Bestvale Resource Consultants Pty Ltd v Coalworks Ltd

By a summons filed on 13 April 2015 the plaintiffs (a family company, the principal of the company and his wife) apply for declaratory, and consequential, relief designed to enforce against the defendant:

The Deed of Severance came into being at a time when the defendant was subject to a hostile takeover offer from Whitehaven Coal Holdings Limited. Almost contemporaneously with its execution, the Consultancy Agreement was terminated.

Whitehaven Coal Holdings Limited and the defendant are both publicly listed companies.

Whitehaven Coal Holdings Limited obtained an entitlement to acquire more than 50% of the defendant’s issued capital (that is, majority voting control of the defendant) on 20 June 2012.

On 21 June 2012 the board of directors of the defendant authorised entry into the Deed, and it was executed on behalf of the defendant. To the knowledge of the plaintiffs, and with their acquiescence, through Mr Hagan, the board resolution was expressed in terms: (a) that authority be given to execute the Deed of Severance; and (b) that “subject to the approval of Whitehaven, payment” be made pursuant to the Deed .

No approval was, in fact, obtained from Whitehaven Coal Holdings Ltd, or any affiliate, for payment to the plaintiff company of the sum of $232,650 specifically contemplated by clause 3(a) of the Deed of Severance.

On 22 June 2012, and in view of the imminent takeover of the defendant by Whitehaven Coal Holdings Limited, members of the board of the defendant resigned and nominees of Whitehaven Coal Holdings Limited were appointed as directors of the defendant. The newly constituted board purported to rescind the earlier board authority for entry into the Deed.

In the meantime, the Deed had been executed by each of the plaintiffs and the defendant; but, I infer, executed and delivered to the plaintiffs on the common, objective understanding that its operation was conditional upon approval by Whitehaven Coal Holdings Ltd.

A contemporaneous, common, objective understanding of the plaintiffs and the defendant, extrinsic to the Deed, but acted upon by the plaintiffs via formal resignations by Mr and Mrs Hagan from their positions with the defendant, was that even this qualified execution of the Deed served as acknowledgement that the defendant had terminated the Consultancy Agreement.

A file note, prepared by Mr Hagan shortly after the directors’ meeting of 21 June 2012, records that, at the meeting, he invited the directors to authorise execution of the Deed of Severance in order to “crystallise” the plaintiffs’ “entitlements and the precise contractual position into one document”. Although the draughtsmanship of documentation recording arrangements between the plaintiffs and the defendant can be criticised as less than precise, the directors appear, in substance, to have acted upon that invitation with the intention that the Consultancy Agreement be terminated forthwith.

On 22 June 2012 the defendant wrote to the plaintiffs asserting that all “Deeds Severance” earlier authorised by the board, in favour of various “employees” (including, but not limited to, the plaintiffs), in anticipation of the takeover, were not binding on the defendant. At a board meeting held that day the newly constituted board had decided, not only to “rescind” the earlier board authority for entry into the Deed, but also not to “approve” the plaintiffs’ Deed of Severance.

This carries the consequence that, to the extent there was any divergence between the terms of the Deed of Severance and the underlying Consultancy Agreement it purported to terminate, the plaintiffs were (and are) driven to rely upon the latter.

On 26 June 2012 the plaintiff company responded in writing to the defendant’s letter of 22 June 2012, maintaining that the Deed of Severance between the plaintiff company and the defendant was valid, placing on record that Mr and Mrs Hagan had resigned their positions with the defendant in accordance with the Deed and that they had been assisting the defendant in an orderly takeover.

Adversarial positions having been taken, the parties agreed to place their dispute in the hands of lawyers. Further correspondence ensued. Legal opinions were exchanged. Senior Counsel was retained to express an opinion. Opinions differed. They had that much in common, but little else. Via such a circuitous route, the present proceedings were instituted.

The defendant, controlled by Whitehaven Coal Holdings Limited, filed a submitting appearance in the proceedings on 5 June 2015.

It did so upon an undertaking of the plaintiffs to place before the Court the opinion of senior counsel (obtained on joint instructions from Whitehaven Coal Pty Limited and the plaintiffs) adverse to the case sought to be made by the plaintiffs, and an agreement between the parties that the Court be invited to make no orders as to the costs of the proceedings.

