Hart Security Australia Pty Ltd v Boucousis

[2016] NSWCA 307

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307

Hearing dates:

26, 27 and 28 October 2015

Decision date:

09 November 2016

Before:

Bathurst CJ at [1];
Beazley P at [2];
Meagher JA at [3]

Decision:

1. Appeal dismissed.
2. Appellant pay the respondents’ costs of the appeal.

Catchwords:

EQUITY – fiduciary relationships – sole company director – where appellant company negotiating contract to provide services to third party – where negotiations at an impasse – where successful negotiation depends on financial support of company’s shareholder – where director pursues opportunity to secure contract on basis which involves share issue to fourth party which changes control of company and dilutes value of existing shareholding interest to nil – where director stands to gain significant personal benefits from alternative proposal – whether respondent director in breach of fiduciary duty by pursuing proposal in circumstances where conflict between personal interest and duty

 

CORPORATIONS – directors – claim against company director for breach of statutory duties under Corporations Act 2001 (Cth) ss 181(1), 182(2), 183(3) – where not established that director not acting in good faith or for what believed to be a proper purpose – where not established that purpose of director to gain an advantage for himself or fourth party

DAMAGES – loss of chance – where proof of loss of valuable commercial opportunity depends on what appellant and other negotiating party would have done – whether proved on balance of probabilities that lost a valuable opportunity by reason of director’s breach of duty

 

EQUITY – accessorial liability – knowing assistance – whether breach of fiduciary duty by company director gave rise to claim against law firm retained to advise in contract negotiations

  EQUITY – remedies – equitable compensation – loss of chance – whether company alleging breach of fiduciary duty proved that but for alleged breach would have retained a valuable opportunity

Legislation Cited:

Corporate Law Economic Reform Program Bill 1998 (Cth)
Corporations Act 2001 (Cth), ss 180, 181, 182, 183, 232
Family Law Act 1975 (Cth)
Testator’s Family Maintenance Act 1912 (Tas)
Uniform Civil Procedure Rules 2005, r 29.10

Cases Cited:

Allied Maples Group Ltd v Simmons & Simmons (1995) 1 WLR 1602
Badenach v Calvert [2016] HCA 18; 90 ALJR 610
Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barnes v Addy (1874) LR 9 Ch App 244
Boardman v Phipps [1967] 2 AC 46
Brunninghausen v Glavanics (1999) 46 NSWLR 538
Castel Electronics Pty Ltd v Toshiba Singapore Pty Ltd (2011) 192 FCR 445; [2011] FCAFC 55
Chan v Zacharia (1984) 154 CLR 178
Chew v The Queen (1992) 173 CLR 626
Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524
Daniels v Anderson (1995) 37 NSWLR 438
Di Sisto v Skyworld Developments Pty Ltd [2006] NSWSC 1182; 13 BPR 24,627
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Gambotto v WCP Ltd (1995) 182 CLR 432
Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483
Hart Security Australia Pty Ltd v Boucousis [2014] NSWSC 1654
Heenan v Di Sisto [2008] NSWCA 25; 13 BPR 25,213
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Howard v Federal Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21;
Howard Smith Ltd v Ampol Petroleum Limited [1974] AC 821
In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; 101 ACSR 233
Kirwan v Cresvale Far East Ltd [2002] NSWCA 395; 44 ACSR 21
Mills v Mills (1938) 60 CLR 150
O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Peters v The Queen (1998) 192 CLR 493
Phelan v Middle States Oil Corporation (1955) 220 F 2d 593
Pilmer v Duke Group Limited (2001) 207 CLR 165; [2001] HCA 31
Queensland Mines Ltd v Hudson (1978) 52 ALJR 399
R v Byrnes (1995)183 CLR 501
Re HIH Insurance Ltd; ASIC v Adler [2002] NSWSC 171; (2002) 168 FLR 253
Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134
Schacht v Thompson (No 3) [2013] NSWSC 316
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Thompson v Schacht [2014] NSWCA 247; 53 Fam LR 133
Warman International Ltd v Dwyer (1995) 182 CLR 544
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285

Texts Cited:

Ford, Austin and Ramsay’s Principles of Corporations Law (16th ed 2015, Lexis Nexis Butterworths)

Category:

Principal judgment

Parties:

Hart Security Australia Pty Ltd (Appellant)
Christian Patrick Boucousis (First respondent)
Juan Jose Martinez and Sixty One Ors t/as HWL

Representation:

Counsel:

 

B Walker SC with S Duggan (Appellant)
C Harris SC with R A Parsons (First Respondent)
T M Faulkner (Second to Sixty Third Respondents)

 

Solicitors:

  Bartier Perry (Appellant)
CLS Legal (First Respondent)
Gilchrist Connell (Second to Sixty Third Respondents)
Ebsworth Lawyers (Second to Sixty Third Respondents)

File Number(s):

2014/370491

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2014] NSWSC 1654

Date of Decision:

21 November 2015

Before:

Darke J

File Number(s):

2013/24851

HEADNOTE

[This headnote should not be read as part of the judgment]

In late 2007 the appellant, Hart Security Australia (HSA), became interested in an opportunity to enter into a contract to provide security services to Northern Territory Airports Pty Ltd (NTA). The first respondent, Mr Boucousis, was the sole director of HSA and the second to sixty third respondents were partners of the law firm HWL Ebsworth Lawyers (HWL), retained to advise HSA in the contract negotiations.

As the negotiations proceeded, it became apparent that NTA was only prepared to enter into the contract with HSA if a bank guarantee in the sum of at least $1 million was provided. By January 2009, the indirect shareholding in HSA was held as to 50% by Hart Cyprus and as to 50% by Mr Boucousis and Hart Cyprus had to that time provided any funding required by HSA. Hart Cyprus did not agree with the requirement for the bank guarantee and as a result negotiations reached an impasse.

Without the knowledge of Hart Cyprus a proposal was formulated between HSA, Mr Boucousis, an entity known as the ATMAAC group, and Investec (ATMAAC’s existing financier). Under that proposal, a newly incorporated entity, ATMAAC Aviation, would by a share issue become the holding company of HSA which would then enter into the NTA contract, Investec providing the bank guarantee to enable it to do so. Mr Boucousis would receive a shareholding and directorship in ATMAAC Aviation and employment in the ATMAAC group. Neither Hart Cyprus nor the directors of the existing direct shareholder in HSA, CTG, became aware of that proposal. Negotiations proceeded. Ultimately however neither HSA nor the ATMAAC group entered into a contract with NTA.

HSA brought proceedings against Mr Boucousis for breaches of his fiduciary and statutory duties (ss 181(1), 182(1) and 183(1) of the Corporations Act 2001 (Cth)). HSA also alleged that HWL knowingly assisted the breaches of fiduciary duty and was involved in the statutory contraventions. It claimed by way of compensation and damages the value of the lost opportunity to secure the NTA contract.

HSA’s primary case was that Mr Boucousis pursued the ATMAAC proposal with the aim of benefiting ATMAAC and himself at the expense of HSA, that this was a dishonest and fraudulent breach of his fiduciary and statutory duties and that HWL knowingly assisted in those breaches. Its alternative case was that in pursuing the ATMAAC proposal, Mr Boucousis was in a position where there was an actual or potential conflict between his personal interests and duties to the company.

The primary judge rejected HSA’s primary case because he was not persuaded that Mr Boucousis had pursued the ATMAAC proposal with the purpose or motive of gaining an advantage for himself. His Honour held that in doing so Mr Boucousis believed he was acting in the best interests of HSA by securing the NTA contract. The primary judge also rejected HSA’s alternative case, concluding that there was no actual or real possibility of conflict between Mr Boucousis’ personal interest and duty in doing so. The primary judge also rejected the claims against HWL on the basis there was no dishonest and fraudulent design in which it assisted and no statutory contravention in which it was involved.

The issues in the appeal were:

Whether when addressing HSA’s primary case, the primary judge erred in making findings as to Mr Boucousis’ purpose and motive in pursuing the ATMAAC proposal;

Whether when addressing HSA’s alternative case, the primary judge erred in finding Mr Boucousis was not in a position where there was a conflict or a real possibility of conflict between his personal interest and duty;

Whether when addressing HSA’s primary and alternative cases, the primary judge erred in finding that there was no breach of any statutory provision;

If the primary judge erred in the respect raised by issue ii, whether he also erred in dismissing the accessorial liability claims against HWL;

Whether the primary judge erred in finding that no alleged breach of fiduciary or statutory duty caused the appellant’s loss of the opportunity to enter into the NTA contract.

The Court (Meagher JA, Bathurst CJ and Beazley P agreeing) held, dismissing the appeal:

In relation to (i):

HSA’s primary case was that in pursuing the ATMAAC proposal, Mr Boucousis sought to gain a benefit for himself and an advantage for ATMAAC and that his doing so was dishonest and fraudulent. On that basis a claim for knowing assistance was made against HWL. It was also said that by pursuing that proposal, Mr Boucousis breached his obligation to act in good faith and for a proper purpose in contravention of s 181(1); and that he improperly used his position as a director of HSA, and information obtained in that capacity, to gain an advantage for himself contrary to ss 182(1) and 183(1). The making of these allegations made it necessary for the primary judge to consider Mr Boucousis’ purpose and motivation in pursuing the ATMAAC proposal: [76]-[83], [85], [87].

In relation to (ii):

The pursuit by a fiduciary, in this case a director, of personal gain in circumstances where there is actual or substantial possibility of conflict constitutes a breach of their fiduciary obligation irrespective of the actual motive of the fiduciary and, in the case of a director, is to be assessed without reference to their subjective view as to what is in the best interests of the company: [109].

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Warman International Ltd v Dwyer (1995) 182 CLR 544 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134; Boardman v Phipps [1967] 2 AC 46 applied.

The ATMAAC proposal involved significant personal benefits to Mr Boucousis and his pursuit of that proposal in the face of the conflict between his interest and duties was a breach of his fiduciary obligation: [120]-[123].

Where a sole director proposes to issue shares in circumstances where that will result in a change of control in the company, and the dilution of its existing shareholder’s interest to nil, the matters that the director might reasonably have to consider in the discharge of his duty include how that share issue will affect the existing shareholder and whether it should be made aware of the proposed share issue so as to be given the opportunity to propose some other means of providing funds or other financial support: [113], [121].

Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165; [2001] HCA 31 applied.

In relation to (iii):

In rejecting HSA’s primary case his Honour found that in pursuing the ATMAAC proposal Mr Boucousis was acting “genuinely and in the perceived best interests of the company” and that his purpose in pursuing that proposal was to secure the NTA contract. Neither of those findings was challenged. In those circumstances he did not err in holding that there was no breach of s 181(1): [75], [125].

In rejecting HSA’s primary case, the primary judge also held that it was not established that Mr Boucousis either used his position as a director, or used any information he obtained by virtue of being a director, improperly in order to gain an advantage for himself or for ATMAAC. As that finding was not challenged the primary judge did not err in finding that there had been no breach of ss 182(1) and 183(1): [79]-[80], [124].

In relation to (iv):

HSA’s alternative case did not involve any allegation of dishonesty or fraudulent design or of any failure to act in the best interests of the company and for a proper purpose. In the circumstances there could be no claim for knowing assistance in a breach of fiduciary duty or of involvement in any statutory contraventions, in the latter case because there were no such contraventions: [124]-[125], [127]-[128].

In relation to (v):

Where a claim is made for damages or compensation for the loss of a valuable opportunity, that opportunity being to negotiate a contract with a third party, it must be established on the balance of probabilities that the opportunity for further negotiation included a real or substantial, rather than speculative, prospect of agreement. That is so notwithstanding that in order to make such a finding it may be necessary to consider what that third party may have done in the relevant past hypothetical events: [131]-[151].

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Badenach v Calvert [2016] HCA 18; 90 ALJR 610 applied;

Daniels v Anderson (1995) 37 NSWLR 438; Castel Electronics Pty Ltd v Toshiba Singapore Pty Ltd (2011) 192 FR 445; [2011] FCAFC 55; Heenan v Di Sisto [2008] NSWCA 25; 13 BPR 25,213; Thompson v Schacht [2014] NSWCA 247; 53 Fam LR 133 considered.

