FEDERAL COURT OF AUSTRALIA
Viterra BV v Shandong Ruyi Technology Group Co Ltd [2022] FCA 215
ORDERS
| order made by: | STEWART J |
| DATE OF ORDER: | 11 March 2022 |
THE COURT ORDERS THAT:
1. The freezing orders against the second respondent, being Order 2 and Annexure B to the Orders made on 19 November 2021 as extended by the Orders made on 26 November 2021 and 14 December 2021, be discharged.
2. The applicant pay the second respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
STEWART J:
INTRODUCTION
1 This case concerns the circumstances in which a freezing order may be granted or maintained against a third party, i.e., a party other than the judgment debtor (or prospective judgment debtor). More specifically, the case asks whether Australian assets can be frozen in aid of enforcement processes of a foreign court and in what circumstances a wholly owned subsidiary of the judgment debtor (or prospective judgment debtor) may by freezing order be restrained from disposing of, dealing with or otherwise diminishing the value of its assets.
2 As will be seen, those issues arise on an urgent interlocutory application on the duty list to vary freezing orders previously made by a judge of this Court by discharging those orders insofar as they apply to the subsidiary.
BACKGROUND
The parties and their interrelationship
3 The applicant is Viterra BV, a corporation incorporated in the Netherlands. Viterra is the prospective judgment creditor.
4 The first respondent is Shandong Ruyi Technology Group Co Ltd, a corporation incorporated in the People’s Republic of China. Ruyi is the prospective judgment debtor.
5 The second respondent is CSTT Co Holdings Pte Ltd (CSTT Singapore), a corporation incorporated in Singapore. Ruyi owns all the shares in CSTT Singapore.
6 CSTT Singapore is described as a “holding entity” that does not carry on business, has no employees, and has no assets other than the shares and loan referred to in the following paragraph and “intercompany balances with Ruyi and a number of other entities within the Ruyi group”. The balance sheet of CSTT Singapore reflects a positive balance of assets over liabilities of approximately AU$72.5 million (i.e., about US$52.4 million).
7 The third and fourth respondents, CS Agriculture Pty Ltd and CSTT Holdings Pty Ltd (CSTT Australia) respectively, are corporations incorporated in Australia. CSTT Singapore owns 80% of the shares in CS Agriculture, the remaining 20% of which are owned by an independent party, and 100% of the shares in CSTT Australia. CSTT Singapore has a loan to CS Agriculture in the sum of approximately AU$33.6 million.
8 The Chinese Export and Import Bank (Exim) has a charge registered in Singapore over all of CSTT Singapore’s assets including its shares in CS Agriculture and CSTT Australia to secure a debt of approximately US$21.4 million.
9 CS Agriculture and CSTT Australia are part of what is described as the Ruyi Australia Group. Mainly through CS Agriculture, the Ruyi Australia Group consists of substantial interests in agricultural and other land, residential properties, a cotton ginnery, commercial leases and associated water rights and entitlements in Australia.
The debt and its enforcement
10 In 2018 and 2019, Viterra as seller and Ruyi as purchaser entered into a number of contracts for the sale of raw cotton. The contracts are governed by English law. Ruyi failed to perform in certain respects, so in 2020 Viterra commenced arbitration proceedings under the auspices of the International Cotton Association Ltd as provided for in the contracts. An arbitral tribunal of three arbitrators was appointed. The seat of the arbitration was Liverpool, England.
11 On 8 January 2021, the arbitral tribunal published an award in Viterra’s favour in the principal amount of US$12,246,917.11 plus interest of US$468,067.11 up to the date of the award plus interest on the principal sum at a specified rate thereafter. Ruyi was also ordered to pay Viterra the costs of the arbitration in the sum of £9,159.75. In November 2021, the total award debt was estimated to be approximately AU$18.7 million, as reflected in the freezing orders discussed below.
12 In response to a demand from Viterra that it pay the award, in September 2021 Ruyi stated that it faced “serious capital liquidity problems” and therefore “cannot pay the expenses raised by your company in a short period of time”. The award remains entirely unpaid.
13 Viterra has commenced recognition and enforcement proceedings in the Intermediate People’s Court of Jining City, Shandong Province in the PRC, but it accepts that it is very unlikely, as a practical matter, that it will realise any payment in the PRC. That is because Ruyi has a substantial number of unsatisfied judgments registered against it in the PRC.
14 Viterra has also commenced recognition and enforcement proceedings in Singapore. It expects very shortly to obtain a judgment in its favour on the award from the High Court of Singapore.
15 Viterra has explained that once it has a judgment in Singapore it will seek to execute on that judgment by way of judicial process in Singapore against Ruyi’s shareholding in CSTT Singapore. That will likely be by way of a writ of seizure and sale of shares by the Sheriff’s Office.
16 Before selling the shares, the Sheriff’s Office will likely obtain a valuation of the shares. The auction will likely be conducted by an authorised auctioneer and be publicly advertised by the Sheriff. The auction date will be set by the Sheriff and the auction will be conducted in public and be open to anyone wanting to purchase the shares.
17 There is nothing in Singapore law preventing Viterra from bidding at the auction for the shares, provided that the sale is conducted by the Sheriff without the involvement of Viterra. Viterra intends to bid at the auction up to the value of the judgment debt.
18 If another bidder outbids Viterra, subject to the charge in favour of Exim and other unknown debts, Viterra’s judgment debt will be satisfied.
19 If Viterra is the successful bidder and thereby becomes owner of the shares in CSTT Singapore, it intends to seek to realise the value of the shares through either of the following courses of action.
20 First, using its power as a shareholder in the general meeting of CSTT Singapore, Viterra could replace the board of directors and instruct them to realise the value of the company’s assets and pay a dividend to Viterra. That could involve the sale of CSTT Singapore’s shares in its subsidiaries, CS Agriculture and CSTT Australia. Or, under the control of new directors, CSTT Singapore could, using its power as a shareholder in the general meeting of each of the subsidiaries, replace the boards of directors of the subsidiaries and instruct them to realise their assets and pay a dividend to CSTT Singapore and, from there, to Viterra. Viterra acknowledges that in respect of CS Agriculture, CSTT Singapore owns only 80% of the shares so any such course of action would need to take account of the views and position of the minority shareholder.
21 Secondly, Viterra could initiate a members’ voluntary winding up of CSTT Singapore wherein the assets of the company would be realised under the control of a liquidator and any surplus assets paid to Viterra as the sole shareholder.
22 Viterra is concerned that if it has no freezing order over the assets of CSTT Singapore, CSTT Singapore could deal with, dissipate, or diminish the value of its assets without notice to Viterra. If that occurs, there may be no or minimal value left in CSTT Singapore such that there would be no point in Viterra purchasing Ruyi’s shares in CSTT Singapore at the auction of those shares by the Sheriff’s Office or the auction will not realise an amount sufficient to discharge the debt.
