Oswal v Carson (No 2)
[2014] VSC 209
•12 May 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
S CI 2012 01995
| PANKAJ OSWAL | Plaintiff |
| v | |
| IAN MENZIES CARSON & ORS | Defendants |
and
S CI 2011 04653
| RADHIKA PANKAJ OSWAL | Plaintiff |
| v | |
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED & ORS | Defendants |
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JUDGE: | SIFRIS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2014 | |
DATE OF JUDGMENT: | 12 May 2014 | |
CASE MAY BE CITED AS: | Oswal v Carson & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 209 | |
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PRACTICE AND PROCEDURE – Second application to join additional defendants and further amend Statement of Claim – First application to join additional defendants and further amend Statement of Claim refused - Whether cause of action disclosed – Where Proposed Further Amended Statement of Claim adequately pleaded and particularised with regard to the joinder application - Where Proposed Further Amended Statement of Claim contained new and improved allegations disclosing a cause of action - Second application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff in S CI 2012 01995 | Mr A J L Bannon SC with Mr J M Ross and Ms J Collins | Watson Mangioni Lawyers |
| For the Plaintiff in S CI 2011 04653 | Mr P Durack SC | Jones Day |
| For First to Fourth Defendants | Mr M N Connock SC with Mr J S Graham | Herbert Smith Freehills |
| For the Proposed Fifth to Eighth Defendants in S CI 2012 01995 and for the Sixth Defendant and Proposed Ninth, Tenth and Eleventh Defendants in S CI 2011 04653 | Mr S M Anderson QC with M S Freire | Clyde & Co |
| For the Proposed Ninth Defendant in S CI 2012 01995 and for the Seventh Defendant in S CI 2011 04653 | Mr R W Douglas | Clayton Utz |
| For the Proposed Tenth and Eleventh Defendants in S CI 2012 01995 and for the Eighth Defendant and Proposed Twelfth Defendant in S CI 2011 04653 | Mr M Johns (solicitor) | Maddocks |
HIS HONOUR:
A. Introduction
The plaintiff, Pankaj Oswal (‘Mr Oswal’), was the owner of about 30 per cent of the shares (‘the Shares’) in Yara Pilbara Holdings Limited (‘YPHL’). On 16 December 2010, acting under a Share Mortgage Deed, the fourth defendant, Australia and New Zealand Banking Group Ltd (‘ANZ’) appointed the first, second and third defendants (‘the Receivers’) as receivers of the Shares.
In late January 2012, the Receivers sold the Shares for about $250 million to Apache Fertilisers Pty Ltd (‘Apache Fertilisers’) and Yara Australia Pty Ltd (‘Yara’) (together ‘the Purchasers’).
The plaintiff claims that the Receivers did not obtain a proper price for the Shares and thereby failed to act in good faith. He alleges further that by selling the Shares to the Purchasers, the Receivers put themselves in a position of conflict of interest and that they preferred their own interests to those of the plaintiff. Finally, it is alleged that the Receivers wilfully or recklessly sacrificed the plaintiff’s interests, acted in a manner unfairly prejudicial to the plaintiff and failed to exercise all reasonable care.
As against ANZ, the plaintiff alleges that ANZ controlled the sale process and that the Receivers acted in accordance with the instructions of ANZ.
Similar claims (and further and additional claims) are made by the plaintiff’s wife, Radhika Oswal (‘Mrs Oswal’), in a related proceeding. Mrs Oswal was the owner of 35 per cent of the shares in YPHL.
At present the claim is confined to the Receivers and ANZ.
By summons filed 17 September 2013 the plaintiff made application pursuant to r 9.06 or r 9.02 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) to join the following parties as additional defendants to the proceeding and to amend the Statement of Claim accordingly (‘the first application’). The proposed added parties were:
•Apache Corporation.
•Apache Northwest Pty Ltd (‘Apache Northwest’).
•Apache Energy Ltd (‘Apache Energy’).
•Apache Fertilisers
•Yara
•YPHL.
•Yara Pilbara Fertilisers Pty Ltd (‘YPFPL’).
The application was opposed by the existing defendants and the proposed added defendants. The main contention was that no cause of action was disclosed against any of the proposed added parties.
