- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd & Ors  QSC 032
TEAM DYNAMIK RACING PTY LTD
Supreme Court at Brisbane
22 February 2007
5, 6, 7, 8 February 2007
As per minutes of order to be settled
MORTGAGES – REMEDIES OF THE MORTGAGOR – REDEMPTION – RIGHT TO REDEEM – OTHER MATTERS – where first defendant provided moneys to plaintiff in connection with motor sport licences – where licenses transferred to first defendant – where first defendant resold one licence – whether the transfers were by way of sale or secured loans – whether equities of redemption came into existence – whether licences assignable and capable of being securities for loans – whether novation of licences extinguished equities of redemption – whether account should be ordered – whether tracing order appropriate
Property Law Act 1974 (Qld), s 84
Trade Practices Act 1974 (Cth)
Barns v Queensland National Bank Limited, (1906) 3 CLR 925, cited
Barton v Bank of New South Wales (1890) 15 AC 379, cited
Bridgewater v Leahy (1998) 194 CLR 457, cited
C B Peacocke Land Co Ltd v Hamilton Milk Producers Co Ltd  NZLR 576, cited
Devlin v Surfers Paradise Investments Pty Ltd (1998) 1 Qd R 404, cited
Erlinger v New Sombrero Phosphate Company  3 AC 1218, cited
re George Inglefield Ltd (1933) 1 Ch 1, cited
Handevel Pty Ltd v Comptroller of Stamps (Vic) (1985) 157 CLR 177, cited
Knightsbridge Estates Trust Ltd v Byrne  1 Ch 441, cited
Kreglinger v New Patagonia Meat and Cold Storage Company Limited  AC 25, cited
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in Liq) (1965) 113 CLR 265, cited
In re Lovegrove; Ex parte Lovegrove & Co (Sales) Ltd  Ch 464, cited
McGinnis v The Union Bank of Australia Ltd (1935) VLR 161, cited
Meredith v Davis (1933) 33 SR (NSW) 334, cited
re Modular Design Group Pty Ltd (1994) 35 NSWLR 96, cited
National Bank of Australasia v United Hand-in-Hand Band of Hope Company (1879) 4 AC 391 (P.C.), cited
Noakes & Co. Ltd v Rice  AC 24, cited
Nokes v Doncaster Amalgamated Colleries Limited  AC 1014, cited
Olsson v Dyson [1968-1969] 120 CLR 365, cited
Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, cited
Rakestraw v Brewer  2 PW 509, cited
Robinson v Podosky  St R Qd 118, cited
Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315, cited
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, cited
Stoneleigh Finance Ltd v Phillips  2 QB 537, cited
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315, cited
Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd  2 KB 660, cited
Tse Kwong Lam v Wong Chit Sen  1 WLR 1349, cited
Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194, cited
A J H Morris QC, with him K G Brennan, for the plaintiff
H B Fraser QC, with him M Hoch, for the defendants
Hopgood Ganim for the plaintiff
Macrossan Lawyers for the defendants
- The principal issue in this case is whether two transactions entered into between the plaintiff and the first defendant in 2005, under which the first defendant provided moneys to the plaintiff, were transactions of sale and purchase of licence agreements as the first defendant contends or loan transactions as the plaintiff contends. If the latter categorisation is correct, the plaintiff’s contention is that the licences were transferred by way of security for loans and conferred on the plaintiff an equity of redemption which could not be abrogated even by express agreement between the parties. The defendants’ response is that the licences are non-assignable and thus not capable of being securities. It is further contended that they ceased to exist as choses in action when the first defendant entered into agreements with the licensor under which the plaintiff was released from its obligations under the licences and the first defendant assumed the rights and obligations of the plaintiff. There are a number of subsidiary issues, including the question of whether a representation was made to the plaintiff, which relieved it of its obligation to pay or repay the subject moneys on the due date for payment.
The background to the parties’ dealings
- Mr Kieran Wills was a successful businessman in New Zealand, his native country. In January 2002, some years after moving to Australia, he formed Team Dynamik Racing Pty Ltd, the plaintiff, with a view to it’s participating in V8 Supercar racing in Australia. Team Dynamik purchased a Level One licence in 2002 for $1.5 million which entitled it to compete in the Australian V8 Supercar championship series (“the Competition”) as a Level One team and to race three cars. The Competition is conducted by TouringCar Entrants Group Australia Pty Ltd (“TEGA”) and Australian Vee Eight SuperCar Company Pty Ltd (“AVESCO”). The members of TEGA are the owners or representatives of the teams licenced to participate in the Competition. At relevant times there were 34 such teams and TEGA held 75 percent of the issued shares in the capital of AVESCO. As a result of rule changes in 2003 TEGA cancelled the existing licences and replaced each of them with two licences. Each of the new licences (“TLAs”) permitted the holder to race one car in the Competition.
- In 2003 and 2004, Team Dynamik raced two vehicles in the Competition and, in so doing, sustained losses to the order of $1.5 million in each year.
- At the end of the 2004 season, Mr Wills approached Mr Speairs, a media and marketing consultant who, through Tingela Pty Ltd, acted as a broker of licences and interests of the nature of those under consideration. According to Mr Wills, he said to Mr Speairs that he was interested in taking on a business partner or in having someone purchase equity in Team Dynamik.
- Mr Speairs’ evidence was to the following effect. Mr Wills approached him in November 2004 seeking his assistance. Mr Wills told him that he would have to sell one of Team Dynamik’s licences in order to partially fund a car for its remaining races for the 2005 season. Mr Wills enquired whether Mr Speairs knew anyone who might be interested in buying the licence (“the first licence”) on the basis that he would lease it back so he could continue to operate his team with two cars. He also sought Mr Speairs’ assistance in securing a major sponsor. Mr Speairs told Mr Wills in that conversation that his role in relation to the sale of the licence was to effect an introduction but not to negotiate the sale. He said that he would require a fee equal to 10 percent of the sale price plus GST. Mr Wills accepted those terms and said that his asking price was $1.5 million.
