Federal Court of Australia
Belconnen Lakeview Pty Ltd v Lloyd [2021] FCAFC 187
ORDERS
Appellant | ||
AND: | Respondent | |
AND BETWEEN: | Cross-Appellant | |
AND: | BELCONNEN LAKEVIEW PTY LTD (and others named in the Schedule) First Cross-Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal brought by the appellant (Belconnen) be allowed.
2. The cross-appeal brought by the respondent (Mrs Lloyd) be dismissed.
3. The cross-cross-appeal brought by the second cross-respondent (Mr Hindmarsh) and the third cross-respondent (Mr Ryan) be allowed.
4. The following parts of the orders of the primary judge dated 14 May 2020 be set aside:
(a) paragraph 1;
(b) paragraph 4; and
(c) the reference to order 4 in paragraph 6.
5. In lieu thereof, it be ordered that Mrs Lloyd’s claim against Belconnen be dismissed.
6. In relation to any consequential orders arising from the above, the costs of the proceeding at first instance, and the costs of the appeal, the cross-appeal and the cross-cross-appeal:
(a) Within 14 days:
(i) Belconnen file and serve written submissions (of no more than five pages), proposed minutes of orders and any affidavit material; and
(ii) Mr Hindmarsh and Mr Ryan file and serve written submissions (of no more than two pages), proposed minutes of orders and any affidavit material;
(b) Within a further 14 days, Mrs Lloyd file and serve written submissions (of no more than seven pages), proposed minutes of orders and any affidavit material; and
(c) Subject to further order, the issues of consequential orders and costs be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 The appellant, Belconnen Lakeview Pty Ltd (as trustee of the Belconnen Lakeview Unit Trust) (Belconnen) was the developer and vendor of the “Altitude Apartments” located on land in the suburb of Belconnen in the Australian Capital Territory (ACT).
2 In the relevant proceeding at first instance, which was a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth), the present respondent (the applicant at first instance) (Mrs Lloyd), on her own behalf and on behalf of group members, sued Belconnen and two of its officers, Mr Hindmarsh and Mr Ryan (who are, respectively, the second and third cross-respondents before this Court).
3 The transaction in issue was a sale of the unexpired term of a lease with respect to a residential unit from Belconnen to Mrs Lloyd for $554,900, inclusive of Goods and Services Tax (GST). The draft contract of sale was prepared by Belconnen on the basis that the sale was a taxable supply for GST purposes and that the vendor would apply the “margin scheme” (described later in these reasons). The parties entered into the contract in this form.
4 Approximately one month later, settlement took place. Mrs Lloyd paid the purchase price and the unexpired term of the lease was transferred to her.
5 Despite the form of the draft contract (and the contract as entered into by the parties), in truth the sale was not a taxable supply. That is, no GST applied to the sale (and the margin scheme could not be applied). Indeed, some two years before the date of the contract with Mrs Lloyd, Belconnen had obtained a private binding ruling from the Australian Taxation Office (ATO) that sales of unexpired terms of leases with respect to residential units in the development were not taxable supplies. The draft contract was prepared on an incorrect basis.
6 Subsequently, Mrs Lloyd commenced the proceeding at first instance, relying on several causes of action. The following two causes of action are of particular relevance for present purposes.
(a) First, Mrs Lloyd contended that Belconnen had engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) and that Mr Hindmarsh and Mr Ryan were knowingly involved in the contravention.
(b) Secondly, Mrs Lloyd sought recovery of money on the basis of an action for money had and received (the restitution case). By this claim she sought the recovery of approximately $46,000, being the GST that would have applied to the sale of the unit had the supply been a taxable supply and subject to the margin scheme.
Another pleaded cause of action was breach of contract, but Mrs Lloyd abandoned this case after the close of evidence and before submissions during the trial.
7 The primary judge, in his principal reasons for judgment, Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177 (the Reasons):
(a) upheld Mrs Lloyd’s misleading or deceptive conduct case against Belconnen, finding that the conduct of Belconnen in proffering the draft contract conveyed a misleading representation, that the representation continued to be made between the date of the contract and the date of settlement, and that the misleading conduct was causative of loss, in that Mrs Lloyd lost an opportunity to renegotiate the contract; the primary judge awarded Mrs Lloyd compensation of approximately $23,000 for the loss of this opportunity;
(b) rejected Mrs Lloyd’s case against Mr Hindmarsh and Mr Ryan; and
(c) rejected Mrs Lloyd’s restitution case.
8 Belconnen has filed a notice of appeal and Mrs Lloyd has filed a notice of cross-appeal. Further, Mr Hindmarsh and Mr Ryan have filed a notice of cross-cross-appeal, which relates only to costs and is contingent on the appeal being allowed and the cross-appeal being dismissed.
9 The following documents have also been filed by the parties:
(a) Mrs Lloyd has filed a notice of contention in the appeal;
(b) Belconnen, Mr Hindmarsh and Mr Ryan have filed a notice of cross-contention in the cross-appeal; and
(c) Belconnen has filed an interlocutory application dated 21 April 2021 seeking that the Court receive further evidence on the appeal.
10 The issues raised by the notices and other documents referred to above can be summarised as follows (and it is convenient to deal with the issues in the following order):
(a) Whether the primary judge erred in finding that Belconnen had engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law, that the conduct was causative of loss, or in the assessment of any loss or damage (appeal grounds 1 to 6; Mrs Lloyd’s notice of contention, grounds 1 and 2); and whether Belconnen should be permitted to adduce further evidence on appeal (the First Issue).
(b) Whether the primary judge erred in failing to find that Mr Hindmarsh and Mr Ryan were knowingly involved in any contravention of s 18 of the Australian Consumer Law by Belconnen (cross-appeal, grounds 8 to 11; notice of cross-contention, ground 2) (the Second Issue).
(c) Whether the primary judge erred in rejecting Mrs Lloyd’s restitution case (cross-appeal, grounds 1 to 7; notice of cross-contention, ground 1) (the Third Issue).
(d) Whether the primary judge erred in relation to the answers to certain common questions of law and fact and in dismissing an interlocutory application by Belconnen to declass the proceeding (appeal grounds 7 to 9) (the Fourth Issue).
(e) In the event that the appeal is allowed and the cross-appeal is dismissed, whether the primary judge erred in relation to costs (cross-cross-appeal, ground 1) (the Fifth Issue).
11 For the reasons that follow, we have concluded, in summary, as follows:
(a) In relation to the First Issue:
(i) Insofar as Belconnen challenges the primary judge’s finding that any misleading or deceptive conduct caused loss or damage to Mrs Lloyd, we uphold this contention. We consider that the primary judge erred in concluding that Mrs Lloyd lost an opportunity of non-negligible value (namely the opportunity to renegotiate the contract). In our view, the primary judge should have held that Mrs Lloyd did not lose an opportunity of non-negligible value. It follows that Belconnen’s appeal is to be allowed.
(ii) Insofar as Belconnen contends that the primary judge erred in holding that the draft contract was misleading or deceptive, and that the relevant representation was a continuing representation, we reject those contentions.
(iii) In light of these conclusions, it is unnecessary to determine Belconnen’s application to receive further evidence on appeal. Had it been necessary to deal with this, we would have rejected it.
(b) In relation to the Second Issue, no error is established in the primary judge’s conclusion that Mr Hindmarsh and Mr Ryan were not knowingly involved in any contravention of s 18 of the Australian Consumer Law by Belconnen.
(c) In relation to the Third Issue, the primary judge was correct to conclude that Mrs Lloyd’s restitution case failed. However, our reasons for reaching this conclusion are different from those of the primary judge.
(d) In relation to the Fourth Issue, we do not accept Belconnen’s contentions that the primary judge erred.
(e) In relation to the Fifth Issue, given the conclusions we have reached, the relevant costs order made by the primary judge needs to be set aside and re-visited.
The proceeding at first instance
12 There were two proceedings at first instance, but only one of those proceedings is relevant for present purposes. The two proceedings before the primary judge were:
(a) proceeding NSD 1417 of 2017 (the Altitude proceeding); and
(b) proceeding NSD 1555 of 2018 (the Governor Place proceeding).
13 The relevant proceeding for present purposes is the Altitude proceeding. However, it will be necessary to refer to some parts of the primary judge’s reasoning in relation to the Governor Place proceeding, to provide context and background for his Honour’s reasoning in relation to the Altitude proceeding. In that regard, it is convenient to note that the developers relevant to the Governor Place proceeding were referred to in the Reasons as the Barton Developers, and the specific cases that were tried as part of that proceeding related to Mr and Mrs El-Zein and Mr and Mrs Eppelstun.
14 Mrs Lloyd brought the Altitude proceeding as a representative proceeding on her own behalf and on behalf of other persons (Altitude group members) who purchased the unexpired term of a lease for a residential unit in the development known as “Altitude Apartments” from Belconnen pursuant to a contract (Altitude Contract) that contained the terms pleaded in paragraphs 17-18 of the second further amended statement of claim filed 3 May 2019 (the statement of claim).
15 Mrs Lloyd pleaded a number of different causes of action, including money had and received, breach of contract, misleading or deceptive conduct and unconscionable conduct (contrary to statutory provisions). She also brought claims for accessorial liability against Mr Hindmarsh and Mr Ryan on the basis that they were knowingly involved in the statutory contraventions.
16 On 30 April 2019, an order was made in the Altitude proceeding that the following matters would be determined at an initial trial: the whole of the claim of Mrs Lloyd; and various agreed common issues of law or fact set out in Schedule 1 to those orders. The issues of law and fact are set out in [20] of the Reasons.
The GST context
17 Before setting out the background facts, we refer to some relevant aspects of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act).
18 Under s 7-1(1) of the GST Act, GST is payable on (relevantly) taxable supplies. An entitlement to claim input tax credits arises on (relevantly) creditable acquisitions: GST Act, s 7-1(2). Liability to pay the GST on a taxable supply falls on the person making the supply: GST Act, s 9-40. Generally, the amount of GST on a taxable supply is 10% of the value of the taxable supply: GST Act, s 9-70.
19 Section 9-5, which provides a definition of “taxable supply”, provides that a supply is not a taxable supply to the extent that it is GST-free or input taxed. GST-free supplies can be put to one side for present purposes. Section 9-30(2) provides that a supply is input taxed if (relevantly) it is input taxed under Div 40 or under a provision of another Act. Under the GST Act, if a supply is input taxed, no GST is payable on the supply, and there is no entitlement to an input tax credit for anything acquired or imported to make the supply: see s 40-1.
20 Division 75 of the GST Act contains special rules relating to the sale or grant of certain interests in real property, including (relevantly) long-term leases. The Division allows the taxpayer to use a “margin scheme” in relation to the supply of such interests. If a taxable supply of an interest in real property is under the margin scheme, the amount of GST on the supply is 1/11 of the margin for the supply: GST Act, s 75-10(1). Broadly, the margin for the supply is the amount by which the consideration for the supply exceeds the consideration for the taxpayer’s acquisition of the interest in land: GST Act, s 75-10(2).
21 In order for the margin scheme to apply, it is necessary for the person selling or granting the interest and the recipient of the supply to agree in writing that the margin scheme is to apply: GST Act, s 75-5(1). The taxpayer is not required to issue a tax invoice for a taxable supply that it makes that is solely a supply of real property under the margin scheme: s 75-30(1).
22 An acquisition of certain interests in real property, including a long-term lease, is not a creditable acquisition if the supply of the interest was a taxable supply under the margin scheme: GST Act, s 75-20. Thus, one effect of the margin scheme is that the purchaser of a long-term lease cannot claim an input tax credit for the GST paid on the purchase price. For a private residential purchaser, who cannot claim input tax credits in any event, this is of little concern. For a commercial purchaser, who would otherwise be able to claim an input tax credit in respect of the acquisition, it might prefer to forgo the input tax credit so as to benefit from the margin scheme when on-selling the property. However, the commercial purchaser can only use the margin scheme when on-selling the property if it had earlier acquired the property under the margin scheme: see GST Act, ss 75-5(2) and 75-5(3)(a). As Robb J explained in Prowl Pty Ltd v DL Brookvale Pty Ltd [2018] NSWSC 1255 (at [22]-[23]) in the context of a development:
22 … The benefit that the purchaser gains from the application of the margin scheme is that it is entitled to apply the margin scheme at the time the property is on-sold, or individual units following the development of the property are sold. The GST payable by the purchaser (now as vendor) will be calculated as a proportion of the difference between the sale price and the original purchase price. The GST payable will invariably be less than if the ordinary basis had applied. …
23 It will be a matter for commercial judgment for a developer … concerning the balance between being able to recover the GST as an input tax credit if the purchase takes place on the ordinary basis, and possibly having to sell the developed units with a higher component of GST payable, on the one hand, and absorbing the GST on the other if the margin scheme is applied, but being able to deal with a lesser amount of GST on the sale of the units after the development has been completed.
23 The interest of a commercial purchaser in being able to use the margin scheme for a future sale would seem to be the purpose of the warranty by the seller in cl 24.5 of the contract of sale in issue in the present case (discussed later in these reasons).
Background facts
24 The following statement of the background facts is largely based on the findings of the primary judge as set out in the Reasons.
Overview
25 Before setting out the facts in detail, it is useful to identify five key dates in the chronology of relevant events:
(a) On 8 February 2013, Belconnen applied to the ATO for a private binding ruling.
(b) On 12 March 2013, Belconnen received a private binding ruling from the ATO (the Altitude Private Ruling).
(c) In March and April 2013, Belconnen amended its GST returns and repaid input tax credits consistently with the Altitude Private Ruling.
(d) On 10 March 2015, Mrs Lloyd and Belconnen exchanged contracts with respect to her purchase of the unexpired term of a lease of a residential unit in the Altitude Apartments development (the Lloyd Contract).
(e) On 7 April 2015, settlement of the purchase took place.
The period before February 2013
26 In 2007, Belconnen purchased the unexpired term of a Crown lease for the relevant land in the suburb of Belconnen, ACT.
27 In or around August 2008, Belconnen retained Clayton Utz to prepare a master contract for the Altitude Apartments development and to act on any sales. A partner of Clayton Utz was appointed by power of attorney to sign contracts on Belconnen’s behalf.
28 Mr Hindmarsh is and was at the material times the sole director and 50% shareholder of Belconnen. He was the Executive Chairman of the Hindmarsh Group, of which Belconnen formed part. At the material times, Mr Ryan was the company secretary of Belconnen and the CFO of the Hindmarsh Group.
29 In 2009, Belconnen was granted development approval in relation to the development of the Altitude Apartments.
30 From about 2010, Belconnen offered to enter into, and entered into, contracts to sell the unexpired term of the then unregistered leases for the residential units in the development.
31 In May 2010, the Full Court of this Court gave judgment in Federal Commissioner of Taxation v Gloxinia Investments Ltd (2010) 183 FCR 420 (Gloxinia). In the context of a developer selling strata lot leases with respect to residential premises, the Full Court (by a majority) held that the supply was an “input taxed supply” rather than a taxable supply for the purposes of the GST Act. In circumstances where the Full Court’s holding departed from the then prevailing understanding of the ATO, legislation was passed (the Tax Laws Amendment (2011 Measures No. 9) Act 2012 (Cth)), with the effect that, subject to transitional provisions (or exceptions), sales of newly constructed residential premises that were the subject of a development lease arrangement would be taxable supplies. The transitional arrangements (or exceptions) are of significance for present purposes. As discussed below, Belconnen obtained a private binding ruling that an exception applied to supplies of the unexpired term of leases of residential units in the Altitude Apartments development, with the effect that the relevant supplies were input taxed supplies.
32 In mid-2011, the building of the Altitude Apartments commenced.
33 On 16 May 2012, Mr Ryan met with Mr Mile Petrevski and Mr Warwick Burr of Maxim Chartered Accountants (Maxim). During that meeting, Mr Ryan provided Messrs Petrevski and Burr with some information about the Hindmarsh Group’s ongoing developments and they discussed Gloxinia. Subsequently, there was an exchange of information and further meetings.
