Barreau Peninsula Pty Ltd & Ors v Ambassador at Redcliffe Pty Ltd & Ors [2008] QSC 90

SUPREME COURT OF QUEENSLAND CITATION: Barreau Peninsula Pty Ltd & Ors v Ambassador at Redcliffe Pty Ltd & Ors [2008] QSC 90 PARTIES: BARREAU PENINSULA PTY LTD ACN 091 191 221 as TRUSTEE FOR THE BARREAU PENINSULA TRUST and KANEBAY PTY LTD ACN 061 140 236 as TRUSTEE FOR THE NORMAN AMBASSADOR TRUST (first plaintiffs) and BARREAU PENINSULA PROPERTY PTY LTD ACN 091 191 276 as TRUSTEE FOR THE BARREAU PENINSULA PROPERTY TRUST and AMBRON PTY LTD ACN 008 198 061 as TRUSTEE FOR THE AJ AND M NORMAN FAMILY TRUST (second plaintiffs) v AMBASSADOR AT REDCLIFFE PTY LTD ACN 108 206 837 (first defendant) and EMERALD CONSTRUCTIONS PTY LTD ACN 102 339 748 (second defendant) and ADIB FARESS (third defendant) BARREAU PENINSULA PTY LTD ACN 091 191 221 as TRUSTEE FOR THE BARREAU PENINSULA TRUST and KANEBAY PTY LTD ACN 061 140 236 as TRUSTEE FOR THE NORMAN AMBASSADOR TRUST (first applicants) and BARREAU PENINSULA PROPERTY PTY LTD ACN 091 191 276 as TRUSTEE FOR THE BARREAU PENINSULA PROPERTY TRUST and AMBRON PTY LTD ACN 008 198 061 as TRUSTEE FOR THE AJ AND M NORMAN FAMILY TRUST (second applicants) v ALEXANDRIA HOLDINGS PTY LTD ACN 079 552 828 (first respondent) and ADIB FARESS (second respondent) -- 1 of 22 -- 2 FILE NO/S: 6165 of 2007 8113 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 14 May 2008 DELIVERED AT: Brisbane HEARING DATE: 18 December 2007 JUDGE: Daubney J ORDER: In 6165 of 2007: 1. The application for summary judgment be dismissed 2. Costs of that application be reserved. In 8113 of 2007: 1. Parties to be heard as to the form of Mareva order. CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where provision made for alternative remedies in case of default under contracts for the sale of land and business – whether forfeiture of deposit and other monies paid under the contract was cumulative upon, or alternative to, other remedies under the contracts – whether plaintiffs have made elections under the default provisions such that they are precluded from seeking to claim a deficiency on resale – where default clause made no allowance for income received pending resale of property – whether clause was a penalty PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – Summary judgment – where defendants defaulted under contract for sale of land and business – where plaintiffs seek summary judgment – whether defendant has no reasonable prospect of defending the plaintiffs’ claim – whether there is no need for a trial of the claim EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – Injunctions to preserve status quo and property pending determination of rights – Mareva injunctions – Other matters – where Mareva orders previously made on an ex parte basis – where plaintiffs failed to disclose information potentially material to the making of -- 2 of 22 -- 3 those orders – whether the Mareva orders should be continued pending the final determination of the matter Antaios Compania Naviera v Salen Rederierna (1985) AC 191 at 201 AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 Beil v Mansell (No.2) [2006] 2 QdR 499 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Carlton & United Breweries Ltd v Long [1958] VR 539 Concut Pty Ltd v Worrel (2000) 75 ALJR 312 at 317 Construction Engineering (Aust) Pty Ltd v Tambel (A/ asia) Pty Ltd [1984] 1 NSWLR 274 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 Elderslie Property management No 2 Pty Ltd v Dunn & Anor [2007] QSC 192 Esanda Finance Corp v Plessnig (1989) 166 CLR 131 Gold Ribbon (Accountants) Pty Ltd v Sheers [2002] QSC 400 Immer v Uniting Church (1993) 182 CLR 26 Jampco Pty Ltd v Cameron (1985) 3 NSWLR 391 Kingaroy Mall Pty Ltd v E & N Collins Pty Ltd [2008] QSC 66 O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 Peppercorn Holdings No 1 Pty Ltd v DDH Graham Ltd and Ors [2006] QSC 156 Rosser v Austral Wine & Spirit Co Pty Ltd [1980] VR 313 (FC) at 319 Sharp v Australian Builders Labourers’ Federated Union of Workers (W A Branch) [1989] WAR 138 Spellson v George (1992) 26 NSWLR 666 Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574 Taylor v Raglan [1981] 2 NSWLR 117 at 135 Turner v Sylvester [1981] 2 NSW LR 295 Thomas A Edison Ltd v Bullock (1913) 15 CLR 69 Zografikis v McCarthy [2007] NSWSC 144 Uniform Civil Procedure Rules 1999 COUNSEL: B O’Donnell QC with C Wilson for the applicants D Clothier for the respondents SOLICITORS: Mullins Lawyers for the Applicant MacDonnells Law for the Respondent [1] Barreau Peninsula Pty Ltd, Barreau Peninsula Property Pty Ltd, Kanebay Pty Ltd, and Ambron Pty Ltd (together, ‘the Plaintiffs’) have brought two separate applications – one for summary judgment against Adib Faress (the ‘Third -- 3 of 22 -- 4 Defendant’), the second for the continuance of a Mareva order made by Chesterman J on 13 September 2008. Background [2] The Plaintiffs were the proprietors of a hotel business and land at Redcliffe. The land and the business were sold to Ambassador at Redcliffe Pty Ltd (the ‘First Defendant’) pursuant to two separate contracts executed in March 2004. The contract for the sale of the business (the ‘Business Contract’) provided that the purchase price for the business would be $6,480,000, while the land was sold under a contract (the ‘Land Contract’) for $6,520,000. Emerald Constructions Australia Pty Ltd (the ‘Second Defendant’) guaranteed the obligations of the First Defendant up to a maximum of $400,000. Initial deposits of $50,000 under each of the contracts were payable and completion was to occur on 7 December 2004. There is no dispute that these deposits were paid. [3] As a result of written variations of the contracts dated 23 April 2004 and 22 September 2004 the deposit payable was increased to $250,000 under each of the Land Contract and the Business Contract. The variation of September 2004 contained the following terms: ‘2 Variations 2.1 Land Contract 2.1.1 Item O of the Items Schedule, as varied by the correspondence on 23 April 2004, is amended to replace “$200,000.00” with “250,000.00”. 2.1.2 Special condition 3.1 as varied by the correspondence on 23 April 2004 is deleted and replaced with the following 2.1.2.1 $50,0000.00 [sic] upon the formation of the Contract which shall be released unconditionally to the Vendor on 27 April 2004 and shall be non-refundable in all circumstances despite any provision to the contrary in the Contract; 2.1.2.2 $150,000.00 on or before 30 June 2004, which, upon payment, shall be immediately and unconditionally released to the Vendor and shall be non-refundable in all circumstances despite any provision to the contrary in the Contract; 2.1.2.3 $50,0000.00 [sic] on or before 30 September 2004 by way of direct deposit into the account of the Barreau Building Fund, BSB 015-310, Acc. 499257189, ANZ Norwood, which shall be immediately and unconditionally released to the Vendor and shall be non-refundable in all circumstances despite any provision to the contrary in the contract. ... -- 4 of 22 -- 5 2.2 Business Contract ... 