Australian Competition and Consumer Commission v Oceana Commercial Pty Ltd - [2003] FCA 1516

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Oceana Commercial Pty Ltd [2003] FCA 1516
SUMMARY
1.        In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the reasons for judgment delivered today. The summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this summary will be available on the Internet at These proceedings concern the sale of residential units at the Gold Coast in 1997 and 1998. The principal respondents involved in the marketing in question are Oceana Commercial Pty Ltd and Markfair Pty Ltd, which were then respectively called Coral Reef and Investlend. Coral Reef engaged a company called NAPC to market the properties and Investlend was used to provide financial advice to prospective purchasers. Mr Bilborough, the fifth respondent was associated with both companies and Mr Quinlivan, the sixth respondent, with Investlend. It has been found that these companies through Mr Bilborough and Mr Quinlivan acted in concert to carry out what has been called the ‘NAPC Scheme’. The steps the Commission alleged were involved in it appear at [17] of the reasons for judgment and the Court’s further comments on it and at [167]. The part the other respondents, apart from the bank, played in it is explained at [6].
3. The ACCC alleged that the conduct of the scheme as a whole was misleading and deceptive conduct within the meaning of s 52 of the Trade Practices Act 1974 (Cth). That aspect of the case has not been established as a matter of law (see [168] to [179]).
4.        It has been established that it was possible that purchasers may have been misled about two matters by the representatives of NAPC and Investlend. They were told that the purchase price was the unit’s market value and they were told that the unit would increase in value at the rate of 8 per cent per annum over the following ten years.
5.        To establish that the representation about market value was misleading or deceptive it was necessary for the ACCC to prove that the units were sold at a price substantially greater than their true value. The ACCC’s evidence did not establish that fact (see at [223] to [238]).
6.        The representation about the rate of capital growth which was made by the Investlend representative in the process of undertaking what was called a ‘property investment analysis’ for purchasers was found to be misleading. (See at [239] to [248]). That was because it was not shown that the companies in question and Mr Bilborough and Mr Quinlivan had any reasonable basis for a belief that the rates were a reliable guide to value.
7.        Another aspect of the case involves particular purchasers, Mr and Mrs Gleeson. In connexion with them it has been found that the companies misled them as to the rate of capital growth they could expect and also as to the true role of the Investlend advisor. They were told that that person was a ‘qualified financial advisor’, implying that they were quasi-professional people who were giving advice to the Gleesons which would be in their interests. The impression conveyed was that they were separate from the marketer NAPC. In fact they were engaged in the process of selling properties with NAPC. There is no suggestion that the advisors were qualified. They were simply trained to present their ‘analysis’ and apply pressure.
8.        Coral Reef and Investlend have been found liable for breach of s 52. Some but not all of the other respondents have been found liable as accessories to the contravention of s 52. They are the fifth and sixth respondents and the seventh and eighth respondents. There are separate findings made with respect to each of the respondents. The developer and the directors, the third, eleventh and twelfth respondents have not been found liable.
9.        The two solicitors (the tenth and thirteenth respondents) were joined to the proceedings because they were on a ‘panel’ of solicitors to whom Investlend referred prospective purchasers at a point when the contract was to be signed. It was alleged that they were guilty of misleading conduct because they did not alert their clients to a number of matters, including the relationship between NAPC and Investlend. It was also alleged that they knew most of the details of the NAPC scheme. This has not been established. With respect to Mr Pointon it was found however that he knew sufficient to have required him to make disclosures to his clients. No orders could however be made because the ACCC is not able to seek orders against him under the Fair Trading Act 1989 (Qld)as it sought to do. It was not shown that he was an accessory to the company’s conduct as alleged by the Commission (see [286] to [304]). The case against Mr Johanson was not established.
10.      It was not alleged that the bank knew of or participated in the scheme of marketing. Mr and Mrs Gleeson sought a loan from it to enable them to conclude the purchase. The bank’s valuer had advised the bank that they may have paid too much for the property and that they may not have understood local market conditions. The ACCC alleged, on various bases, that the bank was obliged to provide them with the content of the valuation or alert them in some way so that they might seek their own advice. To succeed the ACCC needed to establish that the Gleesons were in a position such that their ability to make a judgment as to their best interests was seriously affected, or that the bank behaved unconscionably. This requires a consideration of all the circumstances pertaining to the Gleesons and the bank. They did not establish either proposition (see at [322] to [341]).
11.      It is necessary to add that in the publicity attending the proceedings reference was made to ‘two tier marketing’. It was said that this involved the sale of units at one price to people who were familiar with the Gold Coast property market and at a much higher figure to people drawn from places distant. There was no evidence tendered at the hearing of such a market (see at [235]).
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v OCEANA COMMERCIAL PTY LTD, MARKFAIR PTY LTD, ADVANCED COMMERCIAL DEVELOPMENTS PTY LTD, COMMONWEALTH BANK OF AUSTRALIA, CHRISTOPHER RUSSELL BILBOROUGH, DUDLEY JAMES QUINLIVAN, SHANE ANDREWS, MICHAEL BYROM, PETER EGGENHUIZEN, GREGORY POINTON, DEAN CORNISH, JOHN GROUNDS, RODNEY JOHANSON
Q232 of 2001
KIEFEL J
BRISBANE
18 DECEMBER 2003

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Oceana Commercial Pty Ltd [2003] FCA 1516
TRADE PRACTICES – misleading and deceptive conduct – whether whole course of conduct constitutes misleading and deceptive conduct – scope of s 52 – whether specific representations by companies and their employees constitutes misleading and deceptive conduct – whether solicitors engaged in misleading and deceptive conduct by failing to disclose information to their clients – non-disclosure – silence – whether a reasonable expectation of disclosure – effect of exclusion clauses – accessorial liability – whether knowingly concerned
TRADE PRACTICES – Unconscionable conduct – whether the purchasers were at a special disadvantage – whether the bank acted unconscionably
REMEDIES – injunctions – declarations – scope of relief
Statutes
Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB, 12CC, 12DA, 12DG
Trade Practices Act 1974 (Cth) ss 52, 51A, 51AA, 51AC, 80, 75B, 51AAB
Fair Trading Act 1989 (Qld) ss38, 98
Property Agents and Motor Dealers Act 2000 (Qld) ss 364, 366
Cases
Ahern v The Queen (1988) 165 CLR 87 (Applied)
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (Discussed)
Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 197 ALR 153 (Discussed)
Australian Competition & Consumer Commission v Berbatis Holdings Pty Ltd (2000) 169 ALR 324 (Discussed)
Australian Competition & Consumer Commission v Commonwealth Bank of Australia [2003] FCA 1397 (Discussed)
Australian Competition & Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881 (Discussed)
Australian Competition & Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276 (Discussed)
Australian Competition & Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 (Discussed)
Blomley v Ryan (1956) 99 CLR 362 (Referred to)
Bridgewater v Leahy (1998) 194 CLR 457 (Approved)
Burg Design Pty Limited v Wolki (1999) 162 ALR 639 (Approved)
Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 (Discussed)
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 (Approved)
Commonwealth Bank of Australia v Finding (2001) 1 Qd R 168 (Approved)
Commonwealth Bank of Australia v Smith (1991) 102 ALR 453 (Distinguished)
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 (Approved)
Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 (Discussed)
Golby v Commonwealth Bank of Australia (1996) 72 FCR 134 (Approved)
Henjo Investments Pty Limited v Collins Marrickville Pty Limited (1988) 39 FCR 546 (Approved)
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 (Discussed)
Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741 (Discussed)
ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 (Approved)
Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 53,193 (Approved)
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 (Discussed)
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 ((Approved)
Melway Publishing Pty Limited v Robert HicksPty Limited (2001) 205 CLR 1 (Approved)
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 (Approved)
Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 (Approved)
Rhone-Poulenc Agrochemie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 (Discussed)
Spencer v The Commonwealth (1907) 5 CLR 418 (Discussed)
State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511 (Approved)
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 (Approved)
Ting v Blanche (1983) 118 ALR 543 (Discussed)
Yorke v Lucas (1984) 158 CLR 661 (Approved)
Other Authorities
Miller’s Annotated Trade Practices Act 1974 (24^th ed)
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v OCEANA COMMERCIAL PTY LTD, MARKFAIR PTY LTD, ADVANCED COMMERCIAL DEVELOPMENTS PTY LTD, COMMONWEALTH BANK OF AUSTRALIA, CHRISTOPHER RUSSELL BILBOROUGH, DUDLEY JAMES QUINLIVAN, SHANE ANDREWS, MICHAEL BYROM, PETER EGGENHUIZEN, GREGORY POINTON, DEAN CORNISH, JOHN GROUNDS, RODNEY JOHANSON
Q232 of 2001
KIEFEL J
BRISBANE
18 DECEMBER 2003

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Oceana Commercial Pty Ltd [2003] FCA 1516
Index
BACKGROUND
THE STATUTORY PROVISIONS
THE ALLEGATIONS
against Coral Reef, Napc and Investlend
The NAPC Scheme Generally
The NAPC Scheme and the Gleesons
Against Mr Bilborough
Against Mr Quinlivan
Against the NAPC and Investlend Representatives
Against Redwind and its Directors
Against Mr Pointon
Against Mr Johanson
Against The Bank

the evidence
the marketing and sale of units by napc & Investlend
Redwind’s agreement with napc
the marketing and sale of unit 29 to the Gleesons
the solicitors
the period to settlement - the bank
WHETHER CONTRAVENTIONS
The napc scheme and seciton 52 trade practices act 1974 (Cth)
particular representaitons in the course of the napc scheme
Non-disclosures and the scheme
non-disclosures and the Gleesons
Representations made to the Gleesons
whether market value representation misleading
whether representation of average annual capital growth rate misleading
the liability of coral reef and investlend
the LIABILITY OF Mr Bilborough
the liability of Mr Quinlivan
the liability of Mr Eggenhuizen
the liability of Mr byrom
the liability of Mr Andrews
THE KNOWLEDGE AND COMPLICITY OF Redwind AND ITS DIRECTORS
THE LIABILITY OF Mr Pointon
THE LIABILITY OF Mr Johanson
THE CASE AGAINST THE BANK
ORDERS
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v OCEANA COMMERCIAL PTY LTD, MARKFAIR PTY LTD, ADVANCED COMMERCIAL DEVELOPMENTS PTY LTD, COMMONWEALTH BANK OF AUSTRALIA, CHRISTOPHER RUSSELL BILBOROUGH, DUDLEY JAMES QUINLIVAN, SHANE ANDREWS, MICHAEL BYROM, PETER EGGENHUIZEN, GREGORY POINTON, DEAN CORNISH, JOHN GROUNDS, RODNEY JOHANSON
Q232 of 2001
KIEFEL J
BRISBANE
18 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 232 OF 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

OCEANA COMMERCIAL PTY LTD (ACN 070 287 991)
FIRST RESPONDENT

MARKFAIR PTY LTD (ACN 065 542 761)
SECOND RESPONDENT

ADVANCED COMMERCIAL DEVELOPMENTS PTY LTD
(ACN 076 810 672)
THIRD RESPONDENT

COMMONWEALTH BANK OF AUSTRALIA
(ACN 123 123 124)
FOURTH RESPONDENT

CHRISTOPHER RUSSELL BILBOROUGH
FIFTH RESPONDENT

DUDLEY JAMES QUINLIVAN
SIXTH RESPONDENT

SHANE ANDREWS
SEVENTH RESPONDENT

MICHAEL BYROM
EIGHTH RESPONDENT

PETER EGGENHUIZEN
NINTH RESPONDENT

GREGORY POINTON
TENTH RESPONDENT

DEAN CORNISH
ELEVENTH RESPONDENT

JOHN GROUNDS
TWELFTH RESPONDENT

RODNEY JOHANSON
THIRTEENTH RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

