Clarke v Great Southern Finance Pty Ltd
[2010] VSC 473
•20 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
LIST C
No. 02882 of 2010
| PETER CLARKE AS TRUSTEE OF THE CLARKE FAMILY TRUST SAMANTHA BARBARA MURRAY RAYMOND CARL DRUMMOND | First Plaintiff Second Plaintiff Third Plaintiff |
| v | |
| GREAT SOUTHERN FINANCE PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 009 235 143) BENDIGO AND ADELAIDE BANK LIMITED ABL CUSTODIAN SERVICES PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE ABL PORTFOLIO FUNDING TRUST 2007-1 (ACN 097 889 720) ABL NOMINEES PTY LTD (ACN 106 756 521) IN ITS CAPACITY AS TRUSTEE OF THE LIGHTHOUSE TRUST NO. 12 PIRIE STREET HOLDINGS LIMITED (ACN 061 461 550) (FORMERLY ADELAIDE BANK LIMITED) JAVELIN ASSET MANAGEMENT PTY LTD GREAT SOUTHERN MANAGERS AUSTRALIA LIMITED (RECEIVERS & MANAGERS APPOINTED) JOHN CARLTON YOUNG PETER JOHN PATRIKEOS JEFFREY ARTHUR SYDNEY MEWS CAMERON ARTHUR RHODES PHILLIP CHARLES BUTLIN | First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant Eighth Defendant Ninth Defendant Tenth Defendant Eleventh Defendant Twelfth Defendant |
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JUDGE: | CROFT J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2010 | |
DATE OF JUDGMENT: | 20 October 2010 | |
CASE MAY BE CITED AS: | Clarke & Ors v Great Southern Finance Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 473 | 1st revision 29/4/14 [5] fn 1. |
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PRACTICE AND PROCEDURE – Application to strike out statement of claim on the ground that it may prejudice, embarrass or delay the fair trial of the proceeding and is an abuse of the Court’s process – Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005; and see Rules 13.02, 13.03 and 13.10 of these Rules.
CORPORATIONS – “Common control” of corporations – extent to which knowledge of one corporation can be imputed to another corporation on the basis of “common control” – Nature of “consent” for the purposes of product disclosure requirements of sub-s 1021L(1) and 1022B(1) of the Corporations Act 2001 – Corporations Act 2001, sub-ss 636(3), 638(5), 716(2), 1013K, 1021L(1) and 1022B(1); ASIC Act 2001; ASIC Regulatory Guideline (RG55); ASIC Practice Note 55 – Prospectus – citing and statement of interest.
CORPORATIONS – Practice and Procedure – Question as to the extent to which s 1022C of the Corporations Act 2001 can operate in aid of a cause of action under s 1022B of that Act – Question appropriately determined as a preliminary question under Rule 47.04 of the Supreme Court (Civil Procedure) Rules 2005 rather than in the course of an application to strike out statement of claim under Rule 23.02 of these Rules – Corporations Act 2001 ss 1022B and 1022L; Supreme Court (Civil Procedure) Rules 2005, Rules 23.02 and 47.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Bigmore QC with Mr M. Galvin, S. Rubenstein and T. Warner | Macpherson + Kelley Lawyers |
| For the First and Seventh Defendants | Mr H. Austin | Norton Rose Australia |
| For the Second to Fifth Defendants | Mr P. Crutchfield SC with Ms P. Neskovcin | Allens Arthur Robinson |
| For the Sixth Defendant | Mr P. Zappia | Mills Oakley Lawyers |
| For the Eighth Defendant | Mr J Evans | Monahan + Rowell |
| For the Ninth and Tenth Defendants | Mr L. Hickey on behalf of EKM Legal | |
| For the Eleventh and Twelfth Defendants | Mr M Connock SC with Mr C Moller | Arnold Bloch Leibler |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
Pleadings principles.......................................................................................................................... 3
Strike out principles.......................................................................................................................... 6
Questions of law................................................................................................................................. 7
The corporate knowledge question................................................................................................ 9
The Corporations Act question..................................................................................................... 17
Further pleadings matters............................................................................................................... 22
Paragraph 4(d)............................................................................................................................. 22
Paragraph 10(e)............................................................................................................................ 23
Paragraph 25................................................................................................................................ 23
Paragraphs 26(a)-(c).................................................................................................................... 24
Paragraph 26(d) and Paragraph 26(e)...................................................................................... 25
Paragraphs 27 and 28.................................................................................................................. 26
Paragraph 31A............................................................................................................................. 26
Paragraph 53................................................................................................................................ 27
Further claims against the Sixth Defendant................................................................................ 27
Conclusions....................................................................................................................................... 28
HIS HONOUR:
Introduction
There are two applications with which this judgment is concerned. The first application was made on behalf of the second to fifth defendants in proceeding number 2882 of 2010 (“the Group Proceeding”). For convenience, these defendants are referred to as “the Bendigo and Adelaide Bank Parties”.
The application was made by summons dated 23 August 2010 in the Group Proceeding seeking orders that:
(a)pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”), or the inherent jurisdiction of the Court, the Plaintiffs’ Amended Statement of Claim dated 10 August 2010 (“the Amended Statement of Claim”) be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the proceeding and/or is an abuse of the Court’s process;
(b)alternatively, an order pursuant to Rule 23.02 of the Rules that paragraphs 4(d), 10(e), 25, 26, 27, 28, 31A, 51, 52 and 55 of the Amended Statement of Claim be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the proceeding and/or is an abuse of the Court’s process.
The second application was made on behalf of the sixth defendant, Javelin Asset Management Pty Ltd (ACN 136 367 194) (“the Sixth Defendant”). The application was also made by summons dated 23 August 2010 in the Group Proceeding seeking an order, amongst other things:
(a) That pursuant to rule 23.02(a) of the Supreme Court (General Civil Procedure) Rules 2005, the plaintiffs’ Amended Statement of Claim dated 10 August 2010 be struck out as against the sixth defendant, on the grounds that it does not disclose a cause of action against the sixth defendant.
In response to the applications and the written submissions of the Bendigo and Adelaide Bank Parties and the Sixth Defendant, the First, Second and Third Plaintiffs (the “Plaintiffs”) on their own behalf and on behalf of the Group Members provided written submissions together with a proposed Further Amended Statement of Claim (“the Further Amended Statement of Claim”) by which they sought to address some of the alleged deficiencies in the Amended Statement of Claim. Although this application is directed to the latter, I have made reference to the contents of the Further Amended Statement of Claim where appropriate, but for the reasons which follow, I am not of the opinion that the proposed amendments do address the present deficiencies in the Amended Statement of Claim the subject of this application.
Pleadings principles
At the outset it should be emphasised that the usual rules of pleading[1] are equally applicable to the Group Proceeding. No distinction is made between group proceedings and the more usual, separate, proceedings in this respect.
[1]Goldsmith v Sandilands (2002 190 ALR 370 per Gleeson CJ at 371, adopting the observations of Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712.
