Federal Court of Australia

APD Technology Pty Ltd v Maximo Developments Pty Ltd [2022] FCAFC 141

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Subject to paragraph 3:

(a)    the appellant pay the respondents’ costs of the appeal; and

(b)    in relation to the costs of the interested party, there be no order as to costs.

3.    If any party seeks a variation of the costs orders, they may file and serve a written submission (of no more than two pages) within seven days. In that event, the other parties may file and serve a responding written submission (of no more than two pages) within a further seven days, and the issue of costs will be determined on the papers.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Subject to paragraph 3, the appellant pay the respondents’ costs of the appeal.

3.    If any party seeks a variation of the costs orders, they may file and serve a written submission (of no more than two pages) within seven days. In that event, the other parties may file and serve a responding written submission (of no more than two pages) within a further seven days, and the issue of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    There are two appeals before the Court, arising from a single proceeding at first instance. In the proceeding at first instance, APD Technology Pty Ltd (APD), which sold a vacant parcel of land at 14 Lake Street, Varsity Lakes, Queensland (the Property) in 2017, sued:

(a)    Maximo Developments Pty Ltd trading as Century 21 Central GC (Maximo Developments), which was APD’s agent for the sale of the Property;

(b)    Mr Sasan Rahmani and Mrs Rita Rahmani, who were the directors of Maximo Developments; and

(c)    Mr Dominic Arcuri, who was APD’s solicitor for the sale of the Property.

2    The Property was transferred at settlement for $24 million plus GST ($26.4 million). The buyer was a company called Bondbao Pty Ltd (Bondbao). The “commission” paid by APD to Maximo Developments at settlement was $12 million plus GST ($13.2 million). The thrust of APD’s case at first instance was that Mr Rahmani had earlier represented to Mr Ngat Doan (the principal of APD) that the bulk of the “commission” that would be paid by APD to Maximo Developments would in fact go back to the buyer, as part of a mechanism to avoid Chinese foreign exchange controls. It was alleged that the representation was false. APD sought damages being the difference between the commission in fact paid to Maximo Developments and a reasonable rate of commission. There was also an alternative case for a lower amount of damages. APD’s claims against Maximo Developments and Mr and Mrs Rahmani were based on alleged contraventions of ss 18 and 21 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) and breach of fiduciary duty. APD also brought a claim against Mr Arcuri based on breach of duty.

3    In the proceeding at first instance, Maximo Developments and Mr and Mrs Rahmani (the Maximo Parties) brought a cross-claim against Hamilton Underwriting Ltd for and on behalf of Syndicate 3334 (Hamilton), claiming indemnity under a policy of insurance.

4    The primary judge dismissed APD’s claims against Maximo Developments, Mr and Mrs Rahmani and Mr Arcuri: APD Technology Pty Ltd v Maximo Developments Pty Ltd [2021] FCA 678 (the Reasons). The primary judge rejected the factual premise of APD’s case. His Honour rejected Mr Doan’s evidence, and found him to be an unreliable witness. His Honour found that Mr Rahmani had not represented to Mr Doan that the bulk of the “commission” would in fact go back to the buyer. It followed that APD’s case failed. The primary judge also held that Hamilton was liable under the policy of insurance to Maximo Developments and Mr and Mrs Rahmani for their defence costs.

5    The primary judge delivered separate reasons for judgment in relation to costs and the form of orders: APD Technology Pty Ltd v Maximo Developments Pty Ltd (No 2) [2021] FCA 858 (the Costs Reasons).

6    There are two appeals from the judgments of the primary judge:

(a)    In the first appeal (NSD 727 of 2021), APD appeals from parts of the judgments of the primary judge dismissing APD’s case against Maximo Developments, Mr and Mrs Rahmani, and Mr Arcuri, and from an order that it pay indemnity costs to Maximo Developments and Mr and Mrs Rahmani for a period of time. Maximo Developments and Mr and Mrs Rahmani have filed a notice of contention in this appeal. Hamilton has been joined to this appeal as an interested party.

(b)    In the second appeal (NSD 746 of 2021), Hamilton appeals against the primary judge’s order requiring it to indemnify Maximo Developments and Mr and Mrs Rahmani for their costs of defending the proceeding.

7    For the reasons that follow, we have concluded that both appeals should be dismissed.

Background facts

8    The following statement of the background facts is substantially based on the Reasons at [1], [5]-[6], [9], [13] and [21]-[64], supplemented by documents to which we were taken during the hearing of the appeal.

Key companies and people

9    APD’s manager, and the principal person who acted on its behalf in the events that are relevant, is Mr Doan. The director of APD is Mr Doan’s wife, Mrs Nhan Hong Doan. The Doans are based in Sydney.

10    Maximo Developments is a real estate agent registered in Queensland. It operates on the Gold Coast. The principal person involved in the events that are relevant to this case on behalf of Maximo Developments is Mr Rahmani. Mrs Rahmani is also a director of Maximo Developments. The Rahmanis are based on the Gold Coast.

11    Another agent, Mint Property, was a “conjunction agent” with Maximo Developments in relation to the sale of the Property. The representative of Mint Property was Mr Tony Yan.

12    Mr Arcuri, a solicitor from the Gold Coast, was appointed by Mr Doan on behalf of APD to act on the latter’s behalf in relation to the sale of the Property.

13    Mr Chiang Sheng Hsiung (referred to in the proceeding at first instance as Johnson) and Mrs Jane Lee Hsiung (referred to in the proceeding at first instance as Jennifer) were joint venture partners, as trustees for a family trust, with APD in the Property. They therefore had an interest in any payment realised on the sale of the Property. Their joint venture interest was 5%.

The period from 2009 to September 2016

14    In 2009, APD purchased the Property, being a vacant parcel of land at 14 Lake Street, Varsity Lakes on the Gold Coast for $2,310,000 including GST. Mr Doan had the intention of developing the Property by constructing a substantial building containing apartments, restaurants, shops and commercial premises. APD entered into joint venture arrangements with regard to the purchase and possible development of the Property, including with Mr and Mrs Hsiung.

15    In July 2010, APD obtained an initial development consent permitting the construction of 121 apartments in the proposed building. In October 2014, APD obtained an amended approval, increasing the number of permitted apartments to 203.

16    Mr Doan testified at trial that he was unable to obtain the requisite construction funding, explaining that the project became too big for APD, so he resolved that he had no alternative but to sell the Property.

17    Mr Doan and Mr Rahmani had had a close personal and commercial relationship for nearly 30 years. They had on many occasions entered into real estate agency contracts on behalf of corporations that they represented, with Mr Rahmani marketing for sale and selling properties on behalf of Mr Doan.

18    On 21 July 2015, Mr Doan had APD enter into the first of several agency contracts, known as a Form 6, with Mr Rahmani’s company, Maximo Developments. The latter was appointed as APD’s exclusive agent for a period of two months to sell the Property. The agreed list price was $15 million. The commission, inclusive of GST, was recorded as 2.75% up to and including a purchase price of $15 million, and that for any price above $15 million the commission would be 2.75% of $15 million plus 88% of the difference between the contract price and $15 million. The contract recorded, as an example, that if the contract price is $16 million, the commission would be $1,292,500 including GST. On that example, the effective commission would be 8.1%. No sale eventuated.

19    At about this time, Mr Doan and Mr Rahmani concluded Form 6 agency agreements between their respective companies for the sale of other properties with commission structured in much the same way. In that sense, this commission structure was not unusual for them.

20    On 7 December 2015, APD signed a second Form 6 with Maximo Developments in respect of the Property. Although it was not signed by Maximo Developments, Mr Rahmani accepted at trial that the parties treated the contract as being effective between them. It was an open listing without specifying the end date. The list price for the Property was recorded as $13.1 million plus GST. The commission, inclusive of GST, was recorded as 2.2% up to and including a purchase price of $13.1 million, and for any price above $13.1 million the commission was 2.2% of $13.1 million plus 99% of the difference between the contract price and $13.1 million. The contract recorded as an example that if the contract price was $15 million, the commission would be $2,169,200 including GST. On that example, the effective commission would be 14.5%. Again, no sale eventuated.

21    On 4 May 2016, APD entered into a deed by which APD granted a call option to Headway Group Pty Ltd entitling the latter to purchase the Property for $9 million. Headway subsequently allowed that option to lapse, so no sale eventuated.

22    In August 2016, Mr Doan was in communication with Mr Frank Raunik of an architectural firm, Raunik, about a possible new development application to increase the density of any development on the site including by the construction of two towers. Mr Rahmani gave evidence at trial that this came about because it was anticipated that the local council was going to amend the relevant regulations to allow a greater density or a greater height.

23    On 30 September 2016, APD appointed Herron Todd White, a property valuation group, to prepare an independent evaluation of the Property. Mr Rahmani was aware of this appointment.

October to December 2016

24    On 12 October 2016, Mr Rahmani sent to Mr Doan by email another Form 6 in respect of the Property (the 12 October 2016 Agency Contract). Neither APD nor Maximo Developments appear to have signed the contract, but Mr Rahmani accepted at trial that the parties treated it as effective between them. It was an exclusive agency appointment without a specified end date. The parties checked as chosen an option that at the end of the exclusive agency, the appointment would continue as an open listing. The list price for the Property was recorded as $16.5 million. The commission clause was in the following terms:

The client and the agent agree that the commission including GST payable for the service to be performed by the agent is:

UP TO A PURCHASE PRICE OF $16.5M THE COMMISSION IS 2.2% OF THE CONTRACT PRICE, INCLUDING GST. ANY AMOUNT ABOVE $16.5M, THE COMMISSION IS 2.2% OF $16.5M PLUS 99% OF THE DIFFERENCE BETWEEN THE CONTRACT PRICE AND $16.5M. (EXAMPLE: IF THE CONTRACT PRICE IS $18M, THE COMMISSION IS $1,848,000.00 INCLUDING GST)

25    On the example given in the above clause, the effective commission would be 10.3%.

26    Once again, no sale eventuated.

27    On 18 October 2016, Herron Todd White provided a market valuation of the Property, which included taking into account that the approved development proposal in October 2014 would not lapse until July 2020. The market value “as is” was given as $4,750,000 excluding GST. Mr Rahmani said at trial that he was not aware of this valuation.

28    On 27 October 2016, Raunik produced some concept drawings showing two residential towers and one student accommodation tower, combined with commercial and recreation spaces, for the Property and sent these to Mr Doan.

29    Thereafter, or in any event at about this time, there was a conversation, or conversations, between Mr Doan and Mr Rahmani, which were at the centre of the dispute at first instance. The primary judge’s findings about the conversation or conversations are discussed later in these reasons.

30    On 5 November 2016, APD and Maximo Developments concluded another Form 6 for the sale of the Property (the 5 November 2016 Agency Contract). The contract was signed by Mr Doan for APD and by Mr Rahmani for Maximo Developments. The list price was recorded as $12 million. It was an exclusive agency appointment commencing on 2 November 2016. The commission clause was in the following terms:

The client and the agent agree that the commission including GST payable for the service to be performed by the agent is:

UP TO A PURCHASE PRICE OF $12,245,000 THE COMMISSION IS 2.2% OF THE CONTRACT PRICE INCLUDING GST. ANY AMOUNT ABOVE $12,245,000, THE COMMISSION IS 2.2% OF $12,245,000 PLUS 99% OF THE DIFFERENCE BETWEEN THE CONTRACT PRICE AND $12,245,000. (EXAMPLE: IF THE CONTRACT PRICE IS $15M, THE COMMISSION IS $2,996,840 INCLUDING GST).

31    On the example given of a contract price of $15 million, the effective commission would be approximately 20%.

32    In the period November 2016 to January 2017 there were further discussions between Mr Doan and Mr Rahmani about the sale of the Property. The terms of those discussions were in dispute at trial.

January and February 2017

33    A file note of Mr Arcuri records that before 1 February 2017, he had various telephone calls with Mr Doan in which he (Mr Arcuri) was advised of a $24 million contract that Mr Rahmani was working on, and that he had various discussions with Mr Rahmani. The file note then records a conference between Mr Arcuri and Mr Rahmani on 1 February 2017 in which details of the contract of sale for the Property were discussed and advice was given by Mr Arcuri with regard to the contract being a commercial contract “making it plus GST”.

34    In the early morning on 1 February 2017, Mr Rahmani sent to Mr Tony Yan representing Mint Property a “Conjunction Confirmation by Fax or Email”. It recorded that it confirmed that Mint Property had introduced Bondbao as buyer for the Property and that as the listing agent Maximo Developments agreed to pay Mint Property a commission of $5 million plus GST based on a contract price of $24 million. It was dated 1 February 2017, but was not signed.

35    In the afternoon on 1 February 2017, Mr Rahmani sent an email to Mr Doan which he copied to Mr Arcuri (the 1 February 2017 email). The email read, in part:

I confirm that I met with Mick Arcuri this morning to finalise the conditions for the Contract on 14 Lake Street, Varsity Lakes. These are now being prepared. …

On the matter of our commission, please note that the Contract price is going to be $24,000,000. On settlement day APD Technology P/L will receive $10,800,000. Century 21 [i.e., Maximo Developments] will issue an invoice to APD Technology Pty. Ltd. for [an] amount of $12,000,000 plus $1,200,000 GST total of $13,200,000. This will bring a net return to APD of $12,000,000 (10.8M plus $1.2M GST). Please confirm by return email that this is correct. Many thanks.

(Emphasis added.)

