Federal Court of Australia

Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 237 and s 243(a) of the Australian Consumer Law, the following instruments made on 8 February 2019 are declared to have been void ab initio:

(a)    Lease - Warriup between Harvard Nominees Pty Ltd, and Dimension Agriculture Pty Ltd and Simon Clifford Tiller; and

(b)    Lease - Howick between Harvard Nominees Pty Ltd, and Dimension Agriculture Pty Ltd and Simon Clifford Tiller.

2.    The first and second respondents jointly and severally must pay damages and pre-judgment interest to the applicant in amounts to be determined in accordance with paragraph 3 of these orders.

3.    By 4.00 pm AWST on 2 March 2022 the parties must file an agreed minute of calculation of damages and pre-judgment interest in accordance with the reasons for judgment or, failing agreement between them, separate minutes.

4.    By 4.00 pm AWST 2 March 2022, the applicant must file and serve an outline of written submissions, no longer than five pages, in relation to the costs of the original proceeding and the costs of the remitter.

5.    By 4.00 pm AWST on 16 March 2022, the respondents must file and serve an outline of written submissions, no longer than five pages, in relation to the costs of the original proceeding and the costs of the remitter, and indicating whether any oral hearing is sought.

6.    By 4.00 pm AWST on 23 March 2022, the applicant must file and serve an outline of written submissions, no longer than three pages, in reply, indicating whether any oral hearing is sought.

7.    The amended originating application dated 4 December 2019 is otherwise dismissed.

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

Table of Contents

REASONS FOR JUDGMENT

JACKSON J:

Introduction

1    In Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 (Primary Judgment or PJ) I found that the first respondent, Simon Tiller, and the second respondent, Dimension Agriculture Pty Ltd, had made representations to the applicant, Harvard Nominees Pty Ltd, that were misleading or deceptive in breach of s 18 of the Australian Consumer Law (ACL), given force both as Schedule 2 to the Competition and Consumer Act 2010 (Cth) and by s 19 and s 24 of the Fair Trading Act 2010 (WA). I also found that Mr Tiller, Dimension and the third respondent, Giovanni Nicoletti, engaged in misleading or deceptive conduct which involved the concealment of certain deeds into which Mr Tiller and Dimension had entered. But I dismissed Harvard's claim, because I found that none of the conduct caused Harvard to suffer loss or damage.

2    In Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; (2020) 282 FCR 530 (Appeal Judgment or AJ), the Full Court set aside the orders dismissing the application, and remitted the matter to me on the question of what, if any, relief should be granted under s 236 and s 237 of the ACL, and for resolution of any issues as to costs.

3    There was a two day hearing on that remitter, during which the parties adduced further affidavit and oral evidence, including by cross-examination, although in the end almost all of the issues to which that cross-examination went fell away. The respondents ended up adducing affidavit evidence from Mr Nicoletti on one point only, and he was not cross-examined. Ultimately, the scope of evidentiary dispute was limited and for the most part the resolution of the issues turned on legal arguments. It is not possible to summarise conveniently at this point the conclusions I have reached in the reasons below.

Background

4    The following summary at [1] of the Appeal Judgment sets out the background and main findings as to misleading or deceptive conduct in the Primary Judgment (all definitions adopted in this judgment):

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

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

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

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

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

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

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

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

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

The issues on remitter

5    Several issues proved contentious on remitter. In order to understand the main ones, it is necessary to understand the basis on which I found in the Primary Judgment that no relevant loss or damage had been caused by any of the misleading conduct. The appeal was allowed because the Full Court reached a different conclusion. It is also necessary to understand the basis on which the Full Court allowed the appeal, as that was itself an area of contention on remitter.

6    Staying with the Primary Judgment for the moment, it identified two instances or courses of misleading or deceptive conduct. The first was the misleading or deceptive conduct of Mr Tiller and Dimension in January 2019 which is described at sub-paragraphs (5) and (6) of the Full Court's summary above (January Conduct). The Primary Judgment characterised Harvard's claim in relation to that conduct as a claim for economic loss that was suffered because of the lost opportunity to proceed with the 2019 Fowler Lease. It concluded that Harvard had not suffered loss in this way, because before the New Leases and related instruments were entered into, Harvard was not in a position to lease the Farms to the Fowlers anyway. The relevant lessor of each Farm before the New Leases and the transactions surrounding them was Mammoth, which was committed to the Tiller Subleases. Harvard ran no counterfactual case that the Tiller Subleases would have been terminated, permitting it (or Mammoth) to lease the Farms to the Fowlers.

7    The second instance (or course) of misleading or deceptive conduct identified in the Primary Judgment was the non-disclosure of the 15 February Deeds by Mr Tiller, Mr Nicoletti and Dimension, as mentioned in sub-paragraph (9) of the Full Court's summary (Non-Disclosure Conduct). The Primary Judgment characterised Harvard's claim for loss or damage arising out of that conduct as a claim that, had the existence and terms of the 15 February Deeds been disclosed to Harvard sooner than they were, Harvard would have relied on the entry into those deeds as a repudiation or fundamental breach of the New Leases. The claim was that Harvard would have elected to accept that repudiation with the result that the New Leases would have been terminated from the date of that election, and Harvard would have been free to lease the Farms to the Fowlers. This claim was dismissed in the Primary Judgment because I found that the entry into the 15 February Deeds was not a repudiation or fundamental breach of the New Leases.

8    A point which assumes some importance in this judgment is that Harvard's claim that the 15 February Deeds did amount to repudiation of the New Leases was necessarily premised on the New Leases having had continuing legal effect until any election to accept that repudiation. As will be seen, this led the Full Court to characterise the claim as a true alternative to the claim that was based on the January Conduct.

9    Contrary to the Primary Judgment, the Full Court found that Harvard had suffered loss and damage as a result of misleading or deceptive conduct. To say much more than that is to enter contentious territory, because the meaning and effect of the Appeal Judgment were in issue on the remitter. But the Appeal Judgment was, at least, to the effect that the January Conduct did cause Harvard to suffer loss and damage of two different kinds, so that Harvard had established the precondition for both a declaration under s 237 and s 243(a) of the ACL that the New Leases were void on the basis of one kind of loss and damage, and for damages under s 236 on the basis of the other.

10    Against this background, the issues that arise out of the parties' submissions on the remitter are as follows:

(1)    Should the New Leases be declared void from the date of their formation (8 February 2019), or from the date on which Harvard notified Mr Tiller and Dimension that it elected to rescind (2 April 2019), or, as the respondents contend, only from 10 January 2021? The significance of this last date is that on or shortly after it, Dimension ceded possession of the Farms to Harvard. The parties agree that the New Leases should be declared void. The controversy is over the date from which this will be ordered to have effect. The reason this matters, according to both parties, is that the further remedy of damages can only be ordered if the New Leases are declared to be void ab initio or from 2 April 2019. As explained below, that is because of the parties' understanding of certain passages in the Appeal Judgment. So this issue bears on the question of whether Harvard should receive any award of damages at all.

(2)    Should the New Leases be declared void on condition that Harvard repay to Dimension certain amounts that Dimension has paid in relation to the Farms, totalling $388,611.12?

(3)    If damages are to be awarded, are they to be awarded against Mr Nicoletti, or only against Dimension and Mr Tiller?

(4)    If Harvard is to receive an award of damages, what should the amount be?

(5)    What interest should be awarded on any damages?

11    The third issue about Mr Nicoletti's liability for damages informs much of the following section, which considers the effect of the Appeal Judgment. So it is worth explaining at the outset how the issue arises. It is because Harvard submits, in effect, that the Appeal Judgment disturbed two further conclusions that do not appear from the Full Court's summary of the Primary Judgment as set out above.

12    The first of those conclusions concerned Mr Nicoletti's involvement in the January Conduct, or rather his lack of relevant involvement. The conclusion in the Primary Judgment was that Harvard had failed to establish that Mr Nicoletti was 'a person involved' under s 2(1) of the ACL in Mr Tiller's and Dimension's contravening conduct for the purposes of s 236 or s 237. Harvard had not established that Mr Nicoletti had a sufficient degree of knowledge of the January Conduct. So he was not liable in respect of that conduct.

13    The second conclusion that gave rise to dispute on remitter concerned the Non-Disclosure Conduct. In the Primary Judgment I found that, along with Mr Tiller and Dimension, Mr Nicoletti engaged in that conduct, so there was no issue as to his involvement. But as already described, I dismissed the claim based on the Non-Disclosure Conduct because I found that it did not cause Harvard's claimed loss.

14    Harvard now submits that the effect of the Appeal Judgment is that both of these conclusions fall away, so that Mr Nicoletti is liable in respect of the January Conduct and the Non-Disclosure Conduct. The basis of the submission will be described in detail below but, in essence, it is that the Full Court implicitly upheld a ground of appeal that was based on a different case as to causation of loss from those described above.

The appeal

15    Chiefly because of the issue about Mr Nicoletti's liability, there was much dispute about the proper understanding of the Appeal Judgment and about what follows from it. As indicated, this extended to submissions based on the grounds of appeal, and also to the contextual relevance of submissions that were made in the appeal. It is therefore necessary to examine the appeal in some detail.

The grounds of appeal

16    The grounds of appeal were as follows:

1.    The Court erred in finding that the Appellant did not suffer loss or damage because of the conduct of:

a.    the First and Second Respondents in making the Second Bryce Representation, the First Nicoletti Representation, and the Second Nicoletti Representation ('the 31 January Conduct') (para [569] of the Judgment);

Particulars

(i)    The Court erred in failing to find that, by becoming contractually bound to perform obligations under the New Leases (such as the obligation to ensure the First and Second Respondents had quiet enjoyment of the Farms), in circumstances where it did not wish to have any involvement with the Third Respondent in relation to the subject matter of the New Leases, and would not have entered into the New Leases had it known of the Third Respondent's involvement, the Appellant suffered loss and damage.

(ii)    The Court erred in failing to find that the Appellant suffered loss or damage because it was unable to secure vacant possession in time to satisfy the condition precedent to the right to compel performance by Fowler of its obligations under the Fowler Lease, by reason of the Respondents' reliance upon their rights under the New Leases.

(iii)    The Court erred in holding that the existence of any such loss or damage could not be established by reference to the circumstance that the Tiller Lease had been, and remained at trial, surrendered (which meant that, absent the New Leases, the Appellant would have been able to enter into the Fowler Lease and deliver vacant possession in time); and

b.    the Respondents, in failing to disclose the 15 February Deeds at any material time prior to the institution of proceedings in the Federal Court of Australia ('the 15 February Deeds Conduct') (paras [629] and [672] of the Judgment).

Particulars

The Court erred in failing to find that the Appellant suffered because it lost the opportunity to rescind the New Leases on the ground that the 15 February Deeds falsified the assertion by the Respondents at all material times that the 31 January Conduct was true in fact, and thereby precluded the Appellant from obtaining immediate vacant possession of the Farms from on or about 15 February 2019;

in each case, in contravention of s 18 of the Australian Consumer Law.

2.    The Court erred in finding (at paragraphs [629] and [634]) that the 15 February Deeds Conduct did not repudiate the New Leases, entitling the Appellant to terminate the New Leases and procure immediate vacant possession of the Farms from on or about 15 February 2019.

Particulars

(a)    Having found (at paragraph [627]) that a fundamental breach is one which goes to the root of the contract between the parties, the Court did not consider whether the identity of the Lessee under the New Leases went to the root of the New Leases, but rather considered whether assignment clauses by their nature went to the root of leases generally.

(b)    On a proper construction of the New Leases, having regard to both their text and the factual context in which the identity of the Lessee as being the First Respondent and his company was agreed, the contracting parties objectively intended a breach of the absolute prohibition against the First Respondent parting with possession of the Farms without the prior written consent of the Appellant, whether by assignment or otherwise, was a fundamental breach of the New Leases, such that the 15 February Deeds Conduct was a repudiation of the New Leases, entitling the Appellant to terminate the New Leases as it did on 5 April 2019, and obtain vacant possession immediately thereafter.

17    Some immediate observations about these grounds can usefully be made. First, ground 1(a) concerned only the January Conduct, which the ground correctly identified to be the conduct of Mr Tiller and Dimension. It attacked the finding that was the reason for the dismissal of the claim based on that conduct, namely that the conduct had not caused Harvard to lose the opportunity to lease the Farms to the Fowlers. One aspect of the attack was a case based on a different kind of loss, namely being contractually bound under the New Leases in circumstances where Harvard did not wish to have any involvement with Mr Nicoletti: particular (i) to ground 1(a). But if ground 1(a) were to be upheld, only Mr Tiller and Dimension would be liable. There was no attack in the grounds of appeal on the conclusion in the Primary Judgment that it had not been established that Mr Nicoletti's knowledge of the January Conduct was sufficient to make him a person involved in that conduct for the purposes of s 236 and s 237 of the ACL.

18    Second, ground 1(b) advanced a case that was not considered in the Primary Judgment. It relied on a combination of the January Conduct and the Non-Disclosure Conduct. It appeared to be based on the proposition that the content of the 15 February Deeds confirmed the misleading nature of the January Conduct, because they showed that Mr Tiller relinquished all interest in and control over the Farms. So ground 1(b) is to the effect that if Harvard had known about the 15 February Deeds at or after the time they were made, it would have known that the January Conduct involved actionable misrepresentation. It would then have exercised its common law or equitable rights to elect to rescind the New Leases on the basis of that misrepresentation. The argument goes that since the availability of that course of action was concealed by the Non-Disclosure Conduct, there was a causal connection between the Non-Disclosure Conduct and the lack of the ability to lease the Farms to the Fowlers. Mr Nicoletti would thus be liable, as he was found to have engaged in the Non-Disclosure Conduct.

19    Third, ground 2 attacked the conclusion that was the basis, in the Primary Judgment, of Harvard's case based on the Non-Disclosure Conduct. It advanced the argument that, contrary to the conclusions in the Primary Judgment, Mr Tiller's and Dimension's entry into the 15 February Deeds was a repudiation or fundamental breach of the New Leases. If this had been upheld, Mr Nicoletti would have been liable, because he engaged in the Non-Disclosure Conduct.

The Appeal Judgment

20    It is now necessary to consider the Appeal Judgment in some detail. After summarising the background as set out above, the Appeal Judgment said (at [2]):

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

It will be observed that what the Full Court considered was in issue before it was the conclusion that Harvard had failed to establish that it suffered or was likely to suffer any loss or damage. And the Appeal Judgment connects this conclusion to the findings that Mr Tiller and Dimension had engaged in contravening conduct. There is no mention of Mr Nicoletti at this point.

21    The Appeal Judgment then turned to consider the case Harvard advanced at first instance. The nature of that case was in issue. The Full Court commenced with the orders sought in the amended originating summons which relevantly included (AJ [5]):

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

[and]

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

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

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

That is the final relief Harvard now seeks, save that it no longer pursues Mr Bryce - he was not a respondent to the appeal. Also, as will be described, Harvard seeks a declaration that it rescinded the New Leases on 2 April 2019, apparently with effect at common law or in equity, and seeks a higher interest rate than 6% or the interest rate contemplated in the Federal Court's practice note on the subject.

22    The Appeal Judgment went on to make the following observations (among others):

(1)    The relief Harvard sought at trial was all sought under the ACL: AJ [7].

(2)    Harvard's position as to whether it had validly rescinded the New Leases in its letter of 2 April 2019 was opaque, and Harvard sought no declaratory relief to the effect that the New Leases had been validly rescinded at common law as at that date, or for equitable relief: AJ [11].

