Federal Court of Australia

Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 1 of the orders made on 19 March 2020, order 5 of the orders made on 11 May 2020 and order 1 of the orders made on 22 July 2020 be set aside.

3.    The matter be remitted to the primary judge on the question of what, if any, relief should be granted under ss 236 and 237 of the Australian Consumer Law and any issues as to costs of the proceedings below.

4.    The respondents pay the appellant’s costs of and incidental to this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A    INTRODUCTION

1    The factual background to this appeal was comprehensively set out by the primary judge in Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 (PJ) and it is unnecessary to set out that background again. It suffices for the purpose of this appeal to record the following:

(1)    The appellant (Harvard) is a company controlled by Mr John Caratti.

(2)    Harvard was the registered proprietor of a farm in Western Australia known as “Warriup Farm” and Mr John Caratti and his brother Mr Allen Caratti were the registered proprietors of another farm known as “Howick Farm”.

(3)    Prior to January 2019, Harvard had leased Warriup Farm to Mammoth Investments Pty Ltd (Mammoth), a company of which Mr John Caratti was a director, which then subleased it to the first respondent, Mr Tiller and the fifth respondent, Mrs Tiller; Mr John Caratti and Mr Allen Caratti had also leased Howick Farm to Mammoth which also had subleased that property to Mr and Mrs Tiller.

(4)    A series of transactions then took place which included the surrender by Mr and Mrs Tiller of their subleases (Tiller Subleases) over Warriup Farm and Howick Farm (together, the Farms), the surrender by Mammoth of its lease over Warriup Farm and the assignment of Mammoth’s head lease of Howick Farm to Harvard. These transactions were entered into to allow two new leases to be entered into (New Leases) being: (a) a lease of Warriup Farm by Harvard to Mr Tiller and to the second respondent, Dimension Agriculture Pty Ltd (Dimension); and (b) a sublease of Howick Farm by Harvard to Mr Tiller and Dimension.

(5)    Prior to entry into this series of transactions, in late January 2019, Mr Tiller and Dimension engaged in misleading and deceptive conduct. This conduct arose because although Dimension had one shareholder, the fourth respondent, Mr Bryce, and its directors were Mr Bryce and Mr Tiller, Dimension in fact was a vehicle of the third respondent, Mr Nicoletti, and had been structured in such a way as to prevent Mr John Caratti being aware of Mr Nicoletti’s involvement. This was of significance because Mr John Caratti did not want to enter into a lease arrangement involving Mr Nicoletti. Mr John Caratti perceived Mr Nicoletti as “bonded” to Mr Allen Caratti, a person against whom he bore a great deal of animosity, and Mr Nicoletti had the capacity to pay a significantly higher rent than the rent proposed under the New Leases (such that Mr Nicoletti’s involvement would have “put a very different complexion on a proposed lease for what was believed to be below market rent”: PJ [364]).

(6)    The entry into the New Leases by Harvard took place in reliance upon a misleading and deceptive representation made by Mr Tiller and Dimension as to the involvement of Mr Nicoletti in Dimension.

(7)    When this ruse was discovered, by a letter from its solicitors dated 2 April 2019, Harvard asserted misleading or deceptive conduct and “fraudulent misrepresentation” and notified Mr Tiller and Dimension that Harvard “elected to rescind” the New Leases.

(8)    The Tiller Subleases having been surrendered and having given notice of rescission of the New Leases, on 17 April 2019, Harvard executed a lease of the Farms to companies associated with the Fowler family (Fowler Lease); this was to commence on 1 May 2019 but was subject to Harvard obtaining vacant possession of the Farms by 30 April 2019.

(9)    Unbeknownst to Harvard, subsequent to the entry into the New Leases, by deed (15 February Deeds) Mr Tiller assigned his interests in the New Leases to Dimension and agreed to have no involvement in pastoral activities on the Farms. The primary judge also found that the failure to disclose the 15 February Deeds amounted to misleading and deceptive conduct from 15 April 2019 onwards because, on that date, a letter had been sent by solicitors on behalf of Mr Tiller and Dimension which did not reveal the true position.

2    Despite the findings of the primary judge that Mr Tiller and Dimension had engaged in contravening conduct, Harvard was unsuccessful in obtaining relief. This result followed his Honour concluding that Harvard had failed to establish that it suffered or was likely to suffer any loss or damage. In broad terms, this appeal turns upon whether this conclusion as to a failure of Harvard to establish any loss or likely loss was correct.

3    Prior to proceeding further it is important to make a preliminary point. The case advanced before the primary judge was confused and confusing. Much time on the appeal was taken up seeking to identify with precision the case advanced below and whether the case now articulated on appeal (by senior counsel not involved at the trial) was open to be put. Not only the reasons of the trial judge, but also the transcript of the hearing demonstrate the lengths his Honour went to understand and seek clarification of the case being put by Harvard. Regrettably, a less than pellucid pleading obscured the real issues. Notwithstanding the careful and comprehensive approach taken by the primary judge, it is necessary for his Honour’s orders to be set aside and the matter be remitted for a limited retrial.

4    To explain why, it is convenient to turn immediately to how the case of Harvard was advanced below.

B    THE WAY HARVARD PUT ITS CASE BELOW

5    Harvard relevantly sought the following orders in its amended originating application:

A.     Pursuant to section 237 of the Australian Consumer Law, an order under section 243 of the Australian Consumer Law declaring the Lease made on 8 February 2019 between [Harvard] and [Mr Tiller and Dimension] to be void, alternatively an order requiring [Mr Tiller and Dimension] to execute a deed terminating the Lease.

B.    Pursuant to section 237 of the Australian Consumer Law, an order under section 243 of the Australian Consumer Law requiring [Mr Tiller and Dimension] to deliver up forthwith vacant possession of the Farms to [Harvard].

C.    An order requiring [Mr Tiller and Dimension], whether by themselves or by their officers, employees or agents, to remove forthwith from the Farms all plant, equipment and chattels delivered to the Farms by [Mr Tiller and Dimension], save for fixtures, fittings or improvements to the Farms made by [Mr Tiller] and [Mrs Tiller] prior to 8 February 2019.

D.    An order requiring [Mr Tiller and Dimension], as caveators, to remove caveat numbers O121200 and O121201 lodged on 29 March 2019 over the Farms.

  E.    As against each of [Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce]:

  (a)    damages pursuant to section 236 of the Australian Consumer Law;

(b)    interest on such damages as may be awarded to [Harvard] at the rate of 6% per annum calculated from 8 February 2019, alternatively 20 April 2019, to payment.

6    A number of things should be observed immediately about the relief sought by Harvard and its relationship to the pleaded case.

7    First, all the relief sought was entirely statutory in nature relying on Pt 5-2 of the Australian Consumer Law (ACL) and, more specifically, Div 4 which deals with compensation and other orders for injured parties (ss 237 and 243) together with Div 3, which deals with actions for damages in the nature of statutory compensation.

8    Secondly, the way the relief was framed was not in the alternative; the claim for statutory compensation (prayer E) was supplementary to the order sought by prayer A under s 243 of the ACL declaring “the Lease … to be void” (statutory rescission), and the orders sought by prayers B and C, which give effect to the claim for statutory rescission (further orders).

9    Thirdly, prayer A spoke in terms of “the Lease” but, as explained above, there were two New Leases and the argument proceeded on the basis that relief was sought in relation to both the New Leases.

10    Fourthly, prayer C only made sense because the other transactions made to allow the New Leases to be put in place were not sought to be interfered with by the statutory rescission or the further orders, including the assignment of Mammoth’s head lease of Howick Farm (as explained above, Mr John Caratti and Mr Allen Caratti were registered proprietors of Howick Farm and Harvard only had an entitlement to possession of the Howick Farm pursuant to the assigned head lease from Mammoth); further, no relief was sought in relation to the Tiller Subleases because, obviously enough, the rights of the Tillers under those conveyances had been long surrendered in order to allow the New Leases to be put in place.

11    Fifthly, the relationship between the statutory relief sought and the pleading (unusually described as the “further further (sic) amended statement of claim” (SOC)) was opaque, as was the position of Harvard as to whether it had validly rescinded the New Leases as at 2 April 2019. Somewhat surprisingly, no relief was sought in the application for declaratory relief to the effect that the New Leases had been validly rescinded at common law as at 2 April 2019 or for any equitable relief, despite the fact that at SOC [18] it was alleged that Harvard “gave notice of rescission of the New Lease” and in the particulars subjoined to SOC [23], it was contended at (a) that Mr Tiller and Dimension “have refused to accept [Harvard]’s rescission of the New Lease”. This confusion was amplified by the fact that the SOC advanced an alternative case that the New Leases were not validly rescinded but rather survived 2 April 2019, because it was said that if Harvard had known the true position as at 5 April 2019, Harvard would have elected to terminate the New Lease (SOC [34]) and that this course would have been advised “instead of seeking rescission of the New Lease” (SOC [31(c)]).

12    Sixthly, as will be explained in more detail below, given the absence of any relief sought in equity or at common law, the “gateway” to the granting of statutory rescission or the further orders required proof by Harvard of loss or damage (actual or potential in the sense of “likely”) “because of” the contravening conduct.

13    It is next convenient to identify how Harvard put its case as to actual loss for the purposes of the claim for statutory compensation. This claim at SOC [23] was particularised as follows:

Particulars

(a)    [Mr Tiller and Dimension] have refused to accept [Harvard]’s rescission of the New Lease;

(b)    [Mr Nicoletti] has caused workers formerly employed by [Mr Nicoletti] on other farms to relocate to the Farms and commence farming operations on them, rather than give up vacant possession as demanded, with the intention and purpose of planting a crop for harvesting in order to secure benefit to each of [Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce];

(c)    [Harvard] lost the benefit of the [Fowler Lease];

(d)    Further particulars may be provided before trial.