- After this conversation, Mr Speairs prepared a form of agreement between Tingela, Team Dynamik and Mr Wills which he had Team Dynamik and Mr Wills sign. The document, entitled “Service Agreement and Irrevocable Authority”, recited: “Dynamik wishes to engage Tingela to secure a purchaser or equity partner for Dynamik.” Clause 1 provides:
“1. Dynamik engages Tingela to source potential purchasers or equity partners on behalf of Dynamik substantially on the following terms and conditions:
a.The purchase of one of the Teams Level 1 Franchise Licences for the agreed total sum of $1.5000,000 dollars, whilst agreeing to campaign one race car for the purchaser during the 2005 season at no further cost to the purchaser.
b.Tingela will continue to source suitable sponsors for the combined team of two cars with Commission being paid to Tingela at the rate of 10% plus GST of the total gross amount of Sponsorship value attained by Tingela for the combined team.”
Clause 2 provides:
“2.Tingela accepts the engagement and undertakes to use its best endeavours to obtain suitable expressions of interest from a potential purchaser or partner to Dynamik substantially on the terms contained in Clause (1).”
Pre-contractual dealings between the parties
- Shortly after the agency agreement was signed, Mr Speairs arranged a meeting between Anthony Longhurst and Mr Wills at the Longhursts’ house. Mr Longhurst and his wife are the second defendants. Mr Longhurst had had a successful career as a racing car driver and V8 Supercar driver. He owned his own motor racing team for about 12 years prior to 2000. The first defendant, Longhurst Racing Pty Ltd (“Longhurst”), was controlled by him prior to 7 December 2005.
- Upon arrival at the Longhursts’ residence, Mr Speairs introduced Mr Wills to Mr Longhurst saying that Mr Wills wanted to put a proposal to Mr Longhurst about one of Team Dynamik’s licences. In the course of the conversation between Mr Wills and Mr Longhurst, Mr Wills said that he wanted to sell one of Team Dynamik’s Level One licences for $1.5 million. Mr Longhurst said that the licence was not worth anywhere near that amount of money. Mr Wills made a proposal that Mr Longhurst could become his partner in Team Dynamik and there was some discussion about how Mr Longhurst could benefit the team as a result of his technical expertise, knowledge and fan base. Mr Longhurst was adamant that the licence was not worth $1.5 million but did not put forward a counter offer or venture a view as to its value.
- On 4 February 2005, Mr Wills sent an email to Mr Speairs outlining a proposal he intended to put to Mr Longhurst. At Mr Longhurst’s request Mr Speairs forwarded the email to Mr de Vere, Mr Longhurst’s solicitor. Mr Speairs took no part in the negotiations which then occurred. A revised proposal was submitted by Mr Wills in an email sent on 10 February 2005. It provided:
Investment required of $750,000 not $1,500,000
Income would halve commensurately but would agree a fixed return of 20% - paid monthly.
Licence security would remain in place (see below)
Opportunity to drive remains
TL to assist in mentor/coach role with Will Davison in Development Series
Details of Deal
Existing (1) Level One licence transfer executed by Kieran Wills in favour of Tony Longhurst. Executed transfer held by TL lawyer. Transfer executed immediately upon agreement.
Agreement put in place whereby licence is agreed value of $1,500,000 for duration of contract. Part payment (investment) made by TL in favour of TD - $750,000.
At end of period (12 months) TD must payback $750,000 or if in default by agreed date, must accept additional payment of $750,000 from TL as full and final settlement of Licence.
At any time throughout term if TD should fail in any way, TL is able to exercise purchase option.
Mutual option to extend, terminate or convert to equity at end of period.
Benefits to TL
Still has security of licence
Agreed future value for purchase of licence with only 50% cash outlay now.
Does not assume liability of licence (keep alive by appearance)
TL protected in event of failure by TD.
Reduced $ exposure
Maintain investment return
Drive in 2005 and potentially beyond for $0
Does not require licence sale approval or option by AVESCO.”
The entering into of the first agreement
- Mr Wills met with Mr Longhurst and Mr de Vere, the defendants’ solicitor, in Mr de Vere’s office at Sanctuary Cove on 23 February 2005. The email of 10 February was discussed and Mr Wills was told that it was not acceptable. In the course of the meeting, Mr de Vere produced: a proposed Sale Agreement between Longhurst Racing and Team Dynamik; a proposed Service Agreement between Longhurst Racing, Team Dynamik and Mr Wills; and a put and call option deed between Team Dynamik, Longhurst and Mr Wills dated 23 February 2005. Those documents had been prepared by Mr de Vere prior to the meeting and a copy of each had been emailed to Mr Wills for his consideration.
- The Sale Agreement provided for the assignment by Team Dynamik to Longhurst of all of the former’s estate and interest in the first licence including Team Dynamik’s “Racing Entitlement in the V8 Supercar Series” for a consideration of $1,500,000.
- The Service Agreement provided in cl 2.1 that the purchase price in the Sale Agreement was “$1,500,000 payable $750,000 upon completion and $750,000 on 1 December 2005.” The document made provision for Team Dynamik to provide a car for and made other provision for the racing of the car during the 2005 season. Longhurst was to receive the “team share of prize and appearance monies” and was entitled to a commission of ten percent on sponsorship introduced by it to Team Dynamik. Under cl 3.4 Longhurst appointed Team Dynamik to provide Management Services as defined and otherwise to prepare “the Longhurst Car on its behalf for a fee of $150,000.00 for the 2005 V8 Supercar Championship payable in 10 equal monthly instalments.” Under cl 3.6 Team Dynamik appointed Longhurst its engineering and vehicle setup consultant at a fee of $150,000 payable in ten equal instalments of $15,000 commencing in February 2005. Clause 5.1 provided that in the event that Team Dynamik was in breach of “an Essential Term” Longhurst was entitled to terminate the agreement and Team Dynamik forfeited its right to payment of the sum of $750,000 otherwise payable on 1 December 2005 under the Sale Agreement.