2.2.4 Special condition 18.1, as varied by the correspondence on 23 April 2004, is deleted and replaced with the following: “the Deposit shall be paid by the Purchaser to the Stakeholder mentioned in Item 9 of the Schedule as follows: 2.2.4.1 $50,000.00 forthwith upon the formation of the Contract which shall be released unconditionally to the Vendor on 27 April 2004 which shall be non- refundable in all circumstances despite any provision to the contrary in the Contract; 2.2.4.2 $150,000.00 payable on or before 30 June 2004 which, upon payment, shall be immediately and unconditionally released to the Vendor and which shall be non-refundable in all circumstances despite any provision to the contrary in the Contract; 2.2.4.3 $50,000.00 payable on or before 30 September 2004 by way of direct deposit into the account of the Barreau Building Fund, BSB 015-310, Acc.499257189, ANZ Norwood which shall, be immediately and unconditionally released to the Vendor and which shall be non-refundable in all circumstances despite any provision to the contrary in the Contract.’ (I read each of the clauses 2.1.2.1 and 2.1.2.3 as references to ‘$50,000.00’.) [4] At the time of the September 2004 variation, the Third Defendant provided unlimited guarantees of the First Defendant’s obligations under the contracts. The guarantee in relation to the Business Contract was in the following terms (the guarantee in relation to the Land Contract was in substantially the same terms): “I Adib Faress, of 2 Moore Street, Bardwell Park, New South Wales, being Director of Ambassador at Redcliffe Pty Ltd ACN 108 206 837 (hereinafter called “the Purchaser Company”) in consideration of the sum of $1.00 (One Dollar) paid by Barreau Peninsula Pty Ltd (ACN 091 191 221 as trustee for the Barreau Peninsula Trust and Kanebay Pty Ltd ACN 064 140 235 as trustee for the Norman Ambassador Trust (“the Vendor’) to me and the Vendor at my request agreeing to vary the contract with the Purchaser Company) do hereby guarantee to the Vendor the due and punctual performance by the Purchaser Company or any nominee of [sic] assignee of the Purchaser Company of all of the terms and conditions of the contract as varied (such variations fully described in the Deed to which this Guarantee is annexed, including the correspondence dated 23 April 2004) and do further covenant and agree that I will indemnify and keep the Vendor indemnified against any loss and damage howsoever arising which the Vendor may suffer in consequence of any failure of the Purchaser Company and or its nominee or assignee to perform its obligations under the said Contract and this Guarantee shall not be affected or discharged by the granting to the -- 5 of 22 -- 6 Purchaser Company of any time or other indulgence or other consideration or transaction whereby our liability as Guarantors would, but for the provisions hereof, have been affected or discharged. This guarantee is agreed to be a continuing guarantee and to continue in full force and effect until the Vendor shall receive in full all monies payable by the said Purchaser in terms of the said Contract notwithstanding any time or other indulgence given by the Vendor to the Purchaser and notwithstanding that a petition shall be presented, or an order made, for the winding up of the said Purchaser and further, this guarantee shall be a primary liability on the part of the said Guarantor notwithstanding that the Vendor has not demanded due completion and payment by the said Purchaser, or has not commenced proceedings in a court of competent jurisdiction against a said Purchaser, consequent upon any default by the said Purchaser.” [5] The contracts also provided for the payment of interest. Under the Business Contract, the First Defendant was to pay interest on the purchase price of $52,912.33 on or before 31 October 2004 and $63,153.42 on or before 30 November 2004. Similarly, under the Land Contract the First Defendant was to pay interest on the purchase price of $53,252.05 on or before 31 October 2004 and $63,558.90 on or before 30 November 2004. [6] The First Defendant failed to make these interest payments. Accordingly, by letter dated 19 November 2005, the Plaintiffs terminated the contracts. The Third Defendant does not dispute the legitimacy of this termination. [7] Subsequent to this termination, there were further negotiations between the parties. These negotiations resulted in put and call option agreements between the Plaintiffs and the First Defendant being given on 22 February 2005. [8] These options, however, lapsed without being exercised and, on 1 July 2005, the Plaintiffs entered into contracts for the sale of the Land and Business to a third party. Completion of these contracts took place on 29 September 2005. The price achieved under the contracts with the third party was significantly less than that provided for under the initial arrangement with the First Defendant – the sale of the land realised some $542,500.00 less than the original contract price and the sale of the business was completed for $632,500.00 less than originally contracted for. The total disparity between the original contracts and the subsequent contract with the third party was $1,175,000.00. [9] On 18 July 2007 the Plaintiffs filed their original claim for ‘damages for breach of contract’ in the amounts of $695,653.42 and $699,161.17 and for interest in the amounts of $714,629.97 and $723,359.97 against the First Defendant. Identical amounts were claimed against the Third Defendant ‘pursuant to a guarantee and indemnity’ while $400,000.00 was sought from the Second Defendants. By an amended statement of claim, the amounts claimed against the First and Third Defendant were reduced to $632,500.00 and $598,324.11 under the Business and Land contracts respectively. The interest claimed was reduced to $164,350.36 under the Business Contract and $155,470.01 under the Land Contract. -- 6 of 22 -- 7 [10] The Plaintiffs have obtained judgment against the First and Second Defendants. The First Defendant, however, is presently in receivership and the Second Defendant is in liquidation. The present application for summary judgment is made against the Third Defendant only. Summary Judgment [11] Rule 292 of the Uniform Civil Procedure Rules 1999 (‘UCPR’) provides as follows: ‘(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant. (2) If the court is satisfied that— (a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and (b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.’ [12] This provision is reflective of a reluctance to deprive a defendant of its opportunity to have a matter properly ventilated at trial. Accordingly, and notwithstanding what is ‘almost a duty’ on the part of a trial judge to avoid clogging the system with unmeritorious claims, 1 summary judgment will only be granted where the plaintiff has complied strictly with the procedural requirements set out in the UCPR, applies for the remedy promptly and shows that there is no defence to the claim. 2 An appropriately careful approach should be adopted by the Court when considering an application for summary judgment 3 , it being necessary, by the terms of UCPR Rule 292 that the court be satisfied both:- (a) that the defendant has no real prospect of successful defending all or part of a plaintiff’s claim; and (b) that there is no need for a trial of the claim or part of the claim. [13] The Third Defendant (who has filed both a defence and a further amended defence) submits that there are several matters of fact, law and procedural non-compliance which give rise to issues between the parties which cannot be disposed of summarily. 1 Spellson v George (1992) 26 NSWLR 666 (CA), per Young A-JA at 678 2 Carlton & United Breweries Ltd v Long [1958] VR 539. See also Rosser v Austral Wine & Spirit Co Pty Ltd [1980] VR 313 (FC) at 319. 3 See my observations previously in Kingaroy Mall Pty Ltd v E & N Collins Pty Ltd [2008] QSC 66 and Elderslie Property management No 2 Pty Ltd v Dunn & Anor [2007] QSC 192. -- 7 of 22 -- 8 Election [14] The first of the Third Defendant’s submissions in this respect is that the Plaintiffs, having made contrary elections under the Land Contract and the Business Contract, are precluded from seeking the relief they presently pursue, namely recovery of the deficiency between the original contract price and the resale price. [15] Both the Land Contract and the Business Contract contained clauses which purported to address the circumstance of default by the purchaser. [16] The relevant clause in the Business Contract was in the following terms: ‘7. Purchaser’s Default In case the purchaser shall make default in payment of any part of the Purchase price as hereinbefore provided or shall fail or neglect to comply with any of the material provisions of this Contract the Vendor may at its option cancel this Contract and forfeit all moneys paid in respect of the purchase by way of liquidated damages and not by way of penalty or at his option sue the Purchaser for damages for breach of contract or at his option re-sell the Property bought by the Purchaser either by public auction or private contract at such time and place and subject to such conditions and in such manner as he shall deem fit and the deficiency in price (if any) occasioned by such second sale if completed within 2 years from the date of termination together with all expenses attending the same or any abortive attempt to sell the said Property shall immediately upon such re-sale be made good and paid to the Vendor by the present Purchaser and in case of non-payment of the amount of such deficiency the same shall be recoverable by the Vendor as and for liquidated damages and not as a penalty and it shall not be necessary for the Vendor previously to tender a transfer or other assignment of the Lease to the Purchaser but any profit or such re-sale shall belong to the Vendor. For the purposes of this clause material provisions shall include but not be limited to those obligations of the Purchaser contained in clauses 4,6,14,15,18,24,25 and 27.’ [17] The Land Contract included a clause in relatively similar terms. The relevant portions of this clause were as follows: ‘13. PURCHASER’S DEFAULT 13.1 If the purchaser: (a) fails to pay the balance of the Purchase Price as provided in clause 4; or (b) Fails to comply with any of the terms or conditions of this contract; Then the Vendor may: -- 8 of 22 -- 9 (i) affirm this contract; or (ii) terminate this contract. … 13.3 If the Vendor terminates this Contract pursuant to clause 3.2 r clause 13.1, the Vendor may elect to: (a) declare the Deposit (or so much of it as shall have been paid) forfeited and/or sue the Purchaser for breach; or (b) declare the Deposit (or so much of it as shall have been paid) forfeited and/or resell the Property and if the resale is completed within 2 years from the date of termination any deficiency and any expense arising from such resale shall be recoverable by the Vendor from the Purchaser as liquidated damages; and in either case the Vendor may recover from the Purchaser as a liquidated debt the deposit or any part of it which has been paid by the Purchaser. 13.4 The rights and powers conferred upon the Vendor by this clause 13 are in addition to any other right or power which the Vendor may have at law or in equity.’ [18] The Third Defendant contends that the Plaintiffs made elections under both these contractual provisions. In the case of the Business Contract, it is submitted that an election was made to forfeit monies paid under the contract or, in the alternative, to ‘sue the Purchaser for damages for breach of contract’. In relation to the Land contract, it is contended for the Third Defendant that the Plaintiffs elected to ‘sue the purchaser for breach’. [19] An election is a ‘completed and irrevocable exercise of one or other of … inconsistent rights’.4 Whether an election has been made will be a question of fact to be determined by reference to the particular circumstances of the case. A party will only be held to have made an election under a contract where it can be said that the party was ‘confronted with two mutually exclusive courses of action between which it must choose.’5 [20] Once an election has been a party ‘is not permitted later to resile from his election in order to choose the other if it eventuates that he has elected for the least advantageous course.’ 6 [21] In determining whether an election has been made in the present situation, some difficulty is created by the fact that the two contracts which, ostensibly, were intended to achieve the same end, are actually in different terms. 4 Taylor v Raglan [1981] 2 NSWLR 117 at 135 per Powell J. 5 Immer v Uniting Church (1993) 182 CLR 26 per Deane, Toohey, Gaudron and McHugh JJ at 41 6 Jampco Pty Ltd v Cameron (No) 2 (1985 3 NSWLR 391 at 393 per Young J quoting Professor Butt. -- 9 of 22 -- 10 Election to forfeit monies paid under the Business Contract [22] Read most literally, Clause 7 of the Business Contract would appear to provide three options to the vendor in case of default by the purchaser. The first of these putative options is to ‘cancel the contract and forfeit all monies paid in respect of the purchase by way of liquidated damages’, the second option is to sue for damages while the third option is to re-sell the property and claim any deficiency between the original contract price and the resale price. [23] The Plaintiffs contend that, notwithstanding the literal wording of Clause 7, it should not be read as providing three mutually exclusive alternatives. They submit, rightly I think, that such a construction would have an absurd result inasmuch as it would mean that where the vendor chose to terminate the contract for breach it would be restricted to forfeiting monies paid under the contract or, equally absurdly, would allow the vendor to re-sell the property and claim any deficiency without first terminating the contract. As Lord Diplock said in Antaios Compania Naviera v Salen Rederierna:7 ‘If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.’ [24] There are two further, but perhaps less literal, possible constructions of the clause. [25] The construction preferred by the Third Defendant is one which recognises that the clause provides for the termination of the contract as a right cumulative upon a right to claim for one of three alternative remedies. Such a construction would allow the Plaintiffs to terminate the contract and either forfeit all moneys paid in respect of the purchase, re-sell the property and claim any deficiency, or claim for damages. [26] The Plaintiffs, for their part, contend in favour of a greater departure from the literal terms of the clause. They submit that it should be read as providing the vendor with a right to terminate the contract and forfeit moneys paid under it and then choose between suing for damages or claiming a deficiency on resale. [27] It seems to me that, notwithstanding the literal wording of the clause, the construction of the contract proposed by the Plaintiffs is to be preferred. The clause is, in my view, ambiguous. In light of this ambiguity I would be reluctant to adopt a construction of it by which one of the parties forfeits ordinarily available common law rights, specifically the right to retain a deposit in case of default by a purchaser. In this respect, Concut Pty Ltd v Worrel8 is instructive. In that case the High Court indicated that “… clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies for breach of the contract arising by 7 (1985) AC 191 at 201 as approved by Chesterman J in Peppercorn Holdings No 1 Pty Ltd v DDH Graham Ltd and Ors [2006] QSC 156 8 (2000) 75 ALJR 312 at 317 -- 10 of 22 -- 11 operation of law”9 and went on to note that “an express provision for termination for breach in certain circumstances may be regarded as designed to augment rather than to restrict or remove the rights at common law which a party otherwise would have had on breach.” 10 [28] In light of the ambiguity of the clause, I am not satisfied that this requirement for ‘clear words’ has been met. I am fortified in this conclusion by the terms of the clause in the Land Contract, which very clearly contemplate termination of the contract and forfeiture of any deposit monies as a right apart from, and cumulative upon, the rights to sue for breach or deficiency on re-sale. It seems unlikely that the parties would have intended one set of remedies to be available under the Land Contract and another differently operating set of remedies to be available under the Business Contract. Such an approach would be unwieldy to say the least. [29] Having reached this conclusion, it is unnecessary for me to further deal with the Third Defendant’s contentions in respect of whether there was an election under the Business Contract to forfeit monies paid under the contract. [30] Nevertheless, I will set out the terms of the correspondence by which it is said that such an election was made. The relevant correspondence for this purpose is contained in a letter of 19 November 2005. The letter states that the Plaintiff: “[H]ereby terminates both contracts pursuant the rights that arise by virtue of your client’s breaches and in any event pursuant to clause 7 of the Business Contract and Standard Condition 13 of the Land Contract… Our client reserves all of its rights pursuant to the Land and Business Contracts, at law and in equity, and specifically confirms that all monies paid by way of Deposit pursuant to each Contract and any other monies paid under the Contracts are hereby forfeited to the respective Vendors.” [31] The correspondence clearly ‘confirms’ that all monies paid under the contract are forfeited. The question remains as to whether this would have been (if such an election were possible) sufficient to amount to an election to forfeit monies paid under the contract, such that a claim to a deficit on resale would be precluded. [32] The purported reservation of rights contained within the letter clearly illustrates that the Plaintiffs considered forfeiture of the deposit to be a matter apart from the pursuit of damages or deficiency. Furthermore, the contents of the letter must be considered in the context of the fact that the parties had already agreed, by way of the variations of April and September 2004, that the deposit would be forfeited. It would therefore be difficult to say that this letter amounted to an unequivocal election to forfeit the deposit in preference to the alternative remedies mentioned in clause 13.3. It appears to be little more than a confirmation of what was agreed between the parties as a result of the variations. 9 Concut Pty Ltd v Worrel (2000) 75 ALJR 312 at 317 quoting with approval from Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574 at 585 10 Ibid at 317 -- 11 of 22 -- 12 An election to claim for damages? [33] The Third Defendant contended that if it could not be said that an election under the Business Contract to forfeit monies had been made, an election to sue for damages had nonetheless been made under both the Business and Land Contracts. [34] Clause 7 of the Business Contract provides that the Plaintiffs may elect to ‘sue the Purchaser for damages’, while clause 13 of the Land Contract allows for an election to ‘sue the Purchaser for breach’ to be made. [35] These elections, it is submitted, were made by letter of 14 March 2006 and by the commencement of the present proceedings. [36] The letter of 14 March 2006 specified the damages sought primarily in terms of a ‘deficiency in sale price’ but also included the following passage: “Tax and Further Damage 25 In addition to the amounts you owe our clients that are specified in this letter, our clients claim against you an indemnity and contribution for any 25.1 land tax 25.2 stamp duty 25.3 goods and services tax; and / or 25.4 further loss or damage, that our clients may suffer in connection with the subject of this letter. Our clients reserve their rights in relation to these items and any other loss or damage that they may suffer.” [37] This would appear to indicate that the heads of loss claimed under the letter were not limited to the deficiency on resale of the business and expenses relating thereto. Whilst stamp duty and GST could perhaps be said to relate to the resale, the claims to land tax and ‘further loss and damage’ may take the remedy pursued in the letter into the realm of an at large damages claim. [38] The Plaintiffs attempt to counter this by noting that the letter’s primary thrust was to claim the difference between the contract price and the resale price rather than, as is said would be the case in a general claim to damages, the difference between the original contract price and the true value of the land and business as at the time of completion of the original contracts. In doing so, their implicit submission is that paragraph 25.4 of the letter is merely a throwaway line which is not sufficient to ground an unequivocal election to pursue damages at large. [39] In assessing this submission it is necessary to consider the terms of the Plaintiffs’ pleadings. The Plaintiffs’ claim provides that the amounts claimed are for ‘damages for breach of contract.’ -- 12 of 22 -- 13 [40] The possibility of a claim in such terms amounting to an election was considered by Young J in Jampco Pty Ltd v Cameron, 11 a case involving a contract for the sale of land which included the following terms: “[I]f the purchaser defaults in the observance or performance of any obligation imposed on him under or by virtue of this agreement the deposit paid …shall be forfeited to the vendor who shall be entitled to terminate this agreement and thereafter either to sue the purchaser for breach of contract or to resell the property as owner and the deficiency (if any) arising on such resale and all expenses of an incidental to such resale or attempted resale and the purchaser’s default shall be recoverable by the vendor from the purchaser as liquidated damages provided that proceedings for the recovery thereof be commenced within twelve months of the termination of this agreement.” [41] In that case the vendor terminated the contract following non-compliance with a notice to complete. In subsequent proceedings on the question of damages a statement of claim which included the following passages was filed: “6. In breach of the terms of the contract the defendants failed or neglected to complete the contract within the time so specified in the said notice to complete. 8. by reason of the breach by the defendants of the contract the plaintiff has suffered loss and damage. PARTICULARS Loss on resale of property of $105,000. (Further particulars will be provided shortly).” [42] After confirming that this contractual term gave the vendor the option of either suing for damages or claiming a deficiency on resale as liquidated damages, Young J observed that: “In my view the statement of claim tends towards a claim for breach of contract rather than a claim under the contract for loss on resale except for the appearance of that phrase in the particulars of par 8. The amended particulars of damage are also more consistent with a claim for breach of contract than for a claim under the contract. In my view, although there is scant material on the matter, it has elected for breach of contract damages.” [43] Unfortunately, His Honour did not set out the amended particulars to which he referred in this passage. [44] However, it would seem that the particulars of the damages in the present case have been set out in terms more explicitly contemplative of a claim for deficiency on resale. 11 (1985) 3 NSWLR 391 -- 13 of 22 -- 14 [45] Both the original Statement of Claim the Amended Statement of Claim include an assertion that: “On 29 September 2005 the first plaintiffs and the second plaintiffs completed the resale of the business and the land respectively, being a resale of the business and the land within two years of the termination of the business contract and the land contract, as provided for in clause 7 of the business contract and clause 13 of the Standard Conditions of the land contract….” [46] The pleading then goes on to include a calculation of loss. This calculation is made by subtracting the deposit retained under the original contract and the resale contract price from the original contract price and then adding expenses arising out of the resale. Interest on the loss from the date of completion of re-sale to the date of the claim at the contractual rate is then added.12 [47] There is, in respect of the loss claimed, some difference between the original and amended Statement of Claims. Specifically, the original Statement of Claim includes amounts for land tax and city council rates, apparently claimed as special damages. These amounts are not included in the amended Statement of Claim. [48] Notwithstanding the presence of these special damages claims in the original Statement of Claim, the overall method of calculation of loss would certainly seem to be more consistent with a claim for deficiency on resale than general damages. I am not satisfied, therefore, that the present case falls into the same category as Jampco v Cameron. It cannot be said that there has been a ‘completed and irrevocable’ election to claim damages at large rather than a deficiency on resale. [49] This is not to say, however, that summary judgment automatically follows this finding. There are several other contentions advanced by the Third Defendant that fall to be considered before such a conclusion can be reached. Entitlement to interest [50] The Third Defendant submits that the Plaintiffs’ claim is defective in that they are not entitled to claim contractual interest between the time of termination of the contract and resale. Indeed, the Third Defendant contends that the Plaintiffs are not entitled to any contractual interest in the present proceeding. [51] The Plaintiffs, they submit, are relying on clauses 45.1 of the Business Contract and 11.2 of the Land Contract. These clauses provide as follows: ‘45 Interest on late payments 45.1 If any moneys (including the Deposit) payable under or by virtue of the contract is [sic] not paid when payable such money shall bear interest from the due date for payment to the date of payment at the Contract Rate 12 Zografikis v McCarthy [2007] NSWSC 144 at [21] -- 14 of 22 -- 15 which interest shall be paid contemporaneously with the balance of the Purchase Price. 45.2 Any judgment for any such money shall likewise bear interest from the date of judgment until the date of payment.’ ‘11. INTEREST ON LATE PAYMENTS 11.1 Without derogating from the strict effect of clauses 3, 13 and 26 if any money (including the Deposit) payable under or by virtue of this Contract is not paid when payable such money shall bear interest from the due date for payment to the date of payment, both inclusive, at the rate stated in Item P and if no other rate is so stated at the contract rate (at the date the money became payable) per annum simple interest which interest shall be paid contemporaneously with the balance of the Purchase Price. 11.2 Any judgment for any such money shall likewise bear interest from the date of judgment to the date of payment, both inclusive.’ [52] These clauses are, in the submission of the Third Defendant, concerned with moneys owing under the contract, rather than damages for breach of the contract. Particular reliance is placed on the fact that the clauses require that the interest be payable ‘contemporaneously with the balance of the Purchase Price’. [53] Similarly, The Third Defendant submits that clauses 11.2 and 45.2 set out to deal with the situation where judgment is entered and do not apply to interest accruing between the termination of the contract and the giving of judgment. [54] There is certainly some intuitive appeal to these submissions, but the mere fact that interest may not be payable at the rate contemplated would not necessarily prevent me from awarding interest in accordance with the statutory rate. This issue, of itself, is not of such a character that a trial would be required to resolve it. Are Clauses 7 and 13 Penalties? [55] The next issue for consideration arises out of the Third Defendant’s contentions that, even if an award of summary judgment for deficiency on resale could otherwise be made, the provisions in the contracts allowing for the pursuit of a deficiency on resale as liquidated damages are penal in nature. [56] It is well established that the parties to a contract may specify an amount which is to be payable in the event of breach. A clause which purports to do so, however, will be void as a penalty where it does not involve a genuine pre-estimate of the loss likely to be caused by the breach of the contract.13 More particularly, a clause will be a penalty where the amount prescribed by it is “extravagant and unconscionable 13 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79, O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 367-8; AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 190. -- 15 of 22 -- 16 in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.”14 The High Court in AMEV-UDC Finance Ltd v Austin15 confirmed that in assessing whether an amount was ‘extravagant and unconscionable’ the “degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff” was important.16 The onus of demonstrating that a clause is a penalty lies with the party who is sued under the relevant contract.17 [57] Notably, in deciding whether a clause is a penalty, the use of particular words will not be conclusive.18 Thus, the fact that clause 7 includes the terms ‘recoverable by the Vendor as and for liquidated damages and not as a penalty’ does not prevent a conclusion that the clause amounts to a penalty. Rather: “The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided on the terms and inherent circumstances of a particular contract, judged of as at the time of making the contract, not as at the time of the breach. ”19 [58] As an initial point of reference, it may be observed that a clause is likely to be a penalty where “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.”20 The deficiency clause in the present case cannot be said to contemplate the payment of a pre-defined single lump sum as contemplated in this statement of principle. Nevertheless, the Land Contract, at least, provides that the default provision (namely clause 13) is enlivened upon the failure to comply with “any of the terms or conditions of this contract”. There is no limitation in respect of materiality. Clearly, the question as to the penal nature of the clause warrants some consideration. [59] The deficiency provisions under both contracts permit the First Plaintiffs to claim a loss on resale up to two years after termination. The Third Defendants complain that, in doing so, they make the First Defendant responsible for market fluctuations during that period. This, of itself, would not appear to justify a conclusion that the clauses are penalties. After all, sufficient time must be allowed for the Plaintiffs to find an appropriate purchaser. Given the nature of these contracts, i.e. contracts for the sale of land and a business in the real-world context of fluctuating markets, it is difficult to see that the mere fact that the Defendants were exposed by the clauses to possible market fluctuations is sufficient to ground a claim that they are penal in nature. Clauses of this type must necessarily subject the defaulting party to some degree of exposure to market forces – I would not be inclined to consider this fact, of itself, sufficient to render a clause a penalty except where the property involved is inherently likely to depreciate in value or the period allowed for resale is of an 14 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 at 87. 15 (1986) 162 CLR 170 16 (1986) 162 CLR 170 at 193 per Mason and Wilson JJ. 17 Beil v Mansell (No.2) [2006] 2 QdR 499 at 506 per Chesterman J. 18 O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 per Gibbs CJ at 368. 19 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 at 87 20 Ibid -- 16 of 22 -- 17 unreasonable duration. I do not consider either of these factors to apply in the current circumstance. [60] The Third Defendant attempts to supplement the above submissions by contending that the fact that the clause purports to give the Plaintiffs a right to claim a deficiency on resale irrespective of whether they were in a position to complete the contract tends towards a conclusion that it is a penalty. I do not find this latter submission particularly persuasive. A party will not be entitled to terminate a contract unless or until it is ready, willing and able to carry out its own obligations under it. It cannot, therefore, be said that the clause is, in this respect, of the character which the Third Defendant attempted to ascribe to it. [61] More compelling, however, is the Third Defendant’s argument that the clauses require the Defendants to pay an amount which has no regard to the benefits the Plaintiffs receive from the operation of the business during the period between termination and resale. [62] The Plaintiffs, for their part, concede that no allowance is made for income the vendors received from the property until the resale was achieved, but submit that this is counter-balanced by the fact that the clauses do not permit the vendors to claim interest on the balance purchase price from the date for termination of the original contracts until the resale is achieved. [63] Given the nature of the business, it is likely, though evidence on the point was not available before me, that a not insignificant income would have been derived from the property. Allowing the Plaintiffs to hold the property and then re-sell while reaping profits in the mean-time could conceivably result in them obtaining a significantly greater sum that would have been recoverable under the contract. Of course, the fact that this is offset to some degree by interest not being claimable for the period between termination and resale may appropriately counterbalance the otherwise apparently penal character of the clause.21 Furthermore, the mere fact that a clause results