The first application was dismissed.[1]
[1]Oswal v Carson & Ors [2013] VSC 615 (‘the first judgment’).
The plaintiff sought leave to appeal against the first judgment. Prior to the hearing of the appeal, the plaintiff gave notice of a proposed further amended statement of claim (‘PFASC’) that he contended significantly recast the claim and addressed the issues raised in the first judgment. Having indicated that the matter was best revisited and considered by the trial judge, the appeal was dismissed by the Court of Appeal with costs to be decided by the trial judge.[2]
[2]See Transcript of Proceedings, Pankaj Oswal v Ian Menzies Carson & Ors and Radhika Pakaj Oswal v ANZ Banking Group Limited & Ors (Supreme Court of Victoria, Court of Appeal, S APCI 2013 0183 and S APCI 2013 0184, Nettle and Whelan JJA, 13 March 2014) 10 -15.
The PFASC and joinder application is the subject of a fresh summons filed by the plaintiff on 31 March 2014 (‘the second application’).
The second application was heard and determined on 30 April 2014.[3] The only opposition was by Yara.[4] I acceded to the application and made orders accordingly. I indicated that my reasons would follow. These are the reasons.
[3]The application made in Mrs Oswal’s proceeding was largely the same. Mrs Oswal sought to join Apache Corporation, Apache Northwest Pty Ltd, Apache Energy Pty Ltd and Yara Pilbara Fertilisers Pty Ltd to the proceeding. Yara and Apache Fertilisers Pty Ltd were already parties to Mrs Oswal’s proceeding. The amendments in the proposed further amended Statement of Claim in Mr and Mrs Oswal’s proceedings were also largely equivalent. This judgment will refer to Mr Oswal’s PFASC, however the considerations and the decision are applicable to both.
[4]In the interests of expediting the proceedings, and despite maintaining that there were deficiencies in the PFASC, Apache Corporation, Apache Northwest, Apache Energy and Apache Fertilizers (‘the Apache entities’) consented to the orders sought in both proceedings, except in relation to costs. Likewise, ANZ and the Receivers did not oppose the application in light of changes made.
B. Further Relevant Background
Yara owned the remaining 35 per cent of the shares in YPHL not owned by the Oswals. YPHL owned all the shares in YPFPL, which operated and continues to operate an ammonium nitrate plant located on the Burrup Peninsula in Western Australia.
YPFPL entered into a Gas Sale and Purchase Agreement (‘GSA’) on 17 December 2001 with various gas sellers that included Apache Northwest. The plaintiff alleges that the GSA was a valuable asset of YPFPL.
Apache Northwest issued a force majeure notice to YPFPL under the GSA on or about 23 November 2006 (’the Notice’). YPFPL disputed the Notice and, in about July 2009, proceedings were commenced in the Supreme Court of Western Australia in relation to the gas sellers’ obligations to supply gas for the full term of the GSA and the proper construction of that agreement (‘the GSA Proceeding’).[5] By a further letter dated 22 December 2010 to the Receivers (‘the Letter’), Apache Northwest maintained its claim as set out in the Notice.
[5]The GSA Proceeding was commenced by another gas supplier, Tap (Harriet) Pty Ltd. This company had also issued a force majeure notice. Apache Northwest and others subsequently became parties to the GSA Proceeding.
In December 2008, YPHL executed a term sheet with Yara International ASA for the construction and operation of a technical ammonia nitrate plant located on the Burrup Peninsula (‘TAN Plant’) through an incorporated joint venture vehicle, Burrup Nitrates Pty Ltd. YPHL owned all the issued shares in Burrup Nitrates Pty Ltd.
On 16 December 2010 ANZ appointed the Receivers as joint and several receivers of the Shares.
On 17 December 2010 ANZ appointed the Receivers as joint and several receivers of the assets and undertaking of YPFPL.
From about May 2011 the Receivers commenced a sales and marketing campaign in relation to the Shares. During 2011 there were negotiations between the Receivers, ANZ, Apache Fertilisers and Yara in relation to the sale of the Shares.
On or about 8 November 2011, Yara advised that it would not proceed with the transaction that was proposed at that stage. Thereafter, on or about 28 November 2011, agreements were entered into between amongst others, ANZ, Apache Fertilisers and the Receivers. The agreements comprised a share sale agreement, a deed of indemnity, a deed of settlement and release and an economic adjustment deed.