34 On 20 December 2012, Mr Petrevski sent Mr Ryan a letter confirming the terms of engagement between Belconnen and Maxim, and on 23 January 2013, Mr Ryan sent an email to Mr Hindmarsh and Mr Darren Dougan (the then CEO of the Hindmarsh Group) that attached the Maxim engagement letter and provided a useful recounting of the background to the engagement:
As discussed last week, I have agreed to a proposal from Maxim Chartered Accountants to provide consultancy services to Hindmarsh to prepare a request for a Private Binding Ruling (PBR) to be lodged with the ATO during January, regarding the treatment of GST that Hindmarsh should follow for GST relating to the settlements at Altitude…
To summarise, Maxim approached me before Christmas advising that they had recently been successful with PBRs for 2 development clients where there were very specific circumstances that applied, and offered to review the facts around any Hindmarsh projects that were similar. On the basis of high level information I provided on the Altitude project, they assessed it as a close fit with the circumstances and timing in which amendments to the GST law during 2011 and 2012 allowed for certain sales of new residential apartments to be input-taxed.
By treating sales as input-taxed, Hindmarsh would not have to remit GST on the sale prices received for the apartments, but would have to refund any GST input credits previously received by Hindmarsh from expenditure on the project. This would increase the Altitude profit by approximately $3m (GST on sales of $13m less $10m in credits refunded)…
The timing of lodgement of the PBR is crucial, so that we are in a position to decide whether to go ahead with this treatment before we have to remit the GST on the first settlements to occur at Altitude…
I am confident that this is a low risk proposal for Hindmarsh, on the basis of the fee arrangement and Maxim’s reputation and experience in these matters…
I will advise you when the PBR is ready for lodgement.
The period from February to April 2013
35 In February 2013, the plan for the residential units was registered. Upon registration, the Crown lease ended and Belconnen became the holder of an estate in leasehold in each of the residential unit leases, and Belconnen was entitled to sell the unexpired term of each of the residential unit leases.
36 On 4 February 2013, Mr Burr sent Mr Ryan an email attaching a copy of the draft private ruling request for Belconnen. In this email, Mr Burr asked Mr Ryan to review the contents, confirm that the facts and circumstances were accurate and sign the declaration to go with the private ruling request. The private ruling request was later lodged on behalf of Belconnen with the ATO on 8 February 2013, before any settlements occurred.
37 From 8 February 2013, contracts for the unexpired term of leases with respect to residential units in the Altitude Apartments development started to be settled.
38 Mr Ryan became concerned about the delay in obtaining the private ruling. On 18 February 2013, he sent an email to Mr Burr requesting an update on whether any feedback had been received from the ATO and stating:
For information, as at COB today there have been 44 settlements in Stage 1 (Chandler St) for a gross proceeds of $18,485,075 and a GST value under the margin scheme of $1,706,073.
39 Prior to the Altitude Private Ruling, Belconnen was treating the sale of the unexpired term of a lease with respect to a residential unit in the Altitude Apartments development as a taxable supply and intended to apply the margin scheme.
40 On 12 March 2013, the Altitude Private Ruling was issued and the following day, Mr Burr sent Ms Margaret O’Shea (Financial Controller at the Hindmarsh Group) an email, copied to Mr Ryan, stating: “[as] discussed with Gerry this morning, the ATO have confirmed that sales of residential apartments at Altitude are eligible to be treated as input taxed” and thereafter provided Ms O’Shea some instructions with respect to preparing the February 2013 and later Business Activity Statements on an input taxed basis, amending prior Business Activity Statements upon which Belconnen had claimed input tax credits, and repaying all relevant input tax credits previously claimed.
41 The February 2013 Business Activity Statement was prepared on the basis that all of the sales that had occurred during this month were input taxed supplies, not taxable supplies. An email sent by Ms O’Shea to Mr Burr on 20 March 2013 attached a GST calculation worksheet showing that the sales throughout February 2013 amounting to $25,703,393 were treated as input taxed. Also, in or about March 2013, Belconnen filed amended GST returns and on or about 21 March 2013, Belconnen repaid $2,086,245 (being some of the input tax credits).
42 On 30 April 2013, Maxim issued an invoice to the Hindmarsh Corporate Unit Trust for $712,250, being an amount it calculated as 15% of the benefit obtained by Belconnen from treating the sales as input taxed, plus GST. An email from Mr Burr to Mr Ryan had noted that “I have made the invoice out to Belconnen Lakeview (per our engagement letter) … I note that as Belconnen Lakeview is treating is [sic] sales input taxed, it is unlikely to be able to claim the GST on our fee. Please advise if you would like us to invoice an alternate Hindmarsh entity”. Mr Ryan responded, reflecting the distinct benefit received by Belconnen, by noting he was happy with the fee calculation as it “appropriately reflect[s] the benefit coming to Hindmarsh from the change of GST status to input taxed”.
Mrs Lloyd
43 Mrs Lloyd is a widow in her 60s. Following the death of her husband and her retirement in 2014, she decided to move to Canberra and looked at various properties in Canberra, including a two-bedroom apartment in the Altitude Apartments development.
The Lloyd Contract (10 March 2015)
44 As noted above, on 10 March 2015 the Lloyd Contract was entered into by exchange of contracts. In the proceeding at first instance, the Lloyd Contract was treated as representative of the Altitude Contracts.
45 The Lloyd Contract was adapted from a standard form, namely the Law Society of the ACT Contract for Sale form (2013 edition). The contract comprised:
(a) standard printed terms (the Printed Terms), commencing with a two-page Schedule to be populated (the Schedule); and
(b) special conditions drafted by the solicitors for Belconnen (the Special Conditions).
The Special Conditions had paramountcy over the Printed Terms: see cl 59 of the Special Conditions.
46 It is common ground that the Printed Terms were drafted so as to be applicable to all conveyances of land in the ACT, which, like conveyances of land elsewhere in Australia, is a type of property transfer closely regulated by statute. Accordingly, the Printed Terms may or may not be applicable depending upon the particular circumstances of the conveyance. Similarly, the Schedule includes space for including individual details which may or may not be relevant depending upon the circumstances.
47 Notwithstanding that “supply” is defined very broadly in s 9-10(1) of the GST Act, and includes “a grant, assignment or surrender of real property”, there is no “supply” within the meaning of the GST Act upon exchange of contracts for the sale of land. It is therefore conceivable that after exchange, and prior to settlement (which in the case of “off the plan” sales could be a very considerable period), the characterisation of the anticipated supply could change from a taxable supply to a supply which is not taxable or vice versa: see the Reasons, [38].
48 In the case of the Lloyd Contract, the Schedule set out, on page one, the conventional particulars of the conveyance including the following matters (which were defined terms in the contract): the Land, the Seller, the Seller Solicitor, the Stakeholder, the Seller Agent, the Goods (that is, inclusions), the Date for Completion, the Buyer, the Buyer Solicitor and the Date of this Contract. Importantly, the Price was specified as follows:
$554,900.00 (GST inclusive unless otherwise specified).
As can be seen, the Price was specified as being GST inclusive “unless otherwise specified”. No provision of the contract “otherwise specified”.
49 After referring to any details of co-ownership, page one also provided space for execution. The copy of the Lloyd Contract in the Appeal Book has been executed by the Seller.
50 The second page of the Schedule identified documents included in, and forming part of the contract, and then identified further particulars, including the following boxes relating to GST:
51 It is common ground that, to reflect the correct tax treatment of the supply, the two boxes that were crossed should not have been crossed; rather, the box alongside the words “Input taxed supply of residential premises” should have been crossed.
52 The Printed Terms included a clause (cl 24) relating to GST. That clause was in the following terms:
24 GST
24.1 If a party must pay the Price or provide any other consideration to another party under this Contract, GST is not to be added to the Price or amount, unless this Contract provides otherwise.
24.2 If the Price is stated in the Schedule to exclude GST and the sale of the Property is a taxable supply, the Buyer must pay to the Seller on Completion an amount equal to the GST payable by the Seller in relation to the supply.
24.3 If under this Contract a party (Relevant Party) must make an adjustment, pay an amount to another party (excluding the Price but including the Deposit if it is released or forfeited to the Seller) or pay an amount payable by or to a third party:
24.3.1 the Relevant Party must adjust or pay at that time any GST added to or included in the amount; but
24.3.2 if this Contract says this sale is a taxable supply, and payment would entitle the Relevant Party to claim an input tax credit, the adjustment or payment is to be worked out by deducting any input tax credit to which the party receiving the adjustment or payment is or was entitled multiplied by the GST Rate.
24.4 If this Contract says this sale is the supply of a going concern:
24.4.1 the parties agree the supply of the Property is the supply of a going concern;
24.4.2 the Seller must on Completion supply to the Buyer all of the things that are necessary for the continued operation of the enterprise;
24.4.3 the Seller must carry on the enterprise until Completion;
24.4.4 The Buyer warrants to the Seller that on Completion the Buyer will be registered or required to be registered;
24.4.5 If for any reason (and despite cl. 24.1 and 24.4.1) the sale of the Property is not the supply of a going concern but is a taxable supply:
(a) the Buyer must pay to the Seller on demand the amount of any GST payable by the Seller in respect of the sale of the Property; and
(b) the Buyer indemnifies the Seller against any loss or expense incurred by the Seller in respect of that GST and any breach of cl 24.4.5(a).
24.5 If this Contract says that the Buyer and Seller agree that the margin scheme applies to the supply of the Property, the Seller warrants that it can use the margin scheme and promises that it will.
24.6 If this Contract says the sale is a taxable supply, does not say the margin scheme applies to the sale of the Property, and the sale is in fact not a taxable supply, then the Seller must pay the Buyer on Completion an amount of one-eleventh of the Price.
24.7 On Completion the Seller must give the Buyer a tax invoice for any taxable supply by the Seller by or under this Contract.
53 Turning to the Special Conditions, three clauses have relevance. They are clauses 52, 56 and 60, which were in the following terms:
52. Price inclusive of GST
(a) The Price payable in accordance with this Contract is inclusive of GST (within the meaning of the A New Tax System (Goods & Services Tax) Act 1999 (sic) as amended from time to time.)
(b) The Buyer agrees with the Seller that any GST the Seller is liable to pay on the supply of the Unit to the Buyer under this Contract is calculated under Division 75 of the A New Tax System (Goods & Services Tax) Act 1999 (sic) (ie. the Margin Scheme).
…
56. Representations
56.1 Entire agreement
The Buyer agrees that this Contract sets out the entire agreement of the parties on the subject matter of this Contract and supersedes any prior agreement, advice, material supplied to the Buyer or understanding on anything connected with the subject matter of this Contract.
56.2 No reliance
Each party has entered into this Contract without reliance upon any representation, statement or warranty (including sales and marketing material and preliminary art work), except as set out in this Contract.
…
60. Definitions
60.1 Definitions
In these Special Conditions the following words have the following meanings:
“Contract” means this contract for sale including the Printed Terms and these Special Conditions and any annexure or schedules to it.
…
“Printed Terms” means the printed terms of the standard ACT Law Society Contract 2013 Edition.
60.2 Same meanings
For the avoidance of any doubt, unless otherwise stated, the terms that are defined in the Printed Terms of the Contract have the same meanings in these Special Conditions.
54 Clause 52 serves to reinforce the fact that the Lloyd Contract was GST inclusive and that the Special Conditions did not otherwise specify (as referred to in the definition of the Price). Additionally, cl 52(b) contemplated that Belconnen may not be liable for GST on the supply (“any GST the Seller is liable to pay on the supply …”) and that only Belconnen could have a liability for GST, if applicable on settlement, as Belconnen, as Seller, was the entity making the supply.
Settlement of the Lloyd Contract (7 April 2015)
55 On 7 April 2015, settlement of the Lloyd Contract took place.
56 The sale by Belconnen to Mrs Lloyd was an input taxed supply.
57 Significantly, there was no evidence at trial that Mrs Lloyd’s residential unit was worth anything less than the amount she paid at the time of purchase: Reasons, [336].
Other facts and evidence relating to the Lloyd Contract
58 As stated in the Reasons at [316], there was no dispute at trial (nor is there any dispute now) that at all material times prior to the completion of the Lloyd Contract, Belconnen did not disclose to Mrs Lloyd that Belconnen: (a) had obtained the Altitude Private Ruling; and (b) GST was not payable in respect of the sale of the unexpired term of the lease with respect to the relevant residential unit. This was despite the fact that Belconnen intended, at all times following the Altitude Private Ruling, to treat any sales as being input taxed.
59 Belconnen’s selling agent for the residential units was Independent Property Group (IPG). Mr Matthew Wykes of IPG was the selling agent who dealt with Mrs Lloyd. He was not called to give evidence at trial, nor was the person within Belconnen who was responsible for giving instructions to Mr Wykes on behalf of Belconnen in the negotiations with Mrs Lloyd.
60 Mrs Lloyd gave evidence at trial by affidavit. She was not required for cross-examination. Her evidence was, therefore, unchallenged.
61 Mrs Lloyd gave evidence in her affidavit about her communications with Mr Wykes. Mrs Lloyd stated that after Mr Wykes had shown her unit 202 in the Altitude Apartments development (on 13 February 2015), there was a discussion about price and whether “there was any room for negotiation”, with particular reference to stamp duty. The listed price for the unit was $554,900, which was well over Mrs Lloyd’s budget. Mr Wykes then gave her a document that showed the amount of stamp duty on various purchase prices and Mrs Lloyd made a note on the document that the stamp duty on a price of $555,000 would be about $18,550. Mrs Lloyd was still unsure whether to proceed at that point, but Mr Wykes agreed that he would approach Belconnen to see if it would “waive” the stamp duty and she also asked if window coverings could be included as part of the purchase price, as the other three flats Mr Wykes had shown her had included fitted window coverings. Again, Mr Wykes advised that he would approach Belconnen “to find a solution” for her. On 16 February 2015, Mr Wykes called Mrs Lloyd and advised that that the seller (Belconnen) would pay the stamp duty and give her an allowance for her window fittings of $3,000. She then told Mr Wykes that she was interested in buying unit 202. On 19 February 2015, Mrs Lloyd paid a deposit of $1,000 to IPG.
62 Mrs Lloyd gave evidence in her affidavit that she did not know any solicitors or conveyancers in Canberra, so asked Mr Wykes if he could recommend one. He recommended a firm called Colquhoun Murphy, whom Mrs Lloyd engaged. Mrs Lloyd referred in her affidavit to email correspondence with Colquhoun Murphy, including an email from Ms Watt dated 25 February 2015 that attached a copy of the contract of sale, and another email from Ms Watt that included the statement:
The price is inclusive of GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“the GST Act”), and the Buyer and Seller agree that any GST the seller is liable to pay to the Buyer will be calculated under Division 75 of the GST Act (i.e. “the Margin Scheme”).
63 After referring in her affidavit to the exchange of contracts and settlement, Mrs Lloyd gave evidence that: she was unable to recall whether, at the time of her purchase, she believed her purchase was subject to GST; however, she recalled reading the contract and the email from Ms Watt that stated that the price was inclusive of GST, and on that basis believed that she understood at the time that her purchase was subject to GST and the price she paid included GST.
64 Mrs Lloyd gave evidence in her affidavit that: (a) if Belconnen had told her before settlement that the sale was not subject to GST, she would have sought advice from Colquhoun Murphy or a local solicitor and discussed the matter with her family; (b) she would have asked Colquhoun Murphy what effect it had on her rights; (c) if told she might have a right to reduce the amount payable on completion because GST was not payable, she would have asked Colquhoun Murphy to take steps to ensure that Belconnen “did not get a windfall at [her] expense”; and (d) if Belconnen “had refused to make any adjustment”, she would have been prepared to walk away from the contract, including because: there were many other apartments on the market in Canberra at the time and she was in no particular rush; she was stretched beyond her budget as it was; and she dislikes “dishonesty and bad ethics”.
Sale of the residential unit in 2017
65 Mrs Lloyd gave evidence in her affidavit that she sold the residential unit in July 2017, for $490,000, approximately $64,000 less than the price she paid to Belconnen.
