Anchorage Capital Master Offshore Pty Ltd v Sparkes

1. [1]

   By an amended notice of motion dated 28 March 2019, the plaintiffs seek leave to file an Amended Summons and Amended Commercial List Statement (ACLS) which joins ACMO Finance (Ireland) Designated Activity Company (ACMO), Midtown Acquisitions LP (Midtown) and Deutsche Bank Aktiengesellschaft (DB) as additional plaintiffs in the proceedings and Mr Robert Bakewell as an additional defendant and which advances additional claims on behalf of those plaintiffs against the defendants, including Mr Bakewell. It will be convenient in this judgment to refer to the existing and proposed plaintiffs as “the plaintiffs” and the existing and proposed defendants as “the defendants”.

2. [2]

   Each of the defendants resist the amendments principally on the ground that they are futile because they seek to advance claims which depend on the validity of assignments that the plaintiffs have no reasonable prospects of establishing were valid.

3. [3]

   The second to fourth defendants also resist the amendments on the ground that the plaintiffs have not properly pleaded the claim in negligence against them.

Background

1. [4]

   The claims brought or sought to be brought in the proceedings arise out of four facility agreements between Arrium Limited (subject to deed of company arrangement) (Arrium) and certain of its subsidiaries. The first agreement is a Bi-Lateral Facility Agreement dated 13 June 2014 between OS Finance Pty Ltd (formerly Arrium Finance Pty Ltd) (subject to a deed of company arrangement) (Arrium Finance), AIOH Pty Ltd (formerly Arrium Iron Ore Holdings Pty Ltd) (subject to a deed of company arrangement) (Arrium Iron Ore) as borrowers, and Arrium as parent and Morgan Stanley Bank, N.A. as lender (the Morgan Stanley Facility Agreement). The second is a Syndicated Facility Agreement dated 31 May 2013 between, amongst others, Arrium Finance and Arrium Iron Ore as borrowers, Arrium as parent and National Australia Bank Limited (NAB) as agent (as amended) (the 2013 SFA). The third is a Syndicated Facility Agreement dated 16 June 2014 between, amongst others, Arrium Finance, Arrium Iron Ore and AltaSteel Ltd (AltaSteel) as borrowers, Arrium as parent and NAB as agent (as amended) (the 2014 SFA). The fourth is a Syndicated Facility Agreement dated 21 May 2015 between, among others, Arrium Finance, Arrium Iron Ore and AltaSteel as borrowers, Arrium as parent and NAB as agent (as amended) (the 2015 SFA).

2. [5]

   The four agreements are relevantly in the same terms. Under cl 6 of the Morgan Stanley Facility Agreement, cl 8 of the 2013 SFA and cl 8.1 of the 2014 and 2015 SFAs, where a borrower wished to make a “Drawing” (including a “Rollover Drawing”) to drawdown funds under the agreement, or, in the case of a “Rollover Drawing”, to rollover the maturity date on which an existing drawing was due to be repaid, it was required to issue a “Drawdown Notice” (which, in the case of a rollover was sometimes referred to as a “Rollover Notice”) which was:

3. [6]

   The form set out in schedule 3 requires that the notice be signed by two “Authorised Officers”. All of the Drawdown Notices relevant to these proceedings were signed by two of the defendants (other than Mr Bakewell).

4. [7]

   The representations and warranties required to be made in the Drawdown Notices are set out in cl 14.1 of the Morgan Stanley Facility Agreement and cl 18.1 of each of the SFAs. Relevantly, cl 14.1 of the Morgan Stanley Facility Agreement states:

5. [8]

   Clauses 18.1(i) and 18.1(k) of each of the SFAs contain identical warranties except that the 2013 SFA contains the following representation in clause 18.1(i):

6. [9]

   Clause 14.3 of the Morgan Stanley Facility Agreement and cl 18.3 of the SFAs relevantly provide that each of the representations referred to above “is repeated, with reference to the facts and circumstances existing at the time on each Drawdown Date and on the date on which a Certificate of Compliance is delivered …”

7. [10]

   The effect of these provisions is that each time a borrower issued a Drawdown Notice (including a Rollover Notice) it was taken to have represented that as at the date of the notice there had been no material change in the Group’s financial position (in the sense stated in the relevant representation) and that no Event of Default had occurred or continued unremedied. Those representations were specifically recorded in the Drawdown Notices in these terms:

8. [11]

   By a number of assignments, certain of the debts owed to the lenders under the four facility agreements (the Par Lenders and each individually a Par Lender) were assigned to the plaintiffs, or in the case of the Morgan Stanley Facility Agreement, novated to the plaintiffs. In some cases, the assignments were made through one or more parties unconnected with the Par Lenders or the plaintiffs. The assignments were in substantially the same terms. It is convenient to take an assignment of debts under the 2015 SFA to ACMO as an example. No party suggested that the outcome of the amendment application would be different in respect of other plaintiffs or other assignments.