The fundamental rules of pleading are contained in Order 13 of the Rules and may be summarised as follows:
(a)every pleading must contain in a summary form a statement of all the material facts upon which a party relies, but not the evidence by which those facts are to be proved: Rule 13.02(1)(a);
(b)the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or conversation must not be pleaded unless those words are themselves material: Rule 13.03;
(c)every pleading must contain the necessary particulars of any fact of matter pleaded: Rule 13.10(1);
(d)particulars must be given if they are necessary to enable the opposite party to plead, to define the questions for trial or avoid surprise at trial: Rule 13.10(2); and
(e)every pleading must contain particulars of any condition of the mind, including knowledge or notice: Rule 13.10(3)(b).
It is quite clear that the function of the statement of claim is to set out with sufficient clarity the case which a defendant must meet.[2] It is also clear that in so doing, the statement of claim must plead all material facts necessary to constitute a complete cause of action.[3] It should also be stressed, particularly in the present context, that it is necessary to allege what must be a cause of action, not merely what might be one. Also in a corporations context, McLelland J made the following observation in this respect:[4]
“It seems clear, however, that the Companies (New South Wales) Code as such has no relevance at all to the substance of the matters sought to be relied upon by the defendants. If it is asserted to be of significance that each of the three companies is wholly owned or controlled (directly or indirectly) by Squibb Corporation or that the first defendant is wholly owned or controlled (directly or indirectly) by Charles of the Ritz Group Ltd, then these would be material facts and they are not alleged in the defences as they stand. Furthermore, I would regard the substance of the matters which I have identified as (b), (c) and (d) also as material facts which are not sufficiently pleaded by the vague and indefinite allegation that the first defendant has been closely associated in business with the other two companies. The sufficiency of the latter allegation can be tested in the following way: if the allegations in par 12(c) of the respective defences were to have been admitted by the plaintiff, would the defendants have thereby established the matters which they are relying on by way of defence as subsumed within par 12(c)? Clearly not. Accordingly, in that respect the defences do not contain a statement of the material facts on which the defendants rely, as required by the Supreme Court Rules 1970, Pt 15, r 7. It is not sufficient to allege in a pleading what may be a ground of action or defence if something else were added which is not stated. It is necessary to allege what must, and not merely what may be, a ground of action or defence, as the case may be: cf West Rand Central Gold Mining Co Ltd v The King [1905] 2 KB 391 at 399 and see also Bruce v Odhams Press Ltd [1936] 1 QB 697 at 712-713; Rubenstein v Truth and Sportsman Ltd [1960] VR 473 at 476 and H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; 30 ALR 181 at 186-187.”
[2]Banque Commerciale SA En Liquidation v Akhil Holdings Pty Ltd (1990) 169 CLR 279 at 286 per Mason and Gaudron JJ; Guns Ltd v Marr [2005] VSC 251 at [14] per Bongiorno J.
[3]See Bruce v Odhams Press Ltd [1936] 1 KB 697 (CA); Rubenstein v Truth and Sportsman Ltd [1960] VR 473 and Sent v Jetcorp of Australia Pty Ltd (1984) 2 FCR 210 (FC) at 210-11 (Smithers J); see also Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J).
[4]Ritz Hotel Ltd v Charles of the Ritz Ltd (1987) 14 NSWLR 124 at 126.
Similarly, it is not acceptable to leave other parties to draw inferences from a pleading, as Hood J indicated in Bostock v Edgar:[5]
“It was then contended that, although it is not distinctly alleged in the statement of claim that the plaintiff is a shareholder, he is at liberty to fall back upon an inference implied from the heading of the writ. No doubt it can be inferred from the heading that the plaintiff is a shareholder, but that is not sufficient compliance with the rules of pleading. The heading is not part of the pleading, nor can the defendant plead to it, though he might take out a summons to compel the plaintiff to put it into proper form. I can think of no rule which entitles a party to supply an omission which is material in such a way. That being so, the defendant is entitled to have the material facts stated in the body of the statement of claim. This is a material fact: it is the very essence of the plaintiff’s claim. The plaintiff cannot interfere unless he is a shareholder. He must allege the fact of his being a shareholder, and must prove that fact at the trial.”
[5](1899) 24 VLR 677 at 680.
The object and function of particulars is conveniently described as being to:
(a)inform the other party of the nature of the case it has to meet, as distinguished from the way in which such case will be proved, and to prevent surprise and consequential delay;[6]
(b)limit the generality of pleadings and thereby limit and define the issues to be tried;
(c)determine the relevance of evidence and thereby restrict the evidence to be led at trial; and
(d)limit and define the issues as to which the discovery process may be appropriate.[7]
[6]Dare v Pulham (1982) 148 CLR 658 at 664; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 221.
[7]Mann v Board of Health of the Australian Capital Territory and Others (1996) 67 FCR 383; GunnsLimited v Marr [2005] VSC 251 at [16]-[18] (Bongiorno J).
The stating of the object and function of particulars in the abstract is, naturally, easier than it might be in individual cases, as Scott LJ observed in Bruce v Odhams Press Ltd:[8]
“The determination of the appeal, which was well argued on both sides, involves a careful consideration of Order XIX, and especially of the true meaning of ‘statement of material facts’ under r. 4 and of ‘particulars’ under r. 6. That Order draws no express line of demarcation between the two, and I am not sure that in some of the judgments in the reported cases the distinction between the two has always been kept as clear as is desirable; but it is beyond question that there is a radical distinction, and none the less so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is a zone of doubt which we call dusk.”
Nevertheless, a clear distinction of substance is to be drawn between the pleadings and particulars, as Scott LJ indicated in Bruce v Odhams Press:[9]
“The function of ‘particulars’ under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim – gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a ‘material fact’ and a ‘particular’ piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.”
[8][1936] 1 KB 697 at 711 (CA).
[9][1936] 1 KB 712-3; and see Rubenstein v Truth and Sportsman Ltd [1960] VR 473 at 476 where Adam J referred to “… a clear infringement of the rule as to stating material facts and not merely a failure to give sufficient particulars of the facts that have been pleaded” and referring to the judgment of Scott LJ in Bruce v Odhams Press Ltd at [1936] 1 KB 697 at 712-3.
Strike out principles
Rule 23.02 of the Rules provides:
“Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading –
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious; or
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court –
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.”
The power to strike out or compel amendment of a pleading is discretionary[10] but, as a rule, it is only when some substantial objection to the pleading complained of or where some real embarrassment is shown that the power will be exercised.[11]
[10]Golding v Wharton Saltworks (1876) 1 QBD 374; Knowles v Roberts (1888) 38 Ch D 263; Bulmer v Oakey Co-op Dairy Co Ltd [1908] St R Qd 216; Darcy v Connolly (1924) 26 WALR 93.
[11]Thornhill v Weeks (No. 2) [1913] 2 Ch 464.