36    Shortly thereafter, Mr Doan replied by email saying, “All agreed, OK”. This email was copied to Mr Arcuri.

37    The 1 February 2017 email confirmed for the first time that the purchase price would be $24 million. Also, the commission amount set out in the 1 February 2017 email (with which Mr Doan agreed) was not calculated in accordance with the commission clause in the 5 November 2016 Agency Contract. The amount was more favourable to Maximo Developments than the commission on a contract price of $24 million (including GST) calculated in accordance with the 5 November 2016 Agency Contract.

38    A file note of Mr Arcuri for 2 February 2017 records that he had a meeting with Mr Doan in which the terms of the contract for sale were discussed, and in particular the GST position and what would be most favourable to APD. The file note records that Mr Doan “suggested that [the buyer] might wish to get more money out of China by making it a plus GST”. The file note then records the following:

Discussed with Ngat [Doan] his receipt of $12 million net. He says that he believes that some monies are being paid back by Sasan [Rahmani] (significant amounts) with Sasan receiving approximately $600,000.00 commission. He says that with the new town plan the property will [stack] up however he only wants to receive $12 million so he can put that money into the Brisbane project. I suggested to him that if the project stacked up at $24 million then he was doing himself a considerable disservice selling at $12 million. He confirmed that he only wanted to receive $12 million from this and he didn’t care as to the background arrangements through Sasan’s commissions.

(Emphasis added.)

39    On 3 February 2017, Mr Arcuri sent to Mr Doan his firm’s costs agreement, being the terms of his retainer, and disclosure notice in respect of the sale by APD to Bondbao. The scope of the work was described as “advice and conveyancing in respect of the sale and all matters associated therewith”.

40    On 7 February 2017, Mr Yan returned the Conjunction Confirmation document by email to Mr Rahmani, having signed it on behalf of Mint Property. Mr Rahmani then signed it on behalf of Maximo Developments and returned the fully executed document to Mr Yan by email the same day.

41    On 8 February 2017, on Mr Doan’s request, Mr Rahmani agreed to pay Mr Arcuri’s legal fees on the sale.

42    On 14 February 2017, APD and Bondbao executed a heads of agreement in respect of the sale of the Property. The heads of agreement provided for a period of due diligence and recorded the purchase price as $24 million inclusive of GST. (Ultimately, however, the amount paid at settlement was $24 million plus GST.)

March to July 2017

43    A file note of Mr Arcuri dated 29 March 2017 records some details of a telephone conversation between him and Mr Doan on that day. The last point recorded is: “I again said I do not understand his rationale re 12M when property is worth $20M.”

44    On 31 March 2017, there was an exchange of emails between Bondbao’s solicitors and Mr Arcuri in which some of the wording of the contract for sale was discussed. In particular, Mr Arcuri stated that his client “would like to reinsert the attached special conditions 1, 2 and 3 attached to our original draft contract”. The first of those special conditions became special condition 13 in the contract as signed.

45    There was a dispute at trial between Mr Doan and Mr Arcuri with regard to whether special condition 13 was included on Mr Doan’s instructions. The inclusion of special condition 13 was the foundation of one of the claims against Mr Arcuri at trial. However, that issue is not pursued on appeal.

46    By written contract dated 31 March 2017 (the Contract of Sale), APD agreed to sell the Property to Bondbao for $24 million inclusive of GST. (However, as has been noted, the amount paid at settlement was $24 million plus GST.) The seller’s agent was recorded as being Maximo Developments. The sale contract included special condition 13. Its terms are quoted at [156] of the Reasons.

47    On 12 May 2017, Mr Arcuri had a conference with Mr Doan and Mr Rahmani with regard to the sale. Mr Arcuri’s file note records the following:

[Mr Doan] then advised me that to avoid any uncertainty, APD is to receive from settlement $10.8 Million and will get a Tax Invoice from Sasan Rahmani for $1.2 GST which will give APD a net of $12 million

The rest is to be claimed by Sasan as commission and Sasan will be responsible for payment of commission to 2 Chinese Agents.

Ngat was happy with the deal as he said he only paid $2.5 million

I suggested to them that this is a matter that the ATO may look at given the huge commission payments – they say that it is a legitimate transaction.

48    It is recorded in a file note of Mr Arcuri that he and Mr Doan met on 1 June 2017 and discussed the sale of the Property. Mr Arcuri recorded that Mr Doan said that as he understood matters, $11.5 million was to be paid back to the Chinese agent who was going to distribute that money between the solicitor, the agent and the various other people including Maximo Developments. Mr Doan believed that Mr Rahmani would obtain a commission cheque of 1% from the Chinese agent. He said that he had been very good to Mr Rahmani and he repeated that all he wanted out of this deal was a net $12 million.

49    On 1 June 2017, Mr Arcuri sent a letter to APD referring to settlement of the Contract of Sale, which was expected on 29 June 2017, and dealing with matters connected with that. In particular, he said in the letter that he had received a tax invoice for the commission from Maximo Developments, which he enclosed with the letter. The invoice was for commission of $12 million plus GST, i.e., $13.2 million. That was in accordance with the 1 February 2017 email and therefore not in accordance with the commission clause in the 5 November 2016 Agency Contract.

50    Mr Arcuri then further advised as follows in the letter:

As the Commission is significant we advise that this matter is one that will definitely be reviewed by the Australian Tax Office and accordingly, you should ensure that all records and dealings in relation to this matter are retained by you to respond to any Australian Tax Office enquiries in the future.

51    On 29 June 2017, the Contract of Sale settled.

52    By letter dated 3 July 2017, Mr Arcuri enclosed the settlement statement and explained to Mr Doan that a total of $13.2 million was paid to Maximo Developments “in accordance with your authority” being $12 million plus GST. Attached was Maximo Developments’ invoice to that effect. Mr Arcuri also noted that the sum of $2,400,009.40 was added to the sale price for payment of the GST on the supply and that APD had provided a tax invoice to the buyer to that effect.

53    The result is that, despite the Contract of Sale recording that the price was $24 million inclusive of GST, the price actually paid was $24 million plus GST (plus $9.40, which can be put to one side). At the hearing of the appeal, in response to a question from the Court, senior counsel for APD confirmed that the following is an accurate summary of what occurred:

(a)    The actual sale price at completion was $24 million plus GST ($26.4 million including GST).

(b)    The actual commission charged by Maximo Developments to APD was $12 million plus GST ($13.2 million including GST).

(c)    Thus APD received $26.4 million ($24 million plus GST), but then paid commission of $13.2 million ($12 million plus GST).

(d)    This left APD with $13.2 million in cash, a GST liability to the Australian Taxation Office of $2.4 million, and an input tax credit of $1.2 million for GST paid to Maximo Developments.

(e)    As the input tax credit offsets part of the GST received, APD was left with $13.2 million in cash, and a net liability for GST of $1.2 million ($2.4 million – $1.2 million).

(f)    After meeting the net liability for GST, APD received a net $12 million.

54    On 4 July 2017, Maximo Developments paid to Mint Property $5.5 million including GST in payment of Mint Property’s invoice for its commission.

55    Maximo Developments paid part of the proceeds that it received into accounts nominated by Mr Doan in repayment of an independent prior debt as between Mr Rahmani and Mr Doan. The total paid was $652,116, being the principal debt plus interest.

The period after July 2017

56    By letter of demand dated 12 September 2017, Mr and Mrs Hsiung’s solicitors alleged that APD had acted in breach of several provisions of the joint venture deed between APD and Mr and Mrs Hsiung as trustees for a family trust by making representations that the sale price of the Property had been $12 million. The demand was for APD to pay Mr and Mrs Hsiung $614,994 (being 5% of the sale price of $24 million less the amount already paid based on a sale price of $12 million) plus an amount equal to 5% of the forfeited option fee paid by the previous prospective purchaser in May 2016 and a full accounting of the proceeds of the sale in 2017 and all prior attempted sales of the Property.

57    Mr Arcuri responded on behalf of APD and the Doans by letter dated 15 September 2017 saying that the price that was received by APD was only $12 million.

58    On 13 November 2017, new solicitors for Mr and Ms Hsiung wrote a further letter of demand. Mr Arcuri replied the same day, reiterating that APD had only received $12 million and citing “confidentiality issues” as the reason why APD was not able to convey the gross selling price. The letter denied allegations of fraud and stated that APD had notified the Australian Taxation Office of the transaction.

59    The claim made by Mr and Mrs Hsiung could not be resolved. In late December 2017, they instituted a proceeding in the Supreme Court of New South Wales against APD, Mr Doan and Mrs Doan (the Supreme Court Proceeding) to recover the amount by which they had allegedly been underpaid. The proceeding ultimately settled.

The insurance policy

60    It will be convenient to set out the details of the policy of insurance later in these reasons, in the context of considering the second appeal.

The Reasons

Credibility

61    The primary judge considered the credibility of the witnesses (Mr Doan, Mr Rahmani and Mr Arcuri) at [16]-[19] of the Reasons. In relation to Mr Doan, the primary judge expressed the view that he was “generally an unimpressive witness”. The primary judge stated that, in general terms, he was hesitant to accept Mr Doan’s version of contested events save to the extent that they were corroborated by contemporaneous documents, other witnesses or the probabilities. The primary judge considered Mr Rahmani to be a more impressive witness, but noted that his credit was open to some question. He therefore approached his evidence with appropriate caution. The primary judge considered Mr Arcuri to be an impressive witness.

Whether the alleged representations were made

62    The alleged representations were that, prior to concluding the 5 November 2016 Agency Contract, Mr Rahmani on behalf of Maximo Developments orally represented the following to APD:

(a)    Maximo Developments knew of a prospective purchaser who was prepared to pay $12 million for the Property;

(b)    the prospective purchaser had been introduced to Maximo Developments by a conjunction agent;

(c)    the prospective purchaser was a corporation controlled by residents of China, who wished to transfer funds from that country to Australia;

(d)    Maximo Developments and the conjunction agent would together charge a commission of 2% (plus GST) on the ultimate sale price of the Property;

(e)    in order to facilitate the prospective purchaser’s desire to transfer funds into Australia, the purchase price payable by it for the Property would be notionally increased very substantially, perhaps to $20 million or even more;

(f)    the notional increase in the purchase price would, in any event, be refunded to the purchaser; and

(g)    in order to enable the arrangement so outlined to be carried into effect the commission payable to Maximo Developments under the agency contract would be expressed as was subsequently recorded in the 5 November 2016 Agency Contract.

63    The primary judge considered whether the alleged representations were made in some detail. Although this part of the Reasons is not challenged on appeal, it is nevertheless important to summarise it in order to provide context for the other parts of the Reasons.

64    The primary judge considered Mr Doan’s versions of the representations at [66]-[85] of the Reasons. As set out in that section of the Reasons, Mr Doan had given a number of accounts of the conversation (or conversations), including in his affidavit material in the Supreme Court Proceeding. Having set out Mr Doan’s first five accounts of the conversation, the primary judge noted at [77] that “none of the accounts said that the purchase price would be artificially inflated in order to pay money back to the buyer”. Further, as noted by the primary judge at [78], in several of the accounts (including the original statement of claim filed in the proceeding at first instance) it was said that if Maximo Developments and the conjunction agent received anything above $12 million, Mr Doan did not want to know about it and that could be their commission. The primary judge set out, at [79], the key passage from Mr Doan’s affidavit, being his evidence in chief in the proceeding before the primary judge. The primary judge observed, at [80], that the “significant difference” between that version and the previous versions was that in this one, for the first time, Mr Doan said that he had been told by Mr Rahmani that Maximo Developments and the conjunction agent would only be getting a commission of 2.2% on the purchase price and that the rest would be going back to the buyer. At [85], the primary judge observed that the “materially different” versions of the critical conversation given by Mr Doan made it difficult to accept the version that he ultimately relied on.

65    The primary judge considered Mr Rahmani’s version of the alleged representations at [86]-[97] of the Reasons.

66    Mr Arcuri’s evidence in relation to the alleged representations was considered at [98]-[101].

67    Ultimately, the primary judge rejected Mr Doan’s version of events, and found that Mr Rahmani’s version was established: see the Reasons at [102]-[121]. The primary judge provided five reasons for rejecting Mr Doan’s evidence. It is sufficient for present purposes to set out the first of these reasons:

103    First, there are Mr Doan’s different versions of the material conversations. The first five versions given by Mr Doan do not mention Mr Rahmani having said that most of the commission was to be paid back to the buyer, or that the price was artificially inflated for that purpose. Moreover, as observed above (at [78]), the original version of the statement of claim and several of the earlier versions given by Mr Doan alleged that Mr Doan did not want to know about what Maximo and the conjunction agent achieved above $12 million and that that could be their commission. That asserted position is incompatible with the case ultimately sought to be run which was not only that Mr Rahmani told Mr Doan that the buyer would be paid most of any amount of the purchase price greater than $12 million, but that Mr Doan relied on that.

104    The most pertinent conflict between the different versions is between the version given on oath by Mr Doan in his affidavit in the Supreme Court proceeding and his affidavit in this proceeding. In the Supreme Court, Mr Doan said that Mr Rahmani had said, “Don’t worry, you will get your $12 million. The rest is commission for Century 21 GC [i.e., Maximo] and the conjuncting agent.” In this Court, Mr Doan reported the relevant conversation in exactly the same way save that he said that Mr Rahmani had said, “Don’t worry, you will get your $12 million. Most of the second $12 million will go back to the buyer. The buyer is using this transaction to transfer funds from overseas to Australia. Century 21 GC and the conjuncting agent will only be getting 2.2% of the total sale price of $24 million.” Those two versions are irreconcilable yet they were both given on oath by Mr Doan.

