【海量案例】LX v HXX ChXXg International  NSWSC 2XX
IN THE SUPREME COURT
OF NEW SOUTH WALES
31 MARCH 2010
05XX9/2008 YAXXXG LX & AXXR v HXX CHXXG INTERNATIONAL HOLDINGS PTY LIMITED & OXX
1 As counsel for YaXXXg LX, the first plaintiff, and LeXXing HXXng, the second plaintiff, said, the general factual background to these proceedings was ultimately not in dispute.
2 On 29 November 2006 Mrs LX and Mrs HXXng executed a tripartite agreement with LaXXXXce XX, the second defendant, to develop land in Hurstville.
3 To carry out this joint venture, which was estimated to cost AUD30m, Mrs LX and Mrs HXXng were each to contribute AUD4m and Mr XX was to contribute AUD2m and raise the remaining AUD20m.
4 In January 2007, HXX ChXXg Property Pty Limited, the fourth defendant, was incorporated. 40 shares were issued to each of Mrs LX and Mrs HXXng and the remaining 20 shares were issued to Mr XX.
5 The Hurstville land was not acquired by HXX ChXXg Property. Instead, Mr XX caused it to be acquired by HXX ChXXg International Holdings Pty Limited, the first defendant. It was a company in which Mr XX held 85 shares, his wife, HXXg XXa XXa, the third defendant, held 15 shares and Mrs LX held the remaining 35 shares.
6 Contracts for the sale of the Hurstville land were exchanged on 3 October 2007 and the purchase was settled on 20 December 2007. Mr XX considered that the existing development application would not permit the most profitable exploitation of the land. His estimate of the likely construction costs was about AUD60m. On being informed of this figure, Mrs LX and Mrs HXXng requested Mr XX to assume a larger share of the project and in January 2008 they each transferred 20 shares in HXX ChXXg Property to Mr XX, retaining 20 shares each, while Mr XX then held 60 shares.
7 On 5 February 2008, Mr XX executed an agreement on behalf of HXX ChXXg International and on behalf of HXX ChXXg Property. It recited that HXX ChXXg International intended to develop the Hurstville land and HXX Property had agreed to be the developer. Its material provisions were as follows:
8 This joint venture agreement was drawn by Mr XX after having spoken with his accountant, his solicitor and his law student sons. It was not well drafted. It was his attempt to regularise the relationship between HXX ChXXg International and HXX ChXXg Property.
9 On 15 October 2008 Mrs LX and Mrs HXXng commenced these proceedings. On 24 December 2008 they purported to terminate the tripartite agreement to develop the Hurstville land. On 30 March 2009 the defendants purported to terminate it.
The relief sought
10 While the relief sought in the second amended statement of claim is broader, counsel for Mrs LX and Mrs HXXng identified the relief sought by them in his closing address.
11 They seek a declaration that HXX ChXXg International holds the Hurstville land in trust for them and the four defendants in proportion to the parties’ respective contributions to the money used to purchase the Hurstville land. To that end they seek an inquiry to determine the amounts contributed by the parties and they seek the winding up of HXX ChXXg Property.
12 The Conveyancing Act 1919, s 66G provides that where property is held in co-ownership, the court may appoint trustees of the property and vest the same in such trustees to be held by them on the statutory trust for sale. If it is determined that equitable interests as co-owners exist in the Hurstville land, Mrs LX and Mrs HXXng will seek an order under s 66G.
The Purchase by HXX ChXXg International
13 Much time at trial was spent on why Mr XX caused the Hurstville land to be purchased by HXX ChXXg International.
14 Mr XX said that he approached Westpac for a loan to assist in the purchase of the property. HX said Westpac regarded the scope of his existing businesses in China as important to their consideration. A team from Westpac went to China in June 2007 to inspect his businesses.
15 Mr XX said he had been advised by HXXXn HX of Westpac in Sydney of the bank’s criteria for approval of a loan to a property development company. First, the company had to have a good track record and good reputation. Secondly, the bank required an assessment of the company directors’ assets and personal reputation. Thirdly, the bank required a good understanding of the project’s location and its pre-sale risks including a site visit. And fourthly, the bank required detailed historical information about the company’s operation and that the company directors had never breached any law.
