In the matter of Citigroup Global Markets Australia Pty Limited

[2017] NSWSC 969

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Citigroup Global Markets Australia Pty Limited [2017] NSWSC 969
Hearing dates:	19 May 2017
Date of orders:	20 July 2017
Decision date:	20 July 2017
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Application for summary dismissal dismissed. Proceedings to continue on pleadings. Plaintiff to pay defendant’s costs.
Catchwords:	CORPORATIONS – financial services and markets – financial products – warrants purchased on Australian Stock Exchange – whether arguable that defendant cancelled plaintiffs’ warrants before expiration date – where warrant unambiguously expired on date of cancellation – where statutory contract under Corporations Act, s 793B, did not contain contrary term – where arguable case, not currently pleaded, that collateral contract contained contrary term, or that defendant made contrary representation – held, if proceedings continue, plaintiff to prepare statement of claim with reformulated case.
Legislation Cited:	(CTH) Corporations Act 2001, s 793B, s 793C, s 798H, s 1101B, s 1317HB
Cases Cited:	McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Transmarket Trading Pty Ltd v Sydney Futures Exchange Limited (2010) 188 FCR 1 Wily v King [2010] NSWSC 352
Category:	Principal judgment
Parties:	Allan Per Leng Ong (plaintiff) Citigroup Global Markets Pty Limited (defendant)
Representation:	Counsel: A.F. Fernon (plaintiff/respondent) S.H. Hartford Davis (defendant/applicant)   Solicitors: Lex Fori (plaintiff/respondent) Henry Davis York (defendant/applicant)
File Number(s):	2016/297894

Judgment

1. The plaintiff Allan Ong is an investor who trades in shares and derivatives on the Australian Stock Exchange (“ASX”), through his on-line broker Westpac Securities Limited (“WSL”). He frequently reviews his broker’s live website – to which he can log in using a unique login and password – for deals, and from time to time places orders, by clicking the “buy” button on the website. Although the evidence does not yet establish or refute it, he contends that the WSL website is a direct feed from the ASX platform.

2. On 16 May 2013 at 2.30pm, Mr Ong logged in and observed that a product designated “NCMIOM” was on offer for sale at $0.062 each. Relevantly, what was displayed included:

NCMIOM $0.062

CITIWARRANTS (CGMA) CTWMY14RW (CTW 18.50 NCM ROLLING INSTALMENT WARRANT 09-MAY-14)

3. As will be explained, the product was an instalment warrant in respect of a share in Newcrest Mining Limited, and the price quoted represented the first instalment of the price. Mr Ong clicked the “buy” button, to purchase 100,000 of those warrants, for an instalment payment totalling $6,219.95, including brokerage and costs. That amount was debited from his account on 21 May 2013 and, it may be inferred, received by the defendant Citigroup as the vendor.

4. On 17 May 2013, Mr Ong sold 5,000 of the warrants he had purchased, at $0.049 per warrant; they were repurchased by Citigroup. In consideration, Mr Ong received a total of $225.05, net of brokerage.

5. On or after 24 May 2013, the warrants were removed from Mr Ong’s account and he was informed that his warrants had “expired worthless on 24 May 2013”. As it emerges, this was because the defendant regarded the warrants as having a reset date of 24 May 2013, not 9 May 2014, and Mr Ong did not take the requisite action or make the requisite payments to implement a “reset”.

6. Mr Ong filed an originating process on 6 October 2016, claiming “[d]amages in the sum of $315,609.00 or such other sum as the Court thinks appropriate”, costs and “such further or other order as the Court thinks fit”, said to be under (CTH) Corporations Act2001, ss 793B, 793C and 1101B. The originating process was accompanied by a document entitled “Points of Claim”, to which it will be necessary to return. By interlocutory process filed on 16 December 2016, Citigroup applied for summary dismissal of the proceedings, and alternatively to have the points of claim struck out.

7. It is with that application for summary disposal that this judgment is concerned. In it, extensive reference is necessary to the ASX Operating Rules (ASXOR). Capitalised terms in this judgment are used in the same sense and context as the same terms are used in ASXOR.

The points of claim

8. No order has (yet) been made for the proceedings to continue on pleadings, and the points of claim have no status as a pleading. [1] For that reason, they are not amenable to be struck out as if they were a pleading. But they serve to state the nature of, and particularise, Mr Ong’s case, and – with further and better particulars that were sought and provided of them – provide the context for the present application.