Where there has been a failure to state all material facts, and not merely a failure to give sufficient particulars of material facts, the proper course is to strike out the offending pleading, with liberty to amend, rather than order particulars.[12]
[12]See Bruce v Odhams Press Ltd [1936] 1 KB 697; Rubenstein v Truth and Sportsman Ltd [1960] VR 473; and see Sent v Jetcorp of Australia Pty Ltd (1984) 2 FCR 210.
Questions of law
There are authorities which indicate that the proper approach where a difficult question of law arises in the context of a strike out application under Rule 23.02 is to require the party to raise the question in its own pleading under Rule 13.02(2)(a) and then apply under Rule 47.04 to have the question determined before trial. The basis of this approach, which has a long pedigree in Victoria,[13] was emphasised by Williams J in Healey v Bank of New South Wales as follows:[14]
“Hodges J decided that this was not a matter which he could deal with under Order XIX, r. 27, as it was a debatable matter, and therefore he refused to strike it out. We think he was right. We express no opinion as to whether the matters stated in this paragraph afford a good ground of defence or not. It may be that the plaintiff’s contention may turn out to be right; we express no opinion whatever, but we say that the defence raised is a defence upon which a great deal of argument may be addressed by both sides, and under this rule of this order we are not to decide whether the contention of the one side or the other is correct. It may be that the defence will show that the moneys which the plaintiff seeks to recover have become revested in the Crown. It may be that it is a necessary part of the defence to show that the plaintiff has been prosecuted to conviction for defrauding the Government of New South Wales of these moneys. The proper way to raise this question appears to us to be to raise it as a question of law, and in the reply to state that the paragraphs complained of afford no answer in law to the plaintiff’s claim. The plaintiff could then proceed under Order XXV, r. 2.”
See also Kemsley v Foot.[15]
[13]See Smith v President etc of the Shire of St Arnaud (1886) 8 ALT 53.
[14](1898) 24 VLR 405 at 407.
[15][1951] 2 KB 34 (CA) at 39 (Somervell LJ); an approach that was not doubted by the House of Lords on appeal, see [1952] AC 345.
A further consideration in favour of the application of the Rule 47.04 procedure is that provision may be made for a separate trial of a question which may be one of law, of law and fact or of fact.[16] This is in contrast to the position that where Rule 23.02 is involved, the Court is confined to considering the pleading itself and may not admit evidence in support of such an application.[17] This does not, however, exclude reference to any documents referred to in the pleading.[18]
[16]See Jacobson v Ross [1995] 1 VR 337, particularly at 340 (Brooking J).
[17]See, for example, Little v Law Institute of Victoria (No. 3) [1990] VR 257 (App Div) at 261 (Kaye and Beach JJ).
[18]See Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 (CA).
Notwithstanding this position, I was invited to address two questions of law for the purpose of the present application. The effect of this course in the context of an application under Rule 23.02 was that I should do so in the absence of any factual context due to the constraints in this procedure, to which reference has been made, but with reference to the contents of the subject pleadings.
The two questions of law are whether –
(1)Critical knowledge on the part of the First Defendant, Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (“GSF”) can be inferred on the basis of the knowledge of the Seventh Defendant, Great Southern Managers Australia Limited (Receivers and Managers Appointed) (In Liquidation) by reason of some common directors at various times (“the corporate knowledge question”); and
(2)Section 1022C of the Corporations Act 2001 allows the Court to make an order in favour of a party seeking loss or damage under section 1022B against a third person or whether it is a provision that is merely subsidiary to and cannot operate other than in aid of the cause of action under s 1022B of that Act (“the Corporations Act question”).
The corporate knowledge question
The corporate knowledge, or perhaps consent, question arises in relation to allegations contained in paragraphs 51, 52 and 55 of the Amended Statement of Claim against the Bendigo and Adelaide Bank Parties and the Sixth Defendant. The crucial allegation in paragraph 51 is that “the relevant matters” with respect to allegations of statutory breaches by GSMAL in contravention of the Corporations Act 2001 and the ASIC Act 2001 were “known” to GSF. The particulars to paragraph 51 of the Amended Statement of Claim allege that knowledge is to be imputed to GSF by reason of the “fact” that, at all material times, Messrs Young and Rhodes were members of the board of GSL, GSMAL and GSF, defined as “common control of GSL, GSMAL and GSF”. The proposed Further Amended Statement of Claim deletes the reference to “common control” in the particulars to paragraph 51 and moves it to the particulars to paragraph 20C. It was submitted by the Bendigo and Adelaide Bank Parties that the “fact” alleged in the particulars is not correct as Rhodes was not a director of GSMAL at the date the Product Disclosure Statement (“PDS”) was issued.
Paragraph 52 of the Amended Statement of Claim alleges that by virtue of the “common control of GSL, GSMAL and GSF”, GSF was “knowingly concerned and involved in, alternatively aided, abetted, counselled and procured”, GSMAL’s breaches of the Act. Further, paragraph 55 (of both the Amended and proposed Further Amended Statement of Claim) alleges that by virtue of the “common control of GSMAL and GSF and the fact that GSMAL issued the PDS, GSF”:
(a)“gave consent” within the meaning of sections 1022B(1)(d)(i) and 1021L(1) of the Act;
(b)further or alternatively, “did not withdraw its consent” within the meaning of sections 1022B(1)(d)(ii) and 1021L(1) of the Act,
to each and every statement in the PDS.
It was submitted by the Bendigo and Adelaide Bank Parties that paragraphs 51, 52 and 55 of the Amended Statement of Claim are critical to the Plaintiffs’ claims against GSF and therefore the Plaintiffs’ claims against the Bendigo and Adelaide Bank Parties. The Bendigo and Adelaide Bank Parties submitted that the allegation that GSF “gave consent” or “did not withdraw its consent” is inadequately particularised because reliance on the “common control of GSL, GSMAL and GSF” is not a proper basis for the pleaded allegation and that the claims against the Bendigo and Adelaide Bank Parties should be struck out in their entirety. It was further submitted that the inadequacy of the claims referred to in paragraphs 51, 52 and 55 also means that paragraph 59 is deficient and should be struck out. Submissions in a similar vein were made by the Sixth Defendant in relation to claims made against it.
It was submitted that in order for a person to be “knowingly concerned” in a statutory contravention, the person must have knowledge of the essential facts constituting that contravention. In this respect, Mason ACJ, Wilson, Deane and Dawson JJ said in Yorke v Lucas:[19]
“So far we have dealt only with para (a) of s 75B [of the Trade Practices Act 1974] which refers to involvement of persons who are accessories. The appellants also rely upon para (c) of the same section which extends the definition of a person involved to a person who has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention. There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.”
[19](1985) 158 CLR 661 at 669-70.