105    Moreover, Mr Doan gave evidence in re-examination in this Court that before he swore the Supreme Court affidavit he went through it and that he was happy with its contents.

106    There is a further consideration. In his Supreme Court affidavit Mr Doan gave evidence that he informed his wife that “Sasan told me that the purchase price for the Land was $12 million and that the rest was commission for Century 21 and the conjuncting agent.” In this Court Mr Doan said that he was truthful to his wife and that he told her the whole story. Mrs Doan also swore an affidavit in the Supreme Court proceeding. In it she said that Mr Doan had told her that there was an offer from a Chinese buyer for the land for $12 million and “that if Sasan and the Chinese real estate agent sold the Land for more than $12 million, then the amount above $12 million was their commission.” Also, at the time of signing the heads of agreement which reflected the purchase price of $24 million, Mrs Doan said that Mr Doan told her that APD would only be getting $12 million and that “the rest of the purchase price was commission for Sasan and the Chinese real estate agent.”

107    Not only are those versions incompatible with the version that APD sues on, but Mrs Doan is the director of APD and she did not give evidence. I infer that that is because her evidence would not have assisted APD’s case. Indeed, if she gave evidence in this Court that was consistent with what she told the Supreme Court, then APD’s case would fail.

APD’s misleading or deceptive conduct case against Maximo Developments

68    The primary judge provided responses to a series of questions that had been agreed between APD, Maximo Developments, Mr and Mrs Rahmani and Mr Arcuri (see the Reasons at [14]). Question 1 was in substance: did the conversation occur as alleged by APD? The primary judge, at [122], answered “no” to this question. This flowed from his factual finding or conclusion referred to above. Questions 2 to 5 related to APD’s case based on s 18 of the Australian Consumer Law. The primary judge stated, at [123], that, given the answer to question 1, questions 2 to 5 fell away.

APD’s unconscionability case against Maximo Developments

69    Questions 6 to 8 related to APD’s unconscionability case under s 21 of the Australian Consumer Law. The primary judge stated, at [126], that the unconscionability case rested entirely on the disputed representations, which were dealt with, and rejected, in answer to question 1. It followed that the unconscionability case failed.

APD’s fiduciary duty case against Maximo Developments

70    Questions 9 to 13 related to APD’s fiduciary duty case against Maximo Developments. These questions were as follows:

(9)    Was Maximo, as the agent of APD for the purpose of procuring a sale of the property after 21 July 2015, under a fiduciary duty throughout its dealings with APD in relation to that sale, to act in good faith and in APD’s interests, preferring those interests over its own interests?

(10)    If the answer to question 9 is “yes”, did Maximo act in breach of its fiduciary duty to APD by requesting APD to enter into the November agency contract?

(11)    If the answer to question 9 is “yes”, did Maximo also act in breach of its fiduciary duty by rendering the invoice for $13,200,000 to APD on 30 June 2017 and by obtaining payment of that invoice?

(12)    If the answer to each of questions 9, 10 and 11 is “yes”, did APD suffer loss and damage in consequence of Maximo’s breach of fiduciary duty and, if so, in what sum?

(13)    If the answer to questions 9, 10, 11 and 12 is yes, were Mr and Mrs Rahmani knowingly concerned in Maximo’s breach of fiduciary duty contrary to the second limb of the rule in Barnes v Addy (1874) LR 9 Ch App 244 at 251-252 and, as such, liable to pay equitable damages in the sum stated in answer to question 12?

71    The primary judge dealt with this case at [127]-[133] of the Reasons. His Honour stated that APD pleaded that, by virtue of the execution of the agency contract, Maximo Developments was constituted the agent of APD for the purpose of procuring a sale of the Property and as such assumed a fiduciary duty throughout dealings with APD to act in good faith and in its interests, at all times preferring APD’s interests over its own interests. The primary judge noted that APD then pleaded that a fair and reasonable commission payable to an agent effecting a sale of the Property for $24 million was not more than $528,000, being 2.2% of $24 million, and that by reason of those facts, by its conduct in requesting and procuring APD to enter into the agency contract, in rendering the invoice for its commission of $13.2 million and in receiving payment of that invoice, Maximo Developments acted in breach of its fiduciary duty to APD. It was also pleaded that Mr and Mrs Rahmani were knowingly concerned in Maximo Developments’ breach of its fiduciary duty to APD.

72    The primary judge held, at [133], that APD’s fiduciary duty case against Maximo Developments failed. His Honour’s reasons were as follows:

129    In Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; 156 CLR 41, Mason J (at 97) explained that where a contractual and fiduciary relationship coexists between the same parties, it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction. That passage was adopted in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [91]. See also Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd [2016] HCA 49; 261 CLR 203 at [78].

130    Therefore, even accepting that there was a fiduciary relationship between APD and Maximo such that Maximo owed fiduciary duties to APD, those duties were subject to the terms of any agreement between the parties. Critically in this case, the parties agreed a particular commission structure in their 5 November 2016 Form 6. That was very similar to previous structures adopted by them. In the absence of the misleading and deceptive conduct that APD alleges against Maximo, and the fact that Mr Doan repeatedly told Mr Rahmani that he had no interest in what happened to any amount over and above $12 million for APD and that it could be the agents’ commission, there is no breach of any duty by Maximo to APD in signing a commission structure in that form with APD.

131    Moreover, the email exchange between the parties on 1 February 2017 in which Mr Rahmani informed Mr Doan that the contract price was going to be $24 million and that Maximo intended to invoice APD for $12 million plus $1.2 million … GST and asked Mr Doan to confirm, and Mr Doan confirmed with “All agreed, OK”, discharged any duty that Maximo owed APD. That is because Mr Rahmani played open cards with Mr Doan, and Mr Doan agreed. The parties were free to agree what they chose to agree, and in the absence of some other unconscionable conduct, there is no breach of duty. On the facts as I have found them, Mr Rahmani had Mr Doan’s fully informed consent to charge the commission that he charged which is a complete answer to the breach of fiduciary duty claim. See Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 at 393; Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963; 160 FCR 35 at [293]-[296].

132    The position is confirmed by the fact that Mr Doan expressly authorised Mr Arcuri to pay to Maximo the sum of $12 million plus GST as commission on the sale, even after Mr Arcuri had on several occasions pointed out to Mr Doan that he was doing himself and APD a disservice by paying so much commission on the sale. See [53] above.

Questions 14 and 15 and Maximo Developments’ waiver and estoppel defences

73    Questions 14 and 15 related to the exchange of emails on 1 February 2017. These questions were:

(14)    Did the email exchange between Mr Rahmani and Mr Doan on 1 February 2017 effect a variation of the November agency contract so as to entitle Maximo to claim a commission of $12 million plus GST upon the sale of the property to Bondbao?

(15)    If the answer to question 14 is “no”, did the invoice for $13,200,000 rendered by Maximo to APD on 29 June 2017 exceed the commission payable according to the term of the November agency contract concerning the payment of commission by $1,293,160?

74    In the course of considering these questions, at [134]-[146], the primary judge also considered Maximo Developments’ waiver and estoppel defences.

75    The primary judge explained, at [134], that the issues arose in circumstances where:

(a)    the commission clause in the 5 November 2016 Agency Contract specified that “the commission including GST payable” was 2.2% of $12,245,000 plus 99% of the difference between the contract price and $12,245,000; whereas

(b)    the commission actually paid was $13.2 million, being $1,293,160 more than what the commission clause in the 5 November 2016 Agency Contract provided on a price of $24 million including GST.

76    The primary judge noted, at [135]-[136], that Maximo Developments did not plead that the exchange of emails between Mr Rahmani and Mr Doan on 1 February 2017 varied the 5 November 2016 Agency Contract. Rather, Maximo Developments pleaded that APD waived and abandoned its rights to rely upon the commission payable under the 5 November 2016 Agency Contract by the exchange of emails and by never thereafter querying the commission or claiming that Maximo Developments had been overpaid commission until the third amended statement of claim. Maximo Developments also pleaded, in the alternative, that APD was estopped by its representation in Mr Doan’s email of 1 February 2017 from asserting any right that the commission was payable other than in accordance with that email. Maximo Developments pleaded that it relied on the representation in Mr Doan’s email by agreeing a 60/40 split of the total commission payable on the sale between it and Mint Property, respectively, and on that basis then agreed to pay Mint Property $5.2 million, being almost 40% of $12 million plus GST.

77    The primary judge held, at [137], that the email exchange on 1 February 2017 was “unequivocal” and admitted of no confusion. His Honour found that Mr Doan was not operating under any mistake or misapprehension in sending his email. His Honour held that, in the circumstances, APD had waived any reliance on holding Maximo Developments to the terms of the commission clause in the 5 November 2016 Agency Contract.

78    The primary judge also held that Maximo Developments’ estoppel defence was established: at [144]. His Honour’s reasons were as follows:

138    Insofar as the estoppel defence is concerned, Mr Rahmani’s evidence was that in about October 2016 he had a discussion with Mr Yan of Mint Property about selling the Lake Street property. Mr Yan had a potential purchaser for the property and he and Mr Rahmani agreed to work together on the sale and to split any commission 60/40 in Maximo’s favour.

139    On 1 February 2017, Mr Yan called Mr Rahmani and said, for the first time, that the purchaser was prepared to pay $24 million. On the basis of their agreement with regard to splitting commission, Mint Property’s share of a total commission of $12 million plus GST would then be $4.8 million plus GST. Mr Yan asked, and Mr Rahmani agreed, to round that up so that Mint Property’s share of commission would be $5 million plus GST, i.e., $5.5 million. It was on that basis that Mr Rahmani completed, but did not sign, the Conjunction Confirmation document and sent it to Mr Yan reflecting a commission payable by Maximo to Mint Property of $5 million plus GST.

140    Mr Rahmani’s evidence was that if Mr Doan had not agreed to the commission payable as set out in the 1 February 2017 email, he would immediately have withdrawn the Conjunction Confirmation document that he had sent to Mr Yan earlier that day, and he would have prepared a different document calculating a lower commission payable with reference to the 60/40 agreement, and that he would have paid Mint Property in accordance with that lower commission.

141    In cross-examination by APD’s senior counsel, Mr Rahmani’s attention was drawn to his affidavit evidence where he had said that at any time between 1 February 2017 when the commission was agreed and 31 March 2017 when the contract for sale was signed, he would have been prepared to renegotiate the proposed commission with APD if Mr Doan had asked him to. He was asked whether he adhered to that evidence, to which he said “yes”. He then agreed that if Mr Doan had expressed some displeasure about the proposed commission arrangement at any time in that period he would have been prepared to renegotiate the commission between APD and Maximo and he would have been at liberty to renegotiate how much of that commission would have to be paid to Mint Property.

142    It is submitted on behalf of APD that no reliance on the representation by Mr Doan in the email exchange of 1 February 2017 to the detriment of Maximo was established because prior to that exchange, Mr Rahmani had agreed with Mr Yan that Maximo would pay Mint Property commission of $5 million plus GST. That was at a time prior to Mr Rahmani knowing that the commission agreement between APD and Maximo was anything other than what was set out in the 5 November 2016 Form 6. Therefore, so it is submitted, Mr Rahmani could not have relied on the representation of Mr Doan and it is not to the point that the Conjunction Confirmation document was not in fact executed until 7 February 2017.

143    In my assessment that submission overlooks that the agreement in the Conjunction Confirmation document which followed the discussion between Mr Rahmani and Mr Yan recounted above is premised on the total commission payable on the sale being $12 million plus GST. It is not apparent from the evidence why at that stage, which is to say prior to the email exchange between Mr Rahmani and Mr Doan later that day, the expectation was that that would be the commission, but it does not particularly matter. The point is that that was Mr Rahmani’s expectation, and that expectation was then confirmed, unequivocally, in the email exchange. I accept that had Mr Doan not confirmed that the commission payable would be $12 million plus GST, but had rather held Mr Rahmani to the commission structure in the 5 November 2016 Form 6 agreement, or agreed a different commission structure, then Mr Rahmani would have renegotiated the terms of the Conjunction Confirmation with Mr Yan so as to reflect their earlier 60/40 split agreement. Since he had not signed the Conjunction Confirmation document on behalf of Maximo, it was open to him to do that.

144    It does not particularly matter that Mr Rahmani was prepared to renegotiate the commission structure with Mr Doan. That much is implied by Mr Rahmani’s email on 1 February 2017 seeking Mr Doan’s confirmation of a commission structure different to what they had agreed in the 5 November 2016 Form 6. The material point is that Mr Rahmani and Mr Yan had a 60/40 agreement which formed the basis of what they then agreed in the Conjunction Confirmation document, based on commission being paid by APD as confirmed on 1 February 2017. Mr Rahmani relied on that to the detriment of Maximo in fixing the deal with Mr Yan which might otherwise have been different. Maximo’s estoppel defence is therefore established.

APD’s claim of breach of duty case against Mr Arcuri

79    Questions 16 and 17 related to APD’s breach of duty case against Mr Arcuri and were as follows:

(16)    Was it a term of APD’s retainer of Mr Arcuri to act as its solicitor in relation to the sale of the property that he would provide all such advice to APD in relation to that sale as was appropriate to safeguard its interests and to ensure that the sale contract did not impose any obligation upon it as vendor to which it was not otherwise subject or, alternatively, was Mr Arcuri subject to a duty, under the general law, to act in that manner?

(17)    Was Mr Arcuri bound by his retainer to provide advice to APD on the enforceability of the November agency contract and did he fail to provide any such advice?