14    As anticipated by particular (d), further particulars were then provided. As the primary judge noted (at PJ [505]), they specified that Harvard’s loss and damage resulting from the lost benefit of the Fowler Lease was $1,150,000 (that is, the rent for the first year of the Fowler Lease of $1,950,000 (plus GST), less the $800,000 which Mr Tiller and Dimension paid under the New Leases up to 1 March 2020).

15    As is evident from both the detailed reasons of the primary judge and the way the case was advanced by Harvard below, the claim for statutory compensation pressed was the loss of the benefit of the Fowler Lease. As the primary judge put it (PJ [506]–[509]):

506    So, Harvard submitted, the existence of the New Leases is fundamental and material to Mr Tiller’s and Dimension’s refusal to accept rescission and deliver up vacant possession to enable the Farms to have been leased under the Fowler Lease by 1 May 2019. Harvard has thus pleaded a causal nexus between the misleading conduct which took place on 31 January 2019, and a state of affairs in which Mr Tiller’s and Dimension’s refusal to deliver vacant possession of the Farms, based on the New Leases, prevented Harvard from receiving the $1.95 million rent which would have been payable for the first year under the Fowler Lease.

507    Harvard has also established this causal nexus on the evidence. I have found that Mr Caratti relied on Mr Tiller’s misleading conduct in causing Mammoth and Harvard to enter into the transactions which resulted in Harvard leasing the Farms to Mr Tiller and Dimension under the New Leases. And the New Leases were the basis for Mr Tiller’s and Dimension’s refusal to deliver up vacant possession of the Farms … That is enough to make the misleading conduct which resulted in the existence of the New Leases a material contributing factor to Harvard’s inability to obtain vacant possession without an order of the court under s 243. A causal connection of that sort can be sufficient for the purposes of s 236 or s 237, even if there are other causal or contributing factors: I & L Securities [Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109] at [33], [57], [62]; and Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [14], [60]-[62], [106], [109].

508    Other facts material to the causal nexus between the contravening conduct and the current state of affairs have also been established. The Fowler Lease was executed on 17 April 2019 and does provide for rent of $1.95 million for the first year. The annual rent under the New Leases is only $800,000. There is a question about whether the sum of $1.95 million or the difference between it and $800,000 should be discounted on the basis that Harvard has only established that it has lost the opportunity to lease the land to the Fowlers, but that may be set aside for now. Plainly, Harvard would have been better off from the start of the 2019 farming season had it been able to give vacant possession of the Farms to the Fowlers.

509    Nevertheless, just because a causal link can be described between contravening conduct and a particular state of affairs, it does not follow that the state of affairs involves loss or damage which has been suffered, or is likely to be suffered, because of the conduct, within the meaning of s 236 or s 237 of the ACL. It may be accepted that Harvard would be better off if it could give vacant possession to the Fowlers, but is its inability to do so ‘because of’ the contravening conduct, in the sense contemplated by the provision?

16    As can be seen, the primary judge proceeded, in this part of his reasons, on the basis that the loss and damage relied upon to found the claim for statutory compensation under s 236 of the ACL was the same loss and damage which was relied upon in order to enliven the power to make the statutory rescission order and the further orders pursuant to s 237 (and s 243).

17    In the end, his Honour was not satisfied that the loss and damage resulting from the lost benefit of the Fowler Lease was established because the Tiller Subleases, the existence of which preceded the contravening conduct, prevented the precondition of vacant possession being obtained in order to allow the Fowler Lease to proceed. It will be necessary to return to this reasoning below, but it is first necessary to revisit the point (see [12] above) as to why this is important; and secondly, to examine the contention of Harvard that the loss or likely loss relied upon in order to ground the statutory rescission (and the further orders) under s 237 was not the same as the actual damage said to be recoverable pursuant to an award of statutory compensation pursuant to s 236.

18    The focus on loss or likely loss was critical because, as noted above, contrary to the position that would have arisen if relief had been sought at common law and/or in equity, the establishment of loss or likely loss was a pre-condition to relief. In this regard (and recalling the proven misleading and deceptive conduct was contrary to s 18 of the ACL, located within Chapter 2 of the ACL), s 236(1) relevantly provides:

236     Actions for damages

(1)    If:

(a)     a person (the claimant) suffers loss or damage because of the conduct of another person; and

   (b)     the conduct contravened a provision of Chapter 2 …;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

19    Section 237 relevantly provides:

237     Compensation orders etc. on application by an injured person or the regulator

(1)     A court may:

(a)     on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:

(i)     was engaged in a contravention of a provision of Chapter 2, ...

make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.

 Note 1: …

Note 2: The orders that the court may make include all or any of the orders set out in section 243.

(2)     The order must be an order that the court considers will:

(a)     compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or

(b)     prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.

20     Section 243 relevantly provides:

243     Kinds of orders that may be made

Without limiting section 237(1) …, the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following:

(a)     an order declaring the whole or any part of a contract made between the respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract:    

   (i)     to be void; and

(ii)     if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);

…

(e)     except if the order is to be made under section 239(1)—an order directing the respondent to pay the injured person the amount of the loss or damage;

…

(h)     an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:

   (i)     varies, or has the effect of varying, the first mentioned instrument; or

(ii)     terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument.

21    As the primary judge observed (at PJ [489]–[500]), the statutory rescission and further orders Harvard sought are of a kind contemplated in ss 243(a), 243(e) and 243(h)(ii) and, in any event, s 237(1) confers a wide power to make such order or orders as the court thinks appropriate. But the power to make such an order is relevantly confined by two matters: first, it only arises on the application of Harvard if it had suffered, or had been likely to suffer, loss or damage because of the contravening conduct; and secondly, the order must be one that the court considers will compensate Harvard, in whole or in part for the loss or damage, or prevent or reduce the loss or damage suffered, or likely to be suffered: see s 237(2).

22    As noted above, it was the first of these “gateways”, or pre-conditions, which the primary judge found was not established, that was fatal to Harvard’s claim for relief below and, as a consequence, was the focus of the appeal.

23    At this point it is necessary to turn to the way in which the case as to loss or likely loss under s 237 was put by Harvard at the hearing. There was no separate pleading in the SOC identifying loss or likely loss for the purposes of s 237. At the request of the Full Court, the appellant was asked to identify how it is said that Harvard’s case was not limited to the economic loss the primary judge identified. The following extract from Harvard’s submissions in reply on the appeal identify why it says that Harvard’s case was not so limited:

14.    In relation to the question whether Harvard’s case was limited to economic loss, the case as run plainly involved the contentions that:

  (a)    …

(b)    it was not necessary for Harvard to demonstrate monetary loss in order to obtain the relief in the nature of rescission/termination, as opposed to damages, and Harvard suffered loss or damage by committing itself to contractual obligations it would not otherwise have had (see, e.g., Harvard’s Opening Submissions at [1]-[7], Harvard’s Submissions on Pleading Causal Nexus at [9]-[15], Harvard’s Closing Submissions at [19]; Harvard’s oral opening submissions: Transcript at [8] line 20, [9] line 31, [75] lines 10-20. Harvard’s oral closing submissions: Transcript at [394] line 40, [396] lines 5-10 and 41-43, [399] lines 6-8, [400] line 14; [PJ] at [517], [548]-[565]).

24    Regrettably, given the importance of understanding how Harvard put its case below, it is necessary for each of these extracts from the submissions, the reasons of the primary judge and the trial transcript to be extracted, and for some observations to be made about each of them.

25    The first extract relied on is from Harvard’s written opening submissions:

Harvard’s Opening Submissions:

4.    [Harvard’s] complaint is that control of the Farms passed from someone it was prepared to support in times of difficulty to someone who deserved no such support, and the circumstances in which that took place was effectively through the auspices of [Mr Tiller, Mr Nicoletti and Mr Bryce] acting in concert to give Harvard the misleading impression that he would be assisting [Mr Tiller] at a time of personal crisis when, in reality, he would be providing assistance to [Mr Nicoletti], whom he knew and did not wish to assist in any way at all.

5.    In this case, the Respondents try to show that Mr Nicoletti is a reasonable person and a good farmer, as if that somehow exculpates the Respondents from engaging in misleading and deceptive conduct. The subjective intention, or character, of those contributing to a misleading impression is irrelevant: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre (1978) 140 CLR 216. [Harvard’s] case does not rest on any finding that Mr Caratti’s attitude on behalf of [Harvard] about Mr Nicoletti impacts at all on [Harvard’s] right to determine who should or should not enter onto the Farms and exploit them for profit. [Harvard] has an absolute right to decide who can operate its Farms and it should not even inadvertently be misled about it.

…

7.    [Harvard’s] case essentially rests on four propositions:

(a)     Proposition 1 – [Harvard] had an absolute right to decide who could farm its land and had intended on 8 February 2019 only to have Mr Tiller do so with his company, Dimension Agriculture Pty Ltd;

(b)    Proposition 2 – from mid-January 2019, Mr Nicoletti wanted to operate the Farms in place of Mr Tiller, and set about doing so in combination with Mr Tiller and Mr Bryce in a way which concealed Mr Nicoletti’s intended involvement from the Applicant on 8 February 2019;

(c)    Proposition 3 – After securing his entry on the Farms, Mr Nicoletti, with the help of Messrs Tiller and Bryce, used Dimension Agriculture in March and April 2019 to pretend that Mr Tiller remained involved in the management of the Farms, withholding facts which, if disclosed, would have enabled [Harvard] to have a lawful basis for exercising its right to terminate the new leases and re-take possession of the Farms in early to mid-April 2019;

(d)    Proposition 4 – the measure of loss caused by the misleading and deceptive conduct of the Respondents is the difference between the rent which [Harvard] would have enjoyed from the first Fowler Lease if vacant possession had been delivered to [Harvard] when [Harvard] sought to rescind the new leases, and rent payable purportedly under the new leases from the date which the first Fowler Lease would have commenced if vacant possession had been given, on 1 May 2019.

