assignment of cause of action australia

Trusting the signs to assign: assigning causes of action of trustee companies

By Sam Kingston , Mathew Gashi

When a corporate trustee goes into liquidation, there is often uncertainty about how it is to be wound up which requires Court intervention. On 15 October 2021, the Federal Government initiated a consultation process relating to trusts and insolvency, which looks to consider, amongst other things, what powers an external administrator has to administer trust property.

Relevantly, liquidators generally have the power to assign causes of action belonging to a company, or claims conferred on the liquidator by the Corporations Act 2001 (Cth) ( Act ). However, a liquidator’s power to sell or assign causes of action has certain limitations which were recently considered in Anderson v Canaccord Genuity Financial Limited [2022] NSWSC 58 ( Anderson Judgment ). In particular, limitations may arise in circumstances where the company acted in a capacity as trustee of a trust, which highlights the complexities that arise when a corporate trustee is placed in liquidation.

In the Anderson Judgment, the Court found that where the causes of action arose from breaches of duty owed to a company in its capacity as a trustee of a trust, and the company in liquidation ceased to act as trustee (as is often the case), the proper plaintiff was the new trustee of the trust.

Contrary to some previous cases, the Court also seems to suggest that liquidators can assign rights which are proprietary in nature (such as, for example, judgment debts) and personal rights (such as, for example, claims for misleading and deceptive conduct).

The Court's judgment creates some uncertainty about whether personal rights to sue which are held by a company are also capable of assignment, and if so what rights can be assigned. In circumstances where there are conflicting judgments, practitioners should seek legal advice prior to negotiating the assignment of claims which might be considered 'personal' to the company.

In general, when considering whether to assign any claims or rights to sue, practitioners should carefully consider the nature and merits of the claims sought to be assigned. Practitioners should also be wary if any complicating factors might arise in the purported assignment, such as if the claims are those of the company itself or if they are claims only available to the trustee of a trust.

How does an assignment of a cause of action work?

A liquidator has the power to sell or dispose of a company’s property, which relevantly includes a ‘chose in action’ (such as potential claims). This is a useful power as assigning a cause of action may realise funds in circumstance where a liquidator might not be able to fund potentially valuable pieces of litigation. Additionally, a liquidator may assign any right to sue which is conferred on them under the Act provided the following conditions are met:

• If legal proceedings have already commenced, the right to sue cannot be assigned without the approval of the Court.
• Before assigning any right to sue, the liquidator must give written notice to the creditors of the proposed assignment.

The assignment of a cause of action is usually documented in a Deed of Assignment. Depending on the terms of the deed, the assignment might also be subject to additional conditions such as approval of creditors or the Court. This is particularly the case if the assignment is intended to last more than three months.

Once a cause of action has been assigned, the liquidator should generally issue a notice of assignment that complies with the relevant State property law acts [1] ( Assignment Notice ). It is worth noting that in the Anderson Judgment, an Assignment Notice was not issued. This was not fatal as the assignors of the causes of action were joined as parties to the proceeding, binding them to any judgment.

Assignment of claims of a trustee company

The key issue in the Anderson Judgment was whether there was a valid assignment of claims broadly described as ‘Conspiracy Claims’ made up of claims for breach of fiduciary duties and breach of the obligations of good faith and honesty arising from employment contracts.

The key considerations addressed in the Anderson Judgment on the assignment of causes of action are briefly summarised below.

Were the ‘Conspiracy Claims’ claims of the company or of the trust?

The Court held the assignee had standing to sue for any breach of obligation owed to the companies in liquidation, but only to the extent that the claims related to each company in its own right. Where the company entered into any agreement in its own capacity, and not as trustee of any trust, the assignment of any rights and obligations arising under those agreements was effective.

Conversely, the assignee could not sue for any breaches of obligations which were owed to a company in its capacity as trustee. The liquidator could not assign these rights because the company was not the proper plaintiff (it was the trustee of the trusts at the time claims were sought to be made).

Could a bare right to litigate or personal chose in action by assigned?

Many statutory causes of action are incapable of assignment, because they are personal to the company rather than proprietary in nature. Personal claims are claims which are only available to the person who suffered the relevant loss or damage. Common examples are claims for misleading and deceptive conduct under the Australian Consumer Law and breaches of director duties under the Act.

Relying on past judgments of the Supreme Courts of New South Wales and Western Australia, the Court:

• found breaches of fiduciary duty are claims capable of assignment under the Act [2]
• seemed to suggest that there is no reason to limit the assignment of claims to only those which are proprietary in nature in view of the wording of the Act. [3]

This approach conflicts with judgments of the Supreme Court of Victoria and the Supreme Court of New South Wales. Relevantly in:

• Pentridge, the Court found that statutory causes of action for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) were unassignable [4]
• Re Colorado Products, the Court found that statutory causes of action for breaches of directors duties under the Act were not assignable. [5]

Implications

The Court’s judgment leads to some uncertainty about the extent to which personal rights to sue, which are held by a company, are capable of assignment. In general, when considering whether to assign any legal claims or rights to sue proceedings, practitioners should carefully consider the nature of the claims sought to be assigned. Practitioners should be wary if any complicating factors might arise in the purported assignment, such as if the claims are those of the company itself or if they are claims only available to the trustee of a trust.

[1] See for example section 134 of the Property Law Act 1958 (Vic), section 12 of the Conveyancing Act 1919 (NSW), Civil Law (Property) Act 2006 (ACT) s 205, Law of Property Act 2000 (NT) s 182, Property Law Act 1974 (Qld) ss 199, 200, Law of Property Act 1936 (SA) s 15, Conveyancing and Law of Property Act 1884 (Tas) s 86 and Property Law Act 1969 (WA) s 20. [2] Re Colorado Products Pty Ltd (In Prov Liq) (2014) 101 ACSR 233; [2014] NSWSC 789 ( Re Colorado Products ). [3] EC Dawson Investments Pty Ltd v Crystal Finance Pty Ltd (No 3) [2013] WASC 183. [4] Pentridge Village Pty Ltd (in liq) v Capital finance Australia Ltd [2018] VSC 633 ( Pentridge ). [5] Re Colorado Products.