   1. See Wily v King [2010] NSWSC 352.

9. Relevantly, the points of claim allege that:

1. on 16 March 2013, Citigroup offered for sale on the ASX instalment warrants designated NCMIOM with a maturity date of 9 May 2014 [par 5];

2. on 16 March 2013, Mr Ong purchased 100,000 NCMIOM warrants [par 6];

3. Mr Ong purchased those warrants through his broker WSL, which in turn acquired them through Ausiex [par 7];

4. Ausiex and Citibank were participants in the ASX [par 8];

5. a contract was formed between Ausiex and Citigroup in respect of the purchase, pursuant to Corporations Act, s 793B, and ASXOR 4040 [par 9];

6. Ausiex acted as agent for Mr Ong [par 10], who was its undisclosed principal [par 11] and as such is entitled to sue on the contract for purchase of the warrants [par 12];

7. There were express terms of the contract and the warrants that [par 13]:

1. the warrants expired on 9 May 2014;

2. that date could not be varied except on the occurrence of an extraordinary event [this was said to arise from ASXOR Sch 10, cl 10.3.4(a)];

3. Mr Ong was entitled to receive all dividends and underlying franking credits, and to trade the warrants on the ASX until the maturity date;

8. in breach of the terms of the warrants, Citigroup unilaterally purported to vary the date on which the warrants expired to 24 May 2013 [par 14] and cancelled the warrants on 24 May 2013 [par 15]; and

9. whereupon Mr Ong lost the value of the warrants [par 16], amounting to some $315,609 [par 17].

10. Viewed as a pleading, there are multiple defects in the points of claim which, were it a pleading, would render it sufficiently unclear and embarrassing to warrant its being struck out. In particular:

1. it is unclear who are alleged to be the parties to the contract: there is reference to a “purchase” by Mr Ong, but then to a contract between Ausiex and Citigroup, and thereafter an agency of Ausiex for Mr Ong;

2. having alleged a contract for purchase and sale of the warrants and the terms of it, the complaint appears to be of breach of the terms of the warrants rather than of the contract) [pars 14 and 15];

3. as will appear, it confuses the concept of the “maturity date” with that of the “reset date”;

4. it is alleged that Mr Ong is entitled to an order that Citigroup comply with ASXOR [par 20], but in respect of what failure to comply with ASXOR it is not clear, and what order is sought is not stated.

11. But the most important defect, for present purposes, is that in par 13 it elides the terms of “the contract and the NCMIOM Instalments” (“NCMIOM Instalments” being the term used in the points of claim to describe the warrants), when in fact and law they are two distinct concepts.

The warrants

12. A share warrant is a form of derivative by which the holder gains exposure, during its currency, to the underlying instrument (a share – in this case, in Newcrest Mining Limited), without actually acquiring the underlying share. An “instalment warrant” is a category of warrant which entitles the holder to receive dividends, distributions and/or franking credits paid in respect of the underlying share during the life of the warrant, in consideration of a price payable by an initial and a final instalment. The initial instalment is paid by the investor upfront, while the balance of the cost of the underlying instrument is lent by the issuer to the investor during the term. At the end of the term, the investor can elect to pay the final instalment and acquire the underlying share, or make no payment and relinquish the warrant. That decision will typically be influenced by whether the share price has risen or fallen during the term.

13. “Rolling instalment warrants” – also called “reset instalment warrants” – are a subcategory of instalment warrant, which involve a periodic “reset” of the amount of the loan, typically at intervals of 12, 24 or 36 months (“reset dates”), until the ultimate “maturity date”. The initial instalment is calculated to reflect interest and borrowing fees for the period to the first reset date. If, at that date, the value of the underlying shares has fallen, the investor can then relinquish the warrant, or elect to “reset” the loan by paying the interest and fees in respect of the next period and adjusting the amount of the loan to maintain the predetermined loan to value ratio – which can sometimes involve a substantial payment.