The reasons of the primary judge
Section B – general matters
66 The primary judge outlined the two representative proceedings that were before the Court in Sections B.1 and B.2 of the Reasons. In Section B.3, the primary judge discussed the centrality of the contracts of sale to the resolution of all issues before the Court (notwithstanding the abandonment of the breach of contract claim). The primary judge set out three reasons why the contracts were important at [25]-[29]. These included, relevantly for present purposes:
(a) First, although the main thrust of the case advanced in final submissions at trial was one based on application of restitutionary principles, restitution cannot impose a liability that would subvert or undermine an existing allocation of risk established by contract, referring to Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 (Mann v Paterson) at [14]-[18] per Kiefel CJ, Bell and Keane JJ.
(b) Secondly, the assessment as to whether conduct is misleading or deceptive is a question of fact to be determined in the context of the evidence as to the alleged conduct and all relevant surrounding circumstances. The context, which is critical, includes the contractual context.
Section C – the contracts of sale
67 In Section C of the Reasons, the primary judge analysed the contracts of sale relevant to the two proceedings before the Court. The primary judge discussed the general form of the contracts and then considered the specific contracts that were in issue, including the Lloyd Contract.
68 In the course of discussing the general form of the contracts, the primary judge set out cl 24 of the Printed Terms. The primary judge observed at [42] that this provision had subclauses that would operate in different ways depending on the boxes crossed in the part of the Schedule relating to GST and the nature of the supply ascertained upon settlement. The primary judge observed at [43] that, in addition to the reference in the Schedule to the Price being GST inclusive and the part of the Schedule relating to GST, the terms of cl 24 “reflect the bargain relating to the imposition of GST”. The primary judge then discussed how the various aspects of cl 24 operated in the different circumstances contemplated by the standard contract.
69 The primary judge discussed the relationship between the part of the Schedule relating to GST and cl 24 of the Printed Terms at [71]-[85]. The primary judge made an important point (not challenged on appeal) at [72], namely that “the fact that the Price was GST inclusive is not the same as saying that the supply on completion would necessarily be a taxable supply, or that GST would necessarily be payable following the supply”. His Honour continued:
As explained above, the Contracts necessarily contemplated that the characterisation of the supply could change between exchange and settlement. Subject to further qualification by other terms, what “GST inclusive” means in the standard contract for the sale of real property in the ACT is that irrespective of what happens between exchange and settlement or prior to GST becoming payable, the Buyer will have no liability for payment of GST. In this sense, the “risk” of liability for GST lies with the Seller.
70 In a similar vein, the primary judge observed at [75] that the contracts of sale “necessarily accommodated the possibility, irrespective of the crossing or crossings in the GST Schedule [i.e. the part of the Schedule with the boxes relating to GST], that the nature of the supply could change when it later came time, upon completion, to make the supply”.
71 The primary judge discussed the significance of the crossing of the boxes relating to GST in the Schedule to the contracts of sale, and identified some representations that were conveyed by the developers to the purchasers by those crossings. After setting out the parties’ submissions on what was conveyed by the crossing of the boxes, the primary judge stated at [83]-[84]:
83 In my view, none of these positions is entirely correct, although I do consider the alternative argument of the Barton Developers to be closest to the mark. It seems to me plain that having regard to the Contracts as a whole, the crossing of the boxes on the Contracts provided to the solicitors for the Buyer by the solicitors for the Seller, conveyed: (a) a representation that at the time, it was the Seller’s opinion, that upon settlement, the supply would be as identified by the crossing of the GST Schedule and other relevant terms of the Contracts; and (b) impliedly, a representation that the Seller actually holds the opinion and that there was a reasonable basis for it (Completion Representations). I also consider a further representation was made (again a statement of opinion) that on the basis of the information then known to the Barton Developers, it was likely, following settlement, an amount representing GST on the supply would, in due course, be paid to the ATO (Likely Payment Representation).
84 It is accepted as between the parties, however, that whether in fact the Completion Representations and/or the Likely Payment Representation were actually conveyed to an individual purchaser is a question that cannot be answered in the abstract, divorced from consideration of all the communications between the Seller and Buyer which may bear upon the question.
Section D – findings relating to the Altitude proceeding
72 In Section D of the Reasons, the primary judge made findings of fact that related generally to the Altitude proceeding (as distinct from the particular facts of Mrs Lloyd’s case). This section included the primary judge’s findings relating to Mr Ryan and Mr Hindmarsh.
73 At [97], the primary judge noted that there was a controversy as to Mr Ryan’s credit as witness. At [98], the primary judge stated that the controversy primarily related to evidence that at relevant times Mr Ryan was unaware of the basis upon which Belconnen had contracted with Altitude group members and that he was not involved in instructing Clayton Utz about the contracts of sale relating to the Altitude Apartments. More specifically, there was dispute as to whether the Court should accept Mr Ryan’s evidence that, following the Altitude Private Ruling of 12 March 2013, Mr Ryan was unaware that Clayton Utz had continued to treat sales of the unexpired terms of leases with respect to residential units in the Altitude Apartments development as taxable supplies to which the margin scheme applied, rather than treating the sales as input taxed.
74 The primary judge stated at [99] that Mr Ryan’s affidavit evidence and email correspondence with Amanda Noy (which was exhibit A4), taken together, “give rise to real concerns”. After a detailed discussion of the evidence and competing submissions, the primary judge, at [113], rejected the suggestion that Mr Ryan was attempting to mislead the Court about his true recollection, but did not accept that the true position was as set out in his evidence in chief.
75 The primary judge set out some of Mr Ryan’s oral evidence at [114] and then made the following key findings at [115]:
When given orally, this highlighted evidence had a crystal clear ring of truth about it. I am satisfied that Mr Ryan did not, at any time during this process, give any real or considered thought to how the Altitude Contracts were drafted. If he was asked about the how the Altitude Contracts dealt with GST, at any time prior to the date of the emails which became exhibit A4, I am confident that Mr Ryan would have responded that he believed that the Altitude Contracts would have provided for the Price to be GST inclusive and that they would have treated the sales as taxable supplies to which the margin scheme would apply. In this respect, his professed ignorance of these matters in chief overstates the position; but this is not the same thing as saying that he did, in fact, turn his mind to the drafting until it was specifically raised by Clayton Utz. It is more likely that like most property developers, Mr Ryan was focussed primarily on the progress of the development and achieving sales and leaving the prosaic contractual details to others, unless the issue called for his specific involvement. If it had crossed his mind earlier, I think it likely the instructions given by exhibit A4 would have been given at an earlier time by Mr Ryan. Doing my best to assess the inherent probabilities and the oral evidence of Mr Ryan, it is more probable than not that a failure by him to provide instructions earlier is not, as Mrs Lloyd asserted in submissions, attributable to a malign intention to dissemble the true position, but rather his focus on other matters.
(Emphasis added.)
76 The primary judge discussed Mr Ryan’s evidence regarding the setting of the sale prices for, and the negotiation of, contracts of sale relating to the Altitude Apartments development at [116]-[122] of the Reasons. The primary judge stated at [123] that parts of the evidence given by Mr Ryan during cross-examination were unpersuasive. At [124], the primary judge rejected Mr Ryan’s evidence to the effect that Belconnen would not under any circumstances have agreed to reduce the sale price of Mrs Lloyd’s residential unit by any amount because GST was not payable. The primary judge set out his reasons for this at [125]-[130]. The primary judge found at [131]:
Particularly towards the end of a long project, I am satisfied on the evidence (including but not depending on the absence of evidence from those directly involved in pricing the 50 or so units at the end of the development) that the commercial position was such that it is more likely than not that Altitude was a willing vendor and hence potentially open to renegotiation as the price for securing or keeping a sale.
77 In relation to Mr Hindmarsh (who was not called to give evidence), the primary judge found at [139] that there was no sound basis upon which to conclude that Mr Hindmarsh had anything to do with the review and approval of the contracts of sale relating to the Altitude Apartments development.
Section F – Mr and Mrs El-Zein’s case
78 Section F of the Reasons contains the primary judge’s consideration of Mr and Mrs El-Zein’s case, which was part of the Governor Place proceeding. Although not directly relevant, it is necessary to refer to some parts of the primary judge’s reasons in this section to provide context for his consideration of Mrs Lloyd’s case.
79 In the context of the El-Zein’s case, the primary judge set out at [178]-[180] relevant legal principles concerning misleading or deceptive conduct, referring to Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 at [37] per Gleeson CJ, Hayne and Heydon JJ, [109] per McHugh J; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [26] per French CJ, [102] per Gummow, Hayne, Heydon and Kiefel JJ; and Chowder Bay Pty Ltd v Paganin [2018] FCAFC 25 at [30]-[31].
80 The primary judge also referred, at [185], to applicable principles as to when non-disclosure of information may amount to misleading or deceptive conduct, referring to Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 at [20] per French CJ and Kiefel J; and Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32.
81 At [182], the primary judge rejected Mr and Mrs El-Zein’s pleaded “GST Representations case”.
82 The primary judge then considered the El-Zein’s “GST Omissions” case, namely that the Barton Developers failed to disclose to them that: (a) the Barton Developers intended to apply for, had applied for or had obtained the relevant private ruling; and (b) GST was not, or was unlikely to be, payable in respect of the sale of the unexpired term of a lease of a residential unit.
83 The primary judge concluded at [194]-[195] that, in circumstances where the Barton Developers expressed an opinion such as the Likely Payment Representation, a reasonable expectation existed that if it was unlikely that GST on the supply would be remitted to the ATO, this fact would be revealed. The primary judge found that that fact should have been disclosed in the circumstances (describing this as the “Relevant Omission”). The primary judge held that in all the circumstances, the non-disclosure constituted conduct that was likely to mislead or deceive.
84 The primary judge then considered causation and loss in the context of Mr and Mrs El-Zein’s misleading or deceptive conduct case, referring to relevant principles and cases. The primary judge described the way Mr and Mrs El-Zein’s case was put at [200]-[202], noting that it had morphed into a “loss of opportunity to renegotiate” case. At [204], the primary judge accepted the proposition that if contravening conduct caused a person to forgo an opportunity to enter a contract that would have been on different and more favourable terms, the loss, subject to appropriate discounts, will be recoverable under s 82 of the Trade Practices Act 1974 (Cth) or s 236 of the Australian Consumer Law, referred to Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 13 and Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259 at [57]. However, the primary judge held that the “loss of opportunity to renegotiate” case was not established on the evidence: at [205]-[209].
85 The primary judge considered Mr and Mrs El-Zein’s restitution case in Section F.5 of the Reasons. The primary judge discussed the relevant case law, referring to: Mann v Paterson; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 (Roxborough); Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560.
86 It should be noted that the facts of Mr and Mrs El-Zein’s case were different from those of Mrs Lloyd. Among other things, in Mr and Mrs El-Zein’s case, the box alongside the words “Buyer and Seller agree to apply margin scheme” in the GST Schedule was not crossed (see the Reasons at [50]).
87 In the circumstances of Mr and Mrs El-Zein’s case, the primary judge held that there was a relevant contractual gap, in that cl 24.6 of the Printed Terms (see [52] above) applied, but did not contemplate what actually occurred in their case: see the Reasons at [230]-[233]. Further, the primary judge, applying Roxborough, held that there had been a failure of consideration in respect of the GST component of the Price: see the Reasons at [243]-[244], [248], [253]. The primary judge then considered whether an order for restitution would be unjust in the sense discussed in the cases. In circumstances where the Barton Developers had repaid certain input tax credits and thereby changed their position, the primary judge concluded that there would be an injustice to the Barton Developers if they were required to make restitution of the entire amount referable to the GST: Reasons, [286]. His Honour concluded that Mr and Mrs El-Zein were entitled to have the Barton Developers account to them for an amount representing the GST paid by them pursuant to the terms of the contract, but excluding the proportion of that sum that was referable to the repayment of any input tax credit by the Barton Developers to the Commissioner: Reasons, [288].
Section G – Mr and Mrs Eppelstun’s case
88 The primary judge considered Mr and Mrs Eppelstun’s case, which was also part of the Governor Place proceeding, in Section G of the Reasons. In the context of the misleading or deceptive conduct case, the primary judge held at [295] that the Barton Developers conveyed to Mr and Mrs Eppelstun the Completion Representations and the Likely Payment Representation (as described in the Reasons at [83]). The primary judge also held, at [296], that the Barton Developers conveyed what his Honour defined as the “Post-ruling Representation”. As the primary judge found a comparable representation was made to Mrs Lloyd, it is necessary to set out the terms of this representation. The primary judge stated at [296]:
As noted above, it [is] important to bear in mind that what was conveyed to Mr and Mrs Eppelstun and their solicitor occurred after the Governor Place Private Ruling was obtained (and at a time when the proposed supply was clearly never going to be taxable). Having regard to the terms of the draft counterpart Eppelstun Contracts as a whole (see [53]-[55] above) and absent any further relevant communication, what was conveyed to Mr and Mrs Eppelstun and their solicitor by the Barton Developers, albeit unintentionally, was that on the information then available to the Barton Developers, that: (a) it was likely GST was payable in respect of the sale of the relevant Governor Place Unit; and (b) it was likely an amount representing GST on the supply would, in due course, be paid to the ATO. In the balance of these reasons, I will describe what was conveyed as the Post-ruling Representation. This was a continuing representation until completion. For completeness, I note that I also consider it was impliedly represented that the Seller actually held the opinion conveyed and that there was a reasonable basis for it, but it is unnecessary for the case of Mr and Mrs Eppelstun (or, for that matter Mrs Lloyd whose case against Belconnen I will consider below), to consider this implied representation further.
89 The primary judge provided additional reasons for finding that the Post-Ruling Representation was made at [298] of the Reasons. At [299], the primary judge found that the Barton Developers’ conduct in making the representation was misleading and deceptive. In these circumstances, the primary judge considered that framing the conduct in terms of an omission added nothing to the case. The primary judge then considered causation and loss, explaining that the case ultimately presented was that, depending on legal advice, Mr and Mrs Eppelstun would have taken all reasonable steps to obtain a lower purchase price and that they suffered loss and damage by settling on the purchase. The primary judge rejected this case on the evidence: Reasons, [303].
90 The primary judge considered Mr and Mrs Eppelstun’s restitution case in Section G.5. The primary judge considered there to be a significant difference between their case and that of Mr and Mrs El-Zein. In Mr and Mrs El-Zein’s case, the primary judge had held that there was a contractual gap, in circumstances where cl 24.6 applied but did not contemplate what had actually occurred. However, in relation to Mr and Mrs Eppelstun, the primary judge considered that no contractual gap existed, because cl 24.5 of the Printed Terms (see [52] above) covered the situation. The primary judge therefore rejected the restitution claim. The primary judge’s reasoning (which is also relevant to Mrs Lloyd’s case) was as follows:
308 Unlike the El-Zein Contract (where cl 24.6 did apply because the sale is a taxable supply but the margin scheme did not apply), as I have explained above, properly construed, the bargain struck between the Barton Developers and Mr and Mrs Eppelstun was that the supply was to be taxable and that the margin scheme was to apply. When engaged, cl 24.5, it will be recalled, expressly provided that the Barton Developers warranted: first, they could use the margin scheme; and secondly, they promised that they would. Although this warranty may have been given by the Barton Developers unintentionally, it was part of the bargain and it was breached. There is no relevant gap in the Eppelstun Contract.
309 As Kiefel CJ, Bell and Keane JJ explained in Mann v Paterson at 10 [24]:
In Roxborough, consistently with the view later taken in Lumbers, Gummow J explained that restitutionary claims, such as an action to recover moneys paid on the basis of a failure of consideration, “do not let matters lie where they would fall if the carriage of risk between the parties were left entirely within the limits of their contract”. His Honour was at pains to explain that where a plaintiff already has “a remedy in damages ... governed by principles of compensation under which the plaintiff may recover no more than the loss sustained”, allowing the plaintiff to claim “restitution in respect of any breach ... would cut across the compensatory principle” of the law of contract.