9. [12]

   The assignment is made in accordance with a document headed “LMA Assignment (Distressed/Claims)”. That document provides:

10. [13]

    The schedule sets out various details including details of the “Credit Agreement”, and details of the “Assigned Claims”.

11. [14]

    Clause 2.2 of the “Agreed Terms” provides:

12. [15]

    “Assigned Assets” is defined to mean:

13. [16]

    Clause 5 of the Standard Terms, which are incorporated in the assignment provides:

14. [17]

    It is common ground that the plaintiffs received substantial dividends as assignees in respect of debts that were assigned to them.

15. [18]

    The proposed ACLS is lengthy. It is helpfully summarised in an affidavit of Ms Colleen Platford, the solicitor for the plaintiffs, in the following terms, which are not materially in dispute for the purposes of the current application:

16. [19]

    The ACLS also includes claims brought by DB in its capacity as a Par Lender under the 2014 SFA. In that capacity, DB alleges that the defendants engaged in misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL), s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) and s 1041H of the Corporations Act 2001 (Cth) (the Corporations Act) in relation to the issuing of Drawdown and/or Rollover Notices. It is also alleged that the first defendant, Ms Delia Sparkes, and Mr Bakewell, in each of their capacities within the Arrium Group, were involved in contraventions by one or more of the borrowers of the ACL, the ASIC Act and the Corporations Act. It may be inferred that similar claims are not brought by the assignees because they accept that claims under the relevant statutory provisions are not assignable: see Aquatic Air Ltd v Siewert [2015] NSWSC 928 at [87] – [88] per Brereton J, and the cases cited there; Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62 at [204] per von Doussa J; Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218-9 per Branson J.

17. [20]

    It is apparent from what has been said that whatever the outcome of this application, the proceedings are likely to continue. Subject to what I say below, they will continue against the first to fourth defendants in respect of assigned claims that are the subject of the existing Commercial List Statement – that is, claims brought by Anchorage as assignee of rights in respect of the Morgan Stanley Facility Agreement. Although not necessarily as a result of the current application, they are also likely to continue against all defendants in respect of the claims brought by DB as a Par Lender, since those claims do not depend on any assignments.

The relevant standard

1. [21]

   As I have said, the defendants resist the amendments on the ground that it would be futile to permit them because the amended claim has no reasonable prospects of success and consequently would be liable to summary dismissal. It was common ground that whether that test is satisfied is to be determined in accordance with the standard stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129; [1964] HCA 69, where his Honour said:

2. [22]

   The question in this context is whether the plaintiffs’ claim that they took a valid and effective assignment of the claims they seek to bring by the ACLS satisfies that standard, in which case the amendments should not be permitted.

The law relating to assignments

1. [23]

   It is a well-recognised principle of law that a bare cause of action is not assignable because such an assignment “savour[s] of or [is] likely to lead to maintenance”: Glegg v Bromley [1912] 3 KB 474 at 489 per Parker J. Relevantly, the law recognises two exceptions to that general principle, which were stated in these terms by Lord Roskill (with whom Lords Edmund-Davies, Fraser of Tullybelton and Keith of Kinkel agreed) in Trendtex Trading Corporation and Anor v Credit Suisse [1982] AC 679 at 531:

2. [24]

   In that case, Trendtex was heavily indebted to Credit Suisse. It had no hope of repaying that debt unless it was successful in recovering on a letter of credit issued by a bank, CBN, in its favour. Trendtex was having difficulty financing its claim against CBN. It obtained a guarantee from Credit Suisse of its costs in the proceedings and subsequently it assigned its claim against CBN to Credit Suisse by way of security. Later still, it assigned all of its residual rights against CBN to Credit Suisse in contemplation of a further assignment by Credit Suisse to a third party. Trendtex then sought to have that assignment set aside on the basis that it savoured of maintenance and champerty. Save for the on-sale to a third party who had no interest in the underlying commercial dispute, the House of Lords would have held the assignment of the residual rights was enforceable. Credit Suisse had a genuine commercial interest in the outcome of the claim against CBN because its prospects of recovering the amount owed to it depended on the outcome of that claim.