80    The primary judge considered these questions at [147]-[154] of the Reasons. The primary judge outlined APD’s pleadings at [148]-[151]. In particular, APD alleged that, in breach of the retainer, Mr Arcuri failed and neglected to advise APD that the commission clause (in the 5 November 2016 Agency Contract) was of no force or effect in light of the facts stated in paragraphs 17 and 18 of the third amended statement of claim, that is, the allegations that Maximo Developments and Mr and Mrs Rahmani had engaged in unconscionable conduct contrary to s 21 of the Australian Consumer Law. Mr Arcuri denied the underlying conduct by Maximo Developments and Mr and Mrs Rahmani, or that he had been asked to advise in relation to the commission clause, and alleged that he had, in any event, raised concerns with regard to the commission clause with Mr Doan on many occasions.

81    The primary judge held that this claim by APD against Mr Arcuri failed: at [154]. His Honour’s reasons were as follows:

152    In view of my conclusions with regard to the conduct alleged against the Maximo parties, this claim against Mr Arcuri must fail. Simply put, since the commission clause did not suffer from the defect alleged by APD, Mr Arcuri could not have been obliged to advise APD that it did suffer from that [defect].

153    In any event, it is clear that Mr Arcuri was only retained by APD on or about 1 February 2017, some four months after the commission clause had been agreed to. Mr Arcuri did, however, know of Mr Doan’s agreement to the commission as set out in the email exchange of 1 February 2017, and he on several occasions raised with Mr Doan his view that Mr Doan was selling himself short by agreeing to pay Maximo such a substantial commission. In terms that were entirely plausible to Mr Arcuri given his long relationship with Mr Doan and his knowledge of the way in which he was inclined to operate, Mr Doan explained to Mr Arcuri why he was happy with that arrangement. At no point did Mr Arcuri know that Mr Doan’s version was that Mr Rahmani had told him that a substantial part of the commission would be paid back to the buyer. Nor did Mr Arcuri know that if that representation had been made it was untrue.

82    The primary judge considered question 18, which related to the inclusion of special condition 13 in the 5 November 2016 Agency Contract, at [155]-[161]. The primary judge rejected APD’s claim based on that special condition. There is no challenge to this part of the Reasons.

83    Question 19 related to whether APD suffered loss as a result any breaches of retainer by Mr Arcuri. Since the claims against Mr Arcuri failed, this question did not arise: see the Reasons at [162].

84    Question 20 was whether Mr Arcuri was knowingly concerned in Maximo Developments’ breach of fiduciary duty. In light of the primary judge’s conclusion that Maximo Developments had not breached any fiduciary duties, this claim failed: see the Reasons at [163].

85    Question 21 related to Mr Arcuri’s payment of $13.2 million to Maximo Developments. The question was:

(21)    By paying $13,200,000 to Maximo out of his trust account on 29 June 2017, did Mr Arcuri act in breach of the trust referred to in paragraph 32 of the third amended statement of claim?

86    The primary judge noted, at [164], that this claim against Mr Arcuri related to the claim in questions 14 and 15 because it was, in essence, that APD was not indebted to Maximo Developments in the sum of $13.2 million because its true indebtedness was to be calculated with reference to the commission clause in the 5 November 2016 Agency Contract and not with reference to the 1 February 2017 email. The primary judge rejected this claim for the following reasons:

165    To succeed in this claim APD would have to establish that it had given a copy of the 5 November 2016 Form 6 to Mr Arcuri and that, notwithstanding that, Mr Arcuri was not justified in paying out Maximo in accordance with the 1 February 2017 emails, subsequent confirmation and Maximo’s invoice that he sent to APD on 1 June 2017 and in respect of which he received no countervailing instruction from Mr Doan.

166    There is nothing to support Mr Doan’s claim that he gave Mr Arcuri a copy of the 5 November 2016 Form 6 prior to settlement. Mr Arcuri denies that claim. I accept that denial and I reject Mr Doan’s claim to the contrary. Mr Arcuri was entirely justified in relying on the email exchange of 1 February 2017, Mr Doan’s explanations to Mr Arcuri from time to time that Maximo would be paid commission of $12 million plus GST, and on Mr Doan’s silence in the face of Mr Arcuri’s letter of 1 June 2017 which enclosed Maximo’s commission invoice, implied that commission would be paid in accordance with that invoice and invited any queries. This claim therefore fails.

The cross-claim

87    It will be convenient to set out the primary judge’s reasoning in relation to the cross-claim brought by the Maximo Parties against Hamilton in the context of considering the second appeal.

Costs

88    The primary judge gave the parties the opportunity to provide submissions on costs and the form of orders to give effect to the Reasons. His Honour dealt with these matters in the Costs Reasons.

89    Insofar as the Maximo Parties’ costs (in relation to APD’s claims) were concerned, APD accepted that it would be ordered to pay those costs on a party and party basis. However, in reliance on an offer to compromise the principal proceeding served on 11 March 2020, the Maximo Parties sought an order for indemnity costs in respect of costs incurred after 11.00 am on 13 March 2020. The applicant, APD, opposed that on the basis that the offer was not a genuine compromise and that its refusal of the offer was therefore not unreasonable. The primary judge held, at [12], that the Maximo Parties were entitled to their costs on an indemnity basis after 11.00 am on 13 March 2020.

Orders

90    On 25 June 2021 (the date of delivery of the Reasons), the primary judge made orders including:

1.    The proceeding against [Maximo Developments and Mr and Mrs Rahmani] be dismissed.

2.    The proceeding against [Mr Arcuri] be dismissed.

91    On 27 July 2021 (the date of delivery of the Costs Reasons), the primary judge made the following orders:

1.    [APD] pay the [Maximo Parties’] costs on a party and party basis up until 11:00 am on 13 March 2020 and on an indemnity basis thereafter.

2.    [APD] pay [Mr Arcuri’s] costs of the proceeding.

3.    [Hamilton] pay the [Maximo Parties’] costs of the cross-claim on a party and party basis up until 11:00 am on 13 March 2020 and on an indemnity basis thereafter.

4.    [Hamilton] indemnify the [Maximo Parties] for their defence costs under the policy of insurance in defending the proceeding brought by [APD] against the [Maximo Parties].

The first appeal

The supplementary notice of appeal and notice of contention

92    APD appeals from parts of the judgment of the primary judge dated 25 June 2021, namely the parts in which the primary judge dismissed APD’s claims that: (a) Maximo Developments acted in breach of fiduciary duty to APD; (b) Mr and Mrs Rahmani were knowingly concerned in Maximo Developments’ breaches of fiduciary duty; (c) Maximo Developments was in breach of the 5 November 2016 Agency Contract; and (d) Mr Arcuri acted in breach of trust by paying $13.2 million to Maximo Developments on or immediately after 29 June 2017. APD also appeals from paragraphs 1 and 2 of the orders made on 25 June 2021 (dismissing APD’s case against Maximo Developments, Mr and Mrs Rahmani, and Mr Arcuri). Further, APD appeals from part of the judgment delivered on 27 July 2021, namely the part in which the primary judge ordered APD to pay the Maximo Parties’ costs on an indemnity basis after 11.00 am on 13 March 2020, and from the order giving effect to the relevant part of the earlier judgment.

93    Notably, APD does not appeal from the parts of the judgment of the primary judge dated 25 June 2021 in which the primary judge: (a) rejected Mr Doan’s version of events in relation to the conversation or conversations with Mr Rahmani in the lead-up to the 5 November 2016 Agency Contract; (b) rejected APD’s misleading or deceptive conduct case against Maximo Developments; and (c) rejected APD’s unconscionability case against Maximo Developments.

94    APD’s grounds of appeal are set out in its supplementary notice of appeal filed on 14 February 2022. Grounds 1, 1A and 2-12 raise issues relating to Maximo Developments. Grounds 13 and 14 raises issues relating to Mr Arcuri. Grounds 15 and 16 relate to costs.

95    The Maximo Parties have filed a notice of contention, relying on a single ground. The Maximo Parties contend that, in the event that the Court finds that the primary judge erred in rejecting APD’s claim that Maximo Developments breached a fiduciary duty it owed to APD, the primary judge’s order dismissing APD’s claim can nonetheless be upheld on the alternative basis that APD failed to establish that that breach of duty caused it any loss.

Issues relating to Maximo Developments and Mr and Mrs Rahmani

Grounds 1 and 1A

96    These grounds are as follows:

1.    The primary judge erred in rejecting [APD’s] claim against [Maximo Developments] for equitable damages for breach of fiduciary duty by disregarding the following facts:

(a)    that when [Maximo Developments] procured [APD] to enter into the agency contract of 5 November 2016 with it, the relationship of principal and agent between [APD] and [Maximo Developments] was in existence by reason of their entry into an agency contract dated 12 October 2016 which remained current and in force on 5 November 2016; and

(b)    that the commission payable by [APD] to [Maximo Developments] under the agency contract of 5 November 2016 upon the latter’s procurement of a sale of [APD’s] property (which occurred on 31 March 2017 when the appellant agreed to sell that property for $24 million to [Bondbao] Pty Ltd, a party introduced by [Maximo Developments] to [APD]) was $11,906,840, which exceeded the commission which [would] have been payable under the agency contract of 12 October 2016 by $4,118,840.

1A.    The primary judge erred in failing to find that [APD] suffered loss in the sum of $5,412,000 or alternatively, $4,188,840 in consequence of [Maximo Developments’] breach of fiduciary duty.

97    APD’s submissions in support of these grounds commence with the proposition that, from the time when APD and Maximo Developments entered into the 12 October 2016 Agency Contract, Maximo Developments was subject to a fiduciary duty to act in APD’s interests and not to profit improperly by reason of the agency: Scott v Davis (2000) 204 CLR 333 at [229] per Gummow J; Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies (5th ed, LexisNexis Butterworths, 2015), [5-215].

98    APD submits that, when it entered into the 5 November 2016 Agency Agreement, Mr Doan was labouring under the misapprehension that the Property was worth no more than $12 million and any excess of the purchase price above $12 million was to find its way back to the buyer via the commission clause.

99    APD submits that Maximo Developments’ conduct in “prevailing upon” APD to enter into the 5 November 2016 Agency Contract while the 12 October 2016 Agency Contract was still on foot amounted to a breach of its fiduciary duty to APD.

100    APD submits that Maximo Developments requested APD to enter into the 5 November 2016 Agency Contract for the “singular purpose” of obtaining a substantially greater commission in the event that the Property sold for any amount in excess of $12,245,000 (compared with the commission that would have been payable by APD under the 12 October 2016 Agency Contract).

101    APD submits that, on the sale price of $24 million, the commission payable under the 5 November 2016 Agency Contract was $11,906,840 (including GST) which exceeded the amount which would have been payable under the 12 October 2016 Agency Contract ($7,788,000 including GST) by $4,118,840. (As we have noted, while $24 million was the price specified in the Contract of Sale, the amount actually paid at settlement was $24 million plus GST, that is, $26.4 million.)

102    APD submits that the compelling inference to be drawn from the statements made by Mr Rahmani in paragraph 46 of his affidavit of 2 October 2019, and from his preparation of the brochure to which he referred in his second affidavit of 7 May 2020, is that between 12 October 2016 and 5 November 2016 he formed the view (doubtless, at least in part, as a result of his discussions with the conjunction agent) that there was a strong likelihood that the prospective purchaser would be persuaded to pay a price for the Property far greater than the $12 million which Mr Doan considered it to be worth (as indeed proved to be so). APD submits that it is clear from Mr Rahmani’s evidence that he did not tell Mr Doan that he had formed that view before he requested APD to commit itself to the 5 November 2016 Agency Contract; nor did he tell him that his purpose in so doing was to ensure that the commission payable by APD to Maximo Developments under that contract would be substantially greater than the commission that would have been payable under the 12 October 2016 Agency Contract.

103    In the course of oral submissions, senior counsel for APD identified the following three matters, in particular, as matters that were not disclosed by Mr Rahmani to Mr Doan before the execution of the 5 November 2016 Agency Contract:

(a)    that he (Mr Rahmani) had formed the view that it was at least possible, if not probable, that the ultimate buyer, Bondbao, would agree to pay a price far greater than $12 million for the Property;

(b)    that the sole purpose for Maximo Developments’ request that APD enter the contract (that is, the 5 November 2016 Agency Contract) was that, if the Property did sell for an amount between $12,245,000 and $16,500,000, the commission would be increased by 99% of the difference; and

(c)    that Maximo Developments had an arrangement in principle with Mint Property that the commission would be split between them – 60% to Maximo Developments and 40% to Mint Property.

104    Senior counsel for APD also submitted that if any of those disclosures had been made, Mr Doan’s misapprehension (namely, that if the purchase price exceeded $12 million, the excess would be refunded to the buyer via the commission clause) would have been “immediately exploded”.

105    APD submits that it may fairly be inferred that Mr Rahmani “deliberately refrained” from telling Mr Doan about these matters to enable Maximo Developments to “exploit” Mr Doan’s conviction that the Property was worth no more than $12 million.

106    APD submits that Maximo Developments did not provide APD with full information about its rights and all of the material facts and circumstances of the case (relying on Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 at 393, cited in Mualim v Dzelme (2021) 157 ACSR 367 at [113]) before or at the time of APD’s entry into the 5 November 2016 Agency Contract.

107    APD submits, in its supplementary submissions in relation to ground 1A, that Maximo Developments acted in breach of the fiduciary duty to which it became subject upon the making of the 12 October 2016 Agency Contract:

(a)    by prevailing upon APD to enter into the 5 November 2016 Agency Contract; and

(b)    by obtaining payment of commission totalling $13.2 million following the completion of the sale of the Property, such commission exceeding that which would have been payable under the 12 October 2016 Agency Contract by $5,412,000.