in a larger amount being obtained than would ordinarily be awarded as damages will not automatically mean a clause is a penalty – the result must be ‘extravagant or unconscionable in comparison with the greatest loss recoverable under the contract’. [64] The difficulty, however, for the Plaintiffs in this case is that there is no information before me as to the income earned as a result of the continued retention of the property (the Plaintiffs have not yet made disclosure on the point). It is possible that the income derived from the operation of the Hotel Business would be considerably greater than the interest that would have been payable under the contract (were such a provision included). If this were shown to be the case, the clause could perhaps be said to be a penalty. [65] Accordingly, in the absence of further information as to the takings of the business over the course of the 10 month period between termination and resale, I am unable 21 See Esanda Finance Corp v Plessnig (1989) 166 CLR 131 -- 17 of 22 -- 18 to confidently conclude that the Defendant has no reasonable prospect of defending the action. It follows that the application for summary judgment must be dismissed. Supplementary arguments [66] There were two final contentions made by the Third Defendant as to why a trial of the matter was necessary. I will now turn briefly to these. [67] The Third Defendant submitted that the Plaintiffs compromised their claims. It was contended that the contents of discussions in relation to this point are disputed as between the parties and, as such, the present matter is not of the kind in which summary determination is appropriate. This was, however, the full extent of the Third Defendant’s submissions on the point. No indication as to what these discussions might reveal was given nor was there any further exposition as to why a trial on this issue would be necessary. The only relevant evidence before me in relation to this submission came in the form of the letter of the Third Defendant of 22 February 2005 in which he stated: ‘We hereby acknowledge that you reserve all rights against us pursuant to and arising out of the termination of the previous land and business contracts (“previous contract”) between us for the above Hotel. We further acknowledge that the entering into of new land and business contracts for the same Hotel is in no way to be seen or treated as a waiver of any breach or breaches by us under the previous contracts, and that any rights you may have as a result are specifically reserved.’ [68] In light of this reservation of rights, it is difficult to see how it could be accurately said that the Plaintiffs have compromised their claim in any way. [69] Secondly, the Third Defendant pleaded (at paragraph 4(c) of his amended defence) that the Plaintiffs breached an implied duty to mitigate their loss by ensuring that the business and land were resold for the best prices possible. [70] Whilst the Hotel Business and Land certainly sold for significantly less than the original contract price, there is no material before me upon which I would be able to conclude that the Plaintiffs failed to mitigate their loss. Accordingly, I am not convinced that this contention gives rise to issues between the parties such that, without more, a trial of the matter would have been warranted. Mareva Application [71] Having determined that summary judgment should not be awarded in this matter, it is necessary for me to consider whether the Mareva orders which currently attach to the assets of the Third Defendant should be extended until after the trial of the matter. [72] On 13 September 2007, Chesterman J, in separate proceedings commenced in connection with the Plaintiffs’ claim, made Mareva orders against the Third -- 18 of 22 -- 19 Defendant and a company, Alexandria Holdings Pty Ltd, owned and beneficially controlled by the Third Defendant. These orders were made following an ex-parte application by the Plaintiffs and included the following terms: “Freezing of assets 6. (a) The respondent must not remove from Australia or in any way dispose of, deal with or diminish the value of any of its assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$3,000,000.00 (‘the relevant amount’) until 4pm on the return date. (b) If the unencumbered value of the respondent’s Australian assets exceeds the relevant amount, the respondent may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of the respondent’s Australian assets still exceeds the relevant amount. 7. For the purpose of this order the respondent’s assets include: (a) all its assets, whether or not they are in its name and whether they are solely or co-owned; (b) any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with the respondent’s direct or indirect instructions); and (c) the following assets in particular: (i) the property known as Lot 17 on SP188574, County of Stanley Parish of North Brisbane, Title Reference 50624094 situated at 451 Ann Street, Brisbane City in the State of Queensland and Lot 21 on Crown Plan SL 12759 County of Stanley Parish of North Brisbane, Title Reference 17468139 situated at 461 Ann Street, Brisbane City in the State of Queensland.” [73] At the hearing of these applications, I varied the order of Justice Chesterman such that the amount referred to in 6(a) above was reduced to $1,700,000.00. I also extended the effect of the order until 4:00pm on the date of the delivery of this judgment. [74] Turning then, to the question of whether this order should be further extended - in order to grant a Mareva order a court must be satisfied that the relevant plaintiff has a vested cause of action against the defendant. This cause of action must be sufficiently arguable to found the grant of interlocutory relief. Notwithstanding my refusal to grant summary judgment, there is no question that the Plaintiffs in the present case have a strongly arguable cause of action against the Third Defendant. -- 19 of 22 -- 20 [75] Hence, the more important question is whether I can be satisfied that a prudent, sensible person experienced in commerce 22 could properly infer that there is a real and not fanciful23 danger that the defendant will abscond, remove assets from the jurisdiction, dispose of assets within the jurisdiction, or otherwise deal with assets in a manner which may frustrate the satisfaction of any judgment granted in favour of the Plaintiff. [76] In submitting that the Mareva orders should not be further extended, counsel for the Third Defendants vigorously emphasised a number of potentially material non-disclosures by the Plaintiffs at the time the original application was made. [77] It is well established that a party to an ex-parte application must bring to the court’s attention any matters which might reasonably stand against the making of the application.24 Where full disclosure of all facts material to the granting of relief is not made the court may discharge the order.25 Notably, where the court discharges a Mareva order for this reason it may, in its discretion, allow a renewed application to be made for an order in the same terms. 