Pacek & Saltzer (No 4)
[2025] FedCFamC1F 252
•30 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pacek & Saltzer (No 4) [2025] FedCFamC1F 252
File numbers MLC2954 of 2020
MLC7293 of 2024
#…78
#…07Judgment of WILSON J Date of judgment 30 April 2025 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – respondents ordered to execute deeds and instruments to indemnify the applicant – respondents failing to execute the relevant documents – applicant seeking orders requiring a registrar of this court to execute documents to give effect to the orders made on 17 October 2024 – held, a registrar must execute documents.
FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – two proceedings transferred to this court from the Supreme Court of Victoria – no cause of action survives either proceeding – held, the two proceedings cross-vested to this court from the Supreme Court of Victoria are dismissed pursuant to r 10.22.
FAMILY LAW – CORPORATIONS LAW – s 199A of the Corporations Act – whether s 199A applies to indemnities given in pursuance of court orders rather than voluntarily – detailed consideration of the statutory provisions containing a prohibition on companies indemnifying directors.
Legislation Corporations Act 2001 (Cth) ss 199A, 199B, 199C
Companies (Victoria) Code 1981 s 237
Corporations Law s 241
Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 79, 90AE, 95, 106A
Interpretation of Legislation Act 1984 (Cth) s 15AA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.22
Cases cited Alexander v Ajax Insurance Co Ltd [1956] VR 436
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Minister for Immigration and Multicultural and Indigenous Affairs v Nystram (2006) 228 CLR 566
Pacek & Saltzer (No 3) [2024] FedCFamC1F 680
QBE Underwriting Ltd v Southern Colliery Maintenance Pty Ltd (2018) 97 NSWLR 459
Rainer & Lopez [2025] FedCFamC1F 214
Re Brazilian Rubber Estates [1911] 1 Ch 425
Re City Equitable Fire Insurance Co Ltd [1925] Ch 407
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Sun & Yeng (No 5) [2024] FedCFamC1F 702
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
University of Woolongong v Metwally (No 2) (1985) 59 ALJR 481
Wallaby Group Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444
Whitlam v National Roads & Motorists Association Ltd (2006) 58 ACSR 370
Division Division 1 First Instance Number of paragraphs 58 Date of hearing 1 and 9 April 2025 Date of last submission 9 April 2025 Place Melbourne In MLC 2954 of 2020 Counsel for the applicant Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland Solicitor for the applicant ISAKOW Lawyers Counsel for the respondent Mr T. North SC with Mr C. Dunlop Solicitor for the respondent J and K Law In MLC 7293 of 2024 Counsel for the applicant Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland Solicitor for the applicant ISAKOW Lawyers Counsel for the respondent Mr T. North SC with Mr C. Dunlop Solicitor for the respondent J and K Law In E SCI 2022 04678 Counsel for the plaintiffs Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland Solicitor for the plaintiffs ISAKOW Lawyers Counsel for the defendant Mr T. North SC with Mr C. Dunlop Solicitor for the defendant J and K Law In E SCI 2023 03607 Counsel for the plaintiffs Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland Solicitor for the plaintiffs ISAKOW Lawyers Counsel for the defendant Mr T. North SC with Mr C. Dunlop Solicitor for the defendant J and K Law ORDERS
MLC 2954 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS PACEK
Applicant
AND MR SALTZER
Respondent
MLC 7293 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS PACEK
Applicant
AND MR SALTZER
First Respondent
AND H PTY LTD
Second RespondentAND Q PTY LTD
Third RespondentAND W PTY LTD
Fourth RespondentAND V PTY LTD
Fifth RespondentAND E PTY LTD
Sixth RespondentAND SALTZER PTY LTD
Seventh Respondent
#...78 IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LISTBETWEEN H PTY LTD
First PlaintiffAND
SALTZER PTY LTD
Second PlaintiffAND Q PTY LTD
Third PlaintiffAND E PTY LTD
Fourth PlaintiffAND W PTY LTD
Fifth PlaintiffAND V PTY LTD
Sixth PlaintiffAND MS PACEK
Defendant
#...07 IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LISTBETWEEN H PTY LTD
First PlaintiffAND Q PTY LTD
Second PlaintiffAND E PTY LTD
Third PlaintiffAND V PTY LTD
Fourth PlaintiffAND MS PACEK
Defendant
ORDER MADE BY
WILSON J
DATE OF ORDER
30 APRIL 2025
THE COURT ORDERS THAT –
1.A registrar of the Federal Circuit and Family Court of Australia (Division 1) must forthwith execute the documents exhibited at pages 46 to 83 of exhibit DI-1 to the affidavit of Daniel Isakow made 18 November 2024.
