- Unreported Judgment
- Appeal Determined (QCA)
 QCA 228
SUPREME COURT OF QUEENSLAND
Securities Exchange Guarantee Corporation Limited v Samuel Holdings Pty Ltd  QCA 228
SECURITIES EXCHANGE GUARANTEE CORPORATION LIMITED
Appeal No 13777 of 2010
Court of Appeal
General Civil Appeal
Supreme Court at Brisbane
9 September 2011
18 May 2011
Margaret McMurdo P and Chesterman JA and Margaret Wilson AJA
1. Appeal dismissed.
2. Cross-appeal allowed.
3. The declaration made by the Chief Justice be varied by substituting “27 March 2008” for the date “17 December 2008” where it appears.
4. Appellant to pay the respondent’s costs of the appeal.
5. No order for the costs of the cross-appeal.
CORPORATIONS – INSOLVENCY – LIQUIDATION – COMPENSATION – where the respondent applied to Opes Prime Stockbroking Limited (OP) to open a “margin lending account” – where the respondent’s director requested the respondent’s stockbrokers to purchase shares in Arrow Energy Limited – where the respondent’s director subsequently entered into discussions with OP and agreed upon a loan – where the respondent’s stockbrokers erred in purchasing the shares in another entity’s name – where the stockbrokers subsequently realised their mistake but completed the purchase and then sold the shares quickly – where OP went into liquidation – where the respondent subsequently claimed compensation from the National Guarantee Fund administered by the appellant – where the claim was rejected by the appellant – where the primary judge declared that the appellant should allow the respondent’s claim – where the appellant now contends that the requirements of Regulation 7.5.64(1) of the Corporations Regulations 2001 (Cth) have not been met – whether the property was received by OP “in the course of, or in connection with” its securities business
CORPORATIONS – GENERALLY – CORPORATIONS LEGISLATION – where the primary judge held that the monies paid by the respondent to OP were received on a statutory trust – where the appellant argues that s 981A of the Corporations Act 2001 (Cth) was intended to apply to money paid to a financial services licensee for use in acquiring a financial product on behalf of a client and that the money in question was not paid in connection with the provision of any financial service – whether the money was received by OP on behalf of the respondent or because OP was a trustee of the money for the respondent – whether the money was lent by the respondent to OP
Corporations Act 2001 (Cth), s 9, s 761A, s 764A, s 776A, s 776C(1), s 766C(3), s 888A, s 888F, s 888H, s 889B, s 981A, s 981H, s 1017E
Corporations Regulations 2001 (Cth), reg 7.5.08, reg 7.5.64, reg 7.5.67, reg 7.5.78, reg 7.5.79
Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361;  FCA 594, applied
Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371;  HCA 25, considered
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd  AC 32;  UKHL 4, cited
Moses v Macferlan (1760) 97 ER 676;  EngR 713, cited
National Securities Exchange Guarantee Corporation v McKenzie (1991) 9 ACLC 573, considered
R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374;  HCA 2, considered
Waugh Hotel Management Pty Ltd v Marrickville Council  NSWCA 390, applied
J D McKenna SC, with M J Darke, for the appellant
B W Walker SC, with A C Stumer, for the respondent
Clayton Utz for the appellant
HopgoodGanim Lawyers for the respondent
- MARGARET McMURDO P: I agree with Chesterman JA's reasons for dismissing this appeal. The respondent was entitled, as the primary judge concluded, to compensation from the National Guarantee Fund under Pt 7.5 Ch 7 Corporations Act 2001 (Cth) and reg 7.5.64 Corporations Regulations 2001 (Cth) in respect of its payment to Opes Prime Stockbroking Limited (OP).
- But I consider it is unnecessary to determine the precise character of the respondent's payment to OP had their Securities Lending and Borrowing Agreement (SLBA) come into effect in the purchase of the 100,000 shares in Arrow Energy Limited (the Arrow shares). It was sufficient to conclude that the payment was not a loan.
- As Chesterman JA explains, because the payment was not a loan, reg 7.5.67 did not apply to exclude the respondent's right to claim from the fund under reg 7.5.64. OP received the respondent's money in connection with its securities business. As the SLBA never came into effect in respect of the purchase of the Arrow shares, it followed that OP held the money on the common count as had and received by OP to the use of the respondent where there was a total failure of consideration. OP therefore held the money "on behalf of" the respondent under reg 7.5.64.
- It is true that, in National Securities Exchange Guarantee Corporation Ltd v McKenzie, Marks J accepted as correct the proposition that a claim under s 122R Securities Industry (Victoria) Code (a provision comparable to reg 7.5.64) cannot succeed unless the money or property to which it relates was received on trust. In reaching that conclusion his Honour noted that so much was conceded by the parties and that he considered himself bound by the High Court's decision in Daly v Sydney Stock Exchange Ltd.
- Daly concerned s 58 Securities Industry Act 1970 (NSW) and s 97(1) Securities Industry Act 1975 (NSW) which differed in significant respects, both from s 122R(1) with which Marks J was concerned, and also from reg 7.5.64(1). Dr Daly, who had lent money to a stockbroking firm on deposit until a suitable investment was identified, was unsuccessful in his claim for compensation under the fidelity fund established by s 97(1). Nothing said by Gibbs CJ (with whom Wilson and Dawson JJ agreed) or Brennan J (with whom Wilson J also agreed) required Marks J to conclude that a claim under s 122R could only succeed if the money or property was received on trust. The remedial nature of reg 7.5.64 supports a broad construction of its terms "and was so entrusted or received on behalf of, or because the dealer was a trustee of the property, for the person". In any case, the ordinary meaning of those terms as punctuated supports the conclusion that the regulation may apply where money or property is received on behalf of the person, even if not on trust. In my view, reg 7.5.64 applies to the unusual factual scenario in this case.
- Those conclusions are sufficient to dispose of the appeal. Although Chesterman JA's reasons for concluding that OP was a trustee of the respondent's money by reason of s 981H Corporations Act are persuasive, I consider it unnecessary to determine this issue. And nor is it necessary to determine whether the respondent held the money as trustee under s 1017E Corporations Act; or whether OP held the money on trust for the respondent because the parties did not intend that OP should become its beneficial owner.