16 HXX ChXXg Property was a newly established company with no assets and no track record. Mr XX said Westpac informed him that they would not lend to HXX ChXXg Property but would only lend to HXX ChXXg International.
17 But HXX ChXXg International satisfied the bank’s criteria no better than HXX ChXXg Property did.
18 HXX ChXXg International was also a relatively new company. It was incorporated on 29 March 2006. It had not carried out any property development and had no track record in that respect. Its reputation was no better than that of HXX ChXXg Property.
19 The directors of HXX ChXXg International at the time the loan was negotiated with Westpac were Mr XX and Mrs XXa. Mrs LX ceased to be a director on 5 February 2007. As Mr XX was the only director of HXX ChXXg Property, an assessment of company directors’ assets in relation to HXX ChXXg International was no better than that of HXX ChXXg Property. The same applies to their personal reputation.
20 An understanding of the project would be no different in the hands of HXX ChXXg International than it would have been in the hands of HXX ChXXg Property.
21 The detailed historical information about HXX ChXXg International with respect to property development would be no different from that with respect to HXX ChXXg Property.
22 Mrs LX and her husband held most of the shares in ZhoXXnan Holdings Pty Limited. Mr and Mrs LX conduct all their businesses through that company and its subsidiaries. The principal business of ZhoXXnan was property development in China. It has carried out projects over 20 years valued in the Australian equivalent of hundreds of millions of dollars.
23 Westpac was interested in fostering a relationship with ZhoXXnan. It would have been more attractive to Westpac, therefore, if the loan application had been made on behalf of HXX ChXXg Property.
24 Mr XX had a business card of ZhoXXnan naming him as executive director. His appointment was as liaison representative.
25 Mr XX denied that he had informed Westpac in the course of its assessment of the loan application of HXX ChXXg International that he was an executive director of ZhoXXnan. I reject that denial. Westpac’s appraisal documents of the loan application record him as executive director of ZhoXXnan.
26 An appraisal of ZhoXXnan followed this statement. It included reference to its net assets in excess of AUD100m and an annual capacity for property development of over 800,000sqm. A company profile was attached.
27 HXX ChXXg International was noted to be new to Westpac and Australia but with a strong property development background in China with skills and experience in residential property development of larger sized projects overseas.
28 There is no doubt that Westpac was influenced by Mr XX’s and HXX ChXXg International’s supposed connection to ZhoXXnan and its considerable experience in property development.
29 There was no relationship between HXX ChXXg International and ZhoXXnan. Its experience would have been more readily appropriate for Westpac to take into account had the applicant for the loan been HXX ChXXg Property because of Mrs LX’s shareholding in that company.
30 The Westpac appraisal considered as important the good asset location, considerable “hurt” money to be contributed upfront ie the borrower’s own money in excess of AUD5m and interest secured in advance covering 15 months when the facility was for 12 months. These features would equally have been available had HXX ChXXg Property been the applicant for the loan.
31 Mr XX volunteered for the first time during cross-examination that he put both HXX ChXXg Property and HXX ChXXg International to Westpac and Westpac chose HXX ChXXg International. It is highly unlikely that a bank would assume the role of adjudicating upon potential borrowers.
32 Furthermore, there is no mention of HXX ChXXg Property in the Westpac documentation. Nor would Westpac have made a choice in favour of HXX ChXXg International because it was in no better a position than HXX ChXXg Property.
33 It was submitted that Mr XX’s evidence should be accepted in the light of a number of circumstances. First, it was put that at the time the application by HXX ChXXg International was made to Westpac a very large part of the capital contributions required for the joint venture had not been paid by the other parties. I reject that submission. Considerable payments were made by Mrs LX between 30 March 2006 and 20 November 2007. Mrs HXXng paid all but RMB4.3m between December 2006 and October or November 2007.