2.The litigation commenced in the Supreme Court of Victoria in proceeding #..78 and in proceeding #...07 is hereby dismissed pursuant to rule 10.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pacek & Saltzer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
Since handing down reasons for judgment on 17 October 2024,[1] the wife has invoked paragraph 5 of the orders made that day by applying –
(a)for the dismissal of the two Supreme Court of Victoria proceedings cross-vested to this court by order of Delany J;
(b)to be indemnified in respect of costs she incurred in those two Supreme Court proceedings cross-vested to this court; and
(c)for costs of those two Supreme Court proceedings cross-vested to this court.
[1] Popovic & Sergi (No 3) [2024] FedCFamC1F 680.
No stay application has been brought nor has leave to appeal been applied for nor granted in respect of the orders made on 17 October 2024.
The orders of 17 October 2024 were made following consent orders being pronounced by Bennett J on 14 April 2022. Three years have elapsed since the making of those consent orders and the wife has still not obtained the benefit of the orders Bennett J pronounced.
THE INDEMNITY
Expressed most basically, pursuant to the consent orders made 14 April 2022 Mr Saltzer, in his personal capacity and in his capacity as a director of each of the entities mentioned in paragraph 1 of the 17 October 2024 orders was required to do all things and sign all documents prepared by Ms Pacek’s solicitors (at Mr Saltzer’s expense) to release and discharge Ms Pacek from any claim that any one of them may have had against her and to pay and indemnify her in respect of all liability thereof.
According to Mr Isakow, Ms Pacek’s solicitor, he sent to Mr Saltzer’s solicitor on 8 November 2024 –
(a)seven deeds of release, discharge and indemnity; and
(b)six memoranda of resolution of sole director and secretary
for execution by Mr Saltzer. Mr Isakow deposed to none of those instruments having been executed, despite the passing of over five months. Mr Isakow foreshadowed an application being made under s 106A of the Family Law Act for those deeds and other instruments to be executed without Mr Saltzer’s involvement. In his 8 November 2024 letter to Mr Saltzer’s solicitors, Mr Isakow sought the consent of Mr Saltzer and his companies to concluding matters by the dismissal of the Supreme Court proceedings cross-vested to this court by order of Delany J and by the payment to Ms Pacek of an amount by way of costs of $850,000.[2] The proposal in Mr Isakow’s 8 November 2024 letter lapsed on 15 November 2024.
[2] That amount was said to represent a substantial discount on full indemnity costs.
This proceeding is in the Major Complex Financial Proceedings List the underpinning philosophy, practice and procedure of which is to permit parties to bring to the attention of the judge before whom the case is docketed any issue that might impede getting to the heart of any particular case in a manner that is as time efficient and cost effective as possible and with minimum formality. Those representing Mr Saltzer and his companies perceived of complications in connection with the indemnities ordered pursuant to paragraph 3 of the 17 October 2024 orders. They raised for the first time (the point not having been taken on 30 September 2024 when the main debate was argued) that s 199A, s 199B and s 199C of the Corporations Act were relevant to the enforceability of the indemnity ordered on 17 October 2024. Importantly, not the slightest suggestion was made, hinted at or developed about s 199A, s 199B or s 199C nor, for that matter, were those sections even mentioned, when Mr L. Magowan of counsel who, with Mr D. Kaufman of counsel, appeared for the Saltzer interests before me on 30 September 2024. The contentions about s 199A, s 199B and s 199C emerged after the pronouncement of orders on 17 October 2024 and after the delivery of 152 paragraphs of my reasons over 47 pages of reasons. It was a most peculiar state of affairs that the point was not raised on 30 September 2024 but instead appeared by a sidewind in the amended written undated submissions of the Saltzer entities filed 18 December 2024 ahead of the appearance before me on 1 April 2025. If the point has the importance that Mr North SC attached to it, it beggars belief that the point was not pressed very hard (or for that matter, at all) on 30 September 2024.