- Under the put and call option deed, Longhurst had the right on 1 December 2005 to give notice in writing to Team Dynamik requiring it to purchase the first licence for the price of $1,500,000 plus GST. Team Dynamik had the right on the same day to exercise an option to purchase the first licence for $1,500,000.
- All of the above documents were shams: they were not intended to have legal effect. Any transfers of licences had to be provided to TEGA for approval and the parties were concerned that TEGA might exercise its right under cl 12 of the TLA to acquire any licences in the Competition offered for sale at the offer price. The mortgaging or encumbering of a licence also triggered TEGA’s right of pre-emption. Accordingly, the parties decided to show as the consideration for their transaction a price which would not tempt TEGA to exercise its right of preemption.
- Mr Wills swears that he had two meetings with Mr Longhurst and Mr de Vere in the latter’s Sanctuary Cove offices in February 2005: one in early February and the other on 23 February. It is his evidence that in the first of these meetings agreement was reached that:
- a licence would be transferred by Team Dynamik to Mr Longhurst for $1.5 million;
- the transfer be by way of security;
- if Mr Longhurst wanted his money back at the end of the 2005 season he could serve Mr Wills with a notice and Mr Wills would be obliged to buy back the licence;
- alternatively, at the end of the 2005 season Mr Wills could, upon serving a notice, get the licence back upon repayment;
- Mr Wills would continue to run Team Dynamik’s business as before. Mr Longhurst would be one of the team’s drivers and would charge no fee; and
- Longhurst would receive all appearance, prize and sponsorship moneys as the apparent holder of the licence but would pay them to Team Dynamik after deducting interest on the moneys advanced at the rate of 20 percent per annum.
Memorandum of Understanding
- I find that in the course of the meeting on 23 February, Mr Wills asked that a memorandum be produced setting out the substance of the true agreement between the parties. Mr Wills and Mr Longhurst discussed the matters which they considered should be included in the memorandum and Mr de Vere made notes. Mr de Vere left the meeting and had a typed memorandum prepared from his notes which was then signed by Mr Longhurst and witnessed by Mr de Vere. It was taken from the meeting by Mr Wills to read and consider. He did this and signed it later that day after satisfying himself that it accurately stated the substance of the parties’ bargain. It provided:
“MEMORANDUM OF UNDERSTANDING
This is to confirm the overriding understanding and agreement notwithstanding the Sale Agreement, Service Agreement and Put and Call Option Deed between the parties:
- Longhurst provides $750,000.00 repayable on 1 December 2005;
- TD provides 20% return on the $750,000,00;
- Tony Longhurst to drive during 2005;
- TD to provide a competitive car to Longhurst for 2005;
- Kieran Wills guarantees TD’s obligations;
- If TD defaults, Longhurst may retain the licence; and
- The net TEGA funds after racing costs and prize money, to be paid to TD.”
- Mr Wills explained in respect of the Memorandum of Understanding:
“The memorandum of Understanding appeared to set out the actual agreement which Mr Longhurst and I had made. The reference in the document to the sum of $750,000 was consistent with my statement to Mr Longhurst and Mr de Vere at our previous meeting that I expected to only have to draw on the sum of $750,000 and not the full $1.5 million which Mr Longhurst had said he would make available.”
- Mr Wills accepted that it was his belief throughout that to get back the first licence he had to exercise an option and pay Longhurst $750,000 on 1 December 2005. He admitted that that is what had been agreed between the parties on 23 February 2005 and that this bargain “was intended to be reflected in the Memorandum of Understanding.” He admitted also that the option wasn’t exercised. It was common ground that a term of the agreement (“the first agreement”) was that the licence be transferred.
The carrying out of the first agreement and matters preceding the second agreement
- The sham agreements were submitted to TEGA for its approval and approval was obtained. Longhurst advanced $750,000 in instalments. Tingela submitted a tax invoice to Team Dynamik in the sum of $75,000 plus $7,500 GST for “introduction to buyer & brokering services provided in negotiating the sale of one Level One V8 Supercar Franchise Licence by Team Dynamik Pty Ltd to Longhurst Racing Pty Ltd. Commission as per our agreement 10% of purchase price…” Team Dynamik was unable to pay the account and in an email to Mr Speairs of 8 April 2005 Mr Wills sought time to pay. He gave an assurance that “team assets remain unencumbered (other than Tony’s licence of course)...”
- The email of 8 April had attached to it a document prepared by or on behalf of Mr Wills for the purpose of presenting Team Dynamik’s actual and prospective financial position. It included the observation that: “...the Race Team has no borrowings and our book value (depreciated) is currently $7.3M. The only debt position is that of the exercisable call option with Tony Longhurst.” Under the heading “strategies”, there appeared:
“ ● Sale & lease back of TD held licence.
This could be potentially viable option but could have a vastly destabilising effect on the team and may incur certain undesirable conditions to be place [sic] on the team. (e.g. management, drivers etc)
● Outright sale of licence to TL subject to agreement by TL.”
- Mr de Vere produced an account addressed to Longhurst dated 23 February 2005 for his work in preparing the three sham agreements and matters incidental thereto. The account, in the sum of $11,561, by agreement between Mr Wills and Mr Longhurst, was to be met by Team Dynamik and Longhurst equally.
- Team Dynamik continued to experience financial difficulties and Mr Wills again turned to Mr Longhurst for financial assistance. On 29 August 2005, in an email to Mr Longhurst, Mr Wills sought to obtain an agreement in respect of his remaining licence (“the second licence”) on the same terms as that previously entered into in respect of the first licence. Negotiations took place and on or about 7 September 2005 a Sale Agreement, Service Agreement and put and call Option Deed were entered into in respect of the second licence. Those documents were in the same terms as their counterparts in respect of the first agreement and, like the latter documents, were shams. The true agreement, as Mr Longhurst admitted in cross-examination, was in accordance with the terms of the Memorandum of Understanding save that $450,000 replaced the sum of $750,000 and Mr Longhurst was not placed under an obligation to drive.