310 To allow a claim in the present circumstances would cut across the agreement which identified the nature of the warranty given and allowed a claim in breach of contract to be the consequence of breach. Put another way, the common law imposed an obligation to pay damages for breach of contract, in the event of breach, which was relevantly “substituted” for the primary obligations contained in the cl 24.5. The remedy of Mr and Mrs Eppelstun is not restitutionary, it is a common law action for breach of contract. The fact that compensatory damages may not be available (and only nominal damages arise) cannot be relevant to the question as to whether the contract allocated risk and provided for the consequences of breach.
Section H – Mrs Lloyd’s case
91 The primary judge considered Mrs Lloyd’s misleading or deceptive conduct case in Section H.3 of the Reasons. The primary judge held that Belconnen had made the Post-Ruling Representation (as defined in [296] of the Reasons) to Mrs Lloyd and that its conduct was misleading and deceptive. The primary judge’s core reasoning on this issue was as follows:
314 As noted above, the Lloyd Contract was entered into two years subsequent to the Altitude Private Ruling having been issued and the amended BAS being lodged. From this time the sale by Belconnen of the Altitude Units became input taxed supplies.
315 In the ASOC at [42]–[45] the GST Representation was pleaded (that Belconnen represented to Mrs Lloyd that GST was payable in respect of the sale of the unexpired term of a Unit Lease for a Unit; and GST would be paid to the ATO). The GST Omissions were also pleaded (that Belconnen failed to disclose that: (a) it had obtained the Altitude Private Ruling; (b) GST was not payable in respect of the sale of the unexpired term of a Unit Lease for a Unit; and/or (c) Belconnen “intended to retain an amount equivalent to the component of the Price referable to GST as purely a windfall gain”.
316 It is not in dispute that at all material times prior to the completion of the Lloyd Contract, Belconnen did not disclose to Mrs Lloyd that Belconnen: (a) had obtained the Altitude Private Ruling; and (b) GST was not payable in respect of the sale of the relevant Altitude Unit. This was despite the fact that Belconnen intended, at all times following the Altitude Private Ruling, to treat any sales as being input taxed. Again, despite the pleading, I do not consider that there is any prejudice in dealing with the case with regard to what I have defined above as the Post-ruling Representation.
317 For the same reasons I have explained in relation to Governor Place, when properly analysed, what Belconnen’s statement of opinion conveyed to Mrs Lloyd and her solicitor was that on the information then known to Belconnen, it was likely GST was payable in respect of the sale of the relevant Altitude Unit and it was likely an amount representing GST on the supply would, in due course, be paid to the ATO: that is, what I have described above as the Post-ruling Representation. Again, there was simply no reasonable basis for the statement of opinion at the time it was conveyed as it was plainly evident at that time the supply would be input taxed. As a result, the conduct of Belconnen in making the Post-ruling Representation was misleading and deceptive in contravention of s 18(1) of the ACL. An omission case adds nothing in these circumstances.
92 The primary judge considered Mrs Lloyd’s knowing involvement case against Mr Hindmarsh and Mr Ryan at [318]-[324]. The primary judge referred at [320] to Yorke v Lucas (1985) 158 CLR 661 (Yorke v Lucas) at 667, 670 and 677; Rinbridge Marketing Pty Ltd v Walsh [2000] FCA 1738 (Rinbridge) at [26]; and Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 at [114]. His Honour rejected the knowing involvement case for the following reasons:
322 In relation to Mr Ryan, I have found (see [115] above) that it was more probable than not that a failure of him to provide instructions was a consequence of the fact that he simply did not turn his mind at the relevant time to the Altitude Contracts, including the Lloyd Contract, and his focus was on other matters. Further, I do not find that he had knowledge of the pleaded fact, dealt with elsewhere, that Belconnen’s retention of the amount paid by Mrs Lloyd for GST was “purely a windfall gain”. Indeed, for the reasons that I have already explained in relation to the case of Mr and Mrs El-Zein, I do not consider the full amount paid by Mrs Lloyd constituted a windfall gain. Moreover, there is insufficient evidence to prove Mr Ryan knew of the content of all the dealings between the agent and Mrs Lloyd and what in truth passed between them. Again, one of the difficulties with the way the case is pleaded is that it is pitched at such a high level of generality by reference to group members; but a case of knowing involvement in contravening conduct directed to an individual requires knowledge of what was conveyed (and not conveyed) to the individual, which amounted to the conduct which was in contravention of the statutory norm. This is not a prospectus case or a case involving representations to a market; all parties accepted that this is a case which involves consideration of the individualised dealings between a vendor and purchaser, represented by solicitors, in a conveyance. It follows, for a number of reasons, the knowing involvement case against Mr Ryan must fail.
323 In the case of Mr Hindmarsh, although I accept knowledge may more easily be inferred against a respondent who fails to give evidence, the “proven facts” must, however, be “capable of raising the inference”: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800; (2001) 115 FCR 442 at 556 [509], 557 [515], 558 [522], 559 [529] per Hill J; Bowler v Hilda Pty Ltd [2000] FCA 899 at [79] per Finn J. I have found in relation to Mr Hindmarsh that Mrs Lloyd has failed to prove that Mr Hindmarsh had anything to do with the review and approval of the Altitude Contracts (see [139] above) or, for that matter, knowledge of the content of the dealings with purchasers including Mrs Lloyd or that Belconnen’s retention of an amount equivalent to the component of the Price referable to GST was purely a windfall gain. It follows that no knowing involvement case can be made out against Mr Hindmarsh.
(Emphasis added.)
93 The primary judge considered causation and loss (in respect of the misleading or deceptive conduct case against Belconnen) at [325]-[371]. The primary judge set out the relevant part of Mrs Lloyd’s pleading and indicated that the way the damages case was put had changed (or at least reduced in scope significantly) during the course of the hearing: Reasons, [331]. Initially, it had seemed that there was a case based upon Mrs Lloyd’s capital loss of $64,000 (Direct Loss Case). This had been supplemented by a case that, given her evidence that she would have sought to negotiate a discount, her loss amounted to the component of the Price referable to GST (Loss of Opportunity to Negotiate Case). The primary judge rejected the Direct Loss Case on the evidence (at [336]). There is no challenge to that conclusion and it can be put to one side.
94 The primary judge next considered the Loss of Opportunity to Negotiate Case. The primary judge rejected Belconnen’s submission that it would not have been prepared to compromise on the Price of the residential unit, and found that Belconnen would likely have been willing to discount the price: at [340]. The primary judge discussed the applicable principles concerning a case based on loss of a commercial opportunity, referring to cases including Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Badenach v Calvert (2016) 257 CLR 440; and Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88.
95 The primary judge considered whether the Loss of Opportunity to Negotiate Case was within the pleading, holding that it was: at [351]-[353]. Significantly, the primary judge rejected the loss of opportunity case based on the period prior to the exchange of contracts, stating at [354]:
354 Before leaving the pleading and submissions, it is important to be specific about the opportunity the subject of the claim and when it arose. Although the submissions of Mrs Lloyd did not abandon a case premised on a counterfactual whereby the true position was revealed prior to exchange, I am satisfied that any such case is unavailable. Mrs Lloyd settled upon her intention to purchase her flat without any reference whatsoever to GST. She entered into negotiations with Belconnen through Mr Wykes, was satisfied with the result, and decided to proceed and pay an initial deposit following the call with Mr Wykes on 16 February 2015. If the draft Lloyd Contract subsequently provided to her had revealed the true position and its provision had not amounted to conduct conveying the Post-ruling Representation, I am not satisfied that it would have made any difference to her decision to exchange and then later settle and pay the Price for which she had bargained (indeed I would go further and say I am affirmatively satisfied it would have made no difference).
(Emphasis added.)
96 The primary judge held at [355] that the Post-Ruling Representation was a continuing representation, in the sense that it continued to be made by Belconnen to Mrs Lloyd in the period between the date of the contract and the date of settlement. The primary judge then examined the loss of opportunity case with respect to that period by addressing the following questions:
(a) Was there an opportunity of some value?
(b) Would Mrs Lloyd have pursued the opportunity?
(c) What amount should be awarded having regard to the prospects?
97 In relation to (a) above, the primary judge found that during the relevant period (that is, between exchange of contracts on 10 March 2015 and settlement on 7 April 2015) it was more likely than not that Belconnen was “a willing vendor and hence potentially open to renegotiation as to the price for securing or keeping a sale”: at [356]. The primary judge found that the opportunity to negotiate with Belconnen had a “non-negligible value, in that it was real and more than speculative”.
98 In relation to (b) above, namely whether Mrs Lloyd would have pursued the opportunity, the primary judge held that she would have, reasoning at [357]-[358]:
357 Additionally, I am comfortably satisfied that if Mrs Lloyd had been apprised of the true position during the relevant period that the Lloyd Contract incorrectly indicated that the supply was taxable (and hence the Post-ruling Representation was wrong), this would have been of real significance to her. Mrs Lloyd was evidently no shrinking violet. She not only was someone who was not coy about negotiating, but gave unchallenged evidence she was prepared to walk away if Belconnen “had refused to make any adjustment” to the amount payable. Importantly, she was a person who obviously had a relatively acute sensitivity about business ethics giving the following (again unchallenged) evidence in her affidavit at [68]:
(c) I dislike dishonesty and bad ethics, and I would have seen [Belconnen’s] attempt to keep the GST component for itself as bad practice. I have had bad experiences with real estate agents before, in Lismore, and the justice of these situations is important to me; and
(d) I have been a Justice of the Peace in both the ACT and New South Wales, and I believe that businesses should treat their customers honestly and fairly and should ensure their contracts are correct, accurate and compliant with relevant laws. I pride myself in being ethical as a person and as a Rotarian, so expect others to act the same.
358 In the relevant counterfactual Mrs Lloyd would have had concerns about what she subjectively would have perceived as bad practice and would have tried to reopen negotiations. But even if she was somehow assuaged as to her concerns that Belconnen had attempted to do something wrong (for example, by reason of Belconnen voluntarily correcting the Post-ruling Representation and revealing the true position prior to settlement), I do not think there is any real doubt she would have attempted to use this information revealed belatedly to her advantage and tried, to use Mr Ryan’s words, to “drive the price down from [Belconnen]” (T175.22 2.5.19). In this way, causation is established because the contravening conduct deprived Mrs Lloyd of the opportunity to negotiate a better bargain: see Bullabidgee Pty Ltd v McCleary at [57] per Allsop P (Basten and Young JJA agreeing).
99 In relation to (c) above, namely the amount that should be awarded to Mrs Lloyd having regard to the prospects of a beneficial outcome, the primary judge observed that this aspect of the analysis was “more complicated” (at [359]). The primary judge’s reasoning was at [359]-[368]. This included the following passage at [362]:
Belconnen’s submission (SBR [485]) was simply that the evidence is insufficient to support the proposition that it would have compromised on price to the extent of any “windfall gain” of GST; it also went so far as to submit (SBR [486]) that the fact Belconnen compromised on other concessions (such as stamp duty rebates and other inclusions) “is simply irrelevant”. Although, for reasons I will explain, there is some substance in the first of these submissions, the second has no merit at all. It is wrong because there clearly was a recognition that to secure sales, at least towards the end of the project, Belconnen was prepared to move away from the listed prices and negotiate. Although the evidence as to how these negotiations on an individual basis were conducted, and how far Belconnen was prepared to go is opaque (because of the forensic decision of Belconnen not to call anyone directly involved in the negotiations, or in the ongoing meetings discussing pricing with the selling agent), the picture of a willing vendor is clear. And it is picture which stands in contrast to that which emerges in relation to Stage 1 of the Governor Place development. This willingness to treat prior to exchange with individual purchasers, (including, importantly, Mrs Lloyd), together with the “soft” market for the remaining flats, provides important context in assessing the degrees of probability or possibility of Mrs Lloyd securing a commercial advantage if she became armed with information that allowed her to “drive the price down from [Belconnen]” between exchange and completion.
It is convenient to note that the above reasoning is criticised by Belconnen on the basis that the evidence about discounts related to the situation before exchange of a contract, but the primary judge was here considering the position after a contract had been entered into.
100 The primary judge stated at [364] that the maximum value that could be achieved in the negotiation was $46,759 “being the agreed amount equivalent to the component of the Price referable to GST pursuant to the terms of the Lloyd Contract”. It appears that the reference to this being an “agreed amount” was to it being agreed between the parties at trial (as reflected in Annexure A to the Reasons). The primary judge reasoned:
365 When one comes to the probability of realising the opportunity, I have to do the best that I can, notwithstanding the lack of clarity as to the circumstances in which the negotiation would have taken place. The context in which the negotiations took place would have been of some importance. For example, even in the absence of evidence from Mrs Lloyd’s conveyancing or family solicitor, it is possible to conclude that any competent legal advice given to Mrs Lloyd during the relevant period is that the incorrect information given to her pre-exchange, more likely than not, gave her a basis to at the very least threaten Belconnen with the prospect Mrs Lloyd would seek statutory relief to relieve her of her obligations under the Lloyd Contract and seek recovery of an amount representing that paid over by way of deposit. For reputational reasons, as well as for more specific reasons relating to a potential loss of the individual sale, I do not consider that this is a prospect that Belconnen would have faced with equanimity. This would have dealt Mrs Lloyd a very powerful hand in doing a deal. But another scenario is possible, that is, the negotiations took place following an unsolicited approach from the agent Mr Wykes explaining that an innocent mistake had been made and that Belconnen were willing, in all the circumstances, as a gesture of goodwill, to “throw in” better quality appliances and other miscellaneous benefits. Although, in either of the scenarios I have outlined, I am confident that: (a) Mrs Lloyd would have approached any negotiation with some competence and without being shy seeking out the best deal she could; and (b) Belconnen would have been keen to do what it could do to not jeopardise the completion of the sale to Mrs Lloyd, these are very different, yet equally plausible scenarios.
366 Further, much might depend upon Mrs Lloyd’s subjective reaction to the circumstances in which the information was revealed. Her Rotarian mission of maintaining high ethical standards in her professional and personal life was evidently of importance to Mrs Lloyd. Although implicit in her unchallenged evidence is that upon understanding the true position she would have allowed Belconnen the opportunity “to make any adjustment” to the amount payable before considering walking away (hence leading me to conclude she would have pursued the opportunity), the vigour with which she would have pursued the negotiations may have been rationally affected by her sense of how far she thought Belconnen had strayed from playing with a straight bat in its dealings with her.
367 The uncertainties of context, unavoidable in a case of loss of opportunity to negotiate such as the present, demonstrate the difficulties with the task of informed estimation. But the inherent difficulties and the impossibility of precision do not mean the task cannot be assayed.
368 Having regard to the circumstances proved in the evidence, and recognising that giving a percentage figure gives a patina of precision to a task which is no more than informed estimation, the degrees of probabilities or possibilities are such that if the true position had been revealed post-exchange and prior to completion, then I expect that Mrs Lloyd and Belconnen would have done a deal to secure settlement of the Lloyd Contract and that this would have involved Mrs Lloyd securing a benefit. But given the inherent uncertainties, I consider that having identified the maximum value of the opportunity at $46,759, it should be discounted and the sum awarded should reflect a 50% probability of realising the opportunity.
101 Accordingly, the primary judge concluded (at [369]) that Mrs Lloyd was entitled to an award of statutory compensation in an amount calculated as explained above, together with interest from the date of settlement, namely 7 April 2015. In other words, Mrs Lloyd was entitled to compensation of approximately $23,000 plus interest.
102 Insofar as Mrs Lloyd submitted that she had lost an opportunity to “walk away”, the primary judge rejected this part of her case at [370].