Further, and most importantly, it is pleaded that as part of the sale, the Receivers entered into a new gas sale and purchase agreement with Apache Northwest (‘New GSA’) and settled the GSA Proceeding. The PFASC refers to all of these agreements as the ’28 November 2011 Transaction’.[6] The New GSA was subject to conditions and in particular recognised that there were pre-emptive rights in relation to the Shares in favour of Yara.
[6]PFASC [14].
It is further pleaded that in or about December 2011 or January 2012, Yara and the Apache entities reached an in principle agreement.[7] It is pleaded that thereafter, on 31 January 2012, the Receivers, ANZ, Yara and the Apache entities entered into a number of agreements referred to as the ’31 January 2012 Transaction’.[8] The agreements included a share sale deed with each of the Purchasers, a deed of indemnity, a deed of release and other side letters and agreements. Clause 9.4 of each share sale deed provided that no claim would be made against the Receivers, other than in relation to identified exclusions.[9]
[7]Ibid [15E].
[8]Ibid [16].
[9]Ibid [16A(e)(B)]. Clause 9.4 of the Yara Share Sale Deed provided that no claim could be made against the Receivers in respect of the conduct of the receivership between 15 December 2011 and 31 January 2012, expect for a claim relating to fraud, gross negligence or wilful misconduct.
The PFASC gives the following particulars, amongst others, of the alleged breaches by ANZ and the Receivers:
(a)the Receivers entered into the New GSA, which was on less favourable terms than the GSA, and settled the GSA Proceeding on a basis that did not reflect YPFPL’s prospects of success;[10]
[10]Ibid [24(h)(xii)].
(b)the Receivers did not conduct a proper sales process for the Shares in that:
(i)they required bidders to resolve the GSA Proceeding with Apache Northwest as a condition of any bid;[11]
[11]Ibid [24(h)(vii)(A) and (B)].
(ii)they commenced and expedited the sale process before the GSA proceeding was resolved or determined by the Court;[12]
(iii)they gave insufficient information to potential purchasers in relation to the GSA Proceeding and the TAN Plant;[13]
(iv)they restricted the class of potential purchasers to those who had operating experience in the ammonia industry;[14]
(v)they entered into the New GSA in circumstances where it was negotiated between Yara and the Apache entities, with regard to their own commercial interests, and not between the Receivers or ANZ with regard to the plaintiff’s interests;[15]
(vi)they engaged Flagstaff Partners (‘Flagstaff’) to advise them regarding the sale of the Shares, when Flagstaff lacked the necessary expertise;[16]
(vii) the Receivers knew or ought to have known that entering into the New GSA and compromising the GSA Proceeding was valuable to the Apache group of companies, and they failed to obtain a price for the Shares that reflected that value;[17]
(viii) they placed themselves in a position of conflict of interests, preferring their own interests to those of the plaintiff;[18] and
(c)clause 9.4 of the share sale deeds required Apache Fertilisers and Yara to procure that YPFPL and YPHL make no claim against the Receivers in respect of the conduct of the receivership (e.g., entering into the New GSA and settling the GSA Proceeding).[19]
[12]Ibid [24](h)(vi)].
[13]Ibid [24(h)(ix)].
[14]Ibid [24(h)(iii)].
[15]Ibid [24(h)(xvii)].
[16]Ibid [12B], [24(h)(v)].
[17]Ibid [24(h)(xvi)].
[18]Ibid [13M], 24(d). (e) and (g)].
[19]Ibid [20U(c)(B)], [24(xv)].
C. The basis of the joinder
Yara and Apache Fertilisers
The plaintiff alleges that the sale of the Shares to each of Apache Fertilisers and Yara ought to be set aside because each of Yara and Apache Fertilisers had notice of the Receivers’ breaches of duties.[20] The PFASC includes particulars regarding Yara’s and Apache Fertilisers’ notice and knowledge in Schedule D, which refers to material allegations made elsewhere in the pleading. These include, amongst other allegations, the fact that Yara knew that that the value of the shares was dependent on the favourable terms of the GSA;[21] that it knew that YPFPL had strong prospects of success in the GSA proceedings;[22] and that Yara knew, and had asserted, that the Receivers had breached their statutory duties in entering into the New GSA and the Deed of Settlement, and knowing this, agreed to clause 9.4 of the share sale deed.[23]
[20]Ibid [51B].