The primary judge’s finding that Hart Cyprus (and therefore HSA) would not have agreed to provide a $1 million bank guarantee meant that HSA could not establish that it had lost an opportunity to enter into a contract with NTA if that contract included a requirement for a $1 million guarantee. That finding was not challenged. It remained necessary to consider whether the opportunity for further negotiation included a real prospect that NTA might not insist on that requirement. The primary judge did so, concluding that he was not satisfied that NTA “might have been prepared to relax its bank guarantee requirement”. The primary judge did not err in making that finding. It followed that HSA had not established that the opportunity for further negotiation included any real or substantial prospect of agreement. It also followed that HSA had not proved that it had “lost” a valuable opportunity to enter into a contract with NTA by reason of any of the conduct complained of: [154]-[170].

Judgment

1. BATHURST CJ: I have had the benefit of reading Meagher JA’s reasons in draft. I agree with the orders that he proposes and with his reasons.

2. BEAZLEY P: I have had the advantage of reading in draft Meagher JA’s reasons in this matter. I agree with his Honour’s reasons and proposed orders.

3. MEAGHER JA:

Outline

In late 2007 the appellant (HSA) became interested in an opportunity to enter into a contract to provide security services to Northern Territory Airports Pty Ltd (NTA) with respect to the Darwin and Alice Springs airports. Its pursuit of that opportunity continued until late February 2009 at which point it became apparent that NTA was not prepared to award that contract to HSA. The first respondent, Mr Boucousis, was a director of HSA from its incorporation until 26 February 2009. The second to sixty third respondents (HWL) were the partners of the law firm, HWL Ebsworth Lawyers, who were retained to advise HSA with respect to those negotiations.

4. At all relevant times HSA was a wholly owned subsidiary of Christian Thomas Group Pty Ltd (CTG). After allowing for beneficial interests, the shares in HSA were indirectly held and controlled as to 62.5% by Hart Security Holdings Pty Ltd (Hart Cyprus), a company registered in Cyprus, and as to 37.5% by Boucousis Nominees Pty Limited (Boucousis Nominees), as trustee of the Christian Boucousis Family Trust. As a result of an agreement made in December 2008 those indirectly held beneficial interests in HSA were equalised.

5. In the proceedings at first instance, HSA alleged that in breach of his fiduciary and statutory duties (specifically those in ss 181(1), 182(1) and 183(1) of the Corporations Act 2001 (Cth)), Mr Boucousis sought to gain benefits for himself by pursuing an arrangement under which the NTA contract would be obtained by HSA, but as a wholly owned (or substantially wholly owned) subsidiary of ATMAAC International Pty Ltd (ATMAAC) (a military acronym for “achieve the mission at all costs”), in circumstances where Mr Boucousis was to become a director of that company, initially hold a 19% shareholding interest in the ATMAAC group, and be employed by a company in that group.

6. Whilst neither ATMAAC nor HSA obtained the NTA contract, HSA’s case at trial was that the pursuit of that arrangement, and in particular the introduction in early February 2009 of a proposal whereby ATMAAC would be issued shares in HSA, was a causal factor in HSA’s loss of the opportunity to enter into a contract with NTA.

7. HSA claimed compensation from Mr Boucousis for the loss of that opportunity by reason of his breaches of fiduciary and statutory duty, and from HWL for knowingly assisting his alleged breaches of fiduciary duty (which for this purpose were said to have been dishonest as well as fraudulent), and for being knowingly concerned in the alleged statutory contraventions. The primary judge (Darke J) dismissed each of those claims: Hart Security Australia Pty Ltd v Boucousis & Ors [2014] NSWSC 1654.

8. By its notice of appeal HSA challenges the primary judge’s conclusions that there was no breach of fiduciary duty (ground 1) or of ss 181, 182 or 183 of the Corporations Act (ground 2); and maintains that he also erred in not holding that HWL was liable for knowing assistance or participation in any such breaches (grounds 6, 7, 8 and 9). The primary judge did not address questions related to accessorial liability because of his conclusions as to the absence of breach. HSA also contends that the primary judge erred in holding that HSA did not lose the opportunity to enter into the NTA contract by reason of any breach of duty of Mr Boucousis (grounds 3, 4 and 5); and in calculating the damages to which it would have been entitled (ground 10). By their substantially identical notices of contention, HWL and Mr Boucousis support the primary judge’s conclusions concerning breach of fiduciary and statutory duties (grounds 1 and 2) and causation (ground 3).

9. The factual context in which these issues arise is complex and summarised in some detail by the primary judge: Judgment [13]-[116]. Those facts as recited and found by his Honour are, with minor exceptions, not controversial. As he records at Judgment [12], they are drawn from contemporaneous written communications and, to a much lesser extent, notes of meetings or conversations.

10. Before returning to the issues raised by the appeal, I propose first to introduce the relevant parties and participants. I will then summarise, although not in as much detail as the primary judge, the circumstances which resulted in the making of HSA’s claim.

The parties and participants

11. Mr Boucousis was the only person formally appointed as a director of HSA. The company’s general manager and company secretary was Ms Stone. HSA engaged the law firm HWL to assist in its pursuit of the opportunity to secure the NTA contract. The partners of that firm engaged in providing advice from time to time included Mr Hummel and Mr Burke.

12. The directors of Hart Cyprus included Lord Westbury and Mr Madden, the chief financial officer of the Hart Group. Mr Heycock was Chief Operations Officer. The 1000 issued shares in HSA were held by CTG and the 2500 issued shares in CTG were held by CTG Hart Holdings Ltd (CTG Holdings). Before December 2008 the legal interests in shares in CTG Holdings were held as to 49.9% by Hart Cyprus and as to 50.1% by Boucousis Nominees. Boucousis Nominees held some of those shares beneficially for Hart Cyprus with the result that the beneficial interest was held as to 62.5% by Hart Cyprus and 37.5% by Boucousis Nominees: Judgment [5]. The directors of CTG and CTG Holdings were Lord Westbury, Mr Madden and Mr Boucousis. Accordingly had Mr Boucousis as the sole director of HSA wished to obtain the informed consent of CTG to his acting in any position of conflict of interest and duty it would have been necessary to make disclosure to Lord Westbury and Mr Madden.

11. ATMAAC’s business included providing labour in the security services sector. It was a subsidiary of AMC Security Services Pty Ltd in which Investec Bank (Australia) Limited (Investec) held an interest. The Chief Executive Officer of ATMAAC was Mr Kelly. Mr Landis of the firm of solicitors Middletons, acted for ATMAAC in its negotiations concerning the NTA contract.

12. NTA was the holding company of the companies operating the Darwin and Alice Springs airports. It was in turn a wholly owned subsidiary of Airport Development Group Pty Ltd (ADG). The major shareholders in ADG were superannuation funds. The Chief Executive Officer of ADG and NTA was Mr Kew. Mr Ainslie was the Operations Director of NTA. Ms Pollard was the in-house legal counsel for both companies. The solicitors advising ADG and NTA were Cridlands MB Lawyers.

Factual background

15. In March 2008 HSA and NTA signed a non-binding letter of intent directed to the finalisation of a commercial agreement between them for the provision by HSA of security services at the Darwin and Alice Springs airports: Judgment [16]. Negotiations for that contract continued throughout 2008. During those negotiations NTA raised questions as to the financial substance and backing of HSA: Judgment [20]-[21]. As the negotiations proceeded Hart Cyprus became impatient with the delays in finalising the contract. During the same period Mr Boucousis remained confident that a contract could be secured. On 29 October 2008, Mr Heycock advised Mr Boucousis that the Hart Cyprus board was “not confident in the delivery of this contract and as Hart has invested significantly in Australia a return is expected”: Judgment [27].

16. In early December 2008 there were meetings in Cyprus between Lord Westbury, Mr Madden and Mr Boucousis. There was discussion as to the possibility of Mr Boucousis finding someone to acquire Hart Cyprus’ interest in HSA. The primary judge accepted that in this context Mr Boucousis mentioned a meeting with ATMAAC, a company that Investec had recently “bought into”, and that Investec might be interested in making an investment in HSA: Judgment [34]. His Honour also found that before these meetings in Cyprus, Mr Boucousis had discussed with Mr Kelly the possibility of ATMAAC providing HSA with security services for the NTA contract and that Mr Boucousis may have informed Mr Kelly that he, Mr Boucousis, was proposing to offer to acquire Hart Cyprus’s interest in HSA: Judgment [32]-[33].

17. On 3 December 2008 in the course of those discussions, Mr Boucousis sent Mr Kelly of ATMAAC the following email: Judgment [35]:

We have reached some consensus here and I will be given the opportunity to make an offer on the total acquisition of Hart Australia. I will have a draft offer document tomorrow afternoon your time.

Attached is documentation to bring you up to speed on Hart Australia and the opportunity. This includes

1.   Signed copy of the workplan indicating adoption of primary contract

2.   Consultancy agreement (this should've been signed today, however there is a spelling error. Will be signed by week's end)

3.   The final board presentation which was approved

4.   10 Year earnings projection based on 9.58% margin on total contract plus six percent margin on manpower.

5.   My Resignation Letter

Broadly speaking we are looking at the following:

Settlement by 15 February

I will contribute circa $1 million USD to the deal

Any other party needs to contribute $1.7 million for what is equivalent to 50%

Yes the whole lot will be amalgamated into ATMAAC, it will work no other way, however for the purpose of valuing my equity position within the group I would like to us[e] the baseline of 50% of Hart Australia's value at time of NTAPL contract.

That is broad brush. I will certainly provide more info, however the attached will begin the process of increasing awareness of your team. I also have copies of P&L's for the entities I will be surrendering my equity in so you can all see my "skin in the game" as it were.

18. The consultancy agreement was an agreement between HSA and NTA and its operating subsidiaries for the provision of consultancy services in relation to the security operations at their airports: Judgment [31]. The resignation letter was Mr Boucousis’ letter of resignation dated 30 October 2008 addressed to Hart Cyprus: Judgment [28]-[29]. By that letter Mr Boucousis tendered his resignation as managing director of HSA effective on 1 March 2009 because of “ongoing and recent correspondence indicating dissatisfaction with the performance of the Australian business”.

19. The primary judge considered that to this point “Mr Boucousis was proceeding on the basis that he would continue to pursue the [NTA] opportunity on behalf of HSA, and at the same time, would seek an investor to acquire the interests” of Hart Cyprus: Judgment [141].

20. On 4 December 2008 two documents were executed by Lord Westbury and Messrs Madden and Boucousis. The first, headed “Agreement”, was between CTG Holdings, Hart Cyprus, Mr Boucousis and Boucousis Nominees. It provided that “effective from the date of this agreement”, Mr Boucousis would increase his shareholding in CTG to 50% and relinquish his 37.5% beneficial shareholding in CTG Holdings. Effective as at the same date Hart Cyprus agreed to convert the “intercompany balances” (presumably loans from companies in the Hart group to CTG or HSA) into share capital. (HSA’s balance sheet as at January 2009 disclosed a loan from Hart Cyprus to HSA of $783,107 and loans from HSA to CTG of $144,260 and to CTG Holdings of $17,657. An adjusted version of that balance sheet did not include those with company balances or suggest that the intercompany debt had been converted into share capital.)

21. The Agreement also provided that should the NTA contract be secured “by any of the Hart group companies”, Mr Boucousis would rescind his resignation and sign a two year contract of employment with HSA. In the event that contract was not secured, it was agreed that Hart Cyprus would review its investment strategy with respect to CTG and HSA to minimise any potential financial loss as a consequence of the non-award of that contract. It was also agreed that Mr Boucousis would be granted an option exercisable on or before 1 March 2009 to acquire from CTG Holdings its remaining 50% shareholding in CTG: Judgment [38].

