FEDERAL COURT OF AUSTRALIA

Kojic v Commonwealth Bank of Australia [2016] FCA 368

REASONS FOR JUDGMENT

INTRODUCTION

1    The events to which this action directly relates occurred mainly in the first half of November 2009. They resulted in Marija Kojic (Kojic) and her husband Dragutin Kojic (the Kojics) paying $436,161.97 (the Kojic payment) to facilitate the transfer of a property at Old Reynella for a price of $850,000 to Southern Construction Services Pty Ltd (SCS), a company controlled by Smelisha Blanusa.

2    Kojic was the person involved for the Kojics. Dragutin Kojic played no relevant part in agreeing to or authorising the Kojic payment.

3    The settlement took place on 17 November 2009. There was some evidence which suggested that settlement occurred on 16 November 2009 in the afternoon, however, as nothing turns on this the date of 17 November has been selected. The Kojic payment was made on that date by bank cheque drawn on the Kojics’ account with the Commonwealth Bank of Australia (CBA). They had been longstanding customers of the CBA. The CBA was, at the time, also the banker to SCS and to Blanusa and the Blanusa interests. The CBA took a registered first mortgage over the property at the time of the settlement, securing $480,000 it advanced to SCS for the settlement and further securing existing or further advances to the Blanusa interests. In effect, there was little or no residual equity in the property at that time by reason of the mortgage having regard to the extent of the indebtedness of the Blanusa interests to the CBA.

4    Duncan McDonald is a conveyancer. He had previously acted in that capacity for the Kojics in relation to other investments in land they had made. He acted for the Blanusa interests in relation to this transaction. He had also acted for the Blanusa interests previously in relation to other investments in land. He had some discussions with Kojic before she agreed to make the Kojic payment.

5    In essence, as events transpired, the Kojic payment became an unsecured loan to the Blanusa interests, made without any proper documentation. Ultimately, the Blanusa interests defaulted in their dealings with the CBA. The CBA took recovery action, including in about April 2001 taking possession of the property under the mortgage and selling the property.

6    SCS was placed into liquidation on 15 June 2011 and on 4 July 2011, settlement of the mortgagee sale of the property by CBA occurred. There was in fact no surplus from the proceeds of sale after the CBA had applied the net proceeds to reduce the indebtedness of the Blanusa interests.

7    This application is the attempt by Kojic on behalf of the Kojics to recover the Kojic payment from the CBA and from McDonald.

8    Obviously there is a complex and substantial factual background, largely uncontentious, underlying her claim. But there are significant disputed factual issues surrounding the events in the first part of November 2009. Resolution of the claim will depend upon the precise events and communications which took place at about that time.

9    The causes of action are compendious. Kojic claims that she made the Kojic payment as a result of the unconscionable conduct, in equity or under ss 51AA, 51AB or 51AC of the Trade Practices Act 1974 (Cth) (TPA) (as then in force) or ss 12CB or 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) on the part of the CBA through its officers, or by the misleading and deceptive conduct (under ss 52 or 51A of the TPA or ss 12DA or 12BB of the ASIC Act), breach of contract, breach of duty of care, breach of fiduciary duty to her by the CBA through its officers or that the CBA received the proceeds from the sale of the property as a resulting trustee or a constructive trustee held for the benefit of the Kojics. She makes similar but somewhat more confined claims against McDonald as her conveyancer and by reason of his relationship with her.

10    Those claims are all disputed.

BACKGROUND

11    On 1 October 2008, Blanusa as a director of SCS entered into contracts for the sale and purchase of the property, being Allotment 59, 239 Old South Road, Old Reynella, SA 5161 and Allotment 60, 235-237 Old South Road, Old Reynella, SA 5161 on behalf of SCS. The date of signature on the contracts is 1 September 2008, but it has been referred to by the parties as 1 October 2008. The price for the property was to be $850,000, comprised of $325,000 and $525,000 for allotments 59 and 60 respectively. Settlement pursuant to the contract was to occur on 27 March 2009.

12    In late December 2008, Blanusa contacted McDonald, in his capacity as a conveyancer, to put caveats on the property to protect the SCS interest prior to settlement. There was limited discussion about the terms of McDonald’s engagement by SCS at this time, or indeed subsequently. McDonald confirmed his retainer as the conveyancer by letter of 21 January 2009, also enclosing the proposed caveats for execution and a note of the anticipated stamp duty on transfer of $40,580. It is accepted that McDonald had previously been engaged by SCS on a number of occasions to act as its conveyancer. McDonald accepted he had been retained by SCS for the purpose of arranging the caveats, and he had an ongoing retainer as the conveyancer for the purchase of the property.

13    Blanusa purchased the property for development purposes. At the time SCS was seeking development approval to develop the property by subdividing it into 14 individual housing allotments. The evidence is that, in early 2009, the Noarlunga Council verbally indicated that approval for that subdivision would be granted. The subdivision approval did not exist at the time of the contract.

14    It is clear that Blanusa at the time of the contract and up to the settlement, either through SCS or his other resources, did not have the available funds to purchase the property. A deposit of $25,000 only had been paid.

15    In early 2009, Blanusa discussed financing the purchase of the property with the CBA (and with other potential lenders). He says he was informed by Steven Barnden, an officer of the CBA, that the CBA would be able to provide a loan of up to 90% of the purchase price if all the directors of SCS transferred their personal banking business to CBA. In due course, Blanusa became a client of the CBA, and in or around July 2009 the banking business of SCS and of the Blanusa interests generally were transferred to the CBA. Clearly, SCS and Blanusa were unable to complete settlement on the settlement date.

16    In the meantime, the conveyancer for the vendors of the property submitted the proposed settlement statements on 13 March 2009 for settlement on 27 March 2009. It did not take place. It was rescheduled for 22 April 2009, and then to occur in July.

17    McDonald on behalf of SCS informed the vendors’ conveyancers on or around 22 March 2009 (presumably on Blanusa’s instruction) that finance had been procured from BankSA, but the relevant loan documents would not be available until the following week. The purchasers gave notice that default interest for the delay would be imposed, pursuant to the contract. On 6 April 2009, the vendors gave formal notice of default, and notice to complete on or by 22 April 2009. As a result of a further communication from McDonald on 21 April 2009, saying that funding for the settlement was further delayed by a contractor to SCS or one of the Blanusa entities failing to make a payment of some $480,000, and that there was anticipated funding by the CBA, the settlement was extended to 11 July 2009.

18    In the interim period, Blanusa also approached Christopher Cotton, a person with whom he had had previous dealings, to take a 10% interest in the property. Cotton agreed. A Deed of Assignment dated 30 June 2009 assigned a 10% share in the property from SCS to Cotton for $90,000.

19    The financing arrangements being sought by SCS and the Blanusa interests were obviously critical to SCS being able to settle at the time of the third settlement date in July 2009. So too was the input of funds from Cotton.

20    As noted, by July 2009, the banking business of the Blanusa interests had been transferred to the CBA.

21    On or about 22 July 2009, the CBA approved a loan in the amount of $480,000 towards the purchase of the property. The CBA was aware of, and accepted, the 10% interest of Cotton. The security for the loan was to include, but was not limited to, a first registered mortgage over the property from SCS; a first registered company charge by SCS over the whole of its assets and undertakings; and a guarantee limited to $480,000 to be given by Blanusa.

22    In addition, on or about 22 July 2009, the CBA approved other facilities to the Blanusa interests including an overdraft and a CBA Corporate Charge Card in the amounts of $500,000 and $25,000 respectively, to SCS. The security for these facilities was to include, but was not limited to, a first registered company charge by SCS over the whole of its assets and undertakings; a first registered mortgage by SCS over real property; and a guarantee limited to $525,000 by Blanusa, supported by first registered mortgages over further residential real property that he or the Blanusa interests owned.

23    Over this month, the settlement then fixed for 11 July 2009 was put off to 13 July 2009. It too did not proceed. The circumstances are unclear. Then on 27 July 2009, at the instigation of the Blanusa interests (through McDonald) the vendors agreed to break the settlement into two stages: the “House” (the smaller of the two allotments) on 7 August 2009, (and shortly after deferred to 28 August 2009) and the larger allotment 90 days after 7 August 2009. Those settlements, too, did not proceed.

24    Cotton duly paid to McDonald’s trust account $90,000 to cover his share of the settlement sum. In September 2009, he authorised McDonald to pay that amount, in two tranches, to Blanusa. It is not clear how those funds were applied. They were not applied to the settlement of the property (save possibly for $14,318.78 paid in September 2009 to the purchasers).

25    As is now common ground, the vendors gave a final ultimatum for settlement on the property on 13 November 2009. This date was also missed and rescheduled to 17 November 2009. The vendors of the property indicated that settlement needed to occur by that date or the contract would be terminated, and the deposit forfeited.

26    Blanusa and SCS clearly had great trouble in finding the resources to pay the $436,161.97 balance of the purchase price after taking into account the CBA loan of $480,000, noting that Cotton’s contribution of $90,000 which had already been paid to Blanusa for his 10% share (which as noted was paid to Blanusa). Moreover, it is clear from McDonald’s role to this point that he was well aware of that problem.

27    In early November, Blanusa asked Kojic if the Kojics might be interested in purchasing a half interest in the property. He and the Kojics had previously jointly invested in some other properties. In very broad terms, Kojic agreed that the Kojics would provide 50% of the funds required for the purchase of the property (excluding any amounts payable by reason of delays in settlement) in consideration for a “50% interest” in the property. It was not clearly discussed whether that was 50% of the property or 50% of the 90% interest of SCS in the property. Subsequently, the amount payable was clarified as being $436,161.97, that is the Kojic payment. The calculation to arrive at that sum was made by McDonald. The precise terms of this agreement are a matter of dispute. The treatment of Cotton’s 10% interest was not really discussed. The extent of the proposed borrowing by SCS to finance its purchase of the property was not discussed, or the fact that the CBA required security by way of a first mortgage, or the terms of the proposed mortgage. Blanusa’s documents indicate that he expected, if this proposal progressed, that the ownership of the property would be 50% Kojics, 40% SCS and 10% Cotton. The Kojics were or became aware of the Cotton interest at or shortly after that date. So I proceed on the basis of that being the proposed “equity” split.

28    Any detailed discussion or mature consideration of the matters referred to in the preceding paragraph between Blanusa and Kojic would have exposed those problems. The settlement would not have taken place and the contract would have lapsed. Inexplicably, it did not. It is the more inexplicable because both Blanusa and the Kojics, as noted later in these reasons, were experienced property investors.

29    It is now necessary to refer to the nature of the involvement of the CBA, beyond its role as providing funding to SCS and to the Blanusa interests as noted above.

30    As was its practice, at that time, the CBA had designated Barnden as the relationship manager for the Blanusa interests.

31    The Kojics had also banked with the CBA for many years. They had David Coombe as their relationship manager. As is, perhaps, self-evident from the events described, they also had at November 2009 quite substantial available funds on deposit with the CBA.

32    On or about 10 or 11 November 2009, as the Kojics had decided to invest in the property, Kojic telephoned Coombe and informed him that the Kojics had decided to provide some of the finance for the purchase of the property in exchange for joint ownership of the property. The nuances of joint or several ownership were not discussed. At that time, Coombe had no reason to look into the proposal. It was a notice to him that they would shortly require a significant sum to purchase their half share. Kojic also telephoned Blanusa to tell him that they had decided to accept his proposal and acquire a half interest in the property.

33    On or about 11 November 2009, Blanusa spoke to McDonald. Blanusa told him about the arrangement with the Kojics. It was agreed between them that enquiries would be made by McDonald with the CBA in relation to the Kojics being placed on the title as half owners. Following this conversation, on or about 12 November 2009, McDonald duly spoke to Barnden. During this conversation, Barnden advised McDonald that the CBA would not be prepared to proceed with its role as a funder of the purchase of the property (by secured lending to SCS) if the Kojics were to be placed on the title, unless there was a significant variation to the loan application as the security structure would have to be changed. He indicated that, consequently, it would not be possible for the Kojics to be placed on title as part registered owners by the settlement date of 17 November 2009, and that changing the security structure may involve the CBA requiring a mortgage to be given by all registered owners of the property, including the Kojics, as well as obtaining guarantees from them. That in turn would involve a full assessment of their financial position. That is a predictable and understandable response. Apart from any banking assessment of the risk, there was simply not time enough to undertake that process and redo the documents.

