In the matter of Dyamond Developments Pty Ltd (in liquidation)

By Interlocutory Process filed on 15 April 2020, the Applicant, Mr Sule Arnautovic as liquidator (“Liquidator”) of Dyamond Developments Pty Ltd (in liq) (“Company”) applies for interlocutory relief framed as follows:

The Liquidator also seeks a direction under s 90-15 of the Insolvency Practice Schedule (Corporations) that he is justified in consenting to order 1. That direction has the difficulty that the Liquidator seeks order 1, so no question of his consenting to it arises. I bear in mind the scope of the Court’s directions power under s 90-15 of the Insolvency Practice Schedule (Corporations), as summarised in Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 at [7]-[9] and Warner (liquidator), Re Sakr Bros Pty Ltd (in liq) [2019] FCA 547 at [18]. The Court’s power to give a direction under this section is the same as, or is likely wider than, its powers under ss 479(3) and 511 of the Act: Walley; Re Poles & Underground Pty Ltd (admins apptd) [2017] FCA 486 at [41]; Warner (liquidator), Re Sakr Bros Pty Ltd (in liq) above at [18]; Re Go Energy Group Ltd [2019] NSWSC 558 at [16].

Notwithstanding the possibly infelicitous phrasing of the application, it raises two substantive issues, whether certain monies paid into Court by the Company should be paid out to the Liquidator under r 41.3 of the Uniform Civil Procedure Rules (“UCPR”) and whether, if that occurs, the Liquidator would be justified in applying them first to payment of certain of his remuneration and expenses and then to payment to Messrs Puddick, either in respect of the judgment in the Earlier Proceedings or, as the order seeks, for costs. The first and second respondents to the application were Messrs Puddick, who broadly supported the position taken by the Liquidator. The Liquidator originally joined a defendant in the Earlier Proceedings, Mr Hatzipapas, as third respondent to the application but discontinued the application against him, with leave, when he became bankrupt, where he had not claimed an interest in the funds and was not a necessary party to the proceedings. The fourth respondent, a company associated with Mr Hatzipapas or his wife, Gaks Investment Holdings Pty Ltd (“Gaks”), opposed the application.

I turn now to the chronology of events that underlie the application. in the Earlier Proceedings, Messrs Puddick sought relief in respect of money paid to the Company for the purposes of a proposed initial public offering which did not proceed. By his judgment in Puddick v Dyamond Developments Pty Ltd [2019] NSWSC 431 (admitted in this application, as part of the exhibit to Mr Arnautovic’s affidavit, with a limiting order under s 136 of the Evidence Act 1995 (NSW) reflecting the limits to the use of judgments in other proceedings), Robb J held that, when that proposed offering failed, the Company held the money on trust for Messrs Puddick, based on the principle in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567. His Honour held that:

By orders made on 24 May 2019, Robb J ordered that judgment be entered in favour of Mr Justin Puddick against the Company and Mr Hatzipapas in the amount of $104,909 and in favour of Mr John Puddick against those parties in the same amount. The Company and Mr Hatzipapas appealed from the orders made by Robb J in the Earlier Proceedings and, by its judgment delivered on 6 March 2020 in Dyamond Developments Pty Ltd v Puddick [2020] NSWCA 32, a unanimous Court of Appeal held that there was no error in Robb J’s reasoning and dismissed the appeal with costs.

By Originating Process filed on 21 August 2019, Mr Justin Puddick sought an order winding up the Company, based on its failure to comply with a creditor’s statutory demand in respect of the judgment debt of $104,909 owed to him, arising from the Earlier Proceedings. By an affidavit dated 17 September 2019 filed in the winding up proceedings, Mr Hatzipapas, the sole director of the Company, led evidence that:

On 23 September 2019, the Company sought an adjournment of 6 – 8 weeks to prepare expert evidence as to its solvency. I then made orders for the service of evidence in the winding up proceedings, with a qualification that:

On 28 September 2019, the solicitor acting for the Company advised my Associate that the Company had paid the amount of $209,818.18 into Court and attached the Court’s receipt made out to the Company for that amount. I then made orders in Chambers vacating the orders previously made on 23 September 2019 and allowing the extended timetable for the winding up application.

On 8 November 2019, the Company filed an Interlocutory Process which sought an order that the amount paid into Court by it be paid out of the Court in equal amounts to Messrs Puddick. That application was not pressed and, on 18 November 2019, I noted that the Interlocutory Process was not pressed and ordered that it be dismissed and further extended the time for the Company’s evidence and Mr Justin Puddick’s evidence in reply in the winding up application and confirmed orders as to submissions in respect of the that application.

By a further affidavit dated 21 November 2019, in opposition to the winding up application, Mr Hatzipapas stated that:

On 11 December 2019, the winding up application was heard by Emmett AJA who ordered that the Company be wound up and appointed the Liquidator to the Company.

Gaks subsequently brought an application in the Earlier Proceedings which sought contrary relief to that which was sought by the Liquidator in these proceedings, with effect that the monies paid into Court be repaid to it. It was plainly inappropriate that the same issue should be raised before two Judges of this Court in parallel proceedings, raising the risk of potentially inconsistent results. In the event, no such inconsistency arose from the judgment delivered by Robb J on 12 May 2020 in Gaks’ application in the Earlier Proceedings. His Honour there observed that the money had been paid into the Court in these proceedings and any order for payment out of Court should be made in these proceedings. His Honour also observed that, where the money had been paid into Court on behalf of the Company, it had an interest in the making of the order sought by Gaks and that Gaks’ application in the Earlier Proceedings should have been served on the Liquidator, so that he would have the opportunity to contest the making of the order. Third, his Honour pointed to a difficulty with Gaks’ application, namely that, where money was paid into Court by the Company in these proceedings to secure a more extended timetable to lead evidence in opposition to the winding up application, then:

Turning now to the affidavit evidence in this application, the Liquidator relied on his affidavit dated 15 April 2020, which sets out the history of the Earlier Proceedings and the winding up proceedings, to which I have referred above. The Liquidator also referred to correspondence between the parties in which Messrs Puddick had asserted an entitlement to the funds held in Court, prior to the commencement of this application. By a further affidavit dated 4 May 2020, the Liquidator set out information as to the remuneration he claimed in respect of work undertaken in the winding up and as to solicitors’ and Counsels’ expenses, identifying a total claim in respect of remuneration and expenses for identifying, preserving and realising the funds in Court of $55,540.55 exclusive of GST. No application was brought for the determination of the Liquidator’s remuneration in these proceedings, and I will make orders on the basis that any such application would have to be approved in any of the usual ways, including by an application to the Registrar if necessary.

Messrs Puddick relied on the affidavit dated 4 December 2019 of their solicitor, Mr O’Loughlin, which referred to the history of the Earlier Proceedings and to costs payable by Messrs Puddick to that firm in respect of the Earlier Proceedings. This application is, of course, not an appropriate forum for any assessment of the costs that may be payable by Messrs Puddick to their solicitors in respect of the Earlier Proceedings.

Gaks relied on two affidavits dated 8 May 2020 of Ms Argiroula Hatzipapas and of Mr Hatzipapas in opposition to the orders sought by the Liquidator. By her affidavit, Ms Hatzipapas stated that she transferred the sum of $210,000 from Gaks’ bank account to the Company’s bank account on 19 September 2019:

Ms Hatzipapas also referred to the later application by the Company to have the amount paid into Court paid to Messrs Puddick and asserted that:

By his affidavit dated 8 May 2020, Mr Hatzipapas also referred to the Earlier Proceedings and the winding up proceedings and asserted that:

Gaks also tendered submissions which had been made by it in an application made before Robb J in the Earlier Proceedings which sought the contrary relief to that which was sought by the Liquidator in these proceedings, to which I referred above. As I noted above, his Honour did not grant that relief.

I first turn to Gaks’ claim to the funds paid into Court. I can address this claim briefly, since I entirely agree with Robb J’s identification of the weakness in that claim in his observations as to Gaks’ parallel application made in the Earlier Proceedings.

Mr Johnson, who appeared for Gaks, contends, at least by reference to the position taken by Gaks in the Earlier Proceedings, that Gaks is entitled to a trust by way of a resulting or Quistclose trust over the funds paid by the Company into Court, by reason of a failure of the purpose of that payment. Although seeking to reserve that claim for determination by Robb J (who has now dealt with it as noted above), Mr Johnson articulated it as follows:

It seems to me that the elements of this submission are not established. First, the Company’s purpose in paying the money into Court is established by the evidence to which I have referred above and was to achieve an extension of time to lead evidence in respect of the winding up application, which it in fact achieved. It appears that Gaks had essentially the same purpose in making the loan to the Company. If the purpose of the original payment was to secure a payment to Messrs Puddick, it has not been shown that they had rejected such a payment, where the Company’s Interlocutory Application for payment out of Court was not pressed, or that such a payment could not now be achieved.