[21]Ibid [12k]. Schedule D (ii)(A).
[22]Ibid [12R] and [12U], Schedule D (ii)(F).
[23]Ibid [20BB], Schedule D (ii)(K).
A further claim is made against Yara to the effect that Yara breached the terms of the Deed of Undertaking and the Shareholders Deed.[24] The PFASC alleges that those deeds required Yara to be just and faithful towards the plaintiff in its dealings with YPHL and YPFPL, to act in good faith, to not employ the assets of YPHL or YPFPL for its own benefit and to not suffer any act or thing that prejudicially affected the interests of YPFPL or YPHL.[25] The proposed amendments refer to clause 12.4(a) of the Shareholders Deed, which required Yara not to suffer any action whereby the interests of the plaintiff may be prejudicially affected or impaired.[26] Consequently, the PFASC alleges that it was appropriate for Yara to take action against the entry into the New GSA and the Deed of Settlement. The PFASC alleges that Yara had identified potential causes of action available to it,[27] and was obliged to commence legal action against the Receivers to protect the interests of YPFPL.[28] Yara is also alleged to have taken positive action in breach of the terms of the Shareholders Deed in negotiating what became the key terms of the New GSA with the Apache entities with regard to its own commercial interests over those of the plaintiff.[29] Further, Yara entered into the 31 January 2012 Transaction and purchased a parcel of both Mr and Mrs Oswal’s shares, knowing that it would obtain material benefits or ‘sweeteners’.[30]
[24]Ibid [20CC].
[25]Ibid [20EE] including particulars.
[26]Ibid [20CC(c)].
[27]Pleaded at PFASC [20Q] to [20BB].
[28]Ibid [20EE(f)(C)].
[29]Ibid [20EE(b)] and particular F.
[30]Ibid [15A] to [16A] and [17A], Schedule D (ii)(J).
Finally, in relation to the Shareholders Deed and the further claim against Yara as set out in paragraph 24 above, it is alleged that the ANZ, the Receivers, Apache Corporation, Apache Northwest, Apache Fertilisers and Apache Energy induced Yara to breach the Shareholders Deed. The alleged inducement in respect of ANZ and the Receivers is the offering of an indemnity to Yara in respect of any claim that the plaintiff might make against it in relation to the New GSA. The Receivers and ANZ also set aside a fund of $20 million from the proceeds of sale against which any such indemnity could be paid. The alleged inducement by the Apache entities comprised the alleged ‘sweeteners’ they gave to Yara.
The Apache Entities
As noted above, the Apache entities did not oppose the plaintiff’s application. The bases of the joinder application regarding Apache Corporation, Apache Northwest and Apache Energy are described in the first judgment.[31] It is not necessary to review them here other than with regard to the plaintiff’s proposed amendments relating to the misleading or deceptive conduct claim against Apache Northwest and Apache Energy.[32]
[31][22]-[24].
[32]PFASC [20D].
The plaintiff alleged misleading or deceptive conduct against Apache Northwest under s 52 of the Trade Practices Act (‘TPA’) (now s 18 of the Australian Consumer Law[33] (‘ACL’)). The misleading or deceptive conduct claim is that by issuing the Notice, and re-iterating it in the Letter, Apache Northwest represented that its only obligation to supply gas under the GSA was limited to gas reserves, in a gas field known as the Harriet Field, and that these reserves were running out. Whether this was the proper construction of the GSA was an issue in the GSA Proceeding. The claim is that the Receivers then communicated those representations to potential purchasers of the Shares, and potential purchasers either did not make offers or offered less for the Shares than they otherwise would have.
[33]Competition and Consumer Act 2010 (Cth) sch 2.
Regarding Apache Energy, it is alleged that Apache Energy conducted meetings with stage 2 bidders and conveyed the same representations as are alleged against Apache Northwest.[34]
[34]PFASC [20B] and [20C].