14. Like other derivatives, share warrants may be traded on the ASX. ASXOR rule 2120 provides that, in relation to the quotation and trading of Warrants, Warrant-Issuers and Market Participants are required to comply with Schedule 10. Under Schedule 10, a Warrant is not available for trading on ASX unless and until the relevant Warrant Series (meaning all Warrants with the same Underlying Instrument and having the same Warrant-Issuer, Guarantor (if applicable), and Terms of Issue (meaning rights, conditions and obligations of the Warrant-Issuer and the Warrant-Holder as documented by the Warrant-Issuer and not objected to by ASX)) has been admitted to Trading Status by ASX [10.3.1(a)]. Admission to Trading Status is for a specific Warrant Series with a title and description sufficient to be distinguishable from other Warrant Series already admitted [10.3.2], and will only be granted if, inter alia, the issuer has prepared and provided to the ASX a final product disclosure statement (“PDS”) [10.3.3].

15. Fundamentally, a warrant is a chose in action, and its characteristics are defined by the terms of the document which creates it. Warrants were issued by Citigroup pursuant to an Instalment Warrant Deed, as amended by an “Amending Deed” dated 4 November 2015. The Instalment Warrant Deed contains the following relevant definitions (emphasis added):

“Instalment Warrant”: a warrant issued by Citigroup pursuant to the terms of this deed, comprising:

the right to be granted a Loan in respect of an Underlying Parcel;

the right to have the Underlying Parcel held by the Trustee under a Separate Trust;

the right to be transferred an Underlying Parcel or cash in accordance with this deed;

the right to deliver a Request for Purchase Notice (if applicable); and

all other rights against Citigroup offered to the Holder in respect of the warrant.

“Loan”: each loan offered by Citigroup to a successful Applicant or Transferee on the terms and conditions set out in the Loan Agreement and this deed, being in respect of each Instalment Warrant.

“Loan Agreement”: the agreement so named a copy of which appears in the applicable PDS.

“Maturity Date”: the maturity date for the relevant Series specified in the PDS (or an earlier maturity date determined pursuant to clauses 12 or 14).

“PDS”: a product disclosure statement or any supplementary product disclosure statement in respect of a Series of Instalment Warrants issued by Citigroup for the purposes of Part 7.9 of the Corporations Act, which states that the Terms of the Series are governed by this deed.

“Reset Date” has the meaning given to that term in the Loan Agreement.

“Reset Payment” has the meaning given to that term in the Loan Agreement.

“Series”: a particular set of Instalment Warrants issued under a PDS that:

relate to a particular Security of an Entity;

have the same Final Instalment;

have the same Maturity Date; and

have been issued under the same terms.

“Term”: the terms upon which the Instalment Warrants are issued, as set out in this deed and the PDS.

“Underlying Parcel”: the number of Securities of an Entity that constitute the underlying parcel of a particular Series of Instalment Warrants from time to time and which represent some or all of the Trust Property, and which at the date of a PDS is one Security or such other number as described in the relevant PDS (as adjusted from time to time in accordance with this deed).

16. Clause 14 provides:

14.1 Application

If a particular Series of Instalment Warrants are described in the relevant PDS for that Series as “rolling instalments” or “reset instalments” or a similar description which involves the operation of a reset mechanism in respect of the Loan, then the provisions of this clause 14 shall apply.

14.2 Early termination

a) Citigroup may, in its absolute discretion, not less than 20 Business Days prior to a Reset Date nominate that Reset Date as an early Maturity Date.

…

14.3 Reset of Loans for reset instalments

a) If a Reset Payment is due in respect of an Instalment Warrant on a Reset Date and Holder has not paid the Reset Payment to Citigroup in full in cleared funds prior to the Reset Date, and Citigroup is satisfied that the net proceeds of sale of less than all of the Underlying Parcels corresponding to the Instalment Warrants in the relevant Series held by that Holder will be sufficient to pay in full:

… Citigroup will only exercise its power of sale in respect of … that number of Underlying Parcels that it determines in its discretion should be sold to ensure that the net proceeds of sale are sufficient to satisfy in full the amounts referred to in paragraphs (1), (2) and (3).

17. Citigroup issued a PDS dated 27 May 2010, relevantly in respect of a series denoted as the IOM series. In the “Investment Overview”, the “Maturity Date” was stated to be 15 May 2020, and the “Reset Dates” 26 May 2011, 25 May 2012, 24 May 2013, 23 May 2014, 22 May 2015, and so on until the ultimate maturity date. One of the IOM series was denoted “NCMIOM”, because the underlying shares were in Newcrest Mining Limited. In the Loan Agreement which appears in the PDS, “Reset Date” is defined to mean “the dates nominated by Citi for the reset of the terms of this Loan Agreement as set out in the Investment Overview”.