- The respondent contended that it should have its costs of the appeal in accordance with reg 7.5.78 Corporations Regulations. But as the appellant correctly countered, that regulation applies where the appellant has allowed or disallowed a claim in whole or in part: see reg 7.5.78(1). This appeal concerns the respondent's claim to the primary judge under s 888H Corporations Act contesting the appellant's disallowance of its claim. Questions of costs under s 888H(4) are in the discretion of the court. Despite reg 7.5.78, I am not persuaded that there should be any departure in this case from the usual costs order in favour of a successful respondent.
- Subject to these observations, I agree with Chesterman JA's reasons. I also agree with the orders he has proposed.
- CHESTERMAN JA: The appellant (“SEGC”) administers the National Guarantee Fund (“Fund”), a statutory fund established to provide compensation for persons who suffer some kinds of loss as a result of dealing in a financial market with a dealer who becomes insolvent. The Fund is provided for by the Corporations Act 2001 (Cth) (“the Act”). Its monies come from levies upon members of the Australian Stock Exchange.
- Section 889B of the Act provides that compensation for such losses is to be paid from the Fund. By s 888F SEGC is to determine claims for compensation on the Fund. Section 888A provides that the circumstances in which SEGC is to allow compensation from the Fund are those specified in the Corporations Regulations 2001 (Cth). Section 888H confers jurisdiction on the Supreme Court to determine claims rejected by SEGC. The section provides that if SEGC disallows a claim:
“…the claimant may bring proceedings in the Court to establish the claim … within 3 months of notice of the disallowance of the claim.”
- The respondent (“Samuel Holdings”) made a claim upon the Fund which SEGC rejected. It then sought a declaration that the claim should have been paid. On 6 December 2010 the Chief Justice declared that SEGC should allow Samuel Holdings’ claim and pay it $46,998 together with interest at five per cent per annum from 17 December 2008.
- SEGC has appealed against the declaration. Samuel Holdings has cross-appealed claiming that interest should have been awarded from 27 March 2008, the date it became entitled to make its claim against SEGC. SEGC concedes that if its appeal is unsuccessful the cross-appeal as to interest should be allowed.
- On or about 20 July 2007 Samuel Holdings by its sole director Mr Mather applied to Opes Prime Stockbroking Limited (“OP”) to open what might imprecisely be called a “margin lending account” with OP. The account was opened on 2 August 2007 but was not then utilised by Samuel Holdings because Mr Mather had negotiated another like account with Chimaera Financial Group Limited (“Chimaera”) for the provision of the same services that OP offered.
- On 18 March 2008 Mr Mather requested Samuel Holdings’ stockbrokers, Wilson HTM Investment Group (“Wilsons”), to purchase 100,000 shares in Arrow Energy Limited (“Arrow shares”). These were to be acquired in the name of Samuel Holdings and the purchase was to be funded, or partly funded, by OP. On 20 March 2008 Wilsons sent an email to Mr Mather confirming that settlement of the transaction would occur a week later, on 25 March 2008.
- In his discussions with Mr Boyle of OP Mr Mather had agreed upon a loan to valuation ratio of 60 per cent. That meant that Samuel Holdings would provide 40 per cent of the price of shares to be purchased and OP would provide the other 60 per cent of the purchase price. The price of the 100,000 Arrow shares was $177,616.04. Samuel Holdings’ 40 per cent equated to $74,600.
- On or about 20 March 2008 Mr Mather spoke to Mr Boyle and told him that he was transferring money for the purchase of the Arrow shares. At the same time Samuel Holdings borrowed the $74,600 from its bank by drawing on its overdraft and transferred the amount to OP, which credited its account with the amount.
- Because of a mistake made by Wilsons the Arrow shares were bought in Chimaera’s name rather than in Samuel Holdings’ name. When the mistake was discovered Wilsons completed the purchase, as they were obliged to, but then sold the shares quickly, on 28 March 2008.
- On 27 March 2008 OP went into receivership, later administration and then liquidation. When the receivers were appointed the sum of $74,600 was credited to Samuel Holdings’ account with OP. On 26 November 2008 Samuel Holdings claimed compensation from the Fund. The claim was rejected on 22 April 2010. Samuel Holdings has received a dividend of $27,602 from the administration of OP. The outstanding balance, the subject of the declaration made by the Chief Justice, was $46,998.
- The terms of the Agreement between Samuel Holdings and OP were contained in a document entitled “Facility Terms” which included a Securities Lending and Borrowing Financial Services Guide (“the Agreement”) which Mr Walker SC, who appeared with Mr Stumer for Samuel Holdings, rightly described as barbarously expressed and Byzantine in complexity. The parties helpfully agreed upon a description of a typical transaction under the Agreement. The description was:
“(a)The ‘Client’ would identify Securities in which it intended to invest and would make a ‘Borrowing Request’ to OP in respect of those Securities;
(b)The ‘Client’ would deposit an amount of ‘Collateral’ with OP either in the form of ‘Securities’ or ‘Cash Collateral’. The amount or value of the Collateral would depend upon the ‘Margin’ agreed between the parties;
(c)OP would provide funds in the form of a margin loan for the Client to purchase an agreed quantity of the specified Securities;
(d)The Securities purchased would be transferred to OP which would obtain full beneficial and legal title to them. In that transaction, the Agreement designated the Client as the ‘Lender’ of the Securities and OP as the ‘Borrower’.
- OP would be obliged to transfer back to the Client ‘Equivalent Collateral’ and ‘Equivalent Securities’ at the conclusion of the transaction (for example, when the Client repaid the funds used to purchase the Securities).”
- The Agreement identified OP by name and Samuel Holdings as “the client”. Relevant terms were:
“1 Loans of Securities
The Lender will lend Securities to the Borrower, and the Borrower will borrow Securities from the Lender, in accordance with the terms of this Agreement regardless of which party is the Lender. In all cases Opes Prime must have received from the Client and accepted (by whatever means) a Borrowing Request, regardless of which party is the Lender.”