THE PROCEEDING IN THIS COURT
23 By originating application filed in November 2021, Viterra commenced the proceeding in this Court in which it seeks final relief in the form of recognition and enforcement of the arbitral award against Ruyi. The originating application also sought interlocutory relief in the form of freezing orders against Ruyi and CSTT Singapore and injunctions against CS Agriculture and CSTT Australia from transferring the shares owned in them by CSTT Singapore save after giving prior written notice to Viterra.
24 On 19 November 2021, on an ex parte basis Jagot J made orders that may be summarised as follows:
(1) Notification freezing orders against Ruyi;
(2) Notification freezing orders against CSTT Singapore;
(3) Injunctions restraining CS Agriculture and CSTT Australia from transferring the shares owned in them by CSTT Singapore save after giving 10 clear business days’ written notice to Viterra;
(4) Leave to serve the originating application, orders and affidavits on Ruyi in the PRC, such service to be under the Hague Convention;
(5) Leave to serve the same documents on CSTT Singapore in Singapore, such a service to be by way of local private agent; and
(6) Returning the matter to court on 26 November 2021.
25 It is to be noted that the freezing orders against both Ruyi and CSTT Singapore are not in the usual form of orders freezing assets, but are rather in the form that requires a notice to be given to Viterra before assets are disposed of, dealt with, or diminished in value. The operative part of the freezing orders against both Ruyi and CSTT Singapore, Order 6, is in the following terms:
(a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of the total of US$13,554,931.31 and GBP9,159.75 (‘the Relevant Amount’), being AU$18,639,850.80 as at the date this order was made without first giving 10 clear business days’ notice in writing to the applicant’s lawyer.
(b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, subject to the exception identified in the paragraph (6)(b)(i) below, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value without first giving 10 business days’ notice in writing to the applicant’s lawyer, so long as the total unencumbered value of your Australian assets exceeds the Relevant Amount.
26 The orders against CSTT Singapore, but not against Ruyi, then add the following sub-paragraph to Order 6(b):
(i) You must not transfer any of your fully paid ordinary shares in either the Third Respondent, CS Agriculture Pty Ltd (ACN 160 516 594), or the Fourth Respondent, CSTT Holdings Pty Ltd (ACN 636 406 794), without first giving 10 clear business days’ notice in writing of the proposed transfer to the applicant’s lawyer.
27 Order 7 against both Ruyi and CSTT Singapore is as follows:
(1) your assets include:
(i) all your assets, whether or not they are in your name and whether they are solely or co-owned; and
(ii) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions).
(2) the value of your assets is the value of the interest you have individually in your assets.
28 It is to be noted that Viterra does not seek to justify that form of the order as an “ancillary order” as referred to in r 7.33 of the Federal Court Rules 2011 (Cth). Presumably that is because, as pointed out by CSTT Singapore, the order operates as a present and effective restraint against CSTT Singapore from certain dispositions and dealings, unless the requisite notice is provided, and it is in the form of a penal notice. It may be in a less severe form than an absolute freezing order in the usual form because of the qualification as to notice, but it is nevertheless a freezing order rather than an ancillary order. In contrast to the orders against CS Agriculture and CSTT Australia, the orders against Ruyi and CSTT Singapore are expressly described in the orders of 19 November 2021 as freezing orders.
29 On the return day, 26 November 2021, service on CSTT Singapore was confirmed as having occurred on 23 November 2021. Service of further documents on Ruyi was authorised under the Hague Convention and on CSTT Singapore by local private agent, and the freezing orders were extended to 14 December 2021. On that date, the freezing orders were further extended to 31 March 2022.
30 Although service was effected on CSTT Singapore, it has still not been effected on Ruyi because of the length of time that it takes to effect such service in the PRC under the Hague Convention. The result is that although there are currently in personam freezing orders in place against Ruyi, they are not yet effective because Ruyi is not subject to the jurisdiction of the Court until it has been served: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [13].
31 Because of a concern that transactions that had been entered into by CS Agriculture which were due to settle on 23 February 2022 might be caught by the freezing orders against CSTT Singapore, CSTT Singapore by interlocutory application filed on 16 February 2022 sought the urgent discharge of the freezing orders against it. It subsequently became common ground that those transactions were not caught by the freezing orders, so the transactions were able to settle notwithstanding the continuation of the freezing orders. Nevertheless, CSTT Singapore contends that there is no basis for the freezing orders against it to be maintained and therefore seeks their discharge. Although the immediate pressing urgency abated, the matter remains inherently urgent because of the continuing application of the freezing order.
32 The principal basis upon which that discharge is sought is that there is no basis to maintain the orders against the assets of a subsidiary of the prospective judgment debtor in the circumstances of the present case. More particularly, the contention is that the present case does not come within the meaning of r 7.35(5)(b) of the Rules, being the applicable rule, because there is no process in the Court under which CSTT Singapore may be obliged to disgorge assets or contribute toward satisfying any judgment against Viterra.
33 Against that, Viterra contends that the processes of realisation of the shares in CSTT Singapore that it intends to pursue in Singapore amount to the types of process referred to in r 7.35(5)(b) such that the freezing order is within that rule. In the alternative, it contends that that rule does not constrain the broader power to make a freezing order as provided for in s 23 of the Federal Court of Australia Act 1976 (FCA Act) and r 7.32 of the Rules, and that that broader power provides a proper basis in equity for the freezing order so as to ensure that the value of the CSTT shares is maintained for the purpose of execution against them in Singapore.
34 CSTT Singapore initially contended in written submissions that the freezing orders should be discharged on account of a failure by Viterra to disclose, or draw attention to, certain matters on the ex parte hearing. However, those contentions were formally abandoned in the oral hearing.
35 For the reasons that follow, I have concluded that the freezing orders against CSTT Singapore should be discharged. That is, firstly, because Viterra has failed to identify any process of this Court that is or might be available to it as a result of any prospective judgment of this Court under which process CSTT Singapore may be obliged to disgorge assets or contribute towards satisfying the prospective judgment. Secondly, as an alternative basis, the processes identified by Viterra that will become available to it by which it will be able to realise the value of Ruyi’s shares in CSTT Singapore are not ultimately enforcement processes available to Viterra as judgment creditor to discharge the judgment debt; rather, they are processes available to it as shareholder after the enforcement processes have come to an end, which is not a proper circumstance for the exercise of the power to make a freezing order. Thirdly, as a further alternative, I would in any event decline to exercise the power to make the freezing orders on the basis of discretionary considerations – essentially on account of their drastic nature together with the fact that they are directed not at assets of the debtor but at the assets of an independent third party over which the debtor has no relevant control.