26    It is worthwhile interpolating that on appeal, out of these four propositions identified in opening, only Proposition 4 remains controversial. Further, these opening submissions do not clearly advance a case that the loss or likely loss relied upon to operate as a “gateway” for the statutory rescission and further orders was somehow different from the loss and damage said to give rise to statutory compensation.

27    The next extract relied upon is a further submission provided to the Court by Harvard during the course of the hearing:

Harvard’s Submissions on Pleading Causal Nexus:

9.     Further and alternatively, at the same time as rejecting the rescission of [Harvard] by its letter dated 5 April 2019, the non-disclosure of the Deed of Assignment dated 15 February 2019, coupled with the factual assertions that Mr Tiller was, and would remain, “in control” of the Farms, and therefore continued to possess them, with [Dimension] merely financially backing him, [Harvard] was misled into believing there was a genuine factual dispute about the role of [Mr Tiller and Dimension], which precluded it from exercising a right of termination it had under clause 16 of the New Leases, because the Deed of Assignment made it clear that Mr Tiller had assigned his leasehold interest to [Dimension] and was no longer “in control” of the Farms in the sense that he determined all decisions regarding the farming operations, or was even permitted to access the Farms to do so (paragraphs 24 to 35).

10.    Therefore, the second act of misleading and deceptive conduct precluded a lawful exercise of a contractual right by [Harvard], which would have avoided any need for litigation, and would have delivered up vacant possession by a lawful re-entry onto the Farms in time to deliver vacant possession to the Fowlers by 1 May 2019, as their formal lease instrument required.

11.    Accordingly, in either case, the misleading and deceptive conduct of the Respondents in February and in April caused [Harvard] to suffer commercial loss by being unable to deliver up vacant possession of the Farms to the Fowlers by 1 May 2019. There is no break in that chain of causal nexus in any respect, and each material fact relevant to establishing that causal nexus has been pleaded and is, or will be, in evidence.

12.    The relief sought by [Harvard] in this respect reflects the relief sought by the Applicant in Metz Holdings Pty Ltd v Simmac Pty Ltd (No. 2) [2011] FCA 981, where the purchaser of a business claimed it had been misled into buying it, and when it found out, and sought to rescind its contract, the vendor of the business refused to accept the rescission. The purchaser was then forced to decide whether it should therefore act on its rescission and expose itself to a damages claim in the event of a factual dispute about such matters, or issue proceedings for an order from the Court confirming its right of rescission, and granting it damages for all losses suffered by the conduct of its business in the meantime. The Court found in favour of the Applicant, confirmed that it was entitled to rescission, and ordered that the question of damages be determined at a later date.

13.    That approach is consistent with the principle set out in Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 286-8, that damages are claimable along with rescission, if the conduct is a material (not sole) cause of its losses.

14.    Another question which has arisen is the standing of [Harvard] to claim damages. Although it is pleaded that the Mammoth and Harvard transactions were entered into “in reliance” upon the Representations pleaded, [Harvard] does not seek rescission of those transactions. That is, [Harvard] has neither sought to rescind those transactions made on 5 February 2019, nor has made claims that it suffered any damages in respect of those transactions. Therefore, whilst it was true that the transactions made on 5 February 2019 were essentially undertaken in anticipation of the New Leases, so that [Harvard] would be the relevant “lessor” under the New Leases, those transactions remain intact, and not impugned.

15.    Accordingly, [Harvard] had the relevant right of rescission it sought to exercise by letter from Hotchkin Hanly dated 2 April 2019, and it was the entity which suffered loss and damage by its inability to procure vacant possession because the Respondents asserted their right to exclusive possession on the strength of the impugned New Leases, raising a factual dispute which appeared contestable in circumstances where they did not disclose the Deed of Assignment which established otherwise.

(Emphasis added.)

28    The highlighted part of these submissions suggests that it was being contended that both statutory rescission and statutory compensation were being sought. Given that any quantification of any actual damage under s 236 would necessarily be affected by whether rescission had been granted (and potentially the terms upon which any such order was made), it necessarily followed, although it was not stated expressly, that the loss or likely loss for the purposes of s 237 was different to the actual loss that could be recovered as damages under s 236.

29    Harvard then pointed to aspects of its oral submissions:

Oral opening submissions:

•    What matters and what falls only for your Honour to consider are the circumstances in which the identity of Mr Nicoletti as the person behind the company was firstly withheld from my client and ultimately disclosed and whether, in all of those circumstances, an actionable representation was made that calls for relief under the Australian Consumer Law: T8.19–23.

•    [C]onsistent with what we say is the primary right of all landlords to refuse whoever they didn’t want to enter on their land and exploit it for their own commercial gain, the prohibition in both of the relevant leases that I will take your Honour to was absolute: T9.31–4.

•    We say that either or both the initial misleading and deceptive conduct that took place in early February that led to us accepting the surrender in the leases and/or the subsequent conduct on 5 April caused our client in the first to agree to commit to transactions which it would never have committed to and in the second place, not terminate those transactions when it could have and instead, sought the assistance of the court in determining what its rights were, during which it has lost capacity to enjoy higher rent from a – from the neighbouring tenant, the Fowlers, who made an offer subject to vacant possession on 1 May. So, the claim for damages operates from 1 May and either of the two instances or events of conduct about which the applicant complains would give the right to recover damages from that point in time. And, your Honour, we say in any event, rescission would give us vacant possession and we certainly advocate first and foremost for rescission of the leases: T75.11–22.

Oral closing submissions:

•    When we found out it wasn’t Mr Tiller, it was M[r] Nicoletti, we immediately examined what else was available and what we did do in – on 17 April after an initial approach in late March by the Fowlers, was we signed them up to a lease that provided for vacant possession by 1 May: T394.37–40.

•    Your Honour, one of the points [Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31] really resolved, which wasn’t addressed by my learned friend but really is a ready and immediate answer to their submission was that the availability of rescission arises regardless of establishing any damage. That is that merely entering into a contract, in and of itself, establishes a loss in the sense that you commit yourself to contractual obligations you wouldn’t otherwise have and that was regarded by the Full Court in this case as a loss or damage. That is, you’ve got a suite of obligations that you never intended to meet with – either in – on their terms or any of their terms or with the people you are contracting with: T396.4–12

•    [W]e say they are [a disadvantageous transaction], and we say it for this reason: we would have an unqualified, unconditional right to obtain vacant possession of premises to lease it to someone else. The only reason we could not do so here was the asserted authority that we had conferred on them by these impugned transactions. That’s all they rely on. They don’t rely on any other basis for occupying the farm and for farming it: T396.41–6.

•    [The New Leases were] [d]isadvantageous in the terms that we – the two terms on which it might be said. One is that it was for rent that was far too low, and the other was that it was to someone who we didn’t want to lease the farm to. It was disadvantaged in both of those senses: T399.5–8.

•    [The prejudice or disadvantage arises as a result of altering the position] [b]ecause it was given to someone we didn’t want on the farm: T400.14.

(Emphasis added.)

30    In the appeal hearing, Harvard also pointed to this extract from its oral closing submissions at trial:

It might, but the mere entry into that contract gave possession of the premises to someone we didn’t want to have possession of. And the mere existence of signed documents gave them the prima facie authority to resist our claim for rescission and demand for vacant possession. In that sense, we were clearly disadvantaged by entry into those leases. They clearly had a continuing operative effect because when we sought vacant possession of the property so that we could put the Fowlers in, it was resisted for that reason alone. T399.26-32.

31    Harvard also pointed to a paragraph of its written closing submissions:

Harvard’s written closing submissions:

19.    It is open to the Court to grant both rescissionary relief and damages, when an injured person’s election to rescind is refused by the offender: see Metz Holdings Pty Ltd v Simmac Pty Ltd (No. 2) [2011] FCA 981. Rescissionary relief may be granted even if no loss is suffered in a monetary sense: Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608. The remedy is flexible and suited to serve the justice of the case, Metz, op. cit, at [855] - [868], without being constrained by general law notions of misrepresentation.

C    THE PRIMARY JUDGE’S REASONING ON THE POINT

32    Harvard then relied on the way the primary judge dealt with the argument it had raised about Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, that is, that the loss or likely loss contemplated by ss 237 and 243 (previously 87(1A) of the Trade Practices Act 1974 (Cth) (TPA)) is not limited to actual damage in the s 236 sense (previously s 82 of the TPA) but was intended to include the detriment suffered by being bound to a contract induced by contravening conduct. Although lengthy, it is necessary to reproduce the relevant portion of his Honour’s judgment in full.

517    Harvard’s second submission is that entering into the New Leases was a loss in the relevant sense, because Harvard had committed itself to contractual obligations it would not otherwise have had. It relies on Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 in that regard.

…

Entry into legal relations from which Harvard would otherwise have abstained

548    Harvard’s second submission on causation involved reliance on the decision of the Full Court of the Federal Court in Demagogue. In that case, the respondents entered into a contract to purchase land in reliance on conduct by the vendor that led them into the clear but erroneous impression that there was nothing unusual concerning access to the site. In fact, the only way to gain access from a road was to use a licence over public land, which the vendor held. The purchasers would not have entered into the contract had they been aware of the circumstances that then obtained concerning the licence and access to the site (at 35).

549    Black CJ, Gummow and Cooper JJ found in favour of the purchasers and upheld an order by the trial judge under s 87 of the TPA that the contract be declared void ab initio. One issue the judgments addressed was the role of silence in misleading conduct, but for present purposes, the issue that is relevant is the meaning of the phrase in s 87, ‘will prevent or reduce the loss or damage suffered, or likely to be suffered …’. That arose because the vendor submitted that it had not been shown that the property as sold was worth less than the contract price, so the purchasers could not point to any relevant ‘loss or damage’.