The central point at issue is whether the covenants of the defendant sought to be enforced run counter to the qualified prohibition (for which section 200B(1) of the Corporations Act 2001 Cth currently provides) on the payment, by or behalf of a company, of a retirement benefit (colloquially, “a golden handshake”) to a person who has held a managerial or executive office in the company.

Such a payment is prohibited, under the current statutory regime, unless approved by the members of the company at a general meeting (compliant with section 200E of the Act) designed to ensure that the members’ approval is fully informed and freely and voluntarily given.

The legislation proscribes an unauthorised payment, not the entry into an agreement to make a payment: Silver v Dome Resources NL [2007] NSWSC 455; 62 ACSR 539 at [84]-[86], affirmed on appeal (2008) 72 NSWLR 693.

The opinion of senior counsel wrestles with a number of contentious questions relating to the proper construction and operation of the “current” statutory regime, embodied in Division 2 (sections 200-200J) of Part 2D.2 of Chapter 2 of the Corporations Act 2001, but it stops short of an analysis of the “old” regime the current regime replaced and “transitional” provisions that mark out territory between the two regimes.

As it happens, the plaintiffs’ claims for relief fall to be determined, principally, by reference to the “transitional” provisions.

The current regime was enacted by the Corporations Amendment (Improving Accountability on Termination Payments) Act 2009 Cth, Act, No. 115 of 2009, effective 24 November 2009. It is referred to, here, as “the amending Act”.

The amendments to the Corporations Act (the principal Act) effected by the amending Act were embodied in a schedule to the amending Act, given effect by section 3 of the amending Act.

The main amendments to the principal Act were set out in Part 1 of the Schedule (which, for example, included sections 200B and 200E of the Corporations Act as currently enacted), the application of which depends upon Part 3 of the Schedule.

Part 3 of the Schedule comprises a single clause, clause 43, that, for want of a better description, might be described as a “transitional” provision.

For present purposes, the focus of attention is on clause 43(1).

With editorial adaptation, and emphasis added, clause 43(1) provides that “[the] amendments made by Part 1 [of the Schedule] apply in relation to a retirement from an office, or position of employment, held under:

The meaning of the expression “a variation of a condition of the agreement” found in clause 43(1) is of critical significance in these proceedings. That is because the payment which the defendant covenanted to make to the plaintiff company (either under the Deed of Severance or the Consultancy Agreement) would not have been proscribed by the old statutory scheme (namely, Division 2 of Part 2D.2, Chapter 2D (particularly, section 200B(1)) of the Corporations Act, as in force before enactment of the amending Act); but, if the new regime applies, then, unless brought within an available exception, the payment, absent shareholder approval, would be proscribed.

To paraphrase section 200B(1) in its old form, the old regime applied to a retirement from a “board of directors or managerial office” in a company, or a related body corporate. Section 9 of the Corporations Act, as in force before the commencement of the amending Act, defined the expression “board or managerial office” in this context to mean an office of director or any other office in connection with the management of a company’s affairs that is, or has been within a defined time, held by a person who also holds, or at the relevant time held, the office of a director of the company or a related company.

None of the plaintiffs was ever a director of the defendant, or any related corporation.

I am satisfied, then, that the old regime has no application to the case at hand.

Whether it is necessary to delve into the requirements of the new regime depends upon the proper construction and operation of clause 43(1) of the Schedule to the amending Act. In my judgement, it is not necessary to do so, though one needs to take into account the nature and purpose of the legislation governing the new regime in giving operational force to clause 43.

Nor is it necessary to consider whether (and, if so, how) the covenant to pay $232,650, for which clause 3(a) of the Deed of Severance provides, fits in with clause 43(1)(c).

It is not necessary to dwell on whether the Deed of Severance was enforceable, according to its terms, in the context of section 200B of the Corporations Act or the various provisions of the amending Act, including clause 43(1). That is because (with the acquiescence of the plaintiffs) the only material effect of the Deed of Severance was to provide an occasion for termination of the Consultancy Agreement between the plaintiff company and the defendant (thereby activating the defendant’s obligation, under the Deed of Variation, to pay to the plaintiff company 12 months remuneration in lieu of notice) in circumstances in which “Whitehaven” at no time approved the payment to the plaintiff company of the sum of $232,650.

The significance of the Deed of Severance is that its execution crystallised an obligation in the defendant under the Deed of Variation to pay 12 months remuneration in lieu of notice, not that clause 3(a) of the Deed itself engaged the Corporations Act, section 200B.