34    Common sense would dictate at that point that the Blanusa interests could not pay the settlement sum (taking into account the loan of $480,000 from the CBA) and, if the balance of the settlement sum to be paid by the Kojics (putting aside Cotton’s position) was on the basis that they would be registered with SCS (and Cotton) as the owners of the property, then the settlement simply could not go ahead on 17 November 2009. Those matters could not be attended to, that is protecting the CBA position, within the available few days, even if the Kojics were to accept any requirements of the CBA about financing the purchase.

35    It is at this point that the real disputes arise as to what happened. What is clear is that the Kojics advanced the Kojic payment, that it was used to partly fund the purchase price, and that the settlement proceeded on 17 November 2009 on the basis that – in addition to the Kojic payment – the CBA advanced the loan sum of $480,000 to SCS, and the property was transferred to SCS (and as to 10% to Cotton). The Kojics did not in any degree become registered owners of the property.

36    Moreover, as noted earlier, the CBA first mortgage also secured other advances by the CBA to the Blanusa interests, so that ultimately there was no equity in the property (apart from that of Cotton, which the CBA recognised) when SCS defaulted and the property was sold under a mortgagee sale by the CBA.

37    The date of McDonald’s conversation with Barden is 12 November 2009. That is recorded in contemporaneous notes of McDonald.

38    Both McDonald and Blanusa agree that, following Barnden’s advice referred to above, McDonald informed Blanusa that it would not be possible for SCS to be placed on the title by the settlement date. They also agree that the outcome of that conversation was that Blanusa would speak to Kojic about the Kojics not being placed on the title. There is a dispute about whether Blanusa had such a conversation with Kojic, and if so upon what date.

39    Kojic said she had three conversations with McDonald in relation to the provision of finance by the Kojics for a half interest in the property and about providing the Kojic payment prior to the settlement date of 17 November 2009.

40    She says the first conversation took place on or about 10 November 2009. She told McDonald the Kojics were to buy a half interest in the property, and wanted copies of the settlement statements. Following this conversation, McDonald faxed the proposed settlement statements to Kojic. The precise date, that is whether it took place on 10 or 12 November 2009, and contents of this conversation are a matter of dispute, including as to whether McDonald informed Kojic that the Kojics would not be placed on title if the settlement proceeded.

41    The second conversation took place on or about 13 November 2009, after the proposed settlement statements had been received. She said that she and McDonald discussed the settlement statements, and she gave instructions that the default interest payments as shown on the proposed settlement statements would not be paid or contributed to by the Kojics. That has some significance for reasons referred to below.

42    The evidence indicates that on about 15 November 2009, McDonald prepared the necessary conveyancing documents to effect the settlement on behalf of SCS (and Cotton).

43    On 16 November 2009, he faxed to Kojic the details of the total amount required to be paid by the Kojics, together with instructions as to details of the bank cheque required. The context of the instructions is set out below.

44    The third conversation took place following the receipt of this fax on 16 November 2009, and again concerned the amount to be paid by the Kojics at settlement having regard to the default interest liability of SCS as allowed for on the proposed settlement statement.

45    It is agreed that, on that occasion, there was no discussion of the fact that the Kojics would not be able to be registered on the title as owners or part owners of the property under the proposed settlement.

46    On 16 November 2009, following the discussion with McDonald, Kojic discussed the transfer of money for the purchase of the property with Coombe. She instructed him to procure a bank cheque for the Kojic payment for the purpose of completing settlement of the property. The Kojic payment was the balance of the settlement payment for the property, after taking into account the CBA loan. The bank cheque was to be collected by McDonald from the CBA.

47    The bank cheque for the Kojic payment was prepared and was then held by Judy Aikman, an employee at the CBA. Her record of doing so has some significance. On 17 November 2009, McDonald attended CBA’s office on King William Street and collected the bank cheque for the Kojic payment as arranged.

48    Armed with the bank cheque, McDonald attended the settlement with the conveyancers for the vendors of the property at the settlement offices of the CBA. The settlement was completed. McDonald says he attended the settlement on behalf of SCS and Blanusa, and not as a conveyancer or representative of the Kojics. It is not clear how, or whether, Cotton’s 10% interest in the property was secured. As it was recognised by the CBA, nothing turns on that.

49    From 17 November 2009, a 90% interest in the property was held by SCS, and the remaining 10% was held by Cotton. The CBA held a first registered mortgage in the whole of the property. The Kojics were not placed on the title as owners in fee simple of any part of the property on this date or subsequently.

50    On 17 November 2009 following settlement, Kojic spoke to Blanusa. Blanusa confirmed that the Kojics had not been put on the title as joint or several owners of a 50% interest, despite having made the Kojic payment. Blanusa assured her that that would happen in due course. Kojic did not immediately react adversely to what was then discussed.

51    It was consistent with Kojic’s evidence that she did not expect that the Kojics would, at the time of the settlement, be registered on the title as part owner of the property. She knew she should have to sign some papers and she had not done so. Kojic said that she had confidence in Blanusa’s integrity and also was confident that in the near future their status as owners would be attended to by appropriate registration. She did not directly dispute Blanusa’s evidence about the joking exchange of being “ripped off”.

52    Kojic did not take any steps immediately to protect the Kojics’ (asserted) interest in the property by causing a caveat to be lodged over the property to secure the (asserted) equitable interest. Nor did she immediately revert to Coombe of the CBA, her relationship manager, to complain about any role he had had in procuring for her the bank cheque for the Kojic payment in accordance with her instructions. She did not then complain about any advice she had received from him, or about his failure to give her any advice. Nor did she make any other communication to the CBA on those matters at about that time. That is conduct which is not really consistent with being told immediately after the settlement that the Kojics were not on the title.

A REVIEW

53    It is worth reviewing the respective roles and positions of the parties immediately after the settlement:

(1)    the Kojics had, in essence, become an unsecured creditor of SCS and/or the Blanusa interests (the precise arrangement is unclear) for the amount of the Kojic payment, namely $436,161.97. As between SCS and the Blanusa interests on the one hand and the Kojics on the other, it is at least arguable that a 50% interest in the property was held in trust for the Kojics. Given the first mortgage to the CBA securing the indebtedness of the Blanusa interests to the CBA, and the state of financial affairs of the Blanusa interests, events have shown that any “interest” in the property was of no real value;

(2)    the Blanusa interests had acquired the property (or 90% of the property) by “payment” of their 90% of the purchase price, funded as to $450,000 by a CBA advance to SCS specifically for that purpose, and secured by a registered first mortgage over the property (also securing other borrowings made or to be made to the Blanusa interests by the CBA) and as to $436,161.97 by the Kojic payment;

(3)    the CBA had altered its position in relation to SCS and the Blanusa interests by the advance of $480,000 towards the purchase price of the property, and in exchange (including as part of the wider financial arrangements with the Blanusa interests) had received the security of a registered first mortgage over the property securing that advance, and also securing other financial accommodations provided or to be provided to the Blanusa interests. That itself is not sinister in any way. It is normal banking practice;

(4)    the CBA had, in effect, improved its position in relation to its “exposure” to the Blanusa interests, to that extent, of the additional equity in the property secured by its mortgage, which was available by reason of the Kojic payment made by another of its clients (the Kojics) by the Kojic payment. The CBA improved position was at the cost or likely cost of another of its clients, namely the Kojics. Neither Coombe nor any other officer of the CBA had counselled Kojic in any way about such a payment being an unwise one, although it is obvious that it was unwise (but, as found below, Coombe assumed the Kojic payment would result in 50% equity in the property being held by them);

(5)    McDonald had not profited from the settlement, save for his professional fees as a conveyancer for SCS and the Blanusa interests. He had previously acted as a conveyancer for the Kojics in other real estate transactions, and was familiar with Kojic. He was aware of the Kojic payment, in reality, amounting to a very substantial unsecured loan to SCS or the Blanusa interests to enable them to complete the settlement, and he facilitated that process by the preparation and provision of the settlement statements, including to Kojic, by calculating the amount of the Kojic payment required for settlement, and by arranging to collect from the CBA the bank cheque reflecting the Kojic payment, and by attending at the settlement to present it as the “cash” part of the purchase price. He says that he did not at any time act for the Kojics as a conveyancer or in other capacity in relation to the transaction. He also says that he explained to Kojic before the settlement that the payment of the Kojic payment would not lead to them being placed on the title as co-owners, although he understood that that was the arrangement between Blanusa and Kojic, and he says that he explained that that could not be done in time for the settlement. He did not give any advice to Kojic about the unwisdom of the Kojic payment in the circumstances. He was aware that Kojic had not engaged any other conveyancer to protect the Kojics’ interests.

54    Resolution of the claims involves the application of settled principles to relatively nuanced circumstances. Those circumstances need to be carefully determined, in the light of all the evidence. The Kojics, as experienced property investors, made an unwise investment. They either took a chance on the basis of Blanusa’s request or they made a novice mistake of not ensuring they got on the title. Blanusa appears to have taken advantage of the friendship with the Kojics, by getting their very significant support for the transaction but without properly disclosing the extent of his inability to support the purchase of the property or the extent of the mortgage he was providing to the CBA. The reality was that he had no capacity to provide the Kojics with a 50% interest in the property at any time. The best that he could have expected is that the disposition of the property, in due course, presumably after subdivision would generate sufficient funds for the mortgage to be discharged (including to the extent the CBA required in respect of the other Blanusa interests) and the Kojics then to receive 50% of the net proceeds of sale. Any formal adviser to the Kojics would have explained the nature of the transaction in more detail, including the terms and potential consequences of the first registered mortgage to the CBA. Such advice would have been that the Kojics real options were to proceed by an unsecured loan with the risks involved, or to take a second registered mortgage over the property securing such a loan, or to get other security. In any event, they would have advised that the transaction be properly documented.

55    In fact, Kojic was relatively inactive following the settlement. It was only in or about February or March 2010 that she contacted a conveyancer (not McDonald) to follow up about putting the Kojic’s name on the title of the property. She was informed that she would have to pay stamp duty on the full amount of the purchase price to be registered as an owner in the amount of $50,000 to $60,000. She did not pursue this avenue further at that time.

56    Then, as noted, only on about 28 March 2011 the Kojics became aware that the CBA was seeking to exercise its right as mortgagee to sell the property. Kojic contacted the CBA asserting that the Kojics had purchased a 50% proprietary interest in the property which prevented the CBA from selling it. In addition, the Kojics contacted a solicitor who lodged a caveat on the titles of the property on their behalf, on 28 March 2011. The Kojics do not appear to have taken any further steps to pursue their claimed interest under these caveats. In any event, in or about April 2011, on the basis of CBA’s mortgage over the property, the CBA took possession of the property.

57    As a mortgagee in possession, the CBA then entered into a contract for the sale of the property for $975,000. On 4 July 2011, settlement of this transaction occurred. The CBA applied the proceeds of the sale of the property as follows:

(1)    the outstanding balance of the bank loan and costs and expenses associated with the sale were paid;

(2)    Cotton, a 10% owner of the property, was paid an amount in the order of 10% of the remaining proceeds of sale; and

(3)    the balance of the proceeds was then applied by the CBA against other outstanding debts owed by SCS or the Blanusa interests to the CBA.

58    The Kojics did not receive any portion of the proceeds of the sale of the property. Subject to any entitlement to recover the Kojic payment from Blanusa, SCS or other Blanusa interests, this action is their opportunity to redeem their losses.

THE BASIS OF THE CLAIMS

59    The Kojics put their claim against the CBA on the basis that the CBA, through Coombe and Barnden, knew of the nature of the transaction leading to the settlement, relevantly that one of its customers (the Kojics) was about to advance the Kojic payment to complete the settlement of the property in circumstances where its customer (the Kojics) expected to, but would not, become a registered owner of half of the property but would simply become an unsecured lender to another of its customers (the Blanusa interests). It would also have known that that unsecured loan would have the effect of better securing to the CBA the exposure of the Blanusa interests to the CBA.

60    They put an alternative position that Barnden, in the circumstances, was put on inquiry to determine “the actual authority and consent” of the Kojics to the settlement, by providing the Kojic payment from their funds with the CBA as an unsecured loan to the Blanusa interests.

61    It is, the Kojics say, clear that either actually, or through Barnden if proper inquiry had been made, apparent that the Kojics expected that the Kojic payment would result in them becoming registered owners of half of the property, and that the proposed mortgage by SCS to the CBA was simply inconsistent with that expectation.