103 The primary judge considered Mrs Lloyd’s restitution case at [373], essentially adopting his Honour’s reasoning in relation to Mr and Mrs Eppelstun. The primary judge stated at [373]:
Again the starting point remains consideration of the Altitude Contract. Again, the Lloyd Contract exchanged on 10 March 2015 and settled on 7 April 2015 provided that the supply was taxable and the margin scheme was to apply but on completion the nature of the supply was input taxed. It necessarily follows that cl 24.5 applied. That is, there was an express agreement that Belconnen warranted that it could use the margin scheme and promised that it would. This contractual promise does not admit of any ambiguity. If the margin scheme was not able to be applied, for whatever reason, there was a clear breach of contract by Belconnen. The breach of warranty was one which would sound in common law damages and I do not consider, for reasons I have already explained in relation to Mr and Mrs Eppelstun that any restitutionary claim is able to be maintained in these circumstances. Mrs Lloyd has not sought nominal damages for breach of contract and her entitlement to compensatory relief lies elsewhere, as I have explained.
Section I – common issues and s 33ZB
104 The primary judge dealt with common issues and s 33ZB of the Federal Court of Australia Act in Section I of the Reasons. For reasons explained in that section, the primary judge decided to defer the making of s 33ZB orders until the parties had had the opportunity to consider the Reasons.
The May 2020 Reasons
105 The parties were given the opportunity to make submissions on the form of orders. A further hearing took place on 14 May 2020, following which the primary judge made orders and delivered ex tempore reasons: Lloyd v Belconnen Lakeview Pty Ltd (No 2) [2020] FCA 698 (the May 2020 Reasons). Those reasons related only to the Altitude proceeding.
106 The orders made on 14 May 2020 in the Altitude proceeding were relevantly as follows:
1. Judgment be entered for [Mrs Lloyd] in the amount of $29,914.50 (comprising $23,379.50 plus interest up to the date of judgment in the amount of $6535).
2. Pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) (Act), the Court makes the findings and determines the questions identified in the Schedule to this order, and those findings and the answers to those questions bind the parties and all group members who have not opted out of the proceeding.
3. The representative proceeding against [Mr Hindmarsh] and [Mr Ryan] be dismissed.
4. [Belconnen] pay one half of Mrs Lloyd’s costs of the proceeding (other than the costs payable pursuant to order 5).
5. The interlocutory application of [Belconnen] filed on 6 April 2020 be dismissed with costs.
6. The costs payable pursuant to orders 4 and 5 be the subject of a lump-sum cost assessment to be conducted by a Registrar with such an assessment to be conducted in a manner which best facilitates the overarching purpose (see s 37M of the Act).
107 The schedule to the 14 May 2020 orders relevantly included:
15. Prior to the completion of the Altitude Contracts, Belconnen Lakeview did not disclose to the applicant or the group members that:
(a) It intended to apply for, had applied for or had obtained the Private Ruling; and/or
(b) GST was not payable in respect of the sale of the unexpired term of a Unit Lease for a Unit. [AF27]
…
19. The terms of the Altitude contracts which Belconnen offered to enter into and did enter into with the group members (in the absence of further information that GST was not payable in respect of the sale of the unexpired term of the Unit Lease for a Unit (see 15(b) above)), conveyed the following representations that continued until the completion of each contract:
(a) On the information available to Belconnen it was likely that GST was payable in respect of the supply of the Unit the subject of the Contract and it was likely that an amount representing GST on the supply would in due course be paid to the Commissioner of Taxation; and
(b) Belconnen held the opinion to the effect of sub-paragraph (a) above and there was a reasonable basis for such opinion.
(See Judgment [296], [316], [317]) [AS8] [AS9])
20. Irrespective of the position at any earlier time, was there a reasonable basis for making the representations referred to in paragraph 19 above on and from the date of the Private Ruling, namely, 12 March 2013? No. [AS10]
108 In the May 2020 Reasons, the primary judge referred at [1] to the requirement pursuant to s 33ZB of the Federal Court of Australia Act for the Court to make orders as to questions of fact and law reflecting the reasons for judgment that would bind the parties and group members who had not opted out of the proceeding. The primary judge stated that his reasons for making the s 33ZB orders (set out in the Schedule to the orders) were evident from the transcript. His Honour also stated at [1]:
In short, the terms of the orders made have been informed by a desire to maximise the utility of the s 33ZB procedure, while being conscious of: (a) the impossibility of determining individual group member cases which involve consideration of all the circumstances of the case; and (b) the limits in making orders of this type which have the effect of declarations: see Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 (Gummow and Hayne JJ at 590–1 [128]) and Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317 (Hayne and Callinan JJ at 363 [143]).
109 In [2] of the May 2020 Reasons, the primary judge referred to an interlocutory application that had been filed on 6 April 2020 (i.e. after the primary judge had delivered his principal judgment) seeking leave to, among other things, “re-open” the proceeding in respect of Mrs Lloyd’s claim for damages for loss of a commercial opportunity, and an order declassing the proceeding pursuant to s 33N of the Federal Court of Australia Act. The primary judge noted at [3] that in its outline of submissions in reply filed on 13 May 2020, Belconnen indicated that it did not press its application to “re-open”. Belconnen did, however, maintain the application to declass the proceeding pursuant to s 33N. The primary judge discussed the application to declass the proceeding at [10]-[12]. The primary judge considered that it was premature to deal with the application in circumstances where, as indicated in Belconnen’s submissions, there was the possibility of an appeal. His Honour therefore adopted the course of deferring any consideration of declassing the proceeding.
110 The primary judge dealt with costs issues at [13]-[20], concluding that it was appropriate in the circumstances for Mrs Lloyd to recover 50 per cent of her costs of the proceeding.
Consideration of the issues
111 We now turn to consider the issues raised by Belconnen’s appeal, Mrs Lloyd’s cross-appeal and Mr Hindmarsh and Mr Ryan’s cross-cross-appeal. We will consider the issues in the order outlined in [10] above.
The First Issue – Mrs Lloyd’s misleading or deceptive conduct case
Overview
112 This issue may be summarised as: whether the primary judge erred in finding that Belconnen had engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law, that the conduct was causative of loss, and in the assessment of any loss or damage. It is raised by grounds 1 to 6 of Belconnen’s notice of appeal and grounds 1 and 2 of Mrs Lloyd’s notice of contention. It is convenient to deal with Belconnen’s interlocutory application to receive further evidence on appeal in the course of considering this issue.
113 Ground 1(a) of Belconnen’s notice of appeal is not pressed. The balance of grounds 1-6, which are lengthy, may be summarised as follows:
(a) By ground 1, Belconnen contends that the primary judge erred in holding that the terms of the Altitude Contracts conveyed the Post-Ruling Representation (as found by the primary judge at, in particular, [296] and [316]-[317]).
(b) By ground 2, Belconnen contends that the primary judge erred in holding that the Post-Ruling Representation was a continuing representation (as found at, in particular, [296], [316]-[317], [355]).
(c) By ground 3, Belconnen contends that (by reasons of grounds 1 and 2) the primary judge erred in holding that Belconnen engaged in conduct that was misleading or deceptive, or likely to mislead or deceive.
(d) By ground 4, Belconnen contends that the primary judge erred in holding that any misleading or deceptive conduct on the part of Belconnen caused loss or damage to the Mrs Lloyd (as held at [337]-[358]).
(e) By ground 5, Belconnen contends that the primary judge erred in holding that the Mrs Lloyd had a 50% probability of achieving a reduction in the purchase price of the amount referable to GST (as held at [365]-[368]).
(f) By ground 6, Belconnen contends that the primary judge erred in assessing Mrs Lloyd’s damages by reference to the amount of the purchase price referable to GST ($46,759) (at [363]-[368]).
114 The two grounds in Mrs Lloyd’s notice of contention can be summarised as follows:
(a) By ground 1, Mrs Lloyd contends that the primary judge’s finding that Belconnen engaged in misleading or deceptive conduct (at [317]) should be affirmed on the further ground that Belconnen failed to disclose to Mrs Lloyd that it was unlikely that GST on the sale of the Unit would be remitted to the ATO. In other words, Mrs Lloyd seeks to uphold the primary judge’s conclusion on the basis of an omission (as distinct from a representation).
(b) By ground 2, Mrs Lloyd contends that, if it is established that the primary judge erred in deciding the case on the basis of the Post-Ruling Representation, the primary judge’s finding that Belconnen engaged in misleading or deceptive conduct (at [317]) should be affirmed on the further ground that the GST Representations pleaded at paragraph 42 of the statement of claim were made to Mrs Lloyd and were misleading or deceptive, or likely to mislead or deceive. In other words, Mrs Lloyd seeks to rely on the pleaded representations as distinct from the Post-Ruling Representation.
Causation and loss
115 It is convenient to start with a consideration of the primary judge’s conclusions relating to causation and loss, proceeding on the assumption that, in proffering the draft contract to Mrs Lloyd (through her solicitors), Belconnen made the Post-Ruling Representation, that is, Belconnen represented that: (a) it was likely GST was payable in respect of the sale of the relevant residential unit; and (b) it was likely an amount representing GST on the supply would, in due course, be paid to the ATO. We will also proceed on the assumption that the representation was a continuing representation, in the sense that it continued to be made in the period between the date of the contract and the date of settlement.
116 As set out above, the primary judge found that Mrs Lloyd lost an opportunity to renegotiate the contract in the period between the date of the contract and the date of settlement and that this opportunity was of non-negligible value. The primary judge found that, had Mrs Lloyd been apprised of the true position (namely that the supply would not be subject to GST) during this period, she would have sought advice and then taken steps to reopen negotiations. The primary judge valued the lost opportunity at approximately $23,000, being 50% of the component of the purchase price referable to GST (had the supply been subject to GST) as set out in Annexure A to the Reasons.
117 There are, with respect to the primary judge, a number of difficulties with the findings as to causation and loss.
118 First, these findings sit uncomfortably with the primary judge’s finding that, had Mrs Lloyd been apprised of the true position before signing the contract, it would have made no difference to her. As set out above, the primary judge found at [354] that he was satisfied that any loss of opportunity case based on the true position being revealed prior to exchange was “unavailable”. This was because, his Honour found, Mrs Lloyd settled upon her intention to purchase her flat “without any reference whatsoever to GST”. Further, the primary judge stated that, if the draft contract subsequently provided to her had revealed the true position and its provision had not amounted to conduct conveying the Post-Ruling Representation, he was “not satisfied that it would have made any difference to her decision to exchange and then later settle and pay the Price for which she had bargained”. Indeed, the primary judge went further and said that he was “affirmatively satisfied it would have made no difference”. These findings are not challenged by Mrs Lloyd. Moreover, these findings are logical and unsurprising in circumstances where Mrs Lloyd, as a private purchaser of a residential unit, could not claim an input tax credit for any GST payable on the supply. Therefore, assuming whether or not the supply was subject to GST had no bearing on the Price, it made no financial difference to Mrs Lloyd whether or not the supply was subject to GST.
119 It is difficult to reconcile those findings with the primary judge’s findings on the Loss of Opportunity to Negotiate Case. If it would have made no difference to Mrs Lloyd if the draft contract had revealed the true position (i.e. that the supply would be an input taxed supply), why would it have made a difference to her if the true position had been revealed in the period between the date of the contract and the date of settlement? The primary judge addressed that question in [357]-[358], which we discuss below.
120 The primary judge, at [357], made a number of observations about Mrs Lloyd’s character, such as that she “was evidently no shrinking violet” and that she “was a person who obviously had a relatively acute sensitivity about business ethics”. It needs to be noted that, in circumstances where Mrs Lloyd was not required for cross-examination, these statements represent inferences as to her character or personality drawn from her affidavit. In this respect, we do not consider that the primary judge enjoyed any significant advantage over the appeal court: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (Branir v Owston) at [24]-[30], in particular [28]-[29], per Allsop J (as his Honour then was) (Drummond and Mansfield JJ agreeing); Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67 at [33]-[34] per Cowdroy, Middleton and Jagot JJ.
121 The primary judge relied, at [357]-[358], on paragraph 68(c) and (d) of Mrs Lloyd’s affidavit, where she referred to disliking dishonesty and bad ethics. This seems to have been a significant element in his Honour’s view that Mrs Lloyd would have sought advice and then taken steps to reopen negotiations. However, his Honour did not consider (at least at this point in his analysis) what Mrs Lloyd’s reaction would have been if she had been informed that the error in the contract was the result of an honest oversight. (The primary judge did refer, at [365], to a scenario in which Mrs Lloyd was informed that there had been an innocent mistake, and did accept, at [366], that the “vigour with which she would have pursued the negotiations may have been rationally affected by her sense of how far she thought Belconnen had strayed from playing with a straight bat”.) In circumstances where no dishonesty or want of ethics was established against Belconnen (see, eg, the primary judge’s findings regarding Mr Ryan and Mr Hindmarsh at [115] and [139] respectively), this was a relevant matter to be considered. In other words, had Mrs Lloyd been apprised of the true position as regards GST (namely that the supply would be an input taxed supply rather than being a taxable supply) and also informed that the error was the result of an honest oversight, she may have decided not to take the matter any further.
122 Secondly, Mrs Lloyd did not lead any evidence from her conveyancing or other solicitors as to the advice they would have given if the true GST position had been revealed in the period between the date of the contract and the date of settlement, and Mrs Lloyd had sought advice from them. Mrs Lloyd stated in paragraph 65 of that affidavit that, if someone from the seller had told her, before her purchase settled, that the sale was not subject to GST, she would have asked Colquhoun Murphy what effect this had on her rights. Further, Mrs Lloyd stated in paragraph 66 of her affidavit that, if she was unsure what her rights were after speaking to Colquhoun Murphy, she would have sought advice from a legal practice in Lismore, and would have discussed the situation with family members who were more experienced in such matters. Mrs Lloyd’s evidence that she would have taken steps to renegotiate was premised on receiving advice that she “might have a right to reduce the amount payable on completion because GST was not payable” (paragraph 67 of her affidavit). However, Mrs Lloyd did not adduce any evidence from Colquhoun Murphy or other local solicitors as to the advice they would have given. This represents a substantial gap in the evidence as to whether or not Mrs Lloyd would have taken steps to renegotiate the purchase price. It was not referred to by the primary judge at [357]-[358], being the paragraphs in which his Honour considered whether or not Mrs Lloyd would have pursued the opportunity.
123 In the context of the next sub-issue, namely what amount should be awarded to Mrs Lloyd having regard to the prospects of success if the opportunity had been pursued, the primary judge reasoned at [365] that “even in the absence of evidence from Mrs Lloyd’s conveyancing or family solicitor, it is possible to conclude that any competent legal advice given to Mrs Lloyd during the relevant period is that the incorrect information given to her pre-exchange, more likely than not, gave her a basis to at the very least threaten Belconnen with the prospect Mrs Lloyd would seek statutory relief to relieve her of her obligations under the Lloyd Contract and seek recovery of an amount representing that paid over by way of deposit”. Assuming that it was open to make a finding or reach a conclusion as to the likely advice in the absence of evidence, it is nevertheless necessary to assume that the solicitor giving the advice would have been briefed with all relevant facts. Those facts would have included the fact that Mrs Lloyd settled upon her intention to purchase her unit “without any reference whatsoever to GST” (Reasons, [354]) and the fact that, if the draft contract subsequently provided to her had revealed the true position (i.e. that the supply would be an input taxed supply rather than a taxable supply) “it would have made no difference” (Reasons, [354]). In expressing his conclusion as to the legal advice that Mrs Lloyd would have received, the primary judge did not refer to these facts or explain how his conclusion as to the likely advice sits with these facts. In light of these facts, it is open to question whether any competent legal advice would have been that Mrs Lloyd had a basis to threaten to seek statutory relief. The legal advice may well have been that, even if Belconnen had engaged in misleading or deceptive conduct, this did not give rise to a claim, in circumstances where Mrs Lloyd had entered into the contract without any reference to GST, and whether or not the supply would be subject to GST would make no financial difference to her as she would not be able to claim input tax credits in any event.
124 Further, for the same reasons, we consider there to be difficulty with the primary judge’s conclusion in [365] that Mrs Lloyd had “a very powerful hand” in doing a deal with Belconnen. The facts found in [354] were relevant to the strength of Mrs Lloyd’s hand; they tend to suggest, if she had any basis at all to threaten to seek statutory relief, it was a weak basis.