Issues

18. The present application raises issues:

1. whether it is arguable that Mr Ong acquired NCMIOM warrants with a 9 May 2014 reset date; and

2. whether it is arguable that Mr Ong contracted to acquire NCMIOM warrants with a 9 May reset date.

Is it arguable Mr Ong acquired NCMIOM warrants with a 9 May 2014 reset date?

19. The terms of an offer or contract to sell a chose in action – like any other property – cannot change the characteristics of the chose in action. Those characteristics are to be found in the documents which create the warrant as a chose in action – in particular, the trust deed, the loan agreement and the PDS.

20. Nowhere in the documentation creating or evidencing the terms of NCMIOM warrants (which is a unique designator for a series having, inter alia, the same Underlying Instrument, Warrant-Issuer, and Terms of Issue) is there anything that would support the contention that Citigroup had issued NCMIOM warrants with a reset date of 9 May 2014. Moreover, having regard to the terms of the documentation that creates the warrants, it is not possible that there was an NCMIOM warrant with a reset date of 9 May 2014.

21. It is plain that Citigroup did not issue a NCMIOM warrant which had a reset date of 9 May 2014. The reference on the website to 9 May 2014, even if of contractual significance, cannot alter the properties of the chose in action to which the contract relates. Such warrants did not exist, and Mr Ong could not have acquired them, regardless of the terms or representations associated with any contract into which he might have entered.

22. Thus insofar as Mr Ong’s case is that the warrants he in fact acquired had a next reset date of 9 May 2014, it cannot succeed. It also follows that insofar as his case is that Citigroup, in breach of ASXOR Sch 10, cl 10.3.4(a), unilaterally purported to vary the maturity date to 24 May 2013 and cancelled the warrants, it cannot succeed; it confuses the “maturity date” with the “reset date”, but more importantly the NCMIOM warrants always had a 24 May 2013 reset date.

Is it arguable Mr Ong contracted to acquire NCMIOM warrants with a 9 May reset date?

23. The conclusion that there was no such chose in action as a NCMIOM warrant with a 9 May expiry date does not of itself deny Mr Ong an arguable cause of action, because existence of the subject matter is not necessary to the creation of a contract for its sale. A contract for sale of subject matter which does not exist is nonetheless a contract, in which the vendor implicitly promises that the subject matter exists or will exist. [2]

    2. McRae v Commonwealth Disposals Commission (1951) 84 CLR 377.

24. In this respect, Citigroup submits that:

1. Mr Ong relies only on a contract said to be formed under Corporations Act, s 793B, and ASXOR 4040, and such a contract could not contain a term that the subject warrants would have a reset date of 9 May 2014;

2. Mr Ong could not be a party to any such contract, and could not have standing to sue; and

3. as the only contract relied on by Mr Ong is one under AXSOR 4040, he cannot succeed.

Could a contract under Corporations Act, s 793B, and ASXOR 4040, contain a term that the subject warrants would have a reset date of 9 May 2014?

25. Corporations Act, s 793B, relevantly provides as follows:

793B Legal effect of operating rules

(1) The operating rules (other than listing rules) of a licensed market have effect as a contract under seal:

(a) between the licensee and each participant in the market; and

(b) between a participant and each other participant;

under which each of those persons agrees to observe the operating rules to the extent that they apply to the person and to engage in conduct that the person is required by the operating rules to engage in.

26. ASXOR 4040 relevantly provides as follows:

Subject to Rule [4041], upon matching in a Trading Platform of Trading Messages in accordance with these Rules, a contract is formed between the Trading Participants whose Trading Messages are matched:

(a) in the case of Cash Market Transactions, for the sale and acquisition of the relevant Cash Market Products at the price and volume matched and subject to these Rules;

(b) in the case of Derivatives Market Transactions, on the terms of the relevant Contract Series at the price and volume matched and subject to these Rules.