22. The second document was that option headed “Agreement (Option)”. It provided for the acquisition by Mr Boucousis of up to 50% of the remaining shareholding in CTG for US$30,000 per 1% (equivalent to US$1.5 million for 50%). That option was exercisable on or before 1 March 2009 and the consideration payable on or before 15 March 2009. The agreement also provided for the payment by Mr Boucousis of interest on the intercompany balances as at 30 September 2008 from that date until receipt of monies upon the exercise of the option: Judgment [39].

23. The first agreement also provided that with the exception of an advance of US$50,000, no further funding would be made available by Hart Cyprus to CTG or HSA unless the terms of that funding were agreed between Hart Cyprus and Mr Boucousis. In that event the funding was to be provided in proportion to their respective (indirect) shareholdings in CTG. It was also acknowledged by that agreement that Mr Boucousis would “approach financial investors in order to secure such additional working and investment capital as necessary, which may lead to the pro-rated dilution of both [Hart Cyprus] and [him] with respect to their respective share-holdings in CTG”: Judgment [38].

24. In the weeks that followed, Mr Boucousis had discussions with Investec in relation to its acquiring an interest in HSA. On 19 December 2008 he provided Mr Madden with copies of spreadsheets prepared by Investec for the purpose of valuing HSA. On 24 December 2008 Mr Boucousis advised Lord Westbury and Messrs Sundberg and Madden of the outcome of his discussions with Investec. That email concluded with a recommendation that Hart Cyprus take an “offer of $1.2 million USD”: Judgment [42].

25. Discussions continued concerning the price at which Hart Cyprus might sell its 50% interest in CTG. In an email dated 7 January 2009 Mr Madden stated that it was “incumbent” upon Mr Boucousis to help his “backers arrive at the amount under the option” and suggested a cash payment to Hart Cyprus of US$1.2m with it retaining a 10% interest. Mr Boucousis responded with a suggested sale of the 50% interest for US$1.5m payable over 24 months, described as an “earn out” with an upfront payment. Mr Madden advised on 8 January 2009 that Hart Cyprus was not interested in an “earn out”.

26. On 23 January 2009 Mr Boucousis received an email from Mr Ainslie of NTA, which enclosed an internal email from Ms Pollard and a copy of a draft of the NTA contract (described as a “Management of Security Services and Consultancy Agreement”). Those emails referred to the need on the part of NTA to understand HSA’s relationship with ATMAAC “given [that relationship] is instrumental at this stage in executing a successful contractual arrangement and for us to assess risk to NT Airports”: Judgment [47]-[48]. Mr Boucousis’ evidence was that to this point in time he had told Mr Ainslie that he was in discussion with ATMAAC about its being a sub-contractor or potentially acquiring a 50% stake in HSA: Judgment [144].

27. When forwarding these emails to Hart Cyprus with the draft NTA contract, Mr Boucousis intentionally altered them so as to delete the parts referring to NTA’s inquiry about the relationship between HSA and ATMAAC: Judgment [49]-[50]. A short time later, on 5 February, Mr Boucousis emailed Mr Madden referring to the fact that the NTA contract had been reviewed by ATMAAC’s lawyers and noting that NTA was requiring “full transparency… including any offers/interaction with ATMAAC”: Judgment [146].

28. The draft contract named the service provider as HSA and was to be for a term of three years from 1 April 2009. It included a requirement for a bank guarantee for an unspecified amount (cl 21), as well as guarantees of the performance of the contract to be given by Mr Boucousis and Hart Cyprus (cl 20). On 23 January 2009 Mr Boucousis advised Mr Madden that the bank guarantee was to be for $5 million and that the contract was “slated” to be signed on 20 February 2009: Judgment [52]-[53]. In his email of 26 January 2009 Mr Boucousis, referring to the $5 million performance guarantee, noted that the “scuttlebutt is given Hart has no track record, this would provide ‘comfort’ to the NTAPL team”: Judgment [53].

29. Mr Ainslie explained NTA’s position in relation to the requirement for the bank guarantee in an email dated 28 January 2009: Judgment [54]. The guarantee was necessary to give NTA comfort that HSA could perform and carry out its obligations under the agreement. That email also advised that the contract was to be presented to the NTA board on 19 February 2009, and that the board paper for that meeting had to be submitted on or before 9 February 2009.

30. Hart Cyprus objected to the requirement for the bank guarantee. Mr Madden’s email to Mr Boucousis received on 30 January 2009 concluded: Judgment [58]

…

we have no option than to oppose the inclusion of the bank guarantee clause in its' entirety.

Whilst we have had every desire and intention to finalise the contractual arrangement with NTAPL and in recognition of your tireless efforts, we were somewhat shocked and disappointed by the inclusion of such a requirement - given the 15 months relationship with NTAPL, the provision of management services to the client - and the very sudden "unannounced" appearance of such an onerous condition.

31. At this point, the end of January 2009, Mr Boucousis sought advice from Mr Burke and Mr Hummel of HWL concerning his duty as a director, in circumstances where he maintained that there would be issues as to HSA’s solvency if it could not secure the NTA contract. That request was referred to Mr Webeck. Mr Hummel’s email to Mr Webeck of 30 January 2009 recorded HWL’s instructions:

[ATMAAC] offered Hart $500K to assign the NTAPL contract to it. Head office advised Hart to refuse this offer on the grounds that it assisted a competitor.

Our instructions are that, without the NTAPL contract, Hart will be or will become insolvent. We recommended that Hart receive expert accounting advice to assess its insolvency so as to avoid trading whilst insolvent.

Christian agreed with our suggestion that, in the absence of the NTAPL contract, Hart is in a state of near insolvency. Accordingly, Christian sought a brief advice from HWL Ebsworth to be issued on Monday as to his duties in a situation of near insolvency, and in particular, whether to have regard to the interests of employees and creditors of Hart. A commercial suggestion was made that Christian could inform head office that they should either guarantee all liabilities of Hart or agree that Hart sell the contract for $500K. We are instructed that $500K would meet all liabilities of Hart.

32. Following that conference with Mr Burke of HWL on 30 January, Mr Boucousis sent an email to Mr Madden, which included the following: Judgment [60]

...

I have been advised by our (Hart) lawyers to outline the issues below, all of which were discussed this evening. All information is predicated on the non-award of the NTAPL contract to Hart Security Australia and are statements of fact.

I was advised by Stuart Ainslie that the basis of the bank guarantee requirement was as a result of a balance sheet comparison between HSA and the three other aviation security companies, ISS, Chubb and SNP during the due diligence process.

Without this contract we will be unable to remain solvent beyond April, as you are aware I have knowledge of this and I have a legal obligation to declare the situation to ASIC (Company's House) in due course (and prior to insolvency).

...

Additionally I have been seeking other options for funding/offers or a reduction in the capital related obligations required of Hart by NTAPL.

As discussed we currently have no letter of support from HSL.

Stuart Ainslie and Kew confirmed today that in Hart's case as an offshore company that the Bank Guarantee is essential and as such with no bank guarantee there can be no contract.

Stuart Ainslie indicated that the bank guarantee would only apply to an offshore entity and probably not an Australian entity (although other guarantees will be required). I have approached ATMAAC and Investec again to commit on the offer of $1.2 million USD and "refunding" the $5 million Bank Guarantee to ensure contract award. Mark Joffa, Investec, advised that without a signed contract it cannot get approval from the credit committee.

Investec confirmed its earlier offer of $500,000 AUD or an earn out of $750,000 AUD to acquire the contract and bring the contract to a close, the transaction needs to occur by Friday 7th Feb (NTAPL deadline for the board submission).

The fact is that NTAPL requires a strong balance sheet to execute the contract and other investors are baulking at the Bank Guarantee and subsequently will not invest.

This is the best I have been able to do (to date) to resolve the situation. ...

My formal recommendation is that Hart Security Australia accept this offer, HSL accept the $500,000 and retains Paul and Sallie and their business (Timor, NHK, IFK, Media etc).

Could you please record your position on this issue and how you wish to proceed prior to 01 February 09? ...

Based on our discussions tonight you indicated an intent to discuss the contract with Ian Kew which I will arrange. As this conversation is beyond the current deadline could you please provide a written letter of comfort or support underwriting all liabilities, including outstanding tax, superannuation, leave entitlements and creditors to cover the eventually [sic] that NTAPL doesn't award the contract to any of the abovementioned parties, prior to 2nd Feb.

As there is currently no legal instrument in place assuring solvency, I have no option but to execute an agreement with ATMAAC and Investec to guarantee the solvency of the company. Can you please provide this ASAP to ensure we can "buy time".

33. The reference to no current “legal instrument in place assuring solvency” was to any letter of support from Hart Cyprus to CTG and HSA. At this time there appears to have been a difference between Mr Boucousis and Hart Cyprus as to whether earlier letters of support provided on 8 September 2008 and 20 November 2008 had expired: Judgment [45].

34. Mr Madden replied on 31 January 2009 asking Mr Boucousis to request Investec to provide a letter formally outlining its position with respect to the NTA contract: Judgment [62]. In response, on 4 February 2009 Mr Boucousis sent an email to Mr Madden which attached an offer from ATMAAC for the purchase of CTG Holding’s 50% shareholding in CTG for A$500,000 noting that it would enter into “separate discussions” with Boucousis Nominees in relation to its 50% shareholding in CTG: Judgment [67]. The assumptions on which that offer was based included the satisfactory execution of the NTA contract, and a three year employment contract with Mr Boucousis.

35. On 5 February 2009 Ms Pollard of NTA sent an email to Mr Boucousis concerning the bank guarantee. She indicated that NTA required an unconditional and irrevocable bank guarantee in an amount of $1 million and that Mr Boucousis and Hart Cyprus execute the contract as guarantors: Judgment [70].

36. On the same day Mr Madden sent two emails to Mr Boucousis. In one he advised that the ATMAAC offer was “fundamentally different from what we were led to believe from our telecoms” and that as such Hart Cyprus had “no interest” in that offer. He also referred to several matters as making it impossible for Hart Cyprus to “negotiate” the contract in this manner: Judgment [68]. In his response to those matters, Mr Boucousis indicated in relation to the guarantee that the intent was it be for $1 million “ratcheted down over 5 years”: Judgment [68]-[69].

37. In his second email of 5 February Mr Madden proposed a possible compromise in relation to the requirement for the bank guarantee. He indicated Hart Cyprus was prepared to move forward with a guarantee capped at $1 million valid for a period of 12 months from commencement of services on the basis that HSA receive an advance payment of two months estimated billings, repayable in 12 equal monthly instalments, by way of deduction from monthly invoices submitted to the client: Judgment [71]. (The value of this proposal fell to be assessed in circumstances where the expected annual billings from the contract were nearly $12 million, so that the advance payment proposed was about $2 million, twice the amount of the guarantee.)

38. Having communicated that proposal to NTA, Mr Boucousis responded on 6 February 2009 advising that NTA did not agree with the proposal for any advance payment. Its “final” position was stated to be a $1 million bank guarantee ratcheted down over 5 years. He also advised that “Investec has agreed to meet the terms stipulated above, providing full bank guarantees and guarantor over the contract”: Judgment [72]

39. Mr Madden made Hart Cyprus’ position clear by his response on the same day: Judgment [74]

We do not accept NTAPL's stipulations or requirements and have to reiterate that in order to move forward we would need confirmation that NTAPL accept our terms as outlined in yesterday's email - reproduced below. [the terms of Mr Madden’s second email of 5 February are set out]

We have no interest in accepting the ATMAAC offer as currently outlined and if we were to find a suitably workable arrangement, it would have to be completed on an immediate basis.

40. On or before 10 February 2009 Mr Boucousis was provided with a copy of the board paper prepared by the management of NTA. That paper contained a recommendation that the board approve a contract with HSA to commence on 1 April 2009 for a term of five years; and that authority be delegated to Mr Kew to execute that contract on behalf of NTA and its operating subsidiaries. That paper included the following under the heading “Risk Mitigation”: Judgment [77]

The main risk identified during the consultation period and in the current economic conditions was the ultimate 49.1% shareholding of Hart held by Hart Security Holdings Limited located in Cyprus. This was exacerbated with Hart's untested service reliability in the Australian marketplace and more particularly the Australian aviation security market.