Key contacts

Sam kingston, mathew gashi.

Senior Associate

Keep up to date with our legal insights and events

Related capabilities

Related services, recent articles.

Round Two: the repeal of the Western Australian Aboriginal Cultural Heritage Act 2021

By Susanne Rakoczy  & Jemima Stratton

The second reading speech for the repeal of the Aboriginal Cultural Heritage Act 2021 (WA) was heard before parliament.

Coming soon: significant legislative changes to unfair contract term regime — are you ready?

By Viviane Karoumbalis

All businesses using standard form contracts should be on notice to review and update their standard form contracts.

Modern Slavery and conducting responsible business in a changing regulatory landscape – what do all developers need to know?

By Sonia Sharma , Chloe Tutt, Colin Yuan & Javvad Jaffry

Modern slavery is a complex global problem and it has been just over 4 years since the landmark Modern Slavery Act

Proposed abolition of stamp duty on commercial and industrial property in Victoria: key questions and considerations

By Andrew Wright , Daniel Hui  & Ari Armstrong

The Victorian Government has announced it will abolish stamp duty on commercial and industrial properties.

Online Access

Maddocks digital.

A gateway for clients to interact and share documents.

Transparent live access to your complete conveyancing portfolio.

Maddocks Recoveries

Check progress, manage cases and respond.

Delegations & Authorisations

Delegations & Authorisations Service for Victorian Local Government.

Employment Contracts

Suitable, legally compliant, effective employment contracts.