It was also submitted that in addition to having knowledge of the essential facts, the person must be positively associated with the contravention in some way, referring to the decision of the Full Federal Court in Sent v Jet Corporation of Australia Pty Ltd.[20] In that case, Smithers J, with whom Sweeney J agreed, said:[21]
“However, Mr Graham for Jet Corporation contended that, from the facts alleged, the inference might properly be drawn that Sent and Forshaw were persons ‘involved’ in the contraventions. He said that the relevant contraventions were constituted by misrepresentations by Petres, Westwind and Dipson designed to induce Jet Corporation to purchase the relevant assets for the consideration stated in the relevant sales agreements. He pointed out that it was in the interests of Sent and Forshaw that Petres, Westwind and Dipson should make a successful sale, and that otherwise they would be unable to meet their liabilities to Sent and Forshaw. He contended that if, as alleged in the Statement of Claim, Sent and Forshaw knew that Petres, Westwind and Dipson, for the purpose of making such a sale, proposed to misrepresent to Jet Corporation the value of the assets and stood silently by while they did so, that conduct would constitute involvement in the contravention. But it is clear that to be involved in a contravention consisting of misleading and deceptive conduct it is necessary not only that the person concerned should know that a party proposed to engage in a contravention but he should in some positive way, be associated therewith. On the face of the pleadings there is nothing to suggest that the sales by Sent and Forshaw to Petres, Westwind, Dipson and Wilson were not entered into perfectly bona fide as a matter of business, save that they knew that Petres, Westwind, Dipson and Wilson could not pay the sums due by them unless they made a sale at a satisfactory price. No doubt questions arise when it is seen that assets are sold to a purchaser who can only pay for them if he sells those assets at a satisfactory price. But where it does not appear that the vendor has any control over, or is in any way a participant in, the negotiations for the resale of the assets or promoting the making of misleading statements by the purchaser to a subsequent potential purchaser, the mere fact that the vendor was aware of impending misconduct of the persons reselling the asset does not raise a case of involvement in that misconduct.
According to the decision of the Full Court of the Federal Court in Yorke v Lucas (1983) 49 ALR 672 a person is not ‘involved’ in a contravention within the meaning of s 75B of the Act unless he assents to or concurs in the conduct which constitutes the contravention. What was in issue in that case was not whether a positive act had been committed by the alleged aider and abettor but whether he had knowledge of the falsity of what he had said to the party who was misled. If such knowledge had been shown his making of the statements would have constituted a sufficient positive act. Here the situation is different. The knowledge is alleged but not the positive act. If it were alleged that Sent and Forshaw performed some act associating themselves with the misleading conduct in which they knew Petres, Westwind and Dipson intended to engage there would be both the knowledge and the participation in the misleading conduct. Involvement would be clear. As was said in Yorke’s case at 681 adopting the decision of Pennycuick VC in Re Maidstone Buildings Provisions Ltd [1971] 1 WLR 1085 the expression ‘party to’ in s 332(1) of the Companies Act ‘participates in’, ‘takes part in’ or ‘concurs in’. And that, it seems to me, involves some positive step of some nature. I do not think it can be said that someone is a party to carrying on a business if he takes no positive steps at all”. But there is in Jet Corporation’s pleading no hint of any positive step which might constitute participation on the part of Sent and Forshaw in the alleged misleading and deceptive conduct of Petres, Westwind and Dipson in connection with their sales to Jet Corporation. Even if it were correct to say that on the facts pleaded satisfaction might have been felt by Sent and Forshaw in the possibility that Petres, Westwind and Dipson might make a sale at a satisfactory price and so be enabled to pay the purchase money due by them to Sent and Forshaw that would not constitute a relevant positive act on the part of the latter.
In the absence of some duty owed by Sent and Forshaw to Jet Corporation, silence and inactivity on the part of Sent and Forshaw, notwithstanding all their knowledge, was non-significant. [emphasis added]
It should also be noted, in the present context, that there is no allegation that GSF had any duty to GSMAL or otherwise which might lead to the characterisation of its silence and inactivity as, in the context of some duty, something in the nature of a “positive” act.
[20](1984) 2 FCR 201.
[21](1984) 2 FCR 201 at 207-8; and see similar comments made by McGregor J at 229-230. It is also noted in the passage quoted that Smithers J made reference to the decision of the Full Court of the Federal Court in Yorke v Lucas (1983) 49 ALR 672, a decision which was affirmed by the High Court in Yorke v Lucas (1985) 15 CLR 661.
On this basis, the Bendigo and Adelaide Bank Parties and the Sixth Defendant submitted that the allegation contained in paragraph 55 of the Amended Statement of Claim was entirely inadequate. It was submitted that even accepting, for the purpose of argument,[22] the Plaintiffs’ allegation that the knowledge of GSMAL is to be imputed to GSF this falls well short of establishing that GSF had “consented” to each and every statement in the PDS. It was submitted, further, that the meaning of the word “consent” in the context of the PDS provisions of the Act includes a requirement of some positive act and that it is insufficient to plead, as the Plaintiffs have done, that “consent” in this context arises or may be established as a result of the “common control of GSMAL and GSF”.
[22]The Bendigo and Adelaide Bank Parties do not accept this allegation – see paragraphs 61 and 62 of the their submissions.
It was submitted by the Bendigo and Adelaide Bank Parties and the Sixth Defendant that the meaning of the word “consent” is informed by the relevant legislative provisions of the Act. Section 1013K of the Act provides, in effect, that a PDS must only include a statement made by a person if the person consented to the statement being included in the PDS in the form and context in which it was included; and that the PDS states that the person gave this consent and that the person has not withdrawn this consent before the date of PDS. Further, s 1021L of the Act provides for offences with respect to the giving of or failing to withdraw consent to inclusion in a defective PDS. Section 1022B of the Act builds on the provisions of s 1021L in that it provides for a civil action for loss or damage where a consent under these provisions was given or not withdrawn in breach of these provisions. On this basis, it was submitted that the giving of “consent” or the failing to withdraw “consent” as pleaded in paragraph 55 of the Further Amended Statement of Claim must be taken, in this legislative context, to be the act of consenting to each and every statement in the PDS in the form and context in which it was included.
Reference was also made by the Bendigo and Adelaide Bank Parties in their submissions to the ASIC Regulatory Guideline[23] (RG55) which sets out the manner in which ASIC administers the requirement for an issuer of a PDS to obtain a consent (which it describes as the “consent requirement”) before citing a person in a PDS. RG55 says that the PDS must include a reference to each consenting person’s consent and should identify the person’s statement specifically and follow the language of the provisions.[24] It was also submitted, in support of this position, that the consent requirements as set out in RG55 were well understood and that this can be demonstrated by reference to the matters set out under the heading “15. Experts Consents” at p 66 of the PDS. Statements which follow the language of the legislative provisions appear in that section; statements relating to the consent given by Pricewaterhouse Coopers, GHD Pty Ltd and Freehills to the inclusion of statements in the PDS.
[23]RG55 superseded ASIC’s “Practice Note 55 – Prospectus – citing and statement of interest” which was in existence well before s 1013K of the Act came into effect in 2002.
[24]See RG55.30. RG55 also states that “Ongoing or general consent … does not meet the consent requirement”. As was submitted, it is clear, in my view, that what is expected by ASIC is a specific, positive consent by the person consenting to the inclusion of the statement in the form and context in which it appears.