- Mr Wills swears that the email to Mr Longhurst of 29 August 2005 was sent after he had become increasingly frustrated with Mr Longhurst’s failure to provide the balance of the $1,500,000 agreed to be lent. He gave oral evidence as follows. He spoke to Mr Longhurst about the failure to provide the moneys and was informed that Mr Longhurst was funding a new boat for himself and that money was tight. Mr Longhurst later told him that he would be able to obtain the additional funds from his father but that he would have to repay his father on 1 December 2005. Mr Longhurst said that he was only prepared to advance the moneys he obtained from his father against the security of Team Dynamik’s second licence and that the transaction would have to be documented “the same way as the first advance had been documented.”
- I find that Team Dynamiks’ team had performed poorly in the Competition in 2005, partly as a result of insufficient funding. Mr Wills believed when entering into the second transaction, however, that he would be able to do some deal or deals which would relieve Team Dynamik’s financial position.
Findings as to the content of the agreements in respect of the licences
- I do not accept that the agreement reached on 23 February 2005 required Longhurst to pay a further $750,000 should Team Dynamik require it. There is no mention of any such requirement in the Memorandum of Understanding. The existence of any such agreement is quite inconsistent also with a number of emails sent by Mr Wills to Mr Longhurst and others before the entering into of the second transaction. In those emails, Mr Wills put forward various proposals by which Team Dynamik was to obtain finance from Longhurst. There was no mention, or even hint, of the alleged agreement in any of these written communications. If Mr Wills had believed in the existence of the alleged agreement he would have been ready enough to assert it.
- The agreement reached on 23 February 2005 was partly oral and partly written. The writing was the Memorandum of Understanding. It was common ground, though, that part of the parties’ bargain was that:
- the first licence be transferred by Team Dynamik to Longhurst;
- in order to regain title to the licence, Team Dynamik had to exercise a call option and pay Longhurst $750,000 on 1 December 2005.
- The agreement concerning the second licence was in similar terms to the first except that the sum to be provided by Longhurst was $450,000 and Longhurst was not required to provide his services as a driver.
The alleged November conversation relied on by Team Dynamik to ground an estoppel
- I do not accept the evidence of Mr Wills about the alleged mid-November 2005 conversation between Mr Wills and Mr Longhurst upon which Team Dynamik’s estoppel argument is based. Mr Wills’ evidence in that regard is not corroborated by other evidence I do accept. Mr Wills gave different accounts of the conversation at different times. The alleged conversation receives no support from Mr Wills’ email to Mrs Longhurst of 11 December 2005. It is unlikely that Mr Longhurst would have given Team Dynamik latitude in relation to payment, having regard to his necessity to repay his father and the financial pressure on Longhurst arising from the fact that any decision in respect of the licences had to be made before TEGA’s board meeting on 8 December 2005. It would not have escaped Mr Longhurst’s attention that Team Dynamik and Mr Wills were in deep financial difficulty. Team Dynamik failed to repay the advances on 1 December 2005 because it lacked the financial capacity to do so.
- Mr Wills. I did not regard Mr Wills to be a credible witness. He willingly participated in the deception of TEGA through the use of sham documents. Aspects of his evidence were inherently improbable. Of particular significance in this regard is his adherence to the unsustainable assertion that the first agreement included an obligation on the part of Longhurst to advance a further $750,000 and that he had raised this obligation from time to time in conversation with Mr Longhurst.
- Mr Longhurst. Mr Longhurst’s evidence was contradicted in a number of significant respects by other witnesses whose evidence on such matters I found more plausible. I gained the impression that Mr Longhurst was more concerned to defend his position than to answer questions frankly without regard to the bearing of those answers on the outcome of the proceedings. He was not prepared to make concessions where concessions were due. Like Mr Wills, he was a willing participant in the plan to deceive TEGA. I did not regard Mr Longhurst to be a credible witness.
- Mr de Vere. Mr de Vere’s evidence must be treated with great caution. He was embarrassed by his involvement in the bringing into existence of false documents and the making of false representations with a view to deceiving TEGA. As a result, he was anxious to minimise the extent of the deception practised on TEGA and to present his own conduct in the most favourable light. There were aspects of Mr de Vere’s evidence concerning the sale of shares in Longhurst which were improbable. He claimed privilege against self-incrimination on numerous occasions.
Were the two transactions in respect of Team Dynamik’s licences by way of sale or by way of mortgage?
- In Handevel Pty Ltd v Comptroller of Stamps (Vic) it was observed in the joint judgment of Mason, Wilson, Deane and Dawson JJ:
“The classic definition of a mortgage is that given by Lindley M.R in Santley v. Wilde (29): “… a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given”. The conveyance may be either a conveyance in equity or at law. However, the important point is that, although a mortgage usually secures a money debt, it does not always do so. For example, in Santley v. Wilde the mortgage secured, as well as repayment of moneys lent, the payment of a share of the net profit rents derived by the mortgagor.”
- The right of the mortgagor to redeem is an incident of any mortgage. Failure to redeem a mortgage on the due date for repayment does not destroy the equity of redemption without the proper exercise of a power of sale or a foreclosure suit in equity. It is common ground that Longhurst did not comply with the requirements of s 84 of the Property Law Act 1974 in respect of the exercise of any power of sale and that there has been no foreclosure suit. Team Dynamik’s equity of redemption, if it ever existed, remained. It thus becomes critical to determine whether the true nature of the two transactions under consideration were sales with a contract for repurchase or mortgages “under the form of a sale”. If the former categorisation is correct, Team Dynamik has no right to redeem but merely an option to repurchase to be exercised in accordance with the terms of the option.
- In order to determine the true nature of an instrument or transaction for the purposes under consideration:
“…equity has always looked to the real intention of the parties, to be gathered not only from the terms of the particular instrument but from all the circumstances of the transaction, and has always admitted parol evidence in cases where the real intention was in doubt.”
Regard must be had to the true nature or substance of the transaction and not merely its form.