18 DECEMBER 2003

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
1. That the first and second respondents, Oceana Commercial Pty Ltd, formerly known as Coral Reef Group Pty Limited, and Markfair Pty Ltd, formerly known as Investlend Pty Ltd, did between November 1997 and November 1998 contravene s 52 of the Trade Practices Act 1974 (Cth) by misleading purchasers as to the rate by which residential units at the Gold Coast would increase in value over the following ten years by applying a rate of annual growth of 8 per cent when they had no reasonable basis for so representing.
2.        That each of the fifth, seventh and eighth respondents were knowingly concerned in such contraventions and that the fifth respondent conspired with the first, second and sixth respondents and National Asset Planning Corporation Pty Ltd to effect the contraventions.
3.        That the sixth respondent was knowingly concerned in such contraventions and conspired with the first, second and fifth respondents and National Asset Planning Corporation Pty Ltd to effect the contraventions in the period from November 1997 to 9 September 1998.
4. That in or about September 1998 the first and second respondents contravened s 52 of the Trade Practices Act 1974 (Cth) by misleading purchasers namely Mr and Mrs Gleeson about the rate by which the unit they were to purchase would increase over the following years by applying an annual rate of 8 per cent per annum, when they had no reasonable basis for so representing and by representing Investlend Pty Ltd as a qualified financial advisor who would act in their interests.
5.        That each of the fifth, seventh and eighth respondents were knowingly concerned in those contraventions and in the case of the fifth respondent, conspired with the first and second respondents and National Asset Planning Corporation Pty Ltd, to effect those contraventions.
6.        Adjourn for further hearing the question of costs.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 232 of 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

OCEANA COMMERCIAL PTY LTD (ACN 070 287 991)
FIRST RESPONDENT

MARKFAIR PTY LTD (ACN 065 542 761)
SECOND RESPONDENT

ADVANCED COMMERCIAL DEVELOPMENTS PTY LTD
(ACN 076 810 672)
THIRD RESPONDENT

COMMONWEALTH BANK OF AUSTRALIA
(ACN 123 123 124)
FOURTH RESPONDENT

CHRISTOPHER RUSSELL BILBOROUGH
FIFTH RESPONDENT

DUDLEY JAMES QUINLIVAN
SIXTH RESPONDENT

SHANE ANDREWS
SEVENTH RESPONDENT

MICHAEL BYROM
EIGHTH RESPONDENT

PETER EGGENHUIZEN
NINTH RESPONDENT

GREGORY POINTON
TENTH RESPONDENT

DEAN CORNISH
ELEVENTH RESPONDENT

JOHN GROUNDS
TWELFTH RESPONDENT

RODNEY JOHANSON
THIRTEENTH RESPONDENT

JUDGE:

KIEFEL J

DATE:

18 DECEMBER 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT
BACKGROUND

These proceedings involve the marketing and sale of residential units at the Gold Coast in the years 1997 and 1998. At issue is the means by which they were sold. The Australian Competition & Consumer Commission (‘the Commission’) alleges that sales were effected using a system of marketing which contravened the Trade Practices Act 1974 (Cth) (‘the Act’). The fifth and sixth respondents, Mr Bilborough and Mr Quinlivan, and companies with which they were associated, Coral Reef Group Pty Limited (‘Coral Reef’), National Asset Planning Corporation Pty Ltd (‘NAPC’) and Investlend Pty Ltd (‘Investlend’), are alleged to have implemented a system of marketing referred to in the amended statement of claim as the ‘NAPC Scheme’. An allegation that they were responsible for having devised the scheme was not pursued.
The NAPC scheme involved a number of steps commencing with telemarketing. This was followed by a seminar at which the benefits of investing in property at the Gold Coast using negative gearing principles and, for those who qualified, an in-home ‘consultation’. At this point prospective purchasers were encouraged to attend at the Gold Coast. Those who accepted were allocated a ‘runner’ whose task was to show them selected properties and introduce them to the ‘financial advisor’. The properties were chosen from a number where Coral Reef had an agreement for marketing. Up to this point the steps were undertaken by representatives of NAPC. The financial advisor was a representative of Investlend. The financial advice consisted primarily of a computer analysis which provided them with projections of income and of the value of the unit at certain points in the future amongst other things. A purchaser was then taken to a solicitor to whom NAPC and Investlend usually referred purchasers.
The Commission seeks declarations or injunctions, but not pecuniary penalties, based upon the knowledge or participation of the respondents in the NAPC scheme as a whole. The Commission accepts that not all of the steps in the scheme would constitute a contravention of s 52 of the Act. It nevertheless contends that the conduct of the scheme can be characterised as conduct that is misleading and deceptive or conduct which is likely to mislead or deceive.
The Commission’s case also relies upon the use of specific misrepresentations in the carrying out of the scheme in the relevant period. Principal amongst them are statements as to the present and future values of the units being sold, the latter involving the rate at which the unit was said to increase in value. Non-disclosures of aspects of the scheme, such as the existence of a marketing arrangement and a substantial fee to be paid by a developer pursuant to it, are also relied upon.
The NAPC scheme is alleged to have been applied to particular purchasers, Mr and Mrs Gleeson. No relief is sought on their behalf. They were purchasers of a unit in a development called the Chevron Palms Units at Chevron Island, Surfers Paradise, in September 1998. Specific misrepresentations are alleged to have been made to them. The Commission also relies upon non-disclosures as misleading and deceptive conduct.
In addition to the respondents referred to above, a number of others are said to have been involved in the NAPC scheme. Redwind Pty Ltd, as the third respondent was then named, was a developer who entered into an agreement with Coral Reef for the marketing of its Chevron Palm units. It is also sought to make liable its directors, Mr Cornish and Mr Grounds (the eleventh and twelfth respondents). The eighth and ninth respondents, Messrs Byrom and Eggenhuizen, were NAPC representatives and, respectively, a runner and an in-home consultant. Mr Andrews, the seventh respondent, acted for Investlend as an advisor. Each of them dealt with Mr and Mrs Gleeson. The tenth and thirteenth respondents, Messrs Pointon and Johanson, are solicitors whose firms were on a ‘panel’ maintained by NAPC and Investlend. They dealt with purchasers of marketed properties. Mr Pointon acted for Mr and Mrs Gleeson in the purchase of their unit and Mr Johanson acted for Redwind in the same conveyance.