(3)    The claim for statutory compensation was for the loss of the benefit of the 2019 Fowler Lease. For the first year, the amount claimed was $1,150,000 (plus GST), being the annual rent under that lease of $1,950,000 (plus GST) less the rent of $800,000 (plus GST) which Mr Tiller and Dimension paid under the first year of the New Leases: AJ [14]-[15].

23    The Appeal Judgment found that a relevant part of the Primary Judgment proceeded on the basis that this loss and damage, the lost benefit of the 2019 Fowler Lease, was the same loss and damage as founded the claim for a declaration under s 237 and s 243(a) of the ACL that the New Leases were void (which the Appeal Judgment called statutory rescission): AJ [15]-[16]. It summarised the finding in the Primary Judgment that this loss and damage had not been established as having been suffered on the basis that the Tiller Subleases, which were in existence before the contravening conduct, prevented vacant possession being obtained in order that the Fowler Lease could proceed: AJ [17].

24    The Appeal Judgment set out the relevant provisions of the ACL at AJ [18]-[20], and it is convenient to set them out again here:

236    Actions for damages

(1)    If:

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

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

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

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

(1)    A court may:

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

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

…

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

Note 1: …

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

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

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

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

…

243    Kinds of orders that may be made

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

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

(i)    to be void; and

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

…

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

…

25    The focus of the appeal was the finding in the Primary Judgment that Harvard had not established one of the necessary 'gateways' to relief under s 237, namely that it suffered loss or damage because of the contravening conduct: AJ [21]-[22]. While the Full Court was not explicit at this point as to what contravening conduct it was referring to, the context of the discussion is the findings as to loss or damage (or lack thereof) caused by the January Conduct: see AJ [15]-[22].

26    At AJ [23]-[31], the Appeal Judgment then surveyed a number of aspects of Harvard's submissions at first instance which were relevant to whether it had advanced a case for loss beyond the economic loss represented by loss of the ability to grant the 2019 Fowler Lease. The Full Court set out in full each of the extracts from those submissions that Harvard said were relevant. Some of those extracts dealt with loss or damage said to have been caused by both the January Conduct and the Non-Disclosure Conduct: AJ [25], [29]-[30]. One concerned the loss said to arise from the Non-Disclosure Conduct alone: AJ [27].

27    At AJ [32], the Full Court set out the consideration in the Primary Judgment of Harvard's argument, based on Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, that it had suffered loss in the form of the detriment suffered by being bound to a contract induced by contravening conduct. After doing so, the Appeal Judgment concluded that Harvard had sufficiently raised an argument that the loss or likely loss that permitted statutory rescission and further orders to be sought was not the same as the alleged damage resulting from the lost benefit of the 2019 Fowler Lease, and that it had been dealt with in that way in the Primary Judgment: AJ [33]. It is relevant to note that the aspect of the Primary Judgment thus considered pertained to the January Conduct, and not to the Non-Disclosure Conduct.

28    Under a main heading ('Was the pre-condition of loss or likely loss established?'), the Appeal Judgment then turned to deal with what it called 'Harvard's primary argument on appeal that the failure of the primary judge to find loss or likely loss by reason of the contravening conduct amounted to error': AJ [34]. Again, the Full Court was not explicit as to whether this referred to both the January Conduct and the Non-Disclosure Conduct, but the context of the preceding discussion suggests it was only the former.

29    The Appeal Judgment summarised the findings in the Primary Judgment that Harvard had suffered no loss and damage because there was no evidence that it was worse off after the contravening conduct and it could not have leased the Farms to the Fowlers before the contravening conduct because no one could give vacant possession (because of the existence of the Tiller Subleases): AJ [36]. It also referred to the rejection in the Primary Judgment of 'Harvard's submission that entering into the New Leases was a loss in the relevant sense because it had committed itself to contractual obligations it would not otherwise have had': AJ [37]. Once again, this was about the claim for loss caused by the January Conduct. It did not concern the claim that loss was caused by the Non-Disclosure Conduct because Harvard was unaware of its right to retake vacant possession as a result of Mr Tiller's and Dimension's alleged repudiation of the New Leases. Nor did it concern the argument raised in ground 1(b), and not addressed in the Primary Judgment, that the failure to disclose the 15 February Deeds deprived Harvard of the ability to rely on rescission at common law or equity for actionable misrepresentation.

30    The Appeal Judgment then turned to explaining why the Full Court had formed a different view to that expressed in the Primary Judgment: AJ [38]. It described Harvard's submission to it as being that in the particular circumstances, it suffered loss because of 'entry into the contractual relations of the New Leases, involving the creation of an ongoing relationship involving reciprocal rights and obligations with, and the conferral of significant benefits upon, a corporate entity that is the vehicle for a person with whom Harvard had a strong desire to avoid having any dealings with whatsoever' and at an 'advantageous rent the benefit of which would not have been conferred': AJ [41]-[45].

31    The Appeal Judgment then conducted a review of the authorities (AJ [48]-[76]) from which it concluded (AJ [77]) that the finding:

that Harvard would not have entered into the Tiller Leases [sic New Leases] but for the offending conduct is sufficient to establish that Harvard 'suffered, or is likely to suffer, loss or damage' within the meaning of s 237(1)(a) of the ACL which in turn provides a foundation for relief under s 243.

32    But the Appeal Judgment went on to say that it was 'not necessary to decide the case on that narrow basis', because entry into contractual relations with a vehicle for Mr Nicoletti, at a low rent from which John Caratti would not have wanted to see Mr Nicoletti benefit, was prejudice or disadvantage resulting in non-economic loss: AJ [78]-[79], [82]. The Appeal Judgment found that Harvard's loss and damage was 'relevantly, being bound to a contract with someone it strenuously wishes not to be contracted to on terms it would not have agreed' (AJ [82]).

33    At AJ [84]-[85] the Full Court considered and rejected a submission by the respondents that the suite of transactions which resulted in the New Leases was indivisible, so that it was impermissible to focus only on the loss or damage said to arise from the New Leases alone. Then at [86], the Appeal Judgment said that appreciation that Harvard could base its loss or damage on the New Leases:

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

34    The Appeal Judgment characterised 'trying to assess whether Harvard's ultimate financial position under the New Leases was worse than what its position would have been if none of the suite of transactions had occurred' as 'a highly speculative exercise': AJ [87].

35    The Appeal Judgment then turned to consider the claim for damages under s 236 of the ACL, as distinct from the claim to statutory rescission. It said (at [88]-[89]):

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

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

There is no reference in AJ [88]-[89] to the Non-Disclosure Conduct or Mr Nicoletti's role in it.

36    At [90], the Full Court cited Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 as authority for the proposition that the loss or damage which a person suffers as a result of contravening conduct is not necessarily singular. Then, at [91]-[93], a passage on which Harvard placed particular reliance, the Appeal Judgment said:

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

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

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

37    This was followed by a main heading 'Second ground of appeal'. The Appeal Judgment described 'Harvard's other ground of appeal' (AJ [94]), thus confirming that up to that point it had been dealing with Harvard's first ground of appeal. That first ground is not expressly referred to, paraphrased or otherwise described in the Appeal Judgment. Its subdivision into ground 1(a) and ground 1(b) is not mentioned. But ground 2 is described as being that there was error 'in finding that the 15 February Deeds conduct did not repudiate the New Leases entitling Harvard to terminate the New Leases and procure immediate vacant possession of the farms from on or about 15 February 2019'. At [95] the Appeal Judgment said:

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

38    Then, under the heading 'Disposition', the Appeal Judgment provided direction on the scope and determination of the remitter as follows (at [96]-[98]):

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

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

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

39    The orders the Full Court made were:

1.    The appeal is allowed.

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

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

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

Order 1 of the orders made on 19 March 2020 was the order dismissing the claim for statutory rescission, that is, prayer for relief A set out at [21] above, and consequential remedies. Order 5 of the orders made on 11 May 2020 was the order dismissing the balance of the application. Order 1 of the orders made on 22 July 2020 was the order made as to the costs of the proceeding at first instance.

Principles on remitter

40    Before turning to a fuller description, and to resolution, of the issues, it is convenient to set out the principles that must guide me as a judge determining a matter remitted in the judgment of an appellant court.

41    The orders in the Appeal Judgment were made pursuant to s 28(1) of the Federal Court of Australia Act 1976 (Cth). Section 28(1) and s 28(2) are as follows (former paragraph (e) in s 28(1) has been repealed):

(1)    Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d)    set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;

(f)    grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

(g)    award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

(2)    It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment.

42    While the Appeal Judgment is not explicit as to which powers the Full Court exercised in making its orders, paragraph 3 of the orders would appear to have been made pursuant to s 28(1)(c) of the Federal Court Act. It is expressed to be a remitter, not an order for a new trial, and it is a remitter that is limited to two specific areas of the entire controversy between the parties: what, if any, relief should be granted under s 236 and s 237 of the ACL, and any issues as to costs of the proceedings below.

43    The present remitter is therefore a more limited form of hearing than a new trial. The 'further hearing and determination' referred to in s 28(1)(c) is, in the words of Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479; (2001) 112 FCR 324 at [15], 'just that, namely a continuation of a trial that has already begun, though interrupted by a final order which has been set aside'. In that case, when the matter was remitted to Finkelstein J after an appeal, the successful appellants wished to cross-examine a witness whom they had agreed not to cross-examine at the original trial. After a review of the history of orders for new trial, modern authorities, and the construction of s 28(1), his Honour held (at [17]) that the better view was that 'the "further hearing" will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules'. His Honour thus went on to determine the application to cross-examine on the basis that the appellants were seeking to reopen their case for that purpose. A Full Court approved that approach in Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251 at [52]-[53] (Besanko and Robertson JJ, Barker J agreeing).

44    That being so, then, subject to an obvious and important qualification, the present remitter is to be approached as a continuation of the original trial. It may have been necessary to approach it differently had it been a more comprehensive remitter of the entire controversy between the parties: see R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45 at [28]-[29]; Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at [7], [16] (Gleeson CJ), [45] (McHugh J), [67] (Gummow & Hayne JJ).

45    The obvious and important qualification is that the remitter is to be conducted in light of the decision of the Full Court in which the remitter is ordered. That has at least three implications. The first is that the court on remitter must act consistently with the Appeal Judgment. That includes not only the ultimate orders made, which may give express direction to the court on remitter, but also the reasons for decision. The authorities for this basal proposition tend to be in the context of s 37 of the Judiciary Act 1903 (Cth), which imposes on courts to which the High Court remits a cause an express obligation to execute the judgment of the High Court in the same manner as if it were their own judgment: see the authorities collected by Pritchard J in Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 at [35]. The power to remit under s 28(1)(c) of the Federal Court Act is not accompanied by any similar express requirement, although the different power under s 28(1)(g) is: see s 28(2). But none of the parties here suggested that this made any difference; where an appellate court, higher in the hierarchy that a primary court, determines a matter in a certain way, it must follow that the primary court cannot depart from that determination on remitter.

46    The second implication is that where the appellate court has disturbed findings of the primary court, and therefore potentially reopened issues that the primary court had resolved, it will be open to the primary court to determine those issues afresh, once again provided that it does so in accordance with the judgment of the appellate court. This will of course include issues that are expressly within the scope of the order of remittal. No application to reopen for the purpose of determining those issues will be necessary. In relation to those issues, the court on remitter may reach a conclusion different to the one it reached the first time. It may of course be required to do so because of the findings of the appellate court.

47    The third implication is in part a corollary of the second, and arises from the character of the remitter hearing as a continuation of the previous trial. It is that the primary court, on remitter, cannot go outside the scope of what is remitted, or reconsider any of its previous findings that have not been disturbed by the appellate court, unless it determines in accordance with ordinary principles that it is in the interests of the administration of justice to give leave to reopen.

48    Once again, the authority for the confining effect of the scope of the remitter is mostly based on s 37 of the Judiciary Act, in the context of High Court appeals: see Carroll at [27]. But there is no reason to think that remitters under s 28(1)(c) of the Federal Court Act are any different. It is elementary that if the Full Court has remitted the matter to the primary court to determine specified matters, it is those matters and those matters alone that the primary court has authority to determine. And it follows from the fact that the remitter is a continuation of the previous trial that, subject to the effect of the appellate court's judgment, and to any application to reopen in the interests of justice, the court will not depart from the findings it has already made.

49    Consistent with this, in Re The Spanish Club Ltd [2015] NSWSC 661 at [53]-[54] (Spanish Club 1), Black J reached the following conclusions:

The effect of the authorities seems to me to be that, unless an application to reopen my judgment is successful, when made more than two years after that judgment was given and after an appeal from it has been determined, it is not open to me, having reached factual and legal findings in a final judgment in the proceeding, to the extent those findings have not been upheld on appeal, now to reach different or contrary factual and legal findings as to the same issues in the same proceeding. Still less as it is open to me, as a trial judge, to reach findings contrary to those which the Court of Appeal has reached in the same matter, albeit the matter had a different proceeding number in the Court of Appeal. Mr Walker accepted as much in oral submissions.

Mr Walker fairly accepted in oral submissions that, subject to appeal, the determination of a matter in a proceeding is binding for the purposes of that proceeding. …

It is true that his Honour reached these conclusions after considering arguments based on res judicata and issue estoppel, but it seems to me, with respect, that the same conclusion can be reached by the different route I have outlined. Harvard has also made arguments based on issue estoppel and Anshun estoppel, which it will be necessary to address below.

50    The above three implications of the appellate court's judgment make it important for this Court on remitter to understand the precise scope of what has been remitted, as well as to understand the meaning and effect of the appellate court's judgment more generally. It is within the authority of this Court on remitter to determine the controversy between the parties as to what was and was not decided by the Full Court: see Re The Spanish Club Ltd [2015] NSWSC 1858 at [6]. And the parties here accept the elementary proposition that it is to be determined as a matter of objective construction of the orders made and the reasons expressed in the Appeal Judgment, in all the relevant context. The parties also accept that relevant context includes at least the grounds of appeal, the submissions on appeal, and the primary judgment.

51    A question may arise as to the extent to which new evidence may be adduced on the remitter. It would seem to follow from the approach in Community and Public Sector Union as endorsed in Fernando that such evidence can only be adduced if leave is given to do so in accordance with the principles governing applications to reopen: see also McCarthy v McIntyre [2000] FCA 1250 at [21]-[33]; Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 at [8] (Kenny J). Where, as here, the application to reopen is made after judgment has already been delivered (albeit then subsequently set aside), the circumstances in which an appellate court will receive further evidence provide a useful guide: McCarthy v McIntyre at [30]. As will be seen, new evidence was adduced in the present case, but it was largely admitted by consent. There was, however, an objection raised to cross-examination of witnesses called by Harvard, namely Andrew Fowler and John Caratti, which went beyond the matters raised in the new affidavits sworn by them or any events that had occurred after the time of the original trial. In the end most issues of fact fell away in the course of the remitter hearing, so most of the evidence objected to ended up being irrelevant. It will only be necessary to consider the objection in relation to one issue, namely the likelihood that the Fowlers would not have taken possession in the first year under the 2019 Fowler Lease. Subject to that, in this case there was no need to determine whether leave to reopen to adduce the new evidence was necessary, since it was adduced by agreement.

First issue - the operative date of the order that the New Leases are void

52    On about 10 January 2021, with the consent of the respondents, Harvard obtained vacant possession of the Farms. It has leased the Farms to companies associated with the Fowler family. There is now no issue between the parties that the New Leases must be ordered to be void. As has been said, the issue is the date from which that statutory rescission should be stated to have effect.

The parties' positions

53    Harvard seeks an order declaring the New Leases to be void from the time they were entered into, namely 8 February 2019. The respondents seek an order declaring them to have been void only from 10 January 2021, the date on which Harvard gained vacant possession of the Farms.