• Latest Issue
• Previous Issue
• Past Issues
• What’s On
• Regional Bar
• Reviews and the Arts
• Words From The Past
• Professional Conduct and Practice
• From the President
• From the Editor
• From The President
• From The Editor
• Issue 90: Dec 2022
• Issue 89: September 2022
• Issue 88 - June 2022
• Issue 86: August 2020
• Issue 85: Mar 2020
• Issue 84: Sept 2019
• Issue 83: Sep 2018
• Issue 82: March 2018
• Issue 81: Dec 2017
• Darling Downs Bar – The White Bull and the Queens Arms Hotel!
• Australian Vocal Ensemble, David Malouf and Stephen Leek
• Tina Turner – Simply the Best!
• Film - Everything Everywhere All At Once
• Book - Women and Whitlam: Revisiting the Revolution
• Book - White Elephant Stampede
• Podcast - Shadow of a Doubt
• Book - Elizabeth & John, The Macarthurs of Elizabeth Farm
• Song - Cat’s in the Cradle
• Song – These Foolish Things (Remind Me of You)
• The Role of Courts in Our Society (2021)
• What is a Question of Law? (2014)
• Fact-Finding Made Easy (2006)
• The Implications of the Constitution (2006)
• “VicBar Crisis Service ... Saved Me and My Family"
• Lawyers’ Obligations as to Content of Tender Bundles of Affidavits, Exhibits and Legislation/Authorities
• Lawyer Apologises after ChatGPT Invents his Case Law
• “Please Don’t Expect I’ll put up with Crap” – Solicitor Cautioned for Discourtesy to Client
• New Aim and Difficulties with the Admissibility of Expert Evidence
• The 10 Overlapping Attributes of Effective Negotiators and Great Leaders – Coincidence or Not?
• Barristers’ Conduct Rules and Duty to the Court
• Non-Disclosure Conduct by a Barrister Vitiating Fee Agreement did not Render Fees Unconditionally Payable by Briefing Solicitor
• The Qualities of a Good Mediator: Abrasiveness?
• How to be a Barrister and Parent… and Succeed at Both
• Some Important Changes in the New Property Law Bill
• Class Actions 101
• The QCA and the Law as to Overturning an Unreasonable Verdict
• Not Bound by the Rules of Evidence
• Family Law – Same but Different
• When Ministerial Decisions Must Be Made Personally
• Insolvency – ‘Peak Indebtedness’
• Third Party Costs Order against Litigation Funder – “Not Motivated by Access to Justice”
• Promissory Estoppel Running with Land
• Fiduciary Duty Co-Existing with Contractual Duty
• It's Not a Lie, says Generative AI: Untruths, Defamation and the use of ChatGPT - Knowledge
• Five Top Takeaways from Australia's Flexible Work Arrangement Reforms
• District Court v The Bar – A Well Fought Battle
• Conflict Resolution Examples in History: Learning from Nuclear Disarmament
• Wartime Golf Rules
• Language – Gaslighting
• Language – Mark of Cain
• Language – The Game is Not Worth the Candle
• Language – Veni, Vidi, Vici
• “G’Day Love!” — Post-Judicial Life
• 10 Minutes with...Danny Gore KC
• The Voice Referendum – A Private Choice for Each Citizen Voter
• The Honourable David Francis Jackson AM KC
• International Women’s Day: A Barrister’s Story
• The Metamorphosis of QCs to KCs
• Technique in Trust Litigation - A Worked Scenario
• Of Law and Literature: Justice Harding’s Contribution to SLQ
• The Uncertainties of Litigation and What Are The Alternatives?
• “Stay out of Court!” says Outgoing Chief Justice
• The Rocky Bar – Law with no Bull
• Theatre - HAMILTON - Can it Teach us a Lesson in Mediations?
• Book - Living Democracy
• Film – The Banshees of Inisherin
• Book - Sneaky Little Revolutions: Selected essays of Charmian Clift
• Book - Social Security and Family Assistance Law, 4th edition
• Book - Black Lives, White Law: Locked Up and Locked Out in Australia
• Song - Universal Soldier
• Song - Four Strong Winds
• The Conscience of Equity (2009)
• Civility and Professional Courtesy
• 50 Lessons of 50 Years
• Occupational Burnout
• Illegally Procured Evidence in Civil Proceedings - Barristers’ Ethical Obligations
• Treat Colleagues with 'Courtesy and Respect', Judges Told
• Court Inveighs against Cavalier Defence Pleading and Lawyer Media Comment mid Cross Examination
• Misconduct Finding Against Barrister Making Unfounded Fraud Allegation About Deponent's Evidence
• A Spray of Biblical Proportion does not Augur Well for a Lawyer
• Kindness at the Bar
• The New (and Improved) Commercial List
• The Capacity of State and Territory Legislatures to Impose Liability on Members of the Commonwealth Executive Government
• Informal Agreements, Implied Terms and the High Court
• Interlocutory Orders in Class Actions – Including as to Security for Costs – Case Sensitive
• Self-Represented Litigant being Cross-Examined Wrongly Prohibited from Taking Notes for Re-examination
• Tortious Duty of Care Owed by a Solicitor to a Third (Non-Client) Party
• Working with Senior Counsel - How to be a Good Junior
• Artificial Intelligence Debuts at the Old Bailey
• The Unacceptable Face of Start-up Capitalism
• Awarding Reliance (cf expectation) Damages for Breach of Contract
• Winners are Grinners; Well Almost!
• Bar v UQ Students Netball Match – 5 March 2023
• Wigs and Gowns
• CIA 1944 Tips for Organisational Sabotage – Sound Familiar in Modern Mores?
• Family Court Judge Writes to Children Concerning Custody Decision – “I have told your parents to stop the crap”
• Magic Circle Firm Rolls Out 'Gamechanger' ChatGPT-Type Platform
• Privacy – Prospective Statutory Right of Action and Statutory Tort
• Language ... Pyrrhic Victory
• Language ... Pandora’s Box
• Language ... Puggy
• BAQ 2023 Annual Conference Keynote Address: How Things Have Changed
• 10 Minutes with...the Honourable Justice Philip McMurdo
• A Packet of Cornflakes: Childhood in Wartime Brisbane
• Facilitating the Taking of Evidence from Overseas Witnesses via Video – Issues for Consideration
• Private Nuisance - Mere Overlooking, or Use for Overlooking?
• President’s Valedictory and Swearing-in Speech - Jackson and Sullivan JJ
• Pleading Tips and Strategy
• The Queen is Dead – Long Live the Rule of Law
• BAQ 2023 Annual Conference Photo Gallery
• Why (and How) to Join the National and State Libraries
• The Honourable Sir Francis Gerard Brennan AC KBE GBS (1928-2022)
• Pride in Law 6th Annual Address: ‘It's the Wine, Not the Label'
• Reforming the Law of Domestic and Family Violence - an Offence of Coercive Control
• The Forced Retirement of Judges, Vegemite, Doris Day and other matters.
• Annual Bar Dinner 2022
• Family Law and Equity - Friends, Enemies or Frenemies?
• 10 Minutes with… Kathryn McMillan KC
• The Russo-Ukrainian War – A Legal Guide
• Cybersecurity and the Bar
• Swearing-in of the Honourable Justice Lincoln Crowley
• Goodbye Breyer: Public Servant and Supreme Jurist
• Sentencing (Adults) - A Practical Update
• "Artist's Impression" and Misleading or Deceptive Conduct
• Pleading Causation
• 10 minutes with... the Honourable Justice David Boddice
• Security for Costs - Some Recent Issues
• The Art of Written Submissions
• Swearing in of Chief Justice Bowskill
• Valedictory for Chief Justice Holmes
• 10 minutes with ... Andrew Philp QC
• The Brisbane River Flood litigation falls - CLA s 36 rises
• Bar Practice Courses
• Security for costs provided by “After the Event” insurance
• ICLRQ Model Law Library
• Flight From Paradise
• City on Fire
• Case Note: Reflections on the recent High Court Decision in Love Commonwealth of Australia [2020] HCA 3: The Constitution, Indigenous Rights and Immigration Law
• Abandoning Non Delegable Duty of Care
• Freyberg: A Life's Journey
• Going Dark - The Secret Social Lives of Extremists
• The Second Annual Bench vs. Bar Cricket Match
• Love v the Commonwealth and Constitutional Recognition; is Australia getting close?
• Case Note: AED v Registrar-General of Births, Deaths and Marriages [2019] QSC 287 — Discharging adoption in “exceptional circumstances” under section 219(1)(c) of the Adoption Act 2009
• COVID-19 Updates
• Supreme Court Library Queensland — Answering Frequently Asked Questions
• BAQ Indigenous Law Student Program strikes Advocacy Flame for Wyatt
• Retirement of His Honour Chief Judge Kerry O’Brien
• The Legal Career of John Griffin QC
• CPD Seminar: Ethics - Thinking with your brain and with your body: The neurobiology of decision making and implications for mental health and well-being
• 2019 Employment and Industrial Relations Conference
• From the Courts — Practice Directions
• Speeches and Legal Articles of Interest
• Bar Practice Course 73
• President's Welcome
• Tri-State Bar Sports Law Conference & Football Tournament
• The Ouija Board Jurors: Mystery, Mischief and Misery in the Jury System
• Interpretation of Testamentary Documents
• Jesting Pilate and Other Papers and Addresses
• Overturning terra nullius: the story of native title
• Inaugural Indigenous Law Student Program
• Bar Team to Return to Lecture in PNG
• Honouring 50 Years at the Bar
• ABA Convergence Conference Update
• BarCare and Resilience at the Bar
• Note on R v Dewey [2019] QCA 161
• CLI Seminar: Propensity Evidence Reform Commentary
• Bar Dinner 2018
• Access to Justice
• Aboriginal and Torres Strait Islander Students’ Moot Competition
• Criticism of the courts and judges:
• Hanrick Curran
• The Dominance of Contract over Tort Law in Pure Economic Loss Claims
• From the ashes: the Supreme Court fire of 1968
• High Court of Australia Judgment Summary Notes
• Big enhancements to family law eFiling coming soon
• Court of Appeal Judgment Summary Notes
• Perspectives on Retirement from The Bench
• Book Review: Innovation and Venture Capital Law and Policy
• “I was there, and I survived, and I’m here”
• Neuroplasticity and Implications for Mental Health
• Allianz Insurance PLC and Ors v Tonicstar Limited [2018] EWCA 434
• Trusts, Fiduciaries and Awards of Interest in Equity
• Book Review: The Politics of Heaven, America in Fearful Times
• Morgans Tynan Partners
• Tonicstar Limited v Allianz Insurance PLC
• Vicarious Liability in Tort
• Queensland Legal Yearbook 2016
• Everything You Wanted to Know About Appearing in the Supreme Court but Were Afraid to Ask
• Book Review: The Lacuna