- The term “Borrowing Request” was defined in cl 22 as follows:
“Borrowing Request means a request made orally or in writing, in a form approved by the Lender, by the Borrower to the Lender pursuant to clause 1.1 specifying, as necessary:
(a)the description, title and amount of the Securities required by the Borrower;
(b)the description (if other than Australian currency) and amount of any Collateral to be provided;
(c)the proposed Settlement Date;
(d)the duration of such loan (if other than indefinite);
(e)the mode and place of delivery, which will, if relevant, include the bank, agent, clearing or settlement system and account to which delivery of the Securities and any Collateral is to be made;
(f)the Margin in respect of the transaction (if different from that provided in clause 22); and
- the Fee.”
- The use of the term “Borrow” and “Lend” is, as the Chief Justice noted, a reflection of the usage of those who transact business in the financial services market. The terms do not have their usual connotation. Relevantly cl 3.4 provided:
Notwithstanding the use of expressions such as ‘borrow’, ‘lend’, ‘Collateral’, ‘Margin’, ‘redeliver’ etc., which are used to reflect terminology used in the market for transactions of the kind provided for in this Agreement, all right title and interest in and to Securities ‘borrowed’ or ‘lent’ and ‘Collateral’ which one Party transfers to the other in accordance with this Agreement will pass absolutely from one Party to the other free and clear of any liens, claims, charges or encumbrances or any other interest of the Transferring Party or of any third party (other than a lien routinely imposed on all securities in a relevant clearance system) without the transferor retaining any interest or right to the transferred property, the Party obtaining such title being obliged only to redeliver Equivalent Securities or Equivalent Collateral, as the case may be. Each Transfer under this Agreement must be made so as to constitute or result in a valid and legally effective transfer of the Transferring Party’s legal and beneficial title to the recipient.”
- Also relevant is cl 2 of the facility term. It provided:
“2 Delivery of securities
The Lender will procure the delivery of Securities to the Borrower or deliver such Securities in accordance with the relevant Borrowing Request together with appropriate instructions for or instruments of transfer (if necessary) duly stamped (if necessary) and such other instruments (if any) as required to vest title absolutely in the Borrower.”
- Upon delivery the title in the delivered securities vests in the “borrower”. Clause 3 provides:
“3 Title, Distributions and Voting
3.1(Passing of Title)
The Parties must execute and deliver all necessary documents and give all necessary instructions to procure that all right, title and interest in:
(a)any Securities borrowed pursuant to clause 1;
(b)any Equivalent Securities redelivered pursuant to clause 6;
(c)any Collateral delivered pursuant to clause 5;
(d)any Equivalent Collateral redelivered pursuant to clauses 5 or 6;
will pass absolutely from one Party to the other, free from all liens, charges, equities and encumbrances, on delivery or redelivery of the same in accordance with this Agreement. In the case of securities, Collateral, Equivalent Securities or Equivalent Collateral title to which is registered in a computer based system which provides for the recording and transfer of title to the same by way of electronic entries, delivery and transfer of title will take place in accordance with the rules and procedures of such system as in force from time to time.”
- Clause 4 dealt with fees. It provided:
In respect of each of the loan of Securities:
(a)for which the Collateral is cash, the Collateral Taker must pay a fee to the Collateral Provider in respect of the amount of that Collateral, calculated at the rate initially as agreed by them (and then as … varied); and
- the Client must pay a fee to (OP) for each loan of Securities in the amount determined from time to time by (OP) and agreed by the client.”
- “Collateral” was defined as cash or “ASX Traded Shares” or such other securities as the parties agreed upon. A “Collateral Provider” was “the Party that provided … the delivery of Collateral to the other Party” and the “Collateral Taker” was the party “to whom or for whose benefit Collateral was delivered”.
- Clause 5 provided:
5.1(Borrower’s Obligation to Provide Collateral)
The Client as Borrower or Lender undertakes to deliver to or to deposit with (OP) or its Nominee (or in accordance with (OP)’s instructions):
(a) Collateral of the kind specified in the relevant Borrowing Request or as otherwise agreed between the Parties; and
(b) appropriate instructions for transfer or instruments of transfer duly stamped (if necessary) and such other instruments as may be requisite to vest title to them in (OP) simultaneously with delivery of the Borrowed Securities, in accordance with this clause 5.
(a)(Adjustments to Collateral)
Subject to …
(i)The aggregate Value of the Collateral delivered to … (OP) … will from day to day and at any time be at least the aggregate of the Required Collateral Values in respect of such loans.
(ii)If at any time the aggregate Value of the … Collateral … exceeds the aggregate of the Required Collateral Values …, (OP) must (on demand) repay such Cash Collateral or redeliver to the Client such Equivalent Collateral … which will eliminate the excess.
(iii)If at any time the aggregate Value of the Posted Collateral … falls below the aggregate of the Required Collateral Values … the Client must (immediately on demand) provide such further Collateral to (OP) which will eliminate the deficiency.
5.3(Required Collateral Value)
For the purposes of clause 5.2(a) the Value of the Posted Collateral … must be equal to the aggregate of the Value of the borrowed Securities and the applicable Margin (Required Collateral Value).”
- A comparison between the “typical transaction” the parties described and the terms of the Agreement shows that no obligation was imposed upon OP to lend money despite the transaction being, as the parties contemplated, “a margin loan”. In this regard one might note that the effect of cl 5.2 was to adjust the value of securities transferred to OP by the client relative to the money provided by OP in order to maintain the pre-determined ratio by requiring, as the case may be, OP to refund securities or money to the client or the client to pay additional sums or provide additional securities to OP.
- Another remarkable feature of the Agreement is that the shares, which the paradigm contemplates will be acquired for the client’s economic benefit but are to be provided to OP as security for the margin loan, are transferred absolutely to OP which can deal with them as it thinks fit. In that regard OP’s obligation, when the loan comes to an end by any of the circumstances described in the Agreement, is to transfer equivalent collateral or equivalent security. The latter is defined to mean:
“…securities of an identical type, nominal value, description and amount to particular Securities borrowed and such term will include the certificate and other documents of or evidencing title … . If and to the extent that such Securities are partly paid or have been converted, subdivided, consolidated, redeemed, made the subject of a takeover, capitalisation issue, rights issue or events similar … the expression will have the following meaning … .”