The “consent requirement” to which reference has been made is also reflected in other provisions of the Act which relate to the provision of consent for statements which are included in disclosure documents (sub-s 716(2)), bidders’ statements (sub-s 636(3)) and target’s statements (sub-s 638(5)). Additionally, there are a number of other authorities concerning those provisions which illustrate the well accepted and understood concept that “consent” in this type of legislative context involves a specific, positive act.[25]
[25]See, for example, the decisions of the Takeovers Panel in Re Southcorp Ltd (2005) 52 ACSR 580 at [95] and [97]; Re Goodman Fielder Ltd (No 2) (2005) 48 ACSR 353 at [80].
More broadly, reference was made by the Bendigo and Adelaide Bank Parties to the meaning of “consent” in the landlord and tenant context by the English Court of Appeal in Bell v Alfred Franks & Bartlett Co Ltd.[26] The issue of consent arose with respect to the operation of sub-s 23(4) of the Landlord and Tenant Act 1954 (Eng), which was in the following terms:
“(4) Where the tenant is carrying on a business, in all or any part of the property comprised in a tenancy, in breach of a prohibition (however expressed) of use for business purposes which subsists under the terms of the tenancy and extends to the whole of that property, this Part of this Act shall not apply to the tenancy unless the immediate landlord or his predecessor in title has consented to the breach or the immediate landlord has acquiesced therein.”
[26][1980] 1 WLR 340.
In this context, Shaw LJ said:[27]
[27][1980] 1 WLR 340 at 347.
“In the context of the contrast implicit in sub-s (4), the only practical and sensible distinction that can be drawn is that if acquiescence can arise out of passive failure to do anything, consent must involve a positive demonstrative act, something of an affirmative kind. It is not to be implied, because the resort to implication betokens an absence of express affirmation. The only sense in which there can be implied consent is where a consent is demonstrated, not by language but by some positive act other than words which amounts to an affirmation of what is being done and goes beyond mere acquiescence in it. It may lead, in this context, to a false conclusion to speak of ‘implied consent’, which is what the judge said was the proper inference to be drawn from the long history of acquiescence. I would prefer for myself to say ‘consent’ involves something which is of a positive affirmative kind and that is what is required by s 23(4) if the immediate landlord is to be deprived of the opportunity of taking advantage of a breach of a prohibition contained in the terms of the tenancy.”
Similarly, Waller LJ said:[28]
“Acquiescence clearly can cover a great many matters and it seems to me the words of the judge where he says ‘Mr Allen knew of this and must have waived the breach’ was very clear evidence of acquiescence; but acquiescence is something which has to be contrasted with consent and, in my judgment, consent requires some positive action on the part of the landlord or his predecessor, usually no doubt in words, perhaps in writing, possibly by gestures if these were absolutely clear, but, in my view, careful proof of such an intention would be required.”
Similarly, Megaw LJ said:[29]
“I agree with Shaw and Waller LJJ that in the context of s 23(4) of the Act of 1954 whatever consent or acquiescence may mean in different contexts, in that context ‘consent’ is put in plain antithesis to ‘acquiescence’; and that, therefore, if something falls within the description ‘acquiescence’, it is not consent. The difference which is pointed out between the two in this context is that ‘consent’ involves some affirmative acceptance, not merely a standing by and absence of objection. The affirmative acceptance may be in writing, which is the clearest obviously; it may be oral; it may conceivably even be by conduct, such as nodding the head in a specific way in response to an express request for consent. But it must be something more than merely standing by and not objecting.”
Clearly, the decision in this case is directed to the construction of the particular provisions of the 1954 English Landlord and Tenant Act which does, by its own terms, contrast “acquiescence” and “consent”. Nevertheless, the provisions of the Act to which reference has been made indicate, in my view, that the word “consent” is there being used in an active, rather than passive, sense, which connotes a requirement of a specific, positive act and not mere acquiescence or silence. In the context of the provisions of the Australian corporations legislation now being considered, it would not seem necessary or to be expected that any contrast would be drawn between “acquiescence” and “consent”, as occurred in the 1954 English landlord and tenant legislation. Consequently, I accept that the decision of the Court of Appeal in Bell v Alfred Franks & Bartlett Co Ltd is highly persuasive, in general terms, in the present context.
[28][1980] 1 WLR 340 at 349.
[29][1980] 1 WLR 340 at 350.
Although there is no pleading of some active, positive, conduct on the part of GSF as the basis for alleging its consent to each and every statement in the PDS, including each of the misleading PDS statements as alleged, there is the general allegation of “common control of GSMAL and GSF” as a basis of consent. The Plaintiff submitted that the effect of “common control” as pleaded was to establish common knowledge in all relevant respects as between GSMAL and GSF, which was relevant because GSF, in light of this knowledge, did nothing to withdraw such consent or otherwise prevent the publication of or reliance upon the PDS by GSMAL or potential investors. As indicated previously, the basis for this knowledge was said by the Plaintiffs to arise on the basis of common directorships between the companies.
The Bendigo and Adelaide Bank Parties and the Sixth Defendant submitted that the knowledge of one company could not be imputed to the other company in the present circumstances as a general proposition. It was submitted that whether knowledge could be imputed from one company to another through common directorships depends upon the circumstances of the particular case. It was, however, submitted that it was not sufficient merely to allege that by reason of common directorships knowledge of relevant matters is to be imputed to GSF. Further, it was submitted that the Plaintiffs have not pleaded the matters that were known to GSL and GSMAL, that the directors of GSL or GSMAL had a duty to communicate certain matters to GSF, or that GSF had a duty to receive that knowledge or the specific matters knowledge of which should be imputed to GSF. It was submitted that the imputation of knowledge of GSMAL to GSF does not support the conclusion that the act of GSMAL giving consent to the PDS is also to be imputed to GSF. It was submitted that this means, simply, that GSF would be taken to know that GSMAL had consented. In conclusion, it was submitted that as there were no particulars provided of any positive and affirmative acts of GSF constituting the alleged consent and in the absence of proper particulars of such alleged consent by GSF, the Plaintiffs’ claims against the Bendigo and Adelaide Bank Parties should be struck out. Similar submissions were made by the Sixth Defendant with respect to the claims made against it.
