Gilmore Finance Pty Ltd v Aesthete Pty Ltd

1. [1]

   GLEESON JA: I agree with Leeming JA.

2. [2]

   LEEMING JA: Gilmore Finance Pty Ltd appeals, and alternatively seeks leave to appeal, from the dismissal of proceedings brought by it and heard over some seven days in the Commercial List of this Court against the trustees of two unit trusts and the sole director of those trustees, Mr Farshad Amirbeaggi. The trustees are the first and second respondents, and in both cases Mr Amirbeaggi, the third respondent, was their sole director. The fourth and fifth respondents are the other unitholders of the trust, who joined with the trustees and Mr Amirbeaggi in opposing the appeal. The only substantive relief sought on appeal is the removal of the trustees and their replacement by Gilmore Finance’s nominated trustee.

The appeal as of right is incompetent

1. [3]

   Promptly after proceedings were commenced, the respondents asserted that leave to appeal was required. Whilst maintaining that it enjoyed an appeal as of right, relying upon Beck v Henley [2014] NSWCA 201 and Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367, Gilmore Finance filed a summons seeking leave to appeal against the possibility that leave was necessary.

2. [4]

   Leave is necessary in order to appeal from a final judgment or order which involves neither “a matter at issue amounting to or of the value of $100,000 or more” nor “(directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more”: Supreme Court Act 1970 (NSW), s 101(2)(r). The key principles which emerge from the body of case law on this provision are summarised in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80]. The general rule was stated thus:

3. [5]

   That formulation accords with the authorities collected by Campbell JA in Pawlowska v Zajglic [2011] NSWCA 118 at [14]-[21], as well as with what has been said more recently, including in Breen v Clough [2018] NSWCA 172 at [35] and Khanna v Woolworths Group Ltd [2022] NSWCA 94 at [2].

4. [6]

   There are some difficulties in applying the rule to cases where the appellant/applicant has an equitable interest in property held on trust, and unquestionably the operation of the rule may in some circumstances be more complex than it first appears (see for example the analysis in Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40 on materially identical rules). But this is a plain case. The only substantive relief sought is to replace the trustees, and that does not confer on Gilmore Finance a benefit worth $100,000 or more. Success on appeal will cause Gilmore Finance to remain a unitholder of each trust with the same entitlements as it presently enjoys in relation to the same trust property, save that legal title to that property will be held by the new trustees.

5. [7]

   The two decisions relied upon by Gilmore Finance are inapposite. This is not a case like Beck v Henley, which although taking the form of judicial advice to a trustee concerned in substance the entitlement to an in specie distribution of shares held on trust, thereby conferring very valuable voting rights upon the beneficiary. Nor is it a case like Re Dion, which also concerned judicial advice, but once again the practical effect of the advice was to authorise amendments to a trust deed which would entitle distributions to beneficiaries of substantial amounts of income and capital, and make them “specifically entitled” to amounts of capital gains or franked distributions, in circumstances where the value of the trust property “far exceed[ed]” $100,000: see at [5], [19]-[26], [110] and [113].

6. [8]

   For completeness, I note that success on appeal would lead to the re-exercise of the costs discretion at first instance, and those costs are probably large. However, it was not suggested that any improvement in Gilmore Finance’s position in respect of costs could satisfy s 101(2)(r). It is settled that costs do not contribute to the $100,000 threshold: Condensing Vaporisers Aust Pty Ltd v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 95 at [22]-[28]; Weatherill v Bartlett [2017] NSWCA 175 at [11].

7. [9]

   Accordingly, in accordance with the respondents’ motion, the notice of appeal should be dismissed as incompetent.

The grant of leave turns on proposed ground 5

1. [10]

   The considerations favouring or tending against a grant of leave in large measure turn upon the merits of the proposed appeal. The bulk of the parties’ written submissions, and the whole of their oral addresses, were directed to those issues.