- As Finkelstein J pointed out in Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361 at 367 the Agreement is meant to give the client, the lender of securities, the right to dividends and other benefits which it would be entitled to had it acquired the shares itself. In his Honour’s description:
“… the clauses attempt to “manufacture” [for the client] a contractual equivalent to the beneficial interest it would have retained had it not transferred shares to [OP].”
- Samuel Holdings’ right to claim compensation from the Fund is found in Regulation 7.5.64(1), which provides:
“(1)A person may make a claim in respect of property if:
(a)a dealer has become insolvent at a particular time (whether before or after the commencement of this regulation); and
(b)at an earlier time (whether before or after that commencement), the property was, in the course of, or in connection with, the dealer’s securities business entrusted to, or received by:
(i)if the dealer was, at the earlier time, a partner in a participant – the participant, or a partner in, or an employee of, the participant; or
(ii)in any other case – the dealer or an employee of the dealer;
and was so entrusted or received on behalf of, or because the dealer was a trustee of the property for, the person (other than an excluded person in relation to the dealer); and
(c) at the time the dealer became insolvent, the obligations of the dealer, or of a participant of which the dealer is a partner, as the case requires, to the person in respect of the property have not been discharged.”
- It was common ground at trial and on appeal that Samuel Holdings’ claim satisfied some of the requirements of the Regulation. They were:
- At all material times until 27 March 2008 Opes Prime Stockbroking Limited (“Opes”) was a “dealer” in terms of that provision.
- At such times Opes carried on a “securities business” in terms of the Regulation.
- On or about 20 March 2008 the applicant deposited $74,600 with Opes, and Opes credited that amount to the applicant’s account with Opes.
- That amount constituted “property” in terms of the Regulation.
- On 27 March 2008 Opes became insolvent within the meaning of the Regulation. (It was then placed into receivership and administration, and liquidated on 15 October 2008, then made subject to a scheme of arrangement on 4 August 2009.)
- The administrators and liquidators of Opes have made distributions of dividends to the applicant, following its claim for repayment for the amount of $74,600, totalling $27,602, so that the applicant’s claim is currently limited to $46,998 (together with a claim for interest).
- The SEGC has disallowed the applicant’s claim under the Regulation, a claim for payment from the National Guarantee Fund administered by the SEGC.
- Regulation 7.5.64(2) provides, in effect, that SEGC must allow a claim if it appears that subregulation 1 has been satisfied and “the obligations of the dealer … to the claimant in respect of the property have not been discharged.” Subregulation 3 provides that if the property is money SEGC must pay an equal amount to the claimant.
- Regulation 7.5.67 is also relevant. It provides:
“If, at the time when a dealer becomes insolvent:
(a)a person has lent money to the dealer; and
(b)the liability of the dealer to repay the money remains undischarged;
this Subdivision (Subdivision 4.9) does not, because of the dealer having become insolvent at that time, entitle the person to make a claim in respect of the money.”
- The requirements of Regulation 7.5.64(1) which were in dispute, and which SEGC claimed had not been satisfied, were whether:
(a)The property (the sum of $74,600) was received by OP “in the course of, or in connection with” its securities business;
(b)Whether the money was received by OP on behalf of Samuel Holdings or because OP was a trustee of the money for Samuel Holdings;
(c)Whether the money was lent by Samuel Holdings to OP.
- The Chief Justice held that the money was paid in connection with OP’s securities business; that it was not received on behalf of Samuel Holdings but OP was a trustee of the money by reason of s 1017E and s 981H of the Act; and the money was not a loan.
- SEGC takes issue with each of these findings. It argues that the money was not received in the course of or in connection with OP’s “dealer’s securities business”: that neither s 1017E or s 981H applied so as to make OP a trustee of the money: and that the money was lent by Samuel Holdings to OP.
- Samuel Holdings supports the findings and reasons of the Chief Justice and by notice of contention, argues that:
(a)Clause 3.4 of the agreement did not apply to the $74,600 so as to transfer beneficial ownership to OP;
(b)Accordingly the money was received by OP “on behalf of” Samuel Holdings and so came within Regulation 7.5.64;
- The money was held on trust for Samuel Holdings because the parties did not intend that OP should become the beneficial owner of the property.
- The Chief Justice’s reasons for finding that OP received the money in connection with the securities business were these:
“For Sub-division 4.9, Regulation 7.5.08(a) relevantly defines a “securities business” as “a financial services business dealing in securities”. The term “financial services business” is defined in s 761A as “a business of providing financial services”, one of which is dealing in a financial product, of which securities are a type. The term “dealing” is defined in s 766C(1) to include applying for, acquiring, issuing or disposing of a financial product. By s 766C(3) a person does not “deal” in the financial product if doing so on that person’s own behalf.
Opes was to acquire the shares, financing the acquisition, with the security of the applicant’s “collateral”. It was to hold the shares on terms which would then benefit the applicant financially in various ways: by cl 3.2(a) of the “facility terms”, Opes was obliged to pay the applicant the equivalent of any income paid by the issuer of the shares, for example by way of dividend; by cl 3.2(b) upon the return of “equivalent securities”, the applicant’s right to take the benefit of rights relating to conversion, sub-division, consolidation, pre-emption etc was preserved; and by cl 6, with the applicant’s right to the provision of “equivalent securities” in certain circumstances, the applicant retained the benefit of any increase in the value of the shares.
To suggest the Opes’ role was limited to financing ignores the feature that Opes would hold the shares, with those sorts of entitlements accruing in favour of the applicant. Because of those entitlements, it cannot be said that Opes would have held the shares only on its own behalf. The applicant also had a substantial interest in the matter. The contention for the SEGC was too narrowly put and, as Mr Stumer submitted, other aspects apart failed to make proper allowance for the reference to a deposit of money “in connection with” Opes’ securities business.”