54    The respondents accept that the Appeal Judgment has established that the discretion to make an order under s 237 of the ACL declaring the New Leases to be void has been enlivened. They also accept that it has been enlivened because of the existence of the non-pecuniary loss identified in the Appeal Judgment, namely being bound to extended contractual obligations with a corporate vehicle for Mr Nicoletti, that is, Dimension: see [32]-[33] above.

55    The respondents submit, however, that the only remedial outcome directed to preventing or reducing that loss is an order declaring the New Leases to be void with effect from 10 January 2021 and no earlier. To declare the New Leases void as at an earlier date would, the respondents submit, be outside the scope of the discretion. According to the respondents, that is because ordering the New Leases to be void from some earlier date cannot alter the historical fact that until 10 January 2021, Dimension was in occupation of the Farms pursuant to the New Leases. The New Leases were not a one-off transaction that can simply be unwound. They gave rise to an ongoing relationship. An order under s 237 cannot alter the fact that until 10 January 2021, Harvard was required to deal with Dimension as its tenant, and did so. So, the respondents submit, ordering the New Leases to be void as at an earlier date cannot do anything to prevent or reduce the loss or damage. The order can only address future loss of that kind by terminating the relationship from now on.

56    The respondents submit that these matters are also reasons why the discretion should not be exercised to give the statutory rescission order effect from an earlier date if, contrary to their primary submission, the discretion to do so exists. In addition, they advance other discretionary reasons.

57    One such reason concerns three amounts of money that Dimension paid to Harvard in 2019. The amounts were paid as a result of agreements that were documented in the suite of instruments that included the New Leases. The relevant arrangements are described in the Primary Judgment at [120], [224] and [253]. It is convenient to recap here as they are also germane to the second issue on the remitter, which is whether rescission should be ordered on condition that Harvard repay these amounts to Dimension, and to the calculation of damages.

58    The first amount was a sum of $70,000 that Dimension paid on 27 February 2019. This was half of a liability of $140,000 that was attributable to alleged arrears from previous leases of the Farms. That $140,000 had previously been due to be paid on 15 November 2019, under the Tiller Subleases, to Mammoth. As part of the suite of transactions that resulted in the New Leases, payment of half of that sum, that is payment of $70,000, had been accelerated to a date seven days after the surrender of the Tiller Subleases, that is, by 14 February 2019. That new obligation was in the deed of surrender of the Tiller Subleases, and so was an obligation owed by Mr and Mrs Tiller to Mammoth. But the commencement of the New Leases (between Harvard, Dimension and Mr Tiller) was conditional on the payment having occurred.

59    The second amount that Dimension paid was $141,213.86 in arrears of rates due to the Shire of Esperance in respect of the Farms. Dimension paid this on 27 February 2019: PJ [253]. This too was an amount that Mr and Mrs Tiller were obliged to pay under the deed of surrender of the Tiller Subleases entered into between them and Mammoth. Its effect was to remedy default in Mr and Mrs Tiller's obligations under the Tiller Subleases to pay council rates.

60    The third amount that Dimension paid was the remaining $70,000 of the $140,000 in alleged arrears owing to Mammoth. This had effectively been converted to an amount payable on 15 November 2019 by Mr Tiller and Dimension to Harvard, under the New Lease of Howick Farm. Dimension in fact paid it to Harvard on 17 November 2019.

61    The respondents also refer to Harvard's acceptance of rent under the New Leases from Dimension. They say that this and the acceptance of the three amounts referred to above show that Harvard was prepared to act consistently with the validity of the New Leases when it was in its financial interests to do so. They also say that Harvard's alternative case about the Non-Disclosure Conduct is premised on the validity of the New Leases. All this, the respondents say, show that Harvard has been prepared to rely on the validity of the New Leases when it suits it, so that it should not be permitted to depart from that in respect of the period leading up to 10 January 2021.

62    The reason the respondents consider that the date of statutory rescission matters is, as I have said, because they submit that damages under s 236 of the ACL can only be ordered for any loss suffered from that date. If that is correct, then the outcome of rescission from 10 January 2021 would be no award of damages for the lost opportunity to lease the Farms to the Fowlers, because Harvard had that opportunity from that date (or at most, it was only deprived of it for a short period representing the necessary lag between the delivery up of vacant possession and the date on which the Fowlers were able to take possession).

63    In that regard, the respondents focus on AJ [92]-[93] and [97] which, they say, indicate that the financial loss of opportunity to enter into the 2019 Fowler Lease 'might only exist consequent upon an order declaring the New Leases to be void'. The respondents submit that the effect of the Appeal Judgment is that 'an order declaring the New Leases to be void is a necessary but not sufficient condition for the conclusion that Harvard suffered financial loss through loss of opportunity to enter into the [2019] Fowler [L]ease capable of supporting an award of damages under s236'. They say that if one tries to assess damages for loss of opportunity to enter into the 2019 Fowler Lease independently of any order for statutory rescission of the New Leases, one runs into the problem of the existence of the Tiller Subleases before the transactions of February 2019, and the fact that they too prevented Harvard from giving vacant possession of the Farms to the Fowlers.

64    Harvard seems to accept that an order declaring the New Leases void from 10 January 2021 would preclude a claim for damages before that date. It is apparently on that basis that it submits that a declaration that the New Leases are void ab initio (that is from 8 February 2019) has utility as an integral element in the measure of damages.

65    Harvard submits in any event that it suffered non-financial loss from 8 February 2019, when the New Leases were executed. When it found out that it had been deceived, it gave notice by letter from its solicitors on 2 April 2019 of an election to rescind the New Leases. Harvard submits that the 'gateway' loss for the purposes of s 237 and s 243 is the entry into the New Leases. That justifies setting them aside ab initio. Harvard says that even though it has regained possession of the Farms, it remains important to sanction the validity of its position that it should not have been bound to contractual performance with the respondents at all, and to recognise that the purported performance of contractual obligations on both sides was solely by reason of an agreement procured by misleading or deceptive conduct.

66    Harvard advances several other reasons why it takes issue with the respondents' primary submission that ordering statutory rescission from a date before 10 January 2021 is beyond the discretion that arises under s 237. It points out that all declarations made judicially concern historical conduct. Since I have decided that rescission will be ordered as from 8 February 2021, it is not necessary to describe every one of Harvard's reasons.

67    Harvard also addresses the respondents' submission that the occupation of the Farms and acceptance of rent for some two years is a discretionary reason not to grant rescission before the end of that two years. Harvard referred to Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981, a case in which a purchaser who had been misled into buying a business sought to rescind but, after the vendor refused to accept that rescission had occurred, the purchaser continued to operate the business, including during the course of the litigation. Harvard seeks to draw an analogy with the present case, submitting that its decision to permit Dimension and Mr Tiller to remain in possession of the farms over the course of the litigation should not count against an order for statutory rescission as at the date of the formation of the New Leases.

68    As for the respondents' other discretionary arguments based on the payment of certain sums by Dimension, Harvard submits that by analogy with equitable principles, a wrongdoer should not be protected from the consequences of its actions, citing United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 257 at 242-243. It also cites Champtaloup v Thomas [1976] 2 NSWLR 264, a case in which an act by purchasers of land in reliance on a contract of sale did not constitute an election to affirm the contract, where the purchasers had expressly reserved their rights: see at 268-269 (Glass JA, Street CJ agreeing, Mahoney JA agreeing on different reasoning), and Minter v Geraghty (1981) 38 ALR 68.

69    In relation to the payments attributable to alleged rental arrears and rates arrears that were made in February 2019, Harvard points out that those were accepted at a time when Harvard did not know that it had been deceived. In any event, it says, those payments rectified antecedent breaches of the Tiller Subleases.

70    In relation to subsequent payments that Harvard received from Dimension, Harvard submits that it expressly received them on the basis that they would not constitute rent under the New Leases, but only a reduction in damages. Harvard relies on the principle that applies at common law when a lessor elects to terminate a lease, that acceptance of rent after proceedings to recover possession have been commenced does not constitute a waiver of the forfeiture of the lease: Murdock v Bettcher [2008] SASC 79 at [25]. It submits by apparent analogy that acceptance of payment after proceedings have been commenced for rescission of a lease is not inconsistent with the relief sought.

Rescission at common law or equity?

71    It is necessary to refer to another point Harvard appeared to be making about rescission, as it is relevant to the final orders Harvard seeks. While it is not entirely clear, at certain points Harvard appeared to be submitting that the election to rescind the New Leases that it expressed in the letter of 2 April 2019 had effect under the common law principles of rescission of contracts for misrepresentation, or that the rescission would be recognised by a court of equity (see remitter submissions 20 April 2021 paras 4-5, 8). In its minute of proposed final orders, Harvard seeks a declaration that it was entitled to exercise a right of rescission as it purported to do in its solicitor's letter of 2 April 2019. That is separate from another order sought, for a declaration that the New Leases were void from 8 February 2019, which appears to be the order for statutory rescission.

72    A declaration recognising rescission at common law or in equity would go beyond the case that Harvard advanced at the main trial. At trial, Harvard did not seek any declaration that its purported rescission on 2 April 2019 was legally effective: see AJ [11]. Nor did it seek any order for equitable rescission: AJ [11]-[12], [99]. And its counsel expressly stated in closing oral submissions at trial that its case did not depend on a finding that the letter of 2 April 2019 had effect at common law. Although he went on to say that Harvard 'would have just rescinded in equity', the Full Court held that equitable rescission occurs by court order, an order that Harvard did not seek. Harvard did not seek leave to reopen to run this case or leave to amend its pleadings. Indeed, at the remitter hearing Harvard's counsel seemed to acknowledge that it only seeks statutory relief (ts 138). Also, the making of a declaration that the purported rescission of 2 April 2019 had effect in equity (or at common law) is not within the scope of the remitter. Under paragraph 3 of the Full Court's orders, the remitter concerns what, if any, relief should be granted under s 236 and s 237 of the ACL. I will not make any declaration that there was an effective rescission separate to any order for statutory rescission.

Principles in relation to statutory rescission

73    The Appeal Judgment provides some broad guidance on the applicable principles, at AJ [96] which is quoted above at [38]. That paragraph acknowledges that the appropriate operative date for an order of statutory rescission may be in issue, but does not give any specific direction as to what that date should be here. I have also quoted above (at [33]) from AJ [86], which says that rescission or termination of the New Leases is the only relief that can cure the loss or damage that engages s 237 and s 243 of the ACL, namely being bound to extended contractual performance under the New Leases.

74    The fact that s 237 is engaged gives the court a discretion as to what orders, if any, it may make. Those may include orders of the kind set out in s 243. But it is axiomatic that the court may only make orders under those provisions in so far as the orders will compensate for, or prevent or reduce, the loss or damage that has been identified: s 237(2); Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at [43] (McHugh, Hayne and Callinan JJ); see also AJ [21].

75    The court's powers under s 237 and s 243 are wide discretionary powers to make remedial orders in appropriate cases to ensure a fair result: Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 at 298. In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546 at 564, Lockhart J (Burchett J agreeing) said of s 87 of the Trade Practices Act 1974 (Cth) (TPA), which was the statutory antecedent to s 237 and s 243 of the ACL:

In granting a remedy under s 87, the court is not restricted by the limitations under the general law of a party's right to rescind for breach of contract or misrepresentation. Nevertheless, in exercising its discretion under s 87, the court will consider the conduct of the parties after they had knowledge of the misleading quality of the conduct: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [(1981) 36 ALR 23] per Northrop J at 60. Such an approach is consistent with that adopted by the Privy Council in Senanayake v Cheng [1966] AC 63 at 83, observing that at general law the questions for the court in determining whether to allow restitution are 'whether restitutio in integrum is substantially possible and whether rescission is timely and just and fair'. On this approach the court must consider all the circumstances before it in the exercise of its discretion.

76    The principles regulating the analogous equitable remedy of rescission afford guidance for the exercise of the statutory discretion under s 237 and s 243, but they do not dictate it: Marks at [116] (Gummow J), see also [24] (Gaudron J), [38] (McHugh, Hayne and Callinan JJ); see also Henjo at 564. In Alati v Kruger (1955) 94 CLR 216 at 223-224, after drawing a contrast with the common law, it was said that:

equity has always regarded as valid the disaffirmance of a contract induced by fraud even though precise restitutio in integrum is not possible, if the situation is such that, by the exercise of its powers, including the power to take accounts of profits and to direct inquiries as to allowances proper to be made for deterioration, it can do what is practically just between the parties, and by so doing restore them substantially to the status quo …

In such cases equity will make adjustments to restore the parties to their previous positions which will include repayment or accounting for losses directly occasioned to the innocent party by the fraud: McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR NSW 187 at 191-192. As the Full Court noted in the Appeal Judgment (at [96]) the court may order rescission on terms that seek to 'do what is practically just' between the parties. But as another Full Court said in JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378 at 380:

The power of the Court to grant relief under the statutory provision is wider than the power of the equity court to grant rescission: the bars to rescission in equity, such as affirmation and the non-availability of restitutio in integrum, are no more than discretionary matters that the Court will take into account in deciding whether in a given case to grant relief under the statutory provision …

77    So, in Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 at [43] Allsop P (as he then was, Macfarlan JA and Sackville AJA agreeing) said (citations omitted):

Relief under the [TPA], s 87, should be viewed not by reference to general law analogues but by reference to the rule of responsibility in the statute that is directed against misleading and deceptive conduct. Involved in that rule of responsibility is the public policy of protection of people in trade and commerce from being misled, and the width of the powers given by the TPA that are apt to be employed in a manner conformable with the just compensation or protection of the representee. Whether or not to grant a form of rescission under s 87, or to limit a plaintiff to damages under s 82, is a question in the nature of a discretion to be approached by reference to the facts of the particular case, the policy and underpinning of the TPA and the evaluative assessment of what is the appropriate relief to compensate for, or to prevent the likely suffering of, loss or damage 'by' the conduct. An approach that is limited mechanically around a but for causation enquiry will be likely not to involve a full evaluative assessment of the appropriate relief.

78    Neither party was able to cite a case directly on point as to whether rescission ab initio of an ongoing contract went beyond the purpose of the discretion conferred by s 237 and s 243 of the ACL, and my own researches have not revealed any. Three cases cited by Harvard were helpful, however, namely: Tenji v Henneberry & Associates Pty Ltd [2000] FCA 550; (2000) 98 FCR 324; Metz; and Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274.

79    In Tenji the sale of land on which there was a service station had been induced by misleading and deceptive conduct by the vendors, in breach of s 52 of the TPA, the statutory predecessor to s 18 of the ACL. When the purchasers discovered the misrepresentations, their solicitors wrote to the vendors complaining about the misrepresentations and stating that the purchasers rescinded the agreement. The vendors did not respond to the letter. The purchasers retained possession of the property, which continued to be operated as a service station by a lessee.

80    The trial judge declined to make an order under s 87 of the TPA that the purchase contract was void ab initio, because his Honour found that the financial loss suffered was modest and also apparently because he considered that the notice of rescission had been qualified. The Full Court (Carr J, French and Whitlam JJ agreeing) allowed the appeal and declared that the contract was void ab initio.

81    The reasons of French J in Tenji, with respect, were particularly instructive. His Honour made a number of observations about the power under s 87 of the TPA to order that a contract induced by misleading or deceptive conduct is void. At [19]-[20] his Honour said:

Loss or potential loss causally linked to contravention conditions the exercise of the remedial powers under s 87 and their exercise must be directed to compensate for that loss. The same may be said, limited to actual loss, for the award of damages under s 82. The conditions for the exercise of power under s 87 having been satisfied and the compensatory outcome identified, the grant of such relief is discretionary as is the particular kind of order under s 87(2) that may be made. The exercise of that discretion and the choice of order may then be affected by other considerations. The making of an order under s 87(2)(a) declaring a contract to be void may be based upon a number of factors including those which would affect the grant of analogous relief in equity. But, while relevant, they are not determinative. The question whether there has been a disaffirmation or a commitment to the performance of the contract by the party suffering loss will generally be relevant. The question whether the party would have decided to continue with the purchase, even if aware of the true position, may also be relevant although, as has been pointed out, that does not determine the availability of equitable rescission.