2. [11]

   The very large majority of the issues raised at trial, notably claims that Gilmore Finance had been induced to acquire units by reason of fraud and misrepresentation, were rejected by the primary judge in a substantial judgment of 524 paragraphs delivered promptly after the conclusion of the hearing: Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust (No 2) [2022] NSWSC 557. No appeal was sought to be brought from those aspects of the judgment.

3. [12]

   Further, at the commencement of the hearing in this Court, senior counsel for Gilmore Finance, who had not appeared at trial, advised that he did not press proposed grounds 3 and 4, and conceded that proposed grounds 1 and 2, which allege that the primary judge had erred in (a) failing to determine that there had been a breach of trust, or (b) implicitly determining that there had been no breach of trust, in relation to the provision of proper trust financial accounts, would, even if made out, not of themselves suffice to warrant the order of the only substantive relief sought on appeal, namely the removal of the trustees. That concession was properly made. As counsel candidly acknowledged, there had been no failure to provide proper accounts in 2018, or 2019, or 2020 or 2021, or 2022. Even if there had been the deficient provision of accounts as Gilmore Finance alleged, the deficiency had been cured many years ago.

4. [13]

   That said, proposed grounds 1 and 2 were not abandoned. Gilmore Finance relied upon them in addition to proposed ground 5, in the event that that latter ground were made out and the discretion to remove the trustee fell to be re-exercised.

5. [14]

   Proposed ground 5 was that the court below erred in finding that there had been no breach of trust by the trustees, as pleaded at paragraphs 114, 115(a), (c) and (d) of the Amended Commercial List Statement in the case of the first trustee, and paragraphs 136, 137(a), (c) and (d) in the case of the second trustee, “through their conduct with respect to the approval of excessive legal fees to Yates Beaggi Lawyers in circumstances where [Mr Amirbeaggi] was in a position of conflict”. The specified paragraphs in the Amended Commercial List Statement alleged that Yates Beaggi Lawyers was engaged “without the consent of the plaintiff on undisclosed terms and at rates, and for work the nature of which has not been disclosed to the plaintiff for consideration in excess of $50,000 per annum”, and that each trustee had approved the payment of excessive legal fees, acted under the direction of Mr Amirbeaggi who was labouring under a conflict of interest, the extent of which was “so great that even if a complying disclosure had been given under the Legal Profession Act which included an accurate estimate of future fees, would have been in no position to properly consider those disclosures”.

6. [15]

   It was common ground that a trustee is not lightly to be removed, as Brereton J observed in Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 at [25]. The stance adopted by Gilmore Finance in this Court is to concede that if proposed ground 5 fails, the appeal must be dismissed, but to maintain that if ground 5 succeeds, it relies in support of a re-exercise of the discretion to remove the trustees upon the further breaches of trust in proposed grounds 1 and 2. That commendably focussed approach carries with it important consequences. If proposed ground 5 fails, then there is no utility whatsoever in determining proposed grounds 1 and 2. That in turn means that (a) attention should in the first instance be directed to proposed ground 5 and (b) if that ground fails, leave should be refused in relation to proposed grounds 1 and 2 because irrespective of their strength or weakness, they have no practical consequences. That approach mirrors the course of oral argument in this Court, which was directed to proposed ground 5.

Factual background relevant to proposed ground 5

1. [16]

   The large majority of parties’ addresses concerned the fees charged by the law firm, Yates Beaggi, of which Mr Amirbeaggi was a principal. The law firm’s clients were the two trustees, of which Mr Amirbeaggi was the sole director. Plainly, by his firm providing legal services to the corporate trustees of which he was sole director, Mr Amirbeaggi was in a position of conflict. The real issue was whether Gilmore Finance had given fully informed consent.

2. [17]

   Both trusts concerned substantial property developments in Western Sydney. The first concerned land at Kingswood which was purchased by the first trustee (sometimes known as “A1”) in April 2010 for $2 million. The second involved land adjacent to Nepean Hospital which was purchased by the second trustee (sometimes known as “A3”) in August 2012 for $7.7 million. Gilmore Finance became a minority unitholder of each unit trust, paying some $7.25 million in order to acquire 30 and 28 units respectively in early 2011 and August 2012.