26 [78] In relation to the alleged non-disclosure, the Third Defendant complains that the Plaintiffs failed to disclose the possibility that the amount of the original claim ($2,800,000.00) may not have been tenable. Clearly, as has properly been conceded by the plaintiffs in its amended statement of claim, a claim in this amount was unsustainable. In particular, the interest pursued by the original claim was, due to the operation of clause 45 of the Business contract and Clause 11 of the Land Contract, without a proper base. The possibility that a claim to interest in the amount sought would be precluded by the terms of the contracts should, of course, have been disclosed to Chesterman J at the time of the original application. [79] It should also be noted that, in the course of submissions to Chesterman J the Plaintiffs submitted that the proposed Mareva order followed the terms of Practice Direction Number 1 of 2007 pertaining to ‘Freezing Orders’. The Third Defendant quite rightly pointed out that this is not, in fact, the case. Notably, the order proposed to Justice Chesterman, did not include the usual exceptions relating to the payment of living or legal expenses or dealings and dispositions in the ordinary and proper course of business. The Plaintiffs were unable to provide any particularly compelling rationale for this oversight. [80] For these reasons it may be that it would be proper for me to discharge the Mareva orders. Prior to reaching such a conclusion, however, the evidence as to the risk of assets being dissipated should be considered. 22 Turner v Sylvester [1981] 2 NSW LR 295 per Rogers J at 305-6. 23 Construction Engineering (Aust) Pty Ltd v Tambel (A/ asia) Pty Ltd [1984] 1 NSWLR 274 per Clarke J at 283. 24 Thomas A Edison Ltd v Bullock (1913) 15 CLR 69 at 681; Gold Ribbon (Accountants) Pty Ltd v Sheers [2002] QSC 400 at [51]. 25 Sharp v Australian Builders Labourers’ Federated Union of Workers (W A Branch) [1989] WAR 138. 26 Ibid -- 20 of 22 -- 21 [81] In Cardile v LED Builders Pty Ltd27, Kirby J noted that noted that when undertaking such a consideration it is proper to recall the explanations for the development of asset preservation orders. His Honour said that: “The reasons have involved two basic and interrelated concepts. The first arises from the facts of modern commercial life, of which courts and not ignorant and to which they are not indifferent. Today it is much easier than was previously the case to transfer assets quickly both nationally and internationally. Electronic networks facilitate a dishonest party’s frustration of the enforcement of a court’s judgment once entered. The courts need to adapt their remedies to this reality. As Brennan J observed in Jackson v Sterling Industries Ltd, the schemes which debtors may devise for divesting themselves of assets are legion. The novelty of such schemes is no objection to the validity of an order seeking to arrest the process. Secondly, such orders have been developed as much to protect and defend the court’s process from abuse as to protect and defend the interests of the potential judgment creditor. This point was made in Canada in Grenzservice Speditions GesmbH v Jans where Huddart J observed: “The Mareva and Anton Piller orders were conceived not so much to protect plaintiffs as to protect the court’s jurisdiction against defendants bent on dissipating or secreting their assets or evidence in order to render inconsequential the judicial process against them.” (references omitted).” [82] It is with these principles in mind that I consider the material in support of the Plaintiffs’ application for an extension of the Mareva order. In this regard, I make reference to the affidavit of Mr Mark Madsen filed in support of the Plaintiffs’ application. By this affidavit, Mr Madsen deposed to the following: (a) a number of companies associated with [the Third Defendant], were under insolvency administration; (b) An insolvency administrator, Mr Doug Ljubic of Armstrong Wily and Co Chartered Accountants was not willing to disclose contact details for the Third Defendant but said that ‘he believed [the Third Defendant] was in Europe; and (c) his “latest understanding was that [the Third Defendant] had no intention to return to Australia in the short term.” [83] While the Plaintiffs have not provided any firm evidence that the Third Defendant has, or intends to dispose of assets in such a way that a judgment in their favour would be frustrated, there remain significant factors in favour of the grant of the order sought. [84] In particular, it should be observed that not only is the Third Defendant not presently in the jurisdiction, there is no indication that he intends to return in the near future, nor evidence of significant ties to the jurisdiction other than the assets subject to the original Mareva order. Moreover, the Third Defendant has not sworn 27 (1999) 198 CLR 380 at 425-6. -- 21 of 22 -- 22 an affidavit deposing to his intentions and, aside from the appointment of legal representatives, has generally not exposed himself to the court processes. [85] In these circumstances I take the view that it is necessary for the protection of the integrity of the court’s processes that asset protection orders be made in the present case. [86] The principles relating to the grant of such relief in cases where the activities of third parties (such as Alexandria Holdings Pty Ltd) are to be restrained were set out by Gaudron, McHugh, Gummow & Callinan JJ in Cardile v LED Builders Pty Ltd. Their Honours noted that such orders: “may…be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including “claims and expectancies” of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.” [87] In circumstances where Alexandria Holdings Pty Ltd is owned and controlled by the Third Defendant, such that it may be required to assist with the satisfaction of any judgment against the Third Defendant, it is appropriate that the order extend to assets held by it. [88] I am presently inclined not to disturb the amount over which the Mareva orders currently extend, namely, $1,700,000.00. In the absence, however, of any compelling justification for the original order’s departure from the terms of Practice Direction No. 1 of 2007, the terms of the order should include the usual exceptions in relation to ordinary living expenses and the payment of reasonable legal fees. Order [89] The application for summary judgment will be dismissed, and the costs of that application will be reserved. I will hear the parties as to the form of Mareva order, particularly in relation to the matters to which I have just referred. -- 22 of 22 --