The plaintiff submitted that even if, as I found in the first judgment, the representations were no more than contentions of Apache Northwest’s opinion, and not actionable conduct under the TPA and ACL,[35] the representation of opinion conveyed that there was a reasonable basis for it.[36] The proposed amendments also include a representation as to its belief in the accuracy of the opinion expressed. The PFASC now alleges that Apache Northwest represented that it had a reasonable basis for its contention, but did not. The plaintiff contended that, amongst other factors, Apache Northwest knew or ought to have been aware of the express terms of the GSA which were inconsistent with the representations made and that there were reserves available to Apache from gas fields other than the Harriet Field.[37]
[35]The first judgment [62].
[36]Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (Provisional Liquidator Appointed) (1984) 2 FCR 82, 88.
[37]PFASC [20E] to [20H].
YPHL and YPFPL
No substantive relief is claimed against YPFPL and YPHL. The plaintiff seeks to add or join them as defendants because their rights might be affected by the orders sought in the PFASC.
Specifically, the setting aside of the New GSA and the reinstatement of the plaintiff as a shareholder of YPHL (and the correction of the register of members). Further, it is submitted that YPFPL and YPHL are parties that ought properly be joined pursuant to r 9.06(b)(i) or alternatively, added pursuant to r 9.02 of the Rules.
D. Relevant legal principles
The principles are not in dispute.
Rule 9.06(b) of the Rules provides:
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that—
…
(b)any of the following persons be added as a party, namely—
(i) that person ought to have been joined as a party or if that person’s presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)there may exist between that person and any party to the proceeding a common question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between the person and the parties to the proceeding.
Rule 9.02 provides:
9.02 Permissive joinder of parties
Two or more persons may be joined as defendants to a proceeding:
(a)where-
(i)if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and
(ii)all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b)where the Court, before or after the joinder, gives leave to do so.
A person who might be adversely affected by an order that is sought is a proper party to be joined.[38]
[38]Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 [12].
Rule 9.02 should be construed liberally so as to permit joinder of parties whenever reasonably practical.[39]
[39]Payne v Young (1980) 145 CLR 609, 611 (Aickin J).
The principle to be applied in determining whether to exercise the discretion to grant leave under r 9.02(b) is that the court should take whatever course seems to be most conducive to a just resolution of disputes between the parties, but must be satisfied that joinder is unlikely to result in any unfairness to any party having regard to practical matters.[40]
[40]Solomon Lew & Ors v Adam Priester & Ors [2012] VSC 57 [14] citing Bishop v Bridgelands Securities (1990) 25 FCR 311, 314.
E. Yara’s opposition to Joinder
Yara opposed the joinder and submitted that the PFASC, despite extensive amendment and particularisation, does not disclose any cause of action against it, for substantially the same reasons as those advanced in the first application.
The plaintiff submitted that the changes were substantial and significant and overcome the identified difficulties with the earlier version, the subject of the first application. Accordingly, it was contended that the PFASC properly discloses as against Yara the two causes of action relied on, namely, notice of breach of duty by the Receivers, and breach of the various Deeds.
In my opinion, despite the length, intricacy, enormous detail, historical context and form of the PFASC it sufficiently discloses the causes of action relied on. Much of Yara’s submissions were directed to the strength of any case against it, rather than the adequacy of the pleading. It is not easy to plead the causes of action in the context of a case involving multiple parties and substantial factual matters, much in dispute, that underpin the various causes of action against different defendants. Some leeway must be given to the pleader. The pleading is adequate and I do not propose to engage in – nor is it desirable to do so – an intense and microscopic analysis of the PFASC.[41]
[41]The case requires intensive case management to focus on the real and critical issues.
It is clear that Yara is a relevant and necessary party to the proceeding and its conduct cannot and should not escape scrutiny. Yara cannot avoid the fact that it had notice of the matters said to constitute the breach of duty by the Receivers and that it was a co-shareholder with contractual duties. Issues of timing, the extent of Yara’s obligations, knowledge and involvement are matters for trial and indeed Yara may be wholly successful.
The critical allegation that in my opinion compels the joinder is the allegation that Yara had notice of the relevant matters that are alleged to underpin the Receiver’s breaches of the pleaded duties. Each of these matters has now been adequately pleaded and particularised.[42]
[42]See footnotes 11 through 24 above.