THE RELEVANT PROVISIONS
36 Section 23 of the FCA Act provides that the court has the power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the court thinks appropriate.
37 The relevant provisions of the Rules are the following:
7.31 Definitions for Division 7.4
In this Division:
…
another court means a court outside Australia or a court in Australia other than the Court.
applicant means a person who applies for a freezing order or an ancillary order.
freezing order has the meaning given by rule 7.32.
judgment includes an order.
respondent means a person against whom a freezing order or an ancillary order is sought or made.
7.32 Freezing order
(1) The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.
(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
…
7.35 Order against judgment debtor or prospective judgment debtor or third party
…
(5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that:
(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:
(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(6) Nothing in this rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so.
7.36 Jurisdiction
Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order.
38 The Freezing Orders Practice Note (GPN-FRZG) of the Court is also applicable. It addresses the usual practice relating to the making of freezing orders and the usual terms of such an order, but it does not, and cannot, limit the judicial discretion to make such orders as are appropriate in the circumstances of the particular case: [2.2]. It reminds parties and the Court that the purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order: [2.5]. Also, a freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted without notice: [2.6].
39 The Practice Note recognises (at [2.7]) that the respondent to a freezing order is not necessarily the person said to be liable on a substantive cause of action, but may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. It states that r 7.35(5) of the Rules addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. Also, with reference to Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380, the third party will not necessarily be a party to the substantive proceeding, but will be a respondent to the application for the freezing order or ancillary order.
THE CASES
40 There are remarkably few cases in Australia which deal with circumstances analogous to the present case, i.e., whether a freezing order might be available against a third party in the position of a wholly-owned subsidiary of the debtor. There are nevertheless important statements of principle by the High Court, and there are a number of cases in other jurisdictions that are analogous. It is convenient to deal with the Australian cases first.
The Australian cases
41 Although reference was made to Winter v Merac (Aust) Ltd (1986) 6 NSWLR 11 with regard to the principles governing third party freezing orders, that judgment of the NSW Court of Appeal preceded the judgment of the High Court in Cardile and does not, on my reading of it, have anything different to say on the point that is pertinent to the issue in the present case.
42 Reference was also made to Sayer v Tomanovic [2015] NSWSC 1025 at [20], but counsel for CSTT Singapore readily accepted that the case offers little, if any, assistance in the present case.
43 The relevant Australian cases are accordingly three cases in the High Court. I will consider each in turn.
Cardile v LED Builders (1999)
44 Cardile is the leading Australian case on freezing orders against third parties. The question in the case was identified by the plurality (at [1] per Gaudron, McHugh, Gummow and Callinan JJ) as being whether a freezing order may be granted against a third party to proceedings in circumstances in which that party has not been shown to have an interest in the assets or funds (with one possible exception) of the potential judgment debtor.
45 As in the present case, the source of authority to make freezing orders in Cardile was s 23 of the FCA Act. It was said (at [26]) that the presence in s 23 of the expression “as the Court thinks appropriate” points to the requirement to develop principles governing the exercise of the power in such a fashion as to avoid abuse. Those principles with regard to freezing orders against third parties were identified, or set out, at [57], to which I will come.
46 In Cardile (at [41]-[42]), subject to one presently relevant qualification, the Court adopted the passage in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [35] to the effect that to prevent the abuse or frustration of a court’s process is an established part of the armoury of a court in granting injunctive relief under s 23 of the FCA Act, and that a freezing order is the paradigm example of an order to prevent the frustration of a court’s process. The qualification is that where the attention of the court is directed to orders against parties to the proceedings against whom final relief is sought, the focus is the frustration of the court’s process, but where it is directed to non-parties the focus must be the administration of justice.
47 In the Court’s consideration of the circumstances in which freezing orders will be made against a third party, the following points were made:
(1) There is no basis for the making of an order against a non-party which is not answerable or liable in some way to a party (plaintiff or defendant) in a proceeding or who is not holding, controlling or capable of disposing of the property of a party in that proceeding: [45]. (This point should be understood as being subject to (4) below.)
(2) A freezing order operates in personam as a very tight “negative pledge” species of security over property, to which the contempt sanction is attached, and requires a high degree of caution on the part of the court; an order lightly or wrongly granted may have a capacity to impair or restrict commerce just as much as one appropriately granted may facilitate and ensure its due conduct: [50].
(3) A freezing order is a drastic remedy which should not be granted lightly; it imposes a severe restriction upon a defendant’s right to deal with their assets; the function of the order is not to provide a plaintiff with security in advance for a judgment that it hopes to obtain and that it fears might not be satisfied: [51].
(4) The general proposition, accepted at point (1) above, that the grant of a freezing order against a third party should be limited to cases in which the third party holds or is about to hold or dissipate or further dissipate property to which the defendant is beneficially entitled in the substantive proceeding is too narrowly expressed; nevertheless, it will be a rare case in which a freezing order will be granted if such a situation does not exist: [54].
48 The Court then identified (at [57]) “the principle to guide courts” in determining whether to grant freezing order relief where the activities of third parties are the object sought to be restrained. It held that such an order may be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which:
(i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including “claims and expectancies”, of the judgment debtor or potential judgment debtor; or
(ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.
(References omitted; line breaks added.)
49 It is immediately apparent that the two circumstances identified and numbered (i) and (ii) are what paragraphs (a) and (b), respectively, of r 7.35(5) are modelled on, down to the use of almost exactly the same language. The rule is in effect a codification of the expression of principle by the High Court. Its wording was first introduced as O 25A r 5 in the Federal Court Rules 1979 (Cth) by the Federal Court Amendment Rules 2006 (No 1) (Cth) to give effect to rules on freezing orders developed by the Harmonised Rules Sub-Committee of the Council of Chief Justices. It was then carried over into the present Rules.
50 Cardile concerned a claim for an account of profits. LED Builders brought a claim for copyright infringement against Eagle Homes in respect of building plans. After the commencement of proceedings, Eagle Homes declared substantial dividends to its shareholders (Mr and Mrs Cardile), the bulk of which were paid. Mr and Mrs Cardile formed a new company, Ultra Modern, which began to build houses using new but comparable plans and the business name “Eagle Homes”. LED sought an account of profits from Eagle Homes and third party freezing orders against the shareholders (the Cardiles) and Ultra Modern pending the taking of accounts.
51 The Court held that the business name “Eagle Homes” was the only item of property which had been made available to Ultra Modern by Eagle Homes. However, the fact that Ultra Modern may have obtained access to and may have been using that name for the purpose of its business, without any payment to Eagle Homes, did not make it accountable or liable to Eagle Homes or any liquidator of it for all of its profits: [59]. Also, the goodwill in the name “Eagle Homes” could be shared between the two companies, but in the absence of any sharing agreement to compensate Eagle Homes for the use of the name and any goodwill associated with it, there was no basis for a claim by Eagle Homes against Ultra Modern for the latter’s shared use of the name and goodwill: [61]. There was therefore no basis for a freezing order over all of the assets of Ultra Modern, although there was a proper basis to restrain Ultra Modern from disposing of the goodwill attached to the name “Eagle Homes” because the value of the goodwill of Ultra Modern which is attached to its use of the business name could affect the value of the concurrent goodwill of Eagle Homes: [62]-[63].
52 Insofar as Mr and Mrs Cardile were concerned, it was found that there was a prima facie case that the payment to them of, or the crediting of them with, dividends from Eagle Homes was a non-commercial exercise and was done with a view to limiting the funds available to meet a judgment in favour of LED: [64]. There was a basis on which the dividends might be able to be reclaimed by Eagle Homes, either under s 37A of the Conveyancing Act 1919 (NSW) (at [65]-[68]) or as a voidable transaction (at [69]). On that basis, an order requiring Mr and Mrs Cardile to hold and to keep unencumbered assets up to a particular value was justified: [70].
53 It is accordingly apparent, as would be expected, that the statement of principle (in [48] above) was applied to deciding the case – part (i) in respect of Ultra Modern’s use of the business name “Eagle Homes” and part (ii) in respect of the Cardiles. That statement is therefore part of the ratio of the Court and is unquestionably binding on me save to the extent that it is non-exhaustive or may have been subsequently modified.
PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015)
54 The facts of PT Bayan Resource TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 258 CLR 1 (Bayan HCA) are in some ways analogous to the present proceeding. BCBC, a company incorporated in Singapore, and Bayan, an Indonesian company, between them owned all the shares in an Indonesian joint venture company, PT Kaltim Supacoal. BCBC and Bayan fell into dispute and BCBC commenced proceedings in the High Court of Singapore claiming damages for breaches of the joint venture deed. A judgment of the High Court of Singapore could be recognised in Australia and form the basis for a judgment here.
55 In the Supreme Court of Western Australia, BCBC applied for freezing orders against Bayan, being the prospective judgment debtor, and Kangaroo Resources Ltd, a third party. At the relevant time, Bayan owned shares in Kangaroo Resources. Following an ex parte hearing, freezing orders were made against both Bayan and Kangaroo Resources. The freezing order against Kangaroo Resources, inter alia, restrained it from registering the transfer of any of its shares owned by Bayan to a related entity of Bayan and required Kangaroo Resources to give seven days’ notice to BCBC before disposing of its assets with a value in excess of $5 m other than in the ordinary course of business.
56 Bayan and Kangaroo Resources subsequently commenced proceedings in the High Court of Australia in which they challenged the power of the Supreme Court to make the orders, which proceedings were remitted to the Supreme Court. In the Supreme Court, Le Miere J discharged the freezing order made against Kangaroo Resources, continued the freezing order against Bayan and dismissed the challenge to the Court’s jurisdiction: see BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3) [2013] WASC 239; 276 FLR 273 (Bayan WASC). An appeal by Bayan to the Court of Appeal was dismissed and Bayan appealed to the High Court in respect of whether the Supreme Court of Western Australia has the power to make the freezing order against Bayan.
57 Although the orders in respect of Kangaroo Resources were not subject to appeal, Le Miere J’s reasons in Bayan WASC concerning the freezing order initially granted against Kangaroo Resources are relevant to the circumstances of the present case.
58 First, Le Miere J considered that none of the circumstances in r 5(5) of O 52A of the Rules of the Supreme Court 1971 (WA) (RSC), being identical to r 7.35(5) of the Rules, applied to Kangaroo Resources. His Honour only expressly considered paragraph (a)(ii) and at [117] reasoned as follows:
Kangaroo Resources is not in a position of control or influence concerning the Shares. Kangaroo Resources registers any transfer of shares but that does not amount to control of the Shares in any relevant sense. The activities of Kangaroo Resources affect the value of the Shares but that does not amount to influence concerning the Shares in any relevant sense.
59 Secondly, by r 6 of the RSC (the equivalent of r 7.36 of the Rules), O 52A does not diminish the inherent, implied or statutory jurisdiction of the Court. His Honour therefore held that it was necessary to consider whether the Court had inherent jurisdiction to make a freezing order against Kangaroo Resources apart from O 52A: [118].
60 His Honour then turned to [57] of Cardile and held that the circumstances set out by the High Court also did not apply to Kangaroo Resources. His Honour observed (at [119]) that:
The joint judgment did not say expressly that the circumstances set out in [57] of Cardile are the only circumstances in which a freezing order may be made against a third party. It is possible that the classes or categories of case in which a freezing order may be made against a third party are not closed. However, it does not appear from the joint judgment that it is sufficient that the prospective judgment debtor holds shares, including a controlling interest, in the third party. Bayan’s controlling interest in Kangaroo Resources enables it to control or exercise influence over the disposition by Kangaroo Resources of its assets, but does not give to Kangaroo Resources any control or power of disposition over the assets of Bayan.
61 His Honour ultimately held (at [120]) that, because Kangaroo Resources had no relevant control over the assets of Bayan, the freezing order against Kangaroo Resources should not be continued. On the basis of that reasoning, the freezing orders in the present case against CSTT Singapore would be discharged.
62 In Bayan HCA, the High Court upheld the freezing order against Bayan and the validity of O 52A and made some observations as to freezing orders against third parties. At [47], the plurality (French CJ, Kiefel, Bell, Gageler and Gordon JJ) explained:
The actual holding in Cardile v LED Builders Pty Ltd illustrates that the prospective enforcement process that a court might protect by making a freezing order can be a process contingent on factors in addition to the outcome of a substantive proceeding in that court. The holding was that a freezing order can be made against a third party against whom no present cause of action exists and against whom no present proceeding has commenced. It is enough that some future legal process (which might be contingent, for example, on the appointment by another court of a liquidator or a trustee in bankruptcy) may be available pursuant to which the third party may be obliged to contribute to the funds of the judgment debtor to help satisfy the judgment against the judgment debtor.
(References omitted.)
63 In respect of a freezing order sought where substantive proceedings were only on foot in a foreign court, the plurality cited (at [49]), with approval, the remarks of Lord Nicholls (in dissent) in Mercedes Benz AG v Leiduck [1996] AC 284 at 313-314:
Against the background of a freezing order made in advance of judgment being characteristically protective of what at the time of making the order could only be a prospective enforcement, Lord Nicholls went on in Mercedes Benz to point out that there was “nothing exorbitant” about a Hong Kong court making a freezing order in aid of a prospective judgment of a foreign court “given the prerequisite that the anticipated judgment must be one which will be recognised and enforceable in Hong Kong”. He fairly observed:
The alternative result would be deeply regrettable in its unfortunate impact on efforts being made by courts to prevent the legal process being defeated by the ease and speed with which money and other assets can now be moved from country to country. The law would be left sadly lagging behind the needs of the international community.
(References omitted.)
64 Their Honours went on to explain (at [50]) that the reason why a freezing order made in the circumstances described is within the inherent power of the Supreme Court is that it is made to protect the process of registration and enforcement in that Court which is in prospect of being invoked. They added that the criteria set out in r 5 of O 52A of the SCR (and, hence, r 7.35(5) of the Rules):
are appropriately tailored to the exercise of that inherent power. Such issues of principle or degree as might arise in the working out of those criteria go to the exercise of that inherent power, not to its existence.
65 Of course, the High Court was dealing there with the existence of the power to make freezing orders and not to when it should be exercised. In line with the remarks of Le Miere J quoted at [60] above, that passage appears to leave open the possibility that freezing orders against third parties may yet be ordered in circumstances not expressly identified in the rule and in [57] of Cardile.
Deputy Commissioner of Taxation v Huang (2021)
66 Deputy Commissioner of Taxation v Huang [2021] HCA 43; 395 ALR 616 did not deal with freezing orders against a third party; the respondent, Mr Huang, was the judgment debtor. The majority (Gageler, Keane, Gordon and Gleeson JJ) nevertheless made some observations that are pertinent to the present matter.
67 First, r 7.32 of the Rules is not to be read as being subject to or narrowed by r 7.35; both rr 7.35(6) and 7.36 are expressly to the contrary: [21]. The consequence of this is that in the case of a freezing order against a third party, r 7.35(5) does not cover the field. To the extent that r 7.32, r 7.35(6) or “the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order” (r 7.36) are wider than r 7.35(5), then such a wider basis is also available.
68 Secondly, there is no reason to imply an unexpressed limitation on the scope of the power in r 7.32, where r 7.32 is, in substance, a restatement of the powers under s 23 of the FCA Act and the Court’s implied power and there is no similar limitation upon those powers: [24].
69 Thirdly, in determining whether the Court has power to make the order, the question is whether the order would seek to meet a danger that the prospective judgment will be wholly or partly unsatisfied: [31]. The High Court added that the power conferred by r 7.32 is broad and flexible.
70 The question in Huang was whether assets in Hong Kong, which were beyond the reach of any relevant execution process, could justifiably be included in a worldwide freezing order that had been granted to protect the processes of execution of a tax judgment of this Court. Focusing on the underlying rationale for freezing orders being enforceability, the Full Court said “no”. The High Court, however, reframed the rationale as expressed in the preceding paragraph. The Court moved beyond the enforceability rationale by reasoning (at [27]) that:
there is no reason to ignore the possibility that a defendant, who is demonstrated to have created the relevant danger, may be induced by the inconvenience of a freezing order, falling short of oppression, to comply with the Court’s process.
71 In dissent, Edelman J considered (at [38]-[39]) that the majority judgment extends the traditional basis for a freezing order as going beyond the minimum necessary to protect the integrity of the process of the Court.
72 Huang is a reminder of the importance of keeping distinct the questions of power and discretion when it comes to freezing orders (at [30]-[31]). The Court dealt with whether this Court has the power to make an order against Mr Huang’s Hong Kong assets, and held that it does. Whether, as a matter of discretion, such a freezing order should have been made in that case did not arise for decision before the High Court.
Discussion
73 It may be accepted that, because of r 7.35(6), r 7.35(5) does not limit the power conferred by s 23 of the FCA Act and restated by r 7.32 and, because of r 7.36, nor does it limit the “inherent, implied or statutory jurisdiction of the Court to make a freezing order”. It may also be accepted that, in light of what was said about the underlying rationale for a freezing order in Huang and the remarks made by Le Miere J in Bayan WASC, the statement of principle at [57] of Cardile might not be exhaustive of the circumstances in which the power to make a freezing order may properly be exercised against a third party. However, in my view, it is unnecessary to decide that question in the present case. That is because, as I will later explain, I do not consider that the order is necessary to protect a process of this Court (being the rationale expressed in Cardile and Bayan HCA) and nor do I consider that the order seeks to meet a danger that a prospective judgment of this Court would remain wholly or partly unsatisfied (being the extended rationale expressed in Huang). If the issue comes again to the High Court, it may be that the circumstances in which a third party freezing order may lie as expressed in Cardile will be expressly extended.
74 The parties draw on judgments in foreign jurisdictions to a considerable extent in support of their respective arguments. That is on the basis, at least in part, as I understand it, that the foreign authorities provide guidance on what can or should be done in this case. Whether that is a sound basis to refer to those authorities depends on whether the principle at [57] of Cardile is exhaustive in the present circumstances. However, reference is made to the foreign judgments also for the purpose of giving further meaning to, or applying, the guiding principle in Cardile. For that reason, it is necessary for me to go to those judgments.
The foreign cases
75 Although a number of other foreign judgments are referred to, I consider the ones that I discuss below to be the most pertinent. For example, CSTT Singapore placed significant reliance on FM Capital Partners Ltd v Marino [2018] EWHC 2889 (Comm); [2019] 1 WLR 1760, which largely analyses earlier appellate authority to which one can go to directly, which authority has in any event been overtaken by subsequent authority in the Privy Council which I consider below. For those reasons I have not found FM Capital Partners to be particularly helpful to the task at hand.
76 Similarly, reference was made to Christensen v Gordon [2021] NZHC 1737, a judgment of a single judge of the High Court of New Zealand. It was held (at [42]-[47]) that the assets of a company in which the debtor held shares could not be made the subject of a freezing order. His Honour’s reasoning draws on appellate level authority which I will consider myself.
77 The principal case of significance is Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24; [2022] 1 All ER 289, a recent decision of the Privy Council. It was referred to by the High Court in Huang at [28] and [41]. However, I also consider Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636; [2015] 1 WLR 291, a judgment of the Court of Appeal of England and Wales, to be worth considering in some detail. I will consider these cases in the order in which they were decided.
Lakatamia Shipping Co Ltd v Su (2014)
78 In Lakatamia, the defendants were the parties against whom the claimant asserted claims in damages and restitution. Paragraph 2 of freezing orders that were made provided that the defendants must not “in any way dispose of, deal with or diminish the value of any of their assets whether they are in or outside England and Wales up to the [value of the claim]”. Paragraph 3 of the orders then provided that:
Paragraph 2 applies to all of the defendants’ assets whether or not they are in their own names and whether they are solely or jointly owned. For the purpose of this order, the defendants’ assets include any asset which they have the power, directly or indirectly, to dispose of or deal with as if it were their own. The defendants are to be regarded as having such power if a third party holds or controls the asset in accordance with their direct or indirect instructions.
79 It is to be observed that this wording is effectively the same as the wording of Order 7 of the freezing orders in this case (quoted at [27] above).
80 The question that fell to be decided when the freezing orders were challenged, and on appeal, was whether the injunction had the direct effect of freezing the assets of three non-defendant companies of which the first defendant, Mr Su, was the direct or indirect 100% shareholder and a director.
81 Burton J, at first instance, concluded that the assets of the non-defendant companies were caught by paragraph 3 of the freezing order. His Lordship reasoned (as quoted at [8] of the Court of Appeal judgment) that that conclusion did not cause any offence against Salomon v A Salomon & Co Ltd [1897] AC 22 (which enshrined important principles of corporate identity) because:
it depends on a perfectly traditional analysis of company law provisions, where the owner of a company can, by resolution at the general meeting or otherwise, particularly if he is also the sole or controlling director by reference to decisions at board meetings or otherwise, access and direct the fate of the assets of the companies which he thus owns or controls.
82 All the members of the Court of Appeal agreed with the conclusion that the assets of the non-defendants were “covered” by the freezing order in the sense that the defendants were enjoined from diminishing the value of their shareholding by procuring the non-defendant companies from making dispositions likely to result in such a diminishment: at [23]-[24] per Tomlinson LJ, at [43] per Sir Bernard Rix and at [44] per Rimer LJ. However, their Lordships disapproved of the reasoning of the primary judge that is quoted in the preceding paragraph above. That is because an asset of a company of which a single person is the sole director and shareholder is not an asset of that person within the standard freezing order wording, namely an asset “which they have the power, directly or indirectly, to dispose of or deal with as if it were their own”: at [28] and [31] per Tomlinson LJ, at [41] per Sir Bernard Rix and at [50]-[51] per Rimer LJ.
83 Sir Bernard Rix explained (at [42]) that one basis on which to freeze company assets of a non-defendant is if the company concerned is “just the money-box of the defendant and holds assets to which the defendant is beneficially entitled”. His Lordship explained (at [41]) that the notion of “money-box”, which Viterra draws on in the present case, is restricted to circumstances in the form of a trust in which the third party holds or controls assets in accordance with a defendant’s instructions.
84 The Court of Appeal nevertheless dismissed the appeal against orders that Burton J made that required the defendants to give 14 days’ notice of certain dispositions of their assets which dispositions would not on their face be in the ordinary course of business. That arose because paragraph 6 of the freezing orders provided that the orders did not prohibit the defendants from dealing with or disposing of any of their assets in the ordinary and proper course of business: at [36].
Broad Idea International Ltd v Convoy Collateral Ltd (2021)
85 Broad Idea is a decision of the Board of the Privy Council on appeal from the Court of Appeal of the Eastern Caribbean (EC) Supreme Court in a case originating in the British Virgin Isles. The applicant, CCL, brought proceedings in Hong Kong claiming damages and other substantive relief against Dr Cho who was resident in Hong Kong. In the BVI, CCL applied for freezing injunctions against both Dr Cho and Broad Idea International Ltd.
86 Broad Idea was a BVI company of which Dr Cho was majority shareholder. Broad Idea’s sole known asset of value was a shareholding in a company referred to as Town Health which was incorporated in the Cayman Islands. The shares of Town Health were listed on the Hong Kong stock exchange. Broad Idea’s shareholding represented 18.85% of the total share capital of Time Health and had an estimated value of around US$126 million.
87 It was accepted that CCL had a good arguable case against Dr Cho in the Hong Kong proceeding and that that proceeding was capable of resulting in a judgment against Dr Cho for damages equivalent to some US$92 million which would be enforceable in the BVI.
88 The opinion of the Board was delivered by Lord Leggatt, with whom Lord Briggs, Lord Sales and Lord Hamblen agreed. The Board traced the history and development of freezing orders since The Siskina [1979] AC 210. One of the developments that was identified (at [15]) was that a freezing injunction may be granted against a third party, i.e., a person against whom the applicant has no right to claim substantive relief, on the basis that the third party holds or controls assets against which a judgment against the primary defendant could potentially be enforced. That jurisdiction to make such orders is sometimes referred to as the Chabra jurisdiction after the case of TSB Private Bank International SA v Chabra [1992] 1 WLR 231. It was recognised (at [16]) that the exercise of that jurisdiction has continued to evolve.
89 The Board (at [85]) recognised what is referred to as the “enforcement principle”, namely that the essential purpose of a freezing injunction is to facilitate the enforcement of a judgment or order for the payment of a sum of money by preventing assets against which such a judgment could potentially be enforced from being dealt with in such a way that insufficient assets are available to meet the judgment. The enforcement principle is relevant in determining what assets are intended to be covered by a standard form of freezing order: [87].
90 The Board then reasoned (at [88]) that the enforcement principle explains the basis and scope of the Chabra jurisdiction. The ordinary prerequisite for granting such an injunction is that the third party is in possession or control of an asset against which a judgment could be executed, including because the debtor is beneficially entitled to the asset owned by the debtor, as in the Chabra case. But there are also other ways in which the injunction can be justified, for example: where the defendant would have a right of indemnity against the third party which could be enforced by a receiver; where a transaction by which the defendant transferred an asset to the third party might be avoided under insolvency laws; or, where enforcement of a judgment against the defendant might lead to its liquidation whereupon the liquidator would be able to pursue a claim against the third party. It was then said that in each case “the key question is whether the assets are or would be available to satisfy a judgment through some process of enforcement”. One of the authorities cited for that proposition is Cardile.
91 It can be seen that, thus far, the treatment by the Board of third party freezing orders is entirely consistent with the guidance given in Cardile. That is further made clear by the Board’s identification (at [89]) that the interest protected by a freezing injunction is:
the (usually prospective) right to enforce through the court’s process a judgment or order for the payment of a sum of money. A freezing injunction protects this right to the extent that it is possible to do so without giving the claimant security for its claim or interfering with the respondent’s right to use its assets for ordinary business purposes. The purpose of the injunction is to prevent the right of enforcement from being rendered ineffective by the dissipation of assets against which the judgment could otherwise be enforced.
92 The Board summarised (at [101]) the requirements for a freezing injunction as including that there is at least a good arguable case for being granted a judgment or order for the payment of a sum of money that is or will be enforceable through the process of the court, and that “the respondent holds assets (or … is liable to take steps other than in the ordinary course of business which will reduce the value of assets) against which such a judgment could be enforced” (emphasis added). The focus is thus on assets against which a judgment of the court can be enforced.
93 The Board identified that the critical questions, insofar as any freezing injunction against Broad Idea was concerned, were whether any judgment against Dr Cho would be enforceable against the shares which Broad Idea held in Town Health and whether a freezing injunction was necessary in order to protect CCL’s ability to utilise such a process of enforcement: [105].
94 On the proposition that Broad Idea was a “money-box” for Dr Cho, the Board found that there was no evidence capable of supporting an inference that Broad Idea did not beneficially own the shares in Town Health registered in its name; there was nothing to suggest that the corporate structure put in place was not intended to reflect the reality of the chain of legal and beneficial ownership: [108]. It was held that the fact that Broad Idea was purely a holding company and its shareholding in Town Health “provides the source of value for” the shares in Broad Idea was not a reason to regard Town Health as a mere nominee; no reasonable basis had been shown for asserting that Dr Cho had any direct beneficial interest in any of the shares acquired by Broad Idea: [108].
95 The Board then considered the primary judge’s alternative finding that it was necessary to restrain the disposal of the Town Health shares in order to maintain the value of Dr Cho’s shares in Broad Idea. The Board held that such reasoning involves an extended application of the enforcement principle. It was said (at [110]) that that principle can in an extended form apply to any conduct which would diminish the value of assets against which a judgment could potentially be enforced, even if that conduct does not involve dealing with those assets directly, citing FM Capital Partners at [39]. Reference was made to the injunction against the defendant in Lakatamia which prevented him from procuring the company to dispose of its assets as that would diminish the value of his shareholding which was an asset covered by the injunction.
96 The Board held (at [111]) that there is no reason in principle why the extended form of the enforcement principle should not be applied in an appropriate case to assets held by a “non-cause of action defendant” i.e., a third party, “as it was in Gilfanov v Polyakov [2017] ECSCJ No 13”. In that case (as described at [109]), the defendants to proceedings in the BVI had transferred their shares in a BVI company (Phoenix) which had substantial assets to a third party with the aim of frustrating any attempt to execute a judgment against the shares. The EC Court of Appeal upheld the decision to grant a freezing injunction against the company on the grounds that, if the claimants obtained a judgment, they could potentially have the share transfer reversed and enforce the judgment against the shares and that, in these circumstances, the claimants had an interest in preserving the value of the company’s assets in order to maintain the value of its shares. In other words, as it was put in that case by the EC Court of Appeal (at [54] of its judgment), “the appellants have an interest in preserving the value of the assets of Phoenix to maintain the value of the shares if it becomes necessary to enforce a judgment against them”.
97 To summarise, a freezing injunction against the subsidiary disposing of its assets was justified in order to maintain the value of its shares which had previously been owned by the debtor but which were transferred to another party against the prospect that the transfer may be reversed.
98 However, the Board gave the following explanation (at [111]):
The practical purpose of granting a freezing injunction against the company in that case was to restrain the third party to whom its shares had been transferred from procuring the disposal of the company’s assets and thereby diminishing the value of its shares (against which a future judgment could potentially be executed). There would not have been a need to grant an injunction against the company if the shares had remained in the possession of the defendants, as in that event the freezing injunction granted against them would have restrained them from procuring the company to dispose of its assets (thereby diminishing the value of the shares) and no purpose would have been served by granting in addition a freezing injunction against the company itself.
99 Returning to the case before it, the Board explained (at [112]) that when the freezing injunction against Broad Idea was granted, there was no freezing injunction against Dr Cho restraining him from disposing of or dealing in any way he chose with his controlling shareholding in Broad Idea because, although one was initially granted, it was later set aside because Dr Cho was not subject to the jurisdiction of the BVI Court. In circumstances where Dr Cho remained free to dispose of or deal in any other way with his shares in Broad Idea, there was no justification for seeking to prevent conduct which would indirectly diminish the value of those shares. There was therefore no justification for granting a freezing injunction against Broad Idea which was designed to maintain the value of Dr Cho’s shares in Broad Idea.
100 By the time of the appeal to the Board, there was a worldwide freezing injunction made in Hong Kong against Dr Cho which restrained him from (among other things) disposing of, dealing with or diminishing the value of his shares in Broad Idea. He was accordingly restrained from using his powers of control over Broad Idea to procure the company to deal with its shares in Town Health in a way which would reduce the value of his shareholding in Broad Idea. It was reasoned (at [113]) that in those circumstances it was not evident that there was any need or warrant for granting, in addition, an injunction against Broad Idea, although the possibility of such an injunction remained if up-to-date evidence justified it, but that could not suitably be determined by the Board on appeal.
Discussion
101 There are a number of important implications of Lakatamia and Broad Idea for the present case.
102 First, the assets of CSTT Singapore, being the shares in CS Agriculture and CSTT Australia and the loan to CS Agriculture, are not assets of Ruyi; there is no suggestion that Ruyi is beneficially entitled to those assets. CSTT Singapore is not the “money-box” of Ruyi. Such analysis provides no basis for maintaining a freezing order against the assets of CSTT Singapore.
103 Secondly, when the freezing order against Ruyi becomes effective after service on Ruyi has been achieved, Ruyi will itself be restrained from causing CSTT Singapore to sell, dispose of or otherwise diminish the value of its assets because to do so would be to diminish the value of Ruyi’s assets (i.e., to devalue Ruyi’s shareholding in CSTT Singapore).
104 Thirdly, the notification freezing order can be justified against Ruyi, as it was against the debtor in Lakatamia, but Lakatamia offers no support for a notification order against CSTT Singapore unless there is a proper basis to make a freezing order against CSTT Singapore.
105 Fourthly, and subject to what I say below, in certain circumstances a freezing order against a third party for the purpose of preserving the value of its shares for the purpose of execution against those shares may be justified. Gilfanov v Polyakov may be considered as authority for such a freezing order. However, the acceptance of that outcome in Broad Idea was only because the shares had been transferred to another party which transfer was liable to be reversed. If the shares were still owned by the debtor – as the shares in CSTT Singapore are in this case – then the freezing order against the debtor would have prevented him from procuring the third party to dispose of or diminish its assets.
106 The implication for the present case is that because the freezing order against Ruyi is not yet effective by reason of want of service, such a “preservation of share value” order might be justified against CSTT Singapore. However, once the orders against Ruyi are served, there may no longer be such a justification. Unlike in Broad Idea where no BVI freezing order against Dr Cho was possible, a freezing order has been made against Ruyi and it is likely, although belatedly, to become effective. Therefore, until then at least, a freezing order against CSTT Singapore could be regarded as justified.
107 One must, however, return to the rationale underlying a freezing order made against third parties as expressed in Cardile and Bayan HCA. That directs attention to the processes that Viterra relies on as identified at [15]-[22] above.
APPLICATION TO THE PRESENT CASE
108 Viterra is expected to shortly have a judgment against Ruyi in Singapore and thereafter an execution process available to it in Singapore against Ruyi’s shares in CSTT Singapore. It points to no process of this Court that it might have against any of Ruyi’s assets or CSTT Singapore’s assets. It has also not sought to establish that it will, or be able to, enforce in Singapore any judgment against Ruyi that it obtains in this Court. It has staked its case on the enforcement in Singapore of a Singapore judgment against assets in Singapore.
109 That means that Viterra is outside the ambit of rr 7.32 and 7.35(5)(b) which refer, respectively, to the protection of “the Court’s powers” and the availability of “a process in the Court”. Those are references to the Federal Court of Australia, as opposed to “another court” which is a court outside Australia or a court in Australia other than the Court: r 7.31. It also means that the freezing order is not sought in aid of a judgment of this Court such that the inherent power of this Court to make such an order to protect its own processes cannot be said to be called upon to be exercised.
110 As explained in Bayan HCA, the coercive powers of the Court would not be expected to be available to enforce the judgments of foreign courts unless that was on the basis that the foreign judgment was to be recognised and thus form the basis of a judgment in Australia. Similarly, those powers would not be expected to be available to protect the processes of enforcement of foreign judgments in foreign courts. If Viterra wishes to protect its processes of enforcement of a Singapore judgment in Singapore, then it could be expected to seek freezing orders in Singapore.
111 On that basis, the freezing orders must be discharged.
112 However, even on the assumption that the enforcement processes available to be protected by freezing orders in this Court include processes of the High Court of Singapore to ensure that judgments of that Court are met, Viterra’s case for maintaining the freezing order against CSTT Singapore must fail. That is for the following reasons.
113 If, by bidding at the Sheriff’s auction of the shares in CSTT Singapore, Viterra became the owner of those shares, it would then have options available to it to realise the value of the shares. It says that it could (a) cause assets of CSTT Singapore and/or its subsidiaries to be realised and paid up the line to it in the form of dividends, or (b) cause CSTT Singapore to be wound up and have its residual value paid out to it as shareholder. But it could not by either process have its judgment debt discharged. That debt would have been discharged, or at least partly discharged, by the sale of the shares by the Sheriff to it and the payment back to it by the Sheriff of any residue. How much would be paid to Viterra would depend on how much it paid and what other debts had to be discharged, such as any debt secured by the charge in favour of Exim.
114 If the debt would be fully discharged by the payment to Viterra by the Sheriff of Viterra’s full entitlement under the judgment, then there would be nothing further to enforce. If the debt would remain only partly discharged, there would still be the balance to enforce but that could not be done against the shares in CSTT Singapore, which would now be owed by Viterra, or against CSTT Singapore’s assets. The liquidation process envisaged by CSTT Singapore as one possibility is not a process of enforcing or executing the judgment in payment of the debt; it is a process as shareholder to realise value in the shares which would have been acquired in the preceding enforcement process. Such a liquidation process is not one by which CSTT Singapore “may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor [i.e., Ruyi] to help satisfy the judgment against the judgment debtor” as described in Cardile. It is not a process of enforcement of either this Court or the High Court of Singapore.
115 It is necessary to keep distinct what Viterra can do as judgment creditor and what it can do as shareholder in CSTT Singapore. It is processes available to it as judgment creditor, and not as shareholder, that justify a freezing order against a third party.
116 In my view, the processes planned or envisaged by Viterra in Singapore are not processes envisaged to be protected by the rationale expressed in Cardile and Bayan HCA; those are not circumstances in which the power should be exercised. Accordingly, the freezing order against CSTT Singapore cannot be maintained on the alternative basis and should be discharged. I add that if [57] of Cardile (and r 7.35(5) of the Rules) is exhaustive of the circumstances in which a freezing order against a third party can be made, not as a matter of the existence of the power but of the proper circumstances of its exercise, then a fortiori the freezing order against CSTT Singapore cannot be maintained.
117 In the event that I am also wrong on that conclusion, then further discretionary considerations relevant to the exercise of the power arise. I would decline to exercise the power for the following reasons.
118 First, a freezing order is an extraordinary remedy that requires a high degree of caution; it is a drastic remedy that should not lightly be granted. It is a rare case in which a freezing order will be granted against a third party where it does not hold assets to which the debtor or prospective debtor is beneficially entitled. (See [47] above.)
119 Secondly, although the order in the present case is in the form of a notification order, it nevertheless, as submitted on behalf of CSTT Singapore, amounts to a sword of Damocles; not only is CSTT Singapore restrained from disposing of any of its assets more quickly than the notice period provides for, i.e., 10 business days, but even if it gives notice it then has the uncertainty of whether an injunction will be sought to prevent it proceeding with the disposition. As demonstrated by the speed with which the present interlocutory application was heard, such uncertainty can create nothing but prejudice in a commercial environment. The order is therefore onerous.
120 Thirdly, if the freezing order is made effective and maintained against Ruyi, then there is no demonstrated need or warrant for the order against CSTT Singapore. If, on the other hand, the freezing order against Ruyi is not made effective or not maintained, then there is no justification for an order against CSTT Singapore.
121 Fourthly, there is nothing at present to suggest that Ruyi has it in mind to, or might realistically, cause CSTT Singapore to dispose of its assets to defeat the arbitration award or any judgment on the award. All that is known is that the award has remained unpaid for a little more than a year, and that is because Ruyi apparently has liquidity problems. In the circumstances, it cannot be said that the rationale for making a freezing order expressed by the majority in Huang – i.e., that the order seeks to meet a danger that a prospective judgment of this Court would remain wholly or partly unsatisfied – justifies the continuation of the freezing order in this case.
122 Finally, I would follow the approach of Le Miere J in Bayan WASC in respect of the assets of Kangaroo Resources (see [61] above), i.e., the assets of CSTT Singapore are beyond any relevant control by Ruyi.
DISPOSITION
123 For the reasons given above, there should be orders discharging the freezing orders against the second respondent pursuant to Order 2 and Annexure B of the orders of 19 November 2021 and as subsequently extended.
124 The costs should follow the result. As CS Agriculture and CSTT Australia took no position on the interlocutory application and played no substantive role in the hearing, I make no order with regard to their costs.
| I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. |
Dated: 11 March 2022
SCHEDULE OF PARTIES