3. [18]

   In 2012 and 2013, Yates Beaggi rendered invoices to the trustees that disclosed that the firm, principally Mr Amirbeaggi, was charging for both legal and other services connected with each property development at rates of $600 per hour exclusive of GST. Much of the work was non-legal. Attention was directed in oral submissions in this Court to items like attendances upon various construction companies and planning consultants, and “attendances upon client etc with updates and accounts follow-up”.

4. [19]

   The invoices very substantially exceeded $50,000. The significance of that amount was that cl 13.1(a) in the unitholders’ agreements provided that the trustee must obtain unanimous approval of unitholders before “engagement or employment of any person for consideration in excess of $50,000 per annum including any statutory superannuation contribution”.

5. [20]

   The fees charged by the law firm attracted the attention and criticism of Gilmore Finance at the time. Its then solicitor, Mr Andrew Coates, wrote on 15 April 2013:

6. [21]

   Later that day, Mr Amirbeaggi responded to each of those paragraphs as follows:

7. [22]

   On 14 May 2013, Mr Amirbeaggi wrote to Mr Coates as well as Mr Lyle Gilmore, the principal of the appellant on the subject of fees:

8. [23]

   On Friday 17 May 2013, Mr Coates responded, copying Mr Gilmore into his email as follows:

The reasons of the primary judge relevant to proposed ground 5

1. [24]

   The primary judge addressed the effect of those exchanges at [481]-[491]. His Honour did so in order to explain why a separate complaint (which was not agitated in this Court) concerning whether the payments were unauthorised transactions was moot. His Honour addressed this as follows:

Gilmore Finance’s submissions and their resolution

1. [25]

   Gilmore Finance contended that the exchange of emails reproduced above fell short of constituting fully informed consent by a unit holder to the position of conflict in which Mr Amirbeaggi found himself. Emphasis was given to the work which was thereafter performed, much of which was directed to marketing developments to business and medical professionals, and to the fact that all of the work was charged at $450 per hour, even though much of it could have been done (and may perhaps have been done) by a much more junior lawyer or even by an administrative assistant. However, it was conceded that if what had occurred did amount to fully informed consent, then that was dispositive of the proposed ground of appeal.

2. [26]

   Gilmore Finance and the trustees reached what was described in oral submissions as a “commercial compromise”, on the basis of which Yates Beaggi was to reissue its accounts and, for the future, charge $450 per hour “for legal and non-legal work”. It may be noted that it was an inherent and indispensable element of that compromise that, going into the future, Mr Amirbeaggi would continue in the position of conflict, whereby he and his firm continued to supply legal and non-legal services to the trustees of which he was sole director.

3. [27]

   Gilmore Finance contended that the commercial compromise did not cure the conflict. When responding to the Court’s questions about why there had not been fully informed consent, there was the following exchange:

4. [28]

   That exchange and what ensued involved the following submissions as to why the exchange of emails fell short of amounting to fully informed consent.

5. [29]

   First, it was said that not all of the invoices were in fact re-issued at the different rates. But as was observed during argument, if not all of the previous invoices were in fact re-issued, that might be a breach of the agreement reflected in the emails. It did not mean that there continued to be a conflict to which Gilmore Finance had not given informed consent. Counsel acknowledged as much when submitting that this point only had any significance “if the informed consent is on a conditional basis on the basis that there will be retrospective amendment”. But there is nothing conditional in what was agreed in the exchange of emails. What is more, despite there having been a seven day trial raising a large number of issues, whether or not there had been a breach of the agreement reflected in those emails was not agitated.

6. [30]

   Secondly, it was said that in the future, very large amounts were charged for non-legal work, which were so substantial that they fell outside the scope of the compromise. Related to this was the proposition that no estimates of the work to be done were provided by Mr Amirbeaggi or his law firm. This aspect of the submission was encapsulated thus:

7. [31]

   I do not accept this response, which conflates three quite different points. One is what is required to give fully informed consent, which is decided by reference to questions of substance not form. The second relates to the statutory obligations to which the law firm was subject to provide disclosure. The third is the scope of the commercial compromise, which is a question of contractual construction.