Yara contended that the PFASC (as with the previous version) does not articulate a legal basis or cause of action that would cause the agreements in relation to the sale of the Shares to be set aside. It was contended that the Receiver’s duties were not fiduciary in nature but, as agents for the plaintiff, required acting in good faith and for a proper purpose. Breach of these duties, it was contended did not result in the agreements in relation to the sale of the Shares being void or liable to be set aside, particularly in circumstances where there was no wilful disregard of the plaintiff’s interest on the part of the Receivers. Further, it was contended that the Purchasers were not complicit in or did not have knowledge or notice to the requisite degree, of any improper conduct or bad faith on the part of the Receivers.
In addition it was submitted that the pleading does not allege conduct on the part of the Receivers that reaches the standard of wilful disregard of the plaintiff’s interest as opposed to want of proper care and, in one respect, self-interest.
Yara contended further that the correspondence relied upon to establish its knowledge was incapable of supporting knowledge of the alleged duties or the wilful or reckless disregard of the plaintiff’s interest on the part of the Receivers. In addition to the arguments submitted in the first application,[43] Yara submitted that the PFASC did not establish notice of the alleged breaches of the Receivers with respect to the sale of the Shares. It was submitted that:
(a)Yara was not a party to most of those items of correspondence which are the foundation of (and delimit) the allegations;
(b) the PFASC fails to provide material facts upon which to base the assertion that the Apache entities and Yara would have paid more for the Oswal’s shares but for the inclusion of cl 9.4 in the Share Sale Deed; or that they had actual knowledge that the Receivers were wilfully or recklessly sacrificing the Oswals’ interests by agreeing to the clause;
(c)the amendments do not identify the ‘sweeteners‘ which Yara was alleged to receive upon entering into the Share Sale Deed; and
(d)none of the items of correspondence refer to the discharge of any duties which the Receivers and ANZ may have owed to the Oswals or establish that Yara was aware of any of the matters which are pleaded as particulars to the alleged breaches of duty in paragraph 24 of the PFASC.
[43]The first judgment [36].
It was further submitted by Yara that the lack of any real connection between Yara and the conduct of the receivership over the YPHL shares formerly held by Mr and and Mrs Oswal (in the correspondence and otherwise) was unsurprising. Yara had little interest in the Receivers’ conduct of the sale process for the Oswals’ YPHL shares due to the existence of pre-emptive rights under the Shareholders Deed. Yara was entitled to be offered the shares on terms not less favourable than those offered to any other contemplated purchaser. Further, Yara, it was submitted, lacked standing to complain about the discharge of duties which the Receivers owed to the Oswals.[44]
[44]See Oswal v Yara Australia Pty Ltd (No 2) [2011] WASC 146.
Finally, it was contended in effect that restitutio in integrum was not possible.
In my opinion, as noted earlier in these reasons, the PFASC, containing new and improved allegations, sufficiently discloses a cause of action against Yara. Further, I am satisfied that it is desirable to join Yara as a defendant to this proceeding.
As pointed out, it is pleaded that the Purchasers (including Yara) ‘were on notice or ought to have known of the breaches of duty by the Receivers …’.[45] The alleged breaches are pleaded in paragraphs 24 and 51. Finally it is pleaded that this knowledge, as a matter of law, was sufficient to set aside the various agreements.[46]
[45]PFASC [51B].
[46]Ibid [51C] to [51F].
In Barns v Queensland National Bank Ltd & Anor,[47] the High Court said:
It remains to consider the measure of damages. In the case of the improper exercise of a power of disposition of property, the appropriate remedy, if available, is to set the transaction aside, and to restore the property to the person from whom it has been improperly divested. If the purchaser had notice of the facts which render the exercise of the power improper, this remedy is available. But if he is a bona fide purchaser for value without notice of the facts, and has already acquired the legal estate, this remedy is not available as against him.[48]
[47][1906] 3 CLR 925.
[48]Ibid, 945. Emphasis added.
In Forsyth & Anor v Blundell & Anor,[49] Walsh J said:
But if the person who agrees to purchase has no notice of any impropriety at the date of contract and continues to have no notice at the time when it is completed, he will obtain a title which cannot be challenged by the mortgagor.[50]
[49](1973) 129 CLR 477.
[50]Ibid, 497.
As the authorities demonstrate, in an appropriate case a transaction may, even if completed, be set aside if a purchaser had notice of the relevant facts relating to the improper exercise of power.