550    Gummow J delivered the leading judgment, with which the other judges agreed. His Honour described (at 42) the burden of the purchasers’ case as being ‘that they should not be held to the contract because, as the primary judge found, they would not have entered it but for the conduct of the appellant in contravention of s 52’. After examining the legislation and relevant authorities, his Honour observed (at 43) that ‘the phrase ‘the loss or damage’, at least in s 87, may be concerned with more than pecuniary recovery as understood in the law of damages in tort’. His Honour then asked (at 43):

The respondents complain that they entered into a contract as the result of reliance upon conduct which contravened s 52. Why should they not be described as having suffered loss or damage, within the meaning of s 87, by that very reliance and entry into legal relations from which they otherwise would have abstained? If that contract be declared void ab initio as provided for in s 87(2)(a), will that not reduce this loss or damage?

551    Comparing the remedy to rescission in equity, Gummow J noted (at 43, citation removed) that in the latter:

it is not sufficient for the defendant to show that the transaction to which the complainant was improperly induced to assent, after all, contained terms which, viewed objectively, were not manifestly disadvantageous so that the complainant should freely have accepted them. The complainant is entitled to say that but for the unconscientious conduct of the defendant he or she would not have entered into any transaction with the defendant.

At 44 his Honour said it would be an odd result if s 87 and s 4K were to be read in a contrary sense by giving too narrow a meaning to ‘loss and damage’.

552    However his Honour then went on to say (at 44) that ‘even if some pecuniary detriment (further propounded as a “real chance” or as presently existing) is required in all s 87 cases, that requirement is present here’. It was present in the fact that the purchasers were bound to purchase the land in a falling market. So there was a real chance or possibility of the purchasers suffering loss or damage ‘even within the narrower reading of that phrase in s 87’. Further, ‘it would be accurate to say that the likelihood of the respondents suffering that loss or damage is something which is caused by and flows from the contravention of s 52’. Thus (at 45):

it is sufficient to support the operation of s 87 in the present case that whether or not the real value of the property at the time of purchase was diminished in this way, at the trial there was sufficient likelihood of the suffering of loss or damage by the administration of the common law and equitable remedies on the contract sought against the respondents by the appellant.

553    Black CJ noted (at 32) that the general law did not impose a requirement for pecuniary loss or damage before rescission of a contract induced by misrepresentation. His Honour was influenced by the consideration that damages for unconscionable conduct were available under s 87 but not s 82 and held (at 33), ‘In these circumstances I consider it to be clear that the loss or damage contemplated by s 87(1A) is not limited to loss or damage in the s 82 sense but was intended to include the detriment suffered by being bound to a contract unconscionably induced’. Gummow J agreed with this passage (see 44).

554    Cooper J held (at 47):

In my opinion ‘loss or damage’ in s 87(1) means no more than the disadvantage which is suffered by a person as the result of the act or default of another (Halsbury’s Laws of England (4th ed), Vol 12, par 1102) in the circumstances provided for in the section.

    In s 87 the phrase did not require any concept of quantum or assessment of damages. At 48 his Honour implicitly adopted ‘a definition of “loss or damage” for the purpose of s 87(1) which includes the disadvantage of incurring contractual obligations that would not have been incurred but for the conduct complained of …’.

555    Clearly, that reflected the unanimous view of the Full Court. But I do not consider that Demagogue binds me to hold that in this case, by entering into a contract which would not have been entered into but for the contravening conduct, Harvard has suffered ‘loss or damage’ within the meaning of s 237. There are several reasons for that.

556    First, the relevant views, as considered as they obviously were, were not the ratio decidendi of Demagogue. In the end, Gummow J found that entering into the contract did expose the purchasers to pecuniary loss. It is clear from the passage from 45 which I have quoted at [550] above, that his Honour considered that to be the ratio. His own views on the principle in question here were put in terms of what ‘may be’ and were ultimately expressed in the form of a rhetorical question (see [548] above).

557    Second, while Demagogue has frequently been followed on the subject of the place of silence in misleading or deceptive conduct, it is difficult to find cases that have applied the dicta about loss being suffered purely because of entry into a contract which was induced by misleading or deceptive conduct. In Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353, Mason P (at 364F) referred to the relevant dicta with apparent approval, but it is not clear that the other judge in the majority, Priestley JA, shared the President’s view on that point and in any event, it was not necessary to apply that view in Akron because the contract in issue there was self-evidently detrimental: see 365G. According to Colin Lockhart, the issue remains unsettled: Lockhart C, The Law of Misleading or Deceptive Conduct (4th ed, LexisNexis, 2015) [11.53].

558    Third, the Full Court’s views on the point seem inconsistent with the joint judgment of Mason CJ and Dawson, Gaudron and McHugh JJ in Wardley [Australia Ltd v Western Australia (1992) 175 CLR 514]. At 527-532 their Honours considered and dismissed an argument that the State of Western Australia had suffered loss as soon as it entered into an agreement to indemnify a third party, even though its liability to do so was only contingent at that stage. Their Honours approved a statement from UBAF Ltd v European American Banking Corporation; The Pacific Colocotronis [1984] 2 All ER 226, where Ackner LJ said (at 234-235):

The mere fact that the innocent but negligent misrepresentations caused the plaintiffs to enter into a contract which they otherwise would not have entered into, does not inevitably mean that they had suffered damage by merely entering into the contract.

559    Demagogue was decided shortly after Wardley and while Gummow J’s judgment does refer to Wardley, it is not in connection with this issue. The Full Court does not engage with whether their views were inconsistent with those of the High Court. That may be explained on the basis that Wardley was a case under s 82 and in Demagogue, the Full Court plainly considered that the phrase ‘loss or damage’ was used in a different way in that provision than in s 87: see Demagogue at 32-33 (Black CJ), 47 (Cooper J). However, while that is undoubtedly so, as Gummow J’s discussion of the question at 43 shows, that is a result of the different effect of each provision as a whole, not a different meaning for the phrase ‘loss or damage’:

Thus, whilst s 82 is concerned with the recovery of an amount representing the loss or damage, s 87 is concerned with compensation, whether in whole or in part, for loss or damage and with the reduction of loss or damage, and with the prevention of loss or damage which is likely to be suffered.

560    To hold that the phrase should be given a different meaning would displace the usual presumption of statutory interpretation and would be inconsistent with the subsequent approach of the High Court, where no difference is identified between s 82 and s 87 in relation to the meaning of the phrase: see in Marks v GIO [Australia Holdings Ltd (1998) 196 CLR 494] at [9], [15] (Gaudron J), [38], [46], [55] (McHugh, Hayne and Callinan JJ); and Murphy v Overton Investments at [45]-[47]. In Murphy v Overton Investments at [55] the High Court applied Wardley to a question of the limitation period under both s 82 and s 87.

561    So, in Marks v GIO at [47], the joint judgment, speaking of loss and damage for the purposes of both s 82 and s 87, said:

The bare fact that a contract has been made which confers rights or imposes obligations that are different from what one party represented to be the case does not demonstrate that the party that was misled has suffered loss or damage. The contrary view (which had been adopted by the Full Court of the Federal Court in Jobbins v Capel Court Corporation Ltd [(1989) 25 FCR 226] (78) was rejected by the majority in Wardley (79).

562    And in I & L Securities at [54] Gaudron, Gummow and Hayne JJ observed:

Like s 82, s 87 speaks of loss or damage suffered or likely to be suffered ‘by conduct of another person that was engaged in … in contravention of a provision’ of specified parts of the Act. Section 87, like s 82, therefore requires the identification of a causal connection between the loss or damage and contravention.

    See also McHugh J at [108]-[109]. I do not consider that Wardley and Demagogue can be reconciled on the basis that they concern different sections of the TPA.

563    Fourth, I have already set out a passage from the joint judgment in Marks v GIO at [55] in which it was held that, to the extent that Demagogue held that s 82 or s 87 relief was available in the absence of ‘some difference in value or other manifestation of actual loss to the party that was misled either now or in the future’, Demagogue was wrong. While a trial judge in this court should ordinarily follow considered dicta of a Full Court, it is not clear that he or she should do so where those dicta are contradicted by considered dicta of the High Court.

564    There is little intermediate court discussion of this apparent conflict. In Murphy v Overton Investments Pty Ltd [2001] FCA 500; (2001) 112 FCR 182 there was a difference of opinion between RD Nicholson J and Gyles J as to whether Demagogue remained good law, but since both of their Honours’ judgments were disapproved when the matter went to the High Court, it is difficult to know what to make of that. In Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1 at [224]-[228] the Full Court appeared to dismiss the view that Demagogue had been overruled, but ultimately it rested its conclusion as to loss or damage on differences between the facts in Marks v GIO, and the facts before it, including that the applicant had made payments as a result of the misrepresentations, and the evidence showed that the value of what he received was significantly less than the value that he believed he was to receive.

565    Fifth, and most importantly, I do not apply the dicta in Demagogue to the present case because I consider that Demagogue should be distinguished. In Demagogue, there were no pre-existing contractual arrangements. In the present case, there were pre-existing contractual arrangements which meant that before the respondents entered into the contract, obligations of the kind that they then assumed were already in existence, and inhibited their freedom to act in the same way. Their Honours’ observations in Demagogue, generally expressed as they were, could not have been directed to a situation like that, let alone a situation where the party who was misled is better off. Gummow J’s rhetorical question at 43 concerned the ‘entry into legal relations from which they [the respondents] otherwise would have abstained’. But here, legal relations were already in place which were no different in their effect from the legal relations from which Harvard would have abstained. I therefore do not consider that Demagogue gives Harvard a solution to the problem it faces here.

33    From the above, we accept that whatever deficiencies exist in the SOC and the opaque written and oral submissions made on behalf of Harvard below, its argument – that the loss or likely loss allowing the statutory rescission and further orders to be sought was not the same as the alleged actual damage resulting from the lost benefit of the Fowler Lease – was sufficiently raised at first instance and was then dealt with in that way by the primary judge.