Assignability of a Bare Cause of Action – Recent Findings

In a judgment of the Court of Appeal of the Supreme Court of Western Australia in Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] [2023] WASCA 58 (18 April 2023) as delivered on 18 April 2023, the validity of an assignment of a bare cause of action was confirmed. In its decision the Court referred with approval to the Queensland Court of Appeal decision in Workcover Queensland v AMACA Pty Limited ([2012] QCA 240 (7 September 2012) 2 Qd R 276), and in particular the comments of McMurdo P at [16] – [17] Gotterson JA at [65] – [66].

Relevantly, the judgment of the Court stated:

• This is an appeal against orders of Kenneth Martin J pursuant to reasons for judgment published in Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] 1 ( primary decision ).
• In the primary proceedings, the appellant ( Billabong ) sued the first respondent ( Vango ) and the second respondent ( Dampier ) in relation to alleged breaches of an Ore Treatment Agreement dated 23 September 2014 ( OTA ). The dispute essentially concerned the proper construction and application of a ‘right of first refusal’ clause in the OTA and its assignability.
• Billabong was not a party to the OTA when it was formed. The OTA was entered into by Vango and Dampier on the one hand, and a company called Northern Star Resources Ltd ( Northern Star ) on the other. At the time, Vango 2 and Dampier were joint venturers pursuant to a joint venture agreement dated 18 November 2013. The joint venture ( Plutonic Dome JV ) held a number of tenements, including tenements from which gold was produced at a deposit known as the ‘ K2 Deposit ‘. At the time, Dampier was a subsidiary of Dampier Gold Ltd ( Dampier Gold ). Subsequently, on 24 August 2016, Vango acquired from Dampier Gold all of the shares in Dampier, and Dampier became a wholly owned subsidiary of Vango. The practical effect of this was that Dampier Gold had no continuing direct or indirect interest (via Dampier) in the Plutonic Dome JV or its tenements from the end of August 2016.
• Pursuant to the OTA, Northern Star, which had its own gold operations nearby, could be called on to crush and treat gold ore produced by the Plutonic Dome JV from the K2 Deposit. The K2 Deposit was a component of a greater number of mining tenements the subject of the Plutonic Dome JV. 3 The OTA contained, in cl 12.6, a ‘right of first refusal’ clause in favour of Northern Star which, when triggered required, Vango/Dampier to offer Northern Star an interest in the tenements held by the Plutonic Dome JV.
• On 12 August 2016, Northern Star entered into an asset sale and purchase agreement with Billabong ( Billabong Sale and Purchase Agreement ) under which Northern Star agreed to sell its gold mining operations, including its tenements, to Billabong. Billabong was a subsidiary of a Canadian company and was incorporated on 27 July 2016, shortly prior to the entry into the Billabong Sale and Purchase Agreement.
• As part of the sale to Billabong, Northern Star and Billabong also entered into a General Deed of Assignment and Assumption dated 11 October 2016 ( Billabong Assignment Deed ).
• it acquired, by way of assignment, Northern Star’s rights under the OTA;
• Vango/Dampier breached cl 12.6 of the OTA by failing to provide offers for the transfer of tenements to Northern Star in early 2016, and to Billabong in 2017, when the offer criteria in the OTA w ere engaged; and
• Billabong, as assignee of Northern Star, was entitled to mandatory injunctions requiring equivalent offers to be made to it in relation to the Vango/Dampier tenements.
• by events in around May 2016 involving a transaction by which Dampier conditionally agreed to sell its 40% interest in the Plutonic Dome JV Tenements to Vango; and
• by transactions in 2017 involving Vango/Dampier and Dampier Gold under which it was agreed that Dampier Gold could, in effect, reacquire an interest in the K2 Tenements by the commitment of certain capital expenditure.
• Vango/Dampier breached cl 12.6 of the OTA in 2016 by failing to offer the tenements to Northern Star.
• The 2016 cause of action in favour of Northern Star arising from that breach was a bare cause of action which was not assignable to Billabong. Accordingly, his Honour held, Billabong had no claim to relief in respect of the breach of the OTA in 2016.
• Even if that cause of action were assignable, the delay by Northern Star (as assumed assignor) in enforcing the obligation meant that Billabong (as assumed assignee) was disentitled to mandatory injunctive relief, and Billabong would have been confined to a remedy of damages at law.
• Vango/Dampier breached cl 12.6 of the OTA in 2017, and Billabong was entitled to mandatory injunctive relief requiring an offer to be made to it in relation to the K2 Tenements.
• Pursuant to the last‑mentioned finding, the judge made final orders requiring Vango/Dampier to make an offer to Billabong in respect of the K2 Tenements. An offer was made and accepted by Billabong prior to the hearing of this appeal.
• As explained in more detail later, in this appeal Billabong challenges the judge’s finding that the cause of action vested in Northern Star in 2016 was not assignable to Billabong, and the finding that even if it were assignable, Billabong would only be entitled to common law damages for the breach. Vango/Dampier contends that the judge was correct to find that the cause of action in 2016 was not assignable, but accepts that if it were assignable, the judge erred in finding that the breach precluded the grant of mandatory injunctive relief. Vango/Dampier also contends that having succeeded at trial in respect of the 2017 breach of the OTA, and obtained and accepted an offer in respect of the K2 Tenements, Billabong is now precluded from obtaining mandatory equitable relief in respect of the 2016 cause of action, including on the basis that it would cause hardship to Vango/Dampier. Accordingly, Vango/Dampier contends, even if the grounds of appeal succeed, this court ought not in any event grant mandatory injunctive relief in respect of the 2016 breach of the OTA.
• For the reasons which follow, the appeal should be allowed. The assignment by Northern Star to Billabong of the cause of action for breach of cl 12.6 of the OTA in 2016 is not properly characterised as the assignment of a bare cause of action. Also, Vango/Dampier has not established any basis for refusing the grant of mandatory equitable relief. In particular, Vango/Dampier is not entitled to raise the defence of hardship for the first time on appeal.