34 Secondly, it was submitted that when the application to Westpac was made Mrs LX and Mrs HXXng had made no contribution under their contractual obligations to the business and had spent virtually no time in Australia.
35 The tripartite agreement provided that a proprietary limited company would be set up and the three parties would be appointed as directors. HXX ChXXg Property was incorporated but Mr XX remained the only director. The agreement further provided that Mrs HXXng would be appointed general manager, Mrs LX would be appointed or would recommend a candidate for the role of deputy general manager and Mr XX would be appointed as contact person of the project taking charge of miscellaneous matters and coordination.
36 It is true that Mrs LX and Mrs HXXng failed to assume those offices and manage the company. They were too busy with their affairs in China. It is also true that they spent little time in Australia. Mr XX assumed the role of managing the project.
37 But their failure to comply with their contractual obligations and the paucity of their visits to Australia does not affect the analysis of the evidence of Mr XX set out above.
38 Thirdly, it was submitted that Mr XX had travelled to China for a meeting of 15 November 2007 with representatives from Westpac and he told Mrs LX and Mrs HXXng that a loan was to be obtained.
39 That is so, but Mr XX did not tell Mrs LX or Mrs HXXng that he was making an application in the name of a company different from the joint venture company.
40 Fourthly, it was put that since the series of meetings with the Westpac executives on 15 November 2007 occupied the entire day, it was inconceivable that Mr XX should have brought the executives to China had Mrs LX not known about the proposed role of HXX ChXXg International.
41 I reject that submission. Mr XX agreed in cross-examination with the proposition: “You certainly didn’t ever tell Mrs LX and Mrs HXXng that you were making the application in the name of a company different from the joint venture company, did you?”
42 I reject Mr XX’s evidence that HXX ChXXg International was the applicant for the loan because Westpac would not have lent to HXX ChXXg Property.
43 A loan of AUD4.2m to HXX ChXXg International was approved by Westpac on 20 November 2007. Mr XX had been successful in having purchase price of the Hurstville land reduced to AUD8.5m. The final figure including such GST as was payable on some of the lots totalled AUD8.655975m.
44 It was ultimately not in dispute that Mrs LX and Mrs HXXng contributed the equivalent of at least AUD4m each to the project. Those moneys were deposited to accounts nominated by Mr XX in China. Mr XX accepted that it was his obligation to find the equivalent of those moneys in AUD.
Breach of fiduciary duty?
45 There is no doubt that a partner owes a fiduciary duty to co-partners. Because a partner may act on behalf of or in the interests of another partner in exercise of power of discretion, their relationship is one that gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of other partners who are accordingly vulnerable to abuse by the fiduciary of the position.
46 In such circumstances relief is available by way of appropriation to the person to whom the fiduciary duty was owed of any benefit or gain obtained by the fiduciary and the requirement that the fiduciary account for any benefit or gain obtained.
47 In Chan v Zacharia (1983-1984) 154 CLR 178 at 198-199 Deane J explained these two themes thus:
48 The tripartite agreement constituted Mrs LX, Mrs HXXng and Mr XX partners or, at the least, their relationship as joint venturers under the tripartite agreement gave rise to fiduciary duties of the same kind.
49 What benefit or gain did Mr XX obtain at the expense of Mrs LX and Mrs HXXng?
50 Mr XX gave precise evidence in cross-examination of the approximate AUD amounts he had contributed to the project and the nature of the services obtained in answer to the proposition that his evidence that the cost of the project exceeded AUD12m was fanciful and incorrect.
51 It was an impressive display of his memory for detail. The evidence was given without the benefit of any document and unhesitatingly without pause. The evidence was not challenged.
52 Notwithstanding that I have rejected some of Mr XX’s evidence, I found this part of his testimony convincing. And it related to tasks that had been performed. I accept his evidence in this regard. A summary of it is set out in the table below.
53 From the AUD16.51m total, credit must be given for the approximately AUD8m contributed by Mrs LX and Mrs HXXng. Credit needs also to be given to the AUD4.2m Westpac loan. Those credits have the effect of reducing Mr XX’s contribution to the project to AUD4.31m. But that is more than double the amount he was to expend under the tripartite agreement and is about the same contribution made by each of Mrs LX and Mrs HXXng. Furthermore, Mr XX and Mrs XXa gave security over their assets in favour of Westpac.
