FEDERAL COURT OF AUSTRALIA BANKRUPTCY - arrangements with creditors without sequestration - authority given by debtors to controlling trustee - creditors' resolution that the debtors' file petitions - application by debtors for declaration of nullity of resolution on ground creditors did not qualify as such ‑ motion by creditors to dismiss application - prior proceedings to which controlling trustee, but not debtors, was a party - whether issue res judicata - whether Anshun estoppel applicable because unreasonable that controlling trustee did not raise contention in first action - whether issue constitutes collateral attack on judgment in prior proceedings - effect of expiry of Pt X authority - whether issue abandoned - whether failure to join debtors in prior proceedings a barrier to issue being now raised. Bankruptcy Act 1966 (Cth), ss 188, 188(1)(c), 188(3), 189(1), 189(1A), 189(2), 189AA, 189AB(1), 189AB(7), 190(1), 190(2), 190(4), 190(4A), 204(1), 209 Federal Court Rules, O 20 r 2 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs appd) (in liq) (1993) 115 ALR 377 applied Harris v Truman (1882) 9 QBD 264 considered Petrie v Linsley (unreported, Supreme Court of Victoria, Eames J, 16 May 1995) considered Port of Melbourne Authority v Anshun (1981) 147 CLR 589 followed Ramsay v Pigram (1968) 118 CLR 271 followed Re Dingle; Westpac Banking Corporation v Worrell (1993) 119 ALR 265 considered Trawl Industries of Australia Pty Ltd (recs and mgrs appd) (in liq) v Effem Foods Pty Ltd 108 ALR 335 referred to JOSEPH COCI, HELEN JOY COCI, ERNEST RAMPELLINI, JENNIFER ANNE RAMPELLINI v NILANT & ORS WG 7064 of 1997 R D NICHOLSON J 12 February 1998 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 7064 of 1997 BETWEEN: JOSEPH COCI, HELEN JOY COCI, ERNEST RAMPELLINI, JENNIFER ANNE RAMPELLINI Applicants AND: CHARLES PHILIPPE LOUIS NILANT First Respondent TERENCE CORNELIUS McMANUS ROBERT HENRI DeBUF PATRICIA ANNE DeBUF REGINALD SARSFIELD FINN ELIZABETH ROSE FINN, DONALD GEORGE LYSTER LEONIE LYSTER JOHN SELSMARK ROBERT LLOYD RICHARD-COOMBES IDA ELEANOR RICHARD-COOMBES MICHAEL CYRIL HALPIN GEORGE hugh margetts gwendoline mary margetts toleen nominees pty ltd acn 008 923 911 LAVIN NOMINEES PTY LTD ACN 008 923 920 TUDORCOURT INVESTMENTS PTY LTD ACN 051 683 919 MacDOUGALL PTY LTD ACN 008 674 575 Second Respondents JUDGE: R D NICHOLSON J DATE OF ORDER: 12 February 1998 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The second respondents' motion be dismissed. 2. The question of costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY wag 7064 of 1997 BETWEEN: JOSEPH COCI, HELEN JOY COCI, ERNEST RAMELLINI, JENNIFER ANNE RAMPELLINI Applicants AND: CHARLES PHILIPPE LOUIS NILANT First Respondent TERENCE CORNELIUS McMANUS ROBERT HENRI DeBUF PATRICIA ANNE DeBUF REGINALD SARSFIELD FINN ELIZABETH ROSE FINN, DONALD GEORGE LYSTER LEONIE LYSTER JOHN SELSMARK ROBERT LLOYD RICHARD-COOMBES IDA ELEANOR RICHARD-COOMBES MICHAEL CYRIL HALPIN GEORGE hugh margetts gwendoline mary margetts toleen nominees pty ltd acn 008 923 911 LAVIN NOMINEES PTY LTD ACN 008 923 920 TUDORCOURT INVESTMENTS PTY LTD ACN 051 683 919 MacDOUGALL PTY LTD ACN 008 674 575 Second Respondents JUDGE: R D NICHOLSON J DATE: 12 february 1998 PLACE: PERTH REASONS FOR JUDGMENT HIS HONOUR: On behalf of the second respondents ("the creditors") a motion is brought to dismiss the proceedings pursuant to O 20 r 2 of the Federal Court Rules ("FCR"). The application to which the motion relates is brought in reliance upon ss 27, 30 and 187 of the Bankruptcy Act 1966 (Cth) ("the Act"). It seeks a declaration the creditors are not creditors of the applicants ("the debtors") and a further declaration that resolutions of the creditors on 23 June 1997 that the debtors file petitions in bankruptcy within seven days are a nullity. The four principal grounds on which dismissal is sought are res judicata; application of the principle in Port of Melbourne Authority v Anshun (1981) 147 CLR 589; abuse of process by way of collateral attack on a prior decision; and the effect of the expiry of the Pt X authority. Factual setting The creditors are the registered proprietors of a property known as the Peninsula Hotel in Mandurah, Western Australia ("the hotel") together with the debtors and others (collectively "the Syndicate"). The creditors and other members own 6 undivided shares. The first and second‑named debtors have 6 undivided shares, as do the third and fourth‑named debtors. By lease dated 28 June 1991 ("the lease") the hotel was leased to Northoak Holdings Pty Ltd ("Northoak"). The debtors guaranteed Northoak's performance under the lease. The lease came about in the following circumstances. Northoak and the debtors were clients of an