- Romer LJ in re George Inglefield Ltd discussed the differences between the transaction of sale and one of mortgage in these terms:
“In a transaction of sale the vendor is not entitled to get back the subject-matter of the sale by returning to the purchaser the money that has passed between them. In the case of a mortgage or charge, the mortgagor is entitled, until he has been foreclosed, to get back the subject-matter of the mortgage or charge by returning to the mortgagee the money that has passed between them. The second essential difference is that if the mortgagee realizes the subject-matter of the mortgage for a sum more than sufficient to repay him, with interest and the costs, the money that has passed between him and the mortgagor he has to account to the mortgagor for the surplus. If the purchaser sells the subject-matter of the purchase, and realizes a profit, of course he has not got to account to the vendor for the profit. Thirdly, if the mortgagee realizes the mortgage property for a sum that is insufficient to repay him the money that he has paid to the mortgagor, together with interest and costs, then the mortgagee is entitled to recover from the mortgagor the balance of the money, either because there is a covenant by the mortgagor to repay the money advanced by the mortgagee, or because of the existence of the simple contract debt which is created by the mere fact of the advance having been made. If the purchaser were to resell the purchased property at a price which was insufficient to recoup him the money that he paid to the vendor, of course he would not be entitled to recover the balance from the vendor.”
- The defendants rely on a number of matters outside the Memorandum of Understanding and the words used by the parties when reaching agreement to support their proposition that the true nature of the transaction was one of sale and purchase. The first such matter is the evidence of Speairs as to his telephone conversation with Mr Wills and Mr Longhurst after they had reached agreement. Mr Speairs spoke of his understanding that Longhurst had bought the licence for $750,000. Tingela issued its tax invoice on that basis in a letter dated 30 March 2005 and its wording did not provoke any comment from Mr Wills.
- In a letter from Mr Wills to Mr Davison, a driver with whom Team Dynamik was in dispute, it is asserted that Wills told Davison that “the licence had been sold to Longhurst”. Mr de Vere drafted the letter but the accuracy of its contents was not queried by Mr Wills.
- In the “overview” attached to his email to Mr Speairs of 8 April 2005, Mr Wills stated that Team Dynamik’s “only debt position is that of the exercisable call option with Tony Longhurst.” He confirmed in cross-examination that his understanding at the time of the email was that if he wanted to get the licence back, he had to exercise his call option and that if Team Dynamik wished to reacquire the licence, it “had something like a contingent debt of $750,000 on the books.”
- There is extrinsic evidence which points in the other direction. Team Dynamik paid for all of the costs associated with obtaining TEGA’s approval and half the costs of Longhurst’s solicitor. Mrs Longhurst, who looked after Longhurst’s financial affairs, described the two amounts of money provided in the two transactions as being “principal” in an email to Mr de Vere of 21 November 2005. She also calculated the “interest” on those sums. It is likely that Mrs Longhurst’s understanding of the transactions was derived from discussions with her husband.
- The provisions of the Memorandum of Understanding are much more compatible with a loan transaction than with an agreement for sale coupled with an option to repurchase. The Memorandum does not state that TD sells and Longhurst purchases. It does not state that Longhurst lends and TD borrows either. But the use of the word “repayable” in Item 1 is much more suggestive of a loan than a sale. The “…20% return on the $750,000…” to be provided by TD is more consistent with a loan than a sale as is the obligation on Longhurst in Item 7 to pay to TD the “…net TEGA funds…” after deducting “…racing costs and prize money…” Item 6, which provides that Longhurst may retain the licence if TD defaults, is also more indicative of a loan than a sale.
- In my view, the matters relied on by the defendants are not sufficient to change the complexion of the transaction manifested in the Memorandum from that of a secured loan to an agreement for sale coupled with an option to repurchase. In talking to Mr Speairs about the transaction, neither Mr Wills nor Mr Longhurst would have given consideration to the proper legal categorisation of their transaction. Nor would Mr Speairs have been concerned with the way in which the transaction had been structured. He did not participate in the negotiations in February 2005 and had the understanding based on his earlier dealings that the agreement was one of sale and purchase.
- The letter to Mr Davison’s lawyers of 21 March 2005 is not particularly persuasive. Both Mr Wills and Mr de Vere would have been more interested in advancing the best possible argument rather than accurately stating the true nature of the transaction between Team Dynamik and Longhurst. To refer to the transaction as a secured loan would have exposed Longhurst and Team Dynamik to the possibility of the matter being referred to TEGA.
- Nor does it seem to me to be decisive in the defendants’ favour that Mr Wills had the understanding that, in order to recover the licences, he had to exercise a call option and pay the sums advanced on 1 December 2005. Such requirements are not compatible with secured loans and Mr Wills did not subject the transactions to any legal analysis. Finally, the fact (which I find) that the value of each licence was considerably in excess of the amount advanced in respect of it and was believed by Mrs Wills and Longhurst to be so, is more consistent with a transaction by way of secured loan than with one of sale and purchase. If the parties had considered the transaction to be one of sale and purchase with an option to re-purchase it is likely that the consideration would have been more reflective of market value. For the above reasons I find that the subject transactions were by way of mortgage rather than sale.
The defendants’ contention that no equity of redemption came into existence
- The defendants’ contend that even if the agreements are to be characterised as secured loans rather than agreements for sale, there can be no mortgage and hence no equity of redemption as the licences were incapable of assignment by way of security or otherwise. The argument is as follows. The licences arising under TLAs with TEGA and AVESCO dated 19 February 2003 are simply the benefit of the TLAs, which includes the contractual right to enter cars in certain races and the rights to certain payments from TEGA. Clause 12.1 provides that the rights and obligations created by the TLAs are specific and personal to the Team. The consequence of this and other provisions of the TLAs, is that the licences are not assignable.
- Although each TLA provides for assignment of licences, a so-called assignee is required to enter into a “Deed of Accession”. The legal effect of the Deed of Accession is the termination of the TLA between TEGA and the licensee and the creation of a new contract between TEGA and the new party (on the same terms as the previous TLA between the licensee and TEGA). That process affects a novation, under which the former licence ceases to exist. The non-existent licences cannot be the subject of security.
Are the licences assignable?