8. [32]

   In Maguire & Tansey v Makaronis (1997) 188 CLR 449 at 466-7; [1997] HCA 23, the joint judgment said:

9. [33]

   The joint judgment cited, in support of that proposition, familiar passages from the judgment of Wilberforce J in In re Pauling’s Settlement Trusts [1962] 1 WLR 86 at 108 and the judgments of Handley JA and Hope AJA in Spellson v George (1992) 26 NSWLR 666.

10. [34]

    In the passage in In re Pauling’s Settlement Trusts, Wilberforce J said:

11. [35]

    In Spellson v George Hope AJA said at 673:

12. [36]

    Hope AJA added at 675:

13. [37]

    Here, the essence of the conflict was fully exposed in the exchange reproduced above. There was full knowledge on the part of Gilmore Finance that Mr Amirbeaggi was performing the work, that it was legal work and non-legal work, and that the clients were trustees of which Mr Amirbeaggi was the sole director. It is plain that Gilmore Finance had the benefit of independent legal advice on the issue and that it was resolved on the basis that both legal and non-legal work could be undertaken by Yates Beaggi and charged to the trustees at $450 per hour plus GST.

14. [38]

    Applying the passages from In re Pauling’s Settlement Trusts and Spellson v George, would it be fair and equitable for Gilmore Finance, having entered into a “commercial compromise” which authorised Mr Amirbeaggi’s firm to charge the trustees for legal and non-legal work at $450 per hour, to turn around and sue the trustee for paying those fees in circumstances where Mr Amirbeaggi was in a position of conflict? The answer must be that it would not be fair and reasonable. That is because when the compromise was entered into, the facts and circumstances which gave rise to the conflict on the part of Mr Amirbeaggi and his firm and the trustees of which he was the sole director were all known to Gilmore Finance.

15. [39]

    The only thing that matters is whether there was fully informed consent on the part of Gilmore Finance to that arrangement continuing into the future, even if the fees included very large fees for substantially non-legal work. What needed to be known in order for there to be informed consent was that Mr Amirbeaggi and his firm were in a position of conflict, and that they were performing both legal and non-legal work. That was in fact known by Gilmore Finance, which had the benefit of independent legal advice and indeed conveyed its proposal through its solicitor. Contrary to part of Gilmore Finance’s submission, it was not necessary in order for there to be fully informed consent for Gilmore Finance to know what services were to be provided in the future, or the likely proportion of legal and non-legal work in the future, or the quantum of the fees to be charged in the future. In particular, any non-compliance with the disclosure regime does not, in the circumstances of this case, alter the conclusion that Gilmore Finance gave its fully informed consent to Mr Amirbeaggi and the law firm continuing to provide legal and non-legal services to the trustees.

16. [40]

    The words of Mr Coates’ email are clear enough. The compromise was the continuation of Mr Amirbeaggi providing services to the trustees, despite his being in a position of conflict, at a reduced rate of $450 per hour, “for legal and non-legal work”. There was nothing in Mr Coates’ language to limit the “legal and non-legal work” to which the agreement related. The tenor of the submissions was that much of the work done in the future should not have been charged at $450 per hour because it was essentially administrative. I would not, for the reasons to be given presently, accept that submission. But even if there were a complaint that work had been done which was charged at too high a rate, that amounted to a contractual dispute. It does not assist Gilmore Finance’s application for leave to appeal in the circumstances of this case for two reasons. The first is that there has been a trial in which no such contractual dispute was raised. The second is that Gilmore Finance seeks to appoint new trustees. But any new trustees are statute-barred from pursuing Mr Amirbeaggi or his law firm for any contractual claim accruing prior to December 2016 (there being no suggestion of any fraudulent concealment), and there is no reason to appoint new trustees in order to investigate and perhaps pursue a statute-barred claim. It was for this reason, no doubt, that Gilmore Finance focussed attention on its claims of breach of fiduciary duty, but the answer to those claims is the fully informed consent which it gave.