Rescission in equity transcends compensation. Avoidance under s 87 must serve a compensatory purpose but may serve other purposes in doing justice between the parties. There are cases in which a party who enters a contract as a result of misleading or deceptive conduct may be compensated in a pecuniary sense by an award of monetary damages but is left nonetheless with a continuing burden of unforeseen risk, a transaction soured by the events that surrounded it and a property, once the repository of hope for the future that is now an albatross around its neck. Absent misleading or deceptive conduct, an informed commitment to the acquisition and all its difficulties and shortcomings is easier to bear than one into which a party has been misled as was found to be the case here.

82    At [22], on the relevance of affirmation of the contract, his Honour said:

As already observed the absence of a notice of rescission is not determinative of the availability of relief under s 87(2)(a). A positive affirmation of the contract coupled with a demand for compensation might well weigh heavily against the making of such an order, if only because the other party in such a case could be led to adopt a position or not alter its position on the assumption that there would be no claim for avoidance of the contract.

83    At [24] his Honour expressed his key reasons for joining in the decision to declare the contract void as follows:

The conditions for the exercise of the power under s 87(2)(a) are satisfied. The avoidance of the contract would, in my opinion, serve the purpose of compensating the Tenjis for their loss. It would also have the utility of relieving the Tenjis from a transaction in which though their economic loss was found not to be great, their hopes and expectations of the transaction could reasonably have been expected to be raised by the misrepresentations made to them.

84    In Tenji French J thus confirmed what appears on the face of the statutory wording, that an order under s 87 can only be made if it serves what his Honour called 'a compensatory purpose'. But if that requirement is satisfied, the order can also serve other purposes. One such purpose may be to relieve the misled parties from intangible consequences such as being bound to a transaction in relation to which their hopes and expectations were raised in a misleading way. Questions of affirmation or disaffirmation of the contract, while relevant, are not determinative as to whether an order should be made. French J appeared to be concerned about future burdens of being bound to the contract (at [20]) but also saw utility in relieving the purchasers ab initio from the transaction in which their hopes and expectations had been formed in the past as a result of misleading conduct and since dashed. That was in a context where his Honour posited that their pecuniary loss was redressed by damages, and so was an acknowledgment of the role of avoidance of the contract as a way of providing redress for non-economic loss. It must be acknowledged, however, that French J appeared to speak of that utility as something different from the compensatory purpose. Also the sale contract in Tenji was not an ongoing one like the New Leases, and there appears to have been no issue in that case as to the operative date of any rescission order.

85    As has been indicated, the second relevant case on which Harvard relies, Metz, was cited in the Appeal Judgment. It was cited (at AJ [86]) as providing an analogy that was relevant to the remedy of statutory rescission (or termination) on the present case: see [33] above. In Metz at [871] Barker J asked, rhetorically:

… why should the decision as of late June 2009 of the applicants to rescind the agreements count against them in all the circumstances? Why too should the fact that the prosecution of this action over more than 18 months, during which the applicants have carried on the business, count against them when rescission is sought?

86    At [873] (the paragraph cited in the Appeal Judgment), Barker J said (emphasis added):

Accordingly, I entertain a significant concern that to leave the first applicants without the remedy of rescission, and merely to order damages (which would be no precise task in any event), would be to condemn the first applicants to a continuation of a sale transaction that was tainted from the outset with the fundamental misrepresentations of Mr Sim and the first respondent.

87    At [876] Barker J observed that (emphasis added):

… the gains and losses that the parties have made or suffered between the settlement of the sale agreement on 4 July 2008 and the date of return of the business to the first respondent are able to be adjusted to ensure that justice is done to all. The first respondent and Mr Sim will then have back in their control the business which should never have been sold on the basis of the misrepresentations I have found against them, and the applicants will be restored as far as possible to the position they would have been in had they not entered into the transaction.

88    His Honour concluded that an order for statutory rescission was appropriate and was prepared to order the sale contract and other agreements to be void ab initio under the statutory predecessor to s 243(a) of the ACL: Metz at [893].

89    I see no difference in principle between Metz and the present case, in so far as it concerns the question of ordering rescission ab initio, and whether that will achieve the compensatory purpose required under s 237 of the ACL, where the historical fact that the parties acted under an ongoing agreement cannot be wiped away. Two of the agreements rescinded ab initio in Metz were an ongoing employment agreement with one of the respondents and a lease that one of the applicants took from other respondents: see [20]-[21], [893]. The concern that Barker J had, which informed the order for rescission, was that the sale agreement was 'tainted from the outset' by misrepresentations and that the business 'should never have been sold'. Had there been a concern that rescission ab initio went further than the compensatory purpose, the ongoing agreements, at least, could have been rescinded with effect from a later date: TPA s 87(2)(a) (equivalent of ACL s 243(a)(ii)). But they were not. Once again, however, it is necessary to acknowledge that the date of effect of the statutory rescission does not appear to have been an issue in Metz.

90    Harvard also relies on Munchies Management. That case was concerned with a situation where a contract for the purchase of a business had been effectively rescinded by the purchaser due to the vendor's misrepresentation on a certain date, but the vendor refused to accept the rescission and the purchaser was forced to continue to conduct the business. By the time of judgment, the circumstances had changed significantly; indeed, the purchaser had been evicted by the local council, which was also the landlord of the business premises, for non-payment of rent and rates. Nevertheless, on the basis that the misrepresentation was characterised as fraudulent, the Full Court was content to award damages under s 87 of the TPA, the statutory predecessor of s 237 and s 243 of the ACL, by analogy to the adjustments and allowances that equity would make in cases of fraudulent misrepresentation: at 286, 288-290. Relevantly, the Court held that by refusing to accept the rescission and thus the return of the property sold, the vendors took the risk of a subsequent deterioration in the value of the property: at 288-289.

91    Harvard seeks to draw an analogy between Munchies Management and the present case, arguing that by refusing to accept the rescission of early April 2019, the respondents accepted the risk that they might be subsequently evicted and that any expenditure they made in the meantime might be wasted. I do not accept that the analogy is entirely apt. The decision in Munchies Management appears to have been predicated on a finding that the purchasers made a legally effective election to rescind the purchase contract for fraudulent misrepresentation. Its concern was the damages that could be awarded under s 87 by analogy to the adjustments and allowances that equity would make in those circumstances. It is trite that fraud needs to be clearly pleaded and proved: see e.g. Clone Pty Ltd v Players Pty Ltd (in liq) (rec & man apptd) [2018] HCA 12; (2018) 264 CLR 165 at [62]. In this case it was not. Also, as has already been said, and as the Appeal Judgment made clear, Harvard did not seek a declaration that the purported election which it communicated on 2 April 2019 was effective under the common law or at equity to rescind the New Leases, and to do so now is beyond the scope of the remitter. I will not proceed on the basis that Harvard validly rescinded for fraudulent misrepresentation on 2 April 2019.

Consideration

92    I doubt the correctness of the premise, which both sides here seemed to accept, that Harvard can only be awarded damages from the date as at which the New Leases are declared void.

93    All the Full Court said at AJ [93] was that any quantification of the loss of opportunity to lease the Farms to the Fowlers would 'depend at least in part on any statutory rescission relief'. That refers to quantum, not whether damages could be awarded at all. In order to make sense of this, there is no need to posit as a matter of logic or legal principle a causal relationship whereby declaring the New Leases void is a necessary precondition of damages. Self-evidently, whether statutory rescission was ordered would affect the quantum of damages because it would affect the duration for which the opportunity to lease the Farms to the Fowlers (or anyone else) was lost. If statutory rescission is not ordered, the opportunity will have been lost for the entire terms of the New Leases, plus any renewed terms likely on the exercise of options.

94    The respondents nevertheless submit that since Harvard seemed to accept the premise, I was bound by the way the parties conducted their cases to accept it too. However I doubt that is so. In the end the premise appears to depend on a particular understanding of the law, and the court is not bound by agreement between the parties on any question of law: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [143] (Kirby J); Western Australia v Russell [2009] WASCA 154 at [47].

95    However, there is no need for me to reach a definite conclusion on any of these matters, because I consider that an order declaring the New Leases to be void from their inception can and should be made. I have formed that view for the following reasons, and without regard to its effect on any order for damages. That is, I have taken the approach urged by the respondents, and which seems to have been contemplated in the Appeal Judgment, of ruling on rescission first and then considering the question of damages. Of course, when doing the latter, the court must be astute not to provide double compensation.

96    I have decided that statutory rescission ab initio is available and appropriate for the following reasons. It was central to the Appeal Judgment that the loss or damage which gave rise to the discretion under s 237 was different to the loss or damage which may found any damages awarded under s 236. On remitter both sides seem to accept that the Full Court drew that distinction. It was also central to the Appeal Judgment, as the respondents submit, that the loss or damage that provided the 'gateway' to relief under s 237 was not economic loss or damage, and was based on Mr Caratti's subjective views about Mr Nicoletti and not 'on any objectively measurable disadvantage in having Mr Nicoletti as a tenant': AJ [81].

97    The remedy appropriate to compensate for that non-economic loss should be determined by reference to the purpose for which the court is given a discretion to make (relevantly) non-monetary orders by way of compensation for or prevention or reduction of loss caused by breach of the statutory norm against misleading or deceptive conduct. The most complete way to compensate Harvard for the loss which the Appeal Judgment has identified as engaging s 237 - being bound to ongoing contractual arrangements with a vehicle for Mr Nicoletti - is to terminate those arrangements from their inception. Of course, this will not change the historical facts as to how the parties conducted themselves, and the beliefs they may have had in the past about the legal effect and enforceability of the New Leases. But that does not mean it is outside the discretion of the court to make an order of that kind. It will serve what French J in Tenji described as the compensatory purpose to provide such redress as it may, even if that redress is only partial. The respondents accept that the loss is a consequence of John Caratti's subjective wish not to have his company, Harvard, in legal relations with a vehicle for Mr Nicoletti, Dimension, and the Appeal Judgment makes it clear that is so. The order proposed by Harvard will mean that in the eyes of the law, Harvard never was in legal relations with Dimension. This will, at least, 'reduce the loss or damage suffered, or likely to be suffered, by the injured person': s 237(2)(b).

98    To the extent that the companies behaved in the past as if they did have legal obligations to each other, those historical facts cannot be erased. But the loss founding relief under s 237 is not the economic value of whatever Harvard gave up in what became begrudging performance of those obligations, chiefly, the provision of vacant possession of the Farms. The relevant loss followed from the very existence of those legal obligations. The loss found by the Full Court was being bound to a contract with someone Harvard strenuously wished not to be contracted to on terms it would not have agreed: AJ [82]. The Full Court made it clear at AJ [86] that rescission (or termination), as opposed to statutory damages, is the only relief that can cure that loss or damage. Removing those contractual obligations will reduce that loss (at least), including in relation to obligations that applied and were performed in the past. It is not outside the scope of the discretion to make such an order.

99    I also consider that it is appropriate to exercise the discretion that way. The New Leases were induced by misleading or deceptive conduct. They should never have been entered into. Harvard has been found to have suffered loss by reason of their existence and the fact that they bound it to a contractual relationship with a vehicle for Mr Nicoletti. Making an order with the effect that, in the eyes of the law, that relationship never existed will serve the policy of the legislation of protecting persons engaged in trade or commerce from breach of the rule of responsibility against misleading or deceptive conduct: see Awad at [43].

100    To the extent that Harvard has behaved consistently with the enforceability of the New Leases, while on other occasions seeking to disaffirm them, I do not consider that in the circumstances that provides a good discretionary reason not to grant the relief sought. While I do not accept that the precise analogy Harvard seeks to draw with Munchies Management is apt, I do accept that the pragmatic considerations that inform the equitable remedy of rescission can provide a guide to the statutory rescission sought here. As in Tenji, Metz and Munchies Management, Harvard sought to rescind, that was not accepted, and it was faced with a choice. It could exercise some kind of self-help remedy, a course fraught with difficulty and risk, or it could seek appropriate remedies in court while allowing Dimension and Mr Tiller to remain in occupation of the Farms until those remedies were granted. It chose to do the latter. It did so promptly, while clearly reserving its rights to seek vacant possession. It could hardly have been expected to give Dimension and Mr Tiller the potential windfall of permitting them to occupy the Farms for free during that potentially lengthy period of time. Instead, it continued to accept their rent payments on the express basis that they were in reduction of damages.

101    Dimension, for its part, kept making the payments, and other payments due under the New Leases, aware of the risk that in court, Harvard's position could be vindicated and Dimension and Mr Tiller could be ordered to give up vacant possession. The respondents accept that rescission is an appropriate remedy, which means they accept that it is possible to return the parties, in a manner that it practically just, to the positions they were in before the misleading conduct. The Full Court has confirmed that this can be done by rescission of the New Leases only, without rescission of the other transactions that surrounded them.

102    In those circumstances, there is no reason why it would be unjust to order the rescission of the New Leases to take effect ab initio, and good reasons why it would be just to do so. Harvard's conduct since the time that it discovered that it had been misled has been the conduct of a reasonable litigant who recognises, pragmatically, that it must seek relief in court and must make do with the state of affairs maintained by the respondents, against Harvard's will, in the meantime. The question of whether the behaviour of the successful plaintiff is unconscientious or unfair is a yardstick that can be applied to assess such situations: see Alati v Kruger at 225. In my respectful view, to recognise that here it was not, is to take a similar approach to that which Barker J took in Metz and the Full Court took in Tenji (see [116], Carr J (French and Whitlam JJ agreeing)).

103    I also do not accept that the specific payments that Dimension made in 2019 provide discretionary reasons why an order for statutory rescission should not be made. As Harvard points out, the first two payments ($70,000 and payment of council rates, both on 27 February 2019) were made and accepted before Harvard knew that it had been misled. The first was made to Mammoth not Harvard, and the second was made to the Shire of Esperance. Harvard could hardly be expected to demand that the Shire disgorge the payment once it knew it had been misled. As for the third specific payment, its acceptance alone at a time when Harvard was clearly pursuing statutory rescission is not a strong discretionary reason to refuse Harvard the broader remedy of statutory rescission ab initio. The authorities make it clear that no strict doctrine of election governs the statutory remedies in that regard. More to the point is whether repayment of that $70,000, and of the other specific payments, should be a condition of the statutory rescission granted. To that subject I will now turn.

Second issue - should Harvard repay to Dimension certain amounts?

104    As has been said, the respondents submit that any order for statutory rescission should be on condition that Harvard repay certain amounts that Dimension has paid. It would be fair to say that the enthusiasm with which that was pursued waned over the course of the remitter hearing, so these points can be addressed fairly briefly. Also, just before the hearing of the remitter the respondents abandoned an additional claim in respect of capital improvements which, they said, a company of Mr Nicoletti's had made on the Farms.

105    The amounts sought to be repaid comprised three payments that were a legacy of the Tiller Subleases, and previous leases, which I have already described, namely:

(1)    $70,000 paid by Dimension to Mammoth on 27 February 2019 in satisfaction of an obligation in the deed of surrender between Mr and Mrs Tiller and Mammoth;

(2)    $141,213.86 paid by Dimension on 27 February 2019 in respect of arrears of local government rates, which was also in satisfaction of an obligation in the deed of surrender between Mr and Mrs Tiller and Mammoth; and

(3)    $70,000 paid by Dimension to Harvard on 17 November 2019 in satisfaction of an obligation owed by Dimension and Mr Tiller found in the New Lease of Howick Farm.