The risk will be mitigated through the provision of:

(a)   an unconditional and irrevocable bank guarantee from an Australian trading bank in the amount of $1M; and

(b)   the execution of the security services contract by Christian Patrick Boucousis (Sole Director and ultimate 50.1% shareholder of Hart) and Hart Security Holdings Limited as guarantor.

41. He sent a copy of that board paper to Mr Madden on 10 February 2009 and reported: Judgment [76]

… I am progressing "in the dark" somewhat pending more feedback from HSL. I would like to confirm, based on existing formal correspondence HSL's position it [sic] that is not willing to proceed with the contract. On this basis I need to inform that Hart Security Australia is unable to proceed.

I need to know Hart's [HSL] formal position on either:

Proceeding as per the board paper

Accepting Offer or providing formal feedback on a revised offer for ATMAAC to acquire Hart Australia. The bank guarantee issue has shifted the goalposts on this somewhat.

Advising an alternate course of action which can be implemented by Monday 16th February

Not executing this contract is not an option on the basis of:

Forcing the company into an insolvent position

Limited employment opportunities for existing Hart Australia Staff

I am back in Australia on Wednesday and NTAPL are expecting some sort of answer as to how we are going to proceed. NTAPL are aware of the HSL position.

…

The deadline for HSL's final position is Monday 16th. If HSL is unwilling to support the contract or things remain "unclear" (no resolution either way) I will have to advise NTAPL, in order for them to withdraw the board paper and proceed in a different path.

42. Mr Madden responded with Hart Cyprus’ position on 11 February 2009: Judgment [78]

Thank you for sharing the draft proposal being put forward to the NTAPL board. In light of this we would like to (re)confirm our "position" as per below:

With reference to the current terms and conditions proposed by NTAPL with respect to our taking over the security services contract, Hart will not entertain such terms and conditions as outlined and you are therefore unequivocally disallowed from binding Hart Australia Pte [sic] Ltd or any Hart group company. You are therefore not allowed to sign such document and will inform NTAPL management accordingly.

As previously stated and to reiterate - "we have no interest in accepting the ATMAAC offer as currently outlined and if we were to find a suitably workable arrangement, it would have to be completed on an immediate basis".

In recognition that time is of the essence, acknowledging the timing of the NTAPL board meeting and the fact that your option lapses at the end of this month, we await feedback from you.

43. At that time NTA was proceeding on the basis that ATMAAC was proposing to acquire the Hart Cyprus interest in the CTG group, which included HSA. That understanding was reflected in Ms Pollard’s email to Mr Boucousis of 12 February 2009: Judgment [82]

The proposal we have put up to the Board proposes Hart Security Australia Pty Ltd as the contracting party and we have also addressed our risk assessment re Hart Cyprus ultimate 49.9% shareholding and risk mitigation - $1M bank guarantee and you guaranteeing and signing the contract personally as ultimate 50.1% shareholder. Obviously, if the proposed acquisition (ATMAAC acquisition of the Hart Cyprus shares) takes place after Board Approval but before contract execution - it puts us in a difficult position and perhaps leaves Ian [Kew] without the appropriate authority to sign the contract for NTAPL.

44. On the previous day, 11 February 2009, Mr Boucousis had again conferred with Mr Burke and Mr Hummel of HWL. Mr Burke’s notes indicate that there was discussion about the possibility of Mr Boucousis, as sole director of HSA, issuing shares in HSA, and appointing an additional director. HWL was asked to advise if that was possible and whether Mr Boucousis had a “positive duty” to disclose such a course to an indirect shareholder (meaning Hart Cyprus): Judgment [80]. (It is from this point that HSA alleges that Mr Boucousis promoted his personal interests by pursuing a gain in circumstances in which there was a conflict of his interest and duty.)

45. On the evening of 13 February 2009 (a Friday) Mr Boucousis sent an email to Ms Pollard and Mr Ainslie of NTA: Judgment [85].

I thought I would drop you a quick note reassuring you of Hart Security Australia's ability to deliver the contract - despite recent information from Hart Security Limited (Cyprus).

I, as the sole director of the company and in line with our company's constitution, will outline to you on Monday exactly how we can execute the contract and provide any/all guarantees as stipulated within the board paper and the latest draft of the contract.

46. Discussions proceeded between Mr Boucousis, ATMAAC and Investec. An email from Investec to Mr Boucousis sent on about 14 February 2009 included the following, extracted in part at Judgment [83].

As per our discussion, please see below the indicative key terms that have been agreed in principle. Please note these terms have not been reviewed by Mark, and may be subject to change.

…

1   NTAPL contract to be within a 100% subsidiary of ATMAAC International Pty Ltd. PNG contract to be finalised in due course.

2   Initial Shareholding within the Group at 19%, with a ratchet to 25% (+ 6%), subject to achieving performance hurdles within 12 months of settlement (kpi's pertaining to NTAPL contract). As agreed, this level will change in the event the contract is/will be lost within the 12 months.

3   Salary of $313,000 inclusive super.

4   $200k "bonus" payment subject to achieving performance hurdles within 6 months of settlement.

5   You will be offered a Directorship of ATMAAC International and a role of Business Development Manager (title to be confirmed), reporting to the CEO.

47. The primary judge found that by 16 February 2009 the following proposal had been formulated as between HSA, Mr Boucousis and the ATMAAC group: Judgment [87]. ATMAAC Aviation Pty Ltd (ATMAAC Aviation) was to be incorporated as a wholly owned subsidiary of ATMAAC, which in turn was a wholly owned subsidiary of AMC Security Services Pty Ltd. The directors of those three companies were to be Mr Kelly and Mr Boucousis. ATMAAC Aviation was to be issued a majority shareholding in HSA by a subscription agreement. HSA would enter into the NTA contract. Mr Boucousis would be issued shares in AMC Security Services, initially 18% and increasing to 25%. He was also to be a director of that company and to be employed within the ATMAAC group. Investec, the existing financier to that group, was to provide or arrange the bank guarantee required under the NTA contract.

48. Thereafter, as the primary judge found at [88], “strenuous efforts were made by Mr Boucousis, and others, to advance this proposal”. Middletons prepared a draft share subscription agreement, which in a later iteration provided for ATMAAC Aviation to subscribe for 99,000 shares in HSA and procure its financier to deliver the bank guarantee to NTA. On 18 February 2009 a further draft of the contract was provided by NTA to Middletons. It named HSA as service provider, was for a term of five years and continued to require a bank guarantee of $1 million, as well as a personal guarantee from Mr Boucousis.

49. ATMAAC Aviation was incorporated on 16 February 2009 (a Monday). On the same day Ms Pollard communicated by email with Mr Landis of Middletons concerning the proposed acquisition of HSA by ATMAAC:

I look forward to receipt of the proposed ATMAAC/HART corporate structure – NTAPL can then complete its due diligence and determine the extent of security required.

To give you a heads up – NTAPL amendments to the contract relate to tidying up the following –

…

c.   Guarantee and indemnity; Bank Guarantee clauses – re-instated (NTAPL to consider after completing due diligence to ATMAAC/Hart transaction).

50. In the evening of 16 February, Mr Hummel sent an email to Mr Boucousis which sought to clarify HWL’s role. That email is referred to at Judgment [90] and included:

Given the myriad conversations and meetings you are attending to as this deal evolves, I thought it would be useful to set out our role, as follows:

1.   Provide advice on duties of a director of a near insolvent company (completed 2 Feb 09);

2.   Provide advice on whether it is permissible for you as sole director of Hart Security Australia P/L (HSA) to issue shares and appoint another director, and also whether there is a positive duty of disclosure to HSA's shareholder in relation to such actions (to be completed tomorrow, 17 Feb 09);

3.   Provide draft board minutes regarding the issue of 98,000 HSA shares (99% post money) to Atmaac Aviation P/L for fair market value and the appointment of Brian Kelly as a director of HSA. The subscription price may be $10,000 for partly paid shares, with the balance (if any) payable upon an independent accountant determining the fair market value of the shares. There may also be a loan from Atmaac Aviation P/L to HSA in the amount of $90,000. If HSA calls further subscription monies from Atmaac Aviation P/L, this may reduce the loan amount. Instructions to be confirmed (to be completed tomorrow, 17 Feb 09);

4.   Provide draft board minutes for Christian Thomas Group P/L (CTG) for the transfer of 625 shares (50% post money) to you or your nominee. …

We are also aware of the following, but you have instructed us not to advise on them:

1.   the agreement for the provision of Services to NTAPL;

2.   the executive services agreement between you and Atmaac together with a right to be issued up to 25% of the shares in an Atmaac entity.

We confirm that we act for HSA. To the extent that you require advice on matters where your interests are not the same as HSA, we recommend that you seek separate legal advice from another law firm.

51. Middletons prepared a draft share subscription agreement on 17 February 2009: Judgment [91]. On 18 February 2009 Ms Pollard, in an email to Middletons, identified as a matter about which NTA would require some comfort that Hart Security Australia Pty Ltd “has authority to enter the contract and how the share issue to ATMAAC etc will work”: Judgment [92]. The draft contract provided on 18 February included provision for a bank guarantee of $1 million. However, as the primary judge found at Judgment [93] Mr Boucousis understood and “informed Mr Kelly that NTA would be happy to further negotiate the bank guarantee after their board meeting, and that a $500,000 guarantee for a six month period may be possible”. The primary judge found that Mr Boucousis did not pass this information on to the Hart Group: Judgment [164].

52. Early in the evening of 18 February, Mr Boucousis received a draft letter of advice from Mr Hummel. The primary judge summarised that advice at Judgment [99]:

In brief, Mr Hummel advised, based on the instructions provided by Mr Boucousis, that subject to acting in accordance with his paramount duties as a director of HSA (including a duty to act in the best interests of the company as a whole), Mr Boucousis, as the sole director of HSA, had the power to appoint another director and had the power to issue shares. The advice noted that such powers must be exercised in good faith and for a proper purpose, and that if the director was motivated by self-interest, the exercise of power was liable to be set aside. On the question whether there was a positive duty to disclose those matters to CTG (or Hart Cyprus), Mr Hummel advised Mr Boucousis that there was a risk that he owed a fiduciary duty to CTG and "disclosure may ameliorate this risk to some extent".

53. A short time later, Cridlands MB, acting for NTA, emailed Mr Landis, Mr Hummel and Mr Boucousis in the following terms: Judgment [96]

I have attached the email from Mike Madden (Finance Director of Hart in Cyprus) to Christian of 10 Feb 09. That email and the late notification to our client of the ATMAAC's involvement has caused our client to seek further information about the Service Provider, its shareholders, the proposed restructure of the various entities, etc than it would normally require.

Given your acknowledgement that Hart Security Australia Pty Ltd has sought legal advice about whether or not it can issue shares in the manner it proposes to do so, the nature of the proposed services contract and my client's statutory obligations, it is not unreasonable for my client to investigate any relevant matters (including the validity of the proposed share issue) to its satisfaction.

54. By this time the proposed structure of the ATMAAC group provided that ATMAAC Aviation would hold 99% of the shares in HSA and that via AMC Security Services Mr Boucousis would hold an 18.9% interest in ATMAAC Aviation. This was all in accordance with the agreement struck by 14 February 2009.

55. Later in the evening of 18 February 2009 Mr Boucousis received and responded to an email from Mr Madden which inquired as to developments concerning the NTA board meeting and any “feedback from Investec/Atmaac”. Mr Boucousis responded as follows: Judgment [100]

1   NTAPL's position has not changed with respect to the $1 million dollar bank guarantee. It is fundamental to the award of the contract.

2   ATMAAC have made their offer which, as per your email on the 06th Feb, Hart Cyprus deemed as unacceptable providing no other options to pursue the offer.