In more recent debate before me, Mr North SC for Mr Saltzer and the Saltzer entities submitted that the debate about the efficacy of the indemnity ordered in paragraph four of the 17 October 2024 orders was not directed to any jurisdictional challenge but rather that it was a debate concerning the efficacy and construction of the indemnity recorded in the consent orders.
While the main arena of debate before me on 1 and 9 April was the operation of s 199A, s 199B and s 199C of the Corporations Act, it is as well to record the essential characteristic of an indemnity. In Sunbird Plaza Pty Ltd v Maloney[3] the High Court of Australia held that an indemnity is a promise by one contracting party to make good the loss of another. Similar observations were made in Wallaby Group Ltd v QBE Insurance (Australia) Ltd[4] as well as in QBE Underwriting Ltd v Southern Colliery Maintenance Pty Ltd.[5] In Andar Transport Pty Ltd v Brambles Ltd[6] the High Court held that an indemnity is designed to satisfy a liability owed by someone to another (other than a guarantor or indemnifier of a third person). Ordinarily, the party giving the indemnity will not be in breach until the indemnified party has made a claim under the indemnity and that such claim has been refused.
[3] (1988) 166 CLR 245.
[4] (2010) 240 CLR 444, 458.
[5] (2018) 97 NSWLR 459, 473.
[6] (2004) 217 CLR 424.
Section 199A of the Corporations Act was introduced as part of a collection of legislative reforms to the law relating to corporations recorded in the Corporate Law Economic Reform Programme. Section 199A, s 199B and s 199C of the Corporations Act 2001 commenced operation on 1 July 2001. The predecessor to s 199A was s 241 of the Corporations Law. In turn, the predecessor to s 241 of the Corporations Law was s 237 of the Companies Code.
In Whitlam v National Roads & Motorists Association Ltd[7] Bergin J[8] traced the legislative history of s 199A of the Corporations Act and its relationship with the decision of the English Court of Appeal in Re City Equitable Fire Insurance Co Ltd.[9] In that English decision the court was concerned with articles of association of a company that exempted directors from loss except when resulting from “wilful neglect or default”. The 1926 Company Law Amendment Committee report, known universally as the Greene Committee report, also focused on provisions in company articles that exempted directors from loss except in the circumstances of actual dishonesty, as was under consideration in Re Brazilian Rubber Estates.[10] Of those clauses, in Austin & Black’s Annotations to the Corporations Act[11] the following appears –
“The Committee (at [46]) expressed the opinion that this type of article gave quite unjustifiable protection to directors, who would be protected by the article even if they were guilty of the grossest negligence, provided they did not consciously do anything that they recognised to be improper. The Committee recommended (at [47]) that any contract or provision (whether contained in the company’s articles or otherwise) whereby a director, manager or other officer of a company was to be excused from or indemnified against his liability under the general law of negligence or breach of duty or breach of trust should be declared void.”
[7] (2006) 58 ACSR 370.
[8] Later, Bergin CJ in Eq of the Supreme Court of New South Wales.
[9] [1925] Ch 407.
[10] [1911] 1 Ch 425.
[11] July 2020, Part 2D, 199A.
According to the 1937 edition of Spencer & Wallace, Company Law and Practice: Based on the Companies Act 1936,[12] the learned authors recorded that the recommendations of the Greene Committee represented an important and salutary change. That was because articles of association that sought to exonerate directors, officers and auditors “frequently worked great hardships upon the general body of shareholders”.
