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Banksia; Lawyers and litigation funders ordered to compensate debenture holders – but can the $25 million in damages and costs be recovered?

Case Note: Bolitho v Banksia Securities Ltd (No 18) (Remitter) [2021] VSC 666; Judgement 11 October 2021.

Almost nine years after elderly debenture holders filed a class action against Banksia Securities Limited, justice has finally been restored.

The recent judgement, handed down by Justice John Dixon in the Supreme Court of Victoria, found that litigation funder Australian Funding Partners Pty Ltd (AFP); and five lawyers Mr Norman O’Bryan QC, Michael Symons, Anthony Zita, Alex Elliot (son of Mark Elliot) and Peter Trimbos engaged in egregious conduct in connection with a fraudulent scheme. Mr O’Bryan’s and Mr Symons each contrived backdated costs agreements and invoices to appear as if their fees were legitimately incurred. Each of them included hundreds of hours of time for work that had never been performed, the court found.

The parties have been ordered to pay $11,700,128 in damages as well as the indemnity costs (estimated at $15 million) to the remitter of the Banksia Securities Limited group proceeding. The total damages and costs are estimated at $25 million. Justice Dixon emphasised that this conduct constituted appalling breaches of their duties under the Civil Procedure Act 2010 (Vic). Justice Dixon noted that by attempting to claim more than $19 million from the Banksia Securities Pty Ltd settlement sum the relevant individuals had “shattered confidence” in the honourable legal profession.

The issue of recovering the $25 million may prove problematic because former barristers Norman O’Bryan and Michael Symons have filed for bankruptcy, Peter Trimbos is now deceased, Alex Elliot is appealing the decision and there are uncertainties over whether the other lawyers insurers have exhausted their indemnity in defence costs.

In addition, the litigation funder AFP was placed in Administration on 1 December 2021. The Administrators, Cor Cordis, has recommended that it be placed in liquidation as it only has $173,000 in assets, but owes $23.3 million. Its company directors may have breached the law by trading whilst insolvent and may also have failed to adequately maintain books and records as some were destroyed prior to the appointment of the administrators. The Administrators have recommended the investigation of the affairs of its former directors.

Background

In October 2012, Banksia Securities Pty Ltd (Banksia) – an unlisted public company that acted as a non-bank property lender – collapsed, owing approximately $663 million to debenture holders plus assets (including its outstanding loans made to third party borrowers) amounting to approximately $527 million.

Following the collapse, various debenture holders commenced proceedings against The Trust Company Ltd (Trust Co) (which served as the trustee of Banksia) in the Supreme Court of Victoria, alleging failure to exercise reasonable diligence to ascertain whether Banksia had complied with its duties under s283DA of the Corporations Act 2001.

The Incorporation of AFP

Mark Elliot (now deceased), acting solicitor of representative plaintiff Mr Bolitho, was funding the plaintiff’s proceeding costs on a conditional cost basis. As he was unable to obtain the funds to cover the defendant’s security costs, he incorporated Australian Funding Partners Limited (AFP) which was entitled to a 30% fee alongside the recovery of legal costs and disbursements from the net proceeds of the class action’s settlement.

The Special Purpose Receiver (SPR) proceeding

In March 2015, proceedings were commenced against Trust Co alleging that the merger of Banksia and Statewide placed Trust Co in a position of conflict which they failed to manage and that the transaction was only of interest to Statewide and its debentures.

Despite an earlier court ruling preventing Mark Elliot and Norman O’Bryan from working on the case due to the financial conflict of interest, they circumvented the ruling by appointing a ‘post box’ solicitor.

The proceedings were settled for $64 million, with Mark Elliot and his legal firm Elliot Legal and the ‘post box’ solicitor (Anthony Zita of Portfolio Law Pty Ltd) demanding the parties agree to terms adverse to their interests. This included requiring the other parties to support AFP’s $19.3 million claim despite confidentiality requirements imposed by Justice Clyde Croft preventing the court and parties from assessing such claims.

It was found that the court was deceived as to the legitimacy of AFP’s claim, including Mark Elliot reverse engineering the $5.2 million cost claim into ‘fee targets’, contriving backdated costs agreements and invoices for hours of work that had not occurred and misleading an expert costs lawyer into believing the legal fees were legitimate. All of which resulted in the court’s approval of the $19.3 million claim.

The Court of Appeal

Two Banksia investors, Wendy Botsman and Keith Pitsman brought to light the unwarranted amounts demanded by AFP by having the Banksia Securities Limited group proceeding remitted by the Court of Appeal in November 2018.

The Court of Appeal found that the confidentiality order imposed by Justice Clyde Croft “went further than necessary” and denied both the special purpose receivers and parties from procedural fairness and would impact the amount that the funder was entitled to.

In March 2019, a court-appointed Contradictor alleged that AFP should not be entitled to recover any or all of the amount due to breaches of their overarching obligations, fiduciary duty, professional conduct rules and the funding agreement.

Outcome

The judgement handed down by Justice John Dixon on 11 October 2021 in the remitter has restored faith in the justice system, with the Court finding that the litigation funder and five lawyers had engaged in “egregious conduct”.

In addition to the ordering of parties to pay compensation to investors, as well as the costs of the remitter on an indemnity basis, Norman O’Bryan and Mr Michael Symons were ordered to be removed from the roll of persons admitted to the legal profession and Anthony Zita and Alex Elliot must show cause as to whether they are fit and proper persons to remain on the roll.

Justice John Dixon has referred his ruling to prosecutors for criminal investigation.

Recent developments (January 2022)

Following the judgement of Justice Dixon, former silk and barrister Norman O’Bryan and junior counsel Michael Symons involved in the fraudulent scheme have filed for bankruptcy and AFP was placed into external administration on 1 December 2021. There are also real uncertainties as to whether the lawyers’ insurance policy’s indemnity limits have been exhausted by defence costs.

The special purpose receivers are seeking reimbursement through the lawyers’ professional indemnity insurers granting indemnity, however with a $2 million limit of liability for each of the relevant policies the receivers must argue that the limit applies separately to the multiple losses suffered as a result of the fraudulent scheme.

On 4 February 2022, an application by the receivers to recover costs from non-parties of the case will be heard. At this stage the non-parties against whom orders may be sought are:’

  • The Estate of Mark Elliot; and
  • Noysu Pty Ltd; a company associated with Norman O’Bryan and his wife Sue O’Bryan which was a shareholder in AFP.

With this chapter of the saga already a seven-year battle and looking to drag on for some time, there is a very real practical issue over the ability of elderly debenture holders to recover any or some of the costs and damages of $25 million.

In delivering his judgement, Justice Dixon emphasised that the conduct of the litigation funder and lawyers has “left a stain” on the legal profession and that “care should be exercised in identifying the lessons to be learned for the future”, as “a bad apple is not the harbinger of a diseased orchard”. The only positive outcome, he noted, was that the Appeal has demonstrated the effectiveness of the Civil Procedure Act 2010 (Vic) and the ability of the judicial system to self-regulate to prevent unwarranted transaction costs in group proceedings.

If you would like more information about this judgement, please contact Danielle Snell and Robert McGirr.

 

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