27. In order to appreciate the effect of rule 4040, it is necessary to consider the defined terms within it, which are relevantly as follows:

1. “Trading Platform” means a platform made available by ASX to Trading Participants for the entry of Trading Messages, the matching of Orders, the allocation of Financial Products, the advertisement of invitations to trade and the reporting of transactions. Parts of the Trading Platform may be referred to as ‘a Trading Platform’ or ‘the relevant Trading Platform’.

2. “Trading Messages” means those messages submitted into a Trading Platform relating to trading functions, such as Orders, amendment or cancellation of Orders and the reporting or cancellation of Market Transactions on the Trading Platform.

3. “Trading Participant” means a Market Participant which has Trading Permission in respect of one or more Products.

4. “Cash Market Transaction” means a transaction between Trading Participants for one or more Cash Market Products.

5. “Cash Market Product” means … a Warrant admitted to trading status in accordance with Rule [2120], … and any other product that ASX authorises for trading on a Trading Platform and determines to be a Cash Market Product.

28. The submission that no contract entered into under ASXOR 4040 could have contained a term that the NCMIOM warrants to which it related had a reset date of 9 May 2014 proceeded on the following basis:

1. any contract under rule 4040 (“a 4040 contract”) is one for sale of the relevant “Cash Market Products”, relevantly “a Warrant admitted to Trading Status in accordance with Rule [2120]”;

2. while the NCMIOM Warrant Series was admitted to trading status:

1. the terms of the NCMIOM Warrant Series did not include a reset date of 9 May 2014;

2. there had been no PDS for an NCMIOM series with a reset date of 9 May 2014;

3. accordingly, no NCMIOM warrant with a reset date of 9 May 2014 was admitted to Trading Status, nor could have been in the absence of a relevant PDS;

4. it followed that as only a Warrant admitted to Trading Status could be the subject of a 4040 contract, and as no NCMIOM warrant with a reset date of 9 May 2014 was admitted to Trading Status, there was no such Cash Market Product as could have been the subject of a 4040 contract;

5. further, a contract under 4040 is created by the matching of “Trading Messages” (meaning messages submitted into a Trading Platform relating to trading functions such as Orders) between “Trading Participants” (meaning a Market Participant which has Trading Permission in respect of one or more Products – relevantly a Cash Market Product) in a “Trading Platform” (a platform made available by ASX to Trading Participants), and the contract so formed is for the sale and acquisition of the relevant Cash Market Products at the price and volume matched;

6. there could have been no matching of “Trading Messages” between “Trading Participants” in a “Trading Platform” in respect of an NCMIOM warrant having a reset date of 9 May 2014, because no such warrant having been admitted to Trading Status, there could be no “Trading Participant” with Trading Permission in respect of it. Thus there could be no 4040 contract in respect of NCMIOM warrants having a reset date of 9 May 2014, because there could have been no relevant matching of “Trading Messages” between “Trading Participants” in a “Trading Platform”; and

7. as the relevant Trading Messages were required to and did stipulate only the relevant Cash Market Product (namely NCMIOM), price and volume, any 4040 contract was merely for the sale and acquisition of NCMIOM warrants, in accordance with their terms (relevantly a 24 May 2013 reset date), at the nominated price and in the nominated volume.

29. I am presently not convinced of every step in this argument.

30. First, admission to Trading Status is for a specific Warrant Series with a title and description sufficient to be distinguishable from other Warrant Series already admitted [10.3.2]; and will only be granted if, inter alia, the issuer has prepared and provided to the ASX a final PDS [10.3.3]. In other words, it is on a “series” basis. The NCMIOM Series was unquestionably admitted to trading status.

31. Secondly, I doubt that if ASX were to admit a Warrant Series to Trading Status notwithstanding that the Warrant-Issuer had not furnished a final PDS, such ostensible admission would necessarily be nullified, as against market participants who relied on it, by the ASX’s failure to follow its own prescribed procedures.

32. Thirdly, it is arguable that a Market Participant becomes a “Trading Participant” upon receiving Trading Permission in respect of any product, and that the Trading Platform is not limited to one product. Assuming that Ausiex and Citigroup had Trading Permissions in respect of NCMIOM warrants (and the contrary does not appear to be suggested), I do not think it is unarguable that a matching of Trading Messages between them in respect of such warrants, notwithstanding that they might have referred to a reset date of 9 May 2014, could result in a 4040 contract.