The fourth respondent (‘the bank’) stands in a somewhat different position from the other respondents. A reference to ‘the respondents’ in these reasons does not include a reference to the bank. It was the Gleesons’ bank with respect to the purchase of the unit and held a valuation of the property. It is not alleged that it took part in, or knew of, the NAPC Scheme. It is alleged that, by reason of a valuation it had obtained, it knew of the use of such a marketing scheme in the sale to the Gleesons and that the purchase price was well above the unit’s market value. Its liability is said to depend upon its failure to alert the Gleesons to these matters.
THE STATUTORY PROVISIONS
Section 52(1) in Part V of the Act provides that:
‘A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.
Conduct within the meaning of s 52 includes refusing to do an act: s 4(2).
Section 51A is relied upon by the Commission in connexion with representations alleged to have been made as to the future value of properties sold. It provides:
‘Interpretation
(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
(3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.’
Section 75B(1) (‘accessorial liability’) relevantly provides that a reference in this Part to a person involved in a contravention of a provision of Part V shall be read as a reference to a person who:
‘(c)has been in any way directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention’.
Allegations of a conspiracy are now restricted to the first and second respondents and the fifth and sixth respondents.
Section 80(1) of the Act relevantly provides that the Court may grant injunctions, on the application of the Commission, in such terms as are deemed appropriate where it is satisfied that a person has engaged in conduct that contravenes Part IVA or Part V or where they have been knowingly concerned in the contravention.
Sections 51AA(1) and s 51AC, in Part IVA of the Act, are relevant to the case brought against the bank:
‘51AA Unconscionable conduct within the meaning of the unwritten law of the States and Territories
(1) A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.’
‘51AC Unconscionable conduct in business transactions
(1) A corporation must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person (other than a listed public company); or
(b)the acquisition or possible acquisition of goods or services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a corporation (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from a corporation (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(3) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a corporation or a person (the supplier) has contravened subsection (1) or (2) in connection with the supply or possible supply of goods or services to a person or a corporation (the business consumer), the Court may have regard to:
(a)the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b)whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c)whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e)the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f)the extent to which the supplier's conduct towards the business consumer was consistent with the supplier's conduct in similar transactions between the supplier and other like business consumers; and
(g)the requirements of any applicable industry code; and
(h)the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and
(i)the extent to which the supplier unreasonably failed to disclose to the business consumer:
(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii)any risks to the business consumer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j)the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and
(k)the extent to which the supplier and the business consumer acted in good faith.’
Section 51AA(2) provides that s 51AA does not apply to conduct that is prohibited by s 51AC.
There have been changes effected with respect to conduct in connexion with ‘financial services’. Section 51AAB(1) of the Trade Practices Act provides that s 51AA does not apply to conduct engaged in relation to financial services. Section 51AF(2) likewise provides that s 52 does not apply to such services. By s 4 of the Act ‘financial services’ has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 (Cth). It is there defined in such a way as would include the provision of a loan facility. From 11 March 2002 that Act dealt with unconscionable conduct in relation to the provision of financial services (ss 12CA - 12CC) of Division 2 and with misleading and deceptive conduct in connexion with those services (s 12DA). The latter is in the same terms as s 52 of the Trade Practices Act. Section 12CA mirrors s 51AA of the Trade Practices Act and s 12CB contains similar proscriptions to s 51AC but the list of matters which the Court may have regard to are fewer than in s 51AC(3). Section 12GD provides the Court with power to grant injunctions ‘on the application of the Minister, the Commission or any other person’ where conduct is engaged in which constitutes a contravention of Division 2. The ‘Commission’ is the Australian Securities and Investments Commission.
Section 38(1) of the Fair Trading Act 1989 (Qld) is in the same terms as s 52 of the Trade Practices Act 1974 (Cth) save that the prohibition extends to the conduct of a natural person. Section 98(1) and (2) of that Act provides that an injunction may be granted against a person if they have engaged in such conduct. Section 98(3) however provides that the power of the Court to grant an injunction restraining a person from engaging in such conduct:
‘(b)does not include the power to grant an injunction restraining a person from engaging in conduct that constitutes or would constitute a contravention solely of section 38 … unless -
(i)the application is made by the Minister or the commissioner on the grounds that a consumer is, or consumers generally are or would be, adversely affected by the conduct; or
(ii)the application is made by a person who is, or would be, adversely affected by the conduct as a consumer’.
The ‘commissioner’ is the Commissioner for Fair Trading. A question may arise as to the Commission’s reliance upon the Fair Trading Act provisions.
THE ALLEGATIONS
against coral reef, NAPC and Investlend
The NAPC Scheme Generally
The first respondent, Oceana Commercial Pty Ltd was, until 22 December 1999, Coral Reef Group Pty Limited and I shall refer to it as ‘Coral Reef’ in these reasons. Mr Bilborough was its sole director and shareholder. Coral Reef obtained units from developers on the Gold Coast for the purpose of their marketing and sale. It was the signatory to an agreement with Redwind for the marketing of what are described in the pleadings as the Chevron Units. They have, however, been called the ‘Chevron Palm Units’ elsewhere and by the witnesses in the proceedings and I will also refer to them by that description. NAPC was previously called Coastal Reef Pty Ltd. I shall continue to refer to it as NAPC. It was in voluntary liquidation at the commencement of the action and is not a party to it. Mr Bilborough was its sole director and shareholder. It was involved in marketing the properties and obtaining potential purchasers.
The second respondent traded as ‘Investlend (Australia)’. Up until 9 September 1998 its shares were held equally as between Mr Quinlivan’s wife and Mr Bilborough. Mr Quinlivan managed it. Its function was to provide financial advice to prospective purchasers brought to it by the NAPC representatives and to obtain finance for the purchase. After 9 September 1998 Mr Bilborough alone is alleged to have owned and controlled it. It is not suggested that Mr Quinlivan had a role in Investlend after this time. The NAPC scheme is alleged to have been utilised by Coral Reef, NAPC and Investlend to effect sales of some 900 to 1000 properties in the period in question. Many of the steps involved in the scheme are not in dispute. It is however necessary to set out the whole of the allegation concerning its operation.
‘17. The NAPC Scheme operated in the following manner:
(a)Coral Reef would enter into a marketing arrangement with a developer for a particular development of residential units in the City of the Gold Coast;
(b)pursuant to the marketing arrangement, Coral Reef would be paid a marketing fee per unit for negotiating the sale of units in the development at the marketed price;
(c)the marketing fee:
(i)was substantially in excess of the maximum commission payable to a licensed real estate agent regulated under the Auctioneers and Agents Act 1971 (Qld) who negotiated a sale for the same purchase price as the marketed price;
(ii)was, on average, approximately $30,000 per unit, and on occasions as high as $35,000 per unit;
(d)Coral Reef and the developer would agree the marketed price at which the residential units were to be sold;
(e) the marketed price of each unit was substantially in excess of:
(i)the price at which a developer could reasonably expect to sell the unit without engaging a marketer;
(ii)the fair market value of that unit;
(f) Coral Reef would in turn engage NAPC to undertake the marketing;
(g)NAPC would compile and maintain a stock-list of residential units available for sale from each developer at their respective marketed prices;
(h)NAPC would engage telemarketers to canvass members of the public at a location removed from the City of the Gold Coast (“the targeted location”) in order to:
(i)produce a sufficient group of persons to attend an investment seminar conducted by NAPC at the targeted location;
(ii)determine whether such persons were qualified to participate in the investment seminar, and to purchase a unit in a residential development marketed by Coral Reef and NAPC;
PARTICULARS
Pursuant to the NAPC Scheme members of the public were qualified by earning a minimum income of $30,000 to $40,000 per annum and having a minimum equity in a residential property (usually the family home) of at least $60,000.
(i)if a member of the public was qualified to attend the investment seminar and expressed interest in doing so NAPC would send them a written invitation;
(j)NAPC arranged to conduct an investment seminar at a venue at the targeted location;
(k)at the investment seminar NAPC represented to the members of the public who attended (the “prospects”) that:
(i)NAPC, the presenter, and the other in-house consultants were paid for or sponsored by a group of Gold Coast developers wishing to promote the Gold Coast;
(ii)if they bought an investment property and paid it off, they would have a valuable asset and rental income to support them in their retirement;
(iii)they could negatively gear their purchase against their present income and rental received from the investment and that investment properties on the Gold Coast accordingly cost relatively little to buy and were affordable even by people with modest means;
(iv)rich people exploit the same means to get wealthy, and reduce their income tax at the same time, and that the process was perfectly legal;
(v)investment opportunities on the Gold Coast offered unique benefits in terms of capital growth;
(vi)The Gold Coast averaged capital growth on property values in excess of 10% per annum;
(vii)they could arrange an in-home consultation where an in-home consultant would attend at their home to explain more fully property investment on the Gold Coast and negative gearing with regard to their particular circumstances;
(viii)if they were suitable persons to purchase an investment property on the Gold Coast, they would be offered free or subsidised travel to, and accommodation on, the Gold Coast to inspect investment properties;
(l)the investment seminar was conducted according to a script, a copy of which is available for inspection during business hours at the office of the applicant’s solicitors;
(m)NAPC engaged consultants to attend upon those prospects who requested an in-home consultation;
(n)at the in-home consultation, the consultant made representations to the prospects:
(i)in the terms pleaded in subparagraphs (k)(ii) to (vi) hereof;
(ii)that they were his or her clients and that NAPC and its staff acted in their interests;
(o)further, at the in-home consultation, the consultant engaged by NAPC:
(i) assessed and made a note of the personality type of the prospects, which was recorded on a proforma document to be sent to NAPC and Investlend, as pleaded in subparagraph (p) hereof, without the prospects’ knowledge;
(ii)made a list of the features of the investment proposal that most appealed to the prospects which was recorded on a proforma document to be sent to NAPC and Investlend, as pleaded in subparagraph (p) hereof, without the prospects’ knowledge;
(iii)obtained details of the financial position of the prospects which was also recorded on the proforma document to be sent to NAPC and Investlend, as pleaded in subparagraph (p) hereof;
(iv)determined whether the prospects met the minimum financial criteria, referred to in subparagraph (h)(ii) hereof;
(v)attempted to convince prospects who did meet the requisite criteria to travel to the Gold Coast to get free advice from a financial consultant and to inspect some properties they may care to purchase;
(vi)offered prospects free or subsidised travel to, and accommodation on, the Gold Coast to inspect prospective investment properties;
(p)in the case of each prospect who agreed to travel to the Gold Coast, the in-home consultant:
(i)completed a pro forma document devised by NAPC which recorded personal details of the prospect, together with the information pleaded in subparagraphs (o)(i), (ii) and (iii) hereof;
(ii)forwarded a copy of such document to NAPC and Investlend;
(q)upon such document and information being received:
(i)NAPC assigned a “runner” to the prospect to show the prospect investment properties when they travelled to the Gold Coast;
(ii)Investlend assigned a “financial adviser” to the prospect;
(r)each of the runner and the financial adviser were given a copy of the document referred to in subparagraph (p) hereof;
(s)upon arrival at the Gold Coast, prospects would be met by their assigned runner who would:
(i)introduce them to their assigned financial adviser at Investlend;
(ii)show them residential units only from the stocklists maintained by NAPC;
(iii)reiterate the benefits described in subparagraphs (k)(iii), (v) and (vi) of investing in residential units on the Gold Coast;
(iv)if prospects agreed to purchase a residential unit, introduce or take them to a solicitor, who would act for them on the conveyance of the unit;
(t)upon being introduced to the prospects by their assigned runner, the financial adviser at Investlend would:
(i)explain negative gearing and show prospects an analysis of properties they could consider purchasing;
(ii)review the prospects’ financial position to determine the amount which they would be able to borrow;
(iii)by computer assisted financial analysis, represent what were purported to be the financial benefits of the proposed investments;
(iv)use in such demonstration:
(A)the marketed price as the fair market value of the residential unit;
(B)a capital growth rate of 7% or 8%;
(v)represent that capital growth rates on the Gold Coast exceeded 10% per annum, and that it was accordingly reasonable and conservative to use a capital growth rate of 7% or 8% to assess the investment;
(u) if prospects agreed to purchase a residential unit, the financial adviser at Investlend would:
(i)prepare a finance application, to be submitted to a lender to enable the purchase to proceed, for which Investlend charged the prospects a fee;
(ii)prepare documentation necessary to arrange insurance for the residential unit;
(v)after the finance documentation was completed either the financial adviser or the runner would organise a solicitor to act for the prospects in the purchase of the residential unit, with such solicitor chosen from a panel of firms.
(w)Johanson and Pointon, and their respective firms Short Punch and Greatorix and Perrin Pointon, were on the said panel of firms.’
In relation to the NAPC scheme, it is alleged that each of Coral Reef, NAPC and Investlend ‘engaged in a course of conduct, namely the operation of the NAPC Scheme, including the operation of the scheme in its application to the Gleesons, that contravened s 52 of the Act …’.
In par 22(a) to (f) and (g) it is alleged that some elements of the scheme were or were likely to mislead or deceive. I have highlighted in par 17 set out above those statements which are dealt with in par 22 as contravening conduct. Paragraph 22 is in these terms:
‘22.The representations made to prospects as part of the NAPC Scheme were misleading or deceptive, or likely to mislead or deceive in that:
(a)NAPC, the seminar presenter and the in-house consultants were not paid for or sponsored by a group of Gold Coast developers wishing to promote the Gold Coast, but in fact were paid from marketing fees derived from the sale of marketed properties;
(b)NAPC and its representatives did not act in the interests of the prospects, but in fact acted in their own interest to derive a marketing fee which was not disclosed to the prospects;
(c)investment opportunities on the Gold Coast did not offer the prospects unique benefits in terms of capital growth;
(d)residential units on the Gold Coast did not enjoy capital growth in excess of 10% per annum;
(e)there was no reasonable likelihood that the marketed properties would return capital growth in the order of 7% or 8% per annum. Insofar as such a representation was as to a future matter, none of the participants in the NAPC Scheme had reasonable grounds for making the representation and the applicant relies on section 51A of the Act;
(f)the marketed price was not the fair market value of the marketed property;
(g)it was not reasonable and conservative to use the marketed price as the value of the residential unit to assess the benefits of the investment;
(h)it was not reasonable and conservative to use 7% or 8% per annum growth rates to assess the benefits of the investment.’