62    Consequently, the argument runs, the CBA took its mortgage over the property at settlement, other than as an acquirer in good faith for value and without notice of any “prior equitable interest” of the Kojics as half owners. The CBA therefore held that half interest under a resulting or constructive trust for the Kojics, and breached that trust by applying all the proceeds of sale of the property in discharge of the indebtedness of the Blanusa interests.

63    The alternative claims against the CBA are for unconscionable conduct contrary to the relevant provisions of the TPA or the ASIC Act, or for breach of fiduciary duty owed to the Kojics, for breach of the customer/bank duty of care, or for misleading and deceptive conduct. All are premised upon the asserted knowledge of the CBA, by reason of its customer relationship with the Kojics, about what the Kojic payment was for and its failure to disclose to Kojic that – despite her expectation – she was not going to secure a half interest in the property, as the CBA mortgage securing the Blanusa interest borrowings would cover the equity in the property.

64    As is obvious, the CBA disputes the factual assertions on which the Kojics rely, as well as the legal propositions upon which their claims are based.

65    The Kojics’ claim against McDonald is put on the basis that, in the circumstances, McDonald assumed a responsibility towards them either as a conveyancer in respect of the settlement of the property, or in some capacity as an adviser, and that he breached the duty arising from that relationship.

66    The breach of duty (presently used as a generic catch-all term) alleged is that McDonald:

(1)    did not tell Kojic that he was not acting, and was not able to act, as the conveyancer for the Kojics; and

(2)    did not tell Kojic that the settlement of the property would not result in the Kojics becoming registered owners of one half of the property.

67    First, these failures are said to be in breach of the duty of McDonald under a retainer to act as the conveyancer for the Kojics. The existence of such a retainer is the essential element of that claim. McDonald did not dispute that, if he were retained as the conveyancer for the Kojics to ensure they became registered half owners of the property, he did not fulfil that retainer.

68    But those failures, in the circumstances, are more generally said to breach a fiduciary duty said to have been owed by McDonald to the Kojics in the circumstances, and alternatively to breach a duty of care owed to them. It is said that, once the relevant relationship arises, McDonald should at least have advised Kojic clearly that:

(1)    he was acting for SCS and the Blanusa interests, so he could not act for the Kojics and that she should seek independent advice; and

(2)    he should have cautioned Kojic against proceeding in a way which would leave the Kojics as unsecured lenders only, and without any clear agreement in writing about the nature of the arrangement with Blanusa.

69    Those failures on McDonald’s part are also said to constitute misleading and deceptive conduct, having regard to the previous dealings between the Kojics and McDonald (including a joint investment with the Blanusa interests for which McDonald was the conveyancer).

70    Those failures, in the circumstances, including the role of McDonald in requesting and then collecting and presenting the bank cheque from the CBA for the Kojic payment, amounted to an implied representation that the settlement of the property would result in the Kojics being registered on the title as a half owner.

71    The Kojics accept that it is important to that part of their claim against McDonald that they show that McDonald did not tell Kojic that she would not get on the title. But they put the alternative contention that there were not reasonable grounds for McDonald representing impliedly that there was a realistic prospect that the Kojics in due course would be able to become registered as half owners of the property.

THE FINDINGS OF FACT

72    It is appropriate at this stage to make some general comments about the evidence.

73    During the course of the hearing, evidence was given by five key witnesses: Kojic, Blanusa, McDonald, Barnden and Coombe. Their evidence was to some extent conflicting and inconsistent, including in relation to the detail of crucial conversations and the alleged dates of those conversations.

74    Aikman’s evidence was, in effect, limited to verifying a file note recording the preparation of the bank cheque. She had no independent recollection of events and relied on the note to describe what she could. I accept her as an honest and reliable witness.

75    A significant time was spent during the hearing presenting and testing evidence concerning the parties’ experience, their interrelationships and the extent to which they could be characterised by “trust” or “reliance”. There is an inherent element of subjectivity in testimonial evidence, particularly where that evidence concerns personal relationships. There is a considerable background to the relationships between the Kojics and Blanusa, between them and McDonald, and to a somewhat lesser extent between them and the CBA. I have considered the evidence in that context. I do not think it is necessary to refer in complete detail to their background.

76    In my view, there are three related questions to address:

(1)    was Kojic aware, prior to settlement, that the Kojic’s name would not be on the title to the properties following settlement, either because of a conversation with Blanusa or a conversation with McDonald?

(2)    was Kojic aware, before settlement, that the CBA was lending money to the company and that inter alia the CBA would be taking a first registered mortgage over the property, and that consequently the Kojics’ interests (if any) in the property would be subject to those of the CBA?

(3)    did the CBA “know” the Kojics were advancing the Kojic payment to finance the purchase of the property, expecting to acquire an interest in one half of the property (unsecured) or in exchange for that payment, rather than as an unsecured loan to the Blanusa interests?

77    That involves, in particular, findings about the detail of the several relevant conversations.

78    The CBA and McDonald submit that there are two occasions when Kojic was informed that the Kojics would not be on title prior to settlement. The first is a conversation between Blanusa and Kojic which allegedly took place on or around 12 November 2009, after Blanusa had been informed by McDonald that it would not be possible for the Kojics to be put on title at settlement. The second is the first of the conversations between Kojic and McDonald, which took place on or about 10 November 2009 (as alleged by the Kojics) or on or about 12 November 2009 (as alleged by McDonald). This date is critical because it is agreed that McDonald did not enquire with the CBA about the possibility of the Kojics being placed on title until 12 November 2009, and therefore would not have known to inform her that she could not be placed on title until this date.

79    Kojic’s evidence directly conflicts with that of Blanusa and of McDonald on this matter. There are no other witnesses, or parties to, either of these conversations. No further evidence was adduced in relation to the conversation between Blanusa and Kojic, and there is limited documentary evidence in relation to the conversations between Kojic and McDonald. Consequently, the submissions were directed to the reliability and/or creditability of Kojic, Blanusa and McDonald both on this topic and generally. As noted, it is also said that the evidence of their prior experience, relationships and the surrounding conduct is instructive, and that Kojic’s knowledge that she would not be on title at settlement can be inferred.

80    For the reasons which follow, I find that prior to the settlement Kojic was aware that the Kojics would not be registered on title at or immediately following settlement. I have had regard to the Kojics’ property dealing experience; the relationship between the Kojics and Blanusa; the relative weight which I have accorded to the evidence of the witnesses; and the conduct of Kojic following the settlement.

81    The assessment of the reliability of witnesses is inherently subjective. It is in part a matter of impression. It is in part a matter of tying oral evidence to contemporary documents. It is in part a matter of what is more sensible in all the circumstances.

82    At the outset, I indicate that I do not regard any of the witnesses to critical events as being deliberately untruthful. To a greater or lesser degree, as the following discussion shows, I have regarded parts of what they said, or what some of them said, as unreliable. That may be the result of reconstruction. It may be the result of inattention to detail at the time of the events occurring. It may be the consequence of being inclined to see the picture evolving from a particular and personal perspective.

83    For instance, I think that Coombe’s evidence was somewhat overcautious. Many of his answers were apparently driven by his emphasis on not being a financial adviser to the customers for whom he was the designated “relationship manager”, including for the Kojics from 2002. If his evidence is taken at face value, it was a somewhat sterile relationship. I am confident that he would not have deliberately misled the Court. However, where his evidence is in conflict with that of Kojic (really on matters of degree or emphasis), I prefer the evidence of Kojic. His evidence lacked any “colour” or spontaneity, perhaps as he had no notes of any real assistance to his memory other than one.

84    There is an electronic note of an outbound phone call of his own (returning a call from Kojic) of 16 November 2009 in relation to the Kojics made at 11.52.54 to 11.56.44. It reads:

[xxxx xxxx] david [sic] Coombe

Rang clients to follow up query re providing assistance to brother-in-law with property purchase. They have requested issue of Bank Cheque for $436,161.97 in favour of hallett [sic] Cove Conveyancers Trust Account. Funds to come from a/c [xxxx xxxx xxxx]. (Funds being trfd from NetBank Saver first) Issue of bank cheque has been approved by writer.

85    There is then an electronic file note of Ms Aikman of 16 November 2009 re the Kojics made at 11.55.57 to 11.58.31:

[08 xxxxxxxx] – bank chq prepared at request of Steve Barnden, in fav of hallett cove conveyancers trust account for $436,161.97. Held at my desk to be collected for settlement at LTO today. Acc [xxxxxxxxxxxx] to be debited, email to be sent to branch to confirm ph request.

86    According to Coombe, the overlap in time is because the telephone call to Aikman was made whilst Coombe was completing his note. The 08 number is Aikman’s phone number.

87    Coombe could not say how Barnden’s name appeared there. He says he did not give that name to Aikman. He does not know how that appeared. He said he did not know until a conversation with Kojic (on either 10 November 2009 according to Kojic or about 11 November 2009 according to Coombe) that the Kojics were planning to co-invest as joint owners with one of Blanusa’s companies in the property. The precise date does not really matter. However, I find that it was on 10 or 11 November 2009, shortly after the Kojics had decided to accept Blanusa’s proposal to take a half interest in the property. Even then, and at no time prior to the settlement, did he know (he says) that Barnden was engaged in financing with the Blanusa interests their purchase of the property, or that the CBA was financing the purchase of the property.

88    In my view, as Aikman’s role was entirely as a conduit, Coombe (despite his evidence), if he did not know that already, came to know that Barnden was acting as the relationship manager for the CBA on behalf of Blanusa sometime between 10 or 11 November 2009 and 16 November 2009. I can think of no other cogent explanation for the name of Barnden appearing on her note. Aikman had no other reason to know of it. She had no reason to know of the transaction generally until that contact with Coombe. She noted the instruction, and in accordance with her routine duties, prepared the bank cheque. There is no other record of Aikman having any other communication with Barnden. I accept Barnden’s evidence that he did not speak to Aikman about the settlement. I note that the finding that Coombe gave Barnden’s name to Aikman does not indicate that at the time he was aware of the terms of the settlement, in particular that the Kojics were excluded from it.

89    It is perhaps surprising that there is no written signed authority to prepare the bank cheque for the Kojic payment, or to release it to McDonald. Nor is there a receipt given by McDonald for the bank cheque. However, equally, there is no dispute that what was done gave effect to Kojic’s instructions. Indeed, as both Kojic and Coombe said, that instruction was given by her by telephone from Darwin, so that may explain the absence of any more formal instruction.

90    To complete reference to Coombe’s evidence, I note that on 29 March 2011 he wrote to the Kojics for the CBA at Kojic’s request confirming the request of 16 November 2009 to issue the bank cheque to enable the purchase of the property to proceed. He recorded that:

From our discussions at the time, it was understood you would be joint owners of the property.

91    The Kojics have, and have had, considerable experience dealing with real property, including the purchase, renovation, development and sale of real property prior to the subject transaction. It is quite extensive, both in South Australia and interstate. Five of their properties were bought with other persons, including one bought with the wife of Blanusa and another person and at least one other with Blanusa. Two of the properties have been rented out, and two separate properties have been subdivided and sold, or partly sold. On one occasion, she did not take up the opportunity to co-invest with Blanusa.

92    Kojic was extensively cross-examined about her level of property knowledge. She clearly knew what a Memorandum of Transfer was and that when taking an ownership interest in the land it is necessary for the purchaser to pay stamp duty. She knew that bank financing of property was common, and involved the grant of mortgage security. Kojic also acknowledged that she studied drafting at Marleston College and accepted that she knew from those studies a little about property law and the buying and selling of properties. That is not to say that Kojic had a sophisticated understanding of the instruments and technicalities involved in effecting property transactions including in relation to bank securities. Clearly, she understood each of the transactions in relation to her own personal interests and she was financially astute. The Kojics submit that they relied on the professionals they engaged, including conveyancers, to facilitate the preparation and execution of the appropriate documents. That is, on the evidence, correct. There is no evidence which suggested that the applicants had previously purchased property without any professional assistance. I accept that the purchase of real property by a property investor does not require that person to have a technical knowledge of the transfer documents, forms and procedures involved.

93    However, in my view, Kojic’s prior experience purchasing and developing real property means that she was aware of certain steps, including the signing of some kind of transfer document by the purchaser for the purchase and transfer of that property, and she knew that in order to be on the title of a property there had to be something in writing that was signed by her.

94    In addition, the evidence shows that she was capable of giving instructions to the CBA to finance the settlement, and she spoke to the conveyancer three times during the preceding days about the contents of the proposed settlement statement. She clearly understood the details of the default interest payments and that they should not be part of her share of the price. At no time during those conversations did she enquire about the papers she would need to sign, or where she would go to sign them.

95    The contents of the draft settlement statements, and her reaction to them are significant to the principal factual issues referred to above. This analysis of those documents is not dependent on the precise dates of her conversations with either Blanusa or McDonald. She received draft settlement statements shortly following her first conversation with McDonald (the copy in evidence shows a facsimile sending date of 31 October 2009, but it is common ground that that date is wrong and for the reasons which follow it is not necessary to address the cause of this error or whether it was systematic).

96    The first set of purchaser settlement statements dated 13 November 2009 (one for each of the two allotments) prepared by McDonald showed the usual adjustments including stamp duty and conveyancing fees. They also included untypical debit items: “preparation of deed of assignment” fee (presumably relating to Cotton’s 10% interest), “additional attendances to default” (apparently fees McDonald was charging for the time spent for previous settlement arrangements and deferrals), “interest penalty” of 230 days from 27 March 2009 to 12 November 2009, and licence fees; in the case of the larger allotment, there was also an item for “Costs of Other parties Notices to Complete” and a credit of $14,318.78 for funds paid to vendor in September 2009.

97    There is no reference to the source of the funds required to complete ($379,745.36 and $573,296.32 for each allotment totalling $953,041.68). There is no reference to Cotton, or to the $90,000 payment he had paid to the Blanusa interests in September 2009 other than (probably) the fee for the preparation of a deed of assignment and the credit payment of $14,318.78. There is no reference to CBA or to its proposed mortgage. The total “penalty interest” is some $43,405.

98    In my view, for reasons which appear below, that set of settlement statements was prepared for a settlement on 13 November 2009 and so existed, and was provided to Kojic on 10 or 12 November 2009 following what I find to have been her first conversation with McDonald on one or other of those dates.

99    The second set of purchaser settlement statements prepared by McDonald is also dated 13 November 2009, and was sent to Kojic in Darwin on 16 November 2009. For each allotment there are only minor changes: the adjustment for the emergency services levy had apparently been overlooked and is included; the interest penalty calculation (but not the period) has been slightly increased on one and slightly decreased on the other (apparently due to a calculation error), and the licence fee slightly increased (to allow for part of November 2009). They show the amount due at settlement as $356,323.62 and $559,838.35 for each allotment, totalling $916,161.97. I find that those settlement statements were prepared on the day or so prior to 16 November 2009, adjusted in part to allow for the slightly later settlement date.

100    Importantly, however, with the two settlement statements sent on that date, McDonald also sent as a separate sheet recording the following:

101    That was the document from which Kojic knew precisely how much to get as a bank cheque for the Kojic payment. And, indeed, she has noted in handwriting on that copy the mobile telephone number of Coombe. I conclude that she then rang Coombe to arrange the Kojic payment.

102    As is evident, that material showed that the purchase price for the property (with the adjustments shown and with credit for the total $25,000 deposit) was to be paid from two sources: $480,000 from the CBA as a loan, and $436,161.97 (the Kojic payment) by bank cheque from the Kojics.

103    I observe that there is no express reference to the CBA mortgage. Nor is there any advice in writing from McDonald about that, or about documenting the arrangement with Blanusa, or that there was no prospect of the Kojics being registered on the title at that time or subsequently (except with the CBA consent and subject to its mortgage).

104    As noted, McDonald duly collected the bank cheque for the Kojic payment, attended settlement, and handed it to the vendor’s conveyancer. The property was transferred to SCS, and was mortgaged to the CBA. Cotton’s interest was not registered, but (as later events showed) it was recognised by SCS and the CBA so that he was repaid $90,000 from the proceeds of the mortgage sale of the property before the CBA applied the balance to reduce the indebtedness of the Blanusa interests to the CBA.

105    The starting point in the period 10 or 11 November to the date of settlement is that, by the time of the first conversation with Coombe, Kojic had told Blanusa that the Kojics would contribute half of the purchase price for the property on the basis of becoming joint (or 50%) registered owners. As she said, she knew from her earlier conversation with Blanusa that there was some urgency in meeting the settlement date required by the vendors.

106    The closing point is that, by at least about 11.30 am on 16 November 2009, Kojic had sufficient information (which I find for reasons which appear below) to know of the vendors’ conveyancers Hallett Cove Conveyancers, and the amount required from the Kojics for settlement. She conveyed that to Coombe.

107    From Coombe’s point of view, I accept that he did not appreciate that the CBA (through Barnden) was proposing to finance about one half of the purchase price (namely $450,000) and to take a registered first mortgage over the property securing that advance and other advances to the Blanusa interests. Indeed, Coombe said that if he had known that the Kojic payment was to be applied at settlement on the basis that the CBA was to advance $480,000 to settlement and to take a first ranking registered mortgage over the property securing that advance and other advances to the Blanusa interests, he would have done something about that. I infer (from his preceding answer in evidence) that he would at least have queried with Kojic whether she should provide the bank cheque as she proposed.

108    It is convenient at this point to refer to the evidence about the arrangement between Kojic and Blanusa. Initially, it is not contentious, although it is desirable to note the nature of the relationship between the Kojics and Blanusa.

109    The Kojics have, and have had, a close relationship with Blanusa. They have known him socially over 30 years. They first met Blanusa in about 1980 at their wedding (Blanusa’s father being a close friend of Kojic’s father). They saw each other quite regularly until 2007 when Kojic moved to Darwin. As noted, the Kojics have also previously been aware of Blanusa’s property interests to a significant degree, and have been approached by Blanusa in relation to financing the purchase of investment property together with Blanusa and his wife.

110    It is the submission of the CBA and McDonald that the relationship between Kojic and Blanusa was so close that Kojic was simply willing to finance the purchase of the property as an unsecured loan to Blanusa. Kojic (and Blanusa) were examined about their personal relationship, and the extent of the Kojics’ prior involvement with Blanusa in the purchase of three properties: 159 Shepherds Hill Road, Eden Hills (the Eden Hills Property), 7 Dumfies Street, Seaton (the Seaton Property) and 144 The Terrace, Port Pirie (the Port Pirie Property). Incidentally, I observe that that cross-examination did tend to suggest that Kojic was less naïve than her evidence-in-chief may have indicated about property investment. For instance, in 2008, Blanusa was in the process of purchasing the Eden Hills Property for $300,000 but was under some pressure to complete settlement before the end of the 2008 financial year but was short on finance. His evidence was that he asked Kojic to help SCS complete settlement by lending it $200,000 as an unsecured loan. Kojic first denied that Blanusa had discussed with her the potential shortage of funds for the Eden Hills Property or that he ever asked her to provide finance for its purchase. However, she later accepted that, while she did not initially consider lending funds for the purchase of the Eden Hills Property, she did provide a short term loan to SCS around that time. The loan was duly repaid. At no point did she seek to be a part owner of the Eden Hills Property. I find it unlikely that Kojic would simply have forgotten such a loan to finance the purchase of land by SCS.

111    I do not think her evidence about the Seaton Property is particularly informative. It was purchased by the Kojics’ son, but essentially by the activities of Kojic, and was subdivided into two blocks and developed for investment purposes. Blanusa said that that purchase and its subdivision were discussed with the Kojics and that Kojic “appeared to [Blanusa] to be the main person behind this development”. McDonald was engaged to assist in the development and said that almost exclusively he had dealings with Kojic. That occurred in the latter part of 2015, so it was well after the subject events.

112    However, the strength of the relationship between the Kojics and Blanusa is also shown by the purchase of the Port Pirie Property in 2008 for the purpose of staff housing rentals for $147,500. Blanusa approached Kojic about investing in the Port Pirie Property. She agreed to pay the purchase price in exchange for being a 50% owner of the property with SCS. She says Blanusa agreed to pay her one half of the purchase price after settlement once the company had received a government contract for the provision of housing rentals. That was not documented in detail. It demonstrates the personal and financial relationship between the Kojics and Blanusa.

113    It is not surprising that, in a general way, by about October 2009 Blanusa had told the Kojics about his plans to purchase and subdivide the property. It is common ground that they had also been told that Cotton had agreed to purchase 10% interest in the property, and that the bank could finance only about 50% of the purchase price.

114    As noted, in early November 2009, Blanusa asked Kojic if the Kojics were interested in investing in 50% of the property. He showed his subdivision plans to her. She in turn spoke to Dragutin Kojic, who was then working in Darwin, and together they agreed to invest in the property.

115    Then, I find, in early November, probably on 10 November 2009, Blanusa again contacted Kojic and she told him that the Kojics would invest in the property. I accept her evidence that she told Blanusa that she would speak to McDonald, as the conveyancer, to find out how much she needed to pay for a half interest, and she would speak to Coombe to let him know that the Kojics would be buying a half interest in the property and to alert him about the need to arrange payment for that. She was aware that the settlement was forthcoming quite quickly.

116    Kojic then called Coombe. They gave consistent evidence about that conversation. I accept her evidence that that was on 10 November 2009.

117    I also find that she also called McDonald either on 10 or 12 November 2009, and probably 10 November 2009. She told him that the Kojics were purchasing a half interest in the property, and requested him to arrange for the settlement documents and to advise her about the amount to pay towards the purchase price. I also accept her evidence that she then disconnected her phone, so the line could be used to receive a fax from McDonald. She then received from McDonald the first set of proposed settlement statements.

118    As I have found, Blanusa says he also spoke to McDonald along the same lines. It is clear enough that, in the first place, McDonald was told about the arrangement and asked by Blanusa (as recorded on his file handwritten note of 11 November 2009) to assign 50% to Maria Kojic, 10% to Cotton, and 40% to a relative of Blanusa. The note has a query whether that should be SCS. On the same page of notes, McDonald has recorded on 12 November 2009 two further conversations: “checked [illegible] Mish [Blanusa] advised difficulties with loan from CBA not include Maria K”; and “spoke to Steve B @ CBA. No time to redo docs given the times”.

119    On the same date, that is 12 November 2009, there is a letter from McDonald to Barnden enclosing proposed settlement statements for settlement on 17 November 2009. They incorporate the revisions from the first proposed settlement statements. It is partly on that basis that I have found McDonald had before that date first spoken to Kojic (as she said) and had sent her the earlier version of the proposed settlement statements.

120    Barnden’s evidence confirms that it was only in a conversation with McDonald on 12 November 2009 that he was told of the proposed arrangement between the Kojics and Blanusa. He also confirms that he told McDonald that such an arrangement could not be implemented for a settlement on 17 November 2009, as the CBA would not accept that proposal without the Kojics also agreeing to the mortgage and providing supporting guarantees, and provided their financial position was acceptable to the CBA after a full assessment. I accept Barden’s evidence that he also said there was not enough time to do all that prior to 17 November 2009.

121    Barnden’s role then, effectively, came to an end. He does not recall speaking to Aikman, and cannot offer any explanation for how his name came to be on her file note of 16 November 2009. He did not speak to Coombe. That is understandable. He passed the CBA file to the CBA settlements team. He simply expected the settlement to proceed. I accept that he did not really think further about how the Blanusa interests were to fund the balance of the settlement sum, other than the $480,000 to be advanced by the CBA.

122    I proceed on the basis that McDonald learned of the CBA’s (understandable) unwillingness to proceed with the settlement on the terms that he, on behalf of Blanusa and the Kojics, had raised on 12 November 2009.

123    It is therefore between 12 and 16 November 2009 that the critical conversations and communications took place. To this point, however, I have accepted the evidence of Kojic about the time and content of the first conversation with McDonald. It took place on or about 10 November 2009.

124    McDonald says he telephoned Blanusa after speaking to Barnden, and also then had telephone calls with Kojic both on 12 and 13 November 2009. For the reasons given, I find that there was an earlier conversation between them than 12 November 2009.

125    Kojic says she rang McDonald on 13 November 2009, the day before she was to go to Darwin. She had examined the proposed settlement statements earlier sent to her, and she wanted to tell McDonald that the Kojics would not pay the default interest payments, as that was really a matter for Blanusa. She wanted revised settlement statements, and advice as to what was required for settlement by way of the Kojic payment.