Issue 1 – assignability Principles

• It has long been said that generally a ‘bare right of action’ is not assignable. This remains the general rule. 4  This general rule is founded on public policy notions related to the doctrines of maintenance and champerty. 5  In general terms, maintenance is the financial support of litigation without just cause, and champerty is an aggravated form of maintenance marked by the feature that the stranger supporting the litigation will receive, in return, a share of the proceeds. 6  It has been described as ‘trafficking in litigation’. 7
• Historically under the general law, champerty was ‘especially feared’ because the champertor’s financial stake in the litigation was regarded as providing a temptation to suborn witnesses or pursue worthless claims. In particular, the early concern expressed was that the remedial processes of the law might be used as a tool of oppression, particularly by powerful nobles and officers. 8  In the Court of Appeal in  Giles , 9 Steyn LJ observed, with reference to Professor Winfield’s article on ‘The History of Maintenance and Champerty’: 10

At the risk of oversimplifying the results of Professor Winfield’s research, it seems that one of the abuses which afflicted the administration of justice was the practice of assigning doubtful or fraudulent claims to royal officials, nobles or other persons of wealth and influence, who could in those times be expected to receive a very sympathetic hearing in the court proceedings. The agreement often was that the assignee would maintain the action at his own expense, and share the proceeds of a favourable outcome with the assignor. Often these disputes involved a claim to the possession of land, and the subsequent sharing of land if the action was successful.

• The law of maintenance and champerty did not however stand still, but accommodated itself to changing times. 11  The adverse consequences inimical to the public interest, that maintained actions were thought likely to produce, altered over the course of time and with changing social conditions, as did the recognition of what constituted a sufficient interest to justify interference in another’s litigation by supporting it. 12  By the early 20th century: 13

The law of maintenance and champerty depended upon the application of qualifications and exceptions hinged, for the most part, about what was an item of property as distinct from a bare right to litigate and what sufficed as a common interest between maintainer and the maintained. In  British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd , Fletcher Moulton LJ said: 14 ‘The truth of the matter is that the common law doctrine of maintenance took its origin several centuries ago and was formulated … and defined … in such a way as to indicate plainly the views entertained on the subject by the Courts of those days. But these decisions were based on the notions then existing as to public policy and the proper mode of conducting legal proceedings. Those notions have long since passed away, and it is indisputable that the old common law of maintenance is to a large extent obsolete … The present legal doctrine of maintenance is due to an attempt on the part of the Courts to carve out of the old law such remnant as is in consonance with our modern notions of public policy … Speaking for myself, I doubt whether any of the attempts at giving definitions of what constitutes maintenance in the present day are either successful or useful. They suffer from the vice of being based upon definitions of ancient date which were framed to express the law at a time when it was radically different from what it is at the present day, and these old definitions are sought to be made serviceable by strings of exceptions which are neither based on any logical principle nor in their nature afford any warrant that they are exhaustive …  [T]here is still such a thing as maintenance in the eye of the law, … and the general character of the mischief against which it is directed is … against wanton and officious intermeddling with the disputes of others in which the defendant has no interest whatever, and where the assistance he renders to the one or the other party is without justification or excuse . But in my opinion it is far easier to say what is not maintenance than to say what is maintenance.’ (emphasis added) (footnotes omitted)