The Receivers’ duties are pleaded in paragraphs 21 to 22B of the PFASC. Earlier amendments, which were not opposed, expanded the duties to include duties not to prefer their (or ANZ’s) interests, to avoid any conflict of interest, not to wilfully or recklessly sacrifice the interests of the plaintiff and a duty not to act in a manner unfairly prejudicial to the plaintiff.
Proposed amended paragraph 23 pleads the failure to obtain a proper price for the Shares. Proposed paragraph 24 pleads breaches of the pleaded duties with regard to the sale of the Shares. Substantial additional particulars have been provided. The PFASC introduces further breaches and provides further particulars. The proposed amendments plead that the Receivers (and/or the ANZ) wilfully or recklessly sacrificed the plaintiff’s interests and acted in a manner unfairly prejudicial to the plaintiff.[51]
[51]PFASC [24(g) and (h)].
Notice of the alleged duties is pleaded in the proposed paragraph 51A. Particulars dealing with the knowledge of Yara and Apache Fertilisers of these duties are provided in Schedule C.[52]
[52]The schedules refer to material allegations pleaded elsewhere in the PFASC.
Notice of the alleged breaches of duty is pleaded in the proposed paragraph 51B. Particulars dealing with the knowledge of Yara and Apache Fertilisers of the breaches are provided in Schedule D.
As noted earlier, I am satisfied that the PFASC articulates with sufficient particularity the basis on which it is said that Yara had notice of those critical and relevant facts that it is contended comprise the breach of duty. It is now adequately pleaded and particularised as to why the compromise of the GSA Proceeding and the entry into the New GSA had the effect of obtaining a lower price for the Shares. The assertion is no longer a bare assertion.
The gravamen of the various pleaded good faith and best endeavours type breaches is that in the peculiar circumstances and context it was incumbent upon Yara to do something. Not only did it do nothing but it went ahead and bought the Shares. The legal and factual matters in relation to this claim are complex and mostly matters for trial. Given the clear view I have taken in relation to the joinder and other cause of action against Yara, I do not propose to consider this aspect any further. The relevant factual matters that underpin this breach will be before the Court and the basis of the claim is adequately pleaded.
F. Further relevant matters
There are a number of other matters that are relevant and inform the view I have taken.
Apache and Yara are already parties to the proceedings brought by Mrs Oswal against the Receivers and ANZ in which Mrs Oswal claims relief including setting aside the sale of her shares. There can be no doubt that Mr Oswal’s proceedings will be heard concurrently with Mrs Oswal’s proceedings. Hence, the Apache and Yara parties will be there for the duration in any event. Further the Apache entities have not opposed the joinder or amendments.
The unamended proceedings will in any event involve an exploration of each of the agreements and why the Receivers and ANZ did what they did in selling the shares, why they dealt with Yara and the Apache entities in the way they did and why they dealt with them at the price they did. For example, the impact of Apache Northwest’s assertions the subject of the GSA Proceedings on bidding parties and on the Receivers and ANZ, lie at the heart of the current proceedings. It is inevitable that the Receivers and ANZ will assert that they achieved the best price they could, given the existence of the GSA Proceedings.
A key complaint in the existing proceedings is that the Receivers and ANZ compromised the GSA Proceedings without having regard to the prospects of succeeding in those proceedings and it is contended that that failure caused the plaintiff loss. That is an allegation that there was loss because the outcome of the GSA Proceedings would have been success for YPFPL. Thus, there is already an issue as to the proper construction of the GSA and hence the likely outcome of the GSA Proceedings.
It is inevitable that the Receivers and ANZ will contend that they got the best price they could, given the existence of the Shareholders Deed between Yara and Mr Oswal and the pre-emption rights therein. The complex agreements under which Mr and Mrs Oswal’s shares were sold by the Receivers to Yara and Apache will be explained in precisely that way in the unamended proceedings. The new allegations of course say, in part, that if Yara was using the rights under that deed, it was doing so in circumstances where it was breaching other terms of the same deed, and breaching them with the knowledge and inducement of the Receivers, the ANZ and Apache.
G. Disposition
For these reasons, the relief sought in the second application was granted and orders in both Mr and Mrs Oswal’s proceedings made accordingly. Costs of the appeal and this application will be dealt with separately.
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