Mr Blinkworth.

Mr Blinkworth’s current position

43. In 2008, Mr Blinkworth and his wife separated. On 6 July 2010, Mr Blinkworth’s NAB account had an opening balance of $111.35. Mr Blinkworth says that between 2007 and 2010, his available funds and earnings were depleted by firstly, providing funds to CBX2; secondly, assisting his wife and two children financially, including paying the mortgage on the family home; and thirdly, renting premises in the King Street Wharf area of Sydney at a cost of approximately between $5,000 and $7,000 per month.

44. On 23 September 2010, Mr Blinkworth left ISS. Since then, he has not been in any paid employment. He is a director of SCPP3 Pty Limited, CRB Investment Holdings Pty Ltd and CRB Consulting Pty Ltd. These companies were set up for the purpose of Mr Blinkworth undertaking some consulting work. Since these companies were incorporated, Mr Blinkworth says that has not been well enough to engage in any consulting work and these companies have never traded. Hence, Mr Blinkworth says that his interests in these companies are of no value. No records were produced in support of this claim.

45. According to Mr Blinkworth, he continued to assist his wife and children financially and continued to rent the King Street Wharf premises until about the middle of 2013. Copies of the leases have been provided. In mid 2013, Mr Blinkworth moved into the home of a friend, Mr Paul King (“Mr King”), and continues to reside in that home.

46. Mr Blinkworth has a self-managed superannuation fund with a balance of approximately $430,000. STForc Pty Limited is the trustee of that fund, to which Mr Blinkworth says he has no present access. A copy of the first deed was produced (Ex B). I am satisfied that Mr Blinkworth will not be able to access those funds in the foreseeable future.

47. There are bank statements for a bank account with ANZ Bank in the name of Mr King and Mr Blinkworth. Mr Blinkworth says that he has no beneficial interest in the account and was made a joint holder of that account by Mr King when the account was first opened, and remains as a joint account holder and signatory to assist Mr King with his day to day purchasing requirements, as Mr King suffers from advanced Parkinson’s disease. All of the funds that are credited to the account are Mr King’s and are, with a few exceptions, Mr King’s pension/superannuation payments used solely for Mr King’s needs.

48. Mr Blinkworth’s bank account with NAB shows that until about March 2012, occasionally he had significant funds credited to that bank account. Since ceasing work on 23 September 2010, Mr Blinkworth says he has needed significant sums of money to continue meeting his obligations as best he can. Funds were provided to Mr Blinkworth by friends, particularly Mr King. Other funds were paid to Mr Blinkworth from the sale of horses that were owned by CBX2. Those horses were sold on behalf of CBX2 by Mr Sanna, and the funds from the sale of those horses were subsequently provided by Mr Sanna to Mr Blinkworth. Mr Sanna was cross examined in relation to the fire sale of the horses owned by CBX2. I accept his evidence as being truthful. In August 2008, CBX2 owed Mr Sanna between $70,000 to $80,000 (T41.22-24). The fire sale occurred in 2009 and 2010 because Mr Blinkworth was not in a position to pay the whole upkeep costs of the breeding and training of the horses (T42).

49. In cross examination, Mr Sanna’s evidence detailed the horses and the amounts for which they were sold. They are as follows. Rolex for the sum of $75,000, Romantic Dream for the sum of $140,000, Aprilla (CBX2’s half share) for the sum of $200,000, Quintala for the sum of $40,000 to $50,000, Ulysses for the sum of $140,000 and 8 to 10 non-European horses for the sum of $12,000 to $25,000 depending on age (9 x $18,500 = $166,500). That totals the sum of $821,500. Also, two additional horses bought for Mr Ball’s daughter sold for the sum of €90,000 and $50,000.

50. Mr Sanna explained that some amounts from the fire sale of the horses went to Mr Blinkworth but that was because there were quite decent sums of money owing. Sometimes it was split up on a needs basis. Sometimes Mr Blinkworth was desperate for money and sometimes they tried to keep each other happy. Sometimes Mr Blinkworth received all the money (T54.42-47).

51. Mr Blinkworth lives off a disability support pension from Centrelink and has no assets other than a bank account with a balance of $177.57 (Aff. Sullivan 22/5/2015). Mr Blinkworth has provided to the Court an income statement from Centrelink for a disability support pension payment and a document showing related payments made to him on 25 March 2015 together with a NAB account statement for the period 31 January 2015 to 31 March 2015, showing a balance of $177.57. I accept that evidence.

52. I have already referred to my hesitation is accepting the evidence of Mr Blinkworth provided through his solicitor, particularly in relation to whether Mr Blinkworth has disclosed all of his assets. By adopting this approach, Mr Blinkworth was not able to be cross examined. I regard Mr Blinkworth’s approach as being less than satisfactory. Despite my view of the manner by which Mr Blinkworth’s evidence was adduced, I have had regard to the financial documents that support the assertions made by Mr Blinkworth. The financial records show that although in 2008 he was a wealthy man by 2010 his financial situation was in serious decline. He was in a dire financial position. I am satisfied that the current situation is that Mr Blinkworth does not have access to “significant financial resources” and further that he would be unable to meet an adverse costs order, if made against CBX2.

53. Since CBX2 and Mr Blinkworth are impecunious, it is my view that an order for security of costs would have the effect of stifling these proceedings.