34    It is then convenient to deal with Harvard’s primary argument on appeal that the failure of the primary judge to find loss or likely loss by reason of the contravening conduct amounted to error.

D    WAS THE PRE-CONDITION OF LOSS OR LIKELY LOSS ESTABLISHED?

The Reasoning Below

35    As is evident from PJ [565] set out in the previous section, his Honour considered Harvard was “better off” by reason of the contravening conduct and hence had not suffered loss or likely loss.

36    The primary judge dealt with this aspect of the case within “Issue (5): Causation and loss” (at PJ [493]–[581]). Distilled to its essential elements, the process of reasoning which led to this conclusion had the following steps:

(1)    in reliance on the contravening conduct, Harvard entered into the various transactions which allowed for the New Leases to be put in place, including the surrender of the Tiller Leases; and

(2)    as the existence of the New Leases was the basis for Mr Tiller’s and Dimension’s refusal to deliver up vacant possession of the Farms, the contravening conduct was also a material contributing factor to Harvard’s inability to obtain vacant possession of the Farms without an order of the court under s 243; but

(3)    there is no loss and damage “so as to give rise to an entitlement to damages under s 236 of the ACL or to enliven the court’s power under s 237” (PJ [515]) because of two aspects of the state of affairs that existed before the occurrence of the contravening conduct:

(a)    the first was that Harvard was not leasing Howick Farm to anyone at all, and while it was leasing Warriup Farm to Mammoth, from the point of view of rental income, the evidence was such that there is no basis to conclude that Harvard was worse off after the contravening conduct than it was before; and

(b)    the second was that neither Harvard, Mammoth or anyone else was in a position to lease the Farms to the Fowlers because they could not give vacant possession.

37    As can be seen from the extract from the primary judge’s reasons above, his Honour rejected Harvard’s submission that entering into the New Leases was a loss in the relevant sense because it had committed itself to contractual obligations it would not otherwise have had.

38    In explaining why we respectfully have formed a different view, notwithstanding his Honour’s careful examination of all the relevant authorities, it is necessary to commence with some foundational matters.

What is Loss or Likely Loss for the purposes of ss 237 and 243?

39    To those who reached professional maturity in Australia at a time prior to law reformers doing away with the simplicity and verities of the TPA, there is a tendency to think in terms of ss 82 (the statutory compensation provision) and 87 (the “other orders” provision). In surveying the relevant cases, many of which predate the ACL, this background assists in recalling that TPA s 82 or ACL s 236 awards, and TPA s 87 or ACL s 237 orders, share a common purpose: they are provisions directed to a compensatory purpose – allowing redress to be provided for loss or damage flowing from conduct which contravenes a norm of behaviour in the statute.

40    But s 237 orders broaden the scope of relevant loss and damage. Most obviously, as Deane J explained in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 (at 545), they allow intervention by an “anticipatory” remedy to prevent damage occurring, and hence extend to grant relief to those who have not yet suffered actual damage. More importantly for present purposes, there have been a number of cases where s 87 orders have been said to be available when a contract has been entered into in reliance upon contravening conduct, irrespective as to whether this has resulted in actual damage recoverable by statutory compensation under s 82 of the TPA: see Demagogue Pty Ltd v Ramensky Pty Ltd (1992) 39 FCR 31 (at 33 per Black CJ, at 43–4 per Gummow J, at 47 per Cooper J); Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 578 (at 584 per Beazley J); Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 (at 365 per Mason P, Priestley JA agreeing); Collings Construction Co Pty Ltd v ACCC (1998) 43 NSWLR 131 (at 149 per Cole JA, Stein JA and Sheppard AJA agreeing). But close examination is required as to whether these cases can be reconciled with High Court authorities, being Wardley (at 527 per Mason CJ, Dawson, Gaudron and McHugh JJ), Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 (at 515 [55] per McHugh, Hayne and Callinan JJ) and Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 (at 408 [50] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

41    Harvard’s submissions were that loss or likely loss for the purposes of s 237 is not to be given a narrow meaning and extends to the suffering of “some prejudice or disadvantage”: see Marks (at 513–14 [46] and 515 [54] per McHugh, Hayne and Callinan JJ). Indeed, relying on Marks (at 509–10 [35] per McHugh, Hayne and Callinan JJ) it is said that there is “no stated limitation of the kinds of loss or damage that may be recovered and … no express indication that some kinds of loss or damage are to be regarded as too remote to be recovered”. The comparison is between the position in fact of the party which alleges loss and the position that would have obtained had there been no contravention. Harvard submitted that entry into the contractual relations of the New Leases, involving the creation of an ongoing relationship involving reciprocal rights and obligations with, and the conferral of significant benefits upon, a corporate entity that is the vehicle for a person with whom Harvard had a strong desire to avoid having any dealings with whatsoever, is sufficient. Harvard also relied on the findings by the primary judge that the involvement of Mr Nicoletti was kept from Harvard in order to take advantage of significantly favourable rent for a long period of time, and that Harvard would not have been willing to allow Mr Nicoletti to take advantage of the low rent under the Tiller Leases: PJ [365] and [456].

42    This characterisation is correct, Harvard submitted, when one has regard to all the relevant circumstances. Harvard stressed its argument was not that any entry into legal relations from which it would otherwise have abstained necessarily constitutes loss and damage, but rather than in these particular circumstances that was the result.

43    The New Leases involved entrusting very significant assets of real and unique value to Harvard to, in effect, the possession, care and stewardship of Mr Nicoletti, and required Harvard to maintain an ongoing relationship with him. This was contrasted with what was described as a “point in time” transaction, with a simple one-off exchange of property and money. The New Leases bound the parties together for an extended period of time, involving them in a continuing and ongoing relationship with each other, with each having enforceable rights and obligations with respect to the other.

44    The existence of loss, it was submitted, does not depend on an economic comparison from the perspective of the injured party between the actual and counterfactual scenarios: it is necessary to have regard to all of the relevant circumstances, and when that is done, loss can be identified.

45    Harvard submitted that the prior existence of the Tiller Subleases (although potentially relevant to an assessment of the pecuniary loss suffered by Harvard) is not to the point: the loss and damage suffered in the present circumstances was Harvard being bound to the ongoing contractual performance of an agreement with (in substance) a person to whom Harvard did not wish to be bound at an advantageous rent the benefit of which would not have been conferred. It will be necessary to return to the relevance of the Tiller Subleases below.

46    The first way in which the respondents sought to engage with the argument was by saying that Harvard’s contention that the primary judge fell into error in concluding that Harvard did not suffer loss or damage by reason of its entry into the New Leases alone is contrary to the case which Harvard ran below and amounts to a new case on appeal. For the reasons explained above, the issue was sufficiently raised and his Honour did deal with it.

47    The more substantive response by the respondents was that although loss or likely loss for the purposes of s 237 is not confined to economic loss and the precise limits of the concept remain unresolved, it does not include disappointed expectations and requires the identification of some “prejudice or disadvantage”: Marks (at 515 [54] per McHugh, Hayne and Callinan JJ). The respondents further submitted that loss is “probably confined to objective matters which are compensable in money, but in any event is plainly limited to loss of a type recognisable as such by a court of law”. The respondents then submitted:

[t]o the extent Harvard relies on dicta in [Demagogue] to the effect that entry into contractual relations may be loss or damage, the learned trial judge was (with respect) correct not only to distinguish Demagogue on that point [PJ [565]], but to conclude that it should not be applied in light of the statement in the joint judgment in [Marks] that it was wrong.

48    To resolve this issue it is necessary to review the cases in some depth.

49    As we have set out above (at [32]), the primary judge summarised the facts and referred in some detail to the decision of the Full Court in Demagogue (PJ [548]–[554]). This summary is not in contention and we gratefully adopt it for present purposes. His Honour’s reasoning as to his rejection of Harvard’s contention then followed (PJ [555]–[565]), and may be conveniently summarised in the following steps:

(1)    the relevant views of the Court in Demagogue were obiter dicta (PJ [556]);

(2)    the Full Court’s views cannot be reconciled with those expressed by the High Court in Wardley, notwithstanding that that decision concerned s 82, not s 87, relief (PJ [558]): although it may be accepted that “loss or damage” is used in a different way in each provision, that phrase has been given a consistent meaning in subsequent High Court authority, including in Marks, Murphy v Overton Investments and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 (PJ [559]–[562]);

(3)    to the extent that Demagogue held that s 82 or s 87 relief was available in the absence of what the joint judgment in Marks termed “some difference in value or other manifestation of actual loss to the party that was misled either now or in the future”, it is not clear that the dicta in Demagogue should be followed in the teeth of “seriously considered dicta” in Marks to the contrary (PJ [563]);

(4)    there is otherwise scant appellate authority dealing with the question as to whether loss may be suffered purely because of entry into a contract which was induced by misleading or deceptive conduct (PJ [557]), and those cases that have considered the “apparent conflict” between Demagogue and the statement in Marks are inconclusive (PJ [564]); and

(5)    in any event, the dicta in Demagogue are to be distinguished as in this case there were pre-existing contractual arrangements which “were no different in their effect from the legal relations from which Harvard would have abstained” (PJ [565]).

50    As the respondents placed particular reliance upon the statement in Marks being a complete answer to Harvard’s reliance on Demagogue, it is well to consider step (3) of his Honour’s reasoning at the outset.

Marks v GIO

51    The respondents, contrary to the view expressed by primary judge (at [556]), submitted that the views of the joint judgment in Marks represented the ratio decidendi of the decision, but, in the alternative, contended that “at the very least” those comments represented “seriously considered dicta” which should be applied. We will return to consider the merits of these arguments shortly, but for present purposes it is necessary to recall the principle upon which the respondents’ alternative submission is premised.