- Before turning to the respective arguments it is necessary to notice some statutory definitions. Regulation 7.5.08 defines “securities business” to mean “a financial services business of dealing in securities”. A “financial services business” is defined by s 761A to mean “a business of providing financial services”. A “financial service” is, according to s 776A of the Act, provided if the person deals in a “financial product”. That term is defined by s 764A to include “a security”. “Dealing” in a financial product is defined by s 766C(1) to include acquiring a financial product (i.e. a security) or disposing of a financial product. By s 766C(3) a person does not deal in a financial product if he does so on his own behalf, subject to an irrelevant exception.
- The summary of these provisions is that a person who acquires or disposes of securities other than “on their own behalf” will be conducting a securities business. The Arrow shares were “a security”.
- SEGC argued, firstly, that OP did not provide any stockbroking services to Samuel Holdings and the Agreement did not contemplate such a service, and that OP received the $74,600 in the course of its margin lending business which had no requisite connection to its “dealer’s securities business”.
- Samuel Holdings faintly resisted the first contention, but I would accept SEGC’s point, that OP did not relevantly act as Samuel Holdings’ stockbroker. That does not answer the question whether the money was received by OP in connection with its securities business. It is no answer to say that the monies were received “in the course of its margin lending business”. The issue between the parties is to be determined by the application of the words found in Regulation 7.5.64(1) to the facts. It is not helpful to approach the construction of the Regulation by assuming that it applies to transactions with a particular designation, such as stockbroking, but not to a transaction with a different designation, such as a “margin lending business”. One must look at the transaction in question to see if it fits within the words of the Regulation, without preconceived notions of what fits and what does not.
- The nub of SEGC’s argument is that if the transaction had proceeded as intended the Arrow shares once acquired would have vested in OP absolutely so that any dealing in them would have been on OP’s own behalf and not on behalf of Samuel Holdings.
- SEGC is critical of the finding that “(OP) was to hold the shares on terms which would then benefit (Samuel Holdings) financially in various ways … .” It points out that on the terms of the Agreement OP did not have to hold the shares but could sell them, exchange them or charge them as it pleased and, as well, that “holding” securities does not fall within the definition of “dealing”.
- SEGC’s submission was:
“… had the purchase of (Arrow) shares proceeded, (OP) would (not) have acquired (or held) those shares on behalf of Samuel Holdings. Rather, (OP) would have acquired those shares from Samuel Holdings and on its own behalf in return for providing Samuel Holdings with the funds to purchase the shares as part of a securities lending transaction under the terms of the (agreement). In particular, the obligations … to which (OP) would have been subject under the (agreement) would not have meant that it acquired (or held) the shares on behalf of Samuel Holdings because performance of those obligations would not have depended on (OP) holding the shares at all.”
- The submission, in my opinion, ignores the economic reality of the transaction and focuses too narrowly on one aspect of it. While it is true that the Agreement provided for the transfer of securities from a client, such as Samuel Holdings, to OP which could then deal with the securities transferred as it chose, it also imposed obligations on OP measured by reference to the financial benefits that ownership of the securities would have conferred on the client had it retained them. OP was obliged to pay to the client the equivalent of the income paid by the issuer of the securities; and permit the client to elect to take the benefit of rights attaching to the securities; and return “equivalent securities” reflecting any increase in value to the client. See paragraph 29 of the reasons for primary judgment.
- The transaction did not benefit OP beyond the payment to it of a fee (interest) on the monies it advanced to assist with the purchase of securities. Any economic benefit which flowed from ownership of the shares, such as an increase in capital value in a rising market, would flow to the client, Samuel Holdings, by the transfer of the securities or the return of their equivalent when the margin loan came to an end. Any loss flowing from the ownership of the shares fell on the client by the need to provide “top up” security if the transferred shares fell in value so that OP always held money or property to the value of what it had provided.
- SEGC’s submissions focus too narrowly upon the ownership of the securities after their transfer from the client to OP and the latter’s complete freedom to deal with the securities until the expiration of the loan. Its submission is that where a dealer obtains full legal and beneficial title to securities, and has no obligations to its client in respect of them, the dealer acquires those securities on its own behalf. But the acquisition of securities by OP was only one part of the transaction contemplated and described by the Agreement. According to the typical paradigm the client would identify securities from which it hoped to profit, after which the client and OP would together provide the purchase price, in agreed proportions, and the shares once bought would be transferred to OP which was obliged to transfer them or their equivalent back, plus any dividends or their equivalent.
- SEGC’s submissions do not take into account the terms of the Agreement which operate to confer on the client the economic benefit (or detriment) from the acquisition and holding of the securities. Those terms providing for the return of collateral where the shares increase in value, or requiring additional collateral or securities where there is a decline in value, the return to the client of the securities or their exact equivalent together with any financial benefit that accrued or would have accrued to the owner of the shares in the meantime are ignored by SEGC’s submission. They are an integral part of the transaction described and provided for by the Agreement which was, obviously, I think, drafted to confer the economic benefit of the acquisition of security on the client.
- In these circumstances the proposed acquisition of the Arrow shares would have been, I think, an acquisition on behalf of the client, Samuel Holdings. OP was not acquiring the securities on its own behalf. It could not gain or lose by reference to the ownership of the shares during the period of the loan. It received a fee for providing money to help with the acquisition. By reason of the provisions relating to the transfer of the securities and the need to provide further securities or cash in the event the shares fell in value it would be protected against loss but only with respect to the monies it had advanced.
- Samuel Holdings points out that an essential part of the operation of the Agreement was that had OP disposed of the shares transferred to it during the term of the loan so that it was obliged to return equivalent securities it would have to acquire those, most usually by purchase on the market. That acquisition by OP would be one on behalf of the client and not OP’s own behalf.
- SEGC argues that such an acquisition would not be on behalf of the client but on behalf of OP which would buy the securities to avoid committing a breach of contract i.e. being unable to transfer equivalent securities as the Agreement required.
- This categorisation is not, I think, correct. In the situation just described OP would acquire the securities in order to transfer them to the client. The purpose of the acquisition would be to enable OP to perform its contractual obligation. It could, of course, perform the contract by acquiring the securities in the client’s name to avoid the necessity of a further transfer. If the contract were performed in that way the acquisition would surely be on behalf of the client. The question on whose behalf the acquisition was made cannot be answered by reference to the form in which the contract was performed. In both modes of performance the securities would be purchased so that they would become the property of the client. The acquisition would clearly be “on behalf” of the client.