• As the boundaries of unlawful maintenance were pushed back, the prohibition on the assignment of a bare right to litigate became more strictly confined. 15  Moreover, the exceptions or justifications which allow a person or body to maintain a litigant in a suit do not form a closed category. 16
• Whilst the class of exceptions and justifications is not closed, there are a number of well‑recognised categories of case which are exceptions to the general rule prohibiting the assignment of a bare right of action, or to which the general rule does not apply.
• First, a right of action can be assigned if it is annexed to or ancillary to a property right being assigned. 17  Secondly, and more broadly, 18  even where the right of action is not annexed or ancillary to a property right, the rule does not apply if the assignee of the subsisting cause of action itself has a genuine and substantial interest, or a genuine commercial interest, in enforcing the claim that is otherwise distinct or separate from the interest merely derived from the assignment itself. 19  The requirement that the commercial or other interest be ‘distinct or separate’ exists because, were it otherwise ‘the exception would swallow the rule because the assignment itself would always provide the commercial interest’. 20 Thirdly, albeit perhaps illustrative of the second category, there is no prohibition on an assignee taking an assignment of a cause of action to support and enlarge a right already acquired. 21  Fourthly, where the benefit of a contract is assigned, there is no impediment, on the grounds of maintenance or champerty, to the assignee pursuing a cause of action for breach which has occurred after the date of assignment. 22
• In  Trendtex , the bank, Credit Suisse, took an assignment of a right of action being pursued by its customer, Trendtex, in connection with a consignment of cement to Nigeria in which a letter of credit had been dishonoured. Credit Suisse was held, in effect, to have a sufficient commercial interest in the litigation as it was a substantial creditor of Trendtex in connection with the arrangements for the consignment. However, the assignment agreement also provided for Credit Suisse to on sell the cause of action to a third party, and this latter aspect of the assignment was held to savour of champerty. That was effectively because the third party had no interest in the assignment that was distinct from the assignment itself. 23
• Genuine commercial interests have also been found in the relationship of members of the one corporate group, as well as in the relationship of shareholders and company. 24
• In  WorkCover Queensland , a statutory body which had paid compensation in excess of $0.5 million to a worker injured by asbestos when working for the defendant, took an assignment of the worker’s common law claims against the defendant from the worker’s personal legal representative after his death. It was held that the statutory body had a genuine commercial interest in recouping its payment to the worker. 25
• In  Rialto Sports Pty Ltd v Cancer Care Associates Pty Ltd , 26  the facts were that in 2014, the owner/developer of a strata building (Rialto) sold lots to various purchasers, including a lot to a company called SRProp. In 2018, SRProp and other purchasers commenced proceedings in the District Court against Rialto for breach of contract in respect of defective work in the common areas. On 20 May 2020, SRProp entered into an agreement to sell its lot to another company (CCA). The contract for sale was completed on 1 July 2020. On the same date (1 July 2020), SRProp also assigned, by deed, its claims in the District Court proceedings against Rialto. Rialto contended that the assignment was ineffective on the basis that CCA did not establish that it had a substantial pre‑existing commercial interest in the action by SRProp. It was held that the assignment was effective for two reasons. First, CCA had a sufficient interest in the action as at the time of the assignment (1 July 2020), having completed by then the purchase of the lot. Secondly, CCA also had a genuine and substantial pre‑existing commercial interest in the suit at that time by reason of having entered into the contract to purchase the lot on 20 May 2020. 27
• In every case, the totality of the transaction must be considered. 28  As has been observed, the concept of a genuine commercial interest is to be applied in a broad and practical way. 29  So long as the asserted commercial interest is both genuine and distinct from the assignment itself, there is no reason in principle to give a limited ambit to the notion of a sufficient commercial interest.
• Vango/Dampier nevertheless contended that for the assignment of a cause of action not to savour of maintenance, the relevant commercial interest must exist prior to the assignment. Reference was made to  WorkCover Queensland  and, in particular, to the observations of McMurdo P 30  and Gotterson JA (with whom Martin J agreed). Gotterson JA said: 31

From the discussion in the cases, several characteristics for sufficiency as a genuine commercial interest in this context can be discerned. In the first place, where the assignee relies on a genuine commercial interest to sustain an assignment, that interest must be one that has come into existence prior to the assignment. Plainly, a commercial interest in exploiting an assigned right, even if to recoup an amount paid in exchange for the assignment, would not, of itself, suffice. A commercial interest merely of that kind would tend to taint the assignment as savouring of maintenance or as champertous. It was on that basis that the assignment in  Trendtex  failed. The anonymous third party assignee had had no prior dealings with the parties to the assigned causes of action from which a genuine commercial interest might have arisen prior to the assignment.

Secondly, the pre-existing commercial interest need not be an interest which, itself, is enforceable at law or in equity. In  Brownton , for example, the commercial interest that a defendant who had settled with the plaintiff had in recouping, if only partially, against another defendant who had refused to settle, was held sufficient to sustain an assignment of the plaintiff’s rights against that defendant to the other defendant who had settled. The assignee’s interest in recoupment was not a legally enforceable interest; yet, clearly, it was a genuine commercial interest which was in existence at the time of the assignment. Another example is found in  Victoria Insurance Co v King  which concerned an assignment by an insured to an underwriter of causes of action against a tortfeasor in circumstances where the insured did not have a right of subrogation. The underwriter clearly had a commercial interest in recouping payment made under the policy. Griffith CJ (with whom Chubb and Real JJ concurred) was in no doubt that the assignment was valid. (footnotes omitted)

• Those observations in  WorkCover Queensland  were applied in  Dover v Lewkovitz . 32
• For the reasons given below, we are not persuaded that for the purposes of the second category referred to in [ 126 ] above, a pre‑existing commercial interest is a necessary criterion, without which the assignment of the cause of action would necessarily fail. That is, while a commercial interest sufficient to support the assignment of a cause of action must be ‘separate or distinct’ from the interest in the assignment, it need not necessarily be ‘pre-existing’. A separate or distinct interest has no necessary temporal requirement.
• First, the need for a pre‑existing commercial interest does not appear to have been established by the High Court in  Equuscorp , and, as Vango/Dampier accepted, the judgment of French CJ, Crennan and Kiefel JJ is contrary to its proposition. 33   Equuscorp  concerned tax‑driven arrangements in which members of the public were invited to invest in blueberry farming schemes. Under these arrangements, a company (Rural) would advance money to lenders. Rural was a member of a group of companies controlled by the promoters of the scheme. Equuscorp had obtained, in 1991, charges over Rural to secure certain loan funds provided to the promoters. The farming enterprise collapsed. After the collapse, Equuscorp, in 1997, took an assignment of the loan agreements from the receivers and managers of Rural and sued the investors under the loan agreements. The loan agreements were held to be unenforceable for illegality, having been made contrary to the requirements of the law regulating the issue of prescribed interests. Equuscorp also claimed, in the alternative, for restitution of the advances made under the loan agreements as money had and received. 34 There were issues as to whether (1) the claims in restitution was assignable by Rural to Equuscorp, and (2) if so, whether the instrument of assignment, properly construed, assigned to Equuscorp the claims in restitution. Each member of the High Court held that as a matter of principle, the claims in restitution were assignable. French CJ, Crennan and Kiefel JJ held that Equuscorp had a legitimate commercial interest in acquiring the restitutionary rights upon the assignment of the purported contractual rights. Their Honours said: 35