- Accepting for the purposes of argument that the licence agreements create personal obligations and personal relationships of the sort which would normally render the rights under the TLAs unassignable, the rights are nevertheless assignable because that is the parties’ agreement. Clause 12 of the TLAs makes specific provision for the assignment and sub-licensing of licences.
- Consequently, if the defendants are to succeed on the point under consideration, it must be on the basis that the Deeds of Accession extinguished the licences and, by novation, brought new licences into existence.
Was there a novation of the Team Licence Agreement?
- It is not entirely clear that there has been a novation of each TLA. Under the Deed of Accession entered into in each case, the assignee agrees with TEGA, AVESCO and the other teams in the Competition (“the continuing parties”) to be bound by the TLA from the date on which the assignee is registered as a member of TEGA. The continuing parties from that date release the assignor “to the extent specified in the TLA and the assignee” agrees to be bound by the terms of the TLA as if the assignee were named in the TLA as a party instead of the assignor.
- The above provisions are strongly suggestive of a novation but other provisions of the Deed of Accession leave room for doubt. The Deed recites that the transferor is currently the holder of shares in TEGA and that the transferor has “agreed to sell and transfer… the Sale Shares and to assume the liabilities of the Transferor in respect of the Sale Shares”. There is no reference in the recital to the assignment of rights generally under the TLA and it further states:
“The Transferor wishes to be released from its obligations under the Agreement in respect of the Sale Shares as from the Effective Date.”
- Under cll 2 and 3 the assignee is “deemed to be a party and…a holder of Shares” and agrees to be bound by the TLA. Under cl 3, however, the assignee’s rights are limited to the entitlement “to exercise all of the rights, privileges and benefits of the [assignor] in respect of the Sale Shares”. Under cl 4 the transferor is discharged “to the extent specified” in the TLA. The TLA does not contain a provision which addresses the nature of the rights and obligations (if any) of the assignor of the rights under the TLA.
Was Team Dynamik’s equity of redemption extinguished?
- If it is correct that the entering into of the Deed of Accession has resulted in a novation, each of the TLAs will have been discharged. But is the extinguishment of Team Dynamik’s equity of redemption a necessary consequence of novation? The defendants argue that, as Team Dynamik is not a party to the new licences and as they are personal to Longhurst, Team Dynamik can have no proprietary interest in them. It is further contended that it is not legally possible for a licensee to hold its own personal licence as security for a contractual obligation owed to it by a stranger.
- Lord Macnaghton famously said in Noakes & Co Limited v Rice ( AC 24 at 30):
“Redemption is of the very nature and essence of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself. And it is, I think, as firmly settled now as it ever was in former times that equity will not permit any device or contrivance designed or calculated to prevent or impede redemption. It follows as a necessary consequence that, when the money secured by a mortgage of land is paid off, the land itself and the owner of the land in the use and enjoyment of it must be as free and unfettered to all intents and purposes as if the land had never been made the subject of the security.”
- The genesis of this principle is explained as follows by the learned authors of Coote’s Law of Mortgages (8th ed.):
“The right of redemption is an essential and inseparable attribute of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself. The absolute forfeiture of the estate at common law, on breach of the condition, was, in the eye of equity, an injustice and hardship, although perfectly accordant with the system on which the mortgage itself was grounded. The Courts of Equity, founded on the principles of the civil law, gradually succeeded, by an introduction of those principles, in moderating the severity with which the common law followed the breach of the condition. Though they could not alter the legal effect of the forfeiture at common law, they operated on the conscience of the mortgagee, and, acting in personam, they declared it unreasonable that he should retain for his own benefit what was intended as a mere security; and they adjudged that the breach of the condition was in the nature of a penalty, which ought to be relieved against, and that the mortgagor had an equity to redeem on payment of principal, interest and costs, notwithstanding the forfeiture at law.” (citations omitted)
- It is later explained:
“It is as firmly settled now as it ever was in former times that equity will not permit any device or contrivance, designed or calculated to prevent or impede redemption…
It is therefore a well-established rule that equity will control even an express agreement of the parties, and will let a man loose from his agreement, and, even against his agreement, admit him to redeem a mortgage; and that whatever clause or covenant there may be in a conveyance, yet if upon the whole it appear to have been the intention of the parties that such conveyance shall only be a mortgage, or pass an estate redeemable, the Court will always construe it so, and reject any stipulation seeking to negative or fetter the right of redemption.” (citations omitted)
- Viscount Haldane L.C. explaining the in personam jurisdiction of the Court of Chancery in Kreglinger v New Patagonia Meat and Cold Storage Company Limited said:
“This jurisdiction was merely a special application of a more general power to relieve against penalties and to mould them into mere securities. The case of the common law mortgage of land was indeed a gross one. The land was conveyed to the creditor upon the condition that if the money he had advanced to the feoffor was repaid on a date and at a place named, the fee simple should revest in the latter, but that if the condition was not strictly and literally fulfilled he should lose the land for ever. What made the hardship on the debtor a glaring one was that the debt will remained unpaid and could be recovered from the feoffor notwithstanding that he had actually forfeited the land to his mortgage. Equity, therefore, at an early date began to relieve against what was virtually a penalty by compelling the creditor to use his legal title as a mere security.
My Lords, this was the origin of the jurisdiction which we are now considering, and it is important to bear that origin in mind. For the end to accomplish which the jurisdiction has been evolved ought to govern and limit its exercise by equity judges.”
- Assuming that novation occurred, the new licence agreements resulting from novation were the product of the terms of the mortgages. Under the mortgages, Team Dynamik was entitled to have its licences restored to its ownership if it repaid the moneys advanced by 1 December 2005. If the only way of achieving that result, as appears to be the case, was by the entering into of a further Deed of Accession, Longhurst was obliged to do all that was reasonably necessary to achieve that end.
- If there had been no express right on the part of Team Dynamik to have its licences back on repayment of the advances, such a right would have been conferred in each case by Team Dynamik’s equity of redemption. A mortgagor’s equity of redemption is an incident of the transaction of mortgage which entitles the mortgagor to claim in personam relief against forfeiture by the mortgagee. The fact that the chose in action the subject of the mortgage may change in the course of the transaction, or even be extinguished, will not necessarily exclude the mortgagor’s ability to obtain equitable relief. Equity looks to substance rather than form and seeks to do that that which is “practically just”. And the equity of redemption is not a right or concept attached to or inherent in the secured property itself: it is an incident of the mortgage transaction.