3. [25]

   The exception in the case of “a genuine commercial interest” is generally seen as a development in the law. Prior to the decision in Trendtex, the exception was only available where the assignee had an interest in the suit: see Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 at [79] per Gummow and Bell JJ, referring to Ellis v Torrington [1920] 1 KB 399 at 406 per Bankes LJ. Moreover, that exception was not clearly distinguished from the exception in relation to the assignment of ancillary rights. So, for example, the cases referred to by Bankes LJ as examples of the exception to which he refers are examples of cases where the assignment is incidental and subsidiary to the assignment of proprietary rights.

4. [26]

   The development in the law brought about by Trendtex was accepted by the High Court In Equuscorp and has been applied in a number of intermediate appellate courts in Australia since: see, for example, Workcover Queensland v Amaca Pty Ltd [2013] 2 Qd R 276; [2012] QCA 240; Dover v Lewkovitz [2013] NSWCA 452.

Are the plaintiffs’ claims arguable?

1. [27]

   Mr Bakewell, with whom the other defendants agreed, submitted that an essential feature of the second exception identified in Trendtex (where the assignee had a genuine commercial interest in the subject-matter of the cause of action) was that that commercial interest had to exist before the assignment. That is not the case here. Any commercial interest that the plaintiffs had in the claims they now seek to bring arose from the assignments. As to the first exception identified in Trendtex, Mr Bakewell submits that it is not arguable that claims against the defendants are incidental to the property rights (the debts) that were assigned. Those claims are claims against third parties which have as their starting point an assertion that had those third parties complied with their obligations the debts would not have arisen. On no view could those claims be regarded as incidental to the debts.

2. [28]

   It seems plain from the decision in Trendtex that where there has been a bare assignment of a cause of action, the assignment is not valid unless the assignee has a pre-existing legitimate commercial interest in the outcome of the claim being assigned. The assignment itself cannot give rise to that interest: see Cennzeal Pty Ltd v Dawson Property Ventures Pty Ltd [2018] NSWSC 690 at [45] per Rein J, and the cases cited there. If it were otherwise, the exception would swallow the rule because the assignment itself would always provide the legitimate commercial interest.

3. [29]

   However, in the present context two questions remain. The first is whether it is arguable that the principle stated in Trendtex and adopted in Equuscorp has also modified the test of what rights are to be regarded as incidental to property rights for the purposes of the first exception identified by Lord Roskill. The second is whether, even if that test has not been modified, it is arguable that the rights in question in this case are incidental to the debts that were assigned.

4. [30]

   In my opinion, the answer to the first question is in the affirmative.

5. [31]

   In Equuscorp, the issue was whether there had been a valid assignment of a restitutionary claim. On that issue, French CJ, Crennan and Kiefel JJ said:

6. [32]

   The test was stated in similar terms by Gault J in First City Corporation v Downsview Nominees Ltd [1989] 3 NZLR 710. In that case, the assignor of a debenture also purported to assign the assignor’s claims in tort, including rights the assignor had against a receiver who had been appointed to the company which had issued the debenture. In concluding that the assignment was valid, Gault J said (at 757):

7. [33]

   It is at least open on the basis of these authorities to argue that Trendtex not only modified the test to be applied where there is a bare assignment of a cause of action, but also where the assignment occurs in connection with the assignment of property rights; and that it is appropriate in those cases to ask whether the assignee has a legitimate commercial interest in taking an assignment of both sets of rights.

8. [34]

   Applying that test, it is at least arguable that the plaintiffs had a legitimate commercial purpose in obtaining an assignment of the rights against the defendants. The right to receive certificates was part of the drawdown mechanism which was designed to provide some protection to the borrower in connection with advances made under the relevant facility agreement. The right to sue the defendants in respect of certificates which were wrongly given (assuming that there is such a right) can be seen as part of that protection. It might be argued that the plaintiffs had a legitimate commercial purpose in acquiring those rights and that protection in connection with the acquisition of the debts which resulted from the provision of those drawdown notices.

9. [35]

   It is no answer to this point to submit, as Mr Bakewell did, that the assignment of a bare cause of action is invalid unless the assignee has a pre-existing legitimate commercial interest in the cause of action, since what has occurred in this case is the assignment of causes of action in connection with the assignment of debts and associated contractual rights.

10. [36]

    Mr Bakewell submits that an argument along the lines I have indicated is untenable in the present case because the claims against him proceed on the assumption that the debts would not have been incurred. However, why that makes a critical difference was never clearly explained. In Equuscorp, the restitutionary claims which were assigned only arose because the relevant contractual rights did not exist. In the present case, there is no question concerning the validity of the debts or the contractual rights which underpin them; and the fact that any loss arising in respect of those debts might be measured by reference to the position if the debts had not been incurred does not mean that the claim is not connected to the debts.