The meaning of the expression “an agreement, for which a variation of a condition of the agreement happens” in that clause, and the intended operation of the new regime, is sufficiently obscure to justify consideration of extrinsic materials authorised by the Acts Interpretation Act 1901 Cth, section 15AB.

The second reading speech of the Minister leading to Parliament’s enactment of the amending Act casts no particular light on the meaning of clause 43(1) of the schedule to the amending Act.

The speech does, however, confirm that: (a) the primary objective of legislative reform was to provide shareholders with a greater ability to reject excessive termination benefits given to company directors and executives; (b) the new legislation was not intended to affect existing contracts; and (c) it was intended to apply “to all new contracts which are entered into, extended or substantially varied after the commencement date”.

Reference may be had, for two purposes, to the Explanatory Memorandum published in connection with the parliamentary bill that became the amending Act.

First, the Memorandum confirms that the old regime applied only to company directors’ termination benefits: paragraphs 2.3 and 2.5. The range of personnel whose termination benefits were required to be subject to shareholder approval was expanded from directors to include, also, senior executives or key management personnel, a broader category within which the plaintiffs accept Mr Hagan fell.

Secondly, and more importantly, in summarising the “new law” (the current regime) the Explanatory Memorandum throws light on the meaning of the particular expression “a variation of a condition of the agreement” in clause 43(1) of the Schedule to the amending Act.

With emphasis added, paragraphs 2.6 and 2.7 of the Memorandum are in the following terms:

The meaning of the word “condition” depends on context: Andrews v ANZ Banking Group Limited (2012) 247 CLR 205 at 223-224 [33]-[35].

One meaning of the word, noticed in Andrews, is “an important, vital or material promise, the breach of which will repudiate a contract”. The allusion here to the term “breach of contract” is used in contrast to “breach of warranty”.

Something of the same flavour – an analogical contrast between a contractual “condition” (in the character of an “essential term”) and a contractual “warranty” (a term breach of which sounds in damages but, because the term does not go to the root of the contract, not a right, such as that available on repudiation, to treat the contract as at an end) is suggested by paragraph 2.7 of the Explanatory Memorandum.

The analogy is not exact, if only because the subject matter of clause 43(1)(c) is an ongoing “agreement” the subject of a “variation”, implicitly consensual, rather than anything associated with a breach or discharge of a contract.

A comparison of the subject matter of clause 43(1)(c) with that of clauses 43(1)(a) and 43(1)(b) suggests that a common thread that unites all three provisions is a form of agreement that is, in substance, a “new” agreement.

This accords with a guiding principle embodied in 200(b) of the Corporations Act, inserted in the Act by the amending Act: more particularly, by clause 7, in Part 1, of the Schedule to the amending Act.

With emphasis added, section 200, as enacted by the amending Act, is in the following terms:

When the amending Act is read as a whole, a fair inference is that, given its purposive character, section 200(b) of the Corporations Act informs the proper construction of clause 43(1)(c) in the Schedule to the amending Act.

In deciding whether there has been “a retirement from an office, or a position of employment, held under… an agreement, for which a variation of a condition of the agreement happens”, attention must be directed to “the economic and commercial substance” of the conduct of parties, not merely “legal form”. In this context, the “conduct” of the parties includes their agreement (on or about 12 January 2012) to a “variation” of an agreement (the Consultancy Agreement) in existence immediately before the commencement of the new regime on 24 November 2009.

What, then, of the facts of this case?

As a matter of “economic and commercial substance”:

In the Deed of Severance the plaintiff company was referred to as “Bestvale”; the principal and his wife were referred to jointly as “Hagan”; and the defendant was referred to as “Coalworks”.

As for as material, the preamble provided as follows:

The reference, here, to a “variation” to allow for “increased remuneration” of $232,650 is an allusion to changes arising from changes in the amount of time worked by Mr Hagan, and inclusion of an allowance for remuneration of Mrs Hagan.

Despite discrepancies in the arithmetic, the intended object of the Deed of Severance was in substance, as Mr Hagan had urged upon the directors of the defendant, to crystallise an amount payable by the defendant to the plaintiff company equivalent to 12 months remuneration in respect of termination of the Consultancy Agreement.

