Tuesday, May 1, 2012

Assignment of restitutionary rights: Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7

The matter of Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7 was an appeal to the High Court from the Victorian Court of Appeal in respect of loans entered into by investors for the purpose of facilitating investments in managed investment schemes.

The schemes had the usual tax effective structure in which investors would pay an amount to a management company for planting, maintenance and harvesting fees and the investors would get a return on harvest, together with a tax deduction for their initial investment. The investors entered into loans with Rural Finance Pty Ltd (Rural), the financier of the schemes. The purpose of these loans was to fund their investments in the schemes.

Equuscorp Pty Ltd (Equuscorp) became a mortgagee of the land and chargee of the assets of the various group entities for the schemes just before the schemes collapsed. When the schemes collapsed the receivers and managers assigned the loans from the investors to Equuscorp under a deed of assignment.

Equuscorp sued the investors for loan defaults in the Supreme Court of Victoria. The investors defended the proceedings claiming, amongst other things, that the loan agreements were unenforceable for illegality.
Because of this, Equuscorp claimed that the amounts loaned to the investors were recoverable by way of a restitutionary claim for money had and received on the basis of failure of consideration by reason of the loan agreement being unenforceable, and that the restitutionary claim was validly assigned from Rural to Equuscorp.

The High Court agreed with the investors that the loan agreements were unenforceable for illegality because they were entered into in breach of the requirement in the then Companies Code for certain public offerings to have a registered prospectus.

The High Court held that there was no claim for money had and received, by reason of Rural being not an arm's length party when arranging the loans (at [45] per French CJ, Crennan and Kiefel JJ, at [110] to [111] per Gummow and Bell JJ):
45. Had a right to claim restitution for money had and received been available to Rural in this case, it would have been able to recover by such claims what the policy of the law denied it in respect of the loan agreements. Rural was not an arms length financier. It was part of the closely related group of companies that were involved in the promotion of the schemes. The loan agreements were an integral part of the schemes and in so far as they involved the issue of invitations and offers to investors to take up prescribed interests without the benefit of the protections required by the Code, furthered that illegal purpose. As in the Hurst case, while not essential to the investments, the loans made the investments more attractive. Recovery from the investors would have been recovery from persons whose protection was the object of the statutory scheme. The respondents were not in pari delicto with Rural. The failure of consideration invoked by Equuscorp was the product of Rural's own conduct in offering the loan agreements in furtherance of an illegal purpose. This is a clear case in which the coherence of the law, and the avoidance of stultification of the statutory purpose by the common law, lead to the conclusion that Rural did not have a right to claim recovery of money advanced under the loan agreements as money had and received. There was therefore no right to claim such relief available for assignment to Equuscorp. In any event, for the reasons that follow, any such rights, if they had existed, would not have been assigned by the Deed.
110. The explanation of the money lending cases given by Mason and Wilson JJ in Pavey & Matthews is in point here. Their Honours said:
"The relevant provisions in those cases explicitly rendered unenforceable contracts executed by the money-lender. The statutes were directed at making unenforceable an obligation to repay money already lent and a security already given in respect of such an obligation. It was not possible to interpret these provisions so that they left on foot any quasi-contractual causes of action on the part of the lender. Request and receipt by the borrower of the money lent were integral elements in a situation in which the contract and all securities were expressed to be unenforceable. An additional feature of the money-lending cases is that the legislation was designed to protect borrowers by imposing onerous obligations on money-lenders to comply with the statutory requirements." (emphasis added)
111. The prospectus provisions have a long history. This was traced by Mahoney JA in Hurst v Vestcorp to the mid-19th century. As Heerey J later remarked when dealing with the prospectus provisions of the Code, so seriously did the legislature regard these provisions, including s 170, that a breach not necessarily fraudulent and not necessarily causing monetary loss nevertheless could result in a five year term of imprisonment. This supports the conclusion that in a case such as is presented by these appeals, the investors who received prescribed interests should not be in the same position as if Pt IV Div 6 of the Code had not been enacted or had been complied with by Rural, and the loan agreements had been effective in accordance with their terms. The respondents correctly submit that to permit recovery on the actions for money had and received would stultify the statutory policy evident in Pt IV Div 6 of the Code. We agree with what is further said on this point by French CJ, Crennan and Kiefel JJ at [45] in their reasons. Equuscorp, as successor to Rural, in these circumstances cannot complain that the loss is left to lie where it has fallen.
However the High Court held that if there was a right to restitution, then that right was assignable (at [53] per French CJ, Crennan and Kiefel JJ, at [159] per Heydon J):
53. A restitutionary claim for money had and received under an unenforceable loan agreement is inescapably linked to the performance of that agreement. If assigned along with contractual rights, albeit their existence is contestable, it is not assigned as a bare cause of action. Neither policy nor logic stands against its assignability in such a case. The assignment of the purported contractual rights for value indicates a legitimate commercial interest on the part of the assignee in acquiring the restitutionary rights should the contract be found to be unenforceable. Equuscorp fell into the category of a party with a genuine commercial interest in the restitutionary rights. Notwithstanding the difficulties that may attend the claims having regard to particular circumstances and defences which might affect their vindication, the better view is that adopted by the Court of Appeal, namely, that the restitutionary claims were assignable. The question that next arises is whether they were assigned.
159. The respondents also submitted that a claim for money had and received is a personal one, infused with equitable notions of conscience, requiring a detailed analysis and balancing of the particular merits of the case, and so personal in nature as to be incapable of assignment. They cited authority relating to the non-assignability of the benefit of a contract involving personal skill and confidence. This case has nothing to do with the assignment of the benefit of a contract involving personal skill and confidence. And the circumstance that, like other legal rights, a claim for money had and received might rest on a detailed analysis of matters of fact that call for judgment does not prevent the right, once established, from being assignable.
However the issue of whether the deed of assignment would have been effective to assign the restitutionary rights had a split answer. French CJ, Crennan and Kiefel JJ held that the deed of assignment was not cast in wide enough terms to include the assignment (at [66]) whereas Gummow and Bell JJ (at [75]) and Heydon J (at [160]) held that a robust construction of the deed was preferred, such that the right to restitution was assigned.

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