accounting practice trading as Barwick Partners. The directors and shareholders of Northoak are the first and third‑named debtors. In early 1991 Northoak instructed its accountant, Thomas of Barwick Partners, to investigate the possibility of Northoak acquiring the hotel. Barwick Partners eventually organised for the Syndicate to purchase it. Northoak was advised by a partner of Barwick Partners (Casey) to lease the hotel from the Syndicate for a commencing rental of $375,000 per annum. While Casey of Barwick Partners acted for the Syndicate in the lease negotiations, Thomas of Barwick Partners acted for Northoak. For negotiating the lease Barwick Partners or an associated entity was paid $400,000. The hotel did not trade profitably. Although Northoak increased the turnover in the first year from approximately $2,000,000 to $3,000,000, losses were incurred. On about 11 February 1995 Northoak's lease was terminated by the creditors. Northoak maintains that had the rental in the lease been a fair commercial rent this would not have occurred. On 14 August 1996 Northoak and the debtors as the second and third plaintiffs commenced proceedings in the Supreme Court of Western Australia against Thomas and others. On 17 February 1995 a receiver and manager was appointed to Northoak by the creditors. On 2 May 1997 a Master of the Supreme Court ordered the receiver and manager be restrained from discontinuing the Supreme Court action. The creditors have also issued proceedings in the Supreme Court of Western Australia against the debtors claiming in excess of $1,000,000. An application for summary judgment was dismissed by a Master. Barwick Consultants Pty Ltd was appointed as the manager of the Syndicate by a Syndicate Agreement dated 28 June 1991. By a Management Deed dated 28 September 1994 it was provided Barwick Consultants resigned as manager from 25 February 1993 and Barwick Management Pty Ltd was appointed as manager. Barwick Management, as a creditor in respect of management fees, brought a petition for a sequestration order against the debtors other than the first-named debtor in these proceedings. On 10 September 1997 the petition was dismissed under s 52(2)(b) of the Act on the basis a cross‑claim of the debtors (other than the first‑named debtor) established a sufficient cause why a sequestration order ought not to be made until the cross‑claim is resolved. A notice of appeal has been filed in respect of that decision. Creditors' meetings The creditors and others claim the debtors are indebted to them in the sum of $1,108,378.36 pursuant to the guarantees and indemnities given by the debtors in the lease. On 19 March 1997 the debtors signed authorities appointing the first respondent ("the controlling trustee"), a registered trustee, as their trustee. On 9 April 1997 the controlling trustee served notice of meetings for proposed Pt X arrangements under the Act ("the notice") on Barwick Management Pty Ltd. Included with the notice was the controlling trustee's report in which he recommended the creditors accept a proposal from the debtors to enter into a Deed of Arrangement. The meeting the subject of the notice was scheduled for 21 April 1997. On 15 April 1997 the solicitor for the creditors informed the solicitor for the controlling trustee the meetings would be invalid "as none of the proprietors [of the hotel] had been served with the notice". On 16, 17 or 18 April 1997 the controlling trustee sent individual notices to each of the proprietors. The meeting was held at 10.00 am on the scheduled date, 21 April 1997. Prior to the meeting the solicitor for the creditors handed to the controlling trustee proofs of debt and proxies from the creditors nominating that solicitor as proxy for each of the creditors. Other members of the Syndicate did not appear at the meetings by proxy or attorney or otherwise. The solicitor for the creditors was also appointed as proxy by Barwick Management with respect to its claim. At the meeting the controlling trustee ruled the members of the Syndicate were one combined creditor which would have to vote together. He said the ruling was made on the basis of legal advice he had received from his solicitor. The solicitor's opinion referred to the provisions of the Syndicate Agreement giving every proprietor an "undivided share". His view was the Syndicate Members were co-owners of the claim against the debtors. He concluded there was only one debt for 100 per cent and this was an asset belonging to all members of the Syndicate. Accordingly the Syndicate was only entitled to one vote. The controlling trustee's ruling was contested by the solicitor for the creditors who requested his dissent be recorded. The meetings were then adjourned to 