Had the Deed of Severance become fully effective, upon approval by Whitehaven Coal Holdings Ltd, part of the effect of the Deed would, ostensibly, have been to give contractual force to any extra-contractual payment as a “variation” of the Consultancy Agreement.

In circumstances in which Whitehaven Coal Holdings Ltd refrained from giving its approval to the Deed of Severance and, accordingly, the condition precedent to which full operation of the Deed was subject did not occur, the plaintiffs should be held to the terms of the Consultancy Agreement.

Although the plaintiffs might retain any payments earlier, voluntarily made to them by the defendant beyond the terms of the Consultancy Agreement, a determination of the parties’ respective rights and obligations upon termination of the Agreement should be made by reference to the terms of the Consultancy Agreement.

With emphasis added, clause 3 of the Deed of Severance reads as follows:

Three formal documents evidence arrangements for the provision of services by the plaintiff company to the defendant, together constituting the “Consultancy Agreement” referred to in the Deed of Severance:

The first two documents predated 24 November 2009. Together, they constitute the “agreement” referred to in clause 43(1)(c).

The Consultancy Letter of Engagement. The operative part of the letter dated 12 May 2008 was in the following terms:

In fact, the remuneration referred to in the letter was consistently paid on the basis that the “agreed rates” were “exclusive” (rather than “inclusive”) of GST. The defendant paid the plaintiff company at the annual rate of $200,000.00 plus GST (i.e., $220,000.00), by instalments at an equivalent monthly rate of $16,666 plus GST ($18,333.00), excluding bonuses.

Although the letter provided for remuneration on a “GST inclusive” basis the parties, by a course of conduct in which everybody acquiesced, almost immediately (and, more to the point, before 24 November 2009), varied their agreed terms to embrace payment of remuneration on a “plus GST” basis.

The legal effect of this was such that the letter should be read as providing for remuneration at the annual rate of $220,000 inclusive of GST, by instalments at an equivalent monthly rate of $18,333 inclusive of GST, excluding bonuses.

The Deed of Variation. The “Deed of Variation” dated 30 September 2009 defined the letter dated 12 May 2008 as the principal “Agreement” the subject of variation.

The operative provisions of the Deed were in the following terms:

The parties are agreed that, despite obscurities attending the drafting of the Deed, it can sensibly, and should, be interpreted as meaning that either party could terminate the consultancy arrangement by 12 months written notice or by payment of 12 months remuneration in lieu of such notice. I agree.

The Critical Letter. Given that the letter dated 12 January 2012 post-dated 24 November 2009, the critical question upon a consideration of clause 43(1)(c) is whether it evidences “a variation of a condition” of the agreement recorded in the letter dated 12 May 2008 as amended by the Deed of Variation dated 30 September 2009 .

The body of the letter dated 12 January 2012 was in the following terms:

The letter, although addressed by the plaintiff company to the defendant, bears the word “approved” in a context indicative of an approval of its terms by the managing director of the defendant.

Although the letter records a change in implementation of the parties’ Consultancy Agreement (a “change to the working arrangements” for the supply of Mr Hagan’s services), involving a reduction of the standard week from four days to three, when read as a whole the letter confirmed rather than varied the essential character of the agreement because it confirmed the rate of remuneration to be paid for services rendered, and left open the possibility that more than three days’ work could be performed each week “if Coalworks requires”.

Viewed in terms of “economic and commercial substance” rather than merely in “its legal form” the conduct of the parties evidenced by this letter amounts, at most, to a “minor change” to the existing contract.

It does not, in my opinion, constitute “a variation of a condition of the agreement” within the meaning of clause 43(1)(c).

In reaching this conclusion, I put aside “bonuses”, and other payments, from time to time voluntarily paid by the defendant beyond the plaintiff company’s entitlements, the terms of which remained governed by the contract between the company and the defendant.

The effect of these findings is that the obligation of the defendant under the Deed of Variation to pay to the plaintiff company 12 months remuneration in lieu of notice (a liquidated sum quantified in the amount of $220,000) is enforceable by the plaintiff company, not being proscribed by the Corporations Act, section 200B as in force before the amending Act became effective on 24 November 2009 or now.

In any event, and allowing the parties an opportunity to review my quantification of pre-judgment interest, I make the following orders and notation:

Upon the joint application of the parties, Lindsay J made the following supplementary orders and notation on 28 September 2015 in chambers: