Pamplin v Irwin

LEEMING JA: By notice of motion filed 8 May 2024, the nine applicants for leave to appeal in substance seek stays of some but not all orders made in the Equity Division by Henry J and Parker J. There are two proceedings pending in the Court of Appeal: a summons seeking leave to appeal from orders made by Henry J on 9 February 2024 (Irwin v Pamplin (No 4) [2024] NSWSC 73) in respect of which the parties have exchanged submissions, and more recently, a cross-summons seeking leave to appeal from other aspects of the same orders. The summons contends that the orders made by Henry J should not have been made while the cross-summons maintains that further orders should have been made.

In addition, there was a further hearing before Parker J which resulted in further orders being made on 9 April 2024, with reasons of 165 paragraphs being delivered on 2 May 2024: Irwin v Pamplin (No 5) [2024] NSWSC 484. The applicants on the summons, to whom I shall refer as the Pamplin parties, have also filed a notice of intention to appeal in relation to the orders made by Parker J. After discussion with the parties concerning appropriate timetabling directions and availability, and after consulting with the Registrar, all proceedings in this Court are tentatively fixed for hearing on 30 and 31 July 2024, including, if it arises, any further summons seeking leave to appeal from the orders made by Parker J. It has already been determined that the summons will be heard on a concurrent basis and the Registrar will shortly confirm the position in relation to the cross-summons.

The proceedings between the parties are involved and quite complex. A summary which will suffice for present purposes is found in paragraph 16 of Parker J’s reasons, which in turn is taken from the opening paragraphs of Henry J’s reasons:

The hearing before Parker J extended expressly to ordering a limited stay for a period expiring on 16 May 2024 (that is, Thursday this week) of some of the orders made by Henry J and some of the orders made by his Honour. In substance, and despite the generality of the form of the notice of motion, the Pamplin parties seek to extend those stays pending the determination of the appeal.

By written submissions supplied last Friday, the respondent to the summons, who was the plaintiff to the proceedings below, Ms Ann Margaret Irwin, indicated that she did not oppose that continuation of the extant stay, but asked that, as the price of doing so, certain further restraints should be imposed upon the two principal Pamplin parties, namely the first applicant, Ms Marie Dawn Pamplin, and the fourth applicant, Dennis G Pamplin Pty Ltd, or “DGP”, a company which is the trustee for the Dennis G Pamplin Family Trust which is known as the DGP Family Trust.

What follows does not do justice to the complexity of the proceedings, which involve nine parties, around 20 parcels of land and around a dozen private companies. Speaking very generally, after a ten day hearing and for reasons occupying some 459 paragraphs, Henry J declared that Ms Marie Pamplin holds certain assets on trust as to one half for the estate of the late Adrian Pamplin, represented by Ms Irwin. Her Honour also ordered that DGP, the trustee, be restrained from dealing with income and capital of the DGP Trust other than in a manner that would cause less than 50% of its income and capital to be distributed to the estate of the late Adrian Pamplin. Thirdly, her Honour ordered that DGP pay an amount of $451,000 plus interest to Ms Irwin.

By orders made on 9 April 2024, Parker J ordered that Ms Pamplin take all steps reasonably required to effect the registration in Ms Irwin’s name of half of the shares in various companies. Orders 2 and 3 were the appointment pursuant to s 66G of the Conveyancing Act 1919 (NSW) of trustees for sale of four nominated properties. Order 4 was for the trustee to take all steps reasonably required for it to register in the name of Ms Irwin half of its shares and units in a company called The Peak On Andrew Pty Ltd, which I have been told was the trustee of the Peak Unit Trust.

Justice Parker, speaking generally, made a suite of other orders, the details of which do not matter, for the taking of accounts and for the election on behalf of Ms Irwin to recover either proceeds or profits. Significantly, however, for present purposes, final injunctions were ordered against Ms Marie Pamplin and the trustee preventing them from transferring, alienating, charging, encumbering, disposing of, in any way diminishing the value of, or otherwise dealing with a suite of properties including the properties in respect of which trustees for sale were to be appointed, and also the shares and units in The Peak On Andrew Pty Ltd and the Peak Unit Trust.

The reason, it may be interpolated, for the final injunctive relief concerning the properties is that by further orders made on 9 April by Parker J, five particular orders were stayed until Thursday. Those orders are the monetary payment of $451,000 plus interest, which was order 3 made by Henry J on 9 February 2024, and orders 1 to 4 made on 9 April 2024, which involve the transfer of shares and units and the compulsive sale pursuant to s 66G of four parcels of land. I note therefore that at present and until the expiry of the extant 14 day stay, the four properties are the subject of the restraints identified above.

During the hearing of the motion, I received an affidavit by Mr Timothy James McGrath, the solicitor on record for the Pamplin parties, which identified different folio numbers for two of the four properties the subject of the final injunction made on 9 April by Justice Parker and, as it happens, order 1(b) made by Henry J on 9 February 2024. Both sides have had the opportunity to take instructions as to the error. It is common ground that the first two folio identifiers in each of those orders are incorrect and should be replaced by those in Mr McGrath’s affidavit. Accordingly, by consent, I shall vary order 1(b) made on 9 February 2024 and order 2 made on 9 April 2024 in each case in proceeding 2018/179474 so as to replace the folio identifier 1/538582 by 1/1189317 and to replace the folio identifier 1/653836 by 2/1189317.

The principles applicable to a stay of execution pending appeal are familiar, were summarised in the respondent’s written submissions and are not the subject of any dispute. They may be found in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20]. By way of summary, in Kalifair at [18], the Court said that the appellant must show the appeal raises serious issues for the determination of the appellate court and there is a real risk that [the appellant] will suffer prejudice or damage if a stay is not granted which will not be addressed by a successful appeal. This requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted. If these preconditions are established the Court will then consider the balance of convenience.

The sale by trustees of land at Pitt Town readily satisfies the character of orders which ordinarily should be stayed pending appeal. So too on the facts of the present case are the transfer of shares and units in orders 1 and 4 made on 9 April 2024. As it happens, other orders made by Parker J, the details of which need not be summarised for present purposes, continue to provide a form of security to Ms Irwin in relation to order 3 made on 9 February 2024. Speaking generally, and including what I understand to be the calculation of interest to around the beginning of this month, there is an extant order that the sum of $609,171 be retained in a controlled moneys account until further order: see order 5 made on 9 April 2024. That leaves Ms Irwin exposed only to the extent to which interest continues to accrue between now and the determination of the appeal.

For all of those reasons, the limited stay sought by the Pamplin parties is appropriate and, subject to the matter to which I am about to turn, was not opposed by Ms Irwin. The most convenient way of continuing the stay is to vary order 1 made on 9 April 2024 on the notice of motion filed 15 March 2024, which was the order staying those orders until fourteen days after reasons have been delivered by deleting “until 14 December after reasons have been delivered for the orders made today” and replacing those words with “until the determination of the proceedings in the Court of Appeal”. The final form as amended of that order therefore will be as follows:

That leaves outstanding the conditions proposed by Ms Irwin as the price of the stay. Those conditions were contained in a minute of proposed orders attached to Mr Sharp’s submissions of 10 May 2024. No objection was made to the fact that in substance what Ms Irwin was there seeking was separate injunctive relief post judgment pending appeal on her behalf without a notice of motion. Nor was any objection taken to the fact that that positive application was made on the Friday before a hearing on Monday, with the consequence that the Pamplin parties had less time than might otherwise be the case to respond either by way of evidence or submissions.

The minute of proposed orders divides into two halves, and the parties’ submissions before me proceeded on the same basis. Proposed orders 1(a) and (b) sought further prohibitory injunctive relief preventing Ms Marie Pamplin (by order 1(a)) and DGP (by order 1(b)) from dealing with, in the case of Ms Pamplin, “half of the profits derived from her ownership after 23 August 2013” of shares and units in some ten companies and one unit trust and also various real property, and in the case of the trustee, “half of the profits derived from its ownership after 23 August 2013 of the following share and unit holdings”, and then The Peak On Andrew Pty Ltd and the Peak Unit Trust are listed.

Although, as I have said, the orders regulating the present entitlements of the parties are considerably complex, including by reference to a variation made by Justice Parker which is recorded in Irwin v Pamplin (No 5) at [164], there is presently unchallenged injunctive relief in relation to the real property owned by Ms Marie Pamplin and the entirety of the assets owned by the trustee.

FOR FURTHER DISCUSSION SEE TRANSCRIPT

In relation to three of the companies the subject of Ms Irwin’s proposed minute of orders, namely A and L Earthmoving and Contracting Pty Ltd, X-Distribution Pty Ltd and Corell Holdings Pty Ltd, the extant injunctive relief does not apply to those companies. The others are subject to an injunction: see order 1 made on 9 April 2024 on the notice of motion filed 10 November 2023 which refers back to the five companies earlier identified in the orders. But when during the course of delivering reasons on the motion I noticed a discrepancy (I had not hitherto noticed it and it was not something that either party had relied upon during submissions), I gave Mr Sharp an opportunity to be heard if there was anything particular that separated the position of those three companies from the others. Nothing was identified. The point of the further injunctive relief that is sought is not so much the identity of the companies, but the subject matter, which is to seek to restrain a dealing extending to the words I have quoted above, namely, “half the profits” in a period exceeding a decade. The entirety of the orders proposed in 1(a) and (b) is vitiated by this approach.

Mr George, who appeared for the Pamplin parties on the motion, submitted that I should not grant injunctive relief on those terms, in part because (save in relation to the three companies identified above), it overlaps with extant injunctive relief, but primarily because injunctions should be clear and this was the opposite of that. There is no doubt that injunctions should be clear; see, for example, the discussion in Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110; [2006] FCAFC 41. As was said in Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 at [165]:

Injunctions framed in terms of dealings with “half of the profits” require the person affected first to identify what the profits are, which in itself is often contestable, and in this case requires an analysis of the past eleven years of the companies’ activities, as well as leaving unstated whether those profits are before or after tax, and then requires a determination of whether what is proposed will involve a dealing with half of those profits.