52    In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, the unanimous view of the High Court (at 150–1 [134] and 159 [158] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) was that the New South Wales Court of Appeal’s approach to changing the test of the “first limb” in Barnes v Addy (1874) LR 9 Ch App 244 was impermissible in the light of dicta of a majority of the High Court in Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373. As explained in Lenthall v Westpac Banking Corporation (No 2) [2020] FCA 423; (2020) 144 ACSR 573 (at 578–9 [13]–[15] per Lee J) and referred to more recently in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183 (at [41] per Lee J, Middleton and Moshinsky JJ agreeing), it is critical to recognise that this principle requires that trial judges and intermediate courts of appeal follow the seriously considered dicta of a majority of the High Court.

53    In Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111 (at 130 [112]) Campbell JA expressed some doubt about the proper way of reading Farah. His Honour identified that one reading is to treat it as saying that it is wrong for an intermediate court of appeal to depart from “seriously considered dicta” of a majority of the High Court (simpliciter), and that another reading is to treat it as saying that there is an additional requirement, namely that the “seriously considered dicta” concern a topic on which there is a long-established line of authority. His Honour made a similar observation in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 (at 679–80 [311]).

54    In Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, Heydon J (at 161 [473]) regarded seriously considered dicta of a majority of the High Court to have to conform with long-established authority before they are binding on other courts. The High Court has not definitively settled this issue, but it is our view that this approach is correct. That is, that there are two requirements, namely that the dicta conform with long-established authority and that they are the dicta of a majority of the High Court. Not only is that a better reading of Farah, but dicta of a majority of the High Court would otherwise enjoy the same precedential status as rationes, which is illogical: see Herzfeld, P and Prince, T, Interpretation (2nd ed, Lawbook Co, 2020) at [33.320]. However, for reasons which will become apparent, the decision in this case on whether the relevant dicta must be followed does not turn on whether they were in conformity with long-established authority.

55    In Marks, it is first to be recognised that the bench consisted of six judges. The statement to be found in the joint judgment (at 515 [55]) that Demagogue was wrong on this point was expressed by three members of that bench, McHugh, Hayne and Callinan JJ. This not being an issue where the opinion of the Court was equally divided on the ultimate disposition of the appeal, the appeal being dismissed by a 5:1 majority, there was no occasion to apply s 23(2)(a) of the Judiciary Act 1903 (Cth) that the decision under appeal be affirmed. The decision itself is therefore not one of a “statutory majority” which creates no binding precedent: see Commissioner of Taxation (Cth) v St Helen Farm (ACT) Pty Ltd (1981) 146 CLR 336 (at 354–5 per Gibbs J); Milne v Federal Commissioner of Taxation (1976) 133 CLR 526 (at 533 per Barwick CJ, Gibbs and Stephen JJ agreeing); Tasmania v Victoria (1935) 52 CLR 157 (at 183 per Dixon J). Nevertheless, lest there be any doubt about the view that Farah requires seriously considered dicta of a majority of the High Court to be followed, it seems as a matter of logic to follow from the principle discussed in those cases just cited that, if by operation of s 23(2)(a) of the Judiciary Act 1903 (Cth), the ultimate result of an appeal before the High Court is that the decision under appeal be affirmed by reason of there being an evenly divided opinion on that result, and such a result does not create binding authority, then Farah similarly does not mandate that the seriously considered dicta of three members of a six judge bench of the Court is to be followed. That is simply not “the majority of the High Court”.

56    There is another consideration why it is the majority of the High Court sitting in the particular case, rather than a so-called “majority of the majority”, that is required. If, for example, the High Court bench in the particular case split 4:3 and the relevant dicta were supported by only three of the judges in the majority, such a 3:4 minority view would in effect become binding. That cannot be “a majority of the High Court”.

57    Further, the dicta in question do not conform with long-established authority, if that be a requirement. Prior to Marks, the High Court had not said that mere entry into contractual obligations that would not otherwise have been entered into is not sufficient to constitute loss or damage for the purposes of TPA s 87, and the Full Court in Demagogue had said the opposite.

58    It therefore remains to consider the merits of the respondents’ two interrelated submissions. First, whether the rejection stated by the joint judgment in Marks of the approach taken in Demagogue forms a part of the ratio of Marks; and secondly, if it be dicta, whether that view was shared by any other members of the majority of the Court such as to constitute a majority opinion. To answer these submissions it will be necessary to consider Marks in some detail.

59    In Marks, borrowers entered into certain loan facilities with GIO in reliance on written representations that the interest on those facilities would be at a specified base rate plus a “set” margin of 1.25 per cent per annum. However, contrary to those representations, the loan facilities enabled GIO to vary that margin on giving 90 days’ notice. The borrowers drew down on the facilities and GIO subsequently notified them that, from a date more than 90 days later, the margin would be increased to 2.25 per cent per annum. It also separately provided the borrowers with the opportunity to refinance without incurring any penalty prior to that date. No borrower took up that opportunity. The borrowers brought proceedings relevantly alleging contravention of s 52 of the TPA, and sought an order pursuant to s 87 varying the facilities to make good the representations or, alternatively, damages under s 82.

60    At first instance, no borrower said that, if the true terms had been known, he or she would not have borrowed at all or would have entered into alternative arrangements. The borrowers conceded that, even with the increased margin, the facilities were more beneficial to them than any other facility available. The primary judge found that GIO had engaged in misleading or deceptive conduct in contravention of s 52: GIO had represented to the borrowers that the 1.25 per cent interest rate margin would not be changed during the life of the facilities and each of the borrowers had relied on that representation and had been induced by it to take the loan. Judgment was given for the borrowers for damages in the amount of the difference between the amount of interest calculated between the represented and the actual margin rates for the relevant period. His Honour rejected the borrowers’ claim for relief under s 87 of the Act.

61    GIO were successful on appeal to the Full Court (Wilcox, Foster and Tamberlin JJ) which held that neither s 82 nor s 87 permitted the awarding of damages calculated as the amount necessary to make good GIO’s representation.

62    On appeal to the High Court, McHugh, Hayne, Callinan, Gummow and Gaudron JJ (Kirby J dissenting) held that the borrowers were not entitled to relief under s 82 or s 87. In their joint judgment, McHugh, Hayne and Callinan JJ held that that was because the borrowers had not suffered and were not likely to suffer loss or damage as a result of GIO’s misleading and deceptive conduct by reason of the fact that, as the borrowers had conceded, the GIO loan at the increased margin was more beneficial to the borrowers than any other loan that was available. Accordingly, although they were misled and deceived into taking a loan that cost more than what was represented, they suffered no loss and damage. In the course of coming to that conclusion, their Honours expressed the view (at 514 [47]) that “[t]he bare fact that a contract has been made which confers rights or imposes obligations that are different from what one party represented to be the case does not demonstrate that the party that was misled has suffered loss or damage”; “something more must be shown”: at 515 [54]. Their Honours then made the observations at 515 [55] that are set out above, in which they disapproved of Demagogue to the extent it held to the contrary.

63    Gummow J came to his conclusion by a different path of reasoning. As to the availability of damages under s 82, his Honour focussed upon what point in time the relevant loss or damage was said to have accrued, and relied upon the analysis in Wardley (which we will discuss further below) to find that the loss or damage said to have been sustained by the entry into the loans was “contingent or prospective” at that time until it had crystallised when the increased margin rate became effective. However, before that date, the borrowers were given an opportunity, of which they did not avail themselves, to refinance. In that respect, his Honour held (at 532 [108]) that “[a]s a practical matter, the imposition of the higher rate upon the borrowers was the sequel to their exercise of choice not to accept the proposal made by GIO”, and therefore the relevant “causal link” could not be demonstrated: at 533 [111].

64    As to the availability of relief under s 87, again Gummow J noted that the borrowers’ increased contractual liability “would be the product of their own exercise of choice”: at 136 [119]. His Honour approached the issue of relief available under s 87 through the prism of equitable principles, as he had done in Demagogue (at 43–4). His Honour drew support from the reasoning of Jessel MR in Redgrave v Hurd (1881) 20 Ch D 1 (at 12–13), which his Honour observed (at 535 [117]) was “indicative of an appropriate response to the claim of the borrowers for relief by an order under s 87(2)(b)”. That response was to emphasise the fact that, unlike a situation where the courts of equity would grant the setting aside of a contract by material false representation in circumstances where the representor sought “to take advantage of [its] own false statements” (Redgrave at 13), here, by reason of its offer to the borrowers to refinance, GIO did not insist upon keeping the borrowers to the terms of the loans. In any event, the loans were more beneficial to the borrowers than any other available facility. Accordingly, his Honour held that no s 87 relief was available.

65    Gaudron J indicated (at 504 [18]) that she was in substantial agreement with the approach taken by Gummow J on the issue of whether the borrowers suffered or were likely to suffer loss or damage. As to the availability of damages under s 82, her Honour held (at 504 [19]–[20]) that if an applicant can establish that, but for the misleading and deceptive conduct, they would have entered into another contract “that would have returned the very benefit that was represented”, or would not have entered into the contract in question or into any other similar contract, then, in the former case, damages will be available “as if the representation had been contractual”, and “possibl[y] – although not invevitabl[y]” the loss in the latter case will be “the same in money terms as it would have been if the representation were contractual”. On that basis, her Honour observed (at 504 [21]) that here, the borrowers had not said that, but for the contravention, they would have entered into a facility as represented by GIO (as the evidence established there were no such facilities available and the GIO facilities were the most beneficial available on the market), nor had they said that they would not have entered into the GIO loan or any other loan. Accordingly, there was no entitlement to s 82 damages because the borrowers had failed to establish any loss or damage.

66    As to s 87 relief, her Honour held (at 505 [24]) that “had the appellants been held to their contracts”, s 87 relief may have been available to prevent loss or damage likely to be suffered in the future. Similarly to the reasoning of Gummow J, her Honour emphasised that the borrowers had elected not to refinance the facilities and had therefore had “[n]ot … been held to their contracts”. Relief under s 87 was therefore unavailable.