3   Without the contract we will become insolvent and as the sole director of Hart Security Australia remaining solvent in the long term and keeping staff paid is my primary concern at the moment as per my email on the 30th.

56. In the early hours of 19 February (a Thursday) Mr Boucousis received Mr Madden’s reply in which he posed three questions, which are summarised as follows by the primary judge: Judgment [101]:

As far as the bank guarantee was concerned, Mr Madden asked whether a direct response to Hart's alternative proposal of 5 February 2009 would be forthcoming from NTA, as was said to be anticipated by Mr Madden. As far as ATMAAC was concerned, Mr Madden asked whether there would be a formal response directly from ATMAAC to "our counter proposal". It is not clear what "counter proposal" was there being referred to by Mr Madden. Mr Madden also asked why ATMAAC management had been to NTA "when they are not supposedly interested in responding to us or interested in the NTAPL contract".

57. Early in the afternoon of 19 February Mr Boucousis replied to Mr Madden’s questions as follows: Judgment [102]

NTAPL's non-acceptance of these terms [Hart Cyprus’s alternative proposal of 5 February 2009] was advised to you by me via phone on the evening of the 6th. I have requested NTAPL provide a direct response and they have indicated that they will forward a signed record of this conversation, this is being actioned by Selena Pollard.

Could you please forward documentation pertaining to the counter-proposal? I did try to help with this by providing a word file to you to make amendments to the offer on the 5th articulating the terms of any counter-offer. All your correspondence has been passed to them over the preceding 6 weeks.

No representatives of Investec or ATMAAC have, to my knowledge, been to NTAPL in the last week. Could you advise who and when and I will make some inquiries and revert.

No-one was disputing ATMAAC's interest in NTAPL or Hart Australia which had been clearly articulated. In fact, it is clear from recent correspondence between Hart Australia and Hart Cyprus ... that it is Hart Cyprus who is not interested in the NTAPL contract.

58. At its meeting which commenced at 8.30am on 19 February, the NTA board did not accept the recommendation made by its management that the contract with HSA be approved. Instead the board resolved to consider the question by circular resolution once six matters had been attended to. Those matters included "Preferred contracting entity had been resolved by ADG (Atmac/Hart)". Further discussions followed between NTA, ATMAAC and HSA.

59. In the early afternoon of 19 February Mr Boucousis advised Mr Kelly by email that the contract had not been awarded at that stage because of uncertainty with the “company structure and ownership moving forward”.

60. Later, in the evening, Mr Madden responded to Mr Boucousis’ earlier email. Referring to NTA’s requirement for the guarantee he stated “we had assumed that we would receive a direct response” from NTA and that with no alternative proposal or suggestion offered Hart was effectively prevented “from entering into any dialogue, discussion or negotiation”. He concluded:

I believe it is worth restating that during our meetings in early December, you made it very clear that you were confident at finding an investor for the business and within a timeframe that would allow for the absorption of the NTAPL contract in a seamless manner ie the investment transaction as contemplated at that juncture, would have occurred in a timely manner to allow for Hart Australia to secure the contract “under new ownership”.

61. By the end of 20 February 2009, NTA’s management decided to recommend to the board that the contract be entered into directly with ATMAAC: Judgment [109]. On 23 February 2009, Mr Ainslie of NTA wrote to Mr Boucousis:

I advise given Hart Cyprus's opposition to the provision of a $1M (AUD) bank guarantee (unless it was provided 2 months advanced billings) and in light of subsequent discussions and correspondence from Hart Cyprus indicating it is opposed to meeting the core terms of the contract, NTAPL is concerned about Hart's ability to provide services under the terms of the contract. On this basis NTAPL does not wish to contract for the provision of security services with Hart Security Australia Pty Ltd and therefore our recommendation to the board has changed.

62. Later on the same day Ms Pollard proposed to Mr Boucousis that she make a small amendment to that letter. The amended letter was never sent or substituted for the earlier letter. Ms Pollard explained the reasons for the proposed amendment in an email to Mr Boucousis. Mr Kew agreed in evidence that her explanation reflected his general understanding of the position at the time. That explanation was as follows: Judgment [111]-[112]

The difficulty for NTAPL is that while your business partner, Hart Cyprus, disagreed to meet the contract terms, we were advised by you of the ATMAAC acquisition which would ensure that the contract terms could be met and we could still enter into the contract with Hart Security Australia Pty Ltd. Those arrangements i.e. the share issue and ATMAAC Group of Companies acquisition of Hart Security Australia Pty Ltd (and therefore ATMAAC's financier putting up the $1M Bank Guarantee requested by NTAPL) created another set of risks and NTAPL's approach to mitigate those risks was to contract directly with ATMAAC Aviation Pty Ltd.

It is therefore inappropriate to say that NTAPL is not prepared to enter into a contract with Hart Security Australia Pty Ltd without qualifying why - the problem is not with Hart Security Australia Pty Ltd but with the way Hart Security Australia Pty Ltd is to be acquired in order to give it the ability to provide the bank guarantee, which makes the choice of contracting with Hart Security Australia Pty Ltd less desirable.

If you were putting up the bank guarantee personally or Hart Security Australia Pty Ltd had some way of providing the bank guarantee in its own right without relying on its shareholders, we would not be sending these emails because the contracting party would be Hart Security Australia Pty Ltd. If either option is not commercially viable - then Hart Security Australia Pty Ltd is not able to enter the contract. It would rule itself out of the race and we would not have recommended contracting with Hart Security Australia Pty Ltd to the Board. Instead, we have been advised Hart can give the bank guarantee but the way it can is not desirable to NTAPL. Therefore contracting with Hart Security Australia Pty Ltd is not desirable.

63. The possibility that NTA might award the contract to ATMAAC, rather than HSA, led to discussion as to whether HSA might assign to ATMAAC certain information and intellectual property rights relating to the performance of the proposed contract. A deed of assignment was drafted and an assignment fee of $125,000 (originally $100,000) was agreed: Judgment [106], [108]. However that transaction did not proceed because on 25 February 2009 Ms Stone as company secretary of HSA declined to sign the deed. On the following day Mr Boucousis resigned as a director of HSA: Judgment [114], [115]. NTA did not proceed to enter into a security services contract with HSA or ATMAAC.

Breaches of fiduciary duties (ground 1)

Overview

64. The judge described HSA’s “primary case” as being that Mr Boucousis “pursued a strategy from about December 2008 aimed at benefiting ATMAAC and himself at the expense of HSA” and that by doing so he acted dishonestly: Judgment [131]. As his Honour observed at Judgment [132] the same conduct was also relied on as constituting a breach of each of the statutory provisions. In its written submissions to the primary judge concerning the statutory duties, HSA contended that Mr Boucousis “clearly acted deliberately for an improper purpose and not in good faith and in the best interests of HSA”.

65. HSA’s alternative case was that from 11 February 2009 Mr Boucousis pursued the ATMAAC proposal in circumstances where there was a conflict or a substantial possibility of a conflict between his personal interest in that proposal and his duty as a director of HSA to consider whether entry into that transaction was in the best interests of the company: Judgment [169]-[170].

66. His Honour rejected HSA’s primary case because he was not persuaded that during the period from December 2008 to 19 February 2009 Mr Boucousis “was pursuing a strategy aimed at benefiting ATMAAC and himself”: Judgment [167]-[168]. He also rejected HSA’s alternative case, concluding that although Mr Boucousis pursued the ATMAAC proposal there was no actual or real possibility of a conflict between his personal interest and his duties to HSA: Judgment [177]. On the basis of these conclusions the primary judge dismissed the allegations of breaches of fiduciary duty and contraventions of s 181(1), 182(1) and 183(1): Judgment [179]-[181].

67. The primary judge rejected HSA’s claim against HWL because there was no breach of fiduciary duty amounting to a “dishonest and fraudulent design” to found any accessorial liability within the second limb of Barnes v Addy (1874) LR 9 Ch App 244. The claims of involvement in contraventions of ss 181(1), 182(1) and 183(1) also failed because of his Honour’s conclusion that there was no contravention of those subsections: Judgment [195].

68. In the argument on appeal, HSA’s principal challenge was to the judge’s rejection of its alternative case, which does not depend on any allegation of fraud or dishonesty on the part of Mr Boucousis. HSA did not however abandon its challenge to the dismissal of its primary case. That challenge focussed on the findings of the primary judge directed to Mr Boucousis’ motivation and subjective purpose. It was said those findings were not relevant to its establishing the alleged breach of fiduciary duty, or to the characterisation of that breach as dishonest.

69. The following is an example of the way that argument was put. Reference was made to the primary judge’s conclusion at Judgment [148] that he was not persuaded that Mr Boucousis’ concealment by the alteration of emails (see [27] above) of the extent of ATMAAC’s early involvement with NTA, “should be regarded as evidence of a consciousness of guilt, or as part of a plan to divert the NTA opportunity away from HSA”. It was submitted that it was not necessary for the primary judge to consider Mr Boucousis’ state of mind in these respects because it was “not relevant in order to make out his breach of duty” or “that [the] breach of duty [was] dishonest”. HSA emphasised that dishonesty was to be judged by the standards of the ordinary decent person, and that it was not necessary that the person appreciate that the conduct was dishonest by those standards (for which see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [173]; and Peters v The Queen (1998) 192 CLR 493).

70. However as is emphasised by Toohey and Gaudron JJ in Peters at [18], the characterisation of an act or conduct as dishonest by reference to the standards of ordinary, honest persons necessarily requires that the act or conduct and “knowledge, belief or intent” first be identified. And where allegations of dishonesty and fraud are made, so as to found an equitable claim of knowing assistance, the conduct and any relevant state of mind must be pleaded and particularised (see Farah at [170]).

71. Accordingly HSA’s argument, as directed to its primary case, makes it necessary to consider how that case was pleaded, it not being suggested that the conduct of this part of its case departed from that pleading (cf Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287). Before doing so, it is convenient to consider the provisions of the Corporations Act pleaded by HSA against Mr Boucousis.

The relevant provisions of the Corporations Act

72. Subsections 181(1), 182(1) and 183(1) provide:

181   Good faith--civil obligations

Good faith--directors and other officers

(1)   A director or other officer of a corporation must exercise their powers and discharge their duties:

(a)   in good faith in the best interests of the corporation; and

(b)   for a proper purpose.

182   Use of position--civil obligations

Use of position--directors, other officers and employees

(1)   A director, secretary, other officer or employee of a corporation must not improperly use their position to:

(a)   gain an advantage for themselves or someone else; or

(b)   cause detriment to the corporation.

183   Use of information--civil obligations

Use of information--directors, other officers and employees

(1)   A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

(a)   gain an advantage for themselves or someone else; or

(b)   cause detriment to the corporation.

73. The primary judge referred at Judgment [180] to the decision of Black J In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [420] and to the different views expressed concerning the content of the obligation imposed by s 181(1)(a). Those differences are as to whether the obligation to act in good faith in the best interests of the company is only contravened if it is established that the director knew that the relevant conduct was not in the company’s best interests, or whether it is sufficient to establish that viewed objectively the conduct did not answer that description.

74. This question was addressed in the Explanatory Memorandum to the Corporate Law Economic Reform Program Bill which as enacted introduced s 181 in its current form. At page 11 of that Memorandum, in the “Summary of the key amendments proposed by the Bill”, it was said that the existing duty to act honestly (a reference to s 232(2) of the Corporations Law) had been reformulated “to capture the fiduciary principles that a director or other officer of a corporation must exercise their powers and discharge their duties in good faith in what they believe to be in the best interests of the corporation and for a proper purpose”. That subject was further addressed in Pt 6 of the Memorandum. It is sufficient here to refer to paras 6.2 and 6.7 which appear under the heading “Good faith”:

6.2 Current section 232(2) requires officers to act honestly. The draft provisions will rewrite section 232(2) to require officers to exercise their powers and discharge their duties in good faith in what they believe to be in the best interests of the corporation and for a proper purpose (proposed section 181).