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. (emphasis added)

• As can be seen from this passage, the commercial interest found by their Honours to sustain the efficacy of the assignment was contemporaneous with the assignment itself.
• In  Equuscorp , Gummow and Bell JJ 36  and Heydon J 37  also held that the claims for money had and received were assignable, but found that the charge granted to Equuscorp by Rural over its assets in 1991 provided a sufficient commercial interest. Heydon J, however, also noted that the respondents had not explained why the assignment deed in 1997 was not itself sufficient to assign the causes of action for money had and received insofar as the loan instrument (in cl 4(i)) also included a charge by the investor/borrower in favour of Rural. 38  His Honour however did not pursue the point, as it was one ‘rather under‑analysed on both sides’. 39
• Secondly, the point has been left open by the New South Wales Court of Appeal in  Bakewell . 40  Further, the point was not under consideration in  Dover , where, relevantly, the only question was whether the relevant commercial interest could exist in the absence of a pre‑existing enforceable right against the assignor. 41
• Thirdly, as Ipp JA explained in  Project 28 , 42  the interest ‘must be distinct from the benefit that the person supporting the action seeks to derive from the litigation. … It must be something beyond a mere personal interest in profiting from the outcome of the proceedings’. Also, in  National Mutual Property Services , Lindgren J observed that, in this context, the expression commercial interest: 43

refers to a commercial interest which exists already  or by reason of other matters , and which receives ancillary support from the assignment. (emphasis added.)

• That passage was cited with evident approval in  Rialto , 44  where Gleeson JA (with whom Bell CJ & Macfarlan JA agreed) also emphasised the words we have italicised.
• To similar effect, in  TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) , 45  Finkelstein J referred to the ‘inescapable’ logic of Lord Roskill’s view in  Trendtex , and said:

This is especially so when … the cause of action is connected with, or relates to, rights or interests owned,  or that will fall into the ownership, of the assignee . (emphasis added)

• Consistently with these authorities, what is required, in our respectful view, is that the interest be  distinct from  the assignment itself, not that it necessarily predate it. A pre‑existing commercial interest will typically be evidence of an interest distinct or separate from the interest acquired under the assignment itself. As we would respectfully understand the observations of their Honours in  WorkCover Queensland , the need for a distinct or separate interest was supplied by the existence of a pre‑existing commercial interest in recouping the payments to the deceased worker, which arose upon payment of the compensation. Insofar as  WorkCover Queensland  may have appeared to indicate  Trendtex  required the interest predate the assignment, that proposition does not, with respect, seem to follow from  Trendtex  (see [ 127 46 ] above).72
• The evidentiary significance of a pre‑existing commercial interest does not, in our view, make such an interest a strict legal criterion conditioning the validity of the assignment. If, for example, the only asset of a subsidiary of a holding company was a cause of action in contract which it was pursuing against a defendant, and the holding company sold the shares in the subsidiary to a third party who also took an assignment of the subsidiary’s cause of action, it is difficult to see why the sufficiency of the assignee’s commercial interest would depend upon whether the transaction was structured in stages under which the sale of shares occurred first, followed by the assignment of the cause of action.
• Fourthly, in the case of  Giles , the House of Lords considered the position of a car rental company which provided replacement hire vehicles to motorists who had been involved in a motor vehicle accident, where the terms of the rental provided for the car rental company to sue the defendant in the motorist’s name, and to recover its hire charges from the judgment. The car rental company had no pre‑existing commercial interest in connection with the motorist’s cause of action prior to entering into the car rental agreement on the terms which allowed it to maintain an action against the defendant. It was held that the car rental agreement was not champertous. Lord Mustill (Lords Keith of Kinkel, Ackner, Jauncey of Tullichettle & Lowry agreeing) said: 47

There is no ‘wanton and officious intermeddling’ in the dispute between the motorist and the defendant. The [car rental] company does not meddle at all, but allows the motorist to get on with the claim, and merely awaits a favourable result. True, the [car rental] company makes a profit, but this comes from the hiring, not from the litigation. For my part, I think it quite plain, without the need to go into any details of the law, that this transaction is neither champertous nor invasive of any requirement of public policy.

• Fifthly, nothing in the policy justification for the rule – namely the avoiding of trafficking in litigation – imports the requirement that the relevant commercial interest must always predate the assignment. In effect, senior counsel for the respondents accepted that this is so. 48  Each case will depend upon its own facts and circumstances, 49 and the transaction must be considered as a whole, in assessing whether the assignment involves ‘wanton and officious intermeddling with the disputes of others in which the [assignee] has no interest whatever …’. 50

1        Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] [2021] WASC 459.