23 June 1997 to enable proceedings to be brought in relation to the concerns of the creditors expressed through their solicitor. Proceedings before French J Proceedings were then instituted in the Federal Court on behalf of the creditors against the controlling trustee in respect of the validity of the proxies and proofs of debt lodged by the creditors at the meetings ("the first action"). On 23 June 1997 French J declared them to be valid. In his reasons given on 11 August 1997 French J said his ruling was supported by the fragmentation of the interests of members of the Syndicate as between the creditors and the debtors. Each of the creditors had an enforceable right to claim as against each of the debtors and this was made explicit in s 52 of the Property Law Act 1969 (WA). He considered it was not realistic to relegate the divergence of interests between the creditors and the debtors to an internal matter to be resolved by the Syndicate in accordance with its constitution or internal agreement. In his view the creditors held their interests as tenants in common with respect to a specified number of undivided shares. In this sense their interests could be quantified and each was entitled to status as a creditor and to vote accordingly. The debtors chose to take no part in those proceedings. The debtors presented on the day judgment was to be delivered and through their solicitors advised the Court, after awaiting judgment on the issue of whether or not the creditors were in fact in law individual creditors, of their interest in the outcome of the proceedings. Privity of parties Turning to the grounds on which the creditors seek to dismiss the application, to determine whetherres judicata or the Anshun principle is applicable it is requisite the first action and the second action arise between the same parties or between one of them and a privy of the other, in the same interest or capacity. The basic requirement of a privy in interest is the privy must claim under or through the person of whom the claimant is said to be a privy: Ramsay v Pigram (1968) 118 CLR 271 at 279, (cited in Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs appd) (in liq) (1993) 115 ALR 377 at 388 per Northrop and Lee JJ). The debtors were not a party to the first action. Nevertheless it is submitted on behalf of the creditors that the controlling trustee, who was a party to the first action, has a privity of interest with the debtors. This is supported by reference to the contention there is a privity of interest between a bankrupt and a trustee in bankruptcy so that judgment against a person who becomes a bankrupt will bind the subsequent trustee in bankruptcy: Harris v Truman (1882) 9 QBD 264. It is said the position should be the same as between the debtors and their controlling trustee. The submission receives little support from Harris v Truman and is best judged against the statutory provisions giving rise to the appointment and controlling powers of a controlling trustee. These appear in Pt X of the Act which provides for the appointment of a controlling trustee in s 188(1)(c). It was in conformity with this section that the debtors appointed the controlling trustee "to call a meeting of the debtor's creditors and to take control of the debtor's property". The authority thus given was not revocable by the debtors: s 188(3). The authority then became effective in accordance with s 188. Subsection 189(1) has the effect the property of the debtor becomes subject to control under Div 2 ("the Division"). Subsection 189(1A) provides: "The control continues until one of the following events happens: (a) the creditors resolve at a meeting called under this Part that the property cease to be subject to control; (b) the debtor and a trustee make a deed of assignment or a deed of arrangement following a special resolution of creditors; (c) the creditors accept a composition under this Division; (d) 4 months pass since the authority under section 188 became effective; (e) the Court, under section 208, releases the property from control; (f) the debtor becomes a bankrupt; (g) the debtor dies." Once control of the property is established under the Division, there are limitations on debtor's rights spelt out in subs 189(2): "A debtor whose property is subject to control under this Division: (a) shall not remove, dispose of or deal with any of his or her property except with the consent of the controlling trustee; (b) shall furnish to the controlling trustee such information with respect to any of the debtor's examinable affairs as the controlling trustee requires; and (c) shall comply with any direction given to him or her by the controlling trustee with respect to his or her property or affairs. Penalty: Imprisonment for 12 months." Then s 189AA provides power to a court to make an order, that has effect while the property of the debtor is subject to control, discharging an order made at any time against the person or property of the debtor under the law relating to the imprisonment of fraudulent debtors; or staying a civil or criminal legal process begun at any time against the person or property in respect generally of failure to pay debts; or releasing the debtor from custody. By subs 189AB(1) the debtor's property, once subject to control under the Division, is deemed charged with unsecured debts existing at the time the authority was signed under s 188 and with any amount by which the debtors secured debts exceeded the value of the property secured for payment of the debts at that time. Subsection 189AB(7) authorises the controlling trustee to sell property so subject to a charge. The duties and powers of a controlling trustee are set out in s 190. By subs 190(1) the controlling trustee must call a meeting of the debtor's creditors under the Division. Subsection 190(2) provides: "The controlling trustee is empowered: (a) to take immediate control of the debtor's property and affairs; (b) to make such inquiries and investigations in connexion with the debtor's property and examinable affairs as the trustee considers necessary; (c) to carry on a business of the debtor if, in the opinion of the trustee, it will be in the interests of the creditors to do so; and (d) to deal with the debtor's property in any way that will, in the opinion of the trustee, be in the interests of the creditors." By subs 190(4) the controlling trustee, for the purposes of exercising powers under the section, may act in the name of the debtor as if duly appointed by the debtor as a lawful attorney to exercise the powers. There is a power provided in subs 190(4A) for a controlling trustee, or any person affected by an act or omission of such trustee, to apply to the court for directions on a matter connected with control of the debtor's property under the Division. Other provisions in the Division concern the reporting obligations of the controlling trustee and obligations in respect of the calling of the meeting of creditors. Subsection 204(1) provides for the culmination in the application of the Division in the following terms: "The creditors may, at a meeting called in pursuance of an authority under section 188, by special resolution: (a) where the debtor's property is subject to control under this Division, resolve that the debtor's property be no longer subject to control under this Division; (b) require the debtor to execute a deed of assignment or a deed of arrangement under this Part; (c) accept a composition; or (d) require the debtor to present a debtor's petition within 7 days from the day on which the resolution was passed." The effect of acts of the controlling trustee is prescribed in s 209 in the following terms: "Where: (a) a debtor signs an authority under section 188; and (b) subsequently a deed of assignment or a deed of arrangement is entered into by the debtor under this Part, a composition is accepted under this Part or the debtor becomes a bankrupt; all payments made, acts and things done, transactions entered into and liabilities incurred by the controlling trustee in good faith in exercise of his or her powers under this Part are binding on the trustee of the deed or composition or in the bankruptcy, as the case may be." Acts of the controlling trustee bind a subsequent trustee of a deed, composition or bankruptcy. The debtors are subject to direction of the controlling trustee in respect of their property and are unable to deal with it during the continuance of the controlling trusteeship. In my opinion it follows from these provisions the controlling trustee is a privy of the debtors during the continuance of an effective authority pursuant to s 188 so that there is a privity of interest between them. In Trawl Industries of Australia Pty Ltd (recs and mgrs appd) (in liq) v Effem Foods Pty Ltd 108ALR 335 at 343 Gummow J at first instance said: "It is important for the instant case to appreciate that in these [English] authorities, when finding the necessary privity in a successive or mutual relationship, the courts have looked to legal rather than economic indicia as the criterion of operation of the privity doctrine. This has been true also in Australia." The appeal against this reasoning was dismissed: Effem at 393-395 per Northrop and Lee JJ; at 410 per Burchett J. The effect of the legal provisions here is the controlling trustee takes over the interest of the debtors in the debtor's property. While the authority to do so endures, there is a privity of interest. That follows from the statutory provisions and no reliance need be placed on arguments by analogy to the position of a trustee under a deed to reach that point. In particular the decision in Re Dingle; Westpac Banking Corporation v Worrell (1993) 119 ALR 265 does not lead me to a different view. Nor do I regard this as a legalistic interpretation" of the type referred to in Petrie v Linsley (unreported, Supreme Court of Victoria, Eames J, 16 May 1995). In the event, however, the existence of the privity of interest does not carry the day for the creditors in relation to the present motion, for reasons which now follow. Res judicata The principle relied upon by the creditors is that expressed by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532 where he said: "... the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence". The pertinent evidence upon which the case for the creditors relies is as follows. It is submitted for the creditors French J made a declaration in the first action that the creditors' proofs of debt were valid. It is argued a declaration a person's proof of debt as a creditor is valid necessarily implies a prior declaration the person is in fact a creditor. Therefore, it is said, it was a necessary element of the cause of action that the creditors were found to be creditors of the debtors. The application brought by the debtors is now for a declaration the creditors are not creditors. It is said to be a clear example of "an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment": Anshun at 603. In response it is submitted for the debtors as follows. The finding the creditors' proof was valid was not an adjudication on the merits of the indebtedness of the debtors to the creditors. The papers in the first action included assertions concerning the extent of the indebtedness but there was no contest on that issue. The only issue dealt with before French J was the issue of votes. No mention was made by him of any challenge to the quantum of debt. The true issue was whether the respondents were entitled to individual votes. French J made no reference to the evidence in relation to quantum so there could not have been any decision on that issue on the merits. In my opinion the submissions for the debtors on the nature of the issue before French J are correct. A reading of his reasons makes apparent he made no finding other than in relation to voting rights of the creditors. It cannot be inferred from his finding the creditors were found by him to be creditors. The issue was not activated before him. Anshun estoppel The estoppel following from the Anshun principle is that which appears in the joint judgment of Gibbs CJ, Mason and Aickin JJ in Anshun at 602 where they said: "... there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding." Critical to the majority reasoning in the High Court in Anshun was (1) the matter sought to be raised in the second action was a defence to the first action which it could be expected would have been raised in that action; and (2) if asserted in the later action, that same action could give rise to a conflict in judgment as well as increased costs. I have previously referred to development of the principle in subsequent decisions in West Point Corporation Pty Ltd v Coles Supermarkets Australia Pty Ltd (R D Nicholson J, Federal Court of Australia, 18 December 1996, unreported.) As to the application of the Anshun principle, it is said for the creditors it was unreasonable for the debtors not to raise in the first action the issues they now raise in support of their contention the creditors are not their creditors. It is said they were aware of the proceedings and therefore of the creditors' application for a declaration that in effect they were creditors. It is therefore submitted they should have either applied to be joined as parties or at least requested their trustee to raise then the issues raised now. Again this submission assumes the privity of interest which the controlling trustee had with the property of the debtors somehow obliged the controlling trustee, if he had been so urged by the debtors, to act on behalf of the debtors (or in accordance with any instruction from them) in disputing the status of the creditors as creditors. For the reason previously given, this would be a misconstruction of the statutory responsibilities of the controlling trustee while there was an effective authority in force. The control of their property had passed from the debtors to the controlling trustee so it could not have been unreasonable for them not to have taken any step in relation to it in the first action. Control having passed, the debtors were not in a position to instruct the controlling