It is also alleged that, in order to induce the belief that NAPC and Investlend were separate businesses, they maintained separate offices.
Those representations pleaded in parts of par 17, and dealt with in par 22, are later alleged to amount to individual contraventions on the part of NAPC or Investlend. Whilst some respondents contended that the Commission’s case, in connexion with the NAPC scheme, was limited to its operation as a whole, these allegations are clearly alternative. Other respondents are said to be liable as accessories under s 75B(1). I shall deal with them separately in these reasons.
The third aspect of the Commission’s case, concerning the application of the scheme generally, is based upon non-disclosures to purchasers. At par 20 it is alleged:
‘20.Each of Coral Reef, NAPC, Investlend, Bilborough, Quinlivan, Andrews, Byrom, Eggenhuizen, Pointon and Johanson:
(a)knew of the NAPC Scheme, the part other respondents played in it, and agreed to participate in it;
(b)knew that the purpose of the NAPC Scheme was to identify prospects and induce them to purchase marketed properties at the marketed prices in the belief that those prices were fair market value;
(c)believed, and acted on the belief, that prospects would be unlikely to purchase marketed properties if they knew of:
(i)the existence of the marketing arrangement;
(ii)the nature, existence or magnitude of the marketing fee;
(iii)the fair market value of the marketed properties;
(iv)the fact that the marketer was not acting in their interests;
(v)the relationship between NAPC, Investlend, Coral Reef and the developer;
(vi)the fact that the income or remuneration of NAPC, Investlend, the telemarketers, the in-home consultants, the runners and the financial advisers depended on persuading prospects to buy marketed properties; and
(d)at no time disclosed any of the matters pleaded in subparagraph (c) hereof to prospects or purchasers of marketed properties;
(e)believed, and acted upon the belief that no other marketing participant would disclose any of the matters pleaded in subparagraph (c) hereof to prospects or purchasers.’
It is later alleged, in par 64, that the non-disclosures of the matters referred to in par 20(c) amount to a contravention of s 52 by Coral Reef, NAPC and Investlend, although there is some doubt as to whether these claims are pursued, as I later observe.
I will not set out each of the allegations of conspiracies affecting the first and second respondents. In summary, where it involves conduct of the other or of NAPC they are said to have been knowingly concerned in that conduct or to have conspired with the other parties to act unlawfully. These allegations extend to the operation of the NAPC scheme generally, its application to the Gleesons, and representations and non-disclosures in the course of it to purchasers generally.
The NAPC Scheme and the Gleesons
The pleading then turns to the sale, through the use of the NAPC Scheme, of Unit 29 in the Chevron Palms development to Mr and Mrs Gleeson on 24 September 1998, with the first contact occurring on 27 August 1998. It is alleged that the application of the scheme to the Gleesons involved conduct contravening s 52, principally because of misrepresentations. Not all respondents are said to be liable for each misrepresentation. Liability is also said to arise by reason of non-disclosures to the Gleesons.
It is alleged that on or about 31 January 1997 Coral Reef entered into a marketing agreement ‘the Chevron Marketing Agreement’ with Redwind. The eleventh and twelfth respondents, Messrs Cornish and Grounds, were directors of Redwind. Mr Johanson, the thirteenth respondent, was a member of the firm of solicitors, Short Punch & Greatorix, and acted for Redwind. It is alleged that the agreement was made pursuant to, and utilising, the NAPC Scheme and provided for a marketing fee in an amount by which the purchase price for each unit sold exceeded $130,000. It is alleged that Redwind agreed with Coral Reef that the units be sold at prices of between $159,900 and $164,900. Coral Reef is then said to have engaged NAPC to market the Chevron Units ‘using the NAPC scheme, at prices between $159,900 and $164,900’ and that these prices were substantially in excess of the fair market value of the units.
Mr and Mrs Gleeson resided in Cairns in northern Queensland. They were invited by a telemarketer to attend an investment seminar on 8 September 1998 and did so. At that seminar representatives of NAPC were alleged to have said to them (par 33(d)):
‘…
(i)that NAPC was sponsored by a group of developers to promote the Gold Coast;
(ii)that there were negative gearing benefits of purchasing investment properties on the Gold Coast;
(iii)that the capital growth stemmed from infrastructure spending in the region, that the infrastructure spending was continuing and that the rate of capital growth would continue;
(iv)that no other region of Australia offered a comparable growth rate to the Gold Coast;
(v)that no other form of investment yielded the same level and certainty of return as property investing on the Gold Coast;
(vi)by providing documents including newspaper clippings promoting Gold Coast investment, that there were sustained high property growth rates on the Gold Coast;
(vii)that investment in residential property on the Gold Coast would provide a secure and high rate of capital growth;’
The seminar was followed up with a personal consultation at the office of Mr Gleeson on 15 September 1998. Mr Eggenhuizen was NAPC’s representative on this occasion. He is alleged to have made representations to them (par 33 (f)):
‘(f)…
(i)that the Gleesons were his clients and clients of NAPC and that he and NAPC acted in the interests of its clients;
(ii)that by use of negative gearing principles known to him and NAPC, an investment property could be purchased for $165,000 and would have a net cost to the Gleesons of about $27 a week;
(iii)that capital growth rates on the Gold Coast were in the order of 11% per annum so that a $165,000 property could be conservatively expected to increase on average by 8% per annum, making it worth $390,000 in 10 years time;
(iv)that the Gleesons would need to buy several such properties over time to reach the $1 million in 17 years time that would be required for their retirement;
(v)that other forms of investment offered either insufficient returns or were too speculative to compare with the benefits of negative gearing of investment in Gold Coast real estate;
(vi)that a line of credit was the best way to finance the transaction;’
It is also alleged that he advised them about negative gearing and purchasing investment property on the Gold Coast and to have provided a booklet and newsletter published by NAPC:
‘(g) …
(i)advised the Gleesons about options for negative gearing and purchasing an investment property on the Gold Coast;
(ii)provided documents to the Gleesons about the benefits of negative gearing;
(iii)provided a newsletter from NAPC which included representations that:
(A)NAPC provided “a comprehensive service to [its] clients which extends from obtaining an investment property to its specific finance and insurance requirements, rental and maintenance, through a group of professional proactive companies affiliated with [NAPC]”;
(B)“Through our knowledge and research at NAPC and Investlend, we try and analyse what will be the best area and price range for our clients”;
(C)“Our aim is to reach out to the Australian community, and encourage individuals to seek and obtain a secure financial future that will allow them to enjoy a better quality of life”;’
…
(iv)provided an NAPC booklet which contained representations including:
(A)NAPC “is a group of entities who operate primarily as property marketers, offering a complete service to investors in residential and commercial real estate. This service includes assessing the requirements of individual investors, identifying the most appropriate properties for their specific negative gearing qualities and providing sound financial analysis to enable potential clients to make informed decisions”;
(B)“Investors are also protected by the use of independent solicitors, registered to operate in the state in which the asset is acquired. Solicitors are compelled to act in the best interest of their clients and face onerous consequences should they not adhere to the stringent requirements of their professional body”;
(C)NAPC “recommends the use of accredited Investment Financial Advisors who in turn arrange finance for the client’s investment only through major Banks and Financial Institutions which are backed by the Reserve Bank of Australia or Government regulated authorities”;
(D)NAPC “prides itself on doing the research for the client”;
(E)“Client’s protection and satisfaction is our objective”;’
He encouraged them to visit the Gold Coast and view properties and to that end offered them discounted airfares and accommodation. He subsequently provided details concerning the Gleesons to NAPC and Investlend on 16 September 1998.
On 24 September 1998 the Gleesons were shown Unit 29 in the Chevron Palms development by Mr Byrom who is alleged to have represented (par 33(o)):
‘(o)…
(i)the purchase price of $164,900 was fair market value for Unit 29;
(ii)units at the Chevron Units were rented out at $90-$100 per night;
(iii)there was no “low season” for holiday rentals on the Gold Coast, only “peak time” and “mid season”;
(iv)Unit 29 would be a profitable investment for them to purchase;
(v)NAPC was providing independent advice to the Gleesons and was acting in their interests;
(vi)Investlend was providing independent advice to the Gleesons and was acting in their interests;
(vii)Pointon would act as an independent legal adviser for the Gleesons in relation to their purchase of Unit 29;’
Mr Byrom then took the Gleesons to the offices of Investlend and introduced them to Mr Andrews. As Investlend’s representative he is said to have represented to them that (par 33(q)):
‘(q)…
(i)the purchase price of $164,900 was fair market value for Unit 29;
(ii)the purchase price of $164,900 was the appropriate price to use to analyse the benefits of buying Unit 29 as an investment;
(iii)Unit 29 would be a profitable investment for them to purchase;
(iv)it was reasonable to apply a capital growth rate of 8% per annum to the purchase price for Unit 29 in analysing the benefit of purchasing it as an investment;
(v)they would be able to sell Unit 29 for $242,292 after 5 years, with selling costs and capital gains tax of $15,404;
(vi)they would be able to sell Unit 29 for $356,007 after 10 years, with selling costs and capital gains tax of $53,697;
(vii)there would be no net outgoing to them in buying Unit 29, after negative gearing, even if rent and occupancy figures were less than those represented by Byrom;
(viii)Investlend was providing independent advice to them and was acting in their interests;’
I have highlighted those particulars which are relied upon by the Commission as founding the contravening conduct. Although no relief is sought on their behalf, it is alleged that Mr and Mrs Gleeson decided to purchase the unit ‘in reliance on the representations made to them by NAPC, Investlend, Eggenhuizen, Byrom and Andrews’.
The representations are alleged to have been misleading or deceptive, or likely to mislead or deceive, in that:
‘41 …
(a)NAPC, the seminar presenter and Eggenhuizen were not paid for or sponsored by a group of Gold Coast developers wishing to promote the Gold Coast, but in fact were paid from marketing fees derived from the sale of marketed property;
(b)NAPC and its representatives did not act in the interests of the Gleesons, but in fact acted in their own interest to derive a marketing fee which was not disclosed to the Gleesons;
(c)Investlend and its staff did not act in the interests of the Gleesons, but in fact acted in their own interest and in the interest of the other marketing participants;
(d)investment opportunities in marketed property on the Gold Coast did not offer the Gleesons unique benefits in terms of capital growth;
(e)residential units on the Gold Coast did not enjoy capital growth in excess of 10% or 11% per annum;
(f)there was no reasonable likelihood that the marketed properties would return capital growth in the order of 7% or 8% per annum. Insofar as such a representation was as to a future matter, none of the participants in the NAPC Scheme had reasonable grounds for making the representation and the applicant relies on section 51A of the Act;
(g)the marketed price of Unit 29 was not the fair market value of that property;
(h)it was not reasonable and conservative to use the marketed price of Unit 29 as the value of the unit to assess the benefits of the investment;
(i)it was not reasonable and conservative to use 7% or 8% per annum capital growth rates to assess the benefits of investing in Unit 29;
(j)there was no reasonable likelihood that the Gleesons will be able to sell Unit 29 for $242,292 in December, 2003. Insofar as such a representation was as to a future matter, none of the participants in the NAPC Scheme had reasonable grounds for making the representation and the applicant relies on section 51A of the Act;
(k)there was no reasonable likelihood that the Gleesons will be able to sell Unit 29 for $356,007 in December, 2008. Insofar as such a representation was as to a future matter, none of the participants in the NAPC Scheme had reasonable grounds for making the representation and the applicant relies on section 51A of the Act;
(l)Investlend was not an independent financial adviser to the Gleesons, but rather was a marketing participant;
(m)Unit 29 was not a profitable investment for the Gleesons to purchase;
(n)the rentals and occupancy rates advised were not achievable by Unit 29;
(o)Pointon did not provide independent legal advice to the Gleesons, but was a marketing participant.’
There are also allegations of non-disclosures to the Gleesons with respect to the matters referred to in par 20(c):
‘76.Each of Coral Reef, NAPC and Investlend, by failing to disclose to the Gleesons any of the matters pleaded in paragraphs 20(c)(i) - (iv), by reason of the matters pleaded in paragraphs 16 to 20 and 34 to 36 has contravened section 52 of the Act and section 38 of the Qld Act.’
The same observations made earlier concerning the conspiracy allegations and accessorial liability of Coral Reef and Investlend for the conduct of the other and for NAPC’s conduct apply here.
Against Mr Bilborough
Mr Bilborough is alleged to have been knowingly concerned in or a party to the operation of the NAPC scheme, its application to the Gleesons and in the making of each of the representations made in the course of the scheme. He is also alleged to have been knowingly concerned in or a party to the contraventions of s 52 of the Act constituted by the non-disclosures of Coral Reef, NAPC and Investlend (par 65). He is also alleged to have conspired ‘with others’, in the carrying out of the scheme, to contravene s 52. So far as concerns the non-disclosures and misrepresentations alleged to have been made in the course of the scheme generally, he is alleged to have conspired with either or all of Coral Reef, NAPC and Investlend.
The only allegation involving s 38 of the Queensland Act now relied upon by the Commission is contained in par 65. It involves a number of the personal respondents:
‘65.Each of Bilborough, Quinlivan, Andrews, Byrom, Eggenhuizen, Pointon and Johanson, by failing to disclose any of the matters pleaded in paragraph 20(c), by reason of the matters pleaded in paragraphs 16 to 20:
(a)has contravened section 38 of the Qld Act;
(b)was knowingly concerned in or party to the contravention by Coral Reef, NAPC and Investlend of the provisions alleged in the preceding paragraph; and
(c)further or alternatively conspired with Coral Reef, NAPC and/or Investlend to contravene those provisions.’
So far as concerns the case involving conduct in the nature of representations to the Gleesons, Mr Bilborough is said to be liable as an accessory for each of them, on the basis that he was knowingly concerned in them as contraventions. Allegations of conspiracy are also made in this context, and in par 77, which relates to the non-disclosures of the matters listed in par 20(c)(i)-(vi) to the Gleesons:
‘77.Each of Bilborough, Andrews, Eggenhuizen and Byrom, by failing to disclose to the Gleesons any of the matters pleaded in paragraph 20(c)(i)-(vi), by reason of the matters pleaded in paragraphs 16 to 20 and 34 to 36:
(a)has contravened section 38 of the Qld Act;
(b)was knowingly concerned or party to in the contravention by Coral Reef, NAPC and Investlend of the provisions alleged in the preceding paragraph; and
(c)further or alternatively conspired with Coral Reef, NAPC and/or Investlend to contravene those provisions’.
For the reasons earlier mentioned reliance is no longer placed upon s 38 of the Queensland Act here and the allegations of conspiracy would be limited to Mr Bilborough.
Against Mr Quinlivan
It is likewise sought to make Mr Quinlivan liable for the operation of the NAPC scheme generally, its application to the Gleesons, the making of representations in it and the non-disclosures to purchasers. With respect to each of these contraventions of s 52 he is alleged to be liable as an accessory, as being both knowingly concerned in the contravention or having conspired with others in it. It is also sought to make him liable under s 38 of the Queensland Act (par 65).
The case concerning the Gleesons brought against him is more limited, by reason of his non-involvement after 9 September 1998. It is sought only to make him liable as an accessory to the representation, made at the seminar, that NAPC was sponsored by a group of Gold Coast developers. It is not sought to make him liable for non-disclosures to Mr and Mrs Gleeson.
Against the NAPC and Investlend Representatives
It is sought to make each of Mr Eggenhuizen, Mr Byrom and Mr Andrews liable as accessories to the contravention of s 52 constituted by the conduct of the scheme as a whole, including its application to the Gleesons.
In relation to the specific representations within the scheme, Mr Eggenhuizen is said to have been knowingly concerned in those made at the seminar concerning sponsorship by the developers; that investment opportunities offered unique benefits in terms of capital growth; that the Gold Coast averaged capital growth in property values in excess of 10 per cent per annum; and for both the representation made at the seminar and in the in-home consultation that prospective purchasers were clients. He is not said to have been knowingly concerned in what was thereafter represented in the in-home consultation and following. In particular he is not alleged to be involved in the later representation about the use of 8 per cent per annum to assess capital growth, although it is alleged in par 20 that he knew of the scheme as a whole.
Mr Andrews is alleged to have been knowingly concerned in the representations that the sale price was a property’s market value and as to the reliability of capital growth rates at 7, 8 and 10 per cent. Liability on the part of Mr Byrom is not alleged to arise from his participation in any specific representations made in the course of the scheme.