54 If Mr XX was in breach of his fiduciary duty to Mrs LX and Mrs HXXng when HXX ChXXg International acquired the Hurstville land, it is not obvious that he obtained any benefit or gain thereby. And Mrs LX and Mrs HXXng point to a different event as giving Mr XX a benefit or gain.
55 The joint venture agreement of 5 February 2008 provided that HXX ChXXg Property should bear all the project costs. That term was defined to include the cost of the property.
56 It was submitted that Mr XX, in breach of fiduciary duty, caused the joint venture agreement to be executed to gain him, through his shareholding, the substantial share of the benefit of paying HXX ChXXg International the purchase price of the Hurstville land before any division of profits was made for the benefit of Mrs LX and Mrs HXXng through their shareholding in HXX ChXXg Property.
57 That was the only benefit that could be identified by counsel for Mrs LX and Mrs HXXng after a five-day trial.
58 It was submitted that it should be inferred that the purchase in the name of HXX ChXXg International was not bona fide and was made to secure benefits for Mr XX in the form of the priority payment of the purchase price of the land and others that Mr XX might obtain by exploiting his position as de facto owner of the land.
59 No additional benefits were identified and I limit myself to HXX ChXXg Property’s obligation to pay HXX ChXXg International the purchase price of the Hurstville land before division of profits.
60 Counsel for Mrs LX and Mrs HXXng submitted that they were entitled to the declaration sought on the basis of the first limb of Barnes v Addy (1874) LR 9 Ch App 244. At 251-252 Lord Selborne LC said:
61 The first part of the last sentence is referred to as the first limb of Barnes v Addy described as involving knowing receipt.
62 HXre there was no trust. Money was provided to Mr XX in China on the basis that he would match those funds and deposit them to the credit of HXX ChXXg Property to enable it to purchase the Hurstville land. Instead of doing that Mr XX paid the moneys for the benefit of HXX ChXXg International.
63 But in Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22; (2007) 230 CLR 89 at 141  the High Court pointed out that in recent times it has been assumed, although rarely decided, that the first limb applies not only to persons dealing with trustees, but also to persons dealing with at least some other types of fiduciary.
64 Reference was made to DPC Estates Pty Ltd v Grey  1 NSWLR 443. That was a case in which the first defendant was the manager of the plaintiff. It engaged in buying, managing and selling real estate. The second defendant was a family company engaged in buying and selling land. Its managing director and the first defendant entered into an agreement whereby the first defendant gave real estate information to the managing director who caused the second defendant to purchase properties utilising that knowledge. The profits were to be divided equally between the first and second defendants.
65 The plaintiff sued for a declaration that the properties were held on trust for the plaintiff and for an account of profits. The Court of Appeal held that the plaintiff was entitled to relief against the second defendant for different reasons.
66 Jacobs P at 457-458 said the principle in Barnes v Addy was applicable:
67 Hardie JA at 463 was of the view that the second defendant through its managing director became a participant in the course of conduct designed to enrich itself and the first defendant under circumstances precluding it from retaining the proceeds of such enrichment.
68 Hutley JA at 470 said the position of a third party obtaining advantages from a fiduciary in the form of information and assistance should be analogous to that of a third party obtaining property from a fiduciary.
69 But this is not a case of benefit flowing to HXX ChXXg International from its acquisition of the Hurstville land. It paid a market price. The benefit was obtained by the shareholders of HXX ChXXg International who would gain profit from the contributions of Mrs LX and Mrs HXXng to the purchase price.
70 Further, the benefit upon which Mrs LX and Mrs HXXng rely was created well after the acquisition of the Hurstville land when the joint venture agreement was executed. Any breach of fiduciary duty by Mr XX in executing that agreement would not, in my view, justify relief in the form of a declaration that the Hurstville land was held by HXX ChXXg International in trust for Mrs LX and Mrs HXXng and such of the defendants who contributed to its purchase price. It never was the intention of the parties that Mrs LX, Mrs HXXng and Mr XX would hold interests in the Hurstville land personally. The land was to be acquired by HXX ChXXg Property. Any reversal of benefit received by Mr XX should be for the benefit of HXX ChXXg Property.