The Bendigo and Adelaide Bank Parties and the Sixth Defendant made reference to a number of authorities in support of the position advanced. The position established by the authorities is, in my view, encapsulated in the following passage from the judgment of Gordon J in BHP Billiton Finance Ltd v Federal Commissioner of Taxation:[30]
“The mere fact that corporate boards overlap is insufficient to defeat the presumption of separate existence: Walker v Wimborne (1976) 137 CLR 1 at 3-4; 50 ALJR 446 at 448 (as to the fact that the companies had common directors) and (at CLR 6-7; ALJR 449); see also Thomas Seltzer v IC Optics Ltd, IC Optics SpA 339 F Supp 2d 601 at 610-611 (DNJ 2004); United States v Bestfood (1998) 118 S Ct 1876 at 1888 (1998) (‘It is a well-established principle [of corporate law] that directors and officers holding positions with a parent and its subsidiary can and do “change hats” to represent the 2 corporations separately, despite their common ownership’); Leo v Kerr-McGee, Civ A No 93-1107 (JEI), 1996 WL 265065 (D NJ, 10 May 1996) at 6 (‘A significant degree of overlap between directors and officers of a parent and its subsidiary does not establish an alter ego relationship’). In fact, there is a general presumption ‘that the directors are wearing their “subsidiary hats” and not their “parent hats” when acting for the subsidiary’, so dual office holding alone is not enough to establish liability: Bestfoods (at 1888) (quoting P Blumberg, Law of Corporate Groups: Procedural Problems in the Law of Parent and Subsidiary Corporations (1983) § 1.02.1, 12).”
[30](2009) 72 ATR 746 at 777, paragraph 100.
The Plaintiffs’ responsive submissions to the objections raised to paragraphs 51, 52 and 55 of the Further Amended Statement of Claim were that further amendment or particularisation cannot be provided until discovery is given.
In my opinion, the authorities to which reference has been made, together with the provisions of the Act, indicate quite clearly that any allegation of consent must be of some act of a positive nature and not something in the nature of mere acquiescence. On this basis I am of the opinion that the “mere” fact of common directorships, noting that the position was that the directorships were not entirely common as there were some directors who were directors of one company only, does not establish common knowledge, common control or common liability. It follows that the allegations contained in these paragraphs of the Amended Statement of Claim with respect to the claims made against the Bendigo and Adelaide Bank Parties and also the claims against the Sixth Defendant[31] fail the pleading requirements of alleging all material facts necessary to establish the relevant causes of action.
The Corporations Act question
[31]And see further, below, paragraphs 57 to 59.
The Plaintiffs rely upon s 1022B(2)(d) of the Act to recover loss or damage caused by certain acts in relation to the PDS which are alleged to be in breach of the Act.[32] The Plaintiffs allege that GSF was a “liable person” within the meaning of s 1022B(3)(c) of the Act.[33] The Bendigo and Adelaide Bank Parties submit that the Plaintiffs used this as a springboard to allege that the Plaintiffs are entitled to:[34]
(a)an order under section 1022C declaring their Loan Deed void;
(b)a declaration, including under section 1022C, that they are entitled to prove in the liquidation of GSF for any amounts paid by them to GSF under the Loan Deed; and
(c)an order, including under section 1022C, that the Bendigo and Adelaide Bank Parties repay all amounts paid to it under the Loan Deeds.
The Plaintiffs then seek against the Bendigo and Adelaide Bank Parties an order for relief under s 1022C of the Act.
[32]See Further Amended Statement of Claim, paragraph 57.
[33]See Further Amended Statement of Claim, paragraph 58.
[34]See Further Amended Statement of Claim, paragraph 63.
The Sixth Defendant submitted that the claim against it that it should refund monies paid to it under Loan Deeds purportedly assigned to it could not provide a basis for relief against it under s 1022C. It submitted that s 1022C does not permit the Court to make such an order against GSF (and therefore the Sixth Defendant) because no claim is made against it under s 1022B. In any event, it was said that if a claim under s 1022B was advanced against GSF, s 1022C would only permit a remedy against GSF as a party to that claim. It was submitted that s 1022C does not permit orders against non-parties to such an action, such as the Sixth Defendant. Further, it was submitted that on its natural reading, the section is directed only to orders between the parties to the claim under s 1022B.
Section 1022C provides as follows:
“CORPORATIONS ACT 2001 - SECT 1022C
Additional powers of court to make orders
(1) The court dealing with an action under subsection 1022B(2) may, in addition to awarding loss or damage under that subsection and if it thinks it necessary in order to do justice between the parties:
(a) make an order declaring void a contract entered into by the client referred to in that subsection for or relating to a financial product or a financial service; and
(b) if it makes an order under paragraph (a)--make such other order or orders as it thinks are necessary or desirable because of that order.
(2) Without limiting paragraph (1)(b), the orders that may be made under that paragraph include (but are not limited to) an order for the return of money paid by a person, and/or an order for payment of an amount of interest specified in, or calculated in accordance with, the order.”
It will be noted that sub-s 1022C(1) is prefaced with the words “the court dealing with an action under sub-s 1022B(2)” and, additionally, qualifies this general proposition with the requirement that the court must think it necessary to invoke the provisions of sub-s 1022C(1) “in order to do justice between the parties”. The word “parties” is not defined in the Act, whether in Part 7 or otherwise.
The Bendigo and Adelaide Bank Parties submitted that the Plaintiffs have not alleged that they are a “liable person” for the purposes of sub-s 1022B(2) of the Act. The “parties” to the alleged cause of action which is said to entitle the Plaintiffs to relief under s 1022B of the Act are the Plaintiffs, on the one hand and GSF and/or GSMAL on the other hand.
Further, the Bendigo and Adelaide Bank Parties submitted that the powers granted to the Court under s 1022C are additional to and consequential upon the powers granted to it under s 1022B to award loss and damage, enabling the court to make consequential orders it thinks necessary to do justice between the parties.[35] It was submitted that s 1022C of the Act is not a standalone provision under which relief can be sought independently of s 1022B. It was said that an entitlement to relief under s 1022B is a prerequisite to reliance under s 1022C to seek other ancillary orders under s 1022C. More particularly, it was submitted that the “parties” in favour of or against whom relief may be granted under s 1022C are the “parties” subject to, or who obtain the benefit of, s 1022B of the Act. It was said that the words “between the parties” in s 1022C have to be given meaning[36] and, when read in context of Part 7.9 of the Act, particularly s 1022B, must be interpreted to mean the parties in favour of and against whom an award of loss or damage is sought under s 1022B. It was submitted that there is no basis for a wider construction which would permit the court to exercise its power under s 1022C to make an order in favour of a party seeking loss or damage under s 1022B against any third person.
[35]Australian Securities and Investment Commission v West (2008) 66 ACSR 143 at 185–186 per Gray J; Keynes v Rural Directions Pty Ltd (No 2) (2009) 72 ACSR 264 at 285-286 per Besanko J.
[36]D C Pearce and R Geddes, Statutory Interpretation in Australia, (6th ed), (2006), [2.22] and the cases referred to on p 44-45.
The Plaintiffs submitted that the operation of s 1022C is not so constrained and that, rather, its provisions are designed to provide the court with additional powers to make orders which it thinks necessary in order to do justice between the parties in a broad range of circumstances, including where the orders would affect third parties who are not “liable persons”.
The word “action” is not defined in the Act but, in my opinion, its use in the context of sub-s 1022C(1) of the Act indicates, broadly speaking, a proceeding relying upon the provisions of sub-s 1022B(2). In my view, this is clear from the structure of s 1022B.