125 For these reasons, we consider that the primary judge erred in concluding that Mrs Lloyd lost an opportunity of non-negligible value. The primary judge should have concluded that Mrs Lloyd had not established that she lost an opportunity to renegotiate of non-negligible value. It was not established that, had Mrs Lloyd been apprised of the true position (namely that the supply would be an input taxed supply rather than a taxable supply) in the period between the date of the contract and the date of settlement, she would have taken steps to renegotiate the purchase price.
126 In reaching these conclusions, we are mindful of the principles applicable to appellate review of findings of fact discussed in cases such as Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ and the cases there cited; see also Warren v Coombes (1979) 142 CLR 531; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 at [2]-[10], [45]-[54] and [169]. For the reasons given above, we consider that error is established in relation to the primary judge’s conclusion or finding that Mrs Lloyd lost an opportunity of non-negligible value.
127 We therefore uphold ground 4 of Belconnen’s notice of appeal.
128 In light of the above conclusion, it is unnecessary to deal with grounds 5 and 6 of Belconnen’s notice of appeal. However, we make the following observations for completeness.
129 Belconnen contends that the primary judge erred in holding that Mrs Lloyd had pleaded and/or properly particularised a loss of an identified commercial opportunity (at [351]-[352]). We are not satisfied that his Honour erred in concluding that the Loss of Opportunity to Negotiate Case was within the pleaded case, or at least the case as opened and run, for the reasons given by the primary judge at [351]-[353]. In particular, we note that the loss of opportunity case was the subject of evidence, namely that contained in Mrs Lloyd’s affidavit.
130 Belconnen contends that the primary judge erred in making findings and drawing inferences that Belconnen would have been willing to offer a discount to Mrs Lloyd post-exchange of the contract on account of GST not being payable (at [127]-[131], [340] and [356]). We accept that the primary judge’s findings at [127]-[131] regarding Belconnen’s preparedness to discount the price of a residential unit related to the period before a contract was entered into, as distinct from the period between contract and settlement, which was the period that his Honour was concerned with at [356] of the Reasons, in the context of the Loss of Opportunity to Negotiate Case. However, we are not satisfied that the primary judge erred by relying on the evidence and findings regarding Belconnen’s approach to discounting in the pre-contractual period in making findings as to its preparedness to negotiate in the period between contract and settlement. While we accept that there is a difference between negotiating on price before a contract has been entered into compared with after a contract is already in place, we nevertheless consider that it was open to the primary judge to infer from one period of time to the other.
131 Belconnen contends that the primary judge erred in holding that Mrs Lloyd had a 50% probability of achieving a reduction in the purchase price of the amount referable to GST (at [365]-[368]). In light of our conclusion, above, that no opportunity was lost, it is unnecessary to consider this issue. However, we do not consider that any error is established in the primary judge’s approach of identifying a percentage and in determining this to be 50%.
132 Belconnen contends that the primary judge erred in assessing Mrs Lloyd’s damages by reference to the amount of the purchase price referable to GST, namely $46,759 (at [363]-[368]). Belconnen contends that Mrs Lloyd’s claim was premised on a reduction of price based on the extent of Belconnen’s “windfall gain” of the GST. Belconnen contends that the primary judge failed to take into account that:
(a) there was no “windfall gain” but only an agreed allocation of risk in relation to GST;
(b) in any event, in order for the supply in respect of all residential units sold as part of the development to be input taxed supplies, Belconnen had to repay or forgo input tax credits and incurred expenses – these should have been, but were not, taken into account by the primary judge in determining the maximum value of the opportunity; and
(c) the starting point for the analysis should therefore not have been the figure of $46,759 but that figure reduced by the input tax credits repaid or forgone and the expenses incurred (which Belconnen calculates to be $10,537, as set out in the Revised Annexure A to Belconnen’s submissions on the cross-appeal and in reply).
133 Again, it is unnecessary for us to consider this issue in light of our conclusion that no opportunity was lost. However, we observe that there is some force in Belconnen’s contentions on this point. It should be noted that, in circumstances where the relevant supply from Belconnen to Mrs Lloyd was an input taxed supply, the amount of $46,759, which is set out in Annexure A to the Reasons, is a hypothetical amount representing the GST that would have been payable on the supply had it been a taxable supply (and subject to the margin scheme). For the purposes of valuing the opportunity lost by Mrs Lloyd (had it been established that she lost one), there is force in the proposition that the starting point for the exercise was the net benefit to Belconnen of the supply being an input taxed supply rather than a taxable supply (subject to the margin scheme). In other words, we can see the logic of taking into account the relevant input tax credits that Belconnen repaid or had to forgo in connection with the supply being an input taxed supply.
134 In connection with same sub-issue, Belconnen contends that the primary judge failed to afford procedural fairness to Belconnen because, during the trial, the primary judge reserved argument on the issue of the figure of Mrs Lloyd’s damages, but proceeded to issue judgment for Mrs Lloyd without hearing Belconnen on these matters. We reject this contention. As set out in the May 2020 Reasons at [4], the reasons published on 20 December 2019 constituted reasons for judgment; his Honour did not make substantive orders at the time of publication of those reasons. It was therefore open to Belconnen to raise any arguments that it considered had not been addressed in those reasons before final orders were made. However, Belconnen elected not to do so.
135 It is convenient at this point to deal with Belconnen’s interlocutory application dated 21 April 2021 seeking an order that the Full Court receive further evidence on the appeal, being the affidavit of Stewart Hindmarsh dated 3 June 2019. The subject matter of that affidavit is the input tax credits forgone by Belconnen by reason of the relevant supplies being treated as input taxed supplies. Belconnen seeks to rely on this material to support one of the figures set out in the Revised Annexure A to Belconnen’s submissions on the cross-appeal and in reply, namely the figure of $1,631,340 for GST credits forgone. That figure is one item in the calculation of the net benefit to Belconnen of the Lloyd Contract being an input taxed supply rather than a taxable supply (subject to the margin scheme) ($10,537). Thus, the interlocutory application relates to the same issue as is being currently considered, namely whether the primary judge erred in assessing Mrs Lloyd’s damages by reference to the amount of the purchase price referable to GST, namely $46,759. As stated above, it is unnecessary to determine this issue in light of our earlier conclusions. It follows that it is also unnecessary to determine the interlocutory application. However, had it been necessary to determine the interlocutory application, we would have rejected it. No satisfactory explanation has been provided as to why this evidence was not led below. If and to the extent that it was arranged at trial that this topic was reserved for later argument, Belconnen could have applied to adduce the evidence after the publication of the principal judgment on 20 December 2019 and before the making of substantive orders. Indeed, as discussed in the May 2020 Reasons at [2]-[3], on 6 April 2020 Belconnen filed an interlocutory application in the proceeding at first instance seeking leave to re-open the proceeding in respect of Mrs Lloyd’s claim for damages for loss of an opportunity, but did not press that application. For these reasons, had it been necessary to decide the matter, we would have rejected Belconnen’s application to receive further evidence on appeal.
136 The above conclusion that the primary judge erred in respect of causation and loss is unaffected by the matters raised in Mrs Lloyd’s notice of contention. These grounds are primarily directed to whether or not Belconnen engaged in misleading or deceptive conduct rather than causation and loss. The first ground seeks to uphold the primary judge’s conclusion regarding misleading or deceptive conduct on the basis of a failure to disclose (as distinct from the Post-Ruling Representation). Even if this ground were made out, it would not affect the above conclusion. The second ground in Mrs Lloyd’s notice of contention relies on the “GST Representations” as pleaded, as distinct from the Post-Ruling Representation found by the primary judge. Again, even if that contention were correct, it would not affect the above conclusion.
Misleading or deceptive conduct
137 Grounds 1 to 3 of Belconnen’s notice of appeal challenge the primary judge’s conclusions that Belconnen made the Post-Ruling Representation, that the representation was a continuing representation and that Belconnen engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law.
138 The draft contract of sale proffered by Belconnen to Mrs Lloyd has been described earlier in these reasons. Relevantly:
(a) It was stated in the Schedule that the Price was $554,900.00 “(GST inclusive unless otherwise specified)” and the contract did not otherwise specify.
(b) The part of the Schedule relating to GST had crosses in the boxes alongside the words “Taxable supply (including new residential premises)” and “Buyer and Seller agree to apply margin scheme” (see [50] above). Contrastingly, the box alongside the words “Input taxed supply of residential premises” was not crossed.
(c) The Special Conditions contained cl 52, which served to reinforce that the contract was GST inclusive and that the Special Conditions did not otherwise specify (as referred to in the definition of the Price).
139 Having regard to these parts of the draft contract, read in the context of the draft contract as a whole and the surrounding circumstances, we think the primary judge was correct to hold (at [296] and [317]) that Belconnen conveyed the Post-Ruling Representation to Mrs Lloyd, namely that:
(a) it was likely GST was payable in respect of the sale of the relevant residential unit; and
(b) it was likely an amount representing GST on the supply would, in due course, be paid to the ATO.
140 We note that Belconnen’s submissions on this issue tend to focus on the contract itself rather than on the draft contract. However, we consider that the primary judge’s finding that Belconnen made the Post-Ruling Representation was directed to the draft contract. This is apparent from [296] of the Reasons, where the Post-Ruling Representation is first defined. In that paragraph, the primary judge referred (in the context of Mr and Mrs Eppelstun’s case) to the terms of the “draft counterpart” of the contract. Later in the Reasons, when the primary judge came to consider Mrs Lloyd’s case, he stated at [317] that, “[f]or the same reasons” as explained in relation to the Governor Place proceeding, Belconnen had conveyed the Post-Ruling Representation to Mrs Lloyd. That his Honour was focussing on the draft contract is also apparent from [354], where he referred to the “draft Lloyd Contract”.
141 Belconnen accepts that the making of contractual promises may amount to a representation (referring to Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 506), but submits that the terms of a contract, properly construed, may equally be nothing more than the undertaking of an obligation (see RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50 at [65]). Belconnen submits that when the terms of the Lloyd Contract are considered in the above context, it is apparent that the marking of the boxes in the part of the Schedule relating to GST, and clauses 24 and 52, fall into the latter category. In our view, contrary to these submissions, the draft contract conveyed both an opinion as to the likely tax treatment of the supply (namely, the Post-Ruling Representation) as well as indicating the obligations that Belconnen was prepared to undertake. We accept that the function of the Schedule and the relevant clauses was to allocate risks associated with GST, if any was to be paid. However, we nevertheless consider that the draft contract, particularly the marking of the boxes relating to GST in the Schedule, also conveyed an opinion as to the likely tax treatment of the supply.
142 We therefore reject ground 1 of Belconnen’s notice of appeal.
143 Ground 2 of Belconnen’s notice of appeal challenges the primary judge’s holding that the Post-Ruling Representation was a continuing representation, in the sense that it continued to be made by Belconnen until completion (at [296], [317], [355]). Belconnen notes that there was no evidence at trial that Mrs Lloyd’s residential unit was worth anything less than what she paid at the time of purchase (Reasons, [336]) and the primary judge’s findings at [354] that, if the draft contract had revealed the true position and its provision had not conveyed the Post-Ruling Representation, this would have made no difference to Mrs Lloyd. In light of these matters, Belconnen submits that the primary judge ought to have found that: (a) any Post-Ruling Representation did not continue beyond the time it was made and/or the exchange of contracts; and (b) no reasonable expectation existed on the part of a purchaser and/or Mrs Lloyd that, if the Post-Ruling Representation was incorrect or not held on reasonable grounds, this would be disclosed and therefore no continuing representation to exist. In Belconnen’s written submissions, it refers to the overlap between a continuing representation case and a case based on a failure to disclose. Belconnen refers to principles discussed in failure to disclose cases to support its contention that the representation did not continue.
144 In our view, no error is established in the primary judge’s holding that the Post-Ruling Representation continued to be conveyed in the period between the date of the contract and the date of settlement. In circumstances where, for the reasons set out above, the draft contract conveyed the Post-Ruling Representation, we consider that it was open to the primary judge to hold that the representation continued to be conveyed by Belconnen given that it provided no correction, clarification or further information. We accept that there is a question as to the significance, if any, of information concerning the tax treatment of the supply for a purchaser in the position of Mrs Lloyd. However, we consider that matter to be appropriately considered within the rubric of causation and loss, which we have discussed above. If one posits a situation where the GST treatment of the supply had significance for the purchaser (for example, a commercial purchaser who intended to apply the margin scheme, whose ability to do so depended on Belconnen applying the margin scheme to a taxable supply), it is not difficult to see that the Post-Ruling Representation continued to be made in the period between the date of the contract and the date of settlement. We therefore reject ground 2.
145 Ground 3 of Belconnen’s notice of appeal challenges the primary judge’s holding that Belconnen engaged in conduct that was misleading or deceptive, or likely to mislead or deceive. This ground appears to rely wholly on grounds 1 and 2. There does not appear to be any separate issue that, if Belconnen made the Post-Ruling Representation, and it continued, Belconnen engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law. In any event, we are satisfied that it did. Belconnen had obtained the Altitude Private Ruling about two years before it proffered the draft contract to Mrs Lloyd. From the time that it obtained the ruling, Belconnen intended that the supplies of residential units in the development would be input taxed supplies rather than taxable supplies. In these circumstances, the Post-Ruling Representation was plainly misleading. We therefore reject ground 3.
146 In light of these conclusions, it is unnecessary to consider grounds 1 and 2 of Mrs Lloyd’s notice of contention any further.
The Second Issue – Mrs Lloyd’s knowing involvement claim against Mr Hindmarsh and Mr Ryan
147 This issue may be summarised as whether the primary judge erred in failing to find that Mr Hindmarsh and Mr Ryan were knowingly involved in any contravention of s 18 of the Australian Consumer Law by Belconnen. It is raised by grounds 8 to 11 of Mrs Lloyd’s cross-appeal, and ground 2 of the notice of cross-contention filed by Belconnen and Messrs Hindmarsh and Ryan.
148 By grounds 8 to 11 of her notice of cross-appeal, Mrs Lloyd contends, in summary, that:
(a) the primary judge erred in finding that, in order to establish accessorial liability for misleading or deceptive conduct in contravention of the relevant statutory provisions, it is necessary, in the case of misrepresentations, to establish that the accessory had actual knowledge of the falsity of the representation (Reasons, [320]);
(b) the primary judge erred in determining whether Mr Hindmarsh and Mr Ryan were knowingly involved in Belconnen’s misleading or deceptive conduct on the basis of (i) whether Mr Hindmarsh had “anything to do with the review and approval” of the contract (Reasons, [139], [323]); and (ii) whether Mr Ryan had “turned his mind” at the relevant time to the need to amend the contract ([115], [322]);
(c) the primary judge erred in failing to find whether Mr Hindmarsh and Mr Ryan had actual knowledge of the essential facts which rendered Belconnen’s conduct misleading or deceptive; and
(d) the primary judge erred in failing to find that Mr Hindmarsh and Mr Ryan were aware that the contract treated the sale of the residential unit as a taxable supply.
149 By ground 2 of the notice of cross-contention, Messrs Hindmarsh and Ryan contend that the primary judge’s conclusion (namely that the case against Mr Hindmarsh and Mr Ryan failed) ought to be affirmed on the additional grounds set out in Belconnen’s notice of appeal.
150 Mrs Lloyd submits that: the primary judge wrongly held that in order to establish accessorial liability for misleading or deceptive conduct it is necessary, in the case of misrepresentations, to establish actual knowledge of the falsity of the statement (Reasons, [320]); in support of that proposition, his Honour cited Rinbridge at [26], but that passage merely sets out propositions which were not in dispute between the parties in that case, so is not authoritative.
151 Mrs Lloyd submits that: knowledge of the essential facts constituting the contravention is required, but knowledge of the fact a contravention is being committed is not required: see Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [48]; Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 at [133]. It follows, Mrs Lloyd submits, that it was sufficient in the present circumstances for the individuals to know that: (a) the sale was not a taxable supply as a result of the private ruling; and (b) the contract treated the sale as a taxable supply. Mrs Lloyd submits that that was the relevant inquiry, rather than whether the individuals “turned [their] mind” to the individual contracts at the time or knew that Belconnen was receiving a windfall (Reasons, [322]). Mrs Lloyd submits that both Mr Hindmarsh and Mr Ryan had actual knowledge of both of these matters.