67    Kirby J, in dissent on the result, would have held that s 87 relief was available. His Honour held that “loss or damage” under s 87 includes expectation of profits (at 547 [148]) and thus relief was available where “the loss, damage or injury suffered by the borrowers in this case extends to the loss of the contractual terms which GIO misleadingly and deceptively represented to the borrowers would be ‘fixed’ for the duration of their contracts”: at 551 [156]. Kirby J expressly parted company with the approach of Gummow J and Gaudron J on the usefulness of equitable analogies, primarily on the basis of a broad reading of the relief available under s 87, supported by the broad and remedial purposes of the TPA. His Honour expressed his agreement with the reasoning of Cooper J in Demagogue (at 47) that loss or damage in s 87 meant “no more than the disadvantage which is suffered by a person as the result of the act or default of another ... in the circumstances provided for in the section”.

68    As the foregoing summary of the judgments in Marks demonstrates, the various judgments of the majority do not compel the conclusion that the ratio of Marks is that stated in the passage of the joint judgment relied upon by the respondents. The context in which that statement was made was their Honours’ elucidation of the metes and bounds of the availability of s 87 relief. Their Honours held (at 513–4 [46]) that central to the concept of loss and damage in ss 82 and 87 is that “the plaintiff has sustained (or is likely to sustain) a prejudice or disadvantage as a result of altering his or her position under the inducement of the misleading conduct.” On that basis, their Honours approached the claim of the borrowers by focussing “only on loss said to be suffered by the making of the contract” (at 514 [48]), and it is in that context in which their Honours made the statements that the respondents sought this Court to apply. It is not apparent from any of the judgments that the borrowers sought the Court to hold that the bare entry into a contract, without more, could amount to loss or damage. But on the basis of the concession made by the borrowers as to the unavailability of more beneficial loans on the market, the joint judgment appears to have proceeded on the basis that the effect of that concession was that the claim amounted to just that. As has been seen, Gummow J and Gaudron J approached the matter differently. Gummow J’s analysis, in respect of both ss 82 and 87, presumed, by reference to when the claimed loss was said to have crystallised, that such loss could be made out. However, in respect of s 82, his Honour found that no causation had been established, and in respect of s 87, that GIO’s offers to refinance prior to that loss crystallising precluded it, by analogy with equitable principles, from obtaining relief under that section. Gaudron J’s analysis was in effect similar to the joint judgment on the absence of loss or damage for the purposes of s 82 (although her Honour did not engage with the Demagogue point mentioned by the joint judgment), but the same as Gummow J’s in respect of s 87.

69    The above analysis also compels the further conclusion that no seriously considered dicta of a majority of the Court can be found to the effect that Demagogue ought not be followed.

Wardley Australia Ltd v Western Australia

70    The second step of the primary judge’s reasoning was that the views expressed by the Full Court in Demagogue seem inconsistent with the joint judgment of Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley: PJ [558]. His Honour’s analysis which follows is principally directed toward establishing the proposition that the meaning of “loss and damage” in ss 82 and 87 is the same. His Honour quoted from passages in I & L Securities and Marks and cited Murphy v Overton Investments to make good that proposition. The premise upon which that analysis was based was that Wardley establishes, albeit in the context of s 82, that the mere entry into a contract does not establish loss and damage. With respect to the primary judge, we are in agreement with the submissions put by senior counsel for Harvard on appeal that Wardley does not stand for any broad proposition that the mere entering into a contract can never constitute loss and damage.

71    The issue in Wardley arose in this way. The State of Western Australia had amended its statement of claim to plead that it had executed an indemnity in favour of a bank in reliance on the appellants’ misleading representation as to the soundness of another institution’s financial position. The amendment was made more than the three years after the indemnity was executed. The primary judge struck out the new pleading on the basis it was statute barred because, if made out, the State’s claimed “loss and damage” occurred upon the execution of the indemnity. The Full Court of this Court allowed an appeal, which the High Court affirmed. The High Court held that the amendment was not statute barred as the State’s relevant liability under the indemnity was “contingent and executory” at the time of the amendment; that is, the indemnity “created a liability on the part of the [State] to the Bank to make payment if and when the Bank’s relevant ‘net loss’ was ascertained and quantified”: at 524 per Mason CJ, Dawson, Gaudron and McHugh JJ (emphasis added).

72    Wardley concerned a claim of actual loss or damage under s 82 of the TPA. In the circumstances before the Court in that case, it was therefore necessary to determine when that loss and damage occurred. That inquiry is necessarily fact and circumstance dependant. In that case, the claim for loss and damage was made in respect of a contingent liability, the crystallisation of which was determined to be the relevant date. It is true that certain passages in the joint judgment, including that quoted above, taken in isolation, appear to support the view that no loss or damage can be occasioned by the mere entering into a contract. But such statements as appear in the judgment, including those disapproving of the approach taken in Jobbins v Capel Court Corporation Ltd (1989) 25 FCR 226, were made in the context of claims for loss and damage upon the entry into a contract where the relevant loss was contingent. And so, in a passage expressly quoted by Gummow J in Marks, their Honours said (at 527):

When a plaintiff is induced by a misrepresentation to enter into an agreement which is, or proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on entry into the agreement. That is because the agreement subjects the plaintiff to obligations and liabilities which exceed the value or worth of the rights and benefits which it confers upon the plaintiff. But, as will appear shortly, detriment in this general sense has not universally been equated with the legal concept of “loss or damage”. And that is just as well. In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust.

(Emphasis added.)

73    What is apparent from the above passage is the fact-specific inquiry required in ascertaining the relevant loss or damage. The first and second emphasised passages are consonant with the views expressed by the joint judgment in Marks (at 514 [47]) that “[t]he bare fact that a contract has been made which confers rights or imposes obligations that are different from what one party represented to be the case does not demonstrate that the party that was misled has suffered loss or damage”. That is because “detriment in a general sense” is not sufficient. In a passage the primary judge in this case quoted and relied upon, Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley quoted a passage from the judgment of Ackner LJ in UBAF Ltd v European American Banking Corporation; The Pacific Colocotronis [1984] QB 713, where his Lordship remarked (at 725) that:

The mere fact that the innocent but negligent misrepresentations caused the plaintiffs to enter into a contract which they otherwise would not have entered into, does not inevitably mean that they had suffered damage by merely entering into the contract.

(Emphasis added.)

74    In considering whether the statements in Demagogue can be reconciled with Wardley, his Honour did not otherwise make reference to any particular passage in Wardley. It is to be noted that Lord Justice Ackner, similarly to the joint judgment’s statement that such a detriment “has not universally been equated” with loss or damage, said that the mere entry into a contract “does not inevitably” result in such loss or damage. Such statements do not foreclose the possibility that in some circumstances, such an entry will have that effect. It is the third emphasised passage above of Gummow J’s reasons in Marks which encapsulates the true issue that confronted the Court in Wardley. The loss was incapable of ascertainment at the time of the entry into the contract precisely because the liability that was said to create the loss would not come home until that contingency was fulfilled. That is a perfectly logical analysis to conduct in the context of s 82 relief, which requires actual, not prospective, loss. That was the inquiry conducted by Gummow J in Marks where his Honour applied the Wardley approach to determine that s 82 relief was not available.

75    Here, however, there is no contingency relied upon. It is not, the “mere” or “bare” fact of entry that is relied upon as opposed to some future potential loss which has not yet materialised, but the immediate consequences of that entry itself.

76    It follows that in our view, Wardley is not inconsistent with Demagogue.

Conclusion as to status of Demagogue

77    The relevant dictum in Demagogue is that the loss or damage contemplated by s 87(1A) (now s 237 of the ACL) includes the detriment suffered by being bound to a contract unconscionably induced (at 32 per Black CJ and 44 per Gummow J), or that it includes the disadvantage of incurring contractual obligations which would not have been incurred but for the conduct complained of (at 47 per Cooper J). See PJ [554]–[556] quoted above. On that basis, the finding by the primary judge (PJ [470]) that Harvard would not have entered into the Tiller Leases but for the offending conduct is sufficient to establish that Harvard “suffered, or is likely to suffer, loss or damage” within the meaning of s 237(1)(a) of the ACL which in turn provides a foundation for relief under s 243. We are accordingly in respectful disagreement with the primary judge in that respect.

Conclusion as to loss or damage

78    However, it is not necessary to decide the case on that narrow basis. That is because of the primary judge’s findings that Harvard was set against contracting with Mr Nicoletti, albeit for its own subjective reasons, and that but for Mr Nicoletti’s involvement having been kept from Harvard it would not have entered into the Tiller Leases at the rental that it did that was advantageous to the lessee. The primary judge found that “Mr Nicoletti’s involvement would have put a very different complexion on the proposed lease for what was believed to be below market rent” (PJ [364]) and that John Caratti (i.e. Harvard) “would not have been content to see Mr Nicoletti benefit from the low rent under the Tiller Leases” (PJ [409]). Ultimately the primary judge concluded that Harvard would not have contracted with Mr Nicoletti because of John Caratti’s animosity towards Allen Caratti and his perception that Mr Nicoletti was in Allen’s camp, and his likely unwillingness in any event to allow Mr Nicoletti to take advantage of the low rent under the Tiller Leases (PJ [456]).

79    That brings the case squarely within what was said in the joint judgment in Marks (i.e. “loss or damage … is not confined to economic loss” (at 513 [46]), the applicant must “suffer some prejudice or disadvantage” and “something more [than making a contract] must be shown” (at 515 [54]), and if not a difference in value then “some other manifestation of actual loss” is sufficient (at 515 [55])) and what was said in Wardley (that is, “disadvantageous character or effect” (at 527 per Mason CJ, Dawson, Gaudron and McHugh JJ). See also Murphy v Overton Investments (at 407 [45] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

80    The respondents submitted that Mr John Caratti’s strong antipathy to Harvard contracting, or having anything to do, with Mr Nicoletti was not the view of Harvard on the basis that as a corporation Harvard had no sensibilities to offend or feelings to hurt. Reference was made to comments by Wilcox J in the context of a defamation claim that a corporation does not have feelings to be hurt: Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 (at 641).

