Opes investors fail at first hurdle

By Legal Eagle

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.

11 Comments

  1. Posted May 8, 2008 at 9:01 pm | Permalink

    Completely agree with you. While a few people I know were caught up in this (and in the Link matter) IMHO the legal outcome is clear. It just shows (again) why it is important to read that fine print on any agreement you sign and if you do not understand it, get advice.

    The ANZ will have a few other Companies Act issues coming out of this, but this is not an issue they should have to worry about.

    The other interesting question is a disclosure one – should Opes, Link, the ANZ and MS have lodged substantial shareholder notices under these agreements? I would have thought that, if they claimed title as they are here they should have had to lodge notices – which would have warned the original owners that they no longer owned the shares.

  2. Stephen Lloyd
    Posted May 9, 2008 at 3:50 am | Permalink

    I fail to see how it is any different in nature to partially paid ordinary shares?

    If a company is liquidated, and there are partially paid ordinary shares (a rare ocurrence these days), the shareholders are required to pay the outstanding amount.

    I know its a little different in nature, but where liquidation is concerned, it seems to be the same doctrine to me?

  3. Stephen Lloyd
    Posted May 9, 2008 at 4:02 am | Permalink

    Slightly off topic, I think CFDs are a ticking time bomb too.

    They are heavily advertised on Sky News now, and people who don’t know what they are doing can get into real trouble with them.

    Losses are potentially bottomless, yet the advert on Sky News sates that you can effortlessly turn $300 into $10,000.

    I give it a few years and there’ll be big problems with them if the Govt. doesnt take measures to regulate them in some way, preferably through disclosure and accountability, not through limitation or outright banning.

  4. Posted May 9, 2008 at 11:23 am | Permalink

    LE,
    I would agree. This is going to run for a while yet. That said, ANZ did have a prima facie right to sell the shares under their agreement with Opes and Opes’s agreements with their clients. If the clients signed agreements they did not have the power to sign (in the case of the super funds) then (perhaps) the funds might have claims against the trustees. Interesting in the case of a SMSF.
    All the competing claims, though, will have to be sorted out in court, with hizzoner being correct that monetary compensation being the appropriate remedy. It should be fun.

  5. Spiros
    Posted May 9, 2008 at 11:29 am | Permalink

    So who got the paid the dividends on the shares while they were “lent” to Opes (and on-lent to ANZ and Merrill Lynch)?

    If the original owners got no dividends (and especially if they were told they had no right to them, because they were no longer the owners of the shares) then it would be difficult for them to claim that they thought they were the rightful owners.

    On the other hand, if they receive dividends, then then the original owners could claim they were misled into believing that they in fact owned the shares.

  6. Spiros
    Posted May 9, 2008 at 11:53 am | Permalink

    And, warming to my theme, were the original owners invited to vote on motions at AGMs, invited to participate in rights issues, buy backs, and all the other trappings of share ownership?

  7. Spiros
    Posted May 9, 2008 at 12:39 pm | Permalink

    Well, at the very least, it’s hard to see how they can be liable for the tax on those dividends. My argument is as follows. I own shares in BHP. You think you own them, but actually I do. As the owner of the shares, I am entitled to the dividends. Now I may choose to give those dividends to you, but the tax liability is still mine. You aren’t liable to pay tax on the value of this gift.

  8. Posted May 9, 2008 at 10:57 pm | Permalink

    LE,
    My guess is that the agreement effectively seperated the legal rights that arise from the ownership (dividends, voting etc) from the ownership of the shares themselves.
    The loses that result from the sale of the shares would be a capital loss for tax purposes, so would not be able to be offset from the revenue received (i.e. the dividends).
    Again, though – this will have to be up to the courts. It is going to be good fodder for a few QCs and SCs over the next few years.

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