33. However, for reasons which appear below, it is unnecessary to explore these possibilities further, because I am satisfied that the conclusion is unarguably correct: any 4040 contract that ensued from Mr Ong’s pressing the “buy” button was for the sale and acquisition of NCMIOM warrants, in accordance with their terms (relevantly a 24 May 2013 reset date), at the nominated price and in the nominated volume, and did not contain any term to the effect that the warrants would have a next reset date of 9 May 2014. This is because the 4040 contract is in effect an electronic proforma contract, which has a confined set of parameters: namely product designation, price and volume, and no other terms. Beyond its designation, the characteristics of the product depend on and are ascertainable from the documents which create it, and the PDS. The 4040 contract contains no terms about the product’s qualities or characteristics. Nor do the relevant Trading Messages, as is illustrated in the instant case, by the IRESS report. In reflecting only the product, price and volume, the Trading Messages correspond with the requirements of ASCOR 4040. The 4040 contract that Mr Ong triggered was simply one for acquisition of 100,000 NCMIOM warrants at 6.2 cents each. Even assuming that the date 9 May 2014 appeared on the ASX website in connection with NCMIOM, the relevant trading messages referred to NCMIOM warrants simpliciter, and as has been seen, those warrants did not have a next reset date of 9 May 2014, but 23 May 2013. No 4040 contract could have had a term that the NCMIOM warrants to which it related would have a 9 May 2014 reset date.

Could Mr Ong be a party to any such contract and have standing to sue?

34. Citigroup further submits that Mr Ong does not have standing to sue on any 4040 contract, because any such contract is between Ausiex and Citigroup as principals.

35. Under Corporations Act, s 793B(1)(b), the statutory contract constituted by operating rules of a licensed market is one relevantly between the market participants, being persons who are directly allowed to participate in the market under its operating rules [s 761A]. Under ASXOR [4040], the contract is formed between “Trading Participants” (meaning Market Participants which have Trading Permission in respect of one or more Products).

36. It is uncontroversial that Mr Ong is not a “market participant” nor a “Trading Participant”; Ausiex was the relevant Market Participant on the purchaser’s side. Moreover, Mr Ong would have had to acknowledge in his agreement with Ausiex that any contract arising from any order submitted to the Market was entered into by Ausiex as principal.

37. In those circumstances, only Ausiex and not Mr Ong has standing to sue on the contract. [3]

    3. Transmarket Trading Pty Ltd v Sydney Futures Exchange Limited (2010) 188 FCR 1 at [132]-[137].

38. Mr Ong might have standing to sue as a “person aggrieved” if he could establish a failure by Citigroup to comply with ASXOR [s 793C]. However, the only failure to comply with ASXOR that he alleged was the changing of the expiry date without authority contrary to AXSOR Sch 10, cl 10.3.4(a); and once it is appreciated that there never was a warrant series admitted to trading status that had a reset date of 9 May 2014, it becomes clear that that contention cannot succeed. Moreover, whether the relief available under s 793C extends to compensatory orders in the nature of damages is doubtful: it is expressed in terms of “directions … about compliance with, or enforcement of, the operating rules”. In contrast to the market integrity rules, it is not a civil penalty provision,[4] and there is no corresponding provision to authorise a compensation order. [5] For similar reasons, it may be doubted that s 1101B(1)(d) extends to authorise orders in the nature of awards of damages.

    4. Corporations Act, s 798H.

    5. Corporations Act, s 1317HB.

39. I accept that Mr Ong does not have standing to sue on a 4040 contract.

Does it follow that Mr Ong cannot succeed?   

40. However, that does not mean that Mr Ong has no viable cause of action against Citigroup, although it might not be articulated in the current points of claim.

41. First, it has not been shown to be unarguable that the Westpac website is a “direct feed” from the ASX website. If indeed it is, then it has not been shown to be unarguable that Citigroup is in some way responsible for what appeared on the website, so far as the date 9 May 2014 is concerned.

42. Secondly, if (as Citigroup submits) there is no 4040 contract or statutory contract, that does not deny that a collateral contract between Mr Ong and Citigroup could arise from his on-line acceptance of Citigroup’s on-line offer. The reference to 9 May 2014 in connection with NCMIOM would make the offer a very attractive one. It may not have been incorporated into the effectively proforma 4040 contract, but it could amount to a collateral promise, or a representation, that the warrants had or would have that characteristic.