126    She also says that, after receiving the fax referred to above, while in Darwin on 16 November 2009 with the revised proposed settlement statements, she saw that they still included the default interest payments (a little higher than previously calculated). She says she then telephoned McDonald again, and said an adjustment would have to be made to remove those default interest payments. Her statement says, as a result of this conversation, she was satisfied that the Kojics were not paying any part of the default interest payments.

127    On 16 November 2009, she then spoke to Coombe to arrange the Kojic payment by bank cheque. She also says she expected to be called to an office in Darwin to sign the necessary documents, so the Kojics could become half owners at settlement, and that she thought the settlement was on 17 November 2009.

128    Kojic then says she had a telephone call from Blanusa on 17 November 2009, whilst still in Darwin. It was on that occasion that she was first told that the CBA had not had enough time to change the documents so that the Kojics were not put on the title to the property. Blanusa said she should “go to the title office and put my name on the title as well”. She did not do so, as she was confident the CBA knew that the Kojics had purchased a half interest in the property.

129    I do not accept all her evidence about those conversations. In particular, whilst it is clear that she would not pay the default interest payments, I find that both Blanusa and McDonald on 12 and 13 November respectively told her that there was not enough time for the CBA to put the Kojics on the title at settlement. She did not on 16 November 2009 expect to sign any transfer or related documents before the settlement.

130    Blanusa, after he was given the “go ahead” by Kojic on or about 10 November 2009, passed that on to McDonald. He says he then had a further telephone call from McDonald (which I find was on 12 November 2009 following McDonald’s conversation with Barnden). His evidence is that he then spoke immediately by telephone to Kojic, and after he had spoken to her he again spoke to McDonald.

131    There is no useful contemporaneous record of any of Kojic, Blanusa or McDonald about their telephone discussions after McDonald had spoken to Barnden on 12 November 2009.

132    In oral evidence, both McDonald and Blanusa said that they had a telephone conversation to discuss Barnden’s response. I accept that. I accept that it took place on 12 November 2009. There is no reason not to accept their consistent evidence that Blanusa said he had expected that sort of response from the CBA. Any experienced property investor would have done so. I also accept that it was agreed between them that it was necessary to report the CBA response to Kojic, and that Blanusa said he would speak to Kojic about that.

133    Blanusa’s evidence was given in an apparently honest and direct way. Having been told on 12 November 2009 by McDonald of Barnden’s response, he says (as does McDonald) that he was to contact Kojic and discuss the problem with her. He promptly did so. There is good reason why he should, as of course his (the SCS) capacity to settle on the purchase of the property was dependent on getting funds from the Kojics. He gave a convincing description of the conversation with Kojic, including telling her the CBA would not alter the documents for the settlement, a joke about being “ripped off”, and a mutual agreement to proceed with the settlement.

134    There was at that occasion no discussion of the extent of the CBA mortgage. Blanusa did not point that out. He did not say anything specifically when Kojic remarked that, despite the CBA position, Coombe knew the property was to be half owned by the Kojics. There was no suggestion by Blanusa suggesting that half ownership by the Kojics was not the ongoing basis of their agreement, or that the Kojic payment would really be by way of an unsecured loan.

135    I find that as between the two of them (but not the CBA), things had not altered. Indeed, if the CBA mortgage had been limited to securing the $480,000 advanced by the CBA at settlement, the present issues may not have arisen.

136    Blanusa should have pointed out, but did not point out, the extent to which the borrowings of the Blanusa interests were secured by the mortgage. He was aware of it. As an experienced property investor he should have understood its significance.

137    On the basis of his evidence, which I accept, I find that Kojic knew on 12 November 2009 (and not only on 17 November 2009) that the CBA would not alter the documents for the settlement so the Kojics’ interest in the land would not be registered at that time. She also knew the CBA was taking a first registered mortgage over the property securing its advance to SCS to complete the settlement. As it happened, the Kojic payment (as she then understood it to be) did reflect about half of the purchase price. To the extent that Kojic’s evidence is that she did not know of those things (or realise them) until at the earliest shortly before the settlement, I do not accept her evidence. I do accept that she believed, notwithstanding those findings, that as between the Kojics and Blanusa, and subject to Cotton’s interest, the property was owned equally. In the light of their past dealings and their friendship, I think the Kojics’ passivity until late February 2009 about getting the Kojics on the title is quite understandable. She may properly have expected the subdivision to proceed and be sold, and the net proceeds shared equally with the Blanusa interests. The Blanusa share may have had to be applied to discharge the borrowing from the CBA to buy the property secured by the mortgage. On Blanusa’s part, he gravely mislead Kojic by not telling her that, by reason of the borrowings of the Blanusa interests and the fact that they also were secured by the mortgage, there was really no residual equity in the property. As other evidence shows, the Blanusa interests were significantly indebted to the CBA. It is also appropriate to note that Blanusa’s subsequent conduct in relation to the CBA is consistent with him not having appreciated that the mortgage security was so extensive.

138    In my view, Kojic upon seeing the first proposed settlement statements, did speak to McDonald on 12 or 13 November 2009 and did complain to him about being expected to pay a proportion of the penalty interest payments. McDonald does not dispute that. Both agree the call was initiated by Kojic. That is of some significance, as it might have been expected that McDonald, after speaking to Barnden, and then Blanusa, might have contacted Kojic himself. I think the explanation for that is, as he and Blanusa say, that it was agreed between Blanusa and McDonald that Blanusa would tell her about the CBA response.

139    McDonald’s evidence of his conversation with Kojic on 12 or 13 November 2009 is quite detailed. She sought the revised settlement statements, which (he said) he was still preparing.

140    I interpose to note that, although some changes were made (as noted above), he did not remove the default interest payments at any time. He acknowledges he was asked to do so. There is no reason why he should not have done so for the purposes of calculating the money to be paid by the Kojics. He understood clearly that he had been told they would not pay those sums. I think it reflects an attitude on his part to get the settlement through. Indeed, there is no attempt on his part, at any time, to calculate what the Kojics should pay for a half share of the property. It was not specifically explored why that was not so.

141    However, I accept that he told Kojic on that occasion that the CBA would not or could not redo the documents with the Kojics getting on the title, and preserve the settlement date. Kojic (he said) then responded that that would be acceptable, as the Kojics could be added to the title later: it only involved changing the name of the registered owners. As I have found that Blanusa had already passed on to Kojic that the Kojics could not get on the title at settlement, having regard to Blanusa’s version of the conversation with Kojic (which I have accepted), the response of Kojic to Mc Donald is understandable.

142    The next step in the conversation, according to McDonald, was his response that the CBA was taking a mortgage over the whole of the property. He may have said that as a short comment. He did not say (on his own evidence) that the CBA mortgage was to or might cover extended borrowings of the Blanusa interests, that is that it secured more than the money being advanced to acquire property. Indeed, he did not say that it was advancing a particular sum, namely $480,000, towards the purchase. That information appeared only on the note he sent to Kojic with the settlement statements on 16 November 2009. He agreed to send the revised settlement statements, as he shortly did.

143    McDonald gave evidence of a telephone conversation with Kojic on 13 November 2009. He said he initiated that call. He went through the proposed settlement statements with her line by line to identify what Kojic said she should not have to pay for. In that context, they discussed the default interest payments, the caveats and related costs, possibly the deed of assignment, and the licence fees. I do not place weight on his evidence of this conversation. There is no note of it. He did not say (as he then knew) that the Kojic payment would be an unsecured loan, or that because they would not get on the title it did not much matter how the loan was to be applied. There was, on his evidence, no discussion on that occasion of the Kojics not getting on the title. Nor was there any discussion about what, if any, documents the Kojics should or would have to sign. Indeed, I have some concerns about the details of McDonald’s evidence about these conversations. I have noted what he did not say about the mortgage. He did not say, and did not assert in submissions, that the Kojic payment would be for the balance of the purchase price (above the CBA lending) rather than for a half interest in the property. That is, in my view, because it remained his understanding at all times that the Kojics were prepared to pay for a half interest in the property, even if they were not to get on the title immediately. That remained the shared intention of Kojic and Blanusa, and he had no reason to go behind that to give effect to some different arrangement. However, he made no calculations to give effect to that understanding. He made no attempt to calculate the cost of that half interest (with or without Cotton’s interest). He made no attempt to remove the adjustments on the settlement statements representing Blanusa’s default interest and related costs.

144    In my view, it is significant that the detail of his conversations with Kojic was not put to her in cross-examination for her response. So, I am not confident that McDonald’s evidence was all reliably recalled and was not in part reconstruction. I also have the view that Kojic was astute enough in her own interests not to invest where she did not see any realistic prospect of recovering, and profiting from, her investment. There were clues in what she was told by McDonald and Blanusa or received from McDonald that may have lead her, upon more careful thought and investigation and analysis, to realise that she was committing the Kojic payment without any realistic prospect of securing an interest in the property, because of the security taken by the mortgage to the CBA. I note her evidence that the amount of the Kojic payment represented, in her mind, about half of the purchase price (as it did). I have also taken into account that McDonald’s notes of his conversations with Kojic and Blanusa about this time are very scanty; it is not a standard of note taking which one would expect of an appropriately cautious professional conveyancer on the topics he was addressing about their arrangement.

145    I was also unimpressed with McDonald’s evidence that, at no time, and in no capacity, did he act for the Kojics in relation to the subject transaction. What did he expect he was asking when she telephoned him to tell him that the Kojics were to be co-investors? If the CBA had agreed, would he have prepared the transfers and settlement statements? The answer is clearly yes. He had previously acted for the Kojics, including in one instance jointly for the Kojics and the Blanusa family. He did not otherwise ask her who was acting for her, or who was advising her. He did not say he could not act for her because of a conflict of interest. At best on this topic, his evidence was semantic and evasive. He did not accept that, following Barnden’s response to the proposal of a co-investment with SCS and the Kojics, he was required to convey to Kojic that response.

146    Consequently, in the conversation of 12 or 13 November 2009, I think McDonald’s focus was not as clear as some of his evidence suggests. I accept he told Kojic the Kojics could not, at settlement, get on the title. But I do not accept that he explained in any detail the extent or the consequences of the CBA proposed mortgage, or that he explained in any detail that the proposed mortgage would, or might, mean that the ongoing arrangement between Blanusa and the Kojics was not of any real value to the Kojics.

147    Kojic was adamant that it was only on 16 November 2009, and when she was in Darwin, shortly before the scheduled settlement, that she was told by McDonald that the Kojics could not be put on the title by the time of the settlement. She disputed that occurred on 12 November 2009. I reject her evidence about that. She said that she still expected the default interest to be taken off the settlement price for the Kojics, and to be included on the title, when she left Adelaide for Darwin. Although in a general sense, she gave her evidence in a satisfactory way, her evidence of her conversation with McDonald on 16 November 2009 is a little concerning. She did acknowledge that, apart from complaining that the default interest payments had not been taken off, she was unsure whether she was then told by McDonald that the Kojics would not be put on the title. He also is said to have told her that the Kojic payment amount had been calculated, having taken off those payments. That is clearly not correct in fact: the separate page shows a total amount due of $916,161.97 which is the total of the two amounts due on the separate settlement statements. By reference to them, these amounts clearly remained. It was not explored with Kojic whether she had made that calculation. Her subsequent conduct also is consistent with expecting there to be no significant obstacles (stamp duty aside) to being put on the title.

148    I have concluded that Kojic was mistaken about that. She must have conflated the conversations with Blanusa and McDonald on 12 and 13 November 2009, when she was told the Kojics would not be put on the title at settlement, with this occasion. I accept there was a conversation on 16 November 2009 about the default interest payments and that somehow she was reassured by McDonald. In my view, it was a relatively brief conversation.

149    It is now necessary to refer to Barnden’s evidence briefly.

150    Barnden said that he was aware that the Kojics were clients of the CBA for some time prior to November 2009, and that (through McDonald) on 12 November 2009 he knew that they were proposing to acquire a half interest in the property. He told McDonald that could not be done if the settlement on 17 November 2009 was to proceed.

151    Barnden also agreed that he knew that Coombe was the CBA relationship manager for the Kojics. He did not speak to Coombe about the proposed capital investment by the Kojics. He did not really concern himself with the source of the funds to complete the settlement (other than the CBA’s loan of $480,000) either prior to 12 November 2009 or after the conversation that day when he had said that the settlement could not proceed if the Kojics were to become part registered owners, simply because there was no time to give effect to that. As he also said, that would have required significant re-assessment of the financial capacity of both the CBA sets of clients and significant revised and further documentation.