Each of the three representatives are alleged to have contravened s 38 by the non-disclosure to purchasers of the matters listed in par 20(c) and to have been knowingly concerned in Coral Reef, NAPC or Investlend’s contravention constituted by similar non-disclosures.
So far as concerns the Gleesons Mr Eggenhuizen is sought to be made liable as an accessory for the representation at the seminar concerning sponsorship by developers; and for his statement that the Gleesons were his clients; for those contained in the NAPC newsletter and booklet concerning NAPC’s role and that NAPC and Investlend were providing independent advice; and for his statements about capital growth rates. He is also said to be accessorily liable for Mr Andrews’ statements to that effect but not the representation as to price and market value. It is sought to render him liable as an accessory to the s 52 contravention constituted by the companies’ non-disclosures and for his failure to disclose the matters referred to in par 20(c) to the Gleesons.
The case against Mr Andrews, as an accessory, concerning the representations to the Gleesons rests upon statements in NAPC’s material provided to them; upon his statements that NAPC and Investlend were providing independent advice and acting in their interests; and upon the statements as to market value and as to the application of capital growth rates.
So far as concerns Mr Byrom, and the case concerning the Gleesons, it is also sought to make him liable as an accessory to the statements made by Mr Eggenhuizen about their being clients of NAPC, for the statements about NAPC in the newsletter and booklet and for his and Mr Andrews’ statements about NAPC and Investlend providing independent advice. He is also said to have participated in the representation as to market value. Liability based upon the non-disclosures to the Gleesons of the matters in par 20(c) is alleged against him in the same terms as against Mr Eggenhuizen and Mr Andrews.
Against Redwind and its Directors
It is alleged that on 31 January 1997 Coral Reef entered into a marketing agreement with Redwind with respect to the Chevron Palm development. Redwind, through Mr Cornish and Mr Grounds, is alleged to have known that Coral Reef, through NAPC, would market the units using the NAPC scheme; of the extent of the marketing fee; that the marketed price of the units in the development was in excess of their fair market value; that Redwind itself would receive an amount for the units which was substantially in excess of their market value; and that prospective purchasers would not be informed of these matters (par 24). In view of its valuation evidence I do not understand the Commission to press the allegation concerning the amount Redwind received. Paragraph 25 alleges that the marketing agreement:
‘(a) was made pursuant to and utilising the NAPC scheme;
(b)provided for a marketing fee in the amount that the purchase price for each unit sold exceeded $130,000’.
It is then alleged, in par 26, that Redwind agreed with Coral Reef that the Chevron Palm Units would be sold at prices between $159,900 and $164,900 each. It is sought to make each of Redwind and Mr Grounds and Mr Cornish liable as having been knowingly concerned in the application of the scheme generally to the Gleesons. It is also sought to make them liable as accessories for the representation as to the price for the unit being its market value. Liability on their part is not however based upon the non-disclosures to the Gleesons.
Against Mr Pointon
It is not in issue that Mr Pointon, a member of the firm of Perrin Pointon, acted for Mr and Mrs Gleeson in connexion with their contract to purchase the unit and the settlement of it. He and his firm are also alleged to have been on the panel utilised by NAPC and Investlend. It is alleged that he knew of the NAPC scheme and the part others played in it and he is alleged to have been knowingly concerned in the contravention of s 52 constituted by the operation of the whole scheme and in the application of the whole scheme to the Gleesons.
An alternative basis for liability is alleged to arise from Mr Pointon’s non-disclosures. In relation to disclosures to purchasers generally, liability is founded upon the matters referred to in par 20(c). He is alleged to have contravened s 38 of the Queensland Act thereby and to have been knowingly concerned in NAPC and Investlend’s contraventions.
In relation to Mr and Mrs Gleeson it is alleged that:
‘37.Between 24 September 1998 and 21 December 1998 Pointon:
(a)owed a duty to act with reasonable care, skill and diligence as the solicitor for the Gleesons and to inform them of all matters known to him that were relevant to them purchasing Unit 29;
(b)knew how the NAPC Scheme worked;
(c)knew that the purchase price for Unit 29 paid by the Gleesons included a marketing fee of $34,900;
(d)knew that Unit 29 was being marketed to the Gleesons pursuant to the NAPC Scheme;
(e)knew that commissions were paid to marketing participants in the NAPC Scheme, and that marketing fees were paid to Coral Reef and NAPC;
(f)knew that the purchase price being paid by the Gleesons was not the fair market value of Unit 29;
(g)knew that the Gleesons had not been informed by any other marketing participant of the commissions and marketing fees to be paid to Coral Reef, NAPC or the other marketing participants;
(h)knew that the Gleesons had not been informed by any other marketing participant that the purchase price was not the fair market value for Unit 29;
(i)knew that an earlier client of his had signed a contract to purchase Unit 29, but was released from the contract and had the deposit of $1,000 refunded upon claiming that NAPC had colluded with Investlend in relation to the purchase;
(j)did not advise the Gleesons of any of the matters within his knowledge set out in subparagraphs (b) to (i) hereof;
(k)knew that if he informed the Gleesons of the nature or extent of the marketing fee for Unit 29 he would no longer get referrals from NAPC or Investlend;
(l)was a marketing participant’.
In par 78 the following contravention is pleaded:
‘78.Pointon, by failing to disclose to the Gleesons any of the matters pleaded in paragraphs 37(b)-(i), by reason of the matters pleaded in paragraphs 16 to 20 and 37:
…
(b)was knowingly concerned in or party to the contravention by Coral Reef, NAPC and Investlend of the provisions alleged in paragraph 76;…’
(Paragraph 76 refers back to par (20(c)).
Allegations that he also contravened s 38 of the Queensland Act by reason of non-disclosures to the Gleesons and that he was a conspirator are not pursued. In relation to the specific misrepresentations alleged to have been made to the Gleesons he is sought to be made liable as an accessory for that relating to the purchase price being the market value of the unit.
Against Mr Johanson
It is not controversial that Mr Johanson acted as Redwind’s solicitor both in relation to the marketing agreement with Coral Reef, and associated agreements, and with respect to the conveyance to the Gleesons. He and his firm are also alleged to have been on the panel. Mr Johanson is alleged to have known of the scheme and the part played by the other respondents in it.
It is sought to make him liable as an accessory to the conduct of the scheme and the consequential breach of s 52, for its application to the Gleesons and the non-disclosures to purchasers generally of the matters in par 20(c). It is sought to hold him liable personally for the non-disclosures to purchasers generally under s 38 of the Queensland Act. So far as concerns the misrepresentations alleged to have been made to the Gleesons, he is alleged to have been an accessory to that concerning the unit being sold at market value.
Additionally it is alleged against him that:
‘38.Between about 24 September 1998 and 21 December 1998 Johanson:
(a)acted as attorney and as solicitor for Redwind in relation to its sale of Unit 29 to the Gleesons;
(b)knew how the NAPC Scheme worked:
(c)knew that the purchase price for Unit 29 paid by the Gleesons included a marketing fee of $34,900;
(d)knew that Unit 29 was being marketed to the Gleesons pursuant to the NAPC Scheme;
(e)knew that commissions were paid to marketing participants in the NAPC Scheme, and that marketing fees were paid to Coral Reef and NAPC;
(f)knew that the purchase price being paid by the Gleesons was not the fair market value of Unit 29;
(g)knew that the Gleesons had not been informed by any other marketing participant of the commissions and marketing fees to be paid to Coral Reef, NAPC or the other marketing participants;
(h)knew that the Gleesons had not been informed by any other marketing participant that the purchase price was not the fair market value for Unit 29;
(i)knew that NAPC and Coral Reef were marketers;
(j)knew of the terms of the contract between Redwind and Coral Reef to market the Chevron Units;
(k)knew that a fee of $34,900 was paid to Coral Reef from the sale proceeds of Unit 29;
(l)knew that he and his firm had previously acted for purchasers of property marketed pursuant to the NAPC Scheme, which they knew to be marketed property and had failed to disclose that fact, or the nature or the extent of the marketing fees involved, to their clients;
(m)knew that a previous purchaser of Unit 29 had claimed that Redwind had colluded with NAPC and Investlend in relation to the purchase of Unit 29 and that Redwind had subsequently agreed to release that purchaser from its contract and had repaid the deposit;
(n)was a marketing participant;
(o)did not disclose the nature, existence or extent of the marketing fee to the Gleesons’.
The contravention constituted by this knowledge and the failure to disclose the marketing fee is not pleaded. The Commission disavowed reliance upon s 38, in par 77 (referred to at [37] above) which related to some disclosures to the Gleesons and in any event that plea did not ever refer to Mr Johanson. I therefore take it to be part of the narrative relevant to the non-disclosures to purchasers generally.
Against The Bank
Paragraph 46 of the amended statement of claim is in these terms:
‘46.The CBA:
(a)knew that the purchase price of Unit 29 was $164,900;
(b)knew that the fair market value of Unit 29 was approximately $100,000;
(c)knew that the purchase price of Unit 29:
(i)was substantially in excess of its fair market value;
(ii)included selling costs that were well in excess of standard Real Estate Institute of Queensland rates; and
(iii)was an inflated purchase price that could not be recouped upon further resale;
(d)knew that the Gleesons resided and carried on business in Cairns;
(e)knew that the fair market value of Unit 29 was not sufficient of itself to support a loan in the amount applied for by the Gleesons;
(f)knew that, if the Gleesons proceeded to make the proposed loan agreements, the benefits to the CBA included:
(i)receipt of loan fees;
(ii)receipt of interest on the sum borrowed over the term of the loan; and
(iii)the opportunity to sell additional services and products, such as insurances, to the Gleesons over the term of the loan;
(g)knew that, notwithstanding that the Gleesons had sought loans very substantially in excess of the fair market value of Unit 29, the total value of the security offered by the Gleesons was ample for the loans sought and that the benefit to the CBA would be greater if the loans sought were provided than if only loans sufficient to purchase Unit 29 at its fair market value were provided;
(h)knew, or had reason to believe, that the Gleesons believed the fair market value of Unit 29 to be approximately $164,900;
(i)knew that the Gleesons were unaware that the fair market value of Unit 29 was approximately $100,000;
(j)knew or had reason to believe that the Gleesons were unaware that the purchase price of Unit 29:
(i)was substantially in excess of its fair market value;
(ii)included selling costs that were well in excess of standard Real Estate Institute of Queensland rate; and
(iii)was an inflated purchase price that could not be recouped upon further resale;
(k)knew or had reason to believe that the Gleesons had been misled, by persons using investment seminar marketing techniques, as to the fair market value of Unit 29;
(l)knew, or had reason to believe, that the Gleesons, as its customers, would rely on the CBA to tell them if it knew of allegations or evidence of any misleading conduct by third parties in relation to their purchase of Unit 29;
(m)knew that, if the Gleesons had been aware of any of the matters pleaded in subparagraphs (b), (c) or (k) they would not have:
(i)proceeded with the purchase of Unit 29; or
(ii)proceeded with their finance application or entered into the loan agreements;
(n)did not disclose the contents of the valuation to the Gleesons;
(o)did not advise the Gleesons of the substance of the matters referred to in paragraph 45 hereof;
(p)did not take any step to alert the Gleesons to the facts set out in subparagraphs (b), (c) or (k)’.
It is then alleged that that conduct, in the context of the Gleesons’ application for finance, amounts to a contravention of s 52. Alternatively, it is alleged that the bank has engaged in conduct which is unconscionable, contrary to s 51AC(1)(a) or alternatively s 51AA.
the evidence
THE MARKETING AND SALE OF UNITS BY NAPC & Investlend
The use of a system of marketing involving many of the steps pleaded by the Commission as the NAPC scheme was admitted by Mr Bilborough, although he referred to it as ‘the Coral Reef system’. It is also clear from the evidence of the Gleesons, and from the evidence of other purchasers of NAPC-marketed properties called by the Commission, that the steps were generally those outlined by the Commission. I did not understand the respondents to dispute this. Transcripts of the evidence given by Mr Bilborough, Mr Quinlivan and Mr Pointon pursuant to under s 155 of the Act, particularly that relating to Mr Bilborough, also confirm aspects of the scheme. The Commission’s evidence includes records of some sixty meetings between 4 July 1996 and 1 December 1998 at which one or both of Mr Bilborough and Mr Quinlivan were usually present. They extend to some hundreds of pages. There are some references amongst them which are relevant to confirm the operation of the scheme and how it was managed by NAPC and Investlend and which provide some detail of aspects of it which assume some importance in these proceedings. The scripts used by NAPC representatives for the seminar and the in-home consultation fall into the latter category.
Neither Mr Bilborough nor Mr Quinlivan gave evidence at the trial. In his s 155 examination Mr Bilborough explained that the system of marketing commenced in about 1994 or 1995 and that about 1,000 properties were sold by NAPC in its best year. It was a large operation with about 300 people engaged in it at its height.
It also appears that Coral Reef maintained stock lists. There are numerous references in the meetings to ‘stock’ in connexion with properties and to ‘runners’ and others undertaking ‘stock runs’ which, I infer, is a process whereby they were to familiarise themselves with particular developments which were to be marketed. Mr Bilborough said that a property stock list was maintained within NAPC and it was from this list that properties to be shown to prospective purchasers were drawn. Coral Reef was the main company which dealt with the developers. Coral Reef and Coastal Reef, the name under which NAPC traded, operated as part of the one group. He said that developers set the price which was put into the stock list. This may be in contention. By 1997 the ‘marketing fee’ was close to $30,000, and on average about $28,000 on each property.
As to the marketing arrangements alleged, there is evidence that Coral Reef entered into three other agreements apart from that with Redwind. They are dated 20 November 1996, 23 October 1997 and 9 September 1998. They are relevantly in the same terms as Redwind’s and include reference to a net price payable to the developer. The marketing fee is the amount by which the purchase price obtained by Coral Reef exceeds that price. Clause 5.2 is in the same terms in each case. Pursuant to it the developer agreed to sign an irrevocable authority in the form attached to the Deed for payment of the marketing fee ‘which shall be the amount that the purchase price exceeds the nett price as identified in the Second Schedule’. There are, in the records of meetings, some few references to marketing fees of $30,000 or more. There are references to NAPC, but not the developers, taking ‘the risk’ which I take to refer to the developers being guaranteed payment at the price agreed. In particular at the meeting of 4 June 1998 (at which Mr Bilborough was present) there is discussion of two prices - one for which the developer brings the unit ‘to the market’, and another, higher, figure which is referred to as the selling price. On that occasion the difference was some $15-$25,000, although the discussion refers to paying the costs of marketing to obtain $30-$45,000, and of $30,000 going to the group as the ‘marketer’. Clearly these amounts exceeded what would usually be paid to a real estate agent in Queensland under the Property Agents and Motor Dealers Act 2000 (Qld). It is not however suggested that the fee agreed to be paid by a developer to a marketer was unlawful and it is obvious that this system of marketing would be likely to involve greater expense than more conventional methods.
In late August or early September 1998 NAPC received a facsimile message from ‘Forrester Kurts Properties’. It attached what were said to be valuations ‘on all Gold Coast properties you are to sell under our agreements’. The valuation lists in fact identified purchase price, valuation and shortfall. This might be evidence of an occasion when the purchase price was set between Coral Reef and a client. It is not apparent what ‘the agreements’ were. No one was called to prove the valuation figures. It was not obvious that the author of the message was a valuer or just another property agent. The ‘shortfall’ of, some $17,000, was not of the order of Coral Reef’s other marketing fees to which evidence has been directed. It may be advice of what will be necessary by way of bank accommodation.
Telemarketing was the first step in the process. Prospective purchasers, or ‘prospects’ as they are referred to in the marketing materials, were recruited from areas away from the Gold Coast. Mr Bilborough said that, from a marketer’s point of view, people coming from a distant area are more likely to make a decision straight away. This may be in part because they do not have the option of putting off a decision by saying that they will return if they remain interested. There may also be a question whether this was the only reason for selecting them.
In the publicity attending this trial it was asserted that the system was ‘two tier’ in prices. This refers to there being a lower price for people who lived at the Gold Coast and another, higher, figure which marketers obtained from persons living distant from it and who were not familiar with the local market. As I later observe in these reasons, in connexion with the evidence as to market value, if this was in fact the case it has not been established by the Commission.