43. Thus in my view it has not been shown to be unarguable that:

1. Citigroup (via the ASX platform) offered for sale NCMIOM warrants upon terms that they would have a 9 May 2014 reset date;

2. Mr Ong accepted that offer by his on-line “buy” order;

3. Thereupon:

1. a 4040 contract was made for the sale of NCMIOM warrants;

2. a collateral contract was made between Mr Ong and Citigroup that Citigroup would cause those warrants to have a 9 May 2014 next reset date;

4. Alternatively, Mr Ong relied on a representation that the warrants had a 9 May 2014 reset date;

5. Citigroup did not cause the warrants to have a 9 May 2014 next reset date.

44. On that analysis, Mr Ong may have arguable claims against Citigroup for damages for breach of the collateral contract or for misrepresentation. Whether such damages would be assessed on a restitutionary, reliance or an expectation basis does not fall for consideration at this stage.

45. Citigroup argued that Mr Ong’s position was opportunistic, and that he must have known that the 9 May 2014 date was an error. This might well ultimately found a defence of mistake, but Citigroup realistically did not suggest that that would suffice for summary disposal.

Conclusion

46. My conclusions may be summarised as follows:

47. There is a fundamental distinction, which the points of claim fail to recognise, between the share warrants, which are choses in action, and the terms of a contract for the sale and purchase of those choses in action.

48. It is plain that Citigroup did not issue NCMIOM warrants which had a reset date of 9 May 2014. Such warrants did not exist, and Mr Ong could not have acquired them, regardless of the terms or representations associated with any contract into which he might have entered. Thus insofar as Mr Ong’s case is that the warrants he in fact acquired had a next reset date of 9 May 2014, it cannot succeed. It also follows that insofar as his case is that Citigroup, in breach of ASXOR Sch 10, cl 10.3.4(a), unilaterally purported to vary the expiry date to 24 May 2013 and cancelled the warrants, it cannot succeed; the NCMIOM warrants he in fact acquired always had a 24 May 2013 reset date.

49. The 4040 contract that Mr Ong triggered was simply one for acquisition of 100,000 NCMIOM warrants at 6.2 cents each. The sole parameters of a 4040 contract are product designation, price and volume, and it contains no terms about the product’s qualities or characteristics. Assuming that the date 9 May 2014 appeared on the ASX website in connection with NCMIOM, the relevant trading messages referred to NCMIOM warrants simpliciter, and those warrants did not have a next reset date of 9 May 2014, but 23 May 2013. No 4040 contract could have had a term that the NCMIOM warrants to which it related would have a 9 May 2014 reset date.

50. Moreover, Mr Ong has no standing to sue on a 4040 contract. Though he might have standing to sue as a “person aggrieved” under s 793C in respect of a failure by Citigroup to comply with ASXOR, the only suggested failure was the alleged changing of the expiry date without authority contrary to AXSOR Sch 10, cl 10.3.4(a), which as the warrant series never had a reset date of 9 May 2014 cannot succeed. Moreover, it is doubtful that the relief available under s 793C and s 1101B(1)(d) extends to compensatory orders in the nature of damages.

51. However, that does not mean that Mr Ong has no viable cause of action against Citigroup. It is not unarguable that Citigroup warranted or represented that the NCMIOM warrants had or would have a 9 May 2014 reset date (which might involve undertaking to amend the terms of NCMIOM), and that Mr Ong relied on that warranty or representation in (electronically) instructing Ausiex to purchase NCMIOM, so as to found a collateral contract (in respect of which he might well have standing), or a claim for damages for misrepresentation.

52. Although for that reason I do not propose summarily to dismiss the proceedings, the application has demonstrated that the plaintiff’s case as presently formulated cannot succeed. If it is to proceed, it should be properly pleaded.

53. The Court therefore orders that:

1. the proceedings continue on pleadings;

2. the plaintiff file and serve his statement of claim within 14 days and pleading thereafter continue in accordance with the rules;

3. the interlocutory process filed on 16 December 2016 be otherwise dismissed;

4. the plaintiff pay the defendant’s costs of the interlocutory process; and

5. the proceedings be adjourned to 18 September 2017 at 10:00am in the Corporations Judge Directions List.

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Endnotes

Decision last updated: 20 July 2017