152    Barnden gave his evidence in a straightforward and impressive way.

153    I do not conclude that Barnden and Coombe spoke to each other prior to the settlement. In my view, (as they each said) Coombe and Barnden knew each other and that each was the relationship officer for the Kojics and the Blanusa interests respectively, Coombe did not tell Barnden at or prior to arranging the bank cheque for the Kojic payment that it was (as he acknowledged he understood) for the purpose of the Kojics getting a half interest in the property. For his part, Barnden proceeded to the settlement on the same basis as existed prior to the involvement of the Kojics. That is, the property purchase was to be partly funded by an advance of $480,000 from the CBA, secured by a registered first mortgage (also securing extensive other borrowings of the Blanusa interests from the CBA). He was not particularly concerned about the source of the balance required for settlement. If it was not available, the settlement would not take place. He had been asked on 12 November 2009 whether the settlement could be restructured, as the Kojics proposed to acquire half of the property, but the settlement was too close to do all the necessary inquiries, re-arranging of debt structures and documentation. Barnden did not then reconsider how the balance of the purchase price was to be funded. Although he did not expressly say so, it appears he simply assumed that what Blanusa (he had assumed) had previously arranged and was to have occurred at settlement would still occur. Blanusa had not told him on or up to 12 November 2009, or afterwards, that without the Kojic payment he would not be able to settle.

154    So that it is not thought to have been overlooked, I note that Kojic in 2011 engaged solicitors to act for the Kojics, apparently in relation to a then proposed action against the CBA to recover the Kojic payment. Those solicitors prepared statements of McDonald which (it was said) were inconsistent with his current evidence because they did not refer to McDonald’s conversation with Kojic when (as he now says) he told her the Kojics would not be placed on the title at the settlement. I did not find the evidence of those statements, or their contents, or the evidence of Marjars (the solicitor then conducting that potential claim) as of meaningful significance in assessing credit. The differences between the various versions of McDonald’s statements prepared in 2011, having regard to their purpose and their focus, were not such as to merit any adversely critical assessment of McDonald’s credit.

FINDINGS: CONCLUSION

155    There are four persons or entities who are said to have fault and whose conduct contributed to the loss which the Kojics eventually suffered.

156    First, Blanusa. In my view, he was seriously derelict in his communications with the Kojics. He presented to the Kojics an investment opportunity which he either knew or should easily have recognised was unlikely to occur. I accept that he did not deliberately cause the Kojics to make the Kojic payment, so as to lose their investment. His interests (he thought) were parallel with theirs: if the subdivision occurred, he obviously thought it would be profitable, and the SCS 40% share of the proceeds would be sufficient, at least, to clear the $480,000 advanced by the CBA and give him a good net profit (in effect the CBA was financing his share of the purchase price) and the Kojic 50% share would give them a good profit.

157    Blanusa did not tell Kojic about the extent of the indebtedness of the Blanusa interests to the CBA, except in a general way (she said she was not interested) and more importantly, did not tell her that the CBA mortgage would secure all that indebtedness, so the CBA would have a first call on any net proceeds of the sale of the property, whether before or after subdivision. Blanusa, I find, also did not tell Barnden that, without the Kojic payment and their purchase of a half share of the property, he could not settle the purchase on 17 November 2009. In short, his is a case of blindly optimistic greed.

158    McDonald was in a position where he was, in a practical sense, looking after the interests of the Kojics. He had acted for them before. He knew they proposed to take a half share in the property. He knew they had no other advisers. He knew that, by reason of the settlement, the CBA was in effect taking a first registered mortgage over the property to secure the indebtedness of the Blanusa interests. He did not explore whether that was only for the $480,000 or a greater sum. He did not tell Kojic that there were any risks in proceeding to settle, despite understanding that her expectation remained that the Kojics would be eligible to become joint owners (with a meaningful 50% equity) in due course. He did not prepare the settlement statements in any way to reflect their claimed interest, as between themselves and SCS, by eliminating from any calculations the default interest payments and related costs when telling the Kojics the amount of the Kojic payment. Indeed, there was no attempt to calculate the amount of the Kojic payment by reference to a half share in the purchase price (either before or after taking into account the CBA advance of $480,000).

159    Kojic for the Kojics was also very silly. She knew by 12 November 2009 that they would not be able to get on the title at settlement. She knew the CBA was providing mortgage funds to SCS, and at least on 16 November 2009 that its advance was for $480,000. She knew that the normal procedure was for documents to be signed before an interest in the property could be obtained, and she knew such documents were not being signed. In essence, she trusted Blanusa. She asked no meaningful questions. She was experienced enough to have done so. Any sensible investor would not have proceeded on Blanusa’s say so, with the available information, except by making a deliberate choice to provide what might turn out to be (and did turn out to be) an unsecured loan to SCS with an agreement to share any profit of SCS on subdivision and realisation. I accept that the Kojics did not intend to do that. They had sufficient signs available to them to be on guard, but their trust in Blanusa meant sensible inquiries were not pursued, and sensible questions of McDonald were not asked.

160    That leaves the CBA. In my view, (with one reservation), neither Coombe nor Barnden as individual bank officers and relationship officers acted inappropriately in relation separately to the Kojics (Coombe) or to the Blanusa interests (Barnden).

161    The reservation is whether one or other of Coombe or Barnden proceeded with their respective roles in the overall transactions knowing that the CBA was permitting a client of the CBA (the Kojics) to provide what amounted to a very substantial unsecured loan to SCS or the Blanusa interests, when the Kojics believed that the Kojic payment was for a half interest in the property and that they would remain eligible, after the settlement, to formalise that half interest in a realistic sense (that is, where they would be able to obtain an unencumbered half interest in the property) on the assumption that any CBA mortgage would cover only the sum of $480,000.

162    I do not make that finding adversely to either Coombe or Barnden as individual bank officers. I do not regard either as an unreliable witness. I have taken into account the challenge to their respective credit, made by the Kojics and in part based upon the quality of the discovery initially given and their respective affidavits concerning that.

163    I also do not take the step, urged by the Kojics, to conclude that Barnden was put on notice by the McDonald conversation of 12 November 2009. He was informed of a proposal. He rejected it. Nothing was then said to him to suggest that, without the Kojic payment, the settlement could not proceed. He had expected the settlement for 17 November 2009 to proceed prior to that conversation, as indicated by the extensive work in preparing the facility documents for the arrangements with the Blanusa interests and the documents for settlement, including the mortgage. There is nothing to show that the prospects of settlement altered following that conversation with McDonald.

164    That leaves the question whether the CBA, by reason of its collective knowledge through Coombe and Barnden, in any event acted incorrectly. If their collective knowledge is the knowledge of the CBA and that knowledge then is the proper measure of its conduct, it should at least have counselled the Kojics against making the Kojic payment in the circumstances. That is what Coombe said he would have done if he had known of the CBA mortgage coverage, as the Kojic payment is likely to have been made where there was no equity in the property being available to the Kojics. In addition, the reality of the transaction, was that the CBA improved the security over its risk to the Blanusa interests by the Kojic payment and at the expense of the Kojics.

165    It is necessary to consider the legal consequences of my findings.

THE LIABILITY OF THE CBA

166    As the findings of fact indicate, I do not consider that Coombe assumed a responsibility to ensure that the Kojics acquired a registered half interest in the property, not subject to the CBA mortgage. He had only two short conversations with Kojic. However, as he said, he would have counselled Kojic against providing the Kojic payment from their funds in the CBA if he had known that her expectation of getting a half interest in the property at settlement was not going to be realised.

167    I have, however, not taken the further step (urged by the CBA in submissions) of finding that Kojic knew she was simply lending the Kojic payment to SCS or the Blanusa interests, without any prospect of securing any equity in the property. The fact that the amount of the Kojic payment did not, on any calculation, really approximate the amount payable at settlement for a half interest in the property does not dissuade me from that conclusion.

168    I have also accepted that Coombe and Barnden did not speak to each other about this transaction. However, as noted, Barnden when he was told by McDonald on 12 November 2009 that the Kojics wanted to participate as half owners of the property did recognise that the Kojics were also clients of the CBA and that Coombe was their relationship manager. Coombe also knew or realised at material times that Blanusa (or the Blanusa interests) were also clients of the CBA and was aware that Barnden was their relationship manager. That is implicit in the finding I have made that it was Coombe who was the source of the reference to Barnden in the note that Aikman made. In my view, the most likely explanation for Aikman’s note referring to Barnden (consistently with Coombe’s understanding at the time) was that Coombe, when requesting the bank cheque for the Kojic payment, mentioned to her that the bank cheque was for a settlement being arranged for Barnden (or more accurately a client of Barnden). There are other options canvassed in the evidence which are very unlikely, once it is accepted that Barnden did not speak to her.

169    The CBA submitted that the knowledge of the CBA in the present circumstances is not the conflation or the aggregation of the knowledge of each of Barnden and Coombe.

170    Its contention is that the Court may attribute knowledge to a company based on the collective knowledge of its officers and agents depending upon the type of information on the effect that such a piece of information may have or should have on particular employees, the employees’ positions, the proximity of the employees to the relevant transaction, and whether the Court is evaluating subjective or objective knowledge (ie, did the company have “reason to suspect” something). It says the present circumstances do not lead to their separate knowledge, collectively, being the knowledge of the CBA.

171    Here it is pithily said Barnden knew certain matters and Coombe knew other matters, and the two did not collide. The reason they did not collide is that each had knowledge of separate transactions, and not knowledge going to the one transaction.

172    Reliance was placed on Re Chisum Services Pty Ltd (1982) 7 ACLR 641. In that case, a trustee in bankruptcy was seeking to recover from a bank an alleged preferential payment pursuant to s 122 of the Bankruptcy Act 1966 (Cth). The question was whether the bank had “reason to suspect” that the debtor was insolvent at the time of the payment. It was argued that the individual knowledge of two employees, each in isolation insufficient to make out the “reason to suspect” criterion, but in combination sufficient to make it out, could be so imputed to the bank. Wootten J said at 650:

The inference that has to be drawn is that the payee had reason to suspect the specified matters. The reason to suspect would only arise from the co-existence of the separate pieces of information in one mind, and I do not think that it would be sufficient to say that both pieces of information were possessed by the bank through separate agents, unless one had the duty and the opportunity to communicate to the other. Such a result would be quite artificial. The law relating to corporations has been bedevilled in many respects by fictions arising out of the equation of the legal personality given to a corporation with the personality of an individual with all human attributes. Such fictions are to be avoided wherever possible; the law can only hope to operate justly if it looks at the realities. In the present case the reality is that there is no “super mind” identified with a legal personality of the bank, in which the knowledge of various officers can in good fact be aggregated for the purpose of reaching a conclusion as to whether the bank acted in good faith.

173    It is, however, important to recognise that those comments do not form the reasons for the court’s decision. His Honour had already concluded, for other reasons, that the payment in question was a preference, because of the knowledge at the date it was made of the manager of the particular branch of the bank. The passage referred to is under the introductory comment at 647 that his Honour is saying “something about the other evidence offered by the plaintiffs”. Relevantly, it concerned the knowledge of the winding up petition of the payer company, issued a few weeks before the receipt of the preferential payment. Notice of the petition was received by the head office in Dun’s Gazette about 10 days before the payment. That Gazette was routinely sent to branches, but had not been routinely sent to them by the time of the payment. His Honour would not have been prepared to accumulate the knowledge of the officer in the head office with that of the branch manager. The duty of the officer in the head office had been routinely complied with, but not (as it happened) to be received by the branch by the time of the payment. Indeed, as the initial issue was the timing of the circulation of the Gazette, Wootten J at 651 specifically said that the question whether earlier circulation should have been made is a matter which may arise in the future, and which was unnecessary to address.

174    The Kojics in turn relied upon the consideration of Drummond AJA (with whom Lee AJA agreed at [1100]) in Westpac Banking Corporation v The Bell Group Ltd (in liq) (No 3) (2012) 270 FLR 1 at [2178]-[2200] under the topic heading “Aggregation of Knowledge of bank officers and of other material”. That discussion largely concerned the High Court decision in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 (Krakowski), and the subsequent decisions in which it has been considered or applied.