At least by the time of the O’Neills conveyance, in March 1998, Mr Pointon knew that Investlend was providing financial advice and that Investlend and NAPC were acting in concert together to sell properties. He knew that they were acting in such a way as might provide a purchaser with a defence to an action brought on the contract. Even if he did not know they were likely to have been misled in some way he must have believed their conduct to have been wrongful.
Mr Pointon did disclose to clients who had been referred by NAPC and Investlend that he received referrals from NAPC. He said that he was an independent solicitor and was acting for them. He did not mention his connexion with Investlend or Investlend’s close connexion with NAPC. He did not disclose that those companies acted in concert to sell properties and that they needed to be aware of that when considering any advice or information which had been provided to them. Instead he assisted in the appearance of regularity by permitting the NAPC runner to remain. Purchasers would have been comforted by Mr Pointon’s statement that he was acting for them alone and not for NAPC. His conduct in permitting the NAPC runner to remain in his office conveyed approval of NAPC. His silence about Investlend whom he knew to have given the financial advice and about the ‘collusion’ between Investlend and NAPC can in these circumstances be described as misleading.
Mr Pointon may well be taken to have contravened s 38 of the Queensland Act. The section itself would apply, because the relevant ‘consumer services’ are those provided by him and are within the amount referred to in the section. Neither an injunction nor a declaration could however be given in proceedings brought by the Commission for the reasons I have earlier given.
Had s 38 applied Mr Pointon may have been held liable for a failure to alert clients to the relationship between NAPC and Investlend, as alleged in par 20(c) had s 38 provided a basis for Court orders. The only other reference to s 38 in connexion with Mr Pointon, apart from par 65 of the amended statement of claim, appears in par 78. In closing submissions the Commission confined its case to par 65.
The only other basis for Mr Pointon’s liability on the Commission’s pleaded case is as an accessory to contraventions by Coral Reef, NAPC and Investlend. I have found that the conduct which contravenes s 52 relates to the predictions for capital growth and, in the case of the Gleesons, as to statements about Investlend’s role as a financial advisor. It is not pleaded that Mr Pointon was an accessory to these contraventions nor would the evidence enable that conclusion.
The case brought against Mr Pointon is not one for breach of professional duty or for negligence as a solicitor. I should add that it is not part of the Commission’s role to undertake cases of that kind. Its role is with respect to the Trade Practices Act, which applies only to corporations as principal contravenors. The Fair Trading Act might have applied to Mr Pointon, but no relief is possible at the suit of the Commission. The case pleaded against him has therefore not been made out. Although I draw no conclusion about the extent of Mr Pointon’s role, as the evidence does not permit me to do so. It is however sufficient in my view to warrant the matter being referred to the Law Society of Queensland which at this time still maintains an investigatory role. It may be that Mr Pointon is entirely innocent of complicity in the carrying out of the scheme. I have not had the benefit of his evidence about it. In light of my findings he might well benefit from a proper investigation.
THE LIABILITY OF Mr Johanson
Mr Johanson did not give evidence and was not examined under s 155. Less is therefore known about his knowledge of and involvement in the scheme. He or his firm also acted for purchasers on referral from NAPC or Investlend. His advices to Mr Cornish concerning NAPC as marketer and Mr Bilborough disclose some knowledge of the persons involved with the entities and the extent of their sales turnover. He knew of Mr Hart’s position in the organisation and about the maintenance of stock lists.
Much store was placed by the Commission on cl 5.4 of the joint venture documents which, it was said, obliged Redwind and thereby Mr Johanson, to attach or incorporate the document in every contract for the sale of a unit in the Chevron Palms development. If that were the case then the price Redwind was receiving and the existence of a marketing fee would have been disclosed. The purchaser would then have been able to identify from the price they were paying, the amount of the marketing fee. I understood the Commission to suggest that the non-disclosure of the joint venture resulted from a deliberate decision, on Mr Johanson’s part, to keep the details of it secret.
Clause 5.4 could not reasonably be read to require the disclosure spoken of, in my view, and it is highly unlikely that Redwind and Coral Reef intended that purchasers be so advised. The purpose of the clause was to confirm, as between Redwind and Coral Reef, that the Joint Venture Deed operated with respect to each sale and in particular that Redwind would therefore receive only the sum agreed from the proceeds of settlement.
Even if the conduct of the scheme as a whole amounted to a contravention of s 52, the evidence does not establish that Mr Johanson knew of each aspect of it. So far as concerns the non-disclosure to purchasers generally of the relationship of the other entities with Investlend and thereby that it was not a financial advisor to the purchasers in a true sense, it is not shown that he knew Investlend was being presented in this way. Any such inference is speculative. In any event the principal contraventions are not constituted by non-disclosures.
Section 38 of the Queensland Act does not apply to these sales and Mr Johanson could not be made liable under it. In any event it would seem to me that it could hardly be said that he engaged in misleading or deceptive conduct by not telling them of the fact that NAPC acted for developers and received a substantial marketing fee. There was no relationship which obliged such a disclosure and nothing in his conduct towards them which could be said to require such a disclosure.
As earlier mentioned, it is not now sought to make Mr Johanson liable under s 38 for non-disclosures to the Gleesons. I do not consider in any event that the position with respect to them was much different. As with so many of the respondents, the Commission’s case depended upon proof that sales were effected at more than market value to their knowledge. Neither of these factors has been established.
The last remaining basis for the orders sought against Mr Johanson also fail on this account. It is alleged he was knowingly concerned in the representation to the Gleesons that the unit was being sold at market value. Additionally, there is no evidence that he knew that such a representation would be made to them by the Investlend representative.
THE CASE AGAINST THE BANK
Section 51AA of the Act has no application if conduct falls within s 51AC. Since the latter section is likely to have a wider operation it might be thought to be the focus of the Commission’s case. Further, s 51AC is not expressly excluded from application to the provision of ‘financial services’ as is s 51AA (and s 51AB, but this section was not relied upon). The Commission however maintained its case under s 51AA and it will provide a convenient starting point for considerations generally as to whether there has been any unconscionable conduct on the part of the bank.
In the event that the Commission establishes a contravention on the part of the bank in 1998 of one of these provisions, or of s 52, a question is raised by the bank as to whether the Court continues to have the power to order an injunction with respect to future conduct under s 80 of the Trade Practices Act given the operation of the Australian Securities and Investments Commission Act since March 2002. The Commission and the bank have approached the matter on the basis that the Trade Practices provisions of s 51AA and s 52 so far as concerns financial services were withdrawn when the Australian Securities and Investments Commission Act came into effect at that time. The Commission was granted leave to amend its application to rely upon s 12GD of that Act. A similar question, with respect to s 52, arose in Australian Competition & Consumer Commission v Commonwealth Bank of Australia [2003] FCA 1397, a recent decision of Conti J, where his Honour held that the Australian Securities and Investment Commission has authority to seek injunctions for future breaches in such circumstances, given that the conduct is identically proscribed by the current and superseded legislation.
In Australian Competition & Consumer Commission v Commonwealth Bank of Australia the Australian Security and Investments Commission was a party. It is not to these. Senior Counsel for the bank has drawn to my attention a reference in Miller’s Annotated Trade Practices Act 1974 (24^th ed) at 373 which confirms that unconscionable conduct in relation to financial services is now the responsibility of the Australian Security and Investments Commission, but that it has delegated power to take action on its behalf to the Chief Executive Officer of the Australian Competition and Consumer Commission.
It is convenient to deal in the first place with the Commission’s allegation that the bank was guilty of misleading or deceptive conduct in not disclosing the contents of its valuation or taking steps to alert them to the matters to which its valuer had adverted. I would say at the outset that I have some difficulty with the proposition that the bank could be obliged to warn that a customer might be borrowing money to pay a price which is more than market value when that fact has not been established. I accept that the bank may have accepted its valuers opinion. There is nothing to suggest to the contrary. Nevertheless I would have thought it necessary for the Commission to have proved that they were in fact true. Any orders made in that circumstance would be based upon an assumption which may or may not be correct. I shall nevertheless consider the arguments which, it seems to me, proceed upon the basis that it is sufficient for the bank to have been advised by its valuers.
The existence of a relationship, as earlier discussed, may be relevant to the question whether a person has a reasonable expectation that they will be told of something and whether, in the absence of that advice, the conduct of the other party may be misleading. The Commission’s case for contravention of s 52 would appear to assume something more arising from the relationship between the bank and the Gleesons than was really the case.
In Golby v Commonwealth Bank of Australia (1996) 72 FCR 134 at 136 Hill J said:
‘Although, as Mason J in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96 suggested, the categories of fiduciary relationship are not closed, the relationship of banker and customer is not one of the accepted fiduciary relationships. It is not a critical feature of a banker/customer relationship that the banker undertakes or agrees to act for or on behalf of or in the interests of its customer in the exercise of some power or discretion affecting the interests of the customer in a legal or practical sense. When a customer defaults in the repayment of a mortgage, a banker is entitled to exercise the powers in the mortgage for the banker’s own interest, at least so long as the banker acts in good faith in exercising the power of sale. Absent therefore some special feature, such as the giving of advice in Smith, there is no reason to erect a fiduciary relationship between banker and customer when that relationship is essentially one founded in contract.’
The statement was cited with approval by the Queensland Court of Appeal (Davies JA, Pincus JA and Derrington J) in Commonwealth Bank of Australia v Finding (2001) 1 Qd R 168 at 172. In that case, as here, the bank held a valuation which suggested that their customers had paid too much for the property. Further its officers held some concerns about the profitability of the business conducted on it, a hotel. The Court held that the bank was under no duty to provide the valuation (at 172-173) and that there was nothing in the conduct or statements of the bank which was misleading or deceptive by non-disclosure of the valuation (174-175). Relevantly the customer could not be said to have expected disclosure (at 175).
There are situations in which a bank might itself create such an expectation. In Commonwealth Bank of Australia v Smith (1991) 102 ALR 453 a Full Court of this Court (Davies, Sheppard and Gummow JJ) held that a bank both breached a fiduciary relationship with its customer and engaged in misleading and deceptive conduct. In that case, however, a manager of the bank had advised the respondents about the suitability of a business without having a reasonable basis for the statement. He had also advised them that the owner of the hotel in question was a customer of the bank. In these circumstances the respondents were entitled to think that the statements were made by a person who had a close knowledge of the hotel and was in a position to say whether the price was reasonable (at 475).
There is nothing in the relationship of the bank and the Gleesons or in the bank’s conduct which is similar to the circumstances pertaining in Smith. It is closer to those in Finding. The Gleesons did not give evidence of the creation of a relationship over the course of time which involved their reliance upon the bank for advice, to the bank’s knowledge. The only relationship which appears to have existed between them is a business relationship in which the bank was a lender. It had not been and was not now their advisor. No advice had been sought by the Gleesons. The Gleesons would have expected the bank to obtain its own valuations so that it might assess the value of the security offered. They could not have had an expectation that the valuation would be provided to them or that the bank would volunteer advice about the wisdom of the purchase they had undertaken. This is so even without the conditions. The conditions which the bank ensured Mrs Gleeson had read, put it beyond doubt.
The bank’s terms and conditions should not be overlooked as unimportant. Clause 11.5 clearly advised the Gleesons that the bank would not be disclosing its valuation. They were not to infer from the bank’s offer of a loan to them any representation from the bank about the property’s value. They were reminded that the bank took no responsibility for any decision they may make to enter into a contract, although this had already occurred. If they had any doubt about any matter. They were advised to seek the services of a financial counsellor or legal advisor.
The Commission’s principal case against the bank rests upon notions of unconscionability. In that regard the focus is almost entirely upon the advice the bank received from its valuer and the corresponding lack of knowledge, or possible lack of knowledge, on that topic on the part of the Gleesons.
It has been pointed out that s 51AA does more than re-enact the general law principles such as those stated in Blomley v Ryan (1956) 99 CLR 362 and Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447: Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 197 ALR 153 at 163-164, [40]. Conduct contravening the section is subject to remedies not otherwise available. As Gleeson CJ observed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 227, [45] the question which then arises is according to what principles equity would consider conduct be such as to be enjoined by injunction (Berbatis at 164, [41]).
In this case, as in Berbatis, it was not however sought to further explore that territory. The Commission’s case was based upon an application of the principles in Amadio. It is nevertheless instructive to consider the injunctions sought by the Commission. They serve to identify something of the problems in the Commission’s case.
‘22. An order that CBA be restrained, for a period of five years, from lending money, whether secured or not, to a person for that person to purchase property where CBA knows, or has been informed, that the person buying the property has been misled or deceived by the vendor or its agents as to the market value of the property to be acquired, unless CBA shall have first informed the person in writing of such knowledge or information and the person has advised CBA in writing that it has considered the knowledge or information provided by CBA and wishes to continue with its application to borrow money to purchase the property.
23. An order that CBA be restrained for a period of five years, from lending money, whether secured or not, to a person for that person to purchase property as an investment where CBA knows or has been informed that:
(a)the purchase price is more than 10% greater than any valuation of the property obtained by CBA and the person does not reside in the same town or city as the property being sold; or
(b)the purchase price is more than 15% greater than any valuation of the property obtained by CBA,
unless CBA has first recommended in writing to the person that the person obtain independent professional advice as to the value of the property to be purchased and the person has subsequently informed CBA in writing that he or she is satisfied that the purchase price represents fair local market value.’
The injunctions sought in par 22 require the bank to provide advice whenever someone informs it that a customer has been misled as to the value of the property. It does not allow for any consideration on the part of the bank as to the reliability of the advice and the likelihood that their customer has been influenced in that way. I accept that an order drafted so as to permit such considerations would involve considerable uncertainty as to the extent of the bank’s obligation to enquire, but that serves further to highlight the problem. The order has been framed so as to avoid the difficulty that the bank’s own valuation be provided, a circumstance which would expose both it and the valuer to other claims were the opinion found to be incorrect. It is further likely to involve the bank in a breach of its contractual obligations to the valuer. In submissions however the Commission contended that the provision of the valuation was essential if the bank wished to enter into the loan transaction. Even without providing the valuation itself difficulties would remain for a bank carrying out the order. It will be entering upon advice which is likely to affect whether a client will take steps to extricate themselves from their contract. It will be obvious that the bank is saying they are paying too much. And if the advice about market value is wrong the bank could not be assured of protection by telling the customer to seek their own advice as well.
The order in par 23 is even more problematic. Ten or fifteen per cent may not reflect a substantial difference between purchase price and valuation. It would depend on the amount of the purchase. In any event it is difficult to see how the Commission could justify these figures. Moreover I assume that these orders are intended to frame a practice for all banks which would require them to insist upon their customers obtaining valuations. It would prevent the customers from proceeding with a bank loan even if they considered that it was in their interests to do so notwithstanding advice as to value. Further, the injunctions appear to be premised upon a purchaser being in a position to make a choice without litigation. That is not the real situation into which a bank is to be required to participate.