106    Mr Nicoletti gave unchallenged evidence for the purposes of the remitter hearing that Dimension paid both of the $70,000 instalments for the previous arrears. There was some confusion as to whether the first of these amounts was paid to Mammoth or to Harvard, but in the end the respondents accepted that it had been paid to Mammoth.

107    The respondents seem to rely on the principle of restitutio in integrum and say that if Harvard wishes to undo the New Leases, it should not be able to retain the benefit of these payments, which it would not have otherwise received. Those amounts were paid over and above the rent that is attributable to Dimension's occupation of the Farms for roughly two years, which Dimension does not seek to recover. They point out that the amounts were paid in the context of Dimension having long term leases of the Farms, not occupation for just two seasons (as has proved to be the case).

108    Senior counsel for the respondents properly accepted, however, the force of the point that the first payment of $70,000 and the payment of council rates were in fact made pursuant to an unrescinded agreement between Mammoth and the Tillers (the deed of surrender). The Full Court made it clear that the other agreements in the suite of transactions were not to be disturbed by statutory rescission: see AJ [84]-[85].

109    Senior counsel also accepted the force of a further point, concerning the third amount, namely the $70,000 payable by Dimension and Mr Tiller under the New Leases that was in fact paid by Dimension to Harvard in November 2019. The further point was that, although this was not paid pursuant to an unrescinded agreement between other parties, Mammoth still gave value for that payment. That is because it was payable in place of the previous obligations undertaken by the Tillers to Mammoth to pay off the alleged arrears, under prior leases, over time. To put the point another way, if the third payment of $70,000 were to be unwound, in effect, by imposing the condition that the respondents seek, then in order to restore all concerned to their previous positions, Mammoth would call on the Tillers for satisfaction of that obligation. The effect of the entire suite of transactions was that Mammoth released the Tillers from that obligation on condition that Dimension and Mr Tiller assumed it (as an obligation to Harvard) under the New Lease of Howick Farm.

110    In my view the concept inherent in this further point also applies in respect of the first payment of $70,000, and in respect of the payment of council rates. Mammoth gave value in return for the first $70,000 by releasing the Tillers from the obligation that had been satisfied (on their behalf, by Dimension). Similarly, in effect Mammoth released the Tillers from their obligation to pay the rates arrears, because Dimension had paid the rates. If the burden of paying those amounts is then imposed on Harvard, by reason of the condition the respondents seek, the Tillers will effectively have obtained a windfall at Harvard's expense.

111    That is all in a context where the respondents submit that for the purposes of the exercise of the discretion as to statutory rescission, I should not draw any distinction between the interests of Harvard and Mammoth, as they were both controlled by John Caratti and he caused Harvard to replace Mammoth as the sub-lessor of the Farms. If I take that approach, then the outcome of the conditions the respondents seek would mean that the Tillers were released from their pre-existing obligations to pay money to what can be called 'the Caratti interests', but the Caratti interests will have received nothing in return.

112    In short, a full understanding of the historical antecedents of the payments shows that describing them as payments Dimension made to secure a long term lease is incomplete. That might have been what motivated Dimension, but all three payments effectively replaced and satisfied pre-existing obligations that the Tillers owed to Mammoth.

113    I do not consider that any injustice is caused to Dimension if the amounts are not repaid, or at least not any injustice commensurate with that which would be caused to the Caratti interests if they were repaid. Dimension did receive the benefit of two years' occupation of the Farms in return for the payments (and, of course, in return for the payment of rent). To the extent that it paid the amounts in the expectation of a longer term, it did so knowing that it had procured that longer term by engaging in misleading conduct and that the New Leases were at risk of being unwound. In relation to the first two payments, this knowledge is attributed to Dimension because Mr Tiller, who made the misleading statements in January, was its director at the time the payments were made: see PJ [253]-[254]. In relation to the third payment, it was made at a time when the present litigation was well underway - in fact it was made about two weeks before the commencement of the trial - so by that time Dimension (Mr Nicoletti) must have been aware of the allegations and the risk.

114    Taking these matters into account in a full evaluative assessment of the appropriate relief in all the relevant facts and circumstances, I will not exercise the discretion under s 237 of the ACL to impose repayment of the three amounts as a condition of statutory rescission of the New Leases. It will, however, be necessary to return to the subject of these payments in connection with the assessment of damages where, as will be seen, different principles apply.

115    The respondents also seek for the statutory rescission to be conditional on repayment by Harvard to Dimension of $107,397.26 (plus GST), being pro rata rent for the period 10 January 2021 to 28 February 2021. The rent under the New Leases was payable in biannual instalments in advance. Dimension paid the rent for September 2020 to February 2021 (inclusive) on or about 1 September 2020. But it only occupied the Farms until 10 January. So it seeks, in effect, the return of the portion of rent attributable to 11 January 2021 to 28 February 2021.

116    The respondents submit that the evidence establishes that Dimension and Mr Nicoletti permitted the Fowlers to do whatever they wanted on the Farms after 10 January 2021 and that the Fowlers were in exclusive possession of the Farms from 15 February 2021. Dimension should not have to pay rent during a time in which it did not have possession.

117    But in the end that is beside the point. As will be seen below, Harvard is going to receive an award of damages, and the rent Dimension paid for the period after it gave possession will effectively be a deduction from that. If Dimension had not been in occupation of the Farms in the 2019 and 2020 seasons, Harvard would have received nearly $4 million in rent from the Fowlers for that period. Harvard's claim applies the full $400,000 paid on 1 September 2020 in reduction of the damages. If pro rata rent for the period 11 January to 28 February 2021 is repaid to Dimension, the deduction will be less and the damages will be more. So the net effect will be the same.

118    The respondents thus accept that this claim would fall away if damages are awarded, which is the result here. I will make no requirement that the rent for 11 January to 28 February 2021 is to be repaid as a condition of statutory rescission of the New Leases.

Third issue - should damages be awarded against Mr Nicoletti?

Harvard's submissions

119    Harvard contends that the findings in the Primary Judgment that Mr Nicoletti was not liable must fall away because they are inconsistent with the Appeal Judgment. It makes that submission despite the fact that nowhere in the Appeal Judgment was it said that those findings were wrong. Harvard submits that the findings are inconsistent with the Appeal Judgment, even if they were not expressly overturned. It also relies on the doctrines of issue estoppel and Anshun estoppel.

120    Harvard's argument chiefly depends on ground of appeal 1(b), which is reproduced at [16] above. The essence of that ground was that in failing to disclose the 15 February Deeds, Mr Tiller, Dimension and Mr Nicoletti deprived Harvard of the opportunity to rescind the New Leases on the basis of what would have been revealed by those deeds, namely the falsity of what was said in the course of the January Conduct. The Primary Judgment was said to have erred in failing to make findings to that effect.

121    Harvard submits that ground 1(b) was upheld as part of ground 1. In order to understand how it develops that submission, it is necessary to appreciate the difficulty it seeks to overcome. There is no passage in the Appeal Judgment that even refers to ground 1(b), whether by explicit numerical reference, by setting out its terms, or by describing the contention made in it. Harvard cannot point to any part of the Appeal Judgment in which the argument advanced in ground 1(b) is addressed, in terms. The Appeal Judgment does not say that it upholds ground 1. And, despite some broad references to 'the respondents' in the Appeal Judgment, it does not say that any conduct of Mr Nicoletti's caused Harvard to suffer loss or damage.

122    Nevertheless, Harvard says that the upholding of ground 1(b) appears by implication from certain passages of the Appeal Judgment. Harvard also relies on the effect of the Full Court's order setting aside the Primary Judgment's dismissal of Harvard's damages claim. It is necessary to step through its argument with some care in order to understand how, it is said, the implication arises.

123    To begin with, Harvard submits that the Full Court found that there was an undisturbed finding at first instance that the contravening conduct of the respondents - according to Harvard, respondents including Mr Nicoletti - materially contributed to Harvard's inability to obtain vacant possession, so as to lease the Farms to the Fowlers, and that this was sufficient to conclude that the loss of opportunity to do so was relevantly loss under s 236 of the ACL. This appears to be referring to PJ [507], to which it will be necessary to return.

124    In a written submission, Harvard argues that:

As upheld by the Full Court, the Applicant was entitled to seek damages on the basis of the deprivation by the Respondents of the Applicant's right of rescission, by ignoring it and refusing to deliver up vacant possession on 2 April 2019. By then, there were clear findings about Mr Nicoletti's personal involvement.

Harvard does not cite where the Full Court upheld this or to what 'clear findings about Mr Nicoletti's personal involvement' it refers. But it appears to have in mind, once again, AJ [92] which is reproduced at [36] above, which in turn cites PJ [507]. It will be convenient to set out PJ [507] in full in the course of considering Harvard's submissions below. It is enough at the moment to note the main point Harvard seeks to draw from it later in its submissions, namely to submit that it was found at first instance that 'the refusal by Dimension and Mr Nicoletti to accept rescission' was a material contributing factor to Harvard's financial loss - indeed, Harvard says that 'Mr Nicoletti was the main cause' (remitter submissions 20 April 2021 para 24(a)).

125    As for the reference to clear findings about Mr Nicoletti's personal involvement 'by then', this appears to be a reference to the findings in the Primary Judgment at [665] that Mr Nicoletti engaged in the Non-Disclosure Conduct from February to April 2019, along with Mr Tiller and Dimension.

126    Harvard then refers to passages from its written submissions to the Full Court which, it says, provide context for the Full Court's reasons. Those passages advance the following arguments:

(1)    Under ground of appeal 1(a): that the ongoing contract induced by 'the misleading or deceptive conduct of the respondents' (that is, the New Leases) meant that the conduct had ongoing effect. The legal rights conferred by that ongoing contract were relied on by 'the respondents' in April 2019 in order to resist Harvard's demand for vacant possession of the Farms: appeal submissions 9 October 2020 (AS1) paras 23-25. The loss that Harvard claimed at trial included non-economic loss occasioned by the ongoing existence of the New Leases and Mr Nicoletti's involvement in the Farms: appeal submissions 26 October 2020 (AS2) paras 5-9.

(2)    Under ground of appeal 1(b): that the assertion of those legal rights led to loss or damage and it should have been found that Harvard was entitled to relief in the nature of rescission and monetary compensation for the lost benefits of the 2019 Fowler Lease: AS1 para 34.

(3)    Under ground of appeal 2: that the importance of the breach of the New Leases constituted by the 15 February Deeds is shown by the lengths the respondents went to conceal those deeds from Harvard. They knew that any involvement by Mr Nicoletti in the Farms would be a 'deal breaker': AS1 para 39.

(4)    Under the Notice of Contention (which related to appeal ground 2): that the loss and damage that flowed from the Non-Disclosure Conduct followed from the effect that the letter of 5 April 2019 from Mr Tiller's and Dimension's solicitors to Harvard's solicitors had on the legal advice to Harvard about its options, given that Harvard did not know about the 15 February Deeds. The correct question, then, was to ask what Harvard would have done had it received a non-misleading letter on 5 April 2019: AS2 paras 35-36.

127    On remitter Harvard submits that the Full Court did not reject any of these submissions explicitly or implicitly.

128    Then, in what appears to be the crucial step in Harvard's submissions, it is said that the Full Court did two things. First, it accepted that 'the Applicant's case' was open. This terminology in Harvard's submissions appears to be a reference to its case that it suffered loss or damage at the time of the solicitors' correspondence of early April 2019, not at the time that it entered into the New Leases (in February 2019). Second, the Full Court set aside, among other things, paragraph 5 of the orders made in the Primary Judgment. This was the order with the effect of dismissing the damages claim against all parties.

129    On that basis, Harvard says that the Full Court upheld ground of appeal 1(b). In a nutshell, then, the argument seems to be this:

(a)    Ground 1(b) relied on loss or damage said to have been suffered at the time of the solicitors' correspondence of early April 2019.

(b)    The Full Court found the case that this loss or damage was suffered to be open, or approved it.

(c)    The Full Court set aside the order dismissing the claim for damages against all respondents, including Mr Nicoletti.

(d)    The Full Court should therefore be taken to have considered that Mr Nicoletti was liable to pay damages for the reason advanced in ground 1(b).

130    Harvard's oral submissions on remitter suggested that the contention that the Full Court found its case to be open depends on AJ [88]-[89], which are reproduced at [35] above. Harvard's counsel appeared to submit that in these paragraphs, the Full Court was implicitly accepting the contention expressed in ground 1(b), that its case against Mr Nicoletti was not based on mere accessory involvement in the January Conduct, but on a wider course of conduct in which he engaged, in which the Non-Disclosure Conduct perpetuated the mischief that was initiated by the January Conduct. For that reason, Harvard submitted that it did not need to plead or demonstrate that Mr Nicoletti knew about the January Conduct, so that the finding at PJ [490] that he did not know 'falls away'.

131    Harvard's counsel also relied on the passage from AJ [91] that is reproduced at [36] above, emphasising the Full Court's use of the term 'course of misleading and deceptive conduct'. He said this was a reference to Mr Nicoletti's engagement in the Non-Disclosure Conduct.

132    Harvard's counsel put its case about the significance of the order setting aside the dismissal of the claim for damages succinctly, as follows (ts 144-145):

… my learned friend really hasn't grappled with … the significance of the Full Court setting aside an order dismissing a claim founded on a finding of no liability to pay damages. You can't dismiss an order based on such a finding and then say the Full Court didn't mean that. If it set aside a finding or it set aside an order dismissing a claim for damages, it must follow that the claim for damages has been reinstated. Otherwise … what's the point of dismissing it or setting it aside?

133    Harvard's written submissions on remitter then go on to refer to evidence adduced and submissions made at the hearing at first instance, as well as findings made in the Primary Judgment, which it says establish that Mr Nicoletti was involved in a course of concealment of his proposed involvement with the Farms. This course of concealment led up to, and included, the response by Dimension's and Mr Tiller's solicitors to Harvard's notice of election to rescind of 2 April 2019. Mr Nicoletti was in control of Dimension, so his personal conduct facilitated the concealment.

134    As I have indicated, Harvard also relies on the doctrines of issue estoppel and Anshun estoppel. The issue estoppel argument was put orally, and briefly, as being that if the Court accepts Harvard's construction of the effect of the Appeal Judgment, including the Full Court's orders, then there is an issue estoppel. It was based entirely on Harvard's submissions, described already, that the Full Court implicitly determined that Mr Nicoletti should be liable for damages caused by misleading conduct.

135    The Anshun estoppel argument was introduced in a letter that Harvard's solicitors sent to the Court the Friday before the remitter hearing. The letter said that Harvard relied:

[i]n relation to the significance of the order by the Full Court setting aside orders dismissing the claims against each of the Respondents to the Appeal, Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 [(2015) 256 CLR 507], in support of the proposition that the Third Respondent is estopped from now asserting that the Full Court order should not have set aside the order dismissing the claim against him, as the time to make that claim was to the Full Court before it made its final orders.

136    At the remitter hearing, counsel for Harvard put the Anshun argument as follows. If there was any doubt about the effect of the Full Court's order setting aside the dismissal of the damages claim, Mr Nicoletti should have asked the Full Court to clarify the matter by submitting that the order dismissing the claim for damages against him should not be set aside. Counsel submitted that it was for the respondents to raise the issue then, because they are the ones who did not want an order with the effect that Mr Nicoletti was liable to be made. If that had been put to the Full Court, the issue could have been dealt with and addressed, including, if necessary, by consideration of ground 1(b) and the submissions advanced. Having failed to submit to the Full Court that the effect of its judgment was not that Mr Nicoletti was liable, he is, Harvard says, estopped from doing so now.