Whether the plaintiff's financial position/impecuniosity was caused by the defendant's actions

54. CBX2 bears the onus of establishing the adequacy of its financial position before its dealings with NAB and that NAB’s conduct either caused, or at least materially contributed to, its impecuniosity: see Fiduciary v Morningstar Research (2004) 208 ALR 564; [2004] NSWSC 664 at [85] to [100] per Austin J.

55. It is not in dispute that before the alleged conduct by NAB, CBX2 was in a positive financial position. In 2007, CBX2 had $2,269,812 in total assets with liabilities of $801,885 for loans from directors and $600,000 from bank loans. (SPD-3, Tab 10).

56. CBX2 submitted that its current impecuniosity was caused or contributed to by the conduct of NAB since it was unable to continue its business activities after the ISS cheque was debited from the CBX2 NAB account. According to CBX2, the funds from the cheque were to be made available not only to meet payments on and discharge Mr Blinkworth’s home mortgage, but also to enable CBX2 to continue with its activities in horse breeding and showing.

57. According to counsel for NAB, this Court could not be satisfied that NAB caused CBX2’s present financial position, on the basis that the ISS cheque funds related to Mr Blinkworth's employment, unconnected with the activities of CBX2, and were earmarked for a non-CBX2 purpose. Secondly, NAB asserts that a close examination of the evidence suggests that there were other factors that had a greater causative impact on CBX2’s financial position.

58. CBX2’s operating revenue and operating profit declined considerably between 2006 and 2007; its operating revenue from $1,360,140 in 2006 to $304,600 in 2007, and its operating profit from $999,826 in 2006 to $68,022 in 2007 (SPD-3, Tab 10). Accordingly, counsel for NAB says that CBX2’s poor income position was a consequence of a decline in its revenue prior to 2008. The value of its assets increased in that period from $2,173,899 in 2006 to $2,269,812 in 2007 (SPD-3, Tab 10). Ignoring the director loans, the only liability against these assets was the $600,000 bank loan, so CBX2 had $1,669,812 in net assets in 2007 (SPD-3, Tab 10). Counsel for NAB submitted that this is important for two reasons:

59. (i)   Given this positive net asset position, it does not ring true that the loss of the proceeds of the ISS cheque in 2008 over and above what was to be paid against Mr Blinkworth's loan meant that CBX2 was incapable of raising $500,000 in 2008, and that this inability caused a sell-off of the entirety of CBX2's assets and wholly destroyed the business (as contended); and

1. (ii)   CBX2's evidence does not properly account for its assets with a net worth of $1,669,812. If it has disposed of those assets in a way which led to it being impoverished, then the cause of its impoverishment was how it dealt with the sale of the significant assets and the proceeds of that sale.

60. Also, prior to commencement of these proceedings, CBX2 with legal representation ran proceedings in the District Court against Ms Evans. CBX2 claims reimbursement of legal fees, accounting fees and consultation fees incurred since 2008, estimated to be $200,000. Since the filing of the statement of claim and as at 8 July 2015, $30,000 has been paid into the Sullivan Fernan Lawyers trust account in two payments of $15,000 by CBX2. The payer for the first payment is identified in the account statements as Mr Blinkworth. However, the payer for the second payment is not identified in the account statement. I accept that from the time these proceedings commenced to date, Mr Blinkworth has been able to meet his legal fees.

61. The deprivation of the funds from the ISS cheque had a negative financial impact upon CBX2 and it caused CBX2 to undertake a fire sale of its horses. But it was the loss of Mr Blinkworth’s employment that hastened the collapse of CBX2. The lack of these funds caused CBX2 to cease its business activities and led it to sell its assets. While NAB’s actions were not the sole cause of CBX2’s impecuniosity, it is my view that it at least materially contributed to its ultimate demise.

Whether the proceedings involve a matter of public importance

62. These proceedings do not involve a matter of public importance.

Whether there has been an admission or payment into court

63. There has not been an admission or a payment into court.

Whether the delay by CBX2 in commencing these proceedings has prejudiced the defendants

64. The cause of action appears to have arisen in 2008. On 19 August 2014, nearly six years after the cause of action accrued, CBX2 filed its statement of claim. There has been delay in commencing proceedings. However, NAB has not made any submissions to the effect that it is prejudiced by the delay.

Is an order for costs made against CBX2 enforceable within Australia?

65. If any costs order is made, it is enforceable in Australia.

Other considerations

66. While the Court may take into account matters peculiar to the particular circumstances of the case: Equity Access Ltd v Westpac Banking Corporation [1989] ATPR 40-972, none were referred to here.

Conclusion

67. Taking the above matters into account in the exercise of my discretion is a finely balanced task. It is my view that CBX2 has discharged its onus that it ought not provide security for costs. I decline to make an order that CBX2 provide security for costs. NAB’s notice of motion filed 8 May 2015 is dismissed.

68. Costs are discretionary. Normally costs follow the event. The defendant is to pay the plaintiff’s costs of this motion.

The Court orders that:

(1)   The defendant’s notice of motion filed 8 May 2015 for security for costs is dismissed.

(2)   The defendant is to pay the plaintiff’s costs of this motion.

(3)   The plaintiff’s notice of motion filed 8 May 2015 to amend the statement of claim and the defendant’s notice of motion filed 21 May 2015 to strike out the statement of claim are stood over for directions at 9.00 am on 3 November 2015 before the Registrar.

**********

Decision last updated: 27 October 2015