81    Senior counsel for the respondents however, rightly accepted that John Caratti was the controlling mind of Harvard, that his mind was Harvard’s and that he would not have allowed Harvard to contract with Mr Nicoletti or any company associated with him. In the light of that acceptance, the submission that Harvard did not hold Mr Caratti’s antipathy towards Mr Nicoletti cannot be accepted. Mr Caratti’s subjective dislike of Mr Nicoletti amounted to Harvard’s imputed intention not to contract with him, it is not necessary that that dislike be based on any objectively measurable disadvantage in having Mr Nicoletti as a tenant.

82    It was not Harvard’s case that it suffered loss or damage by reason of its feelings being hurt by being deceived into contracting with Mr Nicoletti. Its case on causation, which the primary judge accepted, was that but for the contravening conduct it would not have contracted with Mr Nicoletti. Its loss and damage in having done so is, relevantly, being bound to a contract with someone it strenuously wishes not to be contracted to on terms it would not have agreed.

83    The respondents also submitted that Harvard did not run the case at trial that part of its loss was in contracting at a lower rental than it might otherwise have contracted at if it had known of the involvement of Mr Nicoletti. That submission cannot be accepted in the light of para [4] of Harvard’s opening submissions (quoted at [25] above) and the fourth dot-point of its closing oral submissions that we have quoted (at [29]) above.

84    The respondents also submitted that the approach to loss or damage taken by Harvard as we have outlined above is impermissible because it ignores the transactions which put Harvard in the position to lease the farms to Mr Tiller and Dimension. That is to say, it ignores the fact that the evidence was, and the primary judge accepted, that none of the suite of transactions – by which the Tillers surrendered their leases to Mammoth and Mammoth surrendered its head lease of Warriup Farm and assigned its head lease of the Howick Farm to Harvard and then the New Leases by Harvard to Mr Tiller and Dimension – would have been concluded but for the contravening conduct. On that basis, the respondents submitted that there was an indivisible suite of transactions and it is impermissible to focus only on loss or damage, or likely loss or damage, said to have been suffered by Harvard in relation to the New Leases while ignoring benefits of the other transactions. The respondents’ submissions cannot be accepted.

85    It first needs to be appreciated that in this part of the case the relief that Harvard seeks is statutory rescission (or termination) of the New Leases pursuant to the power in ss 237(1) and 243 of the ACL. It cannot seek rescission of the whole suite of transactions because that involves third parties, principally Mammoth and Allen Caratti, and there is no indication that anyone wants to return to the situation before the suite of transactions. Harvard is entitled to base its loss or damage, or likely loss or damage, for the purpose of establishing the basis for the relief that it seeks with reference to the transactions in respect of which it seeks that relief.

86    That appreciation focusses on the particular loss or damage that Harvard identifies as having been caused by the contravening conduct such as to justify the relief that it seeks. That loss or damage is being bound to extended contractual performance under the New Leases as we have explained and that constitutes loss or damage regardless of the effect of the other transactions. Any economic benefit that Harvard might hypothetically have enjoyed as a consequence of the suite of transactions as a whole would not offset that particular form of loss or damage on which it relies for the rescission relief that it seeks. Rescission (or termination), as opposed to statutory damages, is the only relief that can cure that loss or damage. By analogy, see Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981; (2011) 216 IR 116 (at 259 [873] per Barker J).

87    It is also to be noted that the primary judge found (PJ [512]) that the Tiller Leases “would have collapsed” and Mr Tiller “would not have been able to carry on”, which is perhaps why his Honour had at that stage said that “it is arguable” that the New Leases left Harvard better off compared to the prior state of affairs, rather than making a firm finding in that regard. That demonstrates the difficulty in trying to assess whether Harvard’s ultimate financial position under the New Leases was worse than what its position would have been if none of the suite of transactions had occurred. That exercise involves not only counting up rental entitlements under the different leases, and anticipated expenses, but also whether the rent would have been paid and, if not, what would then have occurred. That is necessarily a highly speculative exercise.

88    Insofar as the claim for statutory damages is concerned, the process of reasoning is that Harvard was entitled to rescind or terminate the New Leases on learning about the involvement of Mr Nicoletti and, consequently, the contravening conduct. It sought to do that by the letter on 2 April 2019 but Mr Tiller and Dimension Agriculture, through their solicitors, rejected that rescission by letter dated 5 April 2019.

89    Harvard submitted that once it is recognised that Harvard was entitled to have the New Leases rescinded with effect from 2 April 2019, the question is then: what position would Harvard have been in had that occurred? It submitted that it could have leased the farms to the Fowlers and that the only reason why it could not do so was because the respondents denied and failed to give effect to its legal rights.

90    In Murphy v Overton Investments the High Court considered loss and damage under s 82 of the TPA and loss or damage or likely loss or damage under s 87 of the TPA. The Court (at 408 [49] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) explained that it should not be assumed that the loss or damage which a person suffers as a result of contravening conduct “is necessarily singular”; it should not be assumed that loss or damage is incurred either as a loss on capital account, or as a loss on revenue account, using the terminology of capital and revenue accounts as made in the law of taxation merely for the purposes of explanation and illustration (see 408 [48]).

91    It is thus apparent that a single act of misleading and deceptive conduct, or a course of misleading and deceptive conduct, is capable of producing different remedial responses including statutory damages under s 236 and rescission or termination under ss 237 and 243.

92    The primary judge found (PJ [507]) that the contravening conduct materially contributed to Harvard’s inability to obtain vacant possession after 2 April 2019 and therefore its inability to take the benefit of the Fowler leases. Under the broad common-sense notion of causation under the ACL, that is sufficient to have concluded that the loss represented by the lost opportunity of the Fowler leases is “loss or damage because of the conduct of another person” (s 236(1)(a)), being the contravening conduct of the respondents.

93    Of course, any quantification of that loss will depend at least in part on any statutory rescission relief. Thus, any inquiry as to both forms of relief will need to be undertaken by the primary judge on remittal.

F    SECOND GROUND OF APPEAL

94    Harvard’s other ground of appeal was that the primary judge erred in finding that the 15 February Deeds conduct did not repudiate the New Leases entitling Harvard to terminate the New Leases and procure immediate vacant possession of the farms from on or about 15 February 2019.

95    Since we have found that Harvard had an entitlement to rescind the leases as at 2 April 2019, and that statutory rescission relief should follow from that, any finding in Harvard’s favour on the alternative ground would be inconsistent. It is in that sense a pure alternative. Because of that, and because the matter has to be remitted to the primary judge for the question of relief, we do not consider that it is necessary or efficient to deal with the second ground. The notice of contention is advanced as an answer to the second ground and can accordingly be put to one side.

E    DISPOSITION

96    Because of the different view the primary judge came to with regard to loss or damage under s 237, his Honour did not come to consider the relief that should be ordered under s 243. As we have explained, the principal relief sought by Harvard is rescission (or termination) of the New Leases. Questions arise about whether this remedy should be granted and, if so, the terms of any order. It is unnecessary to go into detail, but as a matter of context, it should be recalled that at common law, rescission occurs by election; in equity rescission occurs by court order and, like all equitable remedies, is subject to equitable defences and the discretion of the court. Relevant to the exercise of discretion is the fact, as explained by Lord Blackburn in Erlanger v New Sombrero Phosphate Company (1878) 3 App Cas 1218 (at 1279), that the court may order rescission on terms that seek to “do what is practically just” between the parties. Although equity ameliorated the harshness of the position at common law (in that it did not insist on precise restitutio in integrum) it has been argued that a central tenet of rescission remains the restoration of the parties to their original positions as the criterion of practical justice: see, for example, O’Sullivan, D, Elliott, S and Zakrzewski, R, The Law of Rescission (Oxford University Press, 2008) at p 312. The principles developed in equity are at least relevant to the exercise of (what Harvard will no doubt argue is the flexible and broad nature of) the statutory discretion to make orders in the nature of rescission under s 243. We have not heard argument in relation to this issue, nor do we have before us the evidence the parties have indicated they propose to rely upon in addressing such matters. Nor have we heard argument, given we are dealing with a statutory remedy, as to the appropriate operative date for such an order of statutory rescission. Such questions may assume some importance given that Mr Nicoletti or companies associated with him put significant investment into the farms (said by him to have been $3 million and found by the primary judge to have been “in the order of millions of dollars” – PJ [328]), and also from the nature of the growing season. In any event, all parties accepted that further evidence relevant to the question of relief may be necessary.

97    It will also be necessary for his Honour to consider the secondary relief sought, being statutory damages; an issue that Harvard asserts can only be dealt with subsequent to determining whether statutory rescission ought to be ordered and the relevant terms of any such order.

98    For the reasons explained above, the appeal should be allowed, the orders of the primary judge dismissing the amended originating application and associated costs orders should be set aside, and the matter should be remitted to his Honour on the question of what, if any, relief should be granted under ss 236 and 243 of the ACL.

99    Much unnecessary disputation has stemmed from Harvard’s decision below not to seek equitable rescission (even in the alternative). If such a course had been adopted, it may well have avoided, consistently with the overarching purpose contained in Pt VB of the Federal Court of Australia Act 1976 (Cth), the distraction of lengthy argument as to the “gateway” for statutory relief. But Harvard’s argument eventually did succeed notwithstanding the resistance of the respondents and, on balance, we do not consider the course adopted by Harvard below to be a sufficient reason to depart from the course of ordering that costs of the appeal follow the event. The costs below should be left to the primary judge to be determined at the conclusion of the proceeding.

Associate:

Dated:    18 December 2020