108    APD submits that it is not in dispute that Maximo Developments acted as stated in paragraphs (a) and (b) above. APD therefore submits that Maximo Developments’ breach of fiduciary duty caused APD to suffer loss (contrary to the proposition expressed in the Maximo Parties’ notice of contention).

109    In our view, the fundamental difficulty with grounds 1 and 1A is that they represent a new case on appeal. The case presented by APD in these grounds is a very different case from the case presented by APD at trial. Further, the circumstances are not such that it should be permitted to run a new case on appeal.

110    The relevant principles are well established. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ stated at 7-8:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd; Bloemen v The Commonwealth.

(Footnotes omitted.)

111    The plurality in that case approved the following passage from the judgment of Mason J (with whom the other members of the Court agreed) in O’Brien v Komesaroff (1982) 150 CLR 310 at 319:

In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co v Kavanagh; Suttor v Gundowda Pty Ltd; Green v Sommerville). However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants’ case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.

(Footnotes omitted.)

112    These principles have been applied in many cases. See, eg, Hsiao v Fazarri (2020) 270 CLR 588 at [53] per Kiefel CJ, Bell and Keane JJ.

113    The thrust of APD’s case at trial was that Mr Rahmani represented to Mr Doan that the bulk of the “commission” that would be paid by APD to Maximo Developments would in fact go back to the buyer, as part of a mechanism to avoid Chinese foreign exchange controls, and that that representation was false. The representations were said to have been made in a conversation between Mr Rahmani and Mr Doan in the lead-up to the 5 November 2016 Agency Contract. It was in the context of those allegations that it was alleged that Maximo Developments breached fiduciary duties it owed to APD by procuring or requesting APD to enter into the 5 November 2016 Agency Contract and charging a commission that was more than a fair and reasonable commission.

114    APD’s pleading at trial was its third amended statement of claim. This focusses on the 5 November 2016 Agency Contract; it does not even refer expressly to the 12 October 2016 Agency Contract, which is the source of the fiduciary duties now relied upon by APD. Paragraph 9 of the pleading alleges that, in early November 2016, prior to the making of the 5 November 2016 Agency Contract, Mr Rahmani on behalf of Maximo Developments, made certain oral representations (broadly, to the effect that the bulk of the “commission” that would be paid by APD to Maximo Developments would in fact go back to the buyer, as part of a mechanism to avoid Chinese foreign exchange controls). Paragraph 9A alleges that the representations were untrue for reasons there set out. Paragraph 10 alleges that, induced by, and acting in reliance on, the representations, APD entered into the 5 November 2016 Agency Contract. Paragraph 12 alleges that, “by virtue of its execution of the agency contracts”, Maximo Developments was constituted the agent of APD for the purpose of procuring a sale of the Property and as such assumed a fiduciary duty throughout its dealings with APD to act in good faith and in its interests, at all times preferring APD’s interests over its own interests. This allegation refers to “agency contracts” in the plural, and thus may contain an implicit reference to the 12 October 2016 Agency Contract, even though it is not referred to expressly. Paragraph 14 alleges that none of the Maximo Parties, at any time prior to the making of the agency contract (a clear reference to the 5 November 2016 Agency Contract) informed APD that the representations stated in paragraph 9 were untrue. Paragraphs 15 to 18 contain allegations based on the Australian Consumer Law. Paragraphs 19-25, 27-30 and 34 relate to Mr Arcuri. Paragraphs 33, 35-36 are as follows:

33.    On 29 June 2017, [Maximo Developments] rendered an invoice to [APD] claiming payment of $13,200,000 being commission of $12,000,000 plus GST of $1,200,000, which claim exceeded the commission supposedly payable under the agency contract by $1,293,160.

…

35.    A fair and reasonable commission payable to an agent effecting a sale of the property for $24,000,000 is not more than $528,000, being 2.2% of the sale price inclusive of GST.

36.    By reason of the fact stated in the preceding paragraph, by its conduct in requesting [and] procuring [APD] to enter into the agency contracts, in rendering the invoice referred to in paragraph 33 above and in receiving payment of that invoice, [Maximo Developments] acted in breach of its fiduciary duty to [APD], being the fiduciary duty referred to in paragraph 12 above.

115    The reference in paragraph 33 to the “agency contract” is clearly a reference to the 5 November 2016 Agency Contract. Paragraph 36 refers to the “agency contracts”. Again, this may contain an implicit reference to the 12 October 2016 Agency Contract. In any event, it is apparent from the pleading that the breach of fiduciary duty case against Maximo Developments focussed on Maximo Developments procuring or requesting APD to enter into the 5 November 2016 Agency Contract in the context of the pleaded representations, and Maximo Developments charging a commission that was more than a fair and reasonable commission.

116    The case pleaded in the third amended statement of claim did not include contentions along the lines now advanced by APD. In particular, the pleading did not include allegations to the effect that: (a) upon entering into the 12 October 2016 Agency Contract, Maximo Developments came under fiduciary duties to APD (or what those duties relevantly comprised); (b) in the lead-up to the 5 November 2016 Agency Contract, Mr Rahmani knew certain facts or believed certain matters (and what those facts and matters were); (c) in the lead-up to the 5 November 2016 Agency Agreement, Maximo Developments failed to disclose those matters to APD; and (d) in prevailing upon (or requesting) APD to enter into the 5 November 2016 Agency Contract, which provided for a substantially higher commission compared with the 12 October 2016 Agency Contract, without disclosing those matters, Maximo Developments breached its fiduciary duties under the 12 October 2016 Agency Contract.

117    The way in which APD’s case was presented at trial can also be seen from the way in which the primary judge dealt with it in the Reasons. The primary judge dealt in detail with the issue of whether Mr Rahmani made the alleged representations to Mr Doan in the lead-up to the 5 November 2016 Agency Contract: see the Reasons at [66]-[120]. This issue was relevant for a number of claims brought by APD, including its fiduciary duty claim against Maximo Developments. The primary judge dealt specifically with APD’s fiduciary duty case against Maximo Developments at [127]-[133] of the Reasons, which have been summarised above. The primary judge did not deal with a case along the lines of that now presented on appeal.

118    There is no suggestion that the primary judge failed to deal with the case that was presented to him. In the course of the hearing of the appeal, we were not taken to any submissions (oral or in writing) made by APD to the primary judge along the lines of the case now presented on appeal.

119    In response to a question from the Court as to whether this case had been run below, senior counsel for APD stated that “APD’s contention that the parties’ entry into the 5 November 2016 contract involved Maximo [Developments] in a breach of its fiduciary duty was very much central to the case as pleaded and prosecuted at first instance. That said, however, I must frankly acknowledge that the allegations of the breach being reflected by [Mr] Rahmani’s failure to disclose his dealings with the conjunction agent in the latter half of October and the like were not expressly argued” (T19). Senior counsel for APD submitted that it was nonetheless open to APD to take that point on appeal, it being “essentially and ultimately a point of law arising from facts that are beyond dispute, and so within the qualification to the ruling in such cases as Coulton v Holcombe” (T20).

120    In our view, for the reasons given above, the case now presented by APD is very different from that presented below. While it may be accepted that APD’s fiduciary case at first instance involved a contention that entry into the 5 November 2016 Agency Contract involved Maximo Developments in a breach of fiduciary duty, the case was presented in a fundamentally different way. The case presented at trial focussed on the representations allegedly made by Mr Rahmani to Mr Doan in the lead-up to the 5 November 2016 Agency Contract (to the effect that the bulk of the “commission” that would be paid by APD to Maximo Developments would in fact go back to the buyer, as part of a mechanism to avoid Chinese foreign exchange controls); it was not presented on the basis that Mr Rahmani knew certain facts and believed certain matters and failed to disclose these to Mr Doan. Indeed, the case now presented on appeal is inconsistent with the case presented at trial. The case presented at trial involved the proposition that the Property was not worth more than $12 million, and the bulk of the excess in the purchase price above $12 million would go back to the buyer via the commission. In contrast, the case now presented involves the proposition that the Property was in fact worth more than $12 million, and Mr Rahmani failed to disclose his belief to this effect to Mr Doan.

121    Further, we do not accept the submission that the case that APD now seeks to present is essentially a point of law based on facts that are not in dispute. In our view, had the case been presented in that way, the evidence may well have been (indeed, is likely to have been) different. Had the case been run in that way, the following factual issues are likely to have been explored in the evidence: whether Mr Rahmani knew or believed the facts and matters highlighted by APD in its appeal submissions in the lead-up to the 5 November 2016 Agency Contract; whether Mr Rahmani disclosed those matters to Mr Doan in the lead-up to that contract; and issues of causation of loss. In our view, in the circumstances, it would be fundamentally unfair to the Maximo Parties to permit APD to run the new case on appeal.

122    For these reasons, we reject grounds 1 and 1A.

Ground 2

123    Ground 2 is as follows:

2.    The primary judge erred in finding that by sending an email to [APD’s] principal, Mr Doan, on 1 February 2017 in which he stated that [Maximo Developments] intended to charge a commission of $12 million plus $1.2 million in GST, [Mr Rahmani] made a full and true disclosure of all of the facts pertaining to its breach of fiduciary duty so as to exonerate it for liability for such breach when [Mr Rahmani], in that email, failed and neglected to inform [APD] of the following facts:

•    the commission payable under the contract of 5 November 2016, when calculated with reference to the sale price of $24 million, was $11,906,840, not $12,000,000;

•    the commission so payable was inclusive of GST;

•    the proposed charge of $1,200,000 (for GST) was entirely unjustified; and

•    the commission of $11,906,840 exceeded the commission which would have been payable under the agency contract of 12 October 2016 by $4,118,840.

124    In its written submissions, APD notes that the primary judge expressed the view at [131] that, by informing Mr Doan that Maximo Developments intended to invoice APD for $12 million plus GST of $1.2 million, Mr Rahmani had discharged any (fiduciary) duty that Maximo Developments owed to APD. APD notes that the primary judge observed: “The parties were free to agree what they chose to agree, and in the absence of some other unconscionable conduct, there is no breach of duty.” APD submits that, by making that observation the primary judge ignored the fact that the parties had been in a contractual relationship since 12 October 2016, by which Maximo Developments was subject to the fiduciary duty to which Gummow J referred in Scott v Davis at [229].

125    APD submits that, far from being a full and true disclosure of all of the facts referable to Maximo Developments’ breach of fiduciary duty so as to obtain exoneration by the party to whom that duty was owed, the statement by Mr Rahmani in the 1 February 2017 email was a statement that Maximo Developments intended to breach the 5 November 2016 Agency Contract by charging a commission in excess of its entitlement under that contract and by charging GST of $1.2 million when the contract expressly provided that the commission payable was to be inclusive of GST. APD submits that the fact that Mr Doan rather impetuously (and ill-advisedly) responded to that email by expressing his “agreement” to those excessive charges is of no moment. APD submits that Mr Rahmani failed to disclose the following facts in the 1 February 2017 email:

(a)    the claim for a commission of $12 million exceeded the commission which would have been payable under the 12 October 2016 Agency Contract by $4,212,000 (had that agency contract not been superseded by the 5 November 2016 Agency Contract);

(b)    the commission payable under the 5 November 2016 Agency Contract, when calculated with reference to the sale price of $24 million, was $11,906,840, not $12 million; and

(c)    the commission so payable was inclusive of GST and the proposed charge of $1.2 million (for GST) was thus entirely unjustified.

126    APD submits that: if Mr Rahmani had made the disclosures outlined in the preceding paragraph, Mr Doan would not have responded to Mr Rahmani’s email as he did; he did so in the belief that most of the so-called “commission” of $12 million was in fact to be refunded to the buyer; had Mr Doan been told of the matters set out in the preceding paragraph, he would have immediately appreciated that his belief in that regard was entirely misconceived, that Bondbao was in fact prepared to pay $24 million for the Property and that Maximo Developments had every intention of obtaining the full commission due under the 5 November 2016 Agency Contract (indeed, an even greater sum) for its own benefit (and for that of the conjunction agent).

127    In our view, no error is shown in the primary judge’s treatment of the 1 February 2017 email exchange in the context of APD’s fiduciary duty case against Maximo Developments. The matters referred to in this ground of appeal, which APD contends should have been disclosed by Maximo Developments to APD, are largely self-evident from the terms of the documents themselves. It is apparent from the terms of the 5 November 2016 Agency Contract that the commission is to be calculated in a particular way. It is apparent from the 1 February 2017 email that it proposed a specified amount as the commission. The evidence of Mr Arcuri (who the primary judge considered to be an impressive witness: at [19]) was that he regarded Mr Doan as one of the smartest and most cunning business people he had ever dealt with (see the Reasons at [101], [108]). In this context, and in the context of the findings made by the primary judge, we consider that it was open to the primary judge to reject the breach of fiduciary duty case. No error is shown in the primary judge’s conclusion or reasons in this regard.

128    Insofar as APD submits that the 1 February 2017 email constituted a statement that Maximo Developments intended to breach the 5 November 2016 Agency Contract, by charging a greater amount for commission than it was entitled to charge under that contract, it is unclear whether the case was presented in that way at trial. In any event, in the context of the long and apparently somewhat informal relationship between Mr Rahmani and Mr Doan, we are not persuaded by the submission that the email evinced an intention to breach the 5 November 2016 Agency Contract, as distinct from simply being a proposed change to the amount of the commission, to which Mr Doan expressly agreed.