- In my opinion the challenge to the finding, that the sum of $74,600 was received by OP in connection with its securities business, fails.
- One turns next to consider whether OP received Samuel Holdings’ money on behalf of Samuel Holdings, or was a trustee of the money. The Chief Justice held, as I mentioned, that the receipt was of trust monies, the trust arising by virtue of
s 1017E and s 981H of the Act, but rejected the submission that the money had been received on behalf of Samuel Holdings. The reason was that cl 3 of the Agreement passed title to the collateral upon its delivery so that OP received the money in its own right and on its own behalf. The Chief Justice said:
“Clause 3, on which the SEGC relies, refers to the passing of title to collateral upon “delivery…in accordance with this Agreement”. Clause 1.1 provides that “in all cases Opes Prime must have received from the client and accepted (by whatever means) a Borrowing Request, regardless of which party is the lender”. As emerges from paras 22-24 of Mr Mather’s affidavit filed 3 September 2001, the oral request made of Mr Boyle did not cover all of the matters required to constitute a “borrowing request”. There was no mention, for example, of the matters set out in paras (a), (c), (d), (e) and (g) of the definition of “borrowing request”. There was no “borrowing request” complying with the agreement.
But that did not mean that the moneys did not vest in Opes. I have concluded that the moneys were paid and received and retained as “collateral”. Clause 3.4 does provide that collateral transferred “in accordance with this Agreement” passes absolutely, and clause 1.1 says that Opes “must have received…and accepted” a borrowing request. But the absence of such a request did not deny the moneys their character as “collateral” where the parties were prepared to proceed in the absence of a borrowing request complying with the agreement. Mr McKenna referred to the particular waiver provision in cl 7.9. There is no reason why the parties should not be taken to have waived generally the requirement for the delivery of a fully-blown borrowing request precedent to the furnishing of the collateral. (I note also that cl 5.1(a) contemplated that the parties may agree upon the delivery of collateral of a kind different from that specified in any borrowing request.)
The consequence of cl 3.1 in these circumstances was that Opes gained title to the monies paid upon receipt, which excludes their being characterized as received “on behalf of” the applicant, notwithstanding that Opes never acquired the shares.”
- The notice of contention challenges the conclusion. In essence the point is that the Agreement did not take effect as intended and cl 3 did not pass title in the money to OP which, therefore, received it on behalf of Samuel Holdings. There are two points. One is that the operation of cl 3 depended upon Samuel Holdings making a “Borrowing Request” which did not happen. The second is that the Agreement did not take effect because of Wilsons’ failure to acquire the Arrow shares.
- The reason it was held that the money was not received on behalf of Samuel Holdings was that pursuant to cl 3.1 and 3.4 of the Agreement title to the money passed to OP on its receipt. Those clauses, however only apply to a transfer of money in accordance with the Agreement. That is made clear by express words appearing in both subclauses. Only transfers made in accordance with the Agreement, or under the Agreement, effect a transfer of absolute title. A prerequisite to such a transfer is the existence of a Borrowing Request. Clause 1.1 of the Agreement said so. It provided:
“In all cases (OP) must have received from the Client and accepted (by whatever means) a Borrowing Request … .”
- There was no Borrowing Request, and no document which answered the definition of a Borrowing Request. There was no oral agreement which might take its place. Nothing said between Mr Mather and Mr Boyle dealt with the subject matter of subclauses (a), (c), (d), (e) or (g) in the definition of Borrowing Request. The requirements of some of those subclauses might have been satisfied by the information contained in the confirmation note prepared by Wilsons when acquiring the Arrow shares but the note was sent to Chimaera, not OP.
- The trial judge thought that OP had waived the requirement for a Borrowing Request, referring to cl 7.9 of the Agreement. That, however, provides only that:
“[E]ither party may from time to time in accordance with market practice and in recognition of the practical difficulties in arranging simultaneous delivery of Securities, Collateral and cash transfers waive its right under this Agreement in respect of simultaneous delivery or payment … .”
It says nothing about dispensing with the requirement of a Borrowing Request.
- This is not a mere matter of formality. The transaction which the Agreement contemplated could not be consummated without the information which a Borrowing Request would have provided. Ignoring all other requirements, that in item (g) was essential. The parties had to agree upon the fee, calculated no doubt by reference to interest rates, for the provision by OP to the client of the amount of the “margin loan” to enable the acquisition of the identified securities to occur. The fee was OP’s reward for the risk it took in providing finance and for the use of its money. There could be no Agreement without consensus on the fee, and there was none.
- This was not a matter that could be the subject of waiver. The performance of the Agreement was at base dependent on the fee to be paid by the client for OP’s participation (to use neutral language) in the acquisition of the securities, the Arrow shares. Without agreement on the fee there was no Agreement.
- The other point is that the Agreement did not take effect, according to its terms or at all. The Arrow shares were not acquired whether on behalf of OP or Samuel Holdings; they were not transferred to OP which did not advance any part of the purchase price for the shares. There was nothing to which the terms of the Agreement could attach. With or without a Borrowing Request the terms of the Agreement could not take effect. A waiver of the requirement for a Borrowing Request would not have produced a transaction identifiable by, or referable to, the Agreement. Waiving the requirement for a Borrowing Request would not have produced an enforceable Agreement.
- Because the Agreement did not take effect none of its terms became operative. In particular cl 3.4 did not operate to vest the payment of $74,600 in OP. The money was instead paid pursuant to a consideration which wholly failed. It could therefore be recovered in an action on the common count, as money had and received. Although both OP and Samuel Holdings intended the sum of $74,600 to be collateral under the Agreement it did not take on that attribute because of the absence of a Borrowing Request, and the complete absence of performance of any of the terms of the Agreement.
- The consequence is, Samuel Holdings submits, that the monies were received by OP on behalf of Samuel Holdings. The argument developed in this way. First it is noted that s 9 of the Act defines “on behalf of” to include “on the instructions of”. Apart from the statutory exegesis:
“The phrase “on behalf of” is, as Latham CJ observed in R v Portus; Ex parte Federated Clerks Union of Australia, “not an expression which has a strict legal meaning”, it bears no single and constant significance. Instead it may be used in conjunction with a wide range of relationships, all however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing.”