- There is no reason in principle why, in the circumstances explained above, the changes to the licences would prevent a court giving equitable relief on the basis that Longhurst’s interests in the new licences were held by it as security and could not be dealt with so as to prevent Team Dynamik getting back the licences which both parties intended it to hold on repayment of the advances. As a general proposition, conduct which has the effect of hampering redemption after the contractual date for redemption has passed is not permitted and equity will grant relief by allowing redemption. The remedy, which operates in personam, has as its foundation the prevention of unconscionable conduct. In cases such as this, unconscionability is to be found in the lender’s exercising rights which constituted, in substance, a penalty or a forfeiture.
The plaintiff’s redemption and tracing claims
- Paragraph 26 of the Statement of Claim alleges that Team Dynamik is entitled to relief against the forfeiture of its equity of redemption in the first licence and the second licence. Paragraph 36A of the Statement of Claim refers to para 29A which alleges, as is the fact, that Longhurst sold the second licence to Nemo Racing Pty Ltd for $1,250,000 plus GST, making a total of $1,375,000 on or about 7 December 2005. It is alleged that, in consequence, $950,000 is due and owing to Team Dynamik by Longhurst under cl 6.5 of “the second purported put and call option deed”. That sum is the difference between $1,375,000 and the $450,000 advanced by Longhurst to Team Dynamik in respect of the second licence. That claim is unsustainable as it is based on a sham document.
- That Team Dynamik is unable to obtain orders in respect of the redemption of the second licence was accepted in final addresses by Mr Morris QC who led Mr Brennan for Team Dynamik.
- Mr Fraser QC, who led Ms Hoch for the defendants, submitted that if the transactions gave rise to equities of redemption, the authorities showed that the proper form of relief was an account. In that regard he referred to Devlin v Surfers Paradise Investments Pty Ltd.
- That submission followed Mr Morris’s intimation in the course of Mr Fraser’s address that Team Dynamik would not be pursuing a claim for damages “beyond an account of the proceeds of sale of the one licence that was on-sold, redemption of the licence that is available to be redeemed and interest on the amount which [Team Dynamik] is entitled to have accounted for.”
- Mr Morris returned to the question of final relief in his address and submitted that the appropriate form of relief in respect of the second licence was “in effect a tracing claim in relation to the $1.25 million”. In written submissions, counsel for Team Dynamik submitted that “on the very worst view” Team Dynamik “has a statutory right to $800,000 (ie., the balance proceeds of sale after deduction of the outstanding principal sum of $450,000 and GST of $125,000 on the sale price) plus interest from 7 December 2005.” No authority was cited in support of Team Dynamik’s propositions in this regard and I do not accept them.
- The mortgagee is not a trustee whilst moneys remain owing under the mortgage or a trustee in respect of the power of sale.
- Devlin offers some support for the conclusion that an account is the appropriate remedy, as do Barns v Queensland National Bank Limited, McGinnis v The Union Bank of Australia Ltd; Pendlebury (supra); Sykes and Walker, Law of Securities and Meredith v Davis. The order for the account should address the proper measure of compensation.
- Both sets of orders, that is, in relation to redemption and account, need to be approached with care and consideration will need to be given to the precise form of the accounts and enquiries to be ordered. I invite Team Dynamik’s legal advisers to formulate the terms of an order which would give effect to these reasons.
Longhurst’s rights in respect of Mr Wilson’s driving fees
- Team Dynamik alleges that, pursuant to the agreement between it and Longhurst, Longhurst was entitled to deduct from sponsorship and appearance moneys the expenses of operating the Team Dynamik team. It is accepted that those expenses included moneys payable to Tingela Pty Ltd by way of commission on arranging sponsorships but it is alleged that moneys claimed by Mr Longhurst in that regard may not be deducted. The other disputed deduction is $133,000 on account of the driving fees paid to Mr Max Wilson in 2005.
- The defence claims an entitlement on the part of Longhurst to deduct from the licence income $133,000 on account of Mr Wilson’s driving fees. Team Dynamik’s case in relation to the driving fees is difficult to glean from the pleadings. It is common ground that Longhurst was entitled to deduct from the licence income expenses incurred by it in connection with maintaining the licences. Mr Wills’ evidence is to the effect that he did not agree to pay Mr Wilson’s driving fee. Mr Longhurst’s evidence is to the contrary. The surest guide to what was or was not agreed in this regard is the contents of contemporary documents.
- In his email of 14 July 2005 to Longhurst, Mr Wills stated inter alia:
“In addition to the downsizing detailed above I remind you of our memorandum of understanding was for you to drive in the 2005 season and Team Dynamik would provide travel and accommodation for you. There is provision for a ‘nominee’ driver however this provision does not allow for any additional remuneration to be made to that driver. I am happy for your choice of nominee driver to stand – however remuneration of such is outsider the agreed terms of the contract and as such becomes your responsibility.”
- On 10 August 2005 in another email to Longhurst, Mr Wills raised the question of Team Dynamik’s financial difficulties and mentioned Team Dynamik’s options of:
- “Maintaining our agreement and running your car only until the end of the season and leasing the other licence
- …the outright sale of one licence…and then potentially forming a partnership with the purchaser or as a precursor to selling all at the end of the year.”
- He then expressed a preference for entering into a partnership with Longhurst and advanced, as one of his reasons:
“That I have also made ongoing investment in the arrangement in good faith by way of payment for Max’s services which are not included in our agreement in any way.”