6.7 The draft provisions overcome these difficulties by rewriting section 232(2) to mirror the fiduciary duty of a director to act in what they believe to be in the best interests of the corporation and for proper purposes.

75. Under the general law a director is required to act in what they honestly believe to be the best interests of the company; and the substantial purpose for which they discharge their duties must be a proper one, this not being determined by what the director thinks: see Ford, Austin and Ramsay’s Principles of Corporations Law (16th ed 2015, Lexis Nexis Butterworths) at [8.065].

HSA’s primary case as pleaded

76. The following allegations of breach and dishonesty were made against Mr Boucousis:

28   By reason of his conduct pleaded in paragraphs 17, 18, 19, 20, 21, 22, 23 and 24 above, Mr Boucousis in seeking to gain a benefit for himself by proposing to enter into the Employment Agreement and to gain an advantage for ATMAAC, Mr Boucousis acted to the detriment of Hart Australia by causing Hart Australia to lose the opportunity to enter into the NTA Contract and thereby:

(a)   breached his fiduciary duties to Hart Australia;

(b) contravened section 181 (1) of the Corporations Act;

(c) contravened section 182(1) of the Corporations Act; and

(d) contravened section 183(1) of the Corporations Act;

29   The breaches by Mr Boucousis of his duties as pleaded in paragraph 28 above was [sic] dishonest and fraudulent.

Particulars

Hart Australia repeats paragraphs 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 above and says that Mr Boucousis acted deliberately and dishonestly to secure for his personal benefit an opportunity or advantage which he knew he was bound to pursue for the benefit of Hart Australia.

77. The earlier conduct pleaded in paras 17 to 24 included engaging in negotiations with ATMAAC with the intention that it should enter into the NTA contract instead of HSA or with the intention that ATMAAC would otherwise have the commercial benefit of that contract (para 17); in an effort to gain a benefit for himself and to gain an advantage for ATMAAC to the detriment of HSA, discussing with ATMAAC a number of scenarios including its acquisition of Hart Cyprus’s interest in HSA, ATMAAC’s subscription for shares in HSA, the employment of Mr Boucousis by ATMAAC, the issue of shares in ATMAAC to Mr Boucousis or a company with which he was associated, and the assignment of HSA’s assets to ATMAAC (para 20); and, in furtherance of the arrangements with ATMAAC to gain a benefit for himself and to gain an advantage for ATMAAC to the detriment of HSA, becoming a director of ATMAAC (para 24).

78. Thus it was alleged that conduct of Mr Boucousis from December 2008 was undertaken with the intention or purpose of seeking a benefit for himself and an advantage for ATMAAC, to the detriment of HSA. That conduct included the conduct described above. Contrary to HSA’s submissions to this Court, addressing its primary case required that the judge make findings as to Mr Boucousis’ state of mind and purpose in pursuing various scenarios that emerged from early December 2008.

The primary judge’s findings in relation to that primary case

79. The primary judge made several findings as to Mr Boucousis’ motivation or purpose in pursuing the opportunity to contract with NTA. They included: that in providing information about the NTA contract to Mr Kelly in early December 2008, Mr Boucousis was not attempting to divert the NTA contract away from HSA, but pursuing that opportunity on behalf of HSA, and at the same time seeking an investor to acquire the interests of the Hart Group: Judgment [141]; that Mr Boucousis’ conduct in intentionally altering the emails from NTA was not part of any plan to divert the NTA contract away from HSA: Judgment [148]; that before 11 February 2009 Mr Boucousis’ discussions with ATMAAC and its lawyers in relation to the NTA contract were not undertaken with the intention that ATMAAC should enter into the NTA contract instead of HSA, but were concerned with what might occur as part of a transaction in which ATMAAC acquired the Hart Group’s interests: Judgment [155]; that Mr Boucousis saw the ATMAAC proposal as agreed by 14 February 2009 (see [46] above) as the best and only option for HSA to secure the NTA contract: Judgment [160]; that it was not demonstrated that in pursuing the new ATMAAC proposal Mr Boucousis was motivated by a desire to gain an advantage for himself: Judgment [167]; and, by way of conclusion, that between December 2008 and 19 February 2009 Mr Boucousis was genuinely attempting to secure the NTA contract for HSA: Judgment [168].

80. Each of those findings was directed to HSA’s pleaded case. None is challenged on appeal. On the basis of those findings the primary judge was not persuaded that Mr Boucousis was “pursuing a strategy aimed at benefiting ATMAAC and himself at the expense of HSA”: Judgment [167]-[168]. For that reason he rejected that primary case.

Decision in relation to appeal from rejection of HSA’s primary case

81. In its written submissions HSA identifies five reasons why the primary judge erred in not finding Mr Boucousis’ conduct involved a breach of his fiduciary and statutory duties. The first and second of those reasons address HSA’s primary case. The remaining three are directed to its appeal from the rejection of its alternative case which is considered below.

82. The first reason (which was pursued in oral argument) is that his Honour’s findings that Mr Boucousis was not “motivated by” a desire to gain an advantage for himself, and that his actions were not “aimed at” achieving some impermissible end, were unnecessary in circumstances where intentional wrongdoing is not a necessary element of a claim for breach of fiduciary duty.

83. As I have already observed, this criticism of the primary judge’s findings as to Mr Boucousis’ subjective purpose or intention in pursuing the NTA contract is unwarranted. Those findings address allegations that he consciously pursued a strategy with the intended objective of benefiting ATMAAC and himself. It was on the basis of those allegations that it was said Mr Boucousis’ conduct was “dishonest and fraudulent”.

84. HSA also submitted that it was not necessary that it prove subjective wrongdoing in order to make out a contravention of s 182(1) because impropriety is measured by the standard of conduct of reasonable persons, and may be established notwithstanding that the director believes their conduct to have been in the company’s interest. Reference was made to R v Byrnes (1995) 183 CLR 501 at 514-515 (Brennan, Deane, Toohey and Gaudron JJ).

85. These submissions concerning the construction of s 182(1) may be accepted, but do not address all of its elements. To make out a contravention of s 182(1) it is also necessary to establish that in engaging in the relevant conduct, the director’s purpose was to gain a relevant advantage or cause detriment: see Chew v The Queen (1992) 173 CLR 626 at 632-633 (Mason CJ, Brennan, Gaudron and McHugh JJ). Thus the pleading of Mr Boucousis’ subjective purpose, as being to gain an advantage for himself and ATMAAC, was necessary to make out the alleged contraventions of ss 182(1) and 183(1). Unsurprisingly HSA’s written submissions to the primary judge accepted that this was so, contending that Mr Boucousis had used his position and information of the company “with a view to gaining an advantage for himself and ATMAAC”.

86. It is also the position that it was not necessary for HSA to prove intentional wrongdoing on the part of Mr Boucousis to establish a breach of fiduciary duty. In Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 and Boardman v Phipps [1967] 2 AC 46 each of the fiduciaries was liable to account for a benefit obtained by reason of their fiduciary position, notwithstanding that they had acted bona fide and in the best interests of the party to whom the fiduciary obligation was owed: see also Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557-558 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).

87. However the position is different in respect of the equitable accessorial liability claim. For HSA to make out that claim against HWL, as well as its claims against Mr Boucousis of breaches of ss 182(1) and 183(1), it was necessary it establish that he acted deliberately and with the purpose of preferring his personal interest, with the result that judged by the standards of ordinary, decent people, his doing so was dishonest, and involved impropriety. The primary judge did not misunderstand HSA’s primary case as including these allegations.

88. The second reason (not developed in oral argument) why it is said that his Honour erred is that he misapprehended HSA’s primary case as to Mr Boucousis’ purpose or motivation as including as a necessary element that he acted intending to cause detriment or harm to HSA.

89. That was submitted to be apparent in the primary judge’s conclusion at Judgment [168] that he was not persuaded that Mr Boucousis was pursuing a strategy aimed at benefiting ATMAAC and himself “at the expense of HSA”. I do not agree. In my view that holding is reasonably understood as a paraphrase of HSA’s pleaded case that in seeking benefits for ATMAAC and himself Mr Boucousis acted “to the detriment of” HSA; these last words describing the consequences of his action rather than any intended objective of it. This reading of his Honour’s conclusions is consistent with his earlier findings at Judgment [167] and [168] which deal only with Mr Boucousis’ alleged motivation in seeking a gain or advantage for himself or ATMAAC, in each case as distinct from HSA.

90. The primary judge, in his treatment of the alleged contraventions of ss 182(1) and 183(1), continued to recognise the distinction between a purpose to gain an advantage, and one to cause detriment. He formulated the relevant question at Judgment [181], holding:

… it has not been established that Mr Boucousis either used his position as a director, or used any information he obtained by virtue of being a director, improperly in order to gain an advantage for himself or for ATMAAC, or in order to cause detriment to HSA …

91. Although that holding in its terms also addresses a claim of contravention of ss 182(1)(b) and 183(1)(b) (which was pleaded, but not made in argument before the primary judge), it does not justify the conclusion that his Honour misapprehended HSA’s primary case of breach of fiduciary duty as including that Mr Boucousis acted with or for a purpose which included causing detriment to HSA.

92. It follows that the primary judge did not err in rejecting HSA’s primary case.

HSA’s alternative case

93. The primary judge summarised HSA’s alternative case at Judgment [169] as being whether “Mr Boucousis, admittedly acting genuinely and in the perceived best interests of the company”, nonetheless breached his duties to HSA by being in a position where those duties conflicted with his personal interest.

94. A fiduciary cannot be in a position where their duty in that capacity conflicts with their personal interest, or where there is a real risk of that being so. There is no such conflict where the personal interest is sufficiently remote from the subject matter of the duty, or insubstantial in the sense that it is “too feeble an inducement to be determining motive”: per Mason J in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 104 citing Learned Hand J in Phelan v Middle States Oil Corporation (1955) 220 F 2d 593 at 602-603. Where there is the “possibility of conflict” it must be a real and sensible one. Whether that is so is to be determined from the standpoint of a reasonable person looking at the relevant facts and circumstances: see Boardman v Phipps at 124 (Lord Upjohn); Queensland Mines Ltd v Hudson (1978) 52 ALJR 399 at 400 (Lord Scarman delivering the judgment of the Privy Council); Re HIH Insurance Ltd; ASIC v Adler [2002] NSWSC 171; (2002) 168 FLR 253 at [735] (Santow J); and Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524 at [109] (Payne JA, Gleeson and Leeming JJA agreeing).

129. Before this Court, HSA sometimes described its case as to causation as being that it had lost the valuable opportunity or chance to “negotiate a successful contract” with NTA. However that formulation was not treated as raising any different or new issue. HSA’s case remained that but for Mr Boucousis’ conduct it would have continued to negotiate with a view to entering into an agreement with NTA, and that by not doing so it lost a valuable opportunity.

Proving causation of a loss of a valuable opportunity

131. Where a claim is made for damages for loss of a valuable opportunity the initial question is whether the breach of contract, negligence or breach of statutory duty caused the loss of an opportunity answering that description. That question is decided on the balance of probabilities.

132. In Sellars the position in relation to such cases was stated by the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) at 355:

… the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value) ...

133. Where the issue of causation of loss or damage turns on what the plaintiff would have done had the conduct complained of not occurred, the plurality also observed (at 353) that “there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical”.

134. However, once it is established on the balance of probabilities that such a valuable opportunity has been lost, its value is to be ascertained by reference to the “degree of probabilities or possibilities” and “it is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable” (at 355).

135. In Sellars the company, Adelaide Petroleum, claimed that by reason of the misleading or deceptive conduct of its director Mr Sellars and Petroleum Poseidon it lost a valuable commercial opportunity. That opportunity was described by the plurality as being “the loss of the opportunity or chance of securing commercial benefits which entry into the Pagini agreement and completion of it would have brought” (at 348); and by Brennan J as the opportunity “to enter into a contract with Pagini and to obtain the financial benefits which completion of the contract would have produced” (at 357). The trial judge (French J as his Honour then was) had held (as summarised at 346-347) that on the balance of probabilities the Pagini agreement would have been entered into. His Honour also held that there was “more than a speculative possibility” that agreement would have been completed, thereby yielding benefits to Adelaide Petroleum.