Mr Dziubinski, who appears for Messrs Puddick, submits in response to Gaks’ claim for a Quistclose trust that the more likely scenario is that the funds were simply a loan by Gaks to the Company without any intention that Gaks would retain beneficial title to them. He rightly points out that any claim that Gaks retained any beneficial title to the funds would have been inconsistent with the Company’s attempts to rely on those funds to establish its solvency during the winding up proceedings. He also submits that the purpose of the claimed loan by Gaks to the Company did not fail so as to give rise to a Quistclose trust, and that there is nothing that prevents the payment of the funds to Messrs Puddick, because they remain entitled to the due administration of the trust.

As I have noted above in addressing Mr Johnson’s submissions, it seems to me that the evidence of Mr and Ms Hatzipapas, taken at its highest, has the consequence that the monies were paid into Court in order to obtain additional time for the Company to lead evidence in opposition to the winding up application and that time was obtained on that basis. The Company and Gaks achieved what they had sought, although the Company did not then successfully defend the winding up application. Where the identified purpose had not failed, there is no basis for a Quistclose trust. As I noted above, Robb J had expressed the same view, albeit in tentative terms, in dealing with that matter in the parallel application in the Earlier Proceedings. Gaks’ claim to a Quistclose or resulting trust over the funds paid into Court therefore fails.

Turning now to the parties’ submissions, Mr Newton, who appears for the Liquidator, refers to the Liquidator’s view that, at the time the relevant monies were paid by the Company into Court, they were held on trust by it on behalf of Messrs Puddick as beneficiaries of a trust. Mr Newton also advances a parallel argument that, where the circumstances demonstrate that a defaulting trustee intends to deposit funds into an account to replace trust funds which have been disbursed in breach of trust, the funds will be imbued with a new and equivalent trust: James Roscoe (Bolton) Limited v Winder [1915] 1 Ch 62 at 69. That proposition has been applied in subsequent cases, including in respect of mixed funds, although it is not apparent that a mixed fund arises in the present case: Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) [1999] FCA 1820; (1999) 34 ACSR 371 at [75]; Australian Receivables Ltd v Tekitu Pty Ltd (subject to deed of company arrangement) (deed administrators appointed) [2011] NSWSC 1306 at [159]. Mr Newton submits that, on that basis, having regard to the Company’s express purpose in paying the funds into Court, the Liquidator considers those funds were impressed with a new trust equivalent to the previous trust in favour of the Messrs Puddick. Mr Newton also submits that, where trust funds are paid into Court, the party which is beneficially entitled to those funds retains that beneficial interest: Harmer v Federal Commissioner of Taxation [1991] HCA 51; (1991) 173 CLR 264.

Mr Dziubinski similarly submits that Messrs Puddick had a right to have the trust fund reconstituted and duly administered by the Company and that the funds acquired by the Company and paid into Court constitute a replenishment of the trust. He refers to the evidence given by Mr Hatzipapas, to which I have referred above, that the funds were paid into Court for the purpose of paying the judgment in the Earlier Proceedings and he submits that the conceptual basis of the Company’s liability to Messrs Puddick remains its obligation to replenish and duly administer the trusts. He submits that funds that came into the Company’s possession on or around 23 September 2019 were clothed with the same trust that Robb J had found to exist, and those monies remain subject to that trust when they were paid into Court.

Mr Johnson, who as I have noted above appears for Gaks, initially responded that Gaks’ claim for costs was the subject of the application before Robb J, although the basis of that submission fell away when Robb J delivered his judgment recognising, as I noted above, that that claim was properly determined in these proceedings and not in the Earlier Proceedings. Mr Johnson also submitted that it has not been shown that any monies lent by Gaks to the Company, in order to be paid into Court, were the subject of any trust or any tracing claim. I accept that proposition, although it is not an answer to a finding that the monies paid into the Court ought now be properly distributed to Messrs Puddick, subject to any claim by the Liquidator for his costs and expenses.

I am not persuaded that Messrs Puddick had an existing beneficial interest to the funds at the time they were paid into Court, where they had an order for compensation in their favour made in the Earlier Proceedings, reflected in a judgment debt, and had not been awarded any proprietary remedy against the Company in the Earlier Proceedings. However, it seems to me that the result for which the Liquidator and Messrs Puddick contend is established on a somewhat different basis. Mr Newton rightly submits that the Court has a general discretion in respect of the funds paid into Court, and the purpose for which those funds were paid is an important consideration in determining how they should be paid out. He refers, in that respect, to Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd [2019] NSWCA 60; (2019) 136 ACSR 563, where monies had been paid into Court in connection with an appeal from an application to set aside a creditor’s statutory demand. White JA there observed, by reference to authority, that “the Court has a general discretion to determine the release of funds paid into Court, at least absent any specifically agreed or conditioned limitation on the purpose of the payment”.

In Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 at [80], McColl JA (with whom Macfarlan JA agreed, and Leeming JA agreed in part) described the regime for payment of monies into Court and observed that:

Although I am not persuaded that the funds paid into Court were at any relevant time impressed with a trust, it seems to me that the Company paid those funds into Court for the identified purpose of discharging the judgment in favour of Messrs Puddick, or at least demonstrating its ability to do so. That purpose was emphasised by Mr Hatzipapas in his affidavit evidence and by the application made by the Company for an order that the amount be paid out to Messrs Puddick, although that application did not proceed. It may be that the Company’s then real intention was somewhat narrower, whether to obtain time to lead further evidence in respect of the winding up application or, possibly, improve its prospects of defeating the winding up application by demonstrating that it had the capacity to pay those funds into Court.

Irrespective of any narrower subjective intention on the Company’s part, it seems to me that the payment of funds into Court for the purposes of meeting the judgment, made by the Company as a defaulting trustee, should be treated as making available funds to discharge the wronged beneficiaries’ claims, at least where there is no suggestion of any third party creditors not associated with Mr Hatzipapas who would be disadvantaged by that approach. To put that proposition another way, irrespective of whether a trust presently exists in favour of Messrs Puddick over the monies paid into Court, they could not properly be paid out to Mr Hatzipapas and his associates while the wronged beneficiaries’ claim remained unsatisfied, where Gaks’ claim to the funds has failed. I am satisfied, on that basis, that an order should be made under UCPR 41.3 that the amount of $209,818 paid into Court and any interest on it should be released to the Liquidator, for distribution to Messrs Puddick subject to the Liquidator’s claim to remuneration and expenses to which I now turn.

Mr Newton submits that the Liquidator brings this application to get in and preserve the trust assets, and to ensure the trust funds are distributed to the beneficiaries, Messrs Puddick, subject to his entitlement to be paid for his fees and expenses for undertaking that work. Mr Newton submits that, where the Liquidator has undertaken work and incurred expenses in relation to this application and that work was directed to identifying and preserving trust assets for the benefit of the persons entitled to the relevant funds, he is entitled to the payment of that remuneration and those expenses properly incurred for undertaking that work in priority to the persons beneficially entitled to the fund: Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171; Stewart v Atco Controls Pty Ltd (in liq) [2014] HCA 15; (2014) 252 CLR 307 at [22]-[23]. Messrs Puddick accept that the Liquidator is entitled to be paid his reasonable remuneration and reimbursement or exoneration for reasonable expenses incurred in administering the trust property in priority to their claim to the fund, and indicate that they do not take any position as to the reasonableness of his remuneration and expenses as presently quantified. Mr Johnson in turn submitted that no application had been made for approval of the Liquidator’s remuneration and no attempt had been made to have the costs incurred by Mr Justin Puddick in the winding up proceedings assessed. The Liquidator’s entitlement to remuneration will depend upon approval of his remuneration in any of the usual ways, although it is not apparent to me that the Liquidator is bound to insist on an assessment of any claim for costs by Messrs Puddick.

As I have noted above, I am not satisfied that the monies paid into Court are presently trust funds, and the principle in Re Universal Distributing Co Ltd (in liq) above is not strictly applicable on the basis for which Mr Newton contended. However, Messrs Puddick have acknowledged the Liquidator’s prior claim to payment on this basis in this application and that seems to me to be sufficient to support a direction to the Liquidator that he may act on that basis in applying the funds paid out of Court. I am therefore satisfied that a direction should be given under s 90-15 of the Insolvency Practice Schedule (Corporations) that the Liquidator would be justified in applying the funds paid out of Court first to his claim to his proper remuneration, costs and expenses in respect of recovering and dealing with those funds (subject to any necessary approval of his remuneration, generally or in respect of that matter, by the Court) and paying the balance of those funds to Messrs Puddick in satisfaction, or part satisfaction, of the judgment debt arising from the Earlier Proceedings. I do not consider that I could make a further order, as contemplated by the Interlocutory Process, that allocates those funds to payment of the costs of the Earlier Proceedings, where the payment made by the Company into Court appears to have been for the purpose of discharging the judgment debt arising from the Earlier Proceedings rather than any claim to costs.

As Mr Johnson rightly recognised, the effect of those orders will be that Gaks, although a creditor of the Company in respect of the loan that it has made to the Company, will have no continuing interest in the question of the extent of the Liquidator’s remuneration, costs and expenses that are the subject of that lien, which is a matter as to which the Liquidator and Messrs Puddick have the remaining economic interest.

I direct the parties to bring in agreed short minutes of order to give effect to this judgment within 7 days or, if there is no agreement between them, their respective short minutes of order and short submissions not exceeding 5 pages in one and a half spacing as to the differences between them.