129    There is a further difficulty with this ground. The premise of the ground is that the commission charged by Maximo Developments (and paid by APD), namely $13.2 million (including GST), was greater than the commission calculated under the commission clause in the 5 November 2016 Agency Contract. However, this does not appear to be correct. The calculations in APD’s submissions proceed on the basis that the “contract price” for the purposes of the commission clause was $24 million including GST. While this was the price specified in the Contract of Sale, the price actually paid at settlement was $24 million plus GST, that is, $26.4 million. Based on a contract price of $26.4 million, the commission calculated under the commission clause in the 5 November 2016 Agency Contract was $14,282,840 including GST ($12,245,000 x 2.2% plus $14,155,000 x 99%). Approaching the matter this way, the commission charged by Maximo Developments and paid by APD was less than the commission calculated under the commission clause in the 5 November 2016 Agency Contract.

130    For these reasons, ground 2 is not made out.

Ground 3

131    By this ground, APD contends that the primary judge erred in failing to find that Mr and Mrs Rahmani were knowingly concerned in Maximo Developments’ breach of its fiduciary duty to APD. The effect of our rejection of grounds 1, 1A and 2 is that no error has been shown in the primary judge’s rejection of APD’s fiduciary case against Maximo Developments. It follow that ground 3 must also be rejected.

Grounds 4 to 10

132    It is convenient to deal with these grounds together (noting that there is no ground 9). The grounds are as follows:

4.    The primary judge erred in failing to find that by its email of 1 February 2017 to [APD], [Maximo Developments] acted, or threatened to act, in breach of the agency contract of 5 November 2016 by demanding payment of $13,200,000 as due to it under that contract (which sum exceeded its entitlement by $1,293,316).

5.    The primary judge erred in failing to find that by its email of 1 February 2017 to [APD], [Maximo Developments] acted, or threatened to act, in breach of its fiduciary duty to the appellant by demanding payment of $13,200,000 as due to it under the agency contract of 5 November 2016 (which sum exceeded its entitlement by $1,293,316).

6.    The primary judge erred in finding that by its email of 1 February 2017 to [APD], [Maximo Developments] made a full and true disclosure to the appellant of all of the facts pertaining to its breach of fiduciary duty.

7.    The primary judge erred in finding that by responding as it did to [Maximo Developments’] email of 1 February 2017, [APD] provided its fully informed consent to [Maximo Developments’] breach of fiduciary duty.

8.    The primary judge erred in finding that by responding as it did to [Maximo Developments’] email of 1 February 2017, [APD] waived its entitlement to pay commission to [Maximo Developments] in an amount no greater than that calculated in accordance with the agency contract of 5 November 2016.

10.    The primary judge erred in finding that by responding as it did to [Maximo Developments’] email of 1 February 2017, [APD] was estopped from asserting its entitlement to pay commission to [Maximo Developments] in an amount no greater than that calculated in accordance with the agency contract of 5 November 2016.

133    APD submits that the unambiguous terms of the 5 November 2016 Agency Contract operated to confer upon Maximo Developments, when the parties agreed to commit to the sale of the Property for $24 million, an entitlement to commission of $11,906,840. APD submits that, by asserting a “right” to receive $13.2 million, Maximo Developments acted or threatened to act in breach of that contract. APD submits that, indeed, that assertion amounted to a repudiation of the contract.

134    APD submits that, at [137], the primary judge held that by his response to Mr Rahmani’s email of 1 February 2017, Mr Doan had caused APD to “waive” any reliance on holding Maximo Developments to the terms of the commission clause in the 5 November 2016 Agency Contract. APD submits that it is trite law that waiver involves a party having a particular contractual right acting in such a way as to forgo strict observance of that right by the other party, ordinarily for a certain period. APD submits that the notion that a party subject to a contractual obligation (such as APD’s duty to pay a certain commission in the event of a sale) may “waive” that obligation, so as to be subject to a greater liability, is, at least, “incongruous”.

135    APD submits that waiver may, of course, be contrasted with a contractual variation, but, as the primary judge acknowledged, at [135], Maximo Developments did not plead any such variation in this matter. APD submits that, obviously, it could not have done so because APD’s supposed commitment (by Mr Doan’s response to the email) to pay a greater commission than that provided for in the 5 November 2016 Agency Contract plus GST was unsupported by consideration.

136    APD submits that the primary judge erred in holding, at [138]-[144], that APD was estopped from disputing Maximo Developments’ claim for commission in the sum of $12 million plus GST. APD challenges the primary judge’s reasoning in light of the following:

(a)    the telephone conversation between Mr Yan and Mr Rahmani mentioned at [139] of the Reasons took place early in the morning of 1 February 2017 (i.e. some six hours before the email exchange);

(b)    the observation at [139] of the Reasons that “Mint Property’s share of a total commission of $12 million plus GST would then be $4.8 million plus GST” was incorrect, as the total commission payable under the 5 November 2016 Agency Contract was $11,906,840 including GST;

(c)    the “agreement” made between Mr Yan and Mr Rahmani during the conversation and the latter’s despatch of the “Conjunction Confirmation” was thus predicated on a false understanding and in no way attributable to any conduct on APD’s part; and

(d)    in any case, it is clear from the concession made by Mr Rahmani referred to at [141] of the Reasons that the supposed commitment made by Maximo Developments’ execution of the Conjunction Confirmation on 7 February 2017 was by no means cast in stone.

137    APD submits that the proposition that a party to a contract having an entitlement to receive payment of a certain sum under that contract can construct an estoppel against the other party simply by demanding a greater sum and obtaining some misconceived acceptance of the demand is untenable. APD submits that when Mr Doan replied to the 1 February 2017 email, he did not appreciate that the demand made in that email was discordant with the 5 November 2016 Agency Contract; the author of the discordance was Mr Rahmani himself. APD asks rhetorically: in that circumstance, how could his company (Maximo Developments) be said to have acted to its detriment in reliance on Mr Doan’s response?

138    Insofar as APD submits that, by the 1 February 2017 email, Maximo Developments acted or threatened to act in breach of contract, we refer to the discussion at [128] above.

139    Insofar as APD contends, by ground 6, that the primary judge erred in finding that, by the 1 February 2017 email, Maximo Developments made a full and true disclosure to APD of all of the facts pertaining to its breach of fiduciary duty, it is not apparent that the primary judge made such a finding. Further, in circumstances where the primary judge rejected APD’s fiduciary duty case, and no error has been shown in the primary judge’s rejection of that case, this ground of appeal falls away.

140    It is convenient to deal with the issue of estoppel before considering waiver. In our view, APD’s submissions do not establish any error in the primary judge’s consideration of estoppel. We consider that it was open to the primary judge, on the basis of the facts and matters he referred to at [138]-[144] of the Reasons, to conclude that APD was estopped from contending that the commission was other than as set out in the emails of 1 February 2017. In particular, it was open to the primary judge to conclude that Maximo Developments relied on the representation in Mr Doan’s email by proceeding with the conjunction agency arrangement with Mr Yan of Mint Property. The primary judge’s reasons make clear that his Honour was aware that the conversation with Mr Yan on 1 February 2017 took place before the email exchange. His Honour explained why, despite this fact, he considered that Mr Rahmani relied on the email exchange: see the Reasons at [143]-[144]. No error is established in the primary judge’s conclusion or reasoning in relation to estoppel.

141    In light of this conclusion, it is unnecessary to consider APD’s challenge to the primary judge’s conclusion in relation to waiver (ground 8).

142    For these reasons, grounds 4, 5, 6, 7 and 10 are not made out. It is unnecessary to deal with ground 8.

Grounds 11 and 12

143    These grounds are in the following terms:

11.    The primary judge erred in failing to find that by obtaining payment of $13,200,000 on or about 29 June 2017, the first respondent acted in breach of the agency contract of 5 November 2016.

12.    The primary judge erred in failing to order the first respondent to pay to the appellant the sum of $1,293,316 in damages for breach of contract.

144    It is unclear whether these contentions were advanced before the primary judge. The Reasons do not deal with these contentions. In any event, the primary judge’s estoppel finding stands in the way of acceptance of these contentions. A further difficulty with these contentions is that discussed at [129] above. In summary, APD’s submissions and calculations proceed on the basis that the “contract price” was $24 million including GST, but the price paid at settlement was $24 million plus GST, that is, $26.4 million. If that figure is used, the commission charged and paid is less than the commission calculated under the 5 November 2016 Agency Contract.

145    For these reasons, these grounds are not made out.

Notice of contention

146    In light of our rejection of grounds 1 to 12, it is unnecessary to deal with the notice of contention filed by the Maximo Parties.

Issues relating to Mr Arcuri

147    Grounds 13 and 14 relate to APD’s claim against Mr Arcuri. These grounds are as follows:

13.    The primary judge erred in failing to find that by paying $13,200,000 to [Maximo Developments] out of his trust account or about 30 June 2017 [Mr Arcuri] acted in breach of trust so occasioning [APD] loss or damage in the sum of $1,283,316.

14.    The primary judge erred in failing to order [Mr Arcuri] to pay to [APD] the sum of $1,293,316 in damages for breach of trust.

148    APD submits that: as the primary judge acknowledged, at [2], “[o]n any view, agency commission of 50% on the sale of real property is extraordinary, and all the more so where the purchase price is so high”; in principle, it is the duty of a solicitor holding funds in trust for a vendor of property to satisfy himself or herself of the entitlement, at law, of any party (other than the vendor) claiming payment of any of those funds; for example, if, as here, the claimant is the selling agent seeking payment of his commission, the solicitor in question is bound to call for a copy of the agency contract; a fortiori, where the amount claimed is $13.2 million. APD submits that: it would be imprudent for such a solicitor to determine to pay the whole of that sum simply on the strength of a rather informal email exchange between the agent and the vendor without ensuring that that exchange was consistent with the terms of the agency contract in question; it could scarcely be suggested that the task of doing so was in any sense burdensome; indeed, having regard to the terms of Mr Arcuri’s retainer, he should have undertaken that task as a matter of course.

149    APD submits that, in any event, the invoice rendered by Maximo Developments claiming payment of $13.2 million was not in accordance with its entitlement to commission under the 5 November 2016 Agency Contract, with the consequence that by paying that invoice in full, Mr Arcuri acted in breach of trust towards APD and is therefore liable to it in damages in the sum of $1,293,160. (We note that there is a small discrepancy between the figure in APD’s submissions and the figure in grounds 13 and 14, namely $1,293,316, but this can be put to one side for present purposes.)

150    In its reply submission, APD encapsulates its case as follows:

(a)    on completion of the contract for the sale of APD’s property, Mr Arcuri held $13.2 million in trust for APD (a fact admitted on the pleadings);

(b)    under the 5 November 2016 Agency Contract, Maximo Developments was entitled to a commission of $11,906,840; but

(c)    in breach of trust, Mr Arcuri paid the whole of the $13.2 million to Maximo Developments, causing APD to suffer a loss of $1,293,160.

151    APD does not challenge the primary judge’s finding (at [166]) that Mr Doan did not give Mr Arcuri a copy of the 5 November 2016 Agency Contract prior to settlement.

152    In our view, no error is shown in the primary judge’s conclusion (at [166]) that Mr Arcuri was “entirely justified” in paying the $13.2 million to Maximo Developments in light of: (a) the email exchange of 1 February 2017; (b) Mr Doan’s explanations to Mr Arcuri from time to time that Maximo Developments would be paid commission of $12 million plus GST; and (c) Mr Doan’s silence in the face of Mr Arcuri’s letter of 1 June 2017, which enclosed Maximo Developments’ commission invoice, implied that commission would be paid in accordance with that invoice and invited any queries. It was open to the primary judge to find that Mr Arcuri was justified in paying the $13.2 million commission in light of these matters (and in circumstances where Mr Arcuri had not received a copy of the 5 November 2016 Agency Contract). In the circumstances, it was not incumbent on Mr Arcuri to obtain a copy of the 5 November 2016 Agency Contract and compare the commission charged by Maximo Developments with the commission calculated under the 5 November 2016 Agency Contract, and to satisfy himself that the commission charged was no more than the commission calculated under the contract.

153    Further, as discussed at [129] above, APD’s submissions proceed on the premise that the commission payable under the 5 November 2016 Agency Contract is to be calculated on the basis of a “contract price” of $24 million including GST (being the sale price in the Contract of Sale). However, the amount paid at settlement was $24 million plus GST ($26.4 million). Approaching the matter on the basis of a contract price of $26.4 million, the commission of $13.2 million is less than the commission calculated under the 5 November 2016 Agency Contract.

154    We therefore reject these grounds of appeal.

Issues relating to costs

155    Grounds 15 and 16 relate to costs. These grounds are as follows:

15.    The primary judge erred in finding that [APD’s] failure to accept an offer made by the [Maximo Parties] to pay $5000 inclusive of interest and costs in full and final satisfaction of all claims made by [APD] against them was unreasonable.

16.    The primary judge erred in ordering [APD] to pay the costs of the [Maximo Parties] after 11.00 a.m. on 13 March 2020 on an indemnity basis.

156    The Maximo Parties’ offer to APD was to pay the sum of $5,000 inclusive of interest and costs in full and final settlement of all claims by APD against them. The offer was made under Pt 25 of the Federal Court Rules 2011. Rules 25.01 and 25.14 relevantly provide as follows:

25.01    Offer to compromise

(1)    A party (the offeror) may make an offer to compromise by serving a notice, in accordance with Form 45, on another party (the offeree). …

25.14    Costs where offer not accepted

…

(2)    If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant’s proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent’s costs:

(a)    before 11.00 am on the second business day after the offer was served — on a party and party basis; and

(b)    after the time mentioned in paragraph (a) — on an indemnity basis.