2        Vango was then known as Ord River Resources Ltd ( Ord ).

3        Primary decision [149].

4        Poulton v Commonwealth   [1953] HCA 101 ; (1953) 89 CLR 540, 571, 602;  Equuscorp Pty Ltd v Haxton   [2012] HCA 7 ; (2012) 246 CLR 498 [49] ‑ [51], [79].

5        Georgiadis v Australian & Overseas Telecommunications Corp   [1994] HCA 6 ;  (1994) 179 CLR 297 , 311;  Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd   [2006] HCA 41 ;  (2006) 229 CLR 386  [74];  Equuscorp v Haxton  [49] ‑ [50]; Starke J,  Assignments of Choses in Action in Australia  (1972), pages 62 ‑ 64; Tolhurst,  The Assignment of Contractual Rights  (2nd ed) [6.06], [6.59].

6         Giles v Thompson   [1993] UKHL 2 ;  [1993] 3 All ER 321 , 328, and on appeal to the House of Lords,  Giles v Thompson   [1993] UKHL 2 ;  [1994] 1 AC 142 , 161, 163;  UTSA Pty Ltd v Ultra Tune Australia Pty Ltd   (1996) 21 ACSR 457 , 463 (Hayne JA, as his Honour then was).

7        Trendtex  (694);  Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd   [2020] QCA 250 ; (2020) 6 QR 487 [77].

8        Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd   (1997) 72 FCR 261 , 267;  Giles  (153); see also the discussion in  Gladstone Ports  [36] ‑ [52] .

9        Giles  (328), approved by Lord Mustill on appeal (163).

10      (1919) 35 LQR 50.

11       Giles  (164);  Bakewell v Anchorage Capital Master Offshore Ltd   [2019] NSWCA 199 ;  (2019) 372 ALR 349  [42].

12        Magic Menu  (267); see, generally, the review of the development of the law of maintenance and champerty by Gummow, Hayne and Crennan JJ in  Campbells Cash  [66] ‑ [82];  Gladstone Ports  [53] ‑ [54].

13      Campbells Cash  [78].

14      British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd   [1908] UKLawRpKQB 46 ;  [1908] 1 KB 1006 , 1013 ‑ 1014.

15      Brownton Ltd v Edward Moore Inbucon Ltd   [1985] 3 All ER 499 , 507.

16      Stevens v Keogh   [1946] HCA 16 ;  (1946) 72 CLR 1 , 28.

17      Krishell Pty Ltd v Nilant   [2006] WASCA 223 ;  (2006) 32 WAR 540  [77];  Trendtex  (703);  Ellis v Torrington   [1920] 1 KB 399.

18      Equuscorp  [51].

19      Trendtex  (694, 703);  Equuscorp  [51], [79], [156];  Campbell’s Cash  [73];  Gladstone Ports  [77];  Magic Menu  (267);  Project 28 Pty Ltd v Barr   [2005] NSWCA 240  [40] ‑ [41];  National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (No 1)   [1995] FCA 1628 ;  (1995) 132 ALR 514  [539] ‑ [540] ;  Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Ltd   [2007] FCAFC 52 ;  (2007) 158 FCR 417  [64].

20      Anchorage Capital Master Offshore Pty Ltd v Sparkes   [2019] NSWSC 384  [28].

21      Trendtex  (703);  Hazard Systems Pty Ltd v Car‑Tech Services Pty Ltd (in liq)   [2013] NSWCA 314  [15].

22      Torkington v Magee   [1902] UKLawRpKQB 119 ;  [1902] 2 KB 427 , 431, 434 ‑ 435 (reversed on other grounds  Torkington v Magee  [1903] UKLawRpKQB 61 ;  [1903] 1 KB 644).

23      Trendtex  (694, 703 ‑ 704)

24      Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd   [2007] SASC 322 ;  (2007) 99 SASR 178  [19] ‑ [22].

25      WorkCover Queensland  [16] – [18], [65] – [68].

26      Rialto Sports Pty Ltd v Cancer Care Associates Pty Ltd   [2022] NSWCA 146.

27      Rialto  [129] – [132].

28      Trendtex  (703);  Giles  (164).

29      Scholle Industries  [22].

30      WorkCover Queensland  [16] ‑ [17].

31      [57]   WorkCover Queensland  [65] – [66].

32      Dover  [23] ‑ [25].

33      Appeal ts 124.

34      Equuscorp  [1] – [3], [7], [9], [17] – [19], [70], [71].

35      Equuscorp  [53].

36      Equuscorp  [79].

37      Equuscorp  [156].

38      Equuscorp  [154] – [155].

39      Equuscorp  [156].

40      Bakewell  [63] – [76].

41      Dover  [18] – [25].

42      Project 28  [41].

43      National Mutual Property Services  (540); see also,  Re Tosich Construction Pty Ltd   (1997) 73 FCR 219 , 227.

44      Rialto  [130].

45      TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3)   [2007] FCA 151 ;  (2007) 158 FCR 444  [81].

46      WorkCover Queensland  [65].

47      Giles  (161).

48      Appeal ts 122 – 123.

49      Bakewell  [72].

50      British Cash & Parcel , referred to in [ 123 ] above.

The Austlii link to the judgment is: BILLABONG GOLD PTY LTD -v- VANGO MINING LTD [No 2] [2023] WASCA 58 (18 April 2023) (austlii.com)

03 Dec 2018

The practical issues of assigning a right to sue

Selling the ‘chose in action’—will it be a game changer.

• What rights to sue can be sold?
• How to determine the value of the claim/prospective claim and how much to sell it for?
• What information can be provided?
• How long will the assigned action take to conclude?
• Are there risks that cannot be assigned?

Business can be tough

Our team is focused and ready to help

Subscribe for all the latest help and news

Positive options start by having a conversation

For a no obligation and confidential chat, fill in your details and our team will reach out to you.

Subscribe Now

Get all the latest updates from Worrells