- The 10 August 2005 email commences with reference to a conversation between Mr Wills and Mr Longhurst on 10 August. It would seem from that email that Mr Wills resiled from his position in the 14 July 2005 email that Mr Wills’ fees were Longhurst’s responsibility. In my view the reference to “investment in the arrangement in good faith by way of payment” necessarily connotes acceptance by Mr Wills of the obligation to pay Mr Wilson’s driving fees notwithstanding the terms of the parties’ agreement. Accordingly, I find that Longhurst was entitled to deduct from the licence income $133,000 for Mr Wilson’s driving fees. Mr Morris submitted that any such new agreement was not supported by consideration. That contention was not pleaded or averted to prior to final addresses. But in any event, I doubt that it is correct. The concession was made as an inducement to Mr Longhurst to continue negotiations with Mr Wills and to enter into an agreement of the nature of that proposed by Mr Wills.
Longhurst’s entitlement to commission
- Paragraph 57 of Longhurst’s counterclaim alleges an oral agreement that Longhurst would receive 10 percent commission for sponsorship introduced to the plaintiff. It is further alleged that in about April 2005 Longhurst introduced sponsorship to Team Dynamik in respect of WOW in the sum of $308,000 and in respect of BP the sum of $49,500. Team Dynamik pleads that Longhurst deducted commission of $35,750 and paid it to Tingela pursuant to an agreement between Longhurst and Tingela. In the premises it is alleged that Team Dynamik has paid Longhurst any commission to which it is entitled. Team Dynamik raises an estoppel argument in the alternative. It was not pressed in submissions and the evidence does not support it.
- Mr Wills admitted promising to pay the 10 percent commission to Longhurst for securing sponsorships. He subsequently made a similar promise to Mr Speairs. After reaching agreement with Mr Speairs, Mr Wills did not attempt to vary his agreement with Longhurst although he had the understanding that Longhurst would continue to seek sponsorships. He was aware that Mr Longhurst was engaged in conferring with potential sponsors with the view to obtaining sponsorships for Team Dynamik’s team.
- There is evidence that Mr Longhurst was an effective cause of obtaining the WOW sponsorship and it follows that he is entitled to commission on the sponsorship moneys received from WOW. In case it is not obvious from the above conclusion, I do not accept Mr Wills’ oral evidence as to the conversation with Mr Longhurst in which Mr Longhurst is said to have agreed that Mr Speairs only was entitled to commission. The evidence does not support Longhurst’s claim for commission in respect of any sponsorship other than that of WOW.
- Claims by both parties based on the sham documents were abandoned. Claims made against the second defendants personally were not pursued. Claims made under the Trade Practices Act 1974 (Cth) were not persisted in and, in any event, lacked evidentiary foundation.
- Longhurst was substantially successful on its counter-claim for commission and succeeded in establishing that Team Dynamik was responsible for Mr Wilson’s driving fees.
- Team Dynamik succeeded in its claims that each advance was by way of secured loan rather than sale with an option to re-purchase. Each such transaction gave rise to an equity of redemption. In the case of the second licence the equity of redemption was extinguished by an unlawful sale. Team Dynamik’s remedies are discussed in paragraphs  to  and its legal advisors are invited to bring in draft minutes of order.
 (1985) 157 CLR 177 at 192.
 32 Halsbury’s Laws of England, 4th ed, para 407; Noakes & Co. Ltd v Rice  AC 24 at 30; Tyler E L G, Fisher and Lightwood’s Law of Mortgage, 8th ed, chapter 27.
 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 331 per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ referring to Latec Investments Ltd v Hotel Terrigal Pty Ltd (in Liq) (1965) 113 CLR 265 at 274 – 275; and Maitland, Equity, 2nd ed rev (1936), pp182-183.
 32 Halsbury’s Laws of England, 4th ed, para 409.
 Kreglinger v New Patagonia Meat and Cold Storage Company Limited  AC 25 at 47, and see also Barton v Bank of New South Wales (1890) 15 AC 379 at 380, 381; and In re Lovegrove; Ex parte Lovegrove & Co (Sales) Ltd  Ch 464 at 495.
 Stoneleigh Finance Ltd v Phillips  2 QB 537 at 569.
 (1933) 1 Ch 1 at 27, referred to with approval in Stoneleigh Finance Ltd v Phillips  2 QB 537 at 568.
 See eg Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd  2 KB 660; Nokes v Doncaster Amalgamated Colleries Limited  AC 1014; and C B Peacocke Land Co Ltd v Hamilton Milk Producers Co Ltd  NZLR 576 at 582-3.
 For the necessary elements of novation, see the reasons of Windeyer J in Olsson v Dyson [1968-1969] 120 CLR 365 at 380 and Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 at 320 per Powell J.
 Deed of Accession, clause 2.
 Deed of Accession, clause 3.
 Robinson v Podosky  St R Qd 118 at 122.
 Vol 1, pp 11-12
 Vol 1, pp 12, 13.
  AC 25 at 35.
 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 606,607.
 See eg. Ashburner, A Concise Treatise on Mortgages, Pledges and Liens (1897) p 28; and Rakestraw v Brewer  2 PW 509.
 Bridgewater v Leahy (1998) 194 CLR 457 at 473; and Erlinger v New Sombrero Phosphate Company  3 A.C. 1218 at 1278, 1279.
 Knightsbridge Estates Trust Ltd v Byrne  1 Ch 441 at 456.
 Kreglinger v New Patagonia Meat and Cold Storage Company Limited (supra); re Modular Design Group Pty Ltd (1994) 35 NSWLR 96 at 103; and Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194 at 202.
 (1998) 1 Qd R 404.
 Turner, The Equity of Redemption (1931), 169, et seq.
 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 at 700,701; Tse Kwong Lam v Wong Chit Sen  1 WLR 1349 at 1354 et seq, and Barns v Queensland National Bank Ltd (1906) 3 CLR 925 at 942, 943.
 at 410.
 (1935) VLR 161.
 at 692.
 (5th ed), 121.
 (1933) 33 SR (NSW) 334.
 Cf. National Bank of Australasia v United Hand-in-Hand Band of Hope Company (1879) 4 AC 391 (P.C.); Pendlebury (supra).
 Paragraph 51.
- Published Case Name:
Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd & Ors
- Shortened Case Name:
Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd
 QSC 32
22 Feb 2007
No Litigation History