(Emphasis added.)

157    APD did not respond to the offer. It accordingly failed to accept the offer.

158    The question before the primary judge was whether APD’s failure to accept the offer was unreasonable for the purposes of r 25.14. The primary judge concluded that it was. His Honour reasoned (in the Costs Reasons at [11]):

The difficulty for APD is that its decision-maker was, in effect, Mr Doan. Although Mrs Doan was the sole director, all the relevant conduct on behalf of APD was undertaken by Mr Doan. Moreover, on my findings in the first judgment Mr Doan knew that Mr Rahmani had not made the representations to him on which APD sued. That knowledge must be ascribed to APD. Thus, when APD failed to accept the Maximo parties’ offer it knew that its principal case was false. Its failure to accept the offer was, in those circumstances, inevitably unreasonable.

159    The primary judge therefore held, at [12], that the Maximo Parties were entitled to their costs on an indemnity basis after 11.00 am on 13 March 2020.

160    APD submits that the primary judge erred in concluding that APD’s failure to accept the Maximo Parties’ offer to compromise was unreasonable. APD submits that:

(a)    the offer was “trivial”, “contemptuous” and “derisory” and involved no real and genuine element of compromise; and

(b)    the primary judge disregarded the fact that APD’s claim that Maximo Developments had acted in breach of its fiduciary duty when it procured APD to enter into the 5 November 2016 Agency Contract and APD’s claim to recover $1,293,160 (for breach of contract by Maximo Developments and for breach of trust by Mr Arcuri) were not dependent upon the Court’s acceptance of Mr Doan’s evidence.

161    APD does not challenge the principles set out in the Costs Reasons at [8]. Those principles were drawn from APD’s submissions, and the primary judge said that he was prepared to assume that those principles were correct. See also: Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43 at [21]-[23]; State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (2022) 399 ALR 704 at [122]-[123].

162    The decision of the primary judge was a discretionary decision to which the principles discussed in House v The King (1936) 55 CLR 499 at 504-505 are applicable. In our view, no error in that sense is established. It was open to the primary judge to find that the failure to accept the offer was unreasonable on the basis that he did. While the amount of the offer was small, the offer was inclusive of costs. It may be inferred that the costs already incurred by the date of the offer were considerable. Having regard to these matters, we consider that the offer contained a sufficient element of compromise. Insofar as APD submits that its fiduciary duty case, and its claim for recovery of money, did not depend on the Court’s acceptance of Mr Doan’s evidence, we do not accept that submission. The case as presented at trial did largely turn on acceptance of Mr Doan’s evidence as to the conversation or conversations with Mr Rahmani in the lead-up to the 5 November 2016 Agency Contract.

163    We therefore reject these grounds of appeal.

The second appeal

Introduction

164    The second appeal concerns the primary judge’s finding in the cross-claim claim between the Maximo Parties and Hamilton.

165    The cross-claim claim concerned a claim by the Maximo Parties for indemnity under the terms of an insurance policy (the Policy) in the event one of them was liable to APD. His Honour dealt with the cross-claim at Reasons, [167]-[197]. Maximo Developments was the named insured and the Policy extended to directors of the insured.

166    Hamilton denied indemnity, contending that the Policy did not answer because:

(a)    the claim made against the Maximo Parties was one in restitution, which was not covered by the Policy terms; and/or

(b)    an exclusion for dishonesty applied.

167    Since the primary judge dismissed APD’s claims, it was not necessary for his Honour to consider the question of whether the Policy answered the APD claims. However, the Policy provides for defence costs. The consequence was that the question of whether the Policy responded to APD’s claims still needed to be determined because the Maximo Parties sought to have their costs of defending APD’s claims indemnified by Hamilton.

168    The primary judge identified, at [168], two issues to be decided on the cross-claim:

(a)    was the claim by APD against the Maximo Parties covered by the insuring clause of the Policy?; and

(b)    was indemnity excluded in any event by operation of the exclusion for dishonesty?

169    His Honour noted that it was common ground that the Maximo Parties bore the onus on the first issue and Hamilton bore the onus on the second issue.

170    There was no issue between the parties that APD’s claim against the Maximo Parties was made during the period of cover or that the Maximo Parties were all insureds under the Policy.

The Policy

171    The Policy is titled “Real Estate Agents & Property Managers Professional Indemnity”. The key relevant terms of the Policy were:

DEFINITIONS AND INTERPRETATIONS

…

Circumstance

Any Circumstance of which the Insured first becomes aware during the Policy Period which may or is likely to give rise to a claim against them and is subject to the indemnity provided under this Policy.

Defence Costs

All costs and expenses incurred with the prior written consent of the Insurer in the investigation, defence or negotiation of the settlement of any claim or Circumstance.

…

POLICY COVER

The Insurer will indemnify the Insured in respect of:-

1.    Civil Liability

The Insurer agrees to indemnify the Insured against civil legal liability for any claim for compensation first made against the Insured during the Policy Period and which is notified to the Insurer during the Policy Period arising from breach of professional duty on the part of the Insured incurred in the conduct of the Insured’s Professional Business.

2.    Trade Practices and Related Legislation

The Insurer agrees to indemnify the Insured against civil legal liability for any claim for compensation made against the Insured under the terms of the Competition and Consumer Act 2010 (Cth), the Fair Trading Act 1987 (NSW), the Fair Trading Act 1985 (Victoria) or similar legislation enacted by other States or Territories of the Commonwealth of Australia.

…

4.    Defence Costs

The Insurer agrees to indemnify the Insured in respect of Defence Costs in relation to claims made that are covered by the Policy.

…

EXCLUSIONS

This Policy shall not indemnify the Insured in respect of any claim, loss, liability or expense arising directly or indirectly out of:-

…

9.    Dishonesty

the dishonesty of the Insured or Employee.

(Emphasis in original.)

The primary judge’s reasons

172    There is no complaint about the approach to the construction of the Policy adopted by the primary judge. His Honour identified, at [173], the principles to be applied when interpreting the terms of an insurance policy as the ordinary rules of construction applicable to commercial contracts, that is, the wording of the policy should be given a businesslike interpretation, such that attention should be given to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure: McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at [22]; CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 at [43].

173    His Honour also referred to Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40] where the High Court said that the meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean, which, normally, requires consideration not only of the text, but also the surrounding circumstances known to the parties and the purpose and object of the transaction: Reasons, [174].

Issue 1: Did the insuring clause cover the claims?

174    When addressing the first issue, his Honour observed that the Policy indemnified in respect of civil legal liability for any claim for compensation, and civil legal liability for any claim for compensation under the terms of specified legislation.

175    Paragraph 4 of the insuring clause recorded that the insurer agreed to indemnify the insured in respect of defence costs in relation to claims made that were covered by the Policy. On that basis, his Honour found that the defence costs cover responded to the defence of claims which, if proved, would give rise to “civil legal liability for any claim for compensation” under either paragraph 1 or 2 of the insuring clause of the Policy.

176    Before the primary judge, Hamilton submitted that the true nature of APD’s claim was not a claim for compensation but rather a claim for restitution of money had and received. Hamilton submitted that APD sought the Court’s aid to achieve an accounting for an unconscientiously gained benefit, not a claim for compensation for loss, and that it is no loss to be deprived of an unwarranted benefit or to be ordered to disgorge ill-gotten gains: Reasons, [176].

177    The Maximo Parties submitted that there was no claim against them for an “equitable account or debt” or in restitution, and that the claims made by APD were for damages based upon a breach of ss 18 and 21 of the Australian Consumer Law and a breach of fiduciary duty. Further, the Maximo Parties contended that Maximo Developments on-paid part of the commission it received to Mint Property, such that the claim against it could not be classified as an “unwarranted benefit” which it should be “ordered to disgorge”: Reasons, [177].

178    An alternative submission put by the Maximo Parties was that, even if the claim was in restitution, such a claim was covered because it was a claim for compensation.

179    A further contention of the Maximo Parties was that the claim by APD that commission was payable under the terms of the 5 November 2016 Agency Contract, and not under the terms of the 1 February 2017 emails, was a claim within cover.

180    The primary judge identified the applicable principle, which is that to determine whether the Policy answers, the Court must determine the true nature of the claim, and that the insurer was not bound by the way in which APD chose to formulate its claim.

181    On the issue of the extent of cover, which is limited to “civil legal liability for any claim for compensation”, the primary judge identified the leading Australian authority as Kyriackou v ACE Insurance Ltd [2013] VSCA 150 (Kyriackou) (Harper, Tate JJA, Kyrou AJA).

182    In Kyriackou, the Australian Securities and Investments Commission (ASIC) had commenced proceedings against Mr Kyriackou (the appellant) and six of the companies in a group, seeking declarations that the defendants had engaged in conduct in contravention of the Corporations Act 2001 (Cth) by operating a managed investment scheme which had not been registered.

183    Ultimately, ASIC discontinued the proceedings. The appellant commenced proceedings in the Supreme Court of Victoria seeking a declaration that the insurer respondent was obliged to indemnify him against his costs in defending the ASIC proceedings.

184    The insuring clause covered loss from any “Claim in respect of civil liability”. “Loss” was defined as being “amounts payable by the Insured or ACE as civil compensation or civil damages in respect of a Claim”. “Claim” was defined as “a written demand for, or an assertion of a right to, civil compensation or civil damages”.

185    The primary judge in Kyriackou found that nothing in the ASIC proceedings amounted to a claim within the meaning of the policy.

186    On appeal, Harper JA (with whom Tate JA agreed) referred to Kantfield Pty Ltd v Lockwood [2003] VSC 420 (Kantfield), agreeing with the proposition emerging from that decision that a claim for civil damages or civil compensation does not include a claim in debt. Harper JA observed, at [51]-[52], that by parity of reasoning, a claim for civil damages or civil compensation does not encompass a claim for restitution or for a civil penalty. His Honour continued that a claim for damages requires a breach of a duty or obligation and would therefore exclude claims for restitution or debt.

187    On that basis, the Court of Appeal dismissed the appeal.

188    When considering Kyriackou, the primary judge observed that during the course of that appeal, the Court considered whether a claim by an aggrieved person with respect to the managed investment scheme would be a claim covered by the policy because ASIC could have amended its relief to seek damages on behalf of the investors. His Honour referred to the footnoted reference in Kyriackou at [52] to Hall Brothers Steamship Co Ltd v Young [1939] 1 KB 748 at 756, where it was held that a claim for damages required a breach of duty or obligation and therefore excluded claims for restitution or debt.

189    The primary judge also referred to Smart v AAI Ltd [2015] NSWSC 392 (Smart). In that case, the insuring clause indemnified the insured company – a finance broker (Q1) – against “civil liability for compensation”. An employee of Q1 had embezzled funds advanced by individuals to Q1 for the purposes of Q1 lending those funds to its clients.

190    Q1 was wound up and deregistered. The individuals who had advanced funds to Q1 instituted proceedings against Q1’s insurer.

191    In dismissing the claim, Beech-Jones J referred to Kyriackou and the judgment of Harper JA at [51]-[52]. Adopting the language of Harper JA, Beech-Jones J held, at [179], that the facts before him gave rise to a liability to pay damages, not a debt; the liability arose from a breach of duty or an obligation. His Honour was therefore satisfied that the plaintiffs had established a “liability for compensation” within the meaning of the insuring clause.

192    The primary judge noted the distinction made by Beech-Jones J between “claims” and “liability”, referring to the observations of Allsop J (as his Honour then was) in McCarthy v St Paul International Insurance Co Ltd (2007) 157 FCR 402 at [76], that a claim may be inarticulately expressed early in proceedings but by the time of vindication in court, may be the subject of a sophisticated alternative or cumulative foundation and expression in pleadings drafted by experienced and skilled lawyers.

193    In this matter, since the primary judge had found that no liability had been established, his Honour found it necessary to characterise the nature of the liability that might have been established had the facts asserted by APD been found proved.

194    The three principal claims advanced by APD against Maximo Developments before the primary judge were based on:

(a)    misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – third amended statement of claim, [15];

(b)    unconscionable conduct contrary to s 21 of the Australian Consumer Law – third amended statement of claim, [17]; and

(c)    breach of fiduciary duty to APD in Maximo Developments’ capacity as APD’s agent – third amended statement of claim, [33]-[36].

195    As against Mr and Mrs Rahmani, the claims were that they:

(a)    engaged in the same conduct as that alleged against Maximo Developments so as to give rise to a contravention of s 18 of the Australian Consumer Law: third amended statement of claim, [15];

(b)    in the alternative, were involved in Maximo Developments’ contravention of s 18 of the Australian Consumer Law: third amended statement of claim, [16];

(c)    engaged in the same conduct as that alleged against Maximo Developments so as to give rise to a contravention of s 21 of the Australian Consumer Law: third amended statement of claim, [17];

(d)    in the alternative, were involved in Maximo Developments’ contravention of s 21 of the Australian Consumer Law: third amended statement of claim, [18]; and

(e)    were knowingly concerned in Maximo Developments’ breach of fiduciary duty: third amended statement of claim, [37].

196    His Honour referred to the loss and damage that APD sought as a consequence of each of the causes of action.

197    Insofar as the claim based on breach of fiduciary duty was concerned, the loss said to arise from Maximo Developments procuring APD to enter into the 5 November 2016 Agency Contract and in rendering an invoice to the applicant on 29 June 2017 for commission in the sum of $13.2 million, was $12,672,000. That sum was calculated as the difference between:

(a)    a fair and reasonable commission on a contract price of $24 million (being 2.2% of $24 million, namely $528,000); and

(b)    the $13.2 million commission that was paid.