71 Mrs LX and Mrs HXXng were reliant on their respective companies to make their contributions to the project. It was submitted that any beneficial interest alleged to be held in trust were those of their companies and they were not parties to the proceedings.
72 I have rejected the notion of a declaration of trust in favour of the persons or entities that contributed to the purchase price of the Hurstville land. The issue does not arise for decision. I would have rejected the submission in any event. Whatever arrangement was made between Mrs LX and Mrs HXXng and their respective companies they acted as principals and not agents of their companies when they entered into the tripartite agreement.
73 The traditional rule of minimum equity was that the court should make an order to give the minimum equity necessary to do justice between the parties. The relief granted should do no more than reverse the detriment.
74 In Giumelli v Giumelli  HCA 10; (1998-1999) 196 CLR 101 at 120  the High Court rejected a submission that the Court of Appeal had made an order that went beyond any reversal of the detriment. The court said that consistently with the course of Australian authority since The Commonwealth of Australia v Verwayen(1990) 170 CLR 394, that decision was not authority for any such curtailment of the relief available in the case before the court. Their Honours said, to the contrary, that there was much support in the judgment for a broader view.
75 In Muschinski v Dodds (1984-1985) 160 CLR 583 at 620 Deane J dealt with the situation where property remained in the hands of a party to a joint venture when the substratum of the relationship came to an end without blame:
76 Needham J followed this passage in Nichols v Nichols (1986) 4 BPR 97262. The defendant as a resident of Lord Howe Island held an in perpetuity lease of land upon which the plaintiff had constructed a house. The couple subsequently separated. His Honour held that as the original intention of the plaintiff was to provide a house for the defendant and her children, it would not be unconscionable for the defendant to retain from the proceeds of sale a sum sufficient to provide for her and the children a house adequate to meet their needs according to the ordinary standards of living on the island. By addressing the detriment suffered by the plaintiff, the court provided minimum equity.
77 Notwithstanding that in appropriate circumstances a broader approach may be taken, I am of the view that an approach similar to that in Nichols should be taken in this case and the court should give the minimum equity necessary to do justice between the parties.
78 It would be unconscionable for HXX ChXXg International to retain the Hurstville land for the benefit of its shareholders. They are different in identity and proportion from the joint venturers and their joint venture vehicle, HXX ChXXg Property. It was from the joint venturers and Westpac that HXX ChXXg International obtained the money to purchase the Hurstville land and it is they who should benefit from the project through their joint venture company.
79 Prima facie, the appropriate relief is a declaration that HXX ChXXg International holds the Hurstville land on trust for HXX ChXXg Property.
80 When this form of relief was suggested on the first day of the trial it was adopted by the defendants but opposed by Mrs LX and Mrs HXXng.
81 They submitted that because the tripartite agreement had been terminated it was inappropriate to make such a declaration because it would, in effect, be an order for specific performance of that agreement. They argued that the declaration was a form of relief that Mrs LX and Mrs HXXng had not sought. They submitted that the declaration would give Mr XX an indirect interest in the Hurstville land out of proportion to his contribution to its acquisition. It was said that Mr XX’s shareholding in HXX ChXXg Property was increased from 20% to 60% based on anticipated future contributions that, it was submitted, never materialised.
82 A forecast statement of financial performance of HXX ChXXg Property dated 8 October 2008 calculated a profit from ordinary activities before tax of AUD11.185392m. The Hurstville land was entered in the forecast at the approximate figure of AUD8.5m. The profit was calculated after payment of this amount to HXX ChXXg International.
83 There was no challenge to the forecast. It shows that the project is likely to be profitable.
84 There are also third party interests to be considered. A development approval application has been issued for a 17-storey building containing 42 two-bedroom apartments, 9 three-bedroom apartments, 35 commercial tenancies and 35 retail tenancies.