11. [37]

    The defendants also rely on Tosich v Tasman Investment Management Limited [2008] FCA 377 at [35], where Gyles J said:

12. [38]

    However, three points may be made about that decision. First, it is a decision of a first instance judge and it would be open to the plaintiffs to submit at trial that the Court should not follow it. Second, it appears that Gyles J was not taken to the decision of Gault J. Third, the decision was handed down before the decision of the High Court in Equuscorp.

13. [39]

    Mr Bakewell points to the substantial costs he will incur if he is required to defend the claims against him. His solicitor estimates those costs to be in the order of $1,950,000. But those costs themselves are not a reason for disallowing the amendments, although they may be relevant to other case management issues – such as whether the validity of the assignments should be determined as a separate question. Moreover, as I have said, even if current amendments were disallowed, it is likely that DB would be permitted to proceed with its claims. Consequently, the important figure is not the costs that Mr Bakewell will incur in the proceedings but the incremental increase in costs if the assignee plaintiffs are permitted to pursue their claims.

14. [40]

    Having regard to the conclusions I have reached, it is unnecessary to address the second issue raised by the assignments – namely, whether the assignments could properly be regarded as incidental to the assignment of property rights so as to fall within the first exception identified by Lord Roskill, even if that exception is unaffected by the development in the law brought about by the decision in Trendtex.

The pleading of negligence

1. [41]

   The second to fourth defendants contend that the ACLS is defective because it fails to plead factual causation – that is, that their alleged negligence was a necessary condition of the occurrence of the harm: see s 5D(1)(a) of the Civil Liability Act 2002 (NSW). They submit that that defect can only be overcome if the plaintiffs plead:

2. [42]

   I accept that submission. Taking the negligent misstatement claim against the second defendant, Ms Verawati, as an example, it is alleged in paras 191 and 192 of the ACLS that she owed a duty of care to each of the Par Lenders in making the representations contained in the Drawdown Notices that she signed. In para 193, it is alleged that she breached her duty of care in making those representations in that (a) the representations were false and inaccurate, and that (b) she did not take any steps (or alternatively, any reasonable steps) to ascertain whether the representations were true and accurate. In para 200, it is then alleged that by reason of those breaches, the Par Lenders suffered loss. It gives as particulars of that loss that, if the representations had not been made, the Drawdown Notices would not have been issued and the relevant Par Lenders would not have permitted the drawings made in accordance with those notices.

3. [43]

   It is unclear, but a suppressed premise of this pleading appears to be that if Ms Verawati had not breached her duties, she would have not have signed the relevant Drawdown Notices and that if she had not signed those notices, the drawdowns would not have occurred. However, if that is the plaintiffs’ case, it should be pleaded expressly. On the other hand, if it is said that Ms Verawati should have taken some other steps (such as undertaken enquiries about the accuracy of the representations made in the notices), it would be necessary for the pleading to identify what those steps were and what consequences would follow from them.

Conclusion and orders

1. [44]

   It follows that the plaintiffs should be refused leave to file the ACLS in its current form. However, the plaintiffs should be given an opportunity to amend their claim to address the issues with the ACLS that the second to fourth defendants have identified.

2. [45]

   The orders of the Court, therefore, are:

   1. (1)

      Leave be granted to the plaintiff to join:

   2. (2)

      Leave be granted to the plaintiffs to file and serve an Amended Summons on the defendants substantially in the form exhibited to the affidavit of Colleen Anne Platford sworn 5 December 2018;

   3. (3)

      Refuse leave to the plaintiffs to file and serve an Amended Commercial List Statement on the defendants substantially in the form exhibited to the affidavit of Colleen Anne Platford sworn on 5 December 2018;

   4. (4)

      Direct that the plaintiffs serve a proposed Amended Commercial List Statement addressing the issues raised in this judgment by 23 April 2019;

   5. (5)

      Direct that the defendants notify the plaintiffs by 30 April 2019 if they have any objection to the Amended Commercial List Statement;

   6. (6)

      If no objection is raised to the proposed Amended Commercial List Statement in accordance with order (3), give leave to the plaintiffs to file an Amended Commercial List Statement substantially in the form of the document served in accordance with order (3) by 7 May 2019;

   7. (7)

      If an objection is raised to the proposed Amended Commercial List Statement in accordance with order (3), give leave to the plaintiffs to file a notice of motion returnable before the List Judge on 10 May 2019, seeking leave to file an Amended Commercial List Statement substantially in that form;

   8. (8)

      Stand the matter over for directions on 10 May 2019.

3. [46]

   I will hear the parties in relation to costs.