137    Harvard's counsel also raised a wider point, which he described as a 'fundamental question about the administration of justice'. The submission was to the effect that it would be unjust if Mr Nicoletti were to escape liability, despite his responsibility for the losses Harvard suffered, because the Appeal Judgment did not deal with his liability. Harvard's counsel pointed to Mr Nicoletti's engagement in the Non-Disclosure Conduct, including what he characterised as instructions to Lawton Gillon resulting in the misleading letter from Lawton Gillon of 5 April 2019. Counsel asked rhetorically 'What is fair? What is fair about an outcome like that in light of the honest findings about Mr Nicoletti and his involvement?'.

The respondents' submissions

138    The respondents reply to Harvard's submission by saying, in effect, that it is based on an inaccurate paraphrase of the Appeal Judgment. The key passage in AJ [92], referring in turn to PJ [507], is about the January Conduct, not the Non-Disclosure Conduct. Mr Nicoletti was found to have engaged in the latter, but not to have engaged in, or to be liable as a person involved in, the former. The Full Court's reasoning, and the paragraph of the Primary Judgment to which it referred, were about the loss occasioned by the coming into existence of the New Leases, not any loss occasioned by the non-disclosure of the 15 February Deeds. Read in context, the reference in AJ [92] to 'the contravening conduct of the respondents' cannot be understood as a reference to all the respondents (noting that the respondents in the appeal were Mr Tiller, Dimension and Mr Nicoletti but not Mr Bryce or Mrs Tiller, who had been respondents at first instance).

139    The respondents say that the Appeal Judgment did not overturn PJ [490], where it was found that it had not been established that Mr Nicoletti was relevantly involved in the January Conduct. That finding was not the subject of a ground of appeal, no submissions were directed to it, the Appeal Judgment does not refer to it, and there was no suggestion in the Appeal Judgment that the Full Court considered it to be erroneous. Similarly, the combined effect of PJ [490] and PJ [507] was not overturned on appeal. As with PJ [490], no ground of appeal attacked PJ [507] and the Appeal Judgment endorsed the findings in PJ [507].

140    The respondents also submit that Harvard misstates the case that it put at trial when it says (on remitter) that it claimed that the loss was materially caused by Mr Nicoletti's continued concealment of the true position through his corporate vehicle, Dimension. Rather, they submit, its case at trial relying on the Non-Disclosure Conduct was premised on the validity of the New Leases. It did not allege that the Non-Disclosure Conduct caused loss consequent on the alleged rescission of the New Leases in early April 2019. Its allegation was that the Non-Disclosure Conduct prevented what would otherwise have been termination for fundamental breach by reason of the 15 February Deeds. In any event, the respondents say, the Full Court did not find that it was the former case that was, in fact, run at trial, as the Appeal Judgment did not mention that case at all.

141    The respondents also rely on written submissions that Harvard made on appeal, which, the respondents say, show that the characterisation of Harvard's case based on the 15 February Deeds on which the Primary Judgment proceeded was ultimately not challenged on appeal, and that in the end Harvard's argument under ground 1(b) was directed solely to the conclusion that the entry into the 15 February Deeds was not a fundamental breach of the New Leases. The respondents' written submissions on appeal simply said of this that Harvard's submissions did not correspond with the ground, and Harvard's submissions on appeal in reply did not engage with that. So, the respondents say, there was on appeal no challenge to the account given in the Primary Judgment of Harvard's case on causation of damage connected with the Non-Disclosure Conduct, namely that the conduct deprived it of an opportunity it would otherwise have had to elect to terminate the New Leases for the fundamental breach represented by the 15 February Deeds.

142    As to the effect of the orders of the Full Court, the respondents submit that by its orders setting aside the dismissal of the damages claim against all respondents and then remitting it back to me, the Full Court effectively returned the matter to 'a clean slate', subject of course to any correction of the Primary Judgment's findings made by the Full Court. Senior counsel for the respondents said that there was no positive element to the orders the Full Court made, by which I understand him to mean that the Full Court did not make an order to the effect that Mr Nicoletti was liable (or anyone else).

143    As to the arguments based on issue estoppel and Anshun estoppel, the respondents say that those doctrines concern findings in one set of proceedings and their effect on different proceedings. Here, we are concerned with the same proceeding. But ultimately they accept, of course, that on remitter I cannot act inconsistently with what the Full Court has actually decided. So whether Harvard relied on issue estoppel, Anshun estoppel or just the status of this proceeding as being on remitter following an appeal judgment, the key question remains: what has the Full Court actually decided?

144    The respondents characterise Harvard's Anshun argument as a complaint that the respondents should have drawn the Full Court's attention to the lack of any finding against Mr Nicoletti of involvement in the January Conduct. The respondents say that they did make it clear at the outset of their written submissions on the appeal that there had been no such finding against Mr Nicoletti, and there was no challenge on appeal to the finding at PJ [490] that he was not involved in the January Conduct. The respondents also say they had no opportunity to seek a change to the terms of the orders on appeal, which the Full Court made at the same time as delivering reasons for decision in the Appeal Judgment.

Consideration

The Full Court did not say that Mr Nicoletti is liable

145    I have already described the immediate difficulty that Harvard seeks to overcome with its main argument that the Full Court determined that Mr Nicoletti was liable to pay damages. It is that the Appeal Judgment did not say so. It did not so much as avert to any issue as to whether contravening conduct on the part of Mr Nicoletti caused loss or damage to Harvard. And while an order setting aside the dismissal of the claim against all the respondents was made, no final order stating who was liable, or was not, was made in place of the orders set aside.

146    There were three grounds of appeal, if grounds 1(a) and 1(b) are treated as separate. Ground 1(a) expressly related only to contravening conduct of Dimension and Mr Tiller. Ground 1(b) and ground 2 related to contravening conduct also of Mr Nicoletti. If either of them were upheld, then the Full Court would necessarily have found Mr Nicoletti to be liable. But the Appeal Judgment indicated expressly that ground 2 would not be determined. Harvard therefore accepts that it cannot rely on that ground. Its argument on remitter is that ground 1(b) was upheld. It necessarily accepted that nowhere did the Full Court say that it was upholding ground 1(b). More than that, the Full Court did not refer to ground 1(b) or describe it, let alone consider whether or not it was correct.

The Full Court did not uphold ground 1(b)

147    Harvard nevertheless submits that the Appeal Judgment should be read to mean that ground 1(b) has been upheld implicitly.

148    I accept that as matter of principle, an appellate court can uphold a ground of appeal implicitly. In my respectful view, that is what the Full Court did here in relation to ground 1(a). Like ground 1(b), the Appeal Judgment does not set ground 1(a) out, in whole or in part, or refer to it. There is no reference, in terms, to ground 1 at all. But the argument the Full Court did address is the argument advanced in ground 1(a). The argument was that the Primary Judgment was in error in finding that Harvard did not suffer loss or damage because of the January Conduct of Mr Tiller and Dimension. I have described and commented on the Appeal Judgment at length above at [20]-[39]. It is not necessary to repeat that here. It is abundantly clear that the Full Court found that the January Conduct caused two kinds of loss and damage. Necessarily, then, it upheld ground 1(a).

149    But the position in relation to ground 1(b) is different. The Full Court did not describe it or the argument it advances, much less consider or determine the merits of that argument. It would be strange, to say the least, for an appellate court to intend to uphold a ground of appeal that it has not even mentioned, or to uphold an argument that it has not even considered.

150    In my view, Harvard's attempt to establish that, nevertheless, the Full Court should be taken to have upheld ground 1(b) fails at two crucial points. The first is its submission that the Full Court found its case under ground 1(b) to be open. Harvard seeks to support that by collecting a number of disparate written submissions it made on appeal, along with findings in the Primary Judgment which, conceivably, could be put together to construct its argument under ground 1(b). I have summarised those appeal submissions at [125] above. To compile them in the way I think Harvard now intends: the January Conduct had ongoing effect because the New Leases were ongoing; the existence of the New Leases caused economic loss because they allowed the respondents to refuse to give vacant possession when Harvard asserted rescission; and had the 15 February Deeds been disclosed to Harvard, it would have had stronger legal grounds to proceed with the rescission of 2 April, and would have done so, thus avoiding that economic loss.

151    Even putting all that together would not be enough to produce the case stated in ground 1(b), because there is no reference in the written appeal submissions to which Harvard now refers to the key allegation in ground 1(b) that the 15 February Deeds falsified the January Conduct.

152    In any event, the Full Court did not put it all together. It did not even refer to any of these submissions. So the most Harvard can say on remitter is that the Full Court did not reject any of those submissions. Harvard submits, somewhat tentatively, that the Full Court accepted 'that the Applicant's case was open': remitter submissions 20 April 2021 para 17. But that is a different thing from addressing the case and accepting it. In truth, there was no rejection of the case in the Appeal Judgment because there was no consideration of it at all.

153    Harvard places much reliance on the acceptance in AJ [92] that 'the contravening conduct materially contributed to Harvard's inability to obtain vacant possession after 2 April 2019'. Taken out of context, this could perhaps go some way to supporting ground 1(b), which also relies on the rejection of the rescission of 2 April 2019 as a link in the chain of causation. But taken in context, it does not, because the Full Court was referring to the consequences of the January Conduct, and the January Conduct alone.

154    I have attempted to describe that context in the analysis of the Appeal Judgment above at [20]-[39]. In summary, most of the Appeal Judgment dealt with the finding in the Primary Judgment that the January Conduct did not cause loss or damage that could found orders under s 237 of the ACL. The Full Court found that the conduct did cause a kind of non-economic loss, so that orders such as statutory rescission are available.

155    The Full Court then went on to consider the availability of damages under s 236. At AJ [88]-[89], the Full Court said that the 'process of reasoning' is that Harvard was entitled to rescind, and sought to do so in the letter of 2 April 2019, but 'Mr Tiller and Dimension' rejected that. That meant that Harvard could not lease the Farms to the Fowlers, 'and that the only reason why it could not do so was because the respondents denied and failed to give effect to its legal rights'. While there is a reference in AJ [88] to 'the involvement of Mr Nicoletti', that is a reference to his involvement in the Farms, not his involvement in any misleading or deceptive conduct, and Harvard did not suggest otherwise.

156    Harvard did suggest, however, that the reference in AJ [91] to 'a course of misleading and deceptive conduct' was a reference to the ongoing conduct that involved concealment of the 15 February Deeds, conduct in which Mr Nicoletti engaged. But it was not a reference to that. AJ [91] follows immediately from the Full Court's discussion of Murphy as indicating that loss or damage caused by contravening conduct is not necessarily singular. It is referring to a general proposition of law, not to any particular course of contravening conduct. AJ [91] provides no support for Harvard's case.

157    At AJ [88]-[89], the Full Court appeared to be describing Harvard's submissions as to why it was entitled to damages. The Full Court came to determine that question in AJ [92]. It did so on the basis that the finding in the Primary Judgment at [507] was sufficient to establish loss or damage caused by the 'contravening conduct of the respondents' under 'the broad common-sense notion of causation under the ACL'. To understand this, it is necessary to understand PJ [507] and for its immediate context, PJ [506]. They are (emphasis added):

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

Harvard has also established this causal nexus on the evidence. I have found that Mr Caratti relied on Mr Tiller's misleading conduct in causing Mammoth and Harvard to enter into the transactions which resulted in Harvard leasing the Farms to Mr Tiller and Dimension under the New Leases. And the New Leases were the basis for Mr Tiller's and Dimension's refusal to deliver up vacant possession of the Farms; that is plain from Lawton Gillon's letter of 5 April 2019 (see [287] above). That is enough to make the misleading conduct which resulted in the existence of the New Leases a material contributing factor to Harvard's inability to obtain vacant possession without an order of the court under s 243. …

158    As the emphasised phrases make plain, the passage in the Primary Judgment on which the Full Court relied in reaching its conclusion as to damages is solely about the January Conduct, being conduct of Mr Tiller and Dimension, and the conduct of those two respondents in refusing to yield vacant possession after 2 April 2019. The passage appears in a section of the Primary Judgment which deals solely with the January Conduct, and does not deal with the Non-Disclosure Conduct. The Non-Disclosure Conduct was the subject of a separate section. So even if, as Harvard emphasises, Mr Nicoletti gave the instruction to reject the purported rescission, that does not mean he thereby engaged in any contravening conduct that was found to have caused the loss or damage resulting from the refusal to yield vacant possession.

159    In that context, and in all the other context presented in the account of the Appeal Judgment given above, in my respectful view the Full Court's conclusion is a conclusion about the January Conduct alone, and the loss it caused. The broad references in that part of the Appeal Judgment to 'the contravening conduct' and 'the respondents' are to be understood in that light as references to the January Conduct, and to Mr Tiller and Dimension, respectively. As such, Harvard's similarly broad references to 'the misleading or deceptive conduct of the respondents', and its submission that the Full Court held that 'the respondents' deprived it of its right of rescission, do not mean that the Full Court found that any contravening conduct of Mr Nicoletti's caused loss.

160    Nor do Harvard's references to findings in the Primary Judgment about Mr Nicoletti's deceptive conduct help its case on remitter. They were findings in a part of the Primary Judgment different to the part considered by the Full Court, and the Full Court did not refer to them. Contrary to Harvard's submission, the Full Court's conclusion at AJ [92] was not a conclusion about Mr Nicoletti's misleading or deceptive conduct. It was about the January Conduct. It follows that, also contrary to Harvard's submission, the finding at PJ [490] that it had not been proven that Mr Nicoletti had a sufficient degree of knowledge of January Conduct to be liable for it does not fall away into irrelevance. The Appeal Judgment cannot be taken to have accepted Harvard's case against Mr Nicoletti based on the Non-Disclosure Conduct.

161    So while the Full Court could have put Harvard's disparate submissions together, perhaps with elements of the Primary Judgment, so as to accept a case in which the concealment of the 15 February Deeds from Harvard by Mr Nicoletti caused it loss, it did not. None of the matters on which Harvard relies indicate that the Full Court considered ground 1(b), or found the case advanced in it to be open, let alone accepted it.

Setting aside the dismissal of the damages claim does not mean Mr Nicoletti is liable

162    A second key point at which Harvard's argument fails is its reliance on the Full Court's order setting aside the dismissal of the claim for damages. Of course, the parties and this Court must give full effect to that order. If it necessarily means that Mr Nicoletti is liable to pay damages, then that is the end of the matter. But it does not mean that.

163    To recap, in the Primary Judgment, I made an order dismissing the claim for statutory rescission and, at a later time, an order dismissing the balance of the application. In that second order, then, I had dismissed prayer for relief E, which is set out at [21] above. That prayer sought damages and interest against each of Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce. Hence Harvard submits that it follows from the setting aside of the dismissal of the claim against Mr Nicoletti, in the context of the Full Court's reasons as already canvassed, that the Full Court determined that Mr Nicoletti was liable for damages.

164    The logic of Harvard's submission is the simple negativing of a negative. As I have described, Harvard submits that if an order dismissing a claim for damages is set aside, it must follow that the claim for damages has been reinstated. Otherwise, Harvard asks, what was the point of dismissing it or setting it aside?

165    In my view the answer to that rhetorical question is that the dismissal order was set aside because it was a single indivisible order dismissing the claim for damages against all four respondents, when the Full Court had found that the contravening conduct of two of them caused loss or damage.

166    It is true that the Full Court could have gone on to replace it with orders allowing the claim against those respondents only and dismissing it against others. But that argument does not take account of relevant context. In its notice of appeal, Harvard sought the setting aside of the relevant orders, and in lieu thereof the making of several orders, including an order that Mr Tiller, Dimension and Mr Nicoletti pay damages. The Full Court did not substitute any order of that kind. So an argument could be mounted that the Full Court declined to order that Mr Nicoletti should pay damages.

167    In any event, in this case there is a certain aridity in seeking to determine the issue by reference to the orders alone. It was common ground here that they need to be construed in the context of the Appeal Judgment, the submissions on appeal and the Primary Judgment. Once that is accepted, three strong indications emerge that the Full Court should not be taken to have found that Mr Nicoletti was liable.

168    The first and most obvious is that nowhere does it say so. And as I have explained, I do not consider that it did so implicitly. It would be extraordinary for an intermediate appellate court, or any court, to make an order with the effect that an individual is found to be liable for serious misleading or deceptive conduct without saying so.

169    Second, the Full Court's own orders make it clear that it does not consider that relief will necessarily be granted against all respondents. The order of remitter is to consider 'what, if any, relief should be granted'. So it is open to this Court to determine that no damages should be awarded against a particular respondent. Of course, if the Full Court had indicated in its reasons that damages should be awarded against Mr Nicoletti, or even just that his contravening conduct had caused loss or damage, then the position would be different. But it did not.

170    Third, on Harvard's double negative argument, the Full Court would also have considered Mr Bryce to be liable. It is true that, in contrast to Mr Nicoletti, Harvard makes no attempt to find a hint of that in the Full Court's reasons (there is none). It is also true that Mr Bryce was not a respondent to the appeal. But the logic of its reliance on the order setting aside the dismissal of the claim against him would still dictate that result.

171    That this is plainly not so shows the flaw in Harvard's logic. The flaw is that the orders are not to be read in isolation. If the Appeal Judgment and orders of the Full Court are read in a common sense way in the context of the reasons, the submissions on appeal and the Primary Judgment, there is no need to read them as orders to the effect that Mr Nicoletti is liable, and they should not be read in that way.

Harvard did not advance ground 1(b) as originally framed

172    As the respondents submit, there is a further reason the Full Court's orders should not be read so as to uphold ground 1(b), which emerges from consideration of the submissions that Harvard made about that ground on appeal. It is necessary to set out Harvard's written submission to the Full Court about that ground in full (footnotes omitted):

Ground 1(b) - Causally Connected Loss From the 15 February Deeds Conduct

30.    Harvard next contends that the trial judge fell into error in concluding that it did not suffer loss or damage by reason of the non-disclosure of the 15 February Deeds.

31.    The fundamental question arising in this context is whether Harvard was in fact deprived of the opportunity to terminate the New Leases on the basis of a breach of a fundamental term or a repudiation constituted by the 15 February Deeds. Establishing that loss and damage requires overturning the trial judge's conclusion that the 15 February Deeds did not have that effect. That topic is addressed in submissions in relation to the second ground of appeal below.

32.    There is an additional aspect of the trial judge's reasoning, however, that it is submitted is affected by error. That is, the trial judge erroneously had regard to the fact that the respondents would likely have obtained an interlocutory injunction preventing Harvard from giving vacant possession to the Fowlers. But the fact that the question whether the 15 February Deeds amounted to a repudiation of the New Leases might have been regarded as sufficiently arguable such that, when taking into account the balance of convenience, the respondents would have been permitted to remain on the Farms is beside the point.

33.    It is submitted that the relevant counterfactual in such circumstances does not include the way in which the enforcement of legal rights would have played out in the legal system: rather, it looks only to the existence or non-existence of the rights asserted. In particular, it is not appropriate to test the existence of loss by reference to the conduct of the contravening party in seeking to avoid the imposition of a liability.

34.    It follows that the relevant loss was that flowing from the inability of Harvard validly to assert its right to vacant possession of the Farms as at 5 April 2019 onwards. The appropriate relief to redress that loss was, accordingly:

(a)    an order rescinding the New Leases; and

(b)    monetary compensation for the pecuniary loss flowing from the fact that Harvard did not have vacant possession of the Farms from 5 April 2019 onwards (including the lost profits to be made under the Fowler Lease).

173    As the respondents have said on remitter, their reply to this submission on appeal was that it departed from the terms of the ground, and they said no more about it. Harvard did not take the matter any further in its subsequent written submission, and Harvard has not contended that the subject came up in oral submissions at the hearing of the appeal.

174    As a result, by the time the matter came to be heard, the issue putatively based on ground 1(b) was not the issue raised in the notice of appeal under that ground. It appears that Harvard made no submission to the Full Court that the Non-Disclosure Conduct denied Harvard the opportunity to proceed with its rescission of the New Leases for actionable misrepresentation. Instead, Harvard had reframed the ground so that, expressly, it stood or fell with ground 2. It depended on whether the 15 February Deeds amounted to repudiation or fundamental breach of the New Leases. The Full Court determined, in effect, that this was a true alternative to what it appeared to treat as Harvard's primary case, based solely on the January Conduct. In the absence of any challenge to the conclusion that Mr Nicoletti was not involved in that conduct, and having found that there was no need to determine ground 2, which by that time included ground 1(b) as substantially reframed in Harvard's submission, there was no occasion for the Full Court to find that Mr Nicoletti was liable for damages for contravening conduct.

175    For that reason, and for the other reasons given above, I find that the Full Court made no such finding and is not to be taken to have set aside the dismissal of the damages claim against all four respondents on the basis that Mr Nicoletti is liable.

Issue estoppel and Anshun estoppel

176    There is no need to spend any time on Harvard's issue estoppel argument. As its counsel correctly recognised, it stands or falls with the main arguments I have already addressed. If, on a proper construction of the Appeal Judgment including the orders, the Full Court did not determine that Mr Nicoletti is liable for damages, then he is not estopped from maintaining that he is not liable.

177    As for Anshun estoppel, I have mentioned that Harvard relied on Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507. At [22], French CJ, Bell, Gageler and Keane JJ held that an estoppel of that kind (footnotes omitted):

operates to preclude the assertion of a claim, or the raising of an issue of fact or law [in a subsequent proceeding], if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.

178    Their Honours spoke in terms of two separate sets of proceedings, and expressed each of the estoppels they mentioned (cause of action estoppel, issue estoppel and Anshun estoppel) as 'having the potential to result from the rendering of a final judgment in an adversarial proceeding'. So it is not clear whether Anshun estoppel can apply in the same proceeding, or where a final judgment disposing of all matters in issue has not been given (or has been set aside). On the face of things, it cannot apply, since it would then have the logically nonsensical consequence that a party would be precluded from raising a matter in an ongoing proceeding because the matter is so closely connected with that proceeding that it was unreasonable for the party not to have raised it in that proceeding. However on the view I have taken of the matter, it is not necessary to resolve the issue. I will proceed on the assumption that the Full Court proceedings are to be treated as the first proceeding for the purposes of the application of Anshun estoppel in this case, and that the present remitter is to be treated as the second proceeding.

179    I have described Harvard's submission about Anshun estoppel above at [136]-[137]. In essence it seems to involve the following propositions:

(a)    On remitter, the respondents submit that the Full Court did not disturb the conclusions below that Mr Nicoletti was not liable to pay damages.

(b)    The Full Court did, however, make an order setting aside the order in the Primary Judgment that dismissed the claim for damages against each respondent.

(c)    If Mr Nicoletti wanted to submit that he was not liable for damages, despite the Full Court's order, he should have made that submission to the Full Court.

(d)    It was unreasonable for him not to do so. Hence he is estopped from making that submission now.

180    Harvard's counsel did not put this argument in the same terms as the extract from Tomlinson quoted above. Once that is done, fundamental conceptual flaws in the argument are exposed. Adapted to the terms in Tomlinson, it would go something like this: Mr Nicoletti is precluded from asserting that there is an issue about his personal liability on remitter because that issue was so connected to the subject matter of the appeal as to make it unreasonable, in the context of the appeal, for the issue not to have been raised in the appeal.

181    Once the point is put in that way, the flaw in it becomes plain. Of course the issue of Mr Nicoletti's liability was closely connected with the subject matter of the appeal. It was most closely connected because the issue was raised. It was raised by the party with the obvious interest in raising it, namely Harvard, whose claim against Mr Nicoletti had been dismissed in the Primary Judgment. Harvard raised it in ground 1(b) and in ground 2. Understood in that light, no serious question about the reasonableness of Mr Nicoletti's conduct of the appeal arises. If the Full Court did not deal with the issue as raised, and if Harvard wished to complain about that, its recourse in our system of law was to seek variation of the orders under r 39.05(e) of the Federal Court Rules 2011 (Cth), which applies where a judgment 'does not reflect the intention of the Court', or to seek special leave to appeal to the High Court. Mr Nicoletti was under no obligation to raise the matter.

182    The argument gets no better if one focusses on what Mr Nicoletti could or should have done, not at the hearing of the appeal, but at the point at which the Full Court's orders were made. While the respondents, too, could have applied for correction of the orders at that point, the question that would have posed, as to whether the Full Court found that Mr Nicoletti was liable, is the very question that has arisen on remitter. The proposition that any uncertainty about that means it was unreasonable for Mr Nicoletti not to seek clarification from the Full Court depends on the premise that the meaning and effect of the Appeal Judgment is not a matter that can be determined by this Court. Harvard's counsel put that very proposition in oral submissions. As my discussion of the approach to be taken on remitter at [40]-[51] above shows, that premise is incorrect; this Court can, and in the end must, construe the Appeal Judgment and determine its effect. It is a necessary step in performing the duty of giving effect to the Appeal Judgment on remitter.

183    Once that is understood, Harvard's Anshun argument falls away. Either the effect of the Appeal Judgment, including the Full Court's orders, is that Mr Nicoletti is liable for damages, or it is not. If it is to that effect, Harvard succeeds on this issue without the need to resort to Anshun estoppel. If it is not to that effect, Harvard fails, and no Anshun estoppel argument can avail it. The idea that it could depends on accepting that, due to lack of jurisdiction in this Court to quell the dispute about the meaning of the Appeal Judgment, that dispute must be left in a state of limbo that could only be dispelled by the Full Court, so it was unreasonable for Mr Nicoletti not to have raised it at that juncture. For the reasons I have given, that cannot be accepted.

The administration of justice

184    It remains to consider what Harvard's counsel described as a fundamental question about the administration of justice. The submission, as I have described it above at [138], is that it would be unfair if Mr Nicoletti escaped liability given the findings in the Primary Judgment made about his engagement in the Non-Disclosure Conduct, including as perpetrated by the misleading letter from Lawton Gillon of 5 April 2019. Harvard's counsel urged the Court to avoid that result by reconsidering the case as to causation of loss as a whole. He appeared to suggest that this was open, and appropriate, because the conclusions of the Full Court as to causation of loss warranted a reconsideration of every aspect of the link between the contravening conduct found to have occurred and loss and damage.

185    I do not accept these submissions. At trial, Mr Nicoletti was held not to be liable because it was held that his contravening conduct had not caused loss or damage in the way Harvard pleaded it did. If there was some other way that the conduct caused loss or damage, Harvard did not give the respondents proper notice of it. So on its face, the outcome is fair according to law.

186    Another important aspect of the administration of justice is finality, which requires that the parties be held to the cases they presented and closed at trial, unless it is in the interests of the administration of justice to permit them to reopen. While the setting aside of the Primary Judgment here might have permitted Harvard to apply to reopen its case to put the argument that was inherent in ground 1(b) before that ground was reframed in submissions, no such application was made. In the absence of a successful application to reopen, this Court may not reconsider the conclusions it reached the first time.

187    In any event, those conclusions were reached after analysis of Harvard's case based on the Non-Disclosure Conduct in order to determine the nature of the loss it was claiming: see PJ [575]-[581]. If that analysis was wrong, or if the Court erred in concluding that no loss or damage of that nature was suffered, then the avenue for correcting those errors was to appeal. There was an appeal, but it did not lead the Full Court to disturb the description given in the Primary Judgment of Harvard's claim as based on the Non-Disclosure Conduct, or the conclusion in the Primary Judgment that the loss so claimed had not been suffered. The findings that were overturned concerned loss that was caused in a different way by the different contravening conduct of different respondents. So there is no basis to revisit the findings about Mr Nicoletti's liability.

188    Counsel for Harvard went so far as to ask, rhetorically, 'how is it fair to either party, really, that the Full Court did not expressly engage with paragraph 1(b) of the appeal in the terms that would have given your Honour far greater guidance about how you need to dispose of the remitter': ts 155. I have already indicated what the reason for that lack of express engagement is, in my respectful view: by the time the appeal was heard, ground 1(b) had been subsumed into ground 2, which was a true alternative to ground 1(a), and so fell away.

189    To be clear, I have arrived at that answer in the course of an objective contextual analysis of the effect of the Appeal Judgment which was necessary for the purposes of this remitter. I have not arrived at it because I have made a determination as to whether or not the Appeal Judgment was correct, something it is not this Court’s place to do. This Court cannot proceed on the basis that the outcome in the Full Court was unfair.

Conclusion

190    There will be no award of damages against Mr Nicoletti.

Fourth issue - damages

191    The fourth issue between the parties on remitter is whether damages should be awarded to Harvard, and if so in what amounts. Given the above, any such damages will be payable by Mr Tiller and Dimension only.

192    Harvard's claim to damages was made under s 236 of the ACL. It is based on what Harvard says was the loss of the opportunity to lease the Farms to the Fowlers with effect from 1 May 2019. It relies in that regard on a lease for four years and 10 months from that date, which Harvard and entities controlled by the Fowlers executed on 17 April 2019, that is, the 2019 Fowler Lease: see PJ [306]. Because Dimension retained possession of the Farms for the first two years of the New Leases, the 2019 Fowler Lease never took effect. The Fowlers ended up leasing the Farms with effect from 1 March 2021 under a 10-year lease that Harvard and Fowler entities signed on 22 December 2020 (2020 Fowler Lease).

193    AJ [92] (reproduced at [36] above) is to the effect that Harvard is entitled to damages on this basis. The main reason advanced by the respondents as to why, nevertheless, damages should not be awarded has already fallen away, that is, the link between damages and statutory rescission. But the respondents had other bases for resisting an award of damages, and for submitting that various deductions from any award should be made.

The parties' positions

194    Harvard points to the conclusions of the Full Court about the damages claim at AJ [91]-[93] which are set out at [36] above. These, it says, were to the effect that Harvard had established a sufficient causal nexus between the contravening conduct of the respondents and its loss of the opportunity to lease the Farms to the Fowlers from April 2019. It appears to submit that what has been remitted to this Court is the quantification of that loss. Harvard effectively repeats the submission it had made to the Full Court as recorded in AJ [89]: 'once it is recognised that Harvard was entitled to have the New Leases rescinded with effect from 2 April 2019, the question is then: what position would Harvard have been in had that occurred?'.

195    Harvard then engages in a reasonably simple mathematical calculation in order to provide that quantification. The specific matter found to establish a causal relationship between the contravening conduct and the lost opportunity was the reliance of Mr Tiller and Dimension on the existence of the New Leases (which were caused by the contravening conduct) as a basis to resist Harvard's demand for vacant possession made in its letter of 2 April 2019. Harvard says that if the respondents had vacated at that time, it could have given vacant possession of the Farms to the Fowlers by 1 May 2019, and so have earned higher rent from that time.