In Amadio (at 461-3) Mason J referred to the situation in which equity might intervene, that referred to in Blomley v Ryan, where one party ‘is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created’: His Honour went on (at 462):
‘…I qualify the word “disadvantage” by the adjective “special” in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party’.
In the same case Deane J (at 476-477) adopted the description given by McTiernan J in Blomley v Ryan (at 392) of the weakness that attracts the jurisdiction namely that the ‘essence of such weakness is that the party is unable to judge for himself’. More recently, in Bridgewater v Leahy (1998) 194 CLR 457 at 470-471, [39]-[42] Gleeson CJ and Callinan J referred to these decisions with approval and confirmed once more that the nature of the disadvantage lies in the ability of a person to make an informed judgment as to their interests. Their Honours added (at [41]-[42]):
‘Absence of independent legal advice, like age, or infirmity, or some other condition or circumstance of the kind referred to may, in a given case, be of factual importance in determining whether special disability or weakness, of the relevant kind, exists, but it is important to bear in mind the essence of the supposed disability or weakness’.
(Their Honours, were in dissent but not upon what constitutes a special disadvantage. The majority’s reasons focussed upon whether unconscionable advantage was taken).
One party to a commercial transaction will often know more than the other. A difference in bargaining power, even a substantial difference, does not however amount to the ‘special disadvantage’ of which Mason J spoke in Amadio and as was further discussed in Berbatis (see Berbatis at 157, [11] and 168, [56]). The parties in Berbatis, as Gleeson CJ observed, were at a distinct disadvantage in seeking an extension or renewal of their lease but there was nothing ‘special’ about it. Critically, they did not suffer from a lack of ability to judge or protect their financial interests at 157-158, [15] (and see at 168, [56]).
In the present case the bank had been informed by its valuer that he considered that the Gleesons had probably contracted to pay substantially more for the unit than it was worth. It was also informed by the valuer that the reason for this would be their lack of knowledge of local market conditions. The reference to ‘seminar techniques’ being employed would have conveyed little more. The only reference to the situation of purchasers was to their lack of knowledge. There was no suggestion that they had been actively misled and the Commission’s contention in that regard must be rejected. The bank can be taken to know that purchasers were persuaded to pay more. It does not follow that the bank knows that they were told a falsehood.
The knowledge that the bank had without more, would not, have required it to disclose its valuation or the advice it had received. The disadvantage that the Gleesons laboured under, which might be said to be evident to the bank, was not such as to seriously affect their ability to make a judgment as to their interests. They were able to form that judgment and protect their interests if they had obtained the necessary information. That they did not do so does not constitute the disability or weakness of which the cases speak.
The Commission’s case also appears to assume that the Gleesons have continued to labour under the disadvantage spoken of, lack of knowledge about the value of the property. Given that it is the bank’s entry into the loan transaction which is alleged to be unconscionable it is necessary to consider the Gleesons position up to that point. If the bank is said to be required to warn them, in effect, not to enter into the loan transaction until they have sought valuation and legal advice about the contract they have entered into, it is necessary to consider what they did in fact know and what enquiries they could and did make up to this point.
Mr and Mrs Gleeson are educated, intelligent people, well able to comprehend that the price sought for a property may not be the same as its market value. If it were not for a combination of the pressure applied by the NAPC and Investlend representatives and Mr Gleeson’s enthusiasm to buy a property, they may well have made the necessary enquiry although it would seem to me that Mr Gleeson largely convinced himself to purchase by reference to the rental figures which had been provided by the manager. More importantly, they had the ability to do so. Indeed Mr Gleeson obtained advice from Mr Campbell prior to their purchase, who cautioned him about the correctness of the assumptions in the spreadsheet.
When Mr and Mrs Gleeson returned to Cairns Mrs Gleeson had already had second thoughts about the purchase. This aspect of Mr and Mrs Gleeson’s evidence is unsatisfactory. They were not entirely forthright about the enquiries they made when they returned, the information they received and the consideration that they gave to the question as to what to do about the settlement of the purchase. Because of Mrs Gleeson’s unhappiness with the purchase, Mr Gleeson made enquiries of persons about it and he went so far as to say that this was because he was thinking about getting out of the contract. Neither Mr nor Mrs Gleeson explained what their concerns were with respect to the purchase. They had however been alerted to the prospect that it was not a good investment and therefore likely to prove to their benefit. Mrs Gleeson, I apprehend, was concerned about that after she left the solicitors’ office on the day of the purchase. Mr Gleeson said that he spoke to real estate agents about it although he did not say what they told him. It is difficult to avoid the conclusion that it was about the value of the investment property. He also spoke to his accountant in that period. It is hard to imagine that Mr and Mrs Gleeson did not have discussions prior to and consequent upon the advice received. They do not appear to have sought legal advice, although it is possible that they did. One would think it likely that they would have considered doing so. I do not think it is necessary for the bank to show that they in fact received that advice. The Commission’s case is that they were under a special disability. In my view the Commission is required to show that the Gleesons were unable to obtain the information which it says they needed. In truth Mr and Mrs Gleeson were not under any disability such as would prevent them from obtaining the very advice which it is now said the bank should provide to them. On the Commission’s case all they had to do was seek advice from a valuer on the Gold Coast.
Section 51AC(3) applies to the supply of goods or services to a ‘business consumer’. The setting of s 51AC, gleaned from subs (4), is small business. It was not apparently considered necessary to transfer any financial services component which the section might have to the Australian Securities and Commission Act. There may be a question as to its application in a transaction such as this. Argument however proceeded upon the basis that it might apply and it is not necessary for me to further consider that question.
The unconscionable conduct prohibited by s 51AC has not been considered to be limited by reference to ‘specific equitable doctrines’: Australian Competition & Consumer Commission v Berbatis Holdings Pty Ltd (2000) 169 ALR 324 at 335 per French J; Australian Competition & Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 at [31]. And in Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741 at 40,585 a Full Court of this Court (Heerey, Drummond and Emmett JJ) said that whatever ‘unconscionable’ means in ss 51AB and 51AC, the term carries the dictionary meaning namely actions ‘“showing no regard for conscience” or that are “irreconcilable with what is right or reasonable” - Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term “unconscionable” import a pejorative moral judgment - Qantas Airways Ltd v Cameron … at 283-4 and 298”.’ Whilst the circumstances of the consumer no doubt remain relevant under s 51AC, the focus would appear to be upon the conduct of the supplier.
The Commission’s focus in s 51AC(3) was upon par (i) which permits a Court to take into account the extent to which the supplier has unreasonably failed to disclose to the business consumer any risks to the business consumer arising from the supplier’s intended conduct. I do not think it could be said that the bank’s conduct exposed the Gleesons to risks. The question is broader in any event. Section 51AC permits consideration of all the matters listed in it but even then it is not exclusive. The broader question is whether the bank’s actions could be said to be contrary to good conscience.
That the bank would be acting in Mr and Mrs Gleesons’ interests if it were to advise or warn them in some way that they may have paid too much for the unit is not the appropriate measure of the bank’s conduct. It is necessary to consider just what it was that the bank should have done, why it should have done so and what position those actions would have placed the bank in. It does not seem to me to be possible to ignore the bank’s own interests, at least so far as concerns the protection of them, in considering its conduct.
I have discussed some of the difficulties which would arise for the bank were it to provide its valuation. In any event it could hardly be said to be acting contrary to good conscience in not doing so when it has told its customer that it would not be providing it and that they should draw no conclusion about a property’s value because the bank is willing to advance the monies sought. If it were to advise them to seek valuation advice it would be conveying to them that there is something wrong in that regard. It is difficult to envisage any way of alerting persons such as the Gleesons to the prospect of the property not being as valuable as they might have thought without conveying that message. The bank is then faced with the prospect that they might take steps on the basis of that advice, advice which the bank did not wish to give and which it had warned them it would not. The reason for the bank removing itself from the position of advisor is clear enough. It would place itself in a position where it might be held responsible for the steps then taken by the purchaser. Added to that is the assumption in all of this that the bank’s valuer is correct in his opinions.
The Commission submitted that the bank might avoid a finding of unconscionable conduct by simply advising the Gleesons to seek advice. In reality Mr and Mrs Gleeson were always able to obtain that advice, if not before their entry into contract then afterwards. They may have done so. They were alerted to the possibility of it not being a good bargain and made some enquiries at or after this time. The only reasonable conclusion to be drawn from their continuing with the contract in my view was that Mr Gleeson wished to do so.
In my view it could not be said that the bank was guilty of unconscionable conduct. The case against the bank fails.
In view of my findings it is not necessary for me to deal with the issue relating to the source of power to grant injunctive relief and whether it is available at the suit of the Commission. I would however add that I would not have been disposed to grant an injunction, not the least because of the difficulty in drafting one and because this bank has been singled out for the purposes of a test case. A declaration, in my view, would in these circumstances be sufficient.
ORDERS
Declarations which simply reflect findings of contravention are not always warranted, but I accept that they may be useful in public interest litigation where they serve to vindicate legislation aimed at the protection of consumers. There will be declarations of contraventions by the first and second respondents and of the accessorial liability of the fifth, sixth, seventh and eighth respondents.
I have considered the grant of injunctions in connexion with possible future representations as to persons being qualified financial advisors when they are not and, perhaps more importantly, injunctions requiring the disclosure of that person’s role in selling and marketing or their connexion with the marketers. Such injunctions might have been appropriate against the first, second and fifth respondents. I would not have granted them against the seventh and eighth respondents who are not shown to have had a strong historical connexion to property or the carrying out of schemes such as the NAPC scheme. The essential vice in the conduct the subject of the declaration is, I consider, addressed by the more recent Queensland legislation and injunctions are therefore unnecessary. Any future contraventions can be adjudged in any event in light of the declarations made.
An injunction concerning representations as to rates of capital growth is difficult to fashion. It cannot contain, as a condition to any such future advice, that expert professional advice be obtained before the giving of the advice, since it is not apparent that experts would advise the use of rates as reliable. Such an injunction might be misconstrued as suggesting that such advice was possible and in order. It would not seem to me that an injunction requiring specific warnings would be of much utility and again might be misconstrued as a licence to so advise.
I will adjourn for further hearing the question of costs.