Per Stephen, Mason, Murphy and Aickin JJ in R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 at 386.
- Next Samuel Holdings points to the remedial nature of Regulation 7.5.64 as providing a right to compensation for those who have suffered loss in connection with the insolvency of dealers. For that reason, it is said, the phrase “on behalf of” should not be confined narrowly but “interpreted to extend to all situations in which a dealer receives property from a client which the dealer is not entitled to apply for its own purposes”.
- Building on that contention which, I think, should be accepted, Samuel Holdings submitted that property is received on behalf of another, if it is received:
(a)“On the instructions of” that other; or
(b)In circumstances where the dealer may apply the money only at the direction of the other person; or
- In circumstances where the dealer has an obligation to account to the other person for the money.
Applying these concepts Samuel Holdings submitted it transferred the money to OP anticipating that the payment would be part of a wider transaction involving the acquisition of 100,000 Arrow shares. Consequently the money was received on the instructions of Samuel Holdings because it had told OP the money was to be used specifically and only for the purpose of the contemplated acquisition and, having received the money, OP was obliged to apply the money for that purpose, or as directed by Samuel Holdings if the transaction did not proceed.
- I accept the accuracy of the analysis. It is, in my opinion, correct to say that the money was received by OP on behalf of Samuel Holdings. The transaction having failed at inception OP gave no consideration for the payment, and the money could not be applied in accordance with the Agreement. OP received the money in the absence of a Borrowing Request so that at the time of receipt the Agreement was not effective. It never became effective because no Borrowing Request was received and no securities were acquired. Unless and until there was a Borrowing Request, and the Agreement became operative, the monies were paid and held on behalf of Samuel Holdings.
- Because there was a total failure of the consideration for which the money was paid it could have been recovered in an action the full designation of which was a claim “for money had and received by the defendant to the use of the plaintiff,” which itself indicates that the nature of the claim was to recover from the defendant monies which were not his. This consideration supports the description of the defendant’s receipt of the monies as a payment made to him on behalf of the plaintiff.
- The consequences for the appeal are that the requirements of Regulation 7.5.64(1) were satisfied. Those in dispute were whether the payment was received by OP in connection with its securities business, and whether it was received on behalf of Samuel Holdings. I have concurred in the trial judge’s determination on the first question. Differing from the trial judge I accept Samuel Holdings’ submission on its notice of contention that the money was received by OP on behalf of Samuel Holdings. Unless, therefore, the money was a loan so that Regulation 7.5.67 applied the declaration was properly made.
- That point can be quickly disposed of. The payment of $74,600 was not made by way of loan. It is, I think, doubtful that the payment would have taken on that character if the Agreement had operated according to its terms. Although described as “collateral” the payment was intended to be Samuel Holdings’ contribution to the purchase price of the Arrow shares. They were to be bought, and paid for, by funds jointly, though unequally, contributed by OP and Samuel Holdings. The proper analysis is, I think, that Samuel Holdings would have borrowed the balance of the purchase price from OP, added that to its own contribution of $74,600, and bought the shares. An alternative analysis is that Samuel Holdings paid the money to OP with a direction that it be applied in part payment of the shares. In neither case would Samuel Holdings have lent the money to OP.
- It is not necessary to express any concluded opinion on the point. However one might have characterised the payment and the receipt of the $74,600 by OP had the Agreement taken effect according to its terms, it is clear that because the transaction failed at or before inception we are concerned only with the character of monies paid on a total failure of consideration. It is clear that they do not take on the character of a loan or of monies lent.
- The restitutionary right to recover monies had and received by the defendant to the use of the plaintiff, on a failed consideration, is not based upon their having been lent, or upon any express or implied agreement to repay, but rests upon an obligation, imposed by law, to repay that which in conscience and justice is the plaintiff’s. See Moses v Macferlan (1760) 97 ER 676 at 680 and Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd  AC 32 at 62-63.
- The last point to notice, which is uncontentious, is that when OP became insolvent its obligations to Samuel Holdings in respect of the $74,600 had not been discharged. This satisfies Regulation 7.5.64(1)(c). The obligations were not discharged because in the circumstances already described, in which it received the money, OP’s obligation was to repay them to Samuel Holdings.
- The primary judge held that the monies paid by Samuel Holdings to OP were received on a statutory trust, a relevant statute being s 981H of the Act. SEGC challenges that legal conclusion which it is not necessary to examine because of the earlier conclusion that the money was received on behalf of Samuel Holdings. I will, nevertheless, express my respectful agreement with the Chief Justice’s opinion because it adds a further ground for supporting the primary judgment.
- Section 981H provides:
“(1)… money to which this Subdivision applies that is paid to the licensee;
(a)by the client; or
(b)by a person acting on behalf of the client; or
(c)in the licensee’s capacity as a person acting on
behalf of the client;
is taken to be held in trust by the licensee for the benefit of the client.”
Section 981A defines money which the Subdivision applies. It is money paid to a financial services licensee:
“(a)… in connection with:
(i)a financial service that has been provided, or that will or may be provided, to a person (the client); or
(ii)… ; and
(b)the money is paid:
(i)by the client; or
(ii)by a person acting on behalf of the client; or
(iii)to the licensee in the licensee’s capacity as a person acting on behalf of the client.”
- The primary judge’s reasons for accepting that s 981H created a trust with respect to the monies were:
“At the relevant time, Opes was a “financial services licensee”. The question to be answered is whether, in terms of s 981A, the amount paid to Opes as collateral was paid “in connection with a financial service that has been provided, or that will or may be provided” to the applicant, or in connection with a financial product held by the applicant.
Mr Stumer addressed the matter in these terms:
“As to requirement (b), ‘financial service’ is defined in s 766A(1)(b) to include dealing in a ‘financial product’. ‘Financial product’ is defined in s 764A(1)(a) to include a ‘security’. Samuel Holdings was to acquire securities by the purchase of 100,000 shares in Arrow Energy. It is submitted that the payment of the Deposit to Opes was ‘in connection with’ a financial service that was to be provided to Samuel Holdings by Wilson because the Deposit was paid to secure the funds from Opes to facilitate the transaction.”