trustee. There is in any event an absence of evidence upon which the Court could make any findings relevant to the facts said to support the contention. In particular there is no evidentiary foundation upon which the Court can find whether the challenge to the status of the creditors from events emerging since the grant of the authority or after its expiry. Abuse of process by way of collateral attack It is further contended for the creditors that the debtors attempts by these proceedings to re‑litigate the issue decided by French J in the first action, when it was then open to them to raise the matters and evidence they raise now, amounts to a collateral attack upon French J's judgment and thereby an abuse of process: Hunter v Chief Constable of Western Midland Police [1982] AC 529 approved in Saffron v Commissioner of Taxation (1991) 30 FCR 578 by the Full Court of this Court. The premise upon which this argument is advanced is not one open on the facts. The relevant issue was not before French J so that it is not being re‑litigated. I have found it was not open to them to there raise the issue through the controlling trustee. The argument is put another way for the creditors, namely that as the resolutions passed by the second creditors' meeting were in accordance with the rulings of French J, any declaration obtained by the debtors would be in effect a ruling that French J's decision was a nullity. It is said this would be an impermissible way of overturning a superior court decision: Cameron v Cole (1944) 68 CLR 577 at 590; Federal Court of Australia Act 1976 (Cth) s 5(2). The premise of this argument is simply not the case. If the debtors were successful in obtaining the declarations in relation to the status of the creditors, that would in no way impinge upon the validity of the decision of French J on the issue of voting. The argument can only be advanced on the basis the decision before French J included a ruling on the status of the creditors as creditors. I have found that not to be the case. Part X authority The controlling trustee's authority expired four months after the s 188 authority first became effective - that is, it expired on 18 July 1997: s 189(1A)(d). The debtors seek declarations the special resolutions passed by the creditors at their meeting on 23 June 1997 were nullities. It is said no useful purpose could be served in making such a declaration now. The argument runs that even if the debtors re‑commenced proceedings under Pt X by executing a fresh authority under s 188, the declaration could not assist them because a fresh creditors' meeting would be held and even if the same controlling trustee was appointed, he would not be bound to make the same ruling as previously. The submission is posited on the assumption the debtors would execute a new authority when there is no evidence that is a probability. There is no evidentiary foundation upon which the submission can rely. Abandonment of contention It is also submitted for the creditors that the debtors, by not adducing any evidence to show why they failed to raise (through the trustee) the point now raised about the issues in the Supreme Court proceedings, have irrevocably abandoned the point: Trawl Industries at 351; Commonwealth v Verwayen (1990) 170 CLR 394 at 423, 483. Here the debtors were not a party to the first action so it could not be said they had any obligation to explain why they did not raise the point through the controlling trustee. The latter had no obligation to act on behalf of the debtors. His powers and duties were those prescribed by the Act in relation to the debtors' property. His entire authority derived from the authority given under s 188 and was posited on the assertion by the debtors in that authority the creditors were creditors. In my view the principles stated by Gummow J in Trawl Industries cannot be extended to the debtors in relation to the first action. Failure to join debtors Finally, it is submitted for the debtors that had the creditors intended them to have been bound by the application before French J, they should have applied to join them. Given the controlling trustee had control of the property of the debtors and the issue before French J was one of the voting rights of creditors, there was no proper basis upon which joinder could have been sought. Conclusion For these reasons I consider the motion should be dismissed with costs. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON Associate: Dated: 12 February 1998 Counsel for the Applicant: A Metaxas Solicitor for the Applicant: A Metaxas Counsel for the Respondent: M Blundell Solicitor for the Respondent: Solomon Brothers Date of Hearing: 11 December 1997 Date of Judgment: 12 February 1998