Turning to the structure and provisions of s 1022B, it should be noted that sub-s 1022B(1) makes provision for a variety of situations in which s 1022B applies. For example, paragraph 1022B(1)(d) provides that the section applies in a situation where:
“(d) A person:
(i) gives consent to the inclusion of a statement in a Product Disclosure Statement or a Supplementary Product Disclosure Statement as mentioned in sub-s 1021L(1), disregarding paragraph 1021L(1)(c); or
(ii) does not take reasonable steps to withdraw such a statement as mentioned in sub-s 1021L(ii) disregarding sub-paragraphs 1021L(ii)(b), (iii) and (iv);”
The cause of action under s 1022B is provided for in sub-s 1022B(2). For example, following the previous example in sub-s 1022B(1), paragraph 1022B(2)(d) provides:
“In a situation to which this section applies, if a person suffers loss or damage:
…
(d) if paragraph (1)(d) applies – because the consent referred to in that paragraph was given, or was not withdrawn, as the case requires;
…
the person may recover the amount of the loss or damage by action against the, or a, liable person (see subsections (3) to (5)), whether or not that person (or anyone else) has been convicted of an offence in respect of the matter referred to in paragraph … (d) …”
The expression “liable person” is defined in sub-s 1022B(3), as follows:
“For the purposes of sub-s (2), the, or a, liable person is:
…
(c) if paragraph (1)(d) applies – the person who gave the consent;”
As indicated, the Bendigo and Adelaide Bank Parties and the Sixth Defendant, in their submissions, focused upon the express requirement in s 1022C(1) that the additional powers conferred by these provisions only arise in the context of “the court dealing with an action under sub-s 1022B(2)”. Whilst this might appear to be the position, and by reference to the provisions of sub-s 1022B(1) and (2), particularly, it is, in my view, significant that s 1022C makes provision for and empowers the court to make orders to do justice between “the parties”, a term which is not defined; and rather than by reference to the expression “liable person”, which is provided for and, in effect, defined by sub-s 1022B(3). In view of this disparity, it appears that the legislature may have intended s 1022C to have a broader operation and to have been intended to empower courts to make orders binding “third parties” where necessary to do justice arising out of an action under s 1022B. Accordingly, I am not satisfied in the context of the present application that it can be said that the Plaintiffs’ claim against the Bendigo and Adelaide Bank Parties, based as it is on the operation of s 1022C, is untenable and should be struck out. Nevertheless, my opinion in relation to the ambit and operation of s 1022C of the Act must be regarded as preliminary only as it is not appropriate, in my view, that such an important issue should be determined on the basis of relatively brief argument in the course of a pleadings application of this nature. Rather, I am of the opinion that if this question is to be pursued further it should be the subject of an application under Rule 47.04 and argued fully utilizing this preliminary question procedure. In my view this is consistent with the approach in the authorities to which reference has been made.[37] Consequently, I would not be prepared to strike out any part of the Amended Statement of Claim solely because of reliance on the operation of s 1022C of the Act as alleged by the Plaintiffs. Nevertheless, as a result of the deficiencies in the pleading to which reference is made in these reasons, it is appropriate and convenient that the whole Amended Statement of Claim be struck out, rather than adopting a piecemeal approach.
[37]See above, paragraphs 13 and 14.
Further pleadings matters
Paragraph 4(d)
Paragraph 4(d) of the Amended Statement of Claim alleges that GSF, at all material times, participated in GSMAL’s promotion of GSF’s business in product disclosure statements and promotional material disseminated by GSMAL in connection with managed investments schemes in respect of which GSMAL was the responsible entity, including the 2005 Plantation Scheme and the 2006 Plantation Scheme.
The Bendigo and Adelaide Bank Parties submitted that there were no particulars to paragraph 4(d) which set out the acts, facts, matters or circumstances relied upon to support the alleged “promotion” by GSMAL of GSF’s business; the alleged “dissemination” by GSMAL of product disclosure statements and promotional material; and GSF’s alleged “participation” in those matters. There are no particulars to paragraph 4(d) of the Amended Statement of Claim, but there are particulars to the proposed Further Amended Statement of Claim.
The Plaintiffs submitted that the lack of particulars has been remedied in the Further Amended Statement of Claim. Paragraph (ii) of the particulars states that the “promotion” of GSF’s business was contained in pages 7 and 71 of the PDS and that the promotion was effected by the inclusion of statements to the effect that financing of Scheme members’ application fees was available from GSF. In my view, statements to this effect cannot be described as promotional and are more accurately described as informational. In any event, reference in the particulars to statements of this nature, even if regarded as promotional in a general sense, are not, in themselves, indicative of GSF’s participation in such promotion. Rather, GSF’s participation in the promotion was said to be have occurred because of GSF’s knowledge that the PDS was being issued and that GSF and GSMAL had some common directors. As set out above,[38] common directorships do not necessarily establish knowledge. Also, for the reasons set out previously, even assuming knowledge, proof of “participation” requires more than “mere” knowledge, in the same way as does proof of “consent”.[39]
[38]See above, paragraph 32.
[39]See above, paragraphs 17 to 32.
Paragraph 10(e)
Paragraph 10(e) of the Amended and the proposed Amended Statement of Claim includes allegations of a similar type to those found in paragraph 4(d). It states that GSMAL “promoted GSF’s business to investors as a means of financing the application fees required to invest in the managed investment schemes offered by GSMAL”. The particulars to paragraph 10(e) refer to the particulars to paragraph 4(d). As discussed above in relation to paragraph 4(d), statements made by GSMAL in the PDS to the effect that finance for application fees was available from GSF are informational rather than promotion.
Paragraph 25
Paragraph 25 of the Amended Statement of Claim alleges that in reliance on “all the statements made in the PDS” the Plaintiffs and each Group Member took the steps referred to in paragraphs 25(a) to (d). The Bendigo and Adelaide Bank Parties claim that this is embarrassing and that the Plaintiffs should identify the relevant part or parts of the PDS relied upon by each Plaintiff and Group Member. The Plaintiffs submitted that it is not embarrassing to allege that they and the Group Members relied on all the statements in the PDS. In my view, the Plaintiffs should plead the particular parts of the PDS that they rely upon to establish their causes of action. For example, there may be no need for the Plaintiffs to prove that they and the Group Members relied upon statements in the PDS that were correct and uncontroversial. Consequently, I am of the opinion that paragraph 25 is embarrassing as a pleading.
Paragraphs 26(a)-(c)
Paragraph 26(a) of the Amended and Further Amended Statement of Claim alleges that by the date of the issue of the PDS, the woodlots comprising the 1994 and 1995 plantation schemes had been harvested and the harvest yields for those schemes were lower than had been previously forecast and disclosed to investors or potential investors.
In relation to the Amended Statement of Claim, the Bendigo and Adelaide Bank Parties submitted that the particulars to the paragraph post-date the issue of the PDS on 8 March 2005. This is rectified somewhat in the particulars to paragraph 26(a) in the Further Amended Statement of Claim, which sets out the dates of harvesting. The 1994 woodlot schemes are alleged to have been harvested in late 2004 and the 2005 scheme woodlots are alleged to have been harvested from early 2005 until late 2005. The facts relied upon to establish the material fact are derived from alleged documents[40] that seem to post-date the issue of the PDS.