136. The plurality concluded (355-356) that Adelaide Petroleum had established on the balance of probabilities that the contravening conduct caused the “loss of a commercial opportunity which had some value”. It did so by proving that but for that conduct it would have entered into the Pagini contract in circumstances where there was a significant chance that it would be completed (at 356). The value of that lost opportunity then depended on an assessment of the prospects of that agreement being completed, and of the value of the benefits that would have been enjoyed in that event.

137. Brennan J’s conclusion (at 368) was to the same effect. The requirement of proof on the balance of probabilities applied to the establishing of any hypothesis as to past events on which the plaintiff’s damages claim was based. Thus where the loss is alleged to be a lost opportunity to acquire a benefit (as in the present case), Brennan J said (at 368):

…plaintiff who bears the onus of proving that a loss was caused by the conduct of the defendant discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought by the plaintiff. Up to that point, the plaintiff must establish both the historical facts and any necessary hypothesis on the balance of probabilities. A constant standard of proof applies to the finding that a loss has been suffered and to the finding that that loss was caused by the defendant's conduct, whether those findings depend on evidence of historical facts or on evidence giving rise to competing hypotheses.

138. In his earlier analysis, Brennan J had distinguished between the different kinds of loss which might be claimed where it is alleged that an opportunity to acquire a financial benefit has been lost and damage “is the gist of the cause of action” (at 359). The loss claimed may be the benefit which would have been received had the opportunity been taken, in which case the plaintiff must prove as part of the chain of causation that they could and would have taken the opportunity and that the benefit would then have been yielded (at 362). Alternatively, the loss claimed may be the loss of a right to obtain a benefit, such as a cause of action which is lost because it becomes statute barred (at 362). Or it may be the loss of an opportunity which “is itself something of value” (at 363). In such a case, as appears above, the causal relationship between the loss of that opportunity and the actionable conduct must be proved on the balance of probabilities, and that remains so where it is necessary “to advert to hypotheses [as to past events] when determining the issue of causation” (at 367).

139. In Sellars Adelaide Petroleum’s case was that but for the misleading conduct it would have entered into the Pagini contract and thereby acquired a “substantial prospect” of a financial return (per Brennan J at 364). That hypothesis had to be (and was by reason of the trial judge’s findings) established on the balance of probabilities, notwithstanding that it involved questions as to what Adelaide Petroleum and Pagini would have done, assuming the relevant past hypothetical events.

140. The principles formulated in Sellars were applied by this Court (Clarke and Sheller JJA, Powell JA agreeing) in Daniels v Anderson (1995) 37 NSWLR 438. The respondent AWA claimed damages against the appellants, its auditors, alleging that by reason of their negligence it lost the opportunity to take steps to avoid financial losses due to unauthorised foreign exchange dealings of its employee, Mr Koval. Referring to the reasoning of the plurality in Sellars, Clarke and Sheller JJA observed (at 529):

… it would seem to follow that in order to discharge its onus on the issue of causation AWA needed to establish that, more probably than not, the directors would have pursued a particular strategy if [the auditor], in accordance with its contractual obligations, had warned it of the inadequacies of its system. It would not be enough, however, for AWA to establish that the directors would have acted in that manner. It needed to go further and demonstrate that, in failing to take the steps which it claimed would have been taken if there had been no breach of duty, it lost the opportunity to avoid a financial detriment. Of course it was also necessary to establish that that opportunity had some value but in determining whether it did the court was not concerned to determine on the balance of probabilities the precise extent of the detriment. [Emphasis added.]

141. Applying the same analysis in the present case, it was not sufficient for HSA to establish to the required standard that but for Mr Boucousis’ breach of fiduciary duty it would have continued to negotiate with NTA. It also had to demonstrate that in doing so it would have acquired a valuable opportunity; being one which as described in Sellars “had some value (not being a negligible value)” (at 355) or which involved a “substantial, and not merely speculative” prospect of producing a benefit (at 364). That benefit was what followed from entry into the services agreement.

142. In Castel Electronics Pty Ltd v Toshiba Singapore Pty Ltd (2011) 192 FCR 445; [2011] FCAFC 55, Castel claimed that by reason of Toshiba’s misleading or deceptive conduct it lost the valuable opportunity to enter into a distribution agreement with Harman, another manufacturer of electrical products. The trial judge found that by the time of the conduct complained of there was no substantial prospect of any distribution agreement with Harman. In rejecting the appeal, the Full Court (Keane CJ, Lander and Besanko JJ) observed at [166]:

In Sellars v Adelaide Petroleum NL … Mason CJ, Dawson, Toohey and Gaudron JJ analysed the authorities at length, emphasising the distinction between causation of loss (which must be determined in accordance with the general civil standard of proof) and the assessment of the plaintiff’s loss “taking into account any reductions arising from the uncertainty of future events”. Their Honours concluded their discussion with the observation: “When the issue of causation turns on what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical”. That authoritative statement applies with no less force where the issue is not only what the plaintiff would have done, but also involves questions as to what others would have been disposed to do in relation to reaching an agreement with the plaintiff. [Emphasis added.]

143. The subject of the proof of causation of loss of a valuable opportunity was more recently considered by the High Court in Badenach v Calvert [2016] HCA 18; 90 ALJR 610. Mr Calvert, the sole beneficiary under a will, claimed damages from the deceased testator’s solicitors, arguing that had the testator received advice which was not negligent he may have taken steps during his lifetime to transfer real property to Mr Calvert, so as to avoid the risk that this property would have been available to a claim under the Testator’s Family Maintenance Act 1912 (Tas). That risk came to pass when the testator’s daughter successfully claimed provision under that Act, with the result that the estate available to Mr Calvert was significantly depleted.

144. The plurality (French CJ, Kiefel and Keane JJ) allowed the solicitor’s appeal, including for reason that Mr Calvert had not proved causation of any loss. The loss claimed included “the chance that the client may have undertaken the inter vivos transactions” (at [37]). Their Honours’ summarised what must be proved to make good a claim for the loss of a valuable opportunity:

[40]   It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded. The respondent has not established that there is a substantial prospect that the client would have chosen to undertake the inter vivos transactions. Therefore, the respondent has not proven that there was any loss of a valuable opportunity.

[41]   The onus of proving causation of loss is not discharged by a finding that there was more than a negligible chance that the outcome would be favourable, or even by a finding that there was a substantial chance of such an outcome. The onus is only discharged where a plaintiff can prove that it was more probable than not that they would have received a valuable opportunity. To the extent that the majority in Allied Maples Group Ltd v Simmons & Simmons holds that proof of a substantial chance of a beneficial outcome is sufficient on the issue of causation of loss, as distinct from the assessment of damages, it is not consistent with authority in Australia …

145. Gordon J also allowed the appeal, including because Mr Calvert had not established that the solicitor’s negligence caused any loss. Her Honour concluded:

[98]   It is for that reason that issues of the sufficiency or value of the “opportunity” purportedly lost do not arise for consideration – the first and necessary step of proving, on the balance of probabilities, a causal relationship between the tortious conduct and the purported “loss of opportunity”, before any assessment of the amount of the loss, was absent. This can be directly contrasted with the position in Sellars v Adelaide Petroleum NL. There, it was found, on the balance of probabilities, that the contract would have been entered into but for the impugned conduct. Here, Mr Calvert could not prove, on the balance of probabilities, what the testator would have done had there not been a breach of duty (assuming such a duty existed). In particular, Mr Calvert could not prove, on the balance of probabilities, that the testator would have taken steps necessary for him to have acquired a better outcome than in fact happened, such as receiving the entirety (or at least a greater portion) of the testator’s estate.

[99]   In finding that Mr Calvert was required to prove on the balance of probabilities what the testator would have done, the views expressed by the majority in Allied Maples Group Ltd v Simmons & Simmons (a Firm) about the requirements of proof of causation where loss depends on the actions of a third party may be put aside. Those views are not consistent with ss 13(1)(a) and 14 of the CL Act or authority in Australia.

146. In relation to the English Court of Appeal’s decision in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, it is sufficient to observe that in a case like the present, where the question whether the plaintiff would have received a valuable opportunity (so as to establish that it had lost such an opportunity) depends on consideration of what a third party might have done, the judgments of the majority (Stuart-Smith LJ at 1611, 1614 and Hobhouse LJ agreeing at 1618) may be understood as suggesting that it is sufficient for the plaintiff to establish by reference to the degree of probabilities or possibilities that a substantial chance of a beneficial outcome has been lost.

147. There are two further decisions of this Court to which reference also should be made. They are Heenan v Di Sisto [2008] NSWCA 25; 13 BPR 25,213 and Thompson v Schacht [2014] NSWCA 247; 53 Fam LR 133. Each was decided before Badenach.

148. Heenan involved a claim for damages against the appellant solicitor. When acting for the respondent vendors of two adjoining properties to a developer (Skyworld), the appellant failed to make completion of the contracts interdependent. The contracts did not proceed and the properties were eventually resold by the respondents, but for lesser amounts. The issues on appeal included whether the solicitor’s negligence had caused the loss of a valuable opportunity which may have resulted in both contracts being completed, and as to the basis on which those damages were to be ascertained. The trial judge assessed damages on the balance of probabilities rather than by reference to the degree of probabilities or possibilities. He nevertheless found that it was more probable than not that Skyworld, had it been asked, would have agreed to the contracts being made interdependent, and thereafter completed each of them (Di Sisto v Skyworld Developments Pty Ltd [2006] NSWSC 1182; 13 BPR 24,627).

149. In addressing the solicitor’s appeal on the issue of causation, and the respondents’ cross appeal on the assessment of damages, this Court (Giles JA, Mason P and Mathews AJA agreeing) summarised the relevant principles as follows:

[27]   … the respondents were entitled to such damages as would put them in the position they would have been in had the appellant done what he should have done; that is, had he sought instructions as to whether the contracts for the sale of No 33 and No 126 should be made interdependent or suggested that they should be made interdependent. … Deciding what the respondents’ position would have been involved past hypothetical events. If the appellant had so suggested and sought instructions, would the respondents have instructed him that the contracts should be made interdependent? Would Skyworld have agreed? Even if contracts were exchanged with interdependency clauses, it was not inevitable that Skyworld would have completed the contracts: would it have completed them?

[28]   As a general proposition past hypothetical events in the assessment of damages are not decided on the balance of probabilities, by which satisfaction that it is more likely than not that they would in fact have occurred establishes for the assessment that they would have occurred. ...

[29]   There is, however, an initial question of causation: has the negligence or other wrong caused the loss of a chance? This is decided on the balance of probabilities. [The passage from Sellars at 355 set out in **[132]** above is then extracted]. …

[31]   In many of the cases the negligence has lain in failure to bring proceedings within time, and whether it caused the loss of a chance of some value has not been in issue. In the present case, the respondents lost the chance which would have arisen through advice to make the contracts interdependent, and in order to establish causation had to prove that if properly advised they would have instructed the appellant to do so. [Emphasis added.] …

[32]   Whether the respondents would have instructed the appellant that the contracts should be made interdependent is just as much a past hypothetical event as whether Skyworld would have agreed. As Professor Fleming observed in “Probabilistic Causation in Tort Law: a Postscript” (1991) 70 Can Bar Rev 136 at 140, all causal inquiries involve might-have-beens, but the balance of probabilities has been applied to what the plaintiff would have done if properly advised by the defendant solicitor in, for example, Sykes v Midland Bank Executor & Trustee Co Ltd (1971) 1 QB 113; Allied Maples Group Ltd v Simmons & Simmons (1995) 1 WLR 1602; Hanflex Pty Ltd v NS Hope & Associates (1990) 2 Qd R 218; and Hall v Foong (1995) 65 SASR 281. See also Daniels v Anderson (1995) 37 NSWLR 438 …

[33]   I adopt this approach [that the issue of causation should be addressed on the basis of proof on the balance of probabilities] to whether the respondents would have instructed the appellant that the contracts should be made interdependent. As will appear, it would not matter if what the respondents would have done was according to the degree of probability. Whether Skyworld would have agreed and whether it would have completed the contracts, however, are part of the valuation of the lost chance, to be ascertained by reference to the degree of probabilities or possibilities.