85 The project has been successfully marketed off the plan. Contracts have been exchanged for 50 residential units and 5 commercial units. Deposits of AUD3.5m have been received representing prospective purchases in excess of AUD33m. These interests would be prejudiced if the project were to cease.
86 Mr XX has an increased obligation to fund the future development of the land. His share of cost has increased from 20% to 60%. HX will not obtain an advantage disproportionate to his shareholding in HXX ChXXg International.
87 Mrs LX and Mrs HXXng come to equity and must do equity. They must pay due regard to the prejudice that would follow a termination of the project. Their opposition to a declaration that HXX ChXXg International holds the land in trust for HXX ChXXg Property must be disregarded.
88 The Uniform Civil Procedure Rules 2005, Pt 36 r 36.1 enables the court at any stage of the proceedings to give such judgment or make such order as the nature of the case requires whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion. The rule complements the Civil Procedure Act 2005, s 90. It provides that the court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires. It also complements s 56 which provides that the overriding purpose of the Act and of rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
89 Thus, in proceedings for a declaration, it may happen that a court in resolving the proceedings in favour of a defendant makes a declaration contrary to that sought by the unsuccessful plaintiff even though the defendant made no formal claim for such a declaration.
90 I propose to make the declaration.
91 But there are adjustments that also need to be made. The first adjustment will require HXX ChXXg Property to reimburse HXX ChXXg International for any payments it makes to Westpac under the loan facility that now stands at AUD3m together with accrued interest as at 12 March 2010 of AUD37,934.21. If HXX ChXXg Property is to get the benefit of the land, it should assume the liability to the bank from which portion of the funds for its acquisition were obtained.
92 The second adjustment will restrain HXX ChXXg International from claiming from HXX ChXXg Property any amount defined as the cost of the property in the joint venture agreement. Since the funding of the purchase of the Hurstville land came from Westpac and the joint venturers, once provision is made for the discharge of the liability to Westpac by someone other than HXX ChXXg International, it will have suffered no detriment with respect to its acquisition of the Hurstville land and it would be unconscionable for it to claim to be paid the purchase price under the joint venture agreement.
93 I will not make an order for the winding up of HXX ChXXg Property. It is through it that the development will continue and winding up is the last resort of an otherwise solvent company. (Fexuto v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 at 742).
94 The Corporations Act 2001 (Cth), s 233(1) contains a series of orders that a court may make including the appointment of a receiver or a receiver and manager of any or all of a company’s property.
95 What clearly emerges in this case is that Mrs LX and Mrs HXXng have lost confidence and trust in Mr XX and the appointment of a receiver and manager would obviate a need for the three individuals to meet to further the project.
96 I accept the submission of counsel for the defendants, however, that such a course would have serious commercial consequences as it would suggest that interests in the development were being sold at fire sale prices.
97 The Corporations Act, s 233(1)(j) provides that the court can make an order that it considers appropriate in relation to a company including an order requiring a person to do a specified act.
98 In Ghabrial v Romolly Pty Ltd (1990-1991) 5 ACSR 611 Cohen J ordered that the directors appoint a quantity surveyor to assess how much of the cost of construction was attributable to each part of the construction.
99 The third adjustment is for Mr XX to be ordered to cause HXX ChXXg Property to appoint Mrs LX and Mrs HXXng as directors as was provided in the tripartite agreement.
100 There is a fourth adjustment I think should be made to ameliorate the lack of confidence and trust Mrs LX and Mrs HXXng have in Mr XX. I propose to order the directors to appoint a suitable person who consents to the role of acting as a referee should any dispute arise between the directors as to any course to be taken by HXX ChXXg Property in developing the Hurstville land and an order that each of the directors will be bound by any decision of the referee.
101 I will dismiss the second amended statement of claim. Mrs LX and Mrs HXXng must pay the defendants’ costs. I will hear the parties on the appropriate terms of the orders. I direct the parties to bring in short minutes of order reflecting these reasons.