[40]A report by the Australian Agribusiness Group entitled “Great Southern 2008 Future Forestry Investment: Retail Investment Research – April 2008” and a board paper concerning the harvest yield from the Great Southern Plantation s 1994 managed investment scheme provided at a board meeting of Great Southern Limited on 28 April 2005.
In some circumstances, evidence of subsequent factual matters may be used to establish that the existence of a state of facts at an earlier time is more probable than not. However, the particulars to paragraph 26(a) are not only relied upon to establish the actual harvest yields. They are also relied upon to establish knowledge of the actual harvest yields on behalf of GSMAL, by the date of the issue of the PDS (paragraph 27 of the Further Amended Statement of Claim), and GSF, at all material times (paragraph 51). Documents that post-date the issue of the PDS, without anything further, do not support the pleading in paragraph 27 that GSMAL had knowledge of the matters referred to in paragraph 26(a) by the date of the issue of the PDS. Leaving aside the issue of knowledge derived from common directors or common control,[41] the pleading in paragraph 51, that at all material times GSF knew of the matters pleaded in paragraph 26(a), cannot be supported by documents that post-date the PDS. In reaching this view I am assuming that the period from the date of issue of the PDS is a “material time”. Of course, the use of an expression such as this in the context of this pleading only further demonstrates these types of deficiencies in the pleading, and its ambiguity.
[41]See above, paragraphs 17 to 32.
Paragraphs 26(b) and 26(c) suffer from the same problems as paragraph 26(a).
Paragraph 26(d) and Paragraph 26(e)
Paragraph 26(d) states that “[b]y the issue of the PDS GSL and GSMAL were insolvent or were likely to become insolvent.” The particulars to this paragraph refer back to and adopt by reference the particulars to paragraphs 26(a) and 26(b), which do not establish the financial position of GSL or GSMAL at the date of the issue of the PDS. The other particulars to paragraph 26(d) refer to ASX announcements and financial statements and information from 2007 and 2008. These particulars of the financial position in 2007 and 2008 do not establish that GSL or GSMAL, by March 2005, were insolvent or likely to become insolvent.
Paragraph 26(e) states that “[b]y reason of the matters pleaded in subparagraph 22(d), GSMAL was incapable, or likely to become incapable, of continuing its role as responsible entity…”. Given that there is no paragraph 22(d), I assume that it is intended to be a reference to 26(d). As paragraph 26(d) is not a sufficient pleading, paragraph 26(e) suffers the same fate, for the same reasons.
Paragraphs 27 and 28
Paragraph 27 of the Further Amended Statement of Claim states that “[b]y the date of the issue of the PDS, each of the matters pleaded in paragraph 26 was known to GSMAL”. As paragraph 26 is not properly pleaded, paragraph 27 also suffers from deficiencies. This is the case without the need to venture into any corporate knowledge issues that may arise in relation to Great Southern Limited and GSMAL.
Paragraph 28 also relies upon paragraph 26 and, consequently, suffers from the same limitations as to substantive content and timing as does that pleading. Furthermore, paragraph 28, as it is currently pleaded, does not give the Bendigo and Adelaide Bank Parties proper notice of the nature of the case they need to meet. The Plaintiffs plead that the matters in paragraph 26 was information:
· about a “significant risk”;
· that might reasonably be expected to have a “material influence” on the decision of a reasonable person…to acquire the investment; and
· constituting a “material change” to a matter or significant event that affects a matter being a matter that would have been required to be specified in a PDS.
However, the Plaintiffs have not pleaded or particularised the reasons or characteristics that make the information “significant” or “material”, under the relevant provisions of the Act, to establish the material fact in paragraph 28.
Paragraph 31A
Paragraph 31A alleges that each of the matters pleaded in paragraphs 34 to 36 of the Further Amended Statement of Claim was a change or event within the meaning of s 1017B(1A) of the Act which was a material change to a matter or a significant event that affected a matter which was required to be specified in the PDS for the 2005 Scheme and the 2006 Scheme. In my opinion, this pleading fails for the reasons submitted by the Bendigo and Adelaide Bank Parties because it fails to plead the material facts in relation to:
· the matters or significant events relied upon;
· what constitutes the alleged material change;
· the matters affected; and
· on what basis it is alleged the matters would have been required to be specified in a product disclosure statement.
Paragraph 53
There is no positive allegation in the pleading that the Sixth Defendant has taken an assignment of Loan Deeds from GSF. Paragraph 53 asserts that GSF has “purportedly” assigned its rights with respect to the Loan Deeds to the Sixth Defendant. Paragraph 54 asserts “If” GSF assigned its rights under the Loan Deeds. It was submitted by the Sixth Defendant that the Plaintiffs are not entitled to approbate and reprobate. They must positively assert that it took an assignment of the Loan Deeds in order to pursue relief against it. I accept the submissions of the Sixth Defendant that the pleading is embarrassing.
Further claims against the Sixth Defendant
Further claims are made in the Amended Statement of Claim against the Sixth Defendant as, what might be described as, derivation claims based on primary claims against GSF.
The Sixth Defendant submitted that the pleading of these claims is deficient for the reasons set out in its detailed written submissions.[42] Having regard to the position I have reached with respect to other aspects of the pleadings contained in the Amended Statement of Claim, there is little utility in merely repeating these submissions. It is sufficient for present purposes that I indicate that I accept these submissions on the basis that the pleadings to which they refer fail to the extent that they rely on obligations of “common control” between entities, for the reasons already set out.[43] The same applies with respect to allegations of “knowledge” as between entities. I also accept these submissions with respect to other aspects of the “accessorial claims” by the Plaintiffs to which they refer, save that I do not express any final view on the question of law raised with respect to the scope and application of ss 1041H and 1041I of the Act, for the reasons already given.[44]
[42]See Outline of Submissions of Sixth Defendant (13 September 2010), paragraphs 10 to 29.
[43]See above, paragraphs 17 to 32.
[44]See above, paragraph 42.
Conclusions
For the preceding reasons, I am of the opinion that I should accede to the Bendigo and Adelaide Bank Parties’ and the Sixth Defendant’s applications and the orders sought, on the grounds upon which these applications were made; which include a failure to comply with Order 13 of the Rules. Having regard to the nature and extent of the pleading’s deficiencies, I am of the view that it is appropriate that I order that the Amended Statement of Claim be struck out in its entirety, with liberty to the Plaintiffs to file and serve another statement of claim. I reserve the question of costs pending hearing the parties on this issue.
I will hear the parties in relation to the form in which the order should be made and as to the question of costs.
CERTIFICATE
I certify that this and the 28 preceding pages are a true copy of the reasons for Judgment of Croft J of the Supreme Court of Victoria delivered on 20 October 2010.
DATED this twentieth day of October 2010.
Associate
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