The order does not engage with the possibility of losses being carried forward. Nor does it address whether profits are to be computed cumulatively or on a year-by-year basis or some other basis. The order is, with respect, drafted by reference to the final relief ordered by Henry J, the terms of which are the subject of one of the applications for leave to appeal, and it is no part of my role today to express any view on the ultimate merits or otherwise of that application for leave. It is one thing to order that a party is entitled to half of the profits derived in an eleven year period, determined after an accounting process which may or may not be contested and contestable; it is another thing entirely to frame interlocutory injunctive relief on that basis. It is sufficient to say that in the form proposed it is far too easy to see how such an order could give rise to uncertainty and disputation all of which should be antithetical to an injunction the sanction for which is contempt and which should be clear, not only to the persons bound by it, but also to their lawyers and to third parties who are dealing with those persons. For that reason alone I would not make orders 1(a) or 1(b).

Lest it be thought that that aspect of this decision turns purely upon form, I would note that it is not merely the case that no alternative formulation of interlocutory relief has been propounded, but also that I cannot easily think of any such formulation that might exist. It would probably be necessary in order to achieve the appropriate clarity in an order of the kind that is sought, to identify some particular assets by way of evidence, then to establish, at least on a basis sufficient for interlocutory purposes, that that asset comprised profits of one of the companies or the unit trust the subject of Henry J’s orders and on that basis impose a restriction upon dealings with that particular asset. Nothing resembling evidence of that nature was put forward. I am conscious that part of Ms Irwin’s complaint is that, as she says, and this may be contentious, she does not have complete visibility of those assets and that may be the reason why the motion has been formulated in the way that it has. But nonetheless it is for Ms Irwin to make out a case for interlocutory relief.

The balance of the orders proposed by Ms Irwin is more readily dealt with. As originally drafted, it was aimed at first of all informing Ms Irwin of any intended sale of one of five nominated pieces of real property in Dural and Garland Valley (order 1(c)), providing information to the solicitor of proposed contracts for sale (order 1(d)) and then, most significantly, paying into court the proceeds of any such sale (order 1(e)).

During an exchange with Mr Sharp, who appeared for Ms Irwin in this Court, two things rapidly became apparent. The first is that Ms Irwin would obtain a deal of protection if she were advised of the possibility of a sale, the proposed price, and the trustee’s intended use of the proceeds of sale. It is difficult in the abstract to provide a regime for all of the permutations. By that I mean, for example, that it is one thing for land to be sold at an undervalue to an associate of one of the Pamplin parties, it is another for it to be sold at full value on the basis that the entirety of the proceeds of sale were to be used to pay legal fees incurred by the trustee in defending the proceedings brought by Ms Irwin. No doubt there are many other intermediate possibilities.

Given the relatively limited period of time during which the interlocutory regime I have to determine will be in place, it seems sensible not to attempt to cover all permutations at this stage, but rather simply to insist that the trustee provide notice before any binding contract for sale is entered into.

The second matter that emerged was a matter of drafting. I raised with the parties whether, rather than providing a mandatory obligation to provide notice of an intention to sell an interest, it would be preferable simply to forbid entering into any contract for sale unless fourteen days’ notice in writing had been given.

The substantive opposition to that order was evidentiary, to the effect that there was no evidence before the Court of dissipation of assets that would ground such effectively post-Mareva relief. It is true that the evidence is very slight. It is also true that the litigation between the parties no doubt will have caused all sides to incur expense. I think for present purposes it is sufficient to adopt the basis that was put forward by Ms Irwin who noted by reference to the last paragraph of the summary contained in Parker J’s reasons at [16] reproduced above that not so long ago there were ten properties owned by the trustee and now there are only five.

The circumstance that Ms Irwin has obtained final orders in relation to those properties and the very limited injunctive relief which, after discussion, I am minded to order lead me to conclude that on the basis that Ms Irwin proffers the usual undertaking as to damages I will order injunctive relief in the form advised during the hearings summarised above, namely, that the fourth applicant shall not until the determination of proceedings in the Court of Appeal enter into any contract for sale or otherwise deal with its interest in the properties known as 13 Millar Crescent Dural (the land in folio identifier 23/226069) or any of the four properties at Putty Road Garland Valley (being the land comprised in folio identifiers 24/753818, 74/753818, 75/753818, and 85/753818), without first giving to Ms Irwin through her solicitor fourteen days’ notice in writing of its intention to do so.

I note that Mr Sharp on behalf of his client proffers the usual undertaking as to damages.

[Submissions re costs]

Despite the fact that the Pamplin parties on one view have achieved a greater proportion of what they substantively sought to achieve in the hearing today than has Ms Irwin, I am unpersuaded that this is a case where the order as to costs should be anything other than that each party’s costs be costs in the cause. In part that is because part of today has constructively been devoted to readying two, perhaps three, proceedings for final hearing at the end of July, and in part it is because the motion filed by the Pamplin parties is much broader than the relief ultimately that was sought and it may well have been that if a narrower motion had originally been propounded the issues today might have been narrowed.

The orders are accordingly: