Opes investors fail at first hurdle

I know that some people have lost a lot of money through the collapse of Opes Prime, so it seems a bit ghoulish to be fascinated by it – but there you have it, I can’t help myself – I’m fascinated. There are so many interesting equitable and property law questions raised by it (tracing, equitable mortgages, mere equities, trusts in undifferentiated property), not to mention corporate governance issues. Some of my favourite topics!

Anyway, I saw yesterday that Finkelstein J of the Federal Court had handed down an important judgment from the point of view of investors seeking to reclaim their shares (Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Limited [2008] FCA 594).

I should explain briefly how the Opes Prime arrangement worked before getting into the judgment. Investors “loaned” their shares to Opes Prime in return for a cash advance. As a term of the Securities Lending Agreement (SLA), Opes promised that when the money advanced to the investor was repaid to it, Opes would redeliver shares to the investor which were equivalent in number and type to those originally provided. The value of the cash advance supplied was less than the value of the shares provided to Opes. The difference between the value of the cash advance and the value of the shares is referred to as the “margin”. Problems occur if the value of the shares fall below the value of the cash originally advanced to the investor, because then the value of the security is less than the value of the loan, and will not be sufficient to recompense Opes if the investor does not pay it back. In those circumstances, a “margin call” should be made to the investor, whereby the investor is required to “top up” the amount of shares provided so that the value of the shares is again greater than the value of the cash. One of the issues seems to have been that margin calls were not made when they should have been made to certain significant and substantial investors. And of course, the general stock market slump contributed to the drop in value of the shares beyond the margin.

As Finkelstein J notes at [9]:

In this case credit risk is all important. Boiled down to its essence, a party’s exposure to loss in the event of default is equal to the margin. That is to say, if the non-defaulting party is on the short side of the margin (ie the value of the assets delivered to him is less than the value of the assets provided) he will suffer a loss and, in the case of insolvency, be required to prove for the difference in the insolvency of the defaulting party.

In other words, the investors will have to pay the difference if their shares are not adequate security for the cash advances they received.

The investors are alleging that they were told by Opes that they would retain some form of ownership in their original shares. In fact, this was not true from a legal perspective (as will be discussed in greater detail below). Opes loaned the shares received from investors to its bankers, ANZ Bank (the defendant in this case) and Merrill Lynch. In return for this, Opes received cash advances, which were presumably used in part to fund the provision of cash collateral to investors. However, ANZ became aware that Opes was in financial difficulties, and appointed receivers to the firm. ANZ and Merrill Lynch commenced selling the shares that had been provided by Opes as security for its loans. Presumably this drove the value of shares even further below the margin. It was at this point that shocked investors started challenging the sales, as they had thought they retained some kind of ownership in the shares, and that it was not in ANZ’s power to sell them off.

In Beconwood, the plaintiffs claimed that they had retained a proprietary interest in the shares which they had loaned to Opes in two ways:

1. Through an equity of redemption pursuant to a mortgage of the legal title to the shares
2. Through an equitable charge over the shares

Both of these interests are proprietary security interests. Let me explain the equity of redemption first. In general law land, the actual title to the property is transferred to the lender, but the borrower retains the beneficial interest in the property (so he or she can live there and enjoy the property). What happens when the borrower has paid back all of her loan? It is then that the equity of redemption comes into play – it means that the lender has to transfer the legal title back to the borrower – the borrower is entitled to “redeem” her property.

An equitable charge is a little different. Legal ownership in the security property is never transferred to the lender at all – the lender merely has a right to sell off the borrower’s property if the borrower defaults.

The investor failed to make out either kind of security interest. In essence, this came down to Clause 3.4 of the SLA between Opes and the Investor, which stated as follows:

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.

In other words, it was clearly stated in the SLA that full ownership of the shares was transferred to Opes. All that the investor was entitled to upon repayment of the cash advance was equivalent shares – not necessarily the same shares as those which were originally provided to Opes. The point to be made about shares is that they are fungible – one share is very much like another, and it doesn’t particularly matter which one you get as long as you get an equivalent back. Finkelstein J makes the point that economically speaking, the arrangement was very much like a mortgage, but legally speaking, the analysis just could not be sustained.

The plaintiff then tried to argue that there was a necessary implied term in the SLA that the investor had a charge over any shares of the equivalent type held by Opes until it received its shares back, but it also failed in this respect too.

Finkelstein J’s judgment seems correct to me. Regardless of the representations Opes may or may not have made to its clients, it is the terms of the SLA which are fundamental, and the terms are explicit that the investors do not retain an interest in the shares. Clearly the investors did not read the terms of the SLA closely enough.

Finkelstein J makes an interesting analysis of US law. It is clear that the US has been using these kind of “securities lending arrangements” for longer than Australia, and that the market in the US is highly regulated in respect of these arrangements (unlike the Australian market). Perhaps the Australian regulators need to consider instituting US-style regulation if these kind of securities lending arrangements continue in popularity.

O.J.’s ill gotten-gains

I’ve posted before about O.J. Simpson’s book, If I Did It, and the resulting furore. In fact, in my previous post, I even mentioned Attorney-General v Blake, the case where a double agent was forced to disgorge the profits he made by publishing a book about his exploits.

So I was fascinated to read that Ron Goldman’s family has won the publishing rights to Simpson’s book. The Goldmans won a civil jury award for over US$33M ten years ago, and have been chasing Simpson for the money. Simpson has declared himself bankrupt. Apparently, a company named “Lorraine Brooke Associates” owned the rights to the book. LBA was run by Simpson’s daughter, Arnelle Simpson. The judge, US Bankruptcy Judge Cristol, traced $650,000 from HarperCollins to LBA and then to Simpson for his expenses. His Honour found that LBA was “clearly accomplished to perpetuate a fraud.” Presumably there are some kind of “claw-back” provisions that prevent bankrupts from transferring money to others with an intent to defraud creditors and access it themselves.

Unfortunately, a copy of the judgment is not available online yet or I would have read it.

Update

The judgment still isn’t online – presumably Judge Cristol hasn’t had time to get it published because of this furore. Celebrity gossip site TMZ briefly published the manuscript of If I did it online, but after an emergency application to Judge Cristol, they took it down again.

Buying shares in a "lemon"

A recent High Court decision Sons of Gwalia Ltd v Margaretic [2007] HCA 1 has established by a majority that shareholders rank equally with other unsecured creditors in a voluntary administration.

At first blush, the decision has an immediate appeal. On 18 April 2004, Magaretic purchased 20,000 shares in Sons of Gwalia Ltd, a publicly listed gold mining company, at a cost of $26,200. 11 days later, on 29 August 2004, voluntary administrators were appointed to the company. At the time Magaretic bought the shares in the company, they were worthless. Magaretic claimed that Sons of Gwalia breached the stock exchange listing rules by failing to tell the Australian Stock Exchange that its gold reserves were insufficient to meet its gold delivery contracts, and that it could not continue as a going concern. Accordingly he brought a claim for misleading and deceptive conduct pursuant to the Trade Practices Act, the Corporations Act and the ASIC Act. He seeks compensation for the amount he spent on the valueless shares). Many other shareholders have similar claims.The High Court has decided that Magaretic is indeed a creditor, and that his claim ranks equally with other unsecured creditors.

Section 563A of the Corporations Act essentially provides that payment of a debt to a person in his or her capacity as a shareholder (whether dividends, profits or otherwise, will be postponed to any other claims of any other creditors. The practical effect of this is that claims by shareholders rank last – they can only get the money (if any) which is left over after all the other secured and unsecured creditors have taken their slices of the asset pie. A majority of the High Court decided that Magaretic’s claim could not be described as arising from his capacity as a shareholder (Calllinan J dissented). Strictly speaking, Margaretic’s claim arose before he became a shareholder at all, for that was when the misleading and deceptive conduct occurred. Section 563A of the Corporations Act can be contrasted with §510(b) of the United States Bankruptcy Code which specifically subrogates a shareholders claim “for damages arising from the purchase or sale of such a security”.

The practical effect of the decision is that Magaretic and all the other shareholders with claims for misleading and deceptive conduct will now be able to claim with all the other unsecured creditors (trade creditors, employees and lenders). This will substantially enhance the shareholders’ chance of recovery, but it will also reduce the amount available for distribution to other creditors. In this instance, there are apparently many other shareholders with claims for misleading and deceptive conduct. An administrator will find it difficult to ascertain which shareholders’ claims have validity, and the amount of damages to which they are entitled. This will significantly increase the length of voluntary administrations. Further such claims are not included as listed liabilities when a potential lender tries to ascertain whether it should lend money to or invest in a company. Mark Korda has noted that this may make some US companies wary of investing in Australian companies.

Although one’s immediate sympathies lie with Magaretic, who bought worthless shares eleven days before the administration, investment on the share market is a risky business. The broader practical implications of the decision may be to make the administration of insolvent companies much more difficult and costly, and result in less money for all creditors. Already, according to the administrator of car-part manufacturer Ion, payouts to creditors will be delayed by a year by the decision in Margaretic.