I certify that the preceding three hundred and forty-six (346) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.
Associate:
Dated: 18 December 2003

Counsel for the Applicants: Mr S Couper QC and Mr K Wilson SC

Solicitors for the Applicant: Australian Government Solicitor

For the First Respondent: No appearance

For the Second Respondent: No appearance

Counsel for the Third Respondent: Mr T Carmody SC

Solicitor for the Third Respondent: Hopgood Ganim

Counsel for the Fourth Respondent: Mr J Hilton SC and Mr C Wilson

Solicitors for the Fourth Respondent: L E Taylor and A J Mullumby (Town Agents)

Counsel for the Fifth Respondent: Mr T Bradley

Solicitor for the Fifth Respondent: Blake Dawson Waldron

Counsel for the Sixth Respondent: Mr A Morris QC, Mr D Atkinson and Mr L Jurth

Solicitor for the Sixth Respondent: Quinn Box & Muller

For the Seventh Respondent: In Person

For the Eighth Respondent: In Person

For the Ninth Respondent: In Person

Counsel for the Tenth Respondent: Mr C Hampson QC and Mr N Thompson

Solicitor for the Tenth Respondent: Grays Lawyers

Counsel for the Eleventh Respondent: Mr T Carmody SC

Solicitor for the Eleventh Respondent: Hopgood Ganim

Counsel for the Twelfth Respondent: Mr T Carmody SC

Solicitor for the Twelfth Respondent: Hopgood Ganim

Counsel for the Thirteenth Respondent: Mr J Griffin QC and Mr C Carrigan

Solicitor for the Thirteenth Respondent: McCullough Robertson

Dates of Hearing:
10 – 14 March 2003
17 – 21 March 2003
24 – 26 March 2003
31 March 2003
1 – 2 April 2003,
7 – 11 April 2003
14 – 16 April 2003
4 – 6 June 2003
10 – 13 June 2003
16 – 18 June 2003.

Date of Judgment: 18 December 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		Q 232 OF 2001
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	OCEANA COMMERCIAL PTY LTD (ACN 070 287 991) FIRST RESPONDENT MARKFAIR PTY LTD (ACN 065 542 761) SECOND RESPONDENT ADVANCED COMMERCIAL DEVELOPMENTS PTY LTD (ACN 076 810 672) THIRD RESPONDENT COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) FOURTH RESPONDENT CHRISTOPHER RUSSELL BILBOROUGH FIFTH RESPONDENT DUDLEY JAMES QUINLIVAN SIXTH RESPONDENT SHANE ANDREWS SEVENTH RESPONDENT MICHAEL BYROM EIGHTH RESPONDENT PETER EGGENHUIZEN NINTH RESPONDENT GREGORY POINTON TENTH RESPONDENT DEAN CORNISH ELEVENTH RESPONDENT JOHN GROUNDS TWELFTH RESPONDENT RODNEY JOHANSON THIRTEENTH RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	18 DECEMBER 2003
WHERE MADE:	BRISBANE

JUDGE:	KIEFEL J
DATE:	18 DECEMBER 2003
PLACE:	BRISBANE

Counsel for the Applicants:	Mr S Couper QC and Mr K Wilson SC
Solicitors for the Applicant:	Australian Government Solicitor
For the First Respondent:	No appearance
For the Second Respondent:	No appearance
Counsel for the Third Respondent:	Mr T Carmody SC
Solicitor for the Third Respondent:	Hopgood Ganim
Counsel for the Fourth Respondent:	Mr J Hilton SC and Mr C Wilson
Solicitors for the Fourth Respondent:	L E Taylor and A J Mullumby (Town Agents)
Counsel for the Fifth Respondent:	Mr T Bradley
Solicitor for the Fifth Respondent:	Blake Dawson Waldron
Counsel for the Sixth Respondent:	Mr A Morris QC, Mr D Atkinson and Mr L Jurth
Solicitor for the Sixth Respondent:	Quinn Box & Muller
For the Seventh Respondent:	In Person
For the Eighth Respondent:	In Person
For the Ninth Respondent:	In Person
Counsel for the Tenth Respondent:	Mr C Hampson QC and Mr N Thompson
Solicitor for the Tenth Respondent:	Grays Lawyers
Counsel for the Eleventh Respondent:	Mr T Carmody SC
Solicitor for the Eleventh Respondent:	Hopgood Ganim
Counsel for the Twelfth Respondent:	Mr T Carmody SC
Solicitor for the Twelfth Respondent:	Hopgood Ganim
Counsel for the Thirteenth Respondent:	Mr J Griffin QC and Mr C Carrigan
Solicitor for the Thirteenth Respondent:	McCullough Robertson
Dates of Hearing:	10 – 14 March 2003 17 – 21 March 2003 24 – 26 March 2003 31 March 2003 1 – 2 April 2003, 7 – 11 April 2003 14 – 16 April 2003 4 – 6 June 2003 10 – 13 June 2003 16 – 18 June 2003.
Date of Judgment:	18 December 2003