175    On that topic, Drummond J concluded at [2200]:

Krakowski does not support his Honour’s opinion at [6159]-[6161] that the aggregation of information of various officers and agents of the bank was permissible only if each had a duty to communicate what each knew to the other or to some central superior. The High Court held that aggregation of knowledge possessed by various agents and employees of the company could be relied on to show the company’s state of mind, but made no suggestion of that being dependent on each of those personnel having a duty to communicate what each knew. The court did not refer to that concept at all.

176    It is desirable to refer in a little more detail to Krakowski. It was found in that case that the vendor of shop premises had fraudulently misrepresented the nature of a lease of the premises. The purchaser sought, and was given, the assurance that the property was leased for six years at a specified rental. There was a lease to that effect. However, the vendor had a supplementary agreement with the tenant that the first three months (from the date of the sale and purchase contract) were rent free, and the landlord/vendor would pay the tenant a sum equivalent to a year’s rent for fitting out and stocking the shop. The supplementary agreement was not disclosed to the purchaser.

177    The sale and purchase agreement did not disclose the supplementary agreement. It said that the lease agreement was the entire agreement between the vendor and the tenant. The solicitor for the vendor was not aware of the supplementary agreement and the officer of the vendor responsible for the sale and purchase contract did not understand that it was of significance to the vendors. Hence, despite that officer’s state of mind, the knowledge of others who had dealt with the purchasers was part of the knowledge of the vendor. The majority (Brennan, Deane, Gaudron and McHugh JJ) said at 583:

A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.

178    That passage refers by footnote to what Wootten J said in Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 at 485 in support. There Wootten J said:

Corporations must be held responsible from those who act on their behalf, whether an act is performed by one person or by a number. Doubtless there may be problems of mixed motives as between individuals, as indeed there often are within an individual, but it is better for the courts to grapple with the true facts, however difficult that may be, and to shut out the realities of corporate action by arbitrary rules of evidence.

179    As noted, the CBA says that those cases are different, because they concern one transaction in respect of which different employees of a corporation have different knowledge and (it must be accepted) where those employees do not have a duty to communicate with each other. The CBA then says that here there are two separate transactions, one under the control of Barnden and one under the control of Coombe.

180    I do not accept that, in the particular circumstances, there were simply two separate transactions. The evidence shows that one would not have occurred without the other. The obverse was the finding in Krakowski: the sale would not have occurred if the proper disclosure of the supplementary agreement had been made. Moreover, the Aikman note records this interaction rather than confirms their separation. Equally significant is that the CBA, through Coombe would not simply have allowed the Kojic payment to be made if he had understood the full nature of the transaction. Both Coombe and Barnden knew, in broad terms, what the other was doing for two clients of the CBA, leading ultimately to the settlement. What was lacking (and this observation is not personally critical of either of them) is that the overview understanding of the transactions as it unfolded, by the combined knowledge of each of them, would (I find) have led to the settlement not proceeding. Finally, but most importantly on this issue, it is the fact that the CBA by the transaction improved its position as a secured creditor to the Blanusa interests at the expense of the Kojics to the extent that the settlement increased its security by the value of the equity in the property covered by the Kojic payment.

181    I do not think it is helpful or necessary to endeavour to definitively describe when there will be one transaction, and when there will be two separate transactions. That is a judgment to be made in the particular circumstances. An example is provided in Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292 (Radio Rentals).

182    In view of that conclusion, I do not need to address the alternative contentions of the Kojics that, in any event, Barnden had an obligation to inquire as to the nature and quality of the Kojics’ consent to the settlement as it took place. As I have observed above, I do not think that such an obligation existed.

183    The position therefore is that the CBA knew, at the time of the settlement that:

(1)    its client, the Kojics, was making the Kojic payment to enable the settlement to proceed, but in the belief that their payment was as between themselves and SCS for one half interest in the property which SCS had available to it to provide;

(2)    even though the Kojics knew that they would not be recorded at the time of settlement as the part registered owners, they did not understand that the CBA’s first mortgage would secure not only the amount the CBA was advancing towards the settlement, but additional borrowings of the Blanusa interests from the CBA, so that in essence there was no residual equity in the property;

(3)    the Kojic payment was therefore effectively an unsecured loan to the Blanusa interests.

184    I also conclude that, if the Kojics had known the real practical nature and effect of their payment, they would not have made the Kojic payment. There was little cross-examination of Kojic to explore whether she would have made such an advance in the circumstances. No doubt, she would have denied that. But in any event, she would not have done so without inquiry about Blanusa’s capacity to repay, and the only information she had (as exposed in the evidence) was that Blanusa had trouble paying for the balance of the purchase price.

185    It follows that, as Coombe recognised by his evidence about what he would have done if he had understood the nature of the Kojic payment, the CBA was in a position where its interest (in the settlement proceeding and the proposed mortgage being registered) conflicted with that of its client. The submission of the CBA recognises that the rights of SCS were in play, but its submission as a corollary that the CBA may have been in breach of its contract with SCS if it declined to advance its $480,000 is specious. It would have advanced the funds if SCS could otherwise settle. SCS could not otherwise have settled. The settlement would not have proceeded, because SCS had no resources (other than the Kojic payment) to enable it to do so.

186    I do not think it is necessary to address separately all the causes of action pleaded against the CBA. I do not regard any particular cause of action, if established, as generating an entitlement to relief which, in any practical sense, would be materially different from that granted under other available causes of action. I address the issue of contribution later in these reasons.

187    I do not therefore propose to address the competing contentions about whether, in the circumstances, the CBA was or became subject to a resulting or constructive trust by reason of the settlement in respect of the proceeds of sale of the property, or the existence or extent of any fiduciary or common law duty owed to the Kojics, or whether the CBA conduct gave rise to misleading and deceptive conduct which caused the Kojics’ loss, or was in breach of its contract with the Kojics.

188    In my view, the CBA’s conduct because of the knowledge it had was unconscionable, as that expression is used in ss 51AB and 51AC of the TPA as relevantly in force in 2009. Those provisions are now in ss 21 and 22 of the Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2010 (Cth). Nor is it necessary to debate whether those provisions, or ss 12CB and 12CC of the ASIC Act apply. The provisions are relevantly the same.

189    In Radio Rentals, Finn J said:

Central to the purpose of the doctrine of unconscionability is to relieve against taking “an unconscientious advantage”: Amadio at 462; or “exploitation” or “victimisation” of another: O’Connor v Hart at 1024; Bridgewater v Leahy at [75]-[76]; Louth v Diprose at 638. In short, it is to relieve against an abuse of power possessed by one party over the other by virtue of the other’s position of special advantage.

190    In my view, it was contrary to good conscience for the CBA to take part in the settlement of the property and to accept the Kojic payment when it knew that the Kojic payment, as a payment by one of its clients, was intended by the Kojics to secure a half interest in the property (by arrangement with SCS) but would not do so because of the terms of its proposed registered mortgage. Even at a lower level, reflecting Coombe’s appropriate response, it was contrary to good conscience for the CBA to take part in the settlement of the property under which the Kojic payment was made, because it was a payment by a client of the CBA to the clear detriment of the client and to the clear benefit of the CBA when the client did not understand that that was the case.

191    There is little point in referring in detail to comparative decisions. The assessment of the conduct is fact specific: Australian Securities and Investment Commission v National Exchange Pty Ltd (2005) 148 FCR 132; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 at [23].

THE LIABILITY OF McDONALD

192    In the case of McDonald, the position in the light of the findings above is quite straightforward.

193    The formation of an agreement may be inferred from the conduct of the parties. There are various situations in which a contract may be implied, including what is indicated by their conduct.

194    As I have noted, if the CBA had agreed for the Kojics to go on the title, there is no real doubt that McDonald would have acted for the Kojics as their conveyancer.

195    McDonald’s position is that he was asked by Blanusa to make an inquiry with the CBA to see whether it was possible to include the Kojics’ on the title. Barnden said it was not. McDonald communicated this to Blanusa and to Kojic. Then Barnden told McDonald to proceed with the transaction without the Kojics name on the title. As such McDonald (says) he never became the Kojics’ conveyancer or had any other relevant obligation to them.

196    In the light of my findings, that is an inappropriate simplification. McDonald did not get contacted by Blanusa about Kojic in a factual vacuum, and he did not speak to Kojic in a factual vacuum. He knew the difficulties Blanusa had in financing the settlement. He knew that the Kojics expected him to secure a half interest for them. His communication with Barnden was on behalf of Blanusa and the Kojics. I have noted above the quality of what he then told Kojic, and more importantly what he did not tell her. He apparently drew the Deed of Assignment with respect to the Blanusa/Cotton arrangement.

197    In my view, the contract between the Kojics and McDonald required the exercise of reasonable care and skill, to an extent as a conveyancer but in the circumstances something a little more. Alternatively, there was a relationship between the Kojics and McDonald in the circumstances which required him to exercise the same degree of care and skill even if no contract existed.

198    As a general principle, the terms and scope of a contract determine the duties of a party, and the standard of care required to be exercised. The content of any duty of care will in turn depend upon the specific circumstances of the case, including in the case of professionals, what the professional was instructed to do: Hawkins v Clayton (1988) 164 CLR 539 at 579-580 per Deane J; Hill v Van Erp (1997) 188 CLR 159 at 167 and Astley v Austrust Ltd (1999) 197 CLR 1.

199    It may be accepted that there is no readily identifiable legal authority supporting the proposition that a conveyancer has an implied duty to advise upon the commercial prudence or wisdom of a transaction or an investment. McDonald accepts that this did not mean that he had no legal obligations to the Kojics. In evidence, he was asked what he considered his obligations to the Kojics were. He stated he considered that, if he thought Kojic was under a misapprehension about where the Kojic payment was going or if she had an apparent misunderstanding about the nature of the Kojic payment, he should at least correct her. Despite his evidence that, to an extent, that is what he had done on two occasions during the relevant telephone discussions, I do not accept that he did so satisfactorily.

200    When it became apparent that the CBA would not accommodate the joint proposal of Blanusa and the Kojics that, at settlement, the Kojics would receive a half interest in the property as part of the settlement, a competent conveyancer in the circumstances would have done more for the Kojics than McDonald did. Those steps would have included (at least) pointing out the potential conflict of interest, and – in the light of Kojic’s expressed anticipation to him that it would be all right as, between the Kojics and the Blanusa interests, they could later get on the title – pointing out the difficulties and costs in that occurring or the desirability of receiving independent conveyancing advice. It was not sufficient to tell Kojic of the CBA response and the fact of the CBA mortgage, without reference to its extent. Nor was it sufficient to then arrange the Kojic payment as he did without at least expressing clearly the consequences, or the risks of such consequences, to the payment being recovered because he knew or should have known that the basis on which the Kojic payment was being made was not a realistic basis to proceed without further consideration.

201    In my view, those conclusions are consistent with the cases to which McDonald referred in his submissions. I note in particular Vroon BV v Fosters Brewing Group Ltd [1994] 2 VF 32 (Vroon); Skilled Group Ltd v CSR Viridian Pty Ltd [2012] VSC 290 (Skilled) and Rigg v Sheridan [2008] NSWCA 79 (Rigg).

202    Vroon concerned an alleged joint venture agreement for the acquisition and conversion of a ship as a live sheep carrier. A subsidiary of one party entered into a charterparty for four years, but terminated the charterparty due to a war clause. The plaintiff (one joint venturer) sued the other joint venturer for specific performance, claiming the defendant had in effect promised that the benefits of the charterparty would continue for four years. It was accepted that the charterparty was validly terminated by the charterer. That very brief statement of the issues shows how fact-specific the outcome must have been. Under a heading “When agreement may be implied in the absence of offer and acceptance” at 79-83, Ormiston J there addresses whether a contract may be inferred from conduct manifesting mutual assent without a structured process of offer and acceptance. That analysis, then applied to the findings of his Honour, was made in a much more formal and complex negotiating process over a lengthy period. The simple and brief communications between Blanusa, Kojic and McDonald in early November 2009, in my view, clearly led to a contract between McDonald and the Kojics (as well as McDonald at SCS). I have addressed above what I regard to have been the obligations of McDonald under that contract.

203    Skilled also concerned the factual question of whether, in the particular circumstances, certain subcontracts for engineering work at a glass manufacturing plant had been entered into. Vickery J at [94] unexceptionably said that the question was to be addressed by assessing the objective intent of the parties, in the factual context, and having regard to their communications.