17. [41]

    Returning for a moment to the facts and the way the trial was conducted, it is true that itemised bills refer to time spent on what, at first blush, appear to be relatively mundane matters that could have been performed by a much more junior employee. However, Mr Amirbeaggi was not cross-examined so as to suggest that there was anything improper in his personal involvement in the non-legal work done for the trustees. To the contrary, as Mr Pritchard who appeared for the trustees and Mr Amirbeaggi at trial and in this Court emphasised, the cross-examiner who had appeared for Gilmore Finance said that the cold-calling and other marketing efforts undertaken by Mr Amirbeaggi was “immensely important work”. The cross-examination included:

18. [42]

    There may well have been a sound basis for the cross-examiner taking that approach. After all, the development was for medical suites next to a hospital, and it is easy to see that there might be advantages in a very senior representative of the developer seeking to engage directly with potential tenants or purchasers of those suites. But it is very difficult, given the way in which Gilmore Finance ran its case at trial, for it now to contend on appeal that the work performed by Mr Amirbeaggi was other than “immensely important”.

19. [43]

    Insofar as there might be cause to complain about the quantum of costs incurred, Mr Amirbeaggi alerted Gilmore Finance to its rights to a costs review in his email of 15 April 2013. As Gilmore Finance observed in reply, that might go further than the regime for assessment of costs permits, because as a minority unitholder Gilmore Finance may well not have been a “third party payer” within the meaning of the regime (I express no view on the point, which was not argued). But there is nothing to suggest that Gilmore Finance sought to take up that invitation. Ordinarily the person who might complain about a law firm’s fees would be the client. There are circumstances, including where a trustee is not ready and willing to take proper proceedings, when a beneficiary may sue in its own name: see the authorities mentioned in Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 at [55]-[56], notably Ramage v Waclaw (1988) 12 NSWLR 84. I mention this lest it be thought that the client trustees (whose sole director was Mr Amirbeaggi) were the only persons who could complain about the legal fees charged by the law firm (whose principal was Mr Amirbeaggi). Mr Amirbeaggi’s position made this precisely the class of case when a beneficiary might sue in its own name, joining the trustee.

20. [44]

    In addition to the above, both the opening and closing written submissions at trial of the trustees and Mr Amirbeaggi identified discretionary considerations tending against the removal of the trustees. Those considerations included:

    1. (1)

       the trusts had no assets save for favourable costs orders against Gilmore Finance;

    2. (2)

       there was thus no need for trustees properly to administer the trust, nor was there endangerment of trust assets, and

    3. (3)

       at trial, there was no evidence or undertaking that the proposed new trustees would be funded (in this Court, Gilmore Finance proffered an undertaking to pay the costs of its new trustee).

21. [45]

    Save to note that those discretionary matters were, in the circumstances of this case, powerful considerations telling against the appointment of replacement trustees even if there had not been fully informed consent on the part of Gilmore Finance to the conflicts involving Mr Amirbeaggi and his companies and his firm, it is not necessary to take those matters any further.

22. [46]

    Accordingly, no proper basis has been made out to grant leave to appeal in relation to ground 5. For the reasons already given, that means that those other grounds which were not abandoned have no utility. The result is that the summons seeking leave to appeal should be dismissed in its entirety.

Orders

1. [47]

   For those reasons, the notice of appeal should be dismissed as incompetent, and the summons seeking leave to appeal should be dismissed. Costs would ordinarily follow the event. However, a question arises whether Gilmore Finance should be liable to pay a second set of costs on the part of the fourth and fifth respondents (the authorities dealing with cases where separately represented respondents who are successful should each receive a costs order are addressed in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [18]-[24]). The fourth and fifth respondents requested an opportunity to be heard on that issue. The regime I propose will accommodate that request.

2. [48]

   Accordingly, I propose the following orders:

3. [49]

   KIRK JA: I agree with Leeming JA.