[12] 1937 (Law Book Co. of Australasia).
It is fair to say that the ambit of the prohibition in s 237 of the Companies (Victoria) Code 1981 carried forward into the Corporations Law as s 241 concerning the indemnification of directors was far from clear.[13] Section 241 was amended in 1994 and on 13 March 2000, s 241 became s 199A upon the enactment of the Corporations Act.
[13] Whitlam v National Roads & Motorists Association (2006) 58 ACSR 370 (at [45]).
Section 199A is in the following terms –
“(1)A company or a related body corporate must not exempt a person (whether directly or through an interposed entity) from a liability to the company incurred as an officer or auditor of the company.
Note: This section is modified for the director of a wholesale CCIV: see subsection 1224D(7). This section has an extended operation in relation to officers and auditors of the corporate director of a CCIV: see section 1225E.
When indemnity for liability (other than for legal costs) not allowed
(2)A company or a related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer or auditor of the company:
(a) a liability owed to the company or a related body corporate;
(b)a liability for a pecuniary penalty order under section 1317G or a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE;
(c)a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith.
This subsection does not apply to a liability for legal costs.
When indemnity for legal costs not allowed
(3)A company or related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred:
(a)in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (2); or
(b) in defending or resisting criminal proceedings in which the person is found guilty; or
(c)in defending or resisting proceedings brought by ASIC or a liquidator for a court order if the grounds for making the order are found by the court to have been established; or
(d)in connection with proceedings for relief to the person under this Act in which the Court denies the relief.
Paragraph (c) does not apply to costs incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for the court order.
Note 1: Paragraph (c)--This includes proceedings by ASIC for an order under section 206C, 206D, 206E or 206EAA (disqualification), section 232 (oppression), section 961M, 1317E, 1317G, 1317H, 1317HA, 1317HB, 1317HC or 1317HE (civil penalties) or section 1324 (injunction).
Note 2: The company may be able to give the person a loan or advance in respect of the legal costs (see section 212).
(4)For the purposes of subsection (3), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.”
Section 199B of the Corporations Act is in the following terms –
“(1)A company or a related body corporate must not pay, or agree to pay, a premium for a contract insuring a person who is or has been an officer or auditor of the company against a liability (other than one for legal costs) arising out of:
(a)conduct involving a wilful breach of duty in relation to the company; or
(b) a contravention of section 182 or 183.
This section applies to a premium whether it is paid directly or through an interposed entity.
Note: This section has an extended operation in relation to officers and auditors of the corporate director of a CCIV: see section 1225E.
(2) An offence based on subsection (1) is an offence of strict liability.”
Section 199C is in the following terms –
“(1)Sections 199A and 199B do not authorise anything that would otherwise be unlawful.
(2)Anything that purports to indemnify or insure a person against a liability, or exempt them from a liability, is void to the extent that it contravenes section 199A or 199B.”
THE PARTIES’ SUBMISSIONS
Written submissions were prepared by counsel for the wife on 18 November 2024 and 28 March 2025 and viva voce submissions were addressed by lead counsel for the wife, Mr I. Coleman SC on 1 and 9 April 2025.
Written submissions were prepared by counsel for Mr Saltzer and his entities and on 18 December 2024 those submissions were filed.
On the indemnity issue, the wife’s written submissions were dated 7 April 2025 and the undated written submissions of Mr Saltzer and his entities were also filed on 7 April 2025.
Mr North SC and Mr Coleman SC addressed on 1 and 9 April 2025.
Paragraph 5 of the 17 October 2024 orders was in the following terms –
“Any affidavit material and submission on which the wife intends to rely in relation
to –
(a)her application for the dismissal of the two Supreme Court proceedings cross-vested to this court by order of Delany J;
(b)her application to be indemnified in respect of costs she has incurred in the two Supreme Court proceedings cross-vested to this court by order of Delany J; and
(c)her application for costs of this proceeding or of the two Supreme Court proceedings
must be filed and served by midday on 18 November 2024.”
Paragraph 6 of the 17 October 2024 orders was as follows –
“Any affidavits and submissions on which the husband or the companies (as defined) wish to rely in opposition to the wife’s applications referred to in paragraph 5 hereof must be filed and served by midday 17 December 2024.”
It is convenient to address the submissions of all parties in a manner that corresponds with the sequence of paragraph 5 of the 17 October 2025 orders.
Between paragraphs 140 and 147 of the reasons for judgment in Pacek & Saltzer (No 3)[14] I canvassed the current status of the two separate pieces of litigation transferred to this court by order of Delany J. In respect of the proceeding for the production of books and records I made two relevant observations. Those were –
(a)having regard to the wife’s compliance with her obligations to produce books, the proceeding for the recovery of books and records may well be nugatory; but
(b)it had not been debated on 30 September 2024 whether or not that proceeding should be struck out.
[14] [2024] FedCFamC1F 680.
In respect of the proceeding concerning the alleged breach of fiduciary duty by the wife, additional although different considerations applied. Those were –
(a)it was arguable that the breach of fiduciary duty case would not have come into existence at all if the husband and the companies he controlled did as the consent orders required them to do by executing releases;
(b)rather than executing the releases, the husband and his companies commenced a proceeding for breach of fiduciary duty which they could not have done if they had executed the release in terms of paragraph 10 of the consent orders; and
(c)the application for the dismissal of the two Supreme Court proceedings was not before me on 30 September 2024 so it was not competent for me to consider any such application on that occasion.
Counsel for the wife submitted that both Supreme Court proceedings must be dismissed because neither can now be maintained having regard to the ambit of the 17 October 2024 orders. Counsel for the wife submitted –
(a)Delany J was correct when observing that the two Supreme Court proceedings could not continue once the enforcement application was determined in the wife’s favour;
(b)no books and records remain to be produced and therefore the Supreme Court proceeding in which such relief was sought is now otiose; and
(c)now that the husband and his entities have been ordered to give releases in the manner provided for in paragraph 4 of the 17 October 2024 orders, the cause of action in the Supreme Court proceeding in which the wife is sued for breach of fiduciary duties necessarily evaporates.
Mr Saltzer and his interests argued that the question of the dismissal of the two Supreme Court proceedings was linked to the s 199A point.
On 1 April 2025 the s 199A proposition was raised by Mr North SC in arguendo. Of importance were the following contentions advanced by Mr North –
(a)the orders made by Bennett J and by me must be construed in light of the operation of s 199A;
(b)no question of jurisdiction is enlivened;
(c)the orders in question operate differently in respect of the corporate entities than in respect of Mr Saltzer by force of s 199A;
(d)the factual circumstances associated with both pieces of Supreme Court litigation necessarily enlivened the application of s 199A of the Corporations Act;
(e)the mere fact that any one of the corporate entities has brought a claim against the wife means that any indemnity referrable to that claim enlivens s 199A of the Corporations Act;
(f)until a finding of fact is made it will not be possible to ascertain whether the claim is one that relates to the wife having committed a wilful breach of duty in relation to the relevant company;
(g)the analogy of a claim to indemnification being contractual in nature is not entirely apposite in the circumstances of this case because the indemnity arises from court order;
(h)it is necessary to know what the metes and bounds of the indemnification are in the context of an indemnity arising from court order;
(i)if the indemnity, properly construed, is one to which s 199A of the Corporations Act applies, the relevant company purporting to give the indemnity cannot give it; and
(j)the orders made by Bennett J and by me that involve any of the Mr Saltzer companies indemnifying the wife need to be construed in such manner as to not offend s 199A of the Corporations Act.
At the suggestion of Mr Coleman SC in which Mr North SC agreed, I gave the parties until 4.00pm on 4 April 2025 for the filing of any further submissions on the s 199A point. All parties complied.
It is as well to the address first the submissions of Mr Saltzer and his companies. Their counsel argued that s 199A(2) prohibits a corporation indemnifying a person for liabilities incurred as an officer of the corporation.[15] That was not a faithful recital or even paraphrasing of s 199A(2). That section, relevantly paraphrased, provides that a company must not indemnify a person against any of the following liabilities incurred as an officer of the company –
(a)a liability owed to the company;
(b)a liability for a pecuniary penalty order or a compensation order; and
(c)a liability that is owed to someone other than the company.
[15] This was paragraph 1 of their supplementary submissions.
The word “liability” is defined to include a duty or obligation.
As a matter of statutory construction, in my view each reference to “liability” in s 199A(2) relates to an existing liability as opposed to a prospective or anticipated liability. Even recognising that the word “liability” includes a duty or obligation, that duty or obligation may not have been breached in the facts of a given case. Hence, while a director of a company owes fiduciary duties to the company he or she directs, no indemnity will arise unless he or she commits an actionable breach of that duty and the company (or in a derivative action, some other person) sues for indemnification in respect of the loss occasioned by the breach. It is conceivable that a breach of duty may occur yet no loss is sustained in which case no claim for indemnification would be maintainable and even if declaratory relief were sought for any such breach, it is near impossible to see how a claim for indemnification in respect of a declaration could arise.
Section 199A(2)(a) speaks of a liability owed to the company. On its ordinary meaning, that phrase is likely to apply mostly to a sum of money owed to the company, whether as liquidated damages or as a debt.[16] A pecuniary penalty order is a sum certain as is a compensation order.
[16] Alexander v Ajax Insurance Co Ltd [1956] VR 436 and Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, 142.
In this case, one of the Supreme Court proceedings involves an assertion that the wife is liable to the company for a breach of one or more fiduciary duties. Several things must be said of that. First, that claim is and remains no more than an assertion at this stage. Nothing beyond a statement of claim has been filed in support of the assertion. A pleading is not evidence.
Second, no evidence exists nor has any finding by a court of competent jurisdiction been made that the wife has actually breached any duty alleged by the plaintiffs which sue her.
Third, at any time the plaintiffs which have commenced the breach of duty litigation may discontinue that proceeding or settle it with the consequence that, according to Mr Saltzer and his entities, the wife is at risk of the application of s 199A until the plaintiffs put an end to that proceeding. That very circumstance was addressed by Professor Ian Ramsay in his 1987 article, then in reference to provisions of s 237.[17] Professor Ramsay posited directors being indemnified where –
(a)a proceeding in which the director was a defendant and the proceeding was discontinued; and
(b)a proceeding in which the director was a defendant and the proceeding was settled.
[17] Ian Ramsay, Liability of Directors for Breach of Duty and the Scope of Indemnification and Insurance (1987) Companies and Securities Law Journal 129.
The 1990 Companies and Securities Law Review Committee’s report No 10 addressed the primary reason for the review of the law relating to indemnification of directors and officers being uncertainty in the commercial and legal communities about the scope of the then operative s 237, a measure said to invalidate certain provisions giving protection to directors and officers. Report No 10 said the following –
“The central matter of policy behind s 237 is that shareholders and creditors should not be unfairly prejudiced by directors and officers (among others) being able to insulate themselves from liability for breaches of duty.”
Bergin J (as her Honour then was) relied on that extract in Whitlam v National Roads and Motorists Association Ltd.[18]
[18] (2006) 58 ACSR 370, 382 (at [45]).
The learned authors of Austin & Black’s Annotations to the Corporations Act highlight how s 199A(2) operates in such manner that a company is able to indemnify its officers in circumstances where there is no absence of good faith in the conduct of the officers.
Having regard to certain of the observations recorded above, it is possible to state some matters of principle arising from s 199A and its legislative forerunners. They are –
(a)the policy underpinning the prohibition against permitting companies to indemnify their directors is the law’s concern that shareholders and creditors should not be unfairly prejudiced by directors being able to insulate themselves from liability for breach of duty; and
(b)the section does not prevent a company indemnifying its directors so long as there is no absence of good faith in the director’s conduct.
In this case the shareholding in the relevant companies is not in the hands of the public. These are family companies owned and controlled for the most part by Mr Saltzer. Prior to the consent orders being made, they were mostly deadlocked. But none involved members of the public holding shares in them nor did any involve the central policy recorded in report 10 of the Companies and Securities Law Review Committee, namely, that shareholders and creditors should not be unfairly prejudiced by directors being able to insulate themselves from liability for breach of duty. The companies with which this case is concerned are not public listed companies. They are owned and controlled for the most part by Mr Saltzer. The central policy canvassed in report 10 has no application because there are no shareholders and creditors to be unfairly prejudiced by a director insulating himself or herself from breach of duty. The terms of settlement leading to the consent orders were entered into with the parties being fully advised, there being no prejudice (let alone unfair prejudice) to a shareholder adversely affected by a director endeavouring to insulate herself from a breach of duty. The husband freely agreed to the terms of settlement and, on advice, freely consented to the orders pronounced by Bennett J. In those circumstances I find it extraordinary that any suggestion could be sensibly advanced to the effect that the indemnification proposed to be given unfairly prejudices shareholders and creditors.
To that must be added that the indemnification prohibition will not operate where there is no absence of good faith in the relevant director’s conduct. Only a statement of claim has been filed in the breach of duty case. I am not willing to infer that the defendant in that proceeding (the wife) has behaved in any nefarious manner. Such a finding could only be made after a trial during which the wife is cross-examined. No trial is even remotely proximate at present. As Delany J observed, the making of the enforcement orders will likely render that whole proceeding nugatory.
Further, as matters presently stand, no “liability” is presently owed to the companies relevant to the indemnification in issue.
More generally, on behalf of the wife counsel criticised the Saltzer interests for raising the s 199A point now, long after the determination on 17 October 2024, the point not having been even faintly hinted at in debate on 30 September 2024. Counsel for Ms Pacek submitted that the consent orders of Bennett J were orders of the court by reason of their status as a decree of the court with the consequence that s 199A does not operate on an order of the court. They further argued that s 90AE was a provision of broad reach and that nothing in s 199A limited the breadth of operation of s 90AE.
In his verbal address on 9 April 2025 Mr Coleman SC submitted that s 90AE should be given a purposive construction having regard to the fact that s 90AE is enabling legislation. There can be no doubt that the operation of s 90AE(2) is extremely broad, empowering as it does the court to the “make any other order” under s 79 which “directs a third party to do a thing in relation to the property of a party to the marriage”. So the argument ran, the consent orders on their proper construction represented orders the jurisdictional foundation of which was s 90AE(2) because certain of the Saltzer entities (that is to say companies Mr Saltzer controlled) were being directed to do a thing (indemnify the wife) in relation to the property of a party to the marriage. Mr Coleman SC submitted that consonant with s 15AA of the Interpretation of Legislation Act, s 90AE should be given a purposive construction.
Conversely, on behalf of Mr Saltzer and his interests, it was put that Supreme Court proceedings #...07 is arguable. That contention was advanced against a backdrop in which nothing beyond a statement of claim had been filed. To assert that the case is arguable when it has progressed at glacial speed since commencement is to very considerably overstate the situation in my view.
In any event, Ms Pacek seeks orders under s 106A requiring a registrar of this court to execute a variety of documents so as to give effect to the orders made on 17 October 2024. Correspondence between the parties’ solicitors about the execution of the release was exchanged between 8 November 2024 and 20 March 2025. Ms Pacek asks me to conclude that Mr Saltzer is not genuinely concerned about the wording of the release that was prepared for execution but rather that Mr Saltzer and his entities simply refuse to execute the release. In my view, there is considerable merit in the contentions of Ms Pacek. More than enough time has elapsed since 17 October 2024 and now for negotiations to have concluded about the precise wording of the releases. In any event, Mr Saltzer has not put forward wording he says is now required. Mr Isakow’s documentation has been in the hands of Mr Saltzer’s camp for an inordinate length of time. I take the view that Mr Saltzer is simply refusing to execute the releases. A registrar must therefore execute the releases in his stead which I now order.
THE METWALLY PROPOSITION
Counsel for Ms Pacek were emphatic that the s 199A point raised subsequent to the debate on 30 September 2024 should be rejected out of hand for being raised lately now. They relied on the observations of the High Court in University of Woolongong v Metwally (No 2).[19] They relied on the observations of Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ where the plurality held as follows –
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
[19] (1985) 59 ALJR 481, 483.
In Sun & Yeng (No 5)[20] I addressed the Metwally proposition at some length. I adhere to those comments here.
[20] [2024] FedCFamC1F 702 ([105]-[112]).
As it transpires, I have rejected the s 199A proposition advanced on behalf of Mr Saltzer and his entities for the reasons set out in the passages above as well as for the reason that the point was not advanced on 30 September 2024 when the Saltzer interests had the opportunity to fully argue the point. It is now too late to do so. In any event, the s 199A point is devoid of merit.
Mr North SC was at pains to submit that a distinction exists between a court order requiring a company to do an act potentially inconsistent with s 199A of the Corporations Act on the one hand and a prohibition of the company doing the act proscribed by s 199A. In opposition to those contentions, Mr Coleman SC submitted several points. First he said that s 90AE(2) of the Family Law Act empowered Bennett J to make orders by consent which I enforced so if s 90AE(2) allowed something to be done which s 199A prohibited, then at best that did no more than set up some putative inconsistency between two pieces of federal legislation. In reliance upon the observations of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystram,[21] Mr Coleman submitted that it is, to use the words of Gummow & Hayne JJ “a large step” to conclude that the statute impliedly repeals an earlier statute. Mr Coleman submitted that a construction should be given to both statutes where such a construction allows both to operate. Mr Coleman submitted that s 199A does not prohibit a court from imposing an indemnification on a corporation in relation to the liability of one of its directors. However, s 199A prevents the company from giving that indemnity.
[21] (2006) 228 CLR 566, 586 (at [51]).
I agree.
The alleged inconsistency between s 90AE(2) and s 199A is misconceived.
DISMISSAL OF THE TWO SUPREME COURT PROCEEDINGS
In my view, orders must be made for the dismissal of the Supreme Court litigation transferred to this court by order of Delany J –
(a)in relation to books and records, that is to say proceeding #...78; and
(b)in relation to an asserted but unproved contention about breach of duty, that is to say proceeding #...07.
Power to make such an order is reposed in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the court rules”) as well as in s 95 of the Family Law Act, as was recently examined by me in Rainer & Lopez.[22]
[22] [2025] FedCFamC1F 214.
Under the court rules, the power to summarily dismiss a proceeding is found in r 10.22. Upon the execution of the releases ordered to be executed now by a registrar, no cause of action survives in respect of the litigation for the return of books and records or in respect of any breach of duty. No purpose is served in keeping the two pieces of Supreme Court litigation extant. I order their summary dismissal.
Further, under s 95 of the Family Law Act parties are required to observe their duty to advance litigation in the court as cost effectively and as time efficiently as may be done. Keeping alive two pieces of litigation which no longer serve any purpose of the lis pendens of the parties is anathema to s 95.
I hereby order the dismissal of –
(a)proceeding #...78; and
(b)proceeding #...07
commenced in the Supreme Court of Victoria and transferred to this court by order of Delany J and I so order in pursuance of r 10.22 of the court rules.
COSTS OF THE SUPREME COURT LITIGATION AND OTHER COSTS APPLICATIONS
Ms Pacek has applied for orders to be made in her favour in respect of costs. The bases of her claims, the factual setting of them as well as the jurisprudential basis in any consideration of her claims is diverse and complex. It is as well that I publish my reasons on all issues other than costs now. A costs decision will follow.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson.
Associate
Dated: 30 April 2025
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