204    Rigg concerned claims against a solicitor for negligence and on other bases, arising out of the solicitor implementing an agreed family arrangement, under which a widow transferred assets inherited on the death of her husband to her son and her nephew, on the basis that they would assume responsibility for the deceased husband’s debts and the conduct of his businesses. Some years later the businesses failed, and the bank took steps to take possession of the matrimonial home on which the widow had continued to live as the contractual licensee of the nephew. The claims against the solicitor by the widow and by the nephew were dismissed. The nephew unsuccessfully appealed, asserting that the solicitor had a conflict of interest in acting for all parties. That decision does not really inform the qualitative assessment I have made of how McDonald fulfilled his contractual duties to the Kojics.

205    As it was referred to in submissions, I note that I do not consider that reg 29 of the Land and Business (Sale and Conveyancing) Regulations 2010 (SA) (or any predecessor) under the Land and Business (Sale and Conveyancing) Act 1994 (SA) affect my conclusions.

206    Rigg was also said to be relevant to the issue of causation. I do not think it is other than an application of settled rules. It is a well-established principle that an applicant must prove that it would have conducted itself in a way so as to avoid suffering loss and that it would have “acted differently”, if properly advised: see eg Hall v Foong (1995) 65 SASR 281, 292 and 301 per Debelle J; Smith v Moloney (2005) 92 SASR 498 at [49]-]51] per Besanko and Vanstone JJ.

207    On the evidence, I am satisfied that the Kojics would have acted differently had McDonald raised the matters with Kojic to which I have referred. I have taken into account the matters raised on behalf of McDonald which are said to indicate a contrary conclusion: close, trusting and lengthy relationship between the Kojics and Blanusa; the nature and extent of their previous dealings, including on one occasion an unsecured advance of $220,000; Kojic’s previous dealing in relation to the Seaton property; Kojic’s confidence in the CBA, including her evidence to the effect that it made no great difference to her whether she was on the title as she knew that the CBA was aware she was to be a joint owner and would look after her interests; and the Kojics’ inaction despite knowing (on her own evidence, on the eve of settlement) that they had not been included on the titles of the property.

208    Notwithstanding those submissions, the overriding consideration is that the Kojics in this instance “came into” the transaction to make a profit. It is hard to accept, and I do not accept, that they would have advanced the Kojic payment in effect as an unsecured loan to the Blanusa interests where there was, upon an informed analysis, no real prospect of repayment. It is inconsistent with Kojic’s evidence that she was not really interested in Blanusa’s financial position, which she knew was troublesome, because she was somehow getting a half interest in the property.

209    In my view, but for the failings of McDonald and the CBA, the settlement of the property would not have gone ahead because the Kojic payment would not have been made, and there was no other source of funds available to SCS to complete settlement.

210    I have not separately reached explicit conclusions on the claims against McDonald for misleading and deceptive conduct (including representations about future matters or for breach of fiduciary duty. It is desirable to briefly make some comments about them, simply because they may otherwise give rise to an issue as to the applicability or otherwise of the relevant contribution legislation (discussed later in these reasons).

211    Having regard to the decision in Rigg and to my findings, I do not consider that McDonald’s conduct amounted to a breach of any fiduciary duty which he may have owed to the Kojics.

212    Having regard to the findings made, it is somewhat contrived to say that McDonald by silence misrepresented to Kojic that he was not providing conveyancing services to her, and proceeded to procure the cheque for the Kojic payment and by silence misrepresented that the settlement would not result in the Kojics being on the title. As to the latter proposition, I have made specific findings. As to the former, I think the proper characterisation is (as I have found) that there was a contract of engagement which carried with it certain duties or alternatively a relationship of such a character as carrying with it the same duties which McDonald did not properly fulfil. In any event, such conduct if categorised as misleading and deceptive conduct would nevertheless be “negligent wrongdoing” as defined in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (Contribution Act), so ss 7 and 8 of that Act would be available to McDonald.

CONTRIBUTORY NEGLIGENCE

213    The CBA and McDonald, in turn, have said that the Kojics, through Kojic, failed to take reasonable steps to protect their own position.

214    I am well satisfied that Kojic was not properly mindful of the Kojics’ own interests. She was an experienced property investor. She might have explored more fully with McDonald the consequences of not getting on the title at settlement. In that connection, for instance, she first objected to the stamp duty consequences of later doing so in February or March 2010. She had notice of a mortgage to be granted by the CBA, at least to the extent of $480,000. She could fairly easily have discerned that that was more than half the price of the property, especially if she had taken account of Cotton’s interest. She did not pick up that the amount of the Kojic payment was related to the amount required at settlement to complete the purchase of the property, and was not calculated by reference to the price of the property. She made no effort to address what the consequences of that mortgage might be. She could have, but did not, expand with Coombe those sorts of issues. She sought no other advice. Her decision to proceed on the basis of the CBA knowing that the Kojics had a half interest in the property (although not registered on the title), really based on one or two short conversations with Coombe; does not involve appropriate caution in her own interests.

215    In short, with the wisdom of hindsight, her decision to support the settlement was quite a silly one, albeit one made in the ongoing belief that Blanusa and the CBA somehow recognised and would give effect to the Kojics claimed half interest in the property.

CONCLUSIONS

216    The submissions barely addressed the consequence of that combination of conclusions. In the first instance, that was probably for the CBA and McDonald to raise. It is raised in the pleadings.

217    The CBA in a general way said that the Court’s task would be to allocate as between the Kojics, McDonald and the CBA an appropriate share of their respective conduct. Reference was made to the Contribution Act in its defence, but no detailed submissions as to how that Act applied or to any responsibility to be apportioned to Blanusa were made.

218    McDonald’s submission was that Blanusa and/or SCS were also persons who (although not parties to this action) have contributed in a delictual way to the loss of the Kojics. In the event of a set of conclusions as I have now made, he said that under ss 7 and 8 of the Contribution Act, the damages to which the Kojics may be entitled should first be reduced under s 7(2)(b) by the appropriate proportions for the Kojics’ contributory negligence, and then be allocated as between the Blanusa interests including SCS, the CBA and McDonald under s 8(4) of the Contribution Act.

219    The Kojics in response made the points that in respect of non-tortious liability, such as liability for statutory unconscionable conduct, no issue of contribution arises as the Contribution Act does not apply at all. They also noted that neither the CBA nor McDonald has sought to enliven the proportionate liability provisions under Div 2A of Pt 7.10 of the Corporations Act 2001 (Cth) or its analogue in Pt 2 Div 2, Subdiv GA of the ASIC Act. As to the latter enactments, see Selig v Wealthsure Pty Ltd (2015) 320 ALR 47.

220    Neither counsel for the CBA or for McDonald sought to gainsay those propositions in the course of oral submissions.

221    For the purposes of the Contribution Act, in my view the findings I have made in relation to Kojic’s failure to attend properly to the Kojics’ interests would constitute contributory negligence as defined in s 3(1). The liability I have found on the part of McDonald is negligent wrongdoing as defined in (b) of the definition in s 3(1). Each of the CBA and McDonald (and Blanusa) is a “wrongdoer” whose conduct amounted to “wrongdoing” as defined broadly in s 3(1). His liability is therefore an apportionable liability as defined in s 3(2) because the liability is for harm consisting of economic loss, where there are two or more wrongdoers, and the liability of McDonald was based on negligence (as was that of Blanusa). Section 4 of the Contribution Act does not appear relevantly to limit its operation in respect of McDonald’s conduct as it extends its application to liabilities that arise for breach of a contractual or tortious duty of care and under statute which are of that character.

222    In the case of the CBA, the finding of unconscionable conduct does not amount to a finding of negligent wrongdoing. It is of a different character.

223    In the absence of more detailed submissions, the following three paragraphs of these reasons represent provisional conclusions only. I will give the parties a short opportunity to make further written submissions in the event that the CBA wishes to take up that opportunity. If it does not, these reasons will be reflected in the final orders to be made.

224    Whilst s 4 of the Contribution Act applies its provisions to a liability in damages that arises under statute, the apportionment of liability under s 7, in the case of contributory negligence, arises only in relation to another’s “negligent wrongdoing”. The finding against the CBA is not a finding of liability for a breach of a statutory duty of care, so as to fall within that description. Nor does s 8 get enlivened because it applies only where there is an “apportionable liability” as defined in s 3(2) of the Contribution Act. Unlike McDonald, the liability of the CBA is not based on wrongdoing that was “negligent or innocent”.

225    Accordingly, I do not consider that the CBA is entitled to have its liability reduced by reason of the contributory negligence of the Kojics or by the wrongdoing of either McDonald or Blanusa.

226    Neither in the defence, nor in the written or oral submissions, of the CBA was any other foundation for any such reduction of its liability (if established) by reason of any conduct of the Kojics, McDonald or Blanusa identified.

227    Neither the CBA nor McDonald have directly sought contribution from Blanusa and/or SCS. That may be because they are bankrupt and in liquidation respectively. Nor did each separately claim contribution against the other.

228    In the case of McDonald’s liability, as it is for negligent wrongdoing, I consider that s 7(2)(b) requires the damages to be awarded to be reduced for the Kojics contributory negligence. There is not said to be any modifying provision: cf s 7(3).

229    McDonald, in the light of my findings, is also entitled to the benefit of s 8. The apportionment should be between the CBA, Blanusa and McDonald.

230    For the reasons already given, as to the nature of the respective proportion of “fault” (using the term generally), the result is that:

(1)    the damages of the Kojics against McDonald are first reduced by 25% for contributory negligence; and

(2)    the damages to them be awarded against McDonald are to be 25% of the balance, as the wrongdoing of the CBA and Blanusa accounts for 25% each of that balance under subs 8(2) and (3).

I have not previously explicitly allocated the percentage accountability of each of the “wrongdoers”. I have made this apportionment as that I consider just and equitable between them, including Blanusa and the Kojics, having regard to my findings about the quality (blameworthiness) of their respective conduct.

DAMAGES

231    The issue of the proper quantum of damages was not much debated in submissions.

232    In my view, the proper measure of damages is the loss suffered by the Kojics by making the Kojic payment. The alternative of one half of the realised value of the property is not realistic, because the thesis of the Kojics’ case is that they would not have proceeded with the transaction at all. That is a thesis that I have accepted.

233    Even if I adopted the view that, somehow, they were entitled to their one half of the equity on the realisation of the property, I would regard that as being subject to the CBA mortgage to the extent of its contribution of loan funds to the purchase price. Kojic, by the facsimile of 16 November 2009 and before settlement knew of that amount to be secured by mortgage. The Kojics also knew of the 10% interest of Cotton, which was also recognised by the CBA. Without allowing for any outstanding interest on the mortgage, the realised value of the property less the CBA advance of $480,000 less the Cotton 10% equity interest would reduce the funds on realisation of the property available to the Kojics to a much lesser figure.

234    I see no reason therefore why the proper starting and finishing point is not the amount of the Kojic payment. There was no submission from the CBA or from McDonald suggesting some other figure.

235    There is no evidence as to how that sum would have been applied by the Kojics. It was available, in theory, for other investments or for depositing with the CBA. In my view, the proper interest calculation is the cash rate published by the Reserve Bank of Australia from time to time to the present time plus 4%. That is the starting basis for calculating pre-judgment interest under Practice Note CM16 of the Federal Court, published on 1 August 2011. The interest component of the damages will attract an income tax liability. The last several years have been quite risky investment periods. Adopting that safe rate reflects the risk that the Kojics would have endeavoured to apply their available funds to earn a greater income and may have succeeded or, on the other hand, may have failed. I have not adjusted for every change in the cash rate, but taken an apparent average over each approximately 12 month period. Hence, for the 12 month period running from December 2009 I have selected 3.75%, 4.75%, 3.5%, 2.75%, 2.5%, 2.25% and 2.0% from December 2015, plus 4%.

236    On my calculations, rounded to the nearest whole number, the appropriate interest allowance totals $198,453 to the date of judgment. I note that calculation for the successive 12 month periods allow simple interest on the Kojic payment for each successive year from 1 December of $33,802.55; $38,164.17; $32,712.15; $29,440.93; $28,350.53, $27,260.12; and for the period 1 December 2015 to April 2016, $10,904.05.

237    Subject to considering any further submissions, there will accordingly be judgment in favour of the Kojics against the CBA in the sum of $636,796.47. There will be judgment for the Kojics against McDonald for 25% of that amount, namely $159,199.12. Obviously, the liability of the CBA and McDonald is not cumulative.

238    I will hear the parties as to costs.

Associate:

Dated:    15 April 2016