It has been observed that the words “in connection with” are broad in scope. With these provisions being remedial, concerning the protection of investors, one should not adopt any particularly narrow approach. Mr Stumer submitted:
“The payment of the Deposit to Opes was ‘in connection with’ the acquisition of the shares in Arrow Energy because the deposit was to function as the Collateral for the loan of money from Opes to Samuel Holdings to acquire the shares. The Deposit was therefore ‘in connection with’ a financial service that was to be provided to Samuel Holdings.”
The payment of the collateral to Opes was a payment in connection with the proposed acquisition of the Arrow shares, with consequent financial benefit to the applicant: the payment of the collateral was instrumental to the proposed transaction; the transaction would not have proceeded without the provision of the collateral.”
- The phrase “in connection with” is one:
“… capable of having a meaning indicating any type of connection or relation between the two subject matters to which the words refer, though the precise shade of meaning of the phrase on any particular occasion when it is used in a statute must be gathered from the context in which it is used … . Similarly, whether a particular connection that can be perceived between the two subject matters, in the facts of any particular case, is a relevant and appropriate one for the purpose of applying a particular statute, must be gathered from the context in which the phrase is used in the statute.”
The passage is from the judgment of Campbell JA (with whom Young and Hodgson JJA agreed) in Waugh Hotel Management Pty Ltd v Marrickville Council  NSWCA 390 at .
- SEGC’s complaint about the finding of a statutory trust is that s 981A indicates that the relevant Subdivision was intended to apply to money paid to a financial services licensee for use in acquiring a financial product on behalf of a client, and that the money in question was not paid to OP in connection with the provision of any financial service (i.e. stockbroking) and thus was not paid in connection with any conduct or potential conduct by OP in the capacity of a licensee. Rather, the submission continued, the money was paid as collateral for funds to be provided by OP and was not to be used by Wilsons in acquiring the Arrow shares, or in providing any other financial service for Samuel Holdings.
- SEGC emphasised in its submission that the money was not paid to OP “for the purpose of being used in the provision of any financial service by (OP)” but as “… a security for funds … to be provided by (OP) … in a transaction in which (Wilsons) was to provide a financial service … .” The payment of the money as collateral for funds to be provided by OP for the purchase of the Arrow shares “did not give the payment … any sufficient connection … with the financial service … to be provided by (Wilsons).”
- The analysis should not be accepted. Section 981H should not be approached on a presupposition that it applies to a particular transaction only (stockbroking) and its applicability determined by whether the transaction in question is one of stockbroking.
- The section applies according to the words found in it. Money paid by a client to a licensee in connection with a financial service (which includes a security), that will or may be provided, is taken to be held on trust by the licensee for the benefit of the client. The words are wide and general. If they fit the transaction in question then the statutory consequence will follow.
- The money in question was paid by a client to a licensee. Was it paid “in connection with a financial service”? Despite the confusing terminology of the Agreement the essence of the proposed transaction was that 100,000 Arrow shares should be bought with funds partly provided by OP (in return for a fee) and partly by funds provided by Samuel Holdings. The shares were to be purchased by Wilsons for Samuel Holdings which would then transfer them to OP for the term of the loan and as security for it. The transaction thus described appears to fit naturally within the statutory framework, as monies paid in connection with dealing in securities. The section does not require the dealing to be done by the licensee to whom the client paid the money. Wilson’s acquisition of the shares, which was clearly a dealing in securities, was connected with the payment and the transfer of the shares to OP. There is a sufficient, indeed a plain, connection between the payment of the money and the acquisition of the shares. Section 981H was satisfied.
- The points discussed are sufficient to dispose of the appeal. It is not necessary to consider the further ground on which the Chief Justice relied to find that OP was a trustee of the money in question, namely that s 1017E of the Act gave rise to that trust. For the reasons which have been discussed the appeal cannot succeed. There remains the cross-appeal with respect to interest. A cross-appeal concerning costs was not pursued.
- The declaration made by the Chief Justice obliged SEGC to pay interest at five per cent per annum from 17 December 2008, the date it rejected Samuel Holdings’ claim. Regulation 7.5.79 provided that in addition to the amount payable in respect of a claim:
“… interest at the rate of 5% per annum … is payable to the person out of the Fund, on so much of that amount as is not attributable to costs and disbursements, in respect of the period beginning on the day on which the person became entitled to make the claim and ending on … the day on which that amount is paid to the person.”
- The date on which Samuel Holdings became entitled to make its claim is, in accordance with Regulation 7.5.64, 27 March 2008 when OP became insolvent. Interest was therefore payable from 27 March 2008. SEGC concedes the point.
- The appeal should be dismissed. The cross-appeal should be allowed and the declaration made by the Chief Justice varied by substituting “27 March 2008” for the date “17 December 2008” where it appears. The appellant should pay the respondent’s costs of the appeal. There should be no order for the costs of the cross-appeal. The point won was uncontentious and a second topic of cross-appeal was abandoned.
- MARGARET WILSON AJA: I agree with the orders proposed by Chesterman JA and with his Honour’s reasons for judgment.
 Cf Chesterman JA's reasons at .
 See Chesterman JA's reasons at .
 See Chesterman JA's reasons at -.
 See Chesterman JA's reasons at -.
 (1990) 9 ACLC 573.
 (1986) 160 CLR 371;  HCA 25.
 Above, at 376, 377 and 379-380.
 Above at 390.
 See Chesterman JA's reasons at -.
- Published Case Name:
Securities Exchange Guarantee Corporation Limited v Samuel Holdings Pty Ltd
- Shortened Case Name:
Securities Exchange Guarantee Corporation Limited v Samuel Holdings Pty Ltd
- Reported Citation:
 QCA 228
McMurdo P, Chesterman JA, M Wilson AJA
09 Sep 2011
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 450||06 Dec 2010||-|
|Appeal Determined (QCA)|| QCA 228||09 Sep 2011||-|