196    Instead, the 2020 Fowler Lease in fact took effect from 1 March 2021, following Mr Tiller's and Dimension's yielding of vacant possession in January 2021. The rent that would have been paid under the 2019 Fowler Lease from 1 May 2019 to 28 February 2020 would have been $1,950,000 plus GST, and from 1 March 2020 to 28 February 2021 would have been $2,000,000 plus GST. That is compared to the rent actually paid by Dimension and Mr Tiller. This was $800,000 per annum plus GST, payable in equal biannual instalments on 1 March and 1 September of each year. The net difference over the two years, Harvard submits, is a loss of $2,350,000 (plus GST). This is reflected in a document entitled 'Applicant's Schedule of Calculation of Damages' which Harvard filed pursuant to directions of the Court after the remitter hearing (Applicant's Damages Schedule - the respondents filed their own schedule).

197    The respondents say that Harvard had no entitlement for the New Leases to be rescinded when it made its purported election to that effect in the letter of 2 April 2019. At most it had the ability to invoke the discretionary remedy to declare the New Leases void under s 237 and s 243 of the ACL. So, the respondents say, Harvard's right to damages said to flow from that entitlement is no right at all.

198    More substantively, the respondents rely, as I have described, on what they say is the Full Court's holding that the right to damages can only be a consequence of statutory rescission and so can only be awarded for any opportunity lost from the date at which that rescission takes effect which, they say, should be 10 January 2021. The respondents say further that there is no proper basis to make an order for statutory rescission effective from an earlier time in order to facilitate a claim for damages by Harvard. Since I have decided, independently of any impact on the damages claim, that the New Leases are to be declared void from 8 February 2019, these submissions of the respondents fall away.

199    The respondents accept that if, contrary to their primary submission, damages should be awarded in respect of the loss of the opportunity prior to 10 February 2021, the quantum of those damages should be ascertained essentially on the basis advanced by Harvard; that is, by reference to the additional amount that Harvard would have received as a result of leasing the Farms to the Fowlers, compared to the rent it in fact received from Dimension. They submit, however, that the damages awarded should not go beyond Harvard's particulars of loss and damage, which only refer to the loss of the opportunity of the first year of the 2019 Fowler Lease.

200    Senior counsel for the respondents spent some time at the remitter hearing cross-examining Andrew Fowler and John Caratti. Senior counsel appeared to wish to explore the possibility that the 2019 Fowler Lease was not genuinely entered into with the intention of the Fowlers paying rent according to its terms. But in closing submissions senior counsel properly accepted that the evidence did not justify a finding to that effect. Subject to the issue I am about to mention in the next paragraph, there is no need to comment on the evidence those witnesses gave about the Fowler leases or the blanket objection that Harvard made to the cross-examinations of Andrew Fowler and John Caratti on remitter.

201    The respondents did submit, however, that evidence that Mr Fowler gave in cross-examination about what occurred in January and February 2021 indicates that Dimension would in fact not have been able to give vacant possession by 1 May 2019 if Harvard's rescission of the New Leases on 2 April 2019 had been accepted. Senior counsel for the respondents accepted that, as a past hypothetical, this fell to be determined by reference to the principles concerning evaluation of a lost opportunity that were enunciated in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. He accepted, also, that this was the only basis on which any discount to the amount of damages could be awarded. He did not submit, for example, that the Fowlers might not have performed their obligations under the 2019 Fowler Lease, for example that they might not have been able to pay the rent.

202    But the respondents submit that a discounting exercise of that kind would be inappropriate in relation to the possibility that the Fowlers could not take vacant possession because the paucity of evidence, senior counsel said, made it too speculative. While Mr Fowler's evidence was that he would have been open to agreeing to different terms, there was no evidence from him as to what those terms might be, and John Caratti gave no evidence at all on the subject of negotiating different terms. Also, Mr Caratti was not asked what he would have done had it not been possible to give vacant possession by 1 May 2019 and the respondents submit that to say what would have happened in that event would be to speculate. So, the respondents say, no allowance should be made for any rent in the 2019 season. They accept as a matter of fact that the $2,000,000 payable under the 2019 Fowler Lease in respect of the second season (2020) would have been paid to Harvard.

203    In reply on that issue, Harvard submits that the question of a discount relates to a situation where loss has not yet crystallised. Here, the loss has crystallised and the Fowlers have in fact proceeded with their lease of the Farms so, Harvard says, no question of a discount arises.

204    The respondents also submit that two specific amounts need to be brought to account in reduction of any damages, namely:

(a)    a leasing agent's commission to which Stephen Vaughan, the agent who facilitated the 2019 Fowler Lease and the 2020 Fowler Lease, would have been entitled had the Fowlers taken possession under that lease; and

(b)    $100,000 which Harvard was obliged under the 2019 Fowler Lease to pay by way of landlord's improvements.

205    That is in addition to the refund of the $140,000 in alleged rental arrears and the $141,213.86 in outstanding council rates which have already been described above at [58]-[60]. The respondents submit that if repayment of those amounts is not made a condition of the statutory rescission, they should still be deducted from any award of damages, as benefits Harvard would not have received but for the contravening conduct.

Principles

206    The principles that apply when one is assessing the damages to be awarded in respect of a lost opportunity are encapsulated in the following passage from the judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Sellars at 355 (emphasis in original):

… we consider that acceptance of the principle enunciated in Malec [v J C Hutton Pty Ltd (1990) 169 CLR 638] requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s. 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. …

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence, the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. …

207    In Sellars at 368, Brennan J said (footnotes omitted):

Although the issue of a loss caused by the defendant's conduct must be established on the balance of probabilities, hypotheses and possibilities the fulfilment of which cannot be proved must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities: evaluation is a matter of informed estimation.

208    In Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440 at [39]-[40], French CJ, Kiefel and Keane JJ summarised the position as follows (footnotes removed):

It may be accepted that an opportunity which is lost may be compensable in tort. But that is because the opportunity is itself of some value. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided. It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded. The respondent has not established that there is a substantial prospect that the client would have chosen to undertake the inter vivos transactions. Therefore, the respondent has not proven that there was any loss of a valuable opportunity.

209    It may be that in some cases it is convenient to engage in mathematical calculations to derive the value of the lost opportunity. But that is not because the assessment of damages in such cases 'can be precise; rather the aim is to provide an analytical framework': La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4; (2011) 190 FCR 299 at [97] (Finkelstein J). The exercise remains an evaluative one as a matter of informed estimation: Sellars at 368 (Brennan J).

Consideration

210    I do not accept the respondents' submission that Harvard has no right to damages because it had no entitlement for the New Leases to be rescinded when it made an election to that effect in the letter of 2 April 2019. That is inconsistent with AJ [92], to which I have already referred. That paragraph of the Appeal Judgment adopted the finding at PJ [507], which is set out above. That finding did not depend on any entitlement to rescind. It was a finding that the fact of the existence of the New Leases prevented Harvard from recovering vacant possession. It is plain from AJ [92] that the Full Court considered that this was enough to entitle Harvard to damages.

211    The respondents' resistance to any award of damages therefore comes down to whether it is possible to value the lost opportunity of the 2019 Fowler Lease in respect of the 2019 season, and whether Harvard is not entitled to make a claim in respect of the 2020 season because that was not particularised in the statement of claim at trial. If the respondents fail on those questions, it will be necessary to consider the various deductions to the award of damages they submit should be made.

Valuing the lost opportunity of the 2019 Fowler Lease

212    The most consequential controversy between the parties about the assessment of damages is whether, and to what extent, the award should reflect what would have been the first year of the 2019 Fowler Lease. In view of the principles just summarised, that is to be determined on the basis that, first, Harvard must establish on the balance of probabilities that the contravening conduct caused it to lose a commercial opportunity of some value and then, if so, the value of that lost opportunity is to be assessed not on the balance of probabilities but as a matter of informed estimation. I do not accept Harvard's submission that these principles do not apply once a loss has crystallised; the salient point is that Harvard is claiming the lost benefit of an event that never occurred, namely the Fowlers taking possession under the 2019 Fowler Lease. The Court must assess the value of that benefit based on a hypothetical.

213    There is no doubt that Harvard has discharged its burden of proving, on the balance of probabilities, that this was a commercial opportunity of substantial value. The 2019 Fowler Lease was executed, there is no basis in the evidence to attribute any sham quality to it, and if it had come into effect, Harvard would have received substantially higher rent than Dimension and Mr Tiller were paying.

214    Valuing that opportunity requires an assessment of how things would have transpired had it been available, that is, it requires the court to posit a past hypothetical. It is a hypothetical where, as at 2 April 2019 when Harvard demanded vacant possession, the New Leases simply did not exist.

215    The Tiller Subleases play no part in that hypothetical. The Appeal Judgment proceeds on the basis that the previous existence of the Tiller Subleases is not to be taken into account in valuing the lost opportunity: see [36] above. The respondents did not submit on remitter that the Tiller Subleases meant that, in the absence of the misleading or deceptive conduct, there would have been no opportunity to lease to the Fowlers anyway. So the counterfactual the court must posit in order to value the lost opportunity cannot be one in which the Tiller Subleases stood in the way of Harvard obtaining vacant possession.

216    Rather, the court must now posit a counterfactual in which Dimension and Mr Tiller were simply unable to rely on the New Leases when Harvard demanded vacant possession on 2 April 2019. As such, I will assume that in this hypothetical situation, they would have indicated their intention to vacate with the same alacrity with which they indicated their refusal in the circumstances that did transpire, that is, by 5 April 2019.

217    As I have said, the respondents submit that on the state of the evidence, no assessment of the value of the opportunity that Harvard would have taken up in that hypothetical world can be made. The respondents rely on what in fact happened when Dimension gave up vacant possession in January and February of 2021. In an affidavit sworn on 17 February 2021, Andrew Fowler gave evidence of negotiations he and his brother Simon Fowler had with Mr Nicoletti in early January 2021, the upshot of which was that Mr Nicoletti agreed to give vacant possession before 1 March 2021, and to give the Fowlers access to spray for weeds before then, if the Fowlers paid him $100,000 for the cost of chemicals he had sprayed on the Farms in December 2020. This the Fowlers agreed to do. Mr Nicoletti gave them access from about 10 January 2021 and they sprayed for weeds between then and March 2021. Mr Nicoletti removed all his cattle on the Farms and grain that was stored in three sheds and several silos. Vacant possession in fact passed on about 15 February 2021.

218    I interpolate here that, as has been mentioned, the cross-examination of Mr Fowler (and John Caratti) was subject to a blanket objection from Harvard. The objection was to the effect that the cross-examination should not be permitted to go beyond the subject matter of the affidavits that were filed on the remitter, or events that took place after the original trial. The evidence was nevertheless heard on the basis that the objection would be resolved in these reasons. In relation to Mr Fowler's evidence, to the extent that the cross-examination went beyond his affidavit or events in 2020 to 2021, on the principles that I have outlined above at [51], the objection must be dealt with on the basis that the respondents applied to reopen to adduce that evidence. As has been said, principles concerning when appellate courts will receive fresh evidence provide useful guidance. But the respondents did not resist Harvard's objection with any evidence or submissions going to those principles. That was even though Harvard's counsel expressly relied on McCarthy v McIntyre, in which the principles to be applied in the circumstances appear. The respondents did not, for example, lead evidence or make submissions seeking to explain their omission at the original trial to adduce the evidence now objected to. So in my view, the objection must be upheld. I will not admit the evidence adduced in cross-examination of Mr Fowler that concerned events in 2019. To some extent this has resulted in the exclusion of evidence potentially helpful to Harvard.

219    Despite the exclusion of that evidence, and contrary to the respondents' submission, in my view the evidence that remains does permit an informed estimation of the value of the lost opportunity of the 2019 Fowler Lease. A plaintiff seeking damages for the loss of a chance is entitled to the assistance of the principle that difficulties of estimating the loss in money will not defeat an award of damages and this principle extends to a situation where the wrong has thrust the victim into a difficult task of proving a past hypothetical: Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [195] (Handley JA, Giles and Hodgson JJA agreeing), [246] (Giles JA). While that is a principle of the common law, the nature of the ACL as a remedial statute intended to promote fair and honest dealing in trade or commerce indicates that a similar principle should be applied: see Barnes v Forty Two International Pty Ltd [2014] FCAFC 152 at [189] (Beach J, Siopis and Flick JJ agreeing).

220    The evidence here permits the Court to make inferences about what would have happened in 2019 based on the evidence of what did happen in 2021. The period in early 2021 between the time at which Dimension agreed to relinquish possession and the time at which possession was given was approximately 36 days. This compares with the 26 days between 5 April 2019 and 1 May 2019 that would have been permitted in the hypothetical circumstances, on the assumptions I have described. But it must be appreciated that the 36 days elapsed well before commencement of the growing season, compared to the 26 days that would have elapsed on the counterfactual. Mr Fowler gave evidence that his intention in 2021 was to commence seeding in early April, after Easter. If possession had been yielded at or closer to the equivalent time in 2019, there would have been more urgency, and things could likely have been done in a shorter time.

221    In view of that, the evidence is sufficient to support a conclusion that it would have been feasible for the Fowlers to take possession and start seeding the crops from 1 May 2019. The spraying that in fact occurred in January and February of 2021 took around eight to 10 days. The time it was necessary to allocate after weed spraying and before seeding depended on the size of the weeds: it could be anything from a few hours to three weeks. But on the hypothetical counterfactual, Dimension and Mr Tiller were in possession of the Farms and, it can be inferred, preparing the ground in the usual way, until they received the letter of 2 April 2019. So it is likely that the weeds were under control at the time that, hypothetically, access was given to the Fowlers to perform any further spraying. It is also likely that with added urgency, the Fowlers could have completed spraying to their satisfaction during the window between, say, 5 April 2019 and 1 May 2019.

222    The evidence adduced on remitter of what did happen in early 2021, as well as the evidence adduced at trial about the entry into the 2019 Fowler Lease, indicates in my view that the Fowlers were keen to secure possession of the Farms at an annual rental of around $2 million, and that John Caratti was keen to give it to them on that basis. After all, in both 2019 and 2020, the Fowlers were quick to agree to the leases, where they must have known that Harvard's ability to give them vacant possession depended on the uncertain outcome of this litigation. They appear to have had no hesitation in agreeing to pay Mr Nicoletti $100,000, for spraying he said he had conducted, in order to remove any resistance to them taking vacant possession. That attitude, combined with the feasibility of commencing seeding on 1 May 2019 as just described and the urgency that would have come with the later time in the season, means that it is likely that the Fowlers would have taken possession by the date contemplated in the 2019 Fowler Lease.

223    It may be inferred that if the start date had been delayed past 1 May 2019, a reduction in the rent would have been negotiated. Although neither Mr Fowler nor Mr Caratti was asked what that reduction might have been, it is known from evidence at trial that when the commencement of the 2019 Fowler Lease was delayed from Mr Fowler's preferred date of 20 April to 1 May, a relatively modest reduction in the first year's rent from $2 million to $1.95 million was agreed. Perhaps there would have come a point where the delay was such as to make the Fowlers unwilling to take a lease in that year at all. However in my view, given the matters I have outlined above, the likelihood of the delay getting to that point was small.

224    In all these circumstances, I consider that while there was a real chance that the date for possession of 1 May 2019 would have slipped back a bit further, it is unlikely that it would have done so to the extent that the Fowlers would have refused to take possession in the 2019 season. The more likely outcome if there had been further slippage is that the rent for the first year would have been reduced a little more. I consider that as a matter of informed estimation the appropriate way to recognise the contingency that there would have been a further reduction in the rent for the first year, as well as the small likelihood that there would have been no rent for that year at all, is to apply a discount of 20% to the first year's rent only under the 2019 Fowler Lease. The respondents accept that on any view, the Fowlers would have taken possession for the 2020 season on the terms of the 2019 Fowler Lease; it was only the rent for the 2019 season they sought to exclude.