152 In our view, no error is established in the primary judge’s conclusion that Mrs Lloyd’s case against Mr Hindmarsh and Mr Ryan, for knowing involvement in any contravention of s 18 of the Australian Consumer Law by Belconnen, failed.
153 The primary judge set out the applicable principles relating to a knowing involvement case at [320] of the Reasons as follows:
These are knowing involvement cases. Accordingly, as is well known, since Yorke v Lucas (1985) 158 CLR 661 at 667 per Mason ACJ, Wilson, Deane and Dawson JJ, it is plain that “involvement” in the breaches of the statutory norms relied upon by Mrs Lloyd requires knowledge of the essential matters which go to make up the contravention (at 670) and, pursuant to the dominant view, this includes knowledge of the impugned conduct and of “the circumstances which give [the conduct] a misleading or deceptive character” (at 677 per Brennan J) which, in the case of misrepresentations, means knowledge of the falsity of the statement: Rinbridge Marketing Pty Ltd v Walsh [2000] FCA 1738 at [26] per Lindgren, North and Hely JJ. Despite this, of course, there is no need to prove knowledge that the impugned conduct would amount to a breach; it is enough to prove awareness of “the fact that made the representations misleading”: Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117; (2006) 234 ALR 241 at 262 [114] per Heerey and Weinberg JJ (Allsop J agreeing).
154 We consider it clear from the above passage that the primary judge correctly understood the applicable principles as set out in Yorke v Lucas. Insofar as the primary judge referred to Rinbridge, in that case the Full Court relevantly stated at [26]:
There is no dispute about the following propositions:
• In order to be “knowingly concerned in” a “contravention” of s 52 of the [Trade Practices Act 1974 (Cth)] for the purposes of s 75B of that Act, a person must not only have an appropriate connection with the conduct in question, but must know “the essential facts constituting the contravention”, including the fact that the conduct is misleading or deceptive (in the present case, that the representations were false); see Yorke v Lucas (1985) 158 CLR 661 at 670 (per Mason ACJ, Wilson, Deane, Dawson JJ), 677 (per Brennan J); followed in, for example, Sutton v AJ Thompson Pty Ltd (1987) 73 ALR 233 (FCA/FC) at 242, and Crocodile Marketing Ltd v Griffith Vintners Pty Ltd (1989) 28 NSWLR 539 (Cole J) at 544-546; and cf Giorgianni v The Queen (1985) 156 CLR 473 at 488, 495, 505-508.
155 There is a slight difference in expression between the above extract from Rinbridge and the way the primary judge put the matter in [320] of the Reasons, but we do not consider anything to turn on this. In Rinbridge, the Full Court said that “in the present case” it was necessary to establish knowledge that the representations were false, while the primary judge may be taken to have expressed a general proposition that in all cases involving misrepresentation it is necessary to establish knowledge of the falsity of the misrepresentations. The more general proposition is supported by Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [10] per Heerey, Sundberg and Dowsett JJ. In any event, on the facts of the present case, we consider that it was necessary to establish knowledge of the falsity of the relevant representation. The relevant representation was the Post-Ruling Representation, namely that:
(a) it was likely GST was payable in respect of the sale of the relevant residential unit; and
(b) it was likely an amount representing GST on the supply would, in due course, be paid to the ATO.
156 This representation was conveyed by Belconnen to Mrs Lloyd when Belconnen provided her (through her solicitors) with the draft contract. It continued to be made in the period between the date of the contract and the date of settlement. In the circumstances of this case, applying Yorke v Lucas, it was practically necessary to establish knowledge of the falsity of the relevant representation, in other words knowledge that it was not likely GST was payable in respect of the sale of the relevant residential unit and that it was not likely an amount representing GST on the supply would, in due course, be paid to the ATO.
157 Consistently with Yorke v Lucas, in order to establish that the relevant individuals were knowingly involved in Belconnen’s contravention of the statutory norm, it was necessary to establish that they had knowledge of the essential matters which went to make up the contravention. On the facts of this case, this meant that it was necessary to establish knowledge of the making of the relevant representation (in other words, that the draft contract propounded by Belconnen to Mrs Lloyd was prepared on the basis that the supply would be a taxable supply) and that representation was false.
158 Insofar as Mrs Lloyd contends that it was sufficient for her to establish knowledge of the two matters referred to in her submissions – namely that the sale was not a taxable supply as a result of the private ruling, and that the contract treated the sale as a taxable supply – it was insufficient to establish knowledge of these matters in the abstract and at different points in time. Mrs Lloyd’s submissions, in contending that additional findings as to knowledge should be made, seem to approach these matters in a general way, and do not grapple with the need to establish knowledge that the representation was made and that it was false.
159 The primary judge carefully considered the evidence and made detailed findings concerning the knowledge and involvement of Mr Ryan and Mr Hindmarsh at [97]-[139] of the Reasons. The primary judge directly considered the knowing involvement case at [318]-[324] of the Reasons. In particular, the primary judge expressed his core reasoning at [322], in relation to Mr Ryan, and at [323], in relation to Mr Hindmarsh (see [92] above). We see no basis to question the primary judge’s findings, or his application of the principles in Yorke v Lucas to the facts of this case. It involved a conventional application of the principles concerning knowing involvement to the facts of a particular case.
160 We therefore reject grounds 8 to 11 of Mrs Lloyd’s cross-appeal. It is unnecessary to consider ground 2 of the notice of cross-contention.
The Third Issue – Mrs Lloyd’s restitution case
161 This issue is whether the primary judge erred in rejecting Mrs Lloyd’s restitution case. It is raised by grounds 1 to 7 of Mrs Lloyd’s cross-appeal and ground 1 of the notice of cross-contention filed by Belconnen and Messrs Hindmarsh and Ryan.
162 By grounds 1 to 7 of Mrs Lloyd’s notice of cross-appeal, she contends, in summary, that:
(a) the primary judge erred in construing cl 24.5 of the Lloyd Contract as a warranty by Belconnen to Mrs Lloyd that the sale of the residential unit was a taxable supply for the purposes of the GST Act (Reasons, [43(5)], [308]-[310], [373]);
(b) the primary judge erred in failing to find that, on its proper construction, cl 24.5: (i) does not contemplate the possibility that the sale of the residential unit would not be a taxable supply; (ii) does not provide a remedy in the event that the sale of the unit is not a taxable supply; (iii) was only intended to protect the position of a buyer who wishes to and can apply the margin scheme; and (iv) has no operation where the buyer does not wish to or cannot apply the margin scheme;
(c) the primary judge erred in finding that no restitutionary remedy was available to Mrs Lloyd because the contract appropriately allocated the risk that the sale would not be a taxable supply (Reasons, [310], [373]);
(d) the primary judge erred in finding that no restitutionary remedy was available to Mrs Lloyd in circumstances where there was no contractual remedy, or satisfactory contractual remedy, available;
(e) the primary judge ought to have ordered Belconnen to account to Mrs Lloyd for money had and received in an amount equivalent to the full amount of the GST payable by Mrs Lloyd under the contract;
(f) the primary judge ought to have ordered Belconnen to account to the Altitude Group Members for money had and received in an amount equivalent to the full amount of the GST payable by the group members; and
(g) the primary judge ought to have rejected Belconnen’s purported change of position defence to the claim for money had and received.
163 By ground 1 of the notice of cross-contention, Belconnen contends that the conclusion of the primary judge should be affirmed on the following additional grounds (in summary):
(a) there was no failure of consideration upon which an action for money had and received could be maintained, including because: Mrs Lloyd and the Altitude Group Members were contractually obliged to pay the entire purchase price, whether or not GST was remitted to the ATO; such an action could only be maintained upon a total failure of consideration, which has not occurred when Mrs Lloyd and the group members became the registered proprietors of the leases of the residential units in exchange for payment of the purchase price; and/or the consideration for the transfer of title did not include any distinct and severable portion referable to GST;
(b) there was no relevant mistake founding a claim for money had and received, in circumstances where: the contract remained valid and effective; the full purchase price was required to be paid under the contract upon settlement in exchange for the transfer; there was no distinct and severable portion of the purchase price referable to GST; and/or the primary judge found, correctly, that Mrs Lloyd would have entered into the contract at the same purchase price (and paid the same price) had she known at the time that GST was not payable, or would not be paid, at settlement (Reasons, [354]); and
(c) it would be inequitable in all the circumstances to require Belconnen to make restitution to Mrs Lloyd and/or group members, or in the alternative to make restitution in full, in circumstances where Belconnen changed its position by: (i) amending its GST returns; (ii) repaying to the Commissioner amounts equivalent to the input tax credits previously claimed; (iii) forgoing input tax credits; and (iv) incurring other costs connected with the changes to the GST treatment of the sales.
164 As set out above, in dismissing Mrs Lloyd’s restitution case, the primary judge relied on essentially the same reasons as for Mr and Mrs Eppelstun’s case: see the Reasons, [373]. In summary, in relation to both Mr and Mrs Eppelstun’s case and Mrs Lloyd’s case, the primary judge held that the claim for money had and received was unavailable in circumstances where the contract of sale (specifically, cl 24.5) applied (or was engaged) and provided a right to damages: see the Reasons, [308]-[310], [373]. In so concluding, the primary judge relied on the judgment of Kiefel CJ, Bell and Keane JJ in Mann v Paterson at [24].
165 In our view, for the reasons that follow, the primary judge was correct to conclude that Mrs Lloyd’s restitution case failed. However, our reasons for reaching this conclusion are different from those of the primary judge.
166 Mrs Lloyd’s claim for money had and received relies on two alternative bases – total failure of consideration and mistake. We will focus, first, on the claim based on a total failure of consideration. Mrs Lloyd alleged in the statement of claim that “a distinct and severable portion of the Price paid by [Mrs Lloyd] and each of the Group Members to Belconnen Lakeview was referable to GST”. It was alleged that “there was a failure of consideration in respect of each Contract in that Belconnen Lakeview was not liable to pay GST in respect of the sale of the unexpired term of a Unit Lease for a Unit”. It was alleged that, by reason of the failure of consideration, Belconnen was liable to repay “an amount equivalent to the component of the Price referable to GST to [Mrs Lloyd] and each of the Group Members”.
167 Mrs Lloyd’s claim for money had and received on the basis of a total failure of consideration relies heavily on the reasoning of the High Court in Roxborough. In brief and slightly simplified outline, the facts of that case were as follows. The appellants (the Retailers) were each retailers of tobacco products and holders of a retailer’s licence granted pursuant to the Business Franchise Licences (Tobacco) Act 1987 (NSW) (the NSW Act). The respondent (Rothmans) was a wholesaler of tobacco products and the holder of a wholesaler’s licence under the NSW Act. In the period between 1 July and 5 August 1997 (the relevant period), Rothmans supplied tobacco products to each of the Retailers. On 5 August 1997, the High Court held in Ha v New South Wales (1997) 189 CLR 465 (Ha’s Case) that the NSW Act was invalid as imposing an excise contrary to s 90 of the Commonwealth Constitution. The NSW Act had imposed a license fee in a nominal sum on the retail and wholesale sale of tobacco and an additional ad valorem fee, calculated by reference to 100 per cent of the value of the tobacco sold in the period preceding the licence period. Rothmans’ invoices identified separately as subtotals: (a) the wholesale list price of the goods sold; and (b) an amount representing the ad valorem licence fee. The invoices also set out the total amount due, being the sum of the two subtotals. The Retailers sued Rothmans in the Federal Court to recover sums equal to the amounts shown as “tobacco licence fee” in seventy-four identified invoices supplied to them by Rothmans in the relevant period. The Retailers had paid those sums to Rothmans within or shortly after the relevant period. Rothmans had retained them once the judgment in Ha’s Case was handed down. The High Court held by majority (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Kirby J dissenting) that there had been a failure of a distinct and severable part of the consideration for the purchase of the goods, so that there was a total failure of that consideration. Accordingly, the amount claimed was recoverable as money had and received. It was further held that the amount was recoverable by the Retailers notwithstanding that when they had sold goods to their customers they had charged prices which covered the cost of the amount they sought to recover from the wholesaler.
168 Mrs Lloyd relies on an analogy with Roxborough. Mrs Lloyd contends that there was a total failure of consideration with respect to a severable component of the purchase price, namely the component referable to GST, and claims recovery of that component by way of a claim for money had and received. The quantum of that component, in Mrs Lloyd’s case, is said to be $46,759, being the GST that would have applied to the sale of the unit had the supply been a taxable supply and subject to the margin scheme (as set out in Annexure A to the Reasons).
169 In our view, on the facts of this case, a severable component of the purchase price cannot be identified. Accordingly, there was no total failure of a severable part of the consideration.
170 First, neither the contract nor any other contemporaneous document passing between the parties identified the amount that was referable to GST. It is important to note that the contract was prepared on the basis that the margin scheme would apply to the supply. Thus, this was not the ordinary case where the GST was 1/11 of the value of the supply. Rather, a somewhat complicated calculation would need to be carried out to determine the margin applicable to the supply of the interest, and thus to determine the GST. It will be recalled that Belconnen originally acquired a Crown lease. This was later subdivided into leases with respect to each residential unit. In these circumstances, calculation of the margin applicable to each lease for the purposes of the margin scheme was not straightforward. The GST amount, being 1/11 of the margin, was later agreed between the parties for the purposes of the proceeding as being $46,759, but there is no suggestion that that amount was known to, or even able to be calculated by, Mrs Lloyd at the time of contracting.
171 Secondly, while the contract was prepared on the basis that the supply would be a taxable supply subject to the margin scheme, this was merely the anticipated nature of the supply. The contract itself recognised that the actual nature of the supply for GST purposes at settlement might be different from that anticipated in the contract. This is seen, for example, in cl 24.6 (see [52] above). This is a matter that was recognised by the primary judge and informed his Honour’s adoption of the Post-Ruling Representation rather than the “GST Representations” pleaded by Mrs Lloyd in the context of the misleading or deceptive conduct case. In the events that happened, the relevant supply from Belconnen to Mrs Lloyd (of the unexpired term of the lease of the relevant residential unit) was an input taxed supply and not a taxable supply. Accordingly, no GST was payable in respect of the supply. In these circumstances, it is inaccurate to speak of there being a component of the purchase price referable to GST. Rather, it was anticipated that there would be a component of the purchase price that would be referable to GST.
172 We note that under cl 24.7 of the Printed Terms (see [52] above), the Seller was required on completion to give the Buyer a tax invoice for any taxable supply by or under the contract. However, that provision referred to “any taxable supply”. In the events that happened, the supply from Belconnen to Mrs Lloyd was not a taxable supply and therefore that obligation did not operate. The invoice foreshadowed by that clause does not, therefore, on the facts of this case, overcome the difficulties outlined above.
173 Further, Mrs Lloyd acquired the unexpired term of the lease of the relevant residential unit and there was no evidence at trial that the unit was worth anything less than the amount she paid at the time of purchase (Reasons, [336]). In the circumstances, Mrs Lloyd obtained the full benefit for which she paid the purchase price. This is a further reason why, in the present case, there was not a total failure of consideration (or a total failure of a severable part of the consideration).
174 We note also that any liability for GST on the supply fell on Belconnen as the supplier; it did not fall on Mrs Lloyd, the purchaser. This provides a further distinction with Roxborough, where the Retailers had an interest in the licence fees being paid by the wholesaler, as this relieved them of a corresponding liability: see Roxborough at [16]. It was in this context that Gleeson CJ, Gaudron and Hayne JJ observed at [17] that it was in the “common interests” of the parties that the fees, when incurred, would be paid to the revenue authorities.
175 In light of the above, there was no severable component of the consideration referable to GST. It is therefore not possible to say that there was a total failure of consideration with respect to a severable component of the consideration. By reason of the facts and matters set out above, the present case is materially different from Roxborough.
176 Insofar as Mrs Lloyd’s claim for money had and received is based on mistake, this aspect of the claim was given little attention in the parties’ submissions. There would seem to be a number of difficulties with claiming recovery on this basis, including that, for the reasons set out above, there was no severable component of the purchase price referable to GST. Accordingly, there is difficulty in identifying a component that was paid by mistake.
177 For these reasons, we agree with the primary judge’s conclusion that Mrs Lloyd’s restitution case failed, albeit for different reasons.
178 In light of the above conclusion it is unnecessary to consider whether the contract in the present case precluded a claim for money had and received. However, we make the following observations for the sake of completeness, in circumstances where this formed the basis of the primary judge’s decision on this claim.
179 In Mann v Paterson, the High Court, by a majority (Gageler, Nettle, Gordon and Edelman JJ; Kiefel CJ, Bell and Keane JJ dissenting) held that, in respect of any stages of the contract in issue that had not been completed at the time of termination (other than for variations), the builder had, as an alternative to a claim for unliquidated damages for breach of contract, a right to recovery on a quantum meruit for work and labour done, not exceeding a fair value calculated in accordance with the contract price or the appropriate part of the contract price. It should be noted that Mann v Paterson was concerned with a claim for recovery on a quantum meruit rather than a claim for money had and received, which is the type of claim in the present case. Nevertheless, the conclusions and reasoning are of assistance given that both types of claim seek restitution.
180 Justice Gageler drew a distinction between work for which the builder had accrued a contractual right to payment, where an action for restitution was unavailable (see [64]), and work for which the builder had not accrued a contractual right to payment (described as category (3)). In respect of that category, Gageler J framed the issue as follows at [65]:
More difficulty attends the outcome in relation to work done within category (3). Determining the outcome requires this Court to make a choice. Should the Builder be restricted in respect of that work to enforcing the Builder’s undoubted entitlement to recover damages for loss occasioned to the Builder in consequence of the termination of the Contract? Or should the Builder be able to elect to recover instead an amount representing the value of the work by way of restitution on a non-contractual quantum meruit?
181 In respect of that category, his Honour concluded that the law should allow an innocent party to maintain a non-contractual quantum meruit as an alternative to an action for unliquidated damages for breach of contract (at [83], [85], [91], [105]). His Honour stated at [91]:
In my opinion, the problem is more appropriately addressed by limiting the measure of restitution than by denying the availability of the common law action for restitution. If the measure of the value of the services rendered by the innocent party is capped by reference to the contractually agreed remuneration for those services – the contract price – the distortion is substantially eliminated.
182 His Honour expressed the following conclusion at [105]:
The preferable outcome, in my opinion, is accordingly that the Builder can recover from the Owners by way of restitution on a non-contractual quantum meruit an amount in respect of the work done by the Builder for which the Builder had accrued no contractual right to payment under the Contract at the time of its termination. The amount recoverable is a liquidated amount representing reasonable remuneration for the work. That amount cannot exceed the portion of the overall price set by the Contract that is attributable to the work.
183 In a joint judgment, Nettle, Gordon and Edelman JJ also held that, with respect to uncompleted stages of the contract (in respect of which the builder had not accrued a contractual right to payment) (that is, a category corresponding to category 3 as referred to above), the builder had, as an alternative to a claim for unliquidated damages for breach of contract, a right to recovery on a quantum meruit (at [176], [177], [192]-[197], [215]). Their Honours stated at [176]:
Generally speaking, a construction contract which is divided into stages, and under which the total contract price is apportioned between the stages by means of specified progress payments payable at the completion of each stage, is viewed as containing divisible obligations of performance. In that event, where at the point of termination of the contract by the builder’s acceptance of the principal’s repudiation some stages of the contract have been completed, such that progress payments have accrued due in respect of those stages, there will be no total failure of consideration in respect of those stages. The builder will have no right of recovery in restitution in respect of those stages, and the builder’s rights in respect of those completed stages will generally be limited to debt for recovery of the amounts accrued due or damages for breach of contract. But if there are any uncompleted stages, there will be a total failure of consideration in respect of those stages due to the failure of the builder’s right to complete the performance and earn the price. In that event, there will be nothing due under the contract in relation to those stages, and restitution as upon a quantum meruit will lie in respect of work and labour done towards completion of those uncompleted stages.
(Footnote omitted.)
184 Further, their Honours stated at [215]:
It is, therefore, appropriate to recognise that, where an entire obligation (or entire divisible stage of a contract) for work and labour (such as, for example, an entire obligation under or an obligation under a divisible stage of a domestic building contract) is terminated by the plaintiff upon the plaintiff’s acceptance of the defendant’s repudiation of the contract, the amount of restitution recoverable as upon a quantum meruit by the plaintiff for work performed as part of the entire obligation (or as part of the entire divisible stage of the contract) should prima facie not exceed a fair value calculated in accordance with the contract price or appropriate part of the contract price.
185 The conclusion of the majority is to be contrasted with the view of the minority, comprising Kiefel CJ, Bell and Keane JJ, that a right to recovery on a quantum meruit was unavailable with respect to the uncompleted stages of the contract in circumstances where the builder could claim damages for breach of contract (at [13], [20], [22], [24], [30]-[32], [37], [53]). Their Honours dealt with accrued contractual rights at [19], stating that, in circumstances where the builder has an enforceable right to money that has become due under the contract, there is no room for a right to elect to claim a reasonable remuneration. Their Honours then turned to damages for loss of bargain, and stated at [20]:
The same may be said where, as in the present case, the innocent party has an enforceable contractual right to damages for loss of bargain. The extent of the obligation to pay damages for loss of bargain, governed as it is by the terms of the terminated contract, reflects the parties’ allocation of risk and rights as between each other under the contract. To allow a restitutionary remedy by way of a claim for the reasonable value of work performed unconstrained by the terms of the applicable contract would undermine the parties’ bargain as to the allocation of risks and quantification of liabilities, and so undermine the abiding values of individual autonomy and freedom of contract.
186 Their Honours stated at [22]:
To allow a restitutionary claim for quantum meruit to displace the operation of the compensatory principle where the measure of compensation reflects contractual expectations would be inconsistent with what Gummow J described as the “gap-filling and auxiliary role of restitutionary remedies”. Similarly, from an American perspective, it has been said that “the noncontractual remedy was originally allowed as a way to fill important gaps in contract remedies, providing compensation in damages that contract law now affords directly”. Further, the restitutionary claim for quantum meruit cannot be supported on the basis that it is needed to prevent the defaulting party from being unjustly enriched because “a party who is liable in damages is not unjustly enriched by a breach of contract and indeed is not enriched at all”.
(Footnotes omitted.)
187 Their Honours distinguished cases of restitution such as Roxborough, where payments of money were held to be recoverable because of the failure of the basis on which the payments had been made by the payers (at [23]), and stated at [24] (a passage relied on by the primary judge):
In Roxborough, consistently with the view later taken in Lumbers, Gummow J explained that restitutionary claims, such as an action to recover moneys paid on the basis of a failure of consideration, “do not let matters lie where they would fall if the carriage of risk between the parties were left entirely within the limits of their contract”. His Honour was at pains to explain that where a plaintiff already has “a remedy in damages … governed by principles of compensation under which the plaintiff may recover no more than the loss sustained”, allowing the plaintiff to claim “restitution in respect of any breach … would cut across the compensatory principle” of the law of contract.
(Footnotes omitted.)
188 Their Honours stated at [53] that it was not necessary to consider the position in other contexts or with respect to other restitutionary claims, given that the case before the High Court was concerned only with a claim for remuneration for work and labour done under a contract terminated for repudiation or breach.
189 The implication of the conclusion and reasoning of (at least) the majority in Mann v Paterson for present purposes is that, if (contrary to our conclusion above) Mrs Lloyd were able to establish that there had been a total failure of a severable part of the consideration, it may have been open to her to claim for money had and received as an alternative to a claim for damages for breach of contract: see also Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 355, 358, 359 per Mason CJ; Roxborough at [16] per Gleeson CJ, Gaudron and Hayne JJ.
190 If Mrs Lloyd had been able to establish a total failure of a severable part of the consideration, the key question would have been whether cl 24.5, properly construed, comprehensively covered the situation relating to GST, such as to exclude a claim for money had and received. Clause 24.5 (set out at [52] above) stated that, if the contract said that the Buyer and Seller agree that the margin scheme applies to the supply of the property, “the Seller warrants that it can use the margin scheme and promises that it will”. The Lloyd Contract did state that the Buyer and the Seller agree to apply the margin scheme (see [50] above). Thus, it is true that the opening condition or premise of cl 24.5 was satisfied. However, unlike cl 24.6, cl 24.5 did not specifically deal with a situation where the contract said that the sale was a taxable supply and the sale was not in fact a taxable supply. In the context of the margin scheme provisions of the GST Act, cl 24.5 would appear to be directed to the interest of a commercial purchaser in being able to use the margin scheme for a future sale. It does not seem to be intended to deal with a situation where the contract said that the sale was a taxable supply and the sale was not a taxable supply.
191 In conclusion, for the reasons set out above, we uphold the primary judge’s rejection of Mrs Lloyd’s restitution case on the basis of ground 1 of the notice of cross-contention filed by Belconnen and Messrs Hindmarsh and Ryan. (It is unnecessary to deal with all aspects of ground 1 of the notice of cross-contention, such as the change of position defence.) It follows that Mrs Lloyd’s challenge to the primary judge’s conclusion on this part of the case is to be dismissed.
The Fourth Issue
192 Grounds 7 to 9 of Belconnen’s notice of appeal relate to findings made by the primary judge in relation to certain common issues of law or fact, and to the primary judge’s dismissal of an interlocutory application by Belconnen to declass the proceeding. Leave to raise these grounds was granted at the hearing of the appeal.
193 By ground 7 of its notice of appeal, Belconnen contends that the primary judge erred in making the findings in paragraphs 19 and 20 of the Schedule to the 14 May 2020 orders (set out at [107] above) because of:
(a) the matters raised by grounds 1 to 3 of Belconnen’s notice of appeal;
(b) whether the Altitude Contracts conveyed the representations can only be determined in the context of all of the circumstances surrounding the relationship between Belconnen and an individual group member; and
(c) the finding was based on a hypothetical situation, amounts to an advisory opinion and is, accordingly, neither authorised by s 33ZB of the Federal Court of Australia Act nor a permissible exercise of the judicial power of the Commonwealth.
194 We do not accept these contentions. Insofar as Belconnen relies on grounds 1 to 3 of its notice of appeal, we have rejected those grounds of appeal earlier in these reasons. Insofar as Belconnen contends that whether the representations were conveyed can only be determined in the circumstances pertaining to an individual group member, while this is true, it is recognised by the following words in paragraph 19: “(in the absence of further information that GST was not payable in respect of the sale of the unexpired term of the Unit Lease for a Unit (see 15(b) above))”. Further, it should be noted that paragraph 19 does not extend to a finding that Belconnen engaged in conduct that was misleading or deceptive or likely to mislead or deceive, but is confined to the representations that were conveyed. Insofar as Belconnen contends that the findings were based on a hypothetical situation and amounted to an advisory opinion, we reject this in circumstances where the draft contract provided by Belconnen to each of the Altitude Group Members was prepared on an incorrect basis. For the reasons discussed above, the draft contract misrepresented the true position. In the absence of contrary information, Belconnen therefore made a misrepresentation to each of the Altitude Group Members. It was appropriate for this to be reflected in the common findings.
195 By ground 8 of its notice of appeal, Belconnen contends that the primary judge erred in refusing to make orders under s 33ZB of the Federal Court of Australia Act with respect to the breach of contract claims made by Mrs Lloyd on behalf of group members. It is contended that the primary judge should have made common findings to the effect set out in paragraphs 1(c)(i) to (v) in Belconnen’s notice of appeal. (Those paragraphs set out findings made by the primary judge that Belconnen does not challenge and says were correct.)
196 We do not accept these contentions. While it is true that Mrs Lloyd abandoned her contract case after the close of evidence and before submissions at trial (see the Reasons at [23]), the facts and matters set out in paragraphs (1)(c)(i) to (v) of Belconnen’s notice of appeal do not lend themselves to common findings. They are merely steps in the reasoning of the primary judge. It was open to the primary judge not to include these facts and matters in the common findings.
197 By ground 9 of its notice of appeal, Belconnen contends that the primary judge erred in making paragraph 5 of the 14 May 2020 orders (by which his Honour dismissed Belconnen’s interlocutory application filed on 6 April 2020). That interlocutory application relevantly included an application for an order declassing the proceeding pursuant to s 33N of the Federal Court of Australia Act. Belconnen contends that the primary judge ought to have held that it was no longer appropriate for the claims to be pursued by means of a representative proceeding in circumstances where there were no further issues giving rise to substantial common issues of law or fact between the group members, and that his Honour should have made an order under s 33N.
198 We do not accept these contentions. As noted above, the primary judge considered it appropriate to defer consideration of the application to declass the proceeding in circumstances where Belconnen had foreshadowed an appeal. It was open to the primary judge to do so and we see no error in his Honour’s approach.
The Fifth Issue
199 This issue is raised by ground 1 of Messrs Hindmarsh and Ryan’s cross-cross-appeal. Messrs Hindmarsh and Ryan contend that, in the event that Belconnen’s appeal is allowed and Mrs Lloyd’s cross-appeal against Messrs Hindmarsh and Ryan is dismissed, the primary judge erred in failing to order Mrs Lloyd to pay the costs of Messrs Hindmarsh and Ryan.
200 As noted above, by paragraph 4 of the orders made on 14 May 2020, the primary judge ordered Belconnen to pay one half of Mrs Lloyd’s costs of the proceeding (other than the costs payable pursuant to paragraph 5, which related to Belconnen’s unsuccessful interlocutory application). This was in a context where Mrs Lloyd had succeeded in her claim against Belconnen for compensation for misleading or deceptive conduct, but had failed in relation to other claims, including her claims against Mr Hindmarsh and Mr Ryan based on knowing involvement. The primary judge considered it appropriate in that context to fix an appropriate percentage of the costs to be recovered by Mrs Lloyd: see the May 2020 Reasons at [18].
201 In light of our conclusion that Belconnen’s appeal should be allowed, the costs order in paragraph 4 of the 14 May 2020 orders needs to be set aside (as does the reference to order 4 in paragraph 6 of those orders). It is appropriate also to make an order that the cross-cross-appeal be allowed. We will give the parties an opportunity to make submissions on the costs of the trial (as well as the costs of the appeal, cross-appeal and cross-cross-appeal).
Conclusion
202 For the reasons set out above, we will make orders to the following effect:
(a) The appeal brought by Belconnen be allowed.
(b) The cross-appeal brought by Mrs Lloyd be dismissed.
(c) The cross-cross-appeal brought by Messrs Hindmarsh and Ryan be allowed.
(d) The following parts of the orders of the primary judge dated 14 May 2020 be set aside:
(i) paragraph 1;
(ii) paragraph 4; and
(iii) the reference to order 4 in paragraph 6.
(e) In lieu thereof, it be ordered that Mrs Lloyd’s claim against Belconnen be dismissed.
(f) In relation to any consequential orders arising from the above, the costs of the proceeding at first instance, and the costs of the appeal, the cross-appeal and the cross-cross-appeal:
(i) Within 14 days:
(A) Belconnen file and serve written submissions (of no more than five pages), proposed minutes of orders and any affidavit material; and
(B) Mr Hindmarsh and Mr Ryan file and serve written submissions (of no more than two pages), proposed minutes of orders and any affidavit material;
(ii) Within a further 14 days, Mrs Lloyd file and serve written submissions (of no more than seven pages), proposed minutes of orders and any affidavit material; and
(iii) Subject to further order, the issues of consequential orders and costs be determined on the papers.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Griffiths, Davies and Moshinsky. |
Associate:
NSD 651 of 2020 | |
JOHN KINLOCH HINDMARSH | |
Third Cross-Respondent | GERALD JOHN RYAN |