150. This last formulation of what the respondents must prove does not include that they had lost a valuable opportunity, or recognise that it might have been necessary in addressing that question to consider on the balance of probabilities what Skyworld may have done in the relevant past hypothetical events. However his Honour’s earlier reference to the “initial question of causation”, and his observations in [31], make clear that where causation is in issue a plaintiff must prove by reference to that standard the loss of a chance of some value. In the present case, unlike in Heenan, that question was very much in issue.

151. Schacht also involved a claim against solicitors. It was alleged that the appellants were negligent in failing to secure a binding financial agreement for the respondent, being one which was valid under the provisions of Pt VIIIA of the Family Law Act 1975 (Cth). The trial judge upheld that claim. Although the issues on appeal were confined to the question of assessment of damages, Basten JA (with whose reasons Leeming JA agreed) cited with approval Giles JA’s statement of the relevant principles in Heenan. There was no occasion for their Honours otherwise to consider what was said in relation to proving causation of some loss, and no reference was made to the decision of the Full Court in Castel Electronics.

The primary judge’s reasoning

152. The primary judge referred to the description of the relevant principles in relation to causation and equitable compensation in the judgment of Spigelman CJ (Priestley and Meagher JJA agreeing) in O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 272-278. The primary judge correctly proceeded on the basis that a claim for equitable compensation for breach of a fiduciary obligation requires a causal link between the breach and the loss (O'Halloran at 272-274). He addressed whether but for the alleged breach HSA would have had a valuable opportunity to enter into the NTA contract. He concluded (Judgment [186], [192]) that HSA had not established that it had lost such an opportunity.

153. That conclusion was based on two critical findings as to the respective positions of the parties in relation to the requirement for a bank guarantee. The second, which concerned the position of Hart Cyprus, is not challenged on appeal. The first, as to NTA’s position, is challenged. HSA accepts that those findings inform the answer to the question whether HSA lost a valuable opportunity.

154. His Honour’s first finding (at Judgment [187]) was that it was an essential requirement of NTA (in the sense of being one that it would not waive or concede) that an unconditional and irrevocable bank guarantee of $1 million be provided. His Honour found:

Neither the documentary evidence (including the board paper submitted to the NTA board), nor the evidence given by Mr Kew, suggests that NTA might have been prepared to relax its bank guarantee requirement. Mr Kew confirmed in his evidence that the requirement for an unconditional and irrevocable bank guarantee was regarded as essential. ... In practical terms, if the contract was to be awarded to HSA, the Hart Group would need to alter its stated position in relation to the bank guarantee.

155. As to the negotiating position of Hart Cyprus, the primary judge found at Judgment [191]:

Having considered the totality of the evidence about the giving of a bank guarantee, I am not persuaded that the Hart Group was at any stage prepared to support the giving of a bank guarantee other than on the terms it suggested on 5 February 2009. In particular, I do not accept that the Hart Group may have been prepared to support the giving of an unconditional and irrevocable bank guarantee for $1 million as required by NTA.

156. In so finding, he rejected HSA’s case as to what it would have done if the opportunity to further negotiate was afforded. That case was that Hart Cyprus would have provided a bank guarantee “to a value and on terms acceptable to NTA” (amended statement of claim, para 14). Lord Westbury’s evidence in support of that case (that Hart Cyprus would have agreed to provide a guarantee for $1 million) was also rejected: Judgment [188], [191].

157. His Honour’s conclusion that HSA had not established that it was prepared to support the giving of a bank guarantee “other than on the terms it suggested on 5 February 2009” is significant. Those terms as proposed (see [37] above) involved a guarantee of $1 million valid for a period of 12 months but only on the basis that HSA receive an advance payment equivalent to two months’ estimated billings, repayable in 12 equal monthly instalments which were to be deducted from HSA’s monthly invoices. As the expected annual billings were about $12 million, that advance payment would have been around $2 million, so that acceptance of those terms would have involved NTA fully funding the required bank guarantee for the first six months, and partly funding it thereafter.

Decision in relation to HSA’s appeal as to causation

158. In addition to challenging the finding referred to above, HSA contends that the primary judge erred in adopting an approach to the causation issue that required “the wronged beneficiary to prove that it would have reached consensus with NTA and concluded a deal”.  It is said that the correct approach was “to determine, on the balance of probabilities, whether the conduct of Mr Boucousis impacted on the negotiations with NTA in the sense that it contributed to a reduction of HSA’s chances (ie. was a cause but not necessarily the cause) of securing the opportunity available”. If the answer to that question was in the affirmative it is said that damages were then to be assessed by determining the value of the lost chance of the contract being awarded

159. It is convenient first to deal with HSA’s challenge to the finding at Judgment [187] concerning NTA’s position. HSA submits that this finding should be rejected for three reasons.

160. First it is said that the primary judge’s statement that there was nothing in the “documentary evidence” which suggested that NTA might have been prepared to relax its bank guarantee requirement was not correct. It is submitted that Mr Kelly’s report by email to Mr Landis on 18 February 2009 (see [51] above) answered that description. In that email Mr Kelly stated that he had been informed by Mr Boucousis that NTA was “happy to further negotiate the guarantee after the Board Meeting tomorrow” and had indicated the possibility of a “six month time frame and a reduction to $500k”.

161. The primary judge refers to that email at Judgment [93] and returns to it at Judgment [164]. There his Honour noted that Mr Boucousis was not cross-examined about what was reported to Mr Kelly and that Mr Kew gave no evidence that NTA might have been willing to negotiate about the bank guarantee requirement in any particular circumstances. He also noted that Mr Kelly said in cross-examination that “things would have been different” in relation to the assessment of risk if the proposed service provider was a local company rather one “that was based in Cyprus”. In the light of this evidence his Honour considered that “any willingness on the part of NTA to negotiate in relation to the bank guarantee was linked to a change in the ownership of HSA”. That conclusion explains and justifies his Honour’s later finding at Judgment [187] as to the documentary evidence not suggesting NTA was prepared to relax its bank guarantee requirement with respect to HSA whilst in the ownership of Hart Cyprus.

162. The second reason is that between 23 January and 5 February 2009, NTA’s negotiating position moved from requiring a guarantee of $5 million to requiring one of only $1 million. It is submitted that the likelihood was that there would have been further movement on the part of NTA. However in fact its position did not change after that date. That position was as recorded in the board paper prepared by NTA’s management before 10 February 2009 (see [40] above). Mr Kew’s evidence was that the bank guarantee referred to in that board paper ($1 million unconditional and irrevocable) was “essential”. The primary judge accepted his evidence and is not shown to have erred in doing so: Judgment [187].

163. The third and related reason is that it was not (but should have been) suggested to Mr Kew in the course of his cross-examination by the respondents that NTA was not prepared to negotiate about the amount of the guarantee. In answer to this submission, it is pointed out that Mr Kew did give evidence to that effect (being the evidence referred to above) and that there was no purpose in the respondents cross-examining Mr Kew further on that subject. I agree.

164. HSA’s remaining argument focuses on whether the primary judge correctly applied the principles in relation to proof of causation with respect to the loss of a valuable opportunity.

165. It may be accepted that HSA’s case was not that by reason of Mr Boucousis’ breach of duty it had lost the benefit of the NTA agreement. If it had made such a case it would have been required to prove on the balance of probabilities that but for that breach it could and would have entered into that contract (Sellars per Brennan J at 362). HSA’s case was that the loss it suffered was of the valuable opportunity to “negotiate a successful contract”. That opportunity was to be considered in early February 2009 and after negotiations between HSA and NTA had been proceeding for some time.

166. By that time NTA was insisting on a bank guarantee of $1 million and Hart Cyprus and HSA were not prepared to agree to that requirement. In accordance with the principles discussed above HSA had to establish to the required standard that the opportunity to continue to negotiate with NTA, in the absence of the pursuit by HSA of the ATMAAC proposal, had real value because the prospect of a successful outcome was substantial rather than speculative; and that it was lost by Mr Boucousis’ conduct.

167. HSA sought to do so by showing that if it had that opportunity it would have taken it and eventually agreed to provide the $1 million bank guarantee sought by NTA. In that respect its evidentiary case was similar to that of Adelaide Petroleum. The opportunity which it sought to establish it had lost was of the substantial prospect of financial gain flowing from the conclusion of the NTA contract (see Sellars at 365, 368 per Brennan J).

168. The primary judge rejected that case. He was not satisfied on the balance of probabilities that Hart Cyprus “may have been prepared to support” the $1 million bank guarantee required by NTA: Judgment [191]. In so concluding, his Honour was responding to the way in which HSA’s case was put. He was not, as HSA contends, approaching the causation issue on the basis that HSA had to prove that it would have entered into an agreement with NTA.

169. The primary judge’s finding as to what Hart Cyprus (and therefore HSA) would have done meant that HSA could not establish that it had lost an opportunity to enter into a contract with NTA if that contract included a requirement for a $1 million guarantee. It remained necessary to consider whether the opportunity for further negotiation included a real prospect that NTA might not insist on that requirement. The primary judge did so, concluding that he was not satisfied that NTA “might have been prepared to relax its bank guarantee requirement”: Judgment [187].

170. It followed that HSA had not established on the balance of probabilities that the opportunity for further negotiation included any real or substantial prospect of agreement between HSA and NTA. It also followed that HSA had not proved that it had “lost” a valuable opportunity to negotiate a contract with NTA by reason of Mr Boucousis’ conduct. His Honour’s finding to that effect at Judgment [192] did not involve any error.

171. HSA’s submission that the primary judge should have considered whether Mr Boucousis’ conduct contributed to a reduction in its chances of securing the NTA contract must also be rejected. It proposes that on the issue of causation it would have been sufficient for HSA to establish that there had been some reduction in its chances of a favourable outcome to the negotiations. The principles discussed above show that what HSA was required to prove was that it had a valuable opportunity, being one which offered the real as distinct from a speculative prospect of an agreement with NTA, and that this opportunity was lost to HSA because but for Mr Boucousis’ conduct it could and would have been pursued.

172. For these reasons grounds 3, 4 and 5 should be dismissed. This conclusion makes it unnecessary to consider ground 3 of the respondents’ notices of contention.

Damages (ground 10)

173. This ground does not arise and it is not possible for this Court to address it. Nevertheless I will mention it briefly. The primary judge assessed the lost opportunity to enter into the NTA contract as having a net present value of $2 million as at 1 April 2009: Judgment [217]. HSA submits that the primary judge erred in proposing that it would then have been entitled to judgment in that amount. It contends that if it was entitled to judgment, it should have been for an amount representing that net present value plus interest from April 2009 to the date of judgment. In response to this argument HWL concedes that although the primary judge did not address the question whether interest should be allowed until the date of judgment, there is “no basis to resist” such an order. Mr Boucousis does not separately address this ground.

174. More significantly HWL points out that the primary judge’s assessment of the value of the lost opportunity proceeded on assumptions made based on HSA’s case as conducted and rejected. For example at Judgment [213] he assessed, consistently with that case, that there was only a “low to moderate risk” that any further negotiations would not have resulted in agreement. Before this Court HSA accepted that if its challenge to the primary judge’s conclusion as to causation of loss was successful it would be necessary for the assessment of damages to be remitted for determination by reference to the degree of probabilities and possibilities consistent with such an outcome.

Conclusion

175. The appeal should be dismissed and HSA ordered to pay the costs of each respondent.

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Amendments

10 November 2016 - Typographical error corrected at [69] and [86]

Decision last updated: 10 November 2016