However, as noted earlier in these reasons, the actual sale price was $24 million plus GST ($26.4 million) rather than $24 million.

198    The loss and damage claimed by APD by reason of the breaches of ss 18 and 21 of the Australian Consumer Law referred to in the third amended statement of claim at [15]-[18] was also $12,672,000, calculated on the same basis as the breach of fiduciary duty: third amended statement of claim, [41].

199    An alternative claim was for the sum of $1,293,160 (see the third amended statement of claim at [42]), representing the difference between:

(a)    the amount payable under the 5 November 2016 Agency Contract on a contract price of $24 million ($11,906,840); and

(b)    the $13.2 million commission that was paid.

200    In the prayer for relief, APD claimed damages in three categories:

(a)    damages in the sum of $12,672,000;

(b)    in the alternative, damages in the sum of $1,293,160; and

(c)    equitable damages in the sum of $12,672,000;

(d)    interest; and

(e)    costs.

201    The primary judge held that APD’s claims under the Australian Consumer Law were “actions for damages” within the contemplation of s 236 of the Australian Consumer Law and that the breach of fiduciary duty claim was also a claim for damages calculated in the same way: Reasons, [189].

202    His Honour referred to Hamilton’s submission that the true nature of the claim was exposed by the consideration that, if the Court were to find that the Maximo Parties must account to APD for an “unauthorised benefit”, this would be because it would be against conscience to allow them to retain it; in these circumstances, it would be against conscience that the insurer should finance a resolution of this “tawdry dispute”. His Honour characterised Hamilton’s submission as being that the wording of the insuring clause “civil legal liability for any claim for compensation” should be construed to exclude any claim in respect of liability for unconscionable conduct or to repay an “ill-gotten” gain: Reasons, [191].

203    The primary judge dealt with this submission in the following terms at [192]:

That reasoning has some force but what is missing from the analysis is recognition that if the claims in this case were established then the policy would not indemnify the Maximo parties because indemnity would be excluded by the dishonesty exclusion. That would be true of a significant proportion of unconscionability claims, particularly considering that “dishonesty” in this context “embraces deliberate conduct which is considered to be dishonest by the standard of ordinary decent people, or, put another way, the ordinary standards of reasonable and honest people”: Harle v Legal Practitioners Liability Committee [2003] VSCA 133; 13 ANZ Ins Cas 51-605 at [28].

204    In rejecting Hamilton’s submission, his Honour held there was no reason to read down the plain meaning of the operative words in the insuring clause to exclude claims such as those advanced by APD. The primary judge did not consider that such a construction would be a reasonable businesslike construction given paragraph 2 of the insuring clause extended cover for “civil legal liability for any claim for compensation” under the terms of the Competition and Consumer Act, including quintessentially ss 18 and 21, and there was no good reason why the parties should be thought to have intended to exclude such liability from cover: Reasons, [193].

205    His Honour concluded that none of the claims was for a debt or for restitution or for performance of a contract, with each claim asserting a civil legal liability for compensation from the Maximo Parties arising from a breach of duty, either statutory (as expressed in ss 18 and 21 of the Australian Consumer Law) or fiduciary. His Honour compared APD’s claims with those in Smart, holding that, in this matter, the liability that would have arisen, had the facts underlying the claims asserted by APD against the Maximo Parties been proved, would not have been a liability in debt or for monies had and received. On that basis, the primary judge held that the liability the Maximo Parties would have had if APD’s claims had been established would have been a liability covered by the insuring clause: Reasons, [190], [194].

206    The primary judge found that the alternative claim for repayment of an amount overpaid on account of payment of commission was a debt claim, and not a claim for compensation, such that it was not covered by the insuring clause: Reasons, [195]. However, given that the other claims were covered, this did not matter: Reasons, [195].

207    For these reasons, his Honour held that Hamilton was liable to indemnify the Maximo Parties under the defence costs cover in the Policy: Reasons, [197].

Issue 2: Did the dishonesty exclusion apply?

208    In view of his conclusion that Mr Rahmani was not dishonest in his dealings with Mr Doan in relation to the sale of the Property, the dishonesty exclusion did not apply: Reasons, [196].

The notice of appeal

209    In its notice of appeal, Hamilton advances three grounds upon which it says the primary judge erred:

(a)    in his rejection of the argument on behalf of Hamilton that the claims against the Maximo Parties were not claims for civil legal liability for compensation, but in effect and in truth claims for restitution for monies had and received or restoration of an unconscientiously gained benefit;

(b)    in his rejection of the argument on behalf of Hamilton that the true nature of the claims against the Maximo Parties was that it would be wholly against conscience to allow retention by the Maximo Parties of the unauthorised benefit; and

(c)    in his characterisation of the argument at (b) above as being a contention for exclusion from “civil legal liability for any claim for compensation” of liability for unconscionable conduct, or to repay some ill-gotten gain, rather than that such liability was not a civil legal liability for a claim for compensation.

210    Hamilton notes in its notice of appeal that, in the first appeal (NSD 727 of 2021), APD relies on grounds of appeal against the Maximo Parties based on dishonesty. Hamilton contends that a finding by this Court allowing the first appeal on that basis should activate the dishonesty exclusion in the Policy, disentitling the Maximo Parties from indemnity under the Policy and requiring the setting aside of the primary judge’s findings that Hamilton pay the Maximo Parties’ defence costs.

211    In view of our conclusion, above, that APD’s grounds of appeal in the first appeal are to be rejected, this aspect of Hamilton’s notice of appeal is not engaged. Accordingly, the issues to be determined on the second appeal are confined to Hamilton’s three grounds of appeal set out above; in summary, the issue is whether the Policy answers the claims made against the Maximo Parties by APD such that the obligation to indemnify the Maximo Parties for defence costs is engaged.

212    Consistently with the way that the parties presented their cases, it is convenient to deal with the three grounds of appeal together.

Consideration

213    Hamilton contends, in summary, that the primary judge erred in holding that the claims brought by APD against the Maximo Parties were claims for civil liability for compensation. Hamilton submits that the claims were, in effect and in truth, claims for restitution of monies had and received or for restoration of an unconscientiously gained benefit, such that the claims were not indemnifiable under the defence costs coverage provision of the Policy.

214    In advancing this submission, Hamilton refers to the terms of the Policy as set out above, characterising the Policy as an indemnity policy and referring to statements by Devlin J (as his Honour then was) in West Wake Price v Ching [1957] 1 WLR 45 at 49; [1956] 3 All ER 821 at 825 and Brett LJ in Castellain v Preston [1883] 11 QBD 380 at 386 as to the nature of such a policy requiring the insured to suffer a loss. There is no dispute about those principles in the description of the Policy as an indemnity policy.

215    Hamilton submits that the “loss” the subject of indemnity is that set out in paragraph 1 of the insuring clause, namely “civil legal liability for any claim for compensation”, with that liability arising from a “breach of professional duty on the part of the Insured” and “incurred in the conduct of the Insured’s Professional Business.” It continues by submitting that, by paragraph 2 of the insuring clause, the insurer agrees to indemnify the insured for “civil legal liability for any claim for compensation” in terms of trade practices and other legislation. On that basis, it submits that paragraph 2 must be read in the context of paragraph 1, and that the rest of the Policy applies only in respect of such a claim which involves a breach of professional duty in the conduct of the insured’s professional business for which the insurance was proposed.

216    There are some immediate difficulties with that submission. First, there is nothing in paragraph 2 of the insuring clause to link the cover extended by that clause with paragraph 1 of the insuring clause. Secondly, the “civil legal liability for any claim for compensation” made against the insured, referred to in paragraph 2, relates to claims under, what may fairly be described as, consumer protection legislation. That legislation, which includes (relevantly in the context of this appeal) ss 18 and 21 of the Australian Consumer Law, is not limited to a breach of professional duty, although it may be accepted that in a number of cases it is likely that there will be a commensurate breach of professional duty along with a breach of the statute in question.

217    Hamilton submits that, as the primary judge accepted, the insurer is not bound by the way in which the claimant has chosen to formulate the claim. Hamilton submits that, in the present case, the true nature of APD’s claims against the Maximo Parties was as follows: a claim as to conduct which was not in good conscience; a breach of fiduciary duty; a claim based upon Barnes v Addy (1874) LR 9 Ch App 244 principles; and unjust enrichment requiring restitution.

218    In support of that submission, Hamilton refers to Kyriackou and Kantfield, both of which were referred to by the primary judge in the course of his reasons: see above at [181]-[188].

219    Hamilton also refers to Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 75, where Mason CJ described restitutionary relief in the following terms:

Restitutionary relief, as it has developed to this point in our law, does not seek to provide compensation for loss. Instead, it operates to restore to the plaintiff what has been transferred from the plaintiff to the defendant whereby the defendant has been unjustly enriched. As in the action for money had and received, the defendant comes under an obligation to account to the plaintiff for money which the defendant has received for the use of the plaintiff. The subtraction from the plaintiff’s wealth enables one to say that the defendant’s unjust enrichment has been “at the expense of the plaintiff”…

(Citation omitted.)

220    Hamilton refers to Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 as an example of a breach of fiduciary duty grounding a claim for account and not a claim for damages for compensation. That case involved a sale of shares in a company and its subsidiary by the individuals who were the directors of that company and of the subsidiary, at a profit. Ultimately, the appeal was successful on the basis that the directors owed fiduciary duties to the companies and allowed their personal interests to conflict with their duties as directors.

221    Since the primary judge dismissed APD’s claims, and that dismissal has been affirmed in the first appeal, it is necessary to characterise APD’s claims by reference to how they were formulated and presented.

222    The crux of Hamilton’s submissions is that in its true nature, APD’s case against the Maximo Parties (including the trade practices and related legislation claims) was a restitutionary claim for monies had and received. Hamilton submits that it would not be correct to characterise such a claim as a claim for compensation. Moreover, Hamilton submits, it would not be correct to characterise the Maximo Parties as suffering a loss if APD’s claims had been successful; they would merely be required to repay an ill-gotten gain.

223    In our view, there are a number of reasons why Hamilton’s characterisation of APD’s claims against the Maximo Parties should be rejected, and why the primary judge’s characterisation of those claims was correct.

224    First, on the finding made by the primary judge (see the Reasons at [60]), Maximo Developments on-paid to Mint Property a substantial portion ($5.5 million) of the $13.2 million commission it received. In these circumstances, had APD’s claims against Maximo Developments succeeded (whether for contravention of s 18 or 21 of the Australian Consumer Law or for breach of fiduciary duty), and had Maximo Developments been required to pay an amount of money to APD, Maximo Developments would have incurred a loss; it would not have been merely repaying a benefit or an ill-gotten gain.

225    Secondly, we are not persuaded by Hamilton’s submission that APD’s claims against the Maximo Parties are to be characterised as claims in restitution. APD’s claims were not pleaded as claims for monies had and received or debt (with one minor exception, noted at [206] above), but as claims for compensation for contravention of statutory provisions and for breach of fiduciary duty. In reality and in practice, there may be a number of alternative remedies arising out of a factual scenario. In Letang v Cooper [1965] 1 QB 232, Diplock LJ said at 242-243:

A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person.

226    It is well-settled that a party may sue for alternative and inconsistent remedies: United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 18-19 (Viscount Simon LC). The example given by Viscount Simon is that on certain facts a plaintiff may claim redress either in the form of damages for a tort or in the form of restitution of money to which he is entitled but which the defendant has wrongfully received.

227    The mere possibility of recovery based on money had and received is not sufficient to characterise the claims made by APD as falling into that category.

228    In its written submissions, Hamilton refers to the primary judge’s reasoning at [192]-[193] based on the scope of the dishonesty exclusion. Hamilton submits, in effect, that the primary judge mischaracterised its argument. Hamilton submits that:

(a)    what is in issue here is not the reach of an exclusion but the scope of an insuring clause;

(b)    the core point is that an insured who has no entitlement suffers no loss on “forfeiture” and there is no loss to be indemnified; and

(c)    there are many circumstances of potential liability for unconscionable conduct for which the remedy does not involve repayment of an “ill-gotten gain”.

229    We do not accept those submissions. As to the proposition in (a) above, we accept that the issue here is the scope of an insuring clause. However, for the reasons given above, APD’s claims against the Maximo Parties are to be characterised as claims for compensation and not as claims in restitution.

230    In relation to the propositions in (b) and (c) above, for the reasons given above, had APD’s claims against Maximo Developments succeeded, Maximo Developments would have suffered a loss. This is because, on the findings of the primary judge, Maximo Developments on-paid a substantial portion of the commission to Mint Property. In these circumstances, an order that Maximo Developments pay an amount of money to APD would not merely have involved the repayment of a benefit or ill-gotten gain.

231    For these reasons, the primary judge was correct to conclude that Hamilton was liable to indemnify the Maximo Parties for their defence costs.

232    We therefore reject each of Hamilton’s grounds of appeal.

Conclusion

233    For the above reasons, the first appeal is to be dismissed. In relation to costs as between the appellant and the respondents, there is no apparent reason why costs should not follow the event. In relation to the costs of the interested party, our provisional view is that there should be no order as to costs. We will give the parties the opportunity to seek a variation of these costs orders.

234    Further, for the above reasons, the second appeal is to be dismissed. There is no apparent reason why costs should not follow the event. We will make a costs order to that effect, but will give the parties an opportunity to make submissions if they seek a different costs order.

Associate:

Dated:    25 August 2022

SCHEDULE OF PARTIES