Caratti v Mammoth Investments Pty Ltd (No 2) - [2018] WASCA 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CARATTI -v- MAMMOTH INVESTMENTS PTY LTD [No 2] [2018] WASCA 6

CORAM: BUSS P
MURPHY JA

HEARD: 22 NOVEMBER 2017

DELIVERED : 19 JANUARY 2018

FILE NO/S: CACV 21 of 2014

BETWEEN: ALLEN BRUCE CARATTI
Appellant
AND
MAMMOTH INVESTMENTS PTY LTD
First Respondent
NAVARAC PTY LTD
Second Respondent
ESPERANCE CATTLE CO PTY LTD
Third Respondent
GRANITE HILL PTY LTD
Fourth Respondent

FILE NO/S :CACV 112 of 2014

BETWEEN :MAMMOTH INVESTMENTS PTY LTD
Appellant
AND
GRANITE HILL PTY LTD
First Respondent
ALLEN BRUCE CARATTI
Second Respondent
ESPERANCE CATTLE CO PTY LTD
Third Respondent

FILE NO/S :CACV 120 of 2014

BETWEEN :GRANITE HILL PTY LTD
Appellant
AND
ESPERANCE CATTLE CO PTY LTD
First Respondent
NAVARAC PTY LTD
Second Respondent
MAMMOTH INVESTMENTS PTY LTD
Third Respondent
ALLEN BRUCE CARATTI
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :ESPERANCE CATTLE COMPANY PTY LTD -v- GRANITE HILL PTY LTD [2014] WASC 279
File No  :CIV 1594 of 2013

Catchwords:

Practice and procedure - Liberty to apply - Meaning and effect of liberty to apply - Proper construction of order - To reserve for further consideration primary judge's orders as to assessment of damages - Whether delay in making application - Whether interests of justice to allow applications to be heard on their merits - Whether orders of the primary judge for assessment of damages should be set aside - Conventional bases upon which an order for assessment of damages is made - Whether judge's erroneous findings in the primary decision affected findings of breach and causation and thereby the making of orders for damages to be assessed

Practice and procedure - Request for remitter to another judge on the basis of apprehended bias - Whether request for recusal should be made to primary judge - Whether any proper basis for recusal where primary judge is part heard

Legislation:

Competition and Consumer Act 2010 (Cth), s 137B, s 18, s 236 of sch 2 (Australian Consumer Law)

Result:

Remitter of certain matters to primary judge pursuant to liberty to apply

Category: B

Representation:

CACV 21 of 2014

Counsel:

Appellant:     Dr J T Schoombee & Mr A P Rumsley
First Respondent           :     Mr D Ryan SC & Ms P M Tantiprasut
Second Respondent      :     Mr D Ryan SC & Ms P M Tantiprasut
Third Respondent          :     No appearance
Fourth Respondent        :     Mr J A Thomson SC

Solicitors:

Appellant:     Alan Rumsley Commercial Disputes Lawyer
First Respondent           :     Lemonis & Tantiprasut Lawyers
Second Respondent      :     Lemonis & Tantiprasut Lawyers
Third Respondent          :     No appearance
Fourth Respondent        :     Pacer Legal Pty Ltd

CACV 112 of 2014

Counsel:

Appellant:     Mr D Ryan SC & Ms P M Tantiprasut
First Respondent           :     Mr J A Thomson SC
Second Respondent      :     Dr J T Schoombee & Mr A P Rumsley
Third Respondent          :     No appearance

Solicitors:

Appellant:     Lemonis & Tantiprasut Lawyers
First Respondent           :     Pacer Legal Pty Ltd
Second Respondent      :     Alan Rumsley Commercial Disputes Lawyer
Third Respondent          :     No appearance

CACV 120 of 2014

Counsel:

Appellant:     Mr J A Thomson SC
First Respondent           :     No appearance
Second Respondent      :     Mr D Ryan SC & Ms P M Tantiprasut
Third Respondent          :     Mr D Ryan SC & Ms P M Tantiprasut
Fourth Respondent        :     Dr J T Schoombee & Mr A P Rumsley

Solicitors:

Appellant:     Pacer Legal Pty Ltd
First Respondent           :     No appearance
Second Respondent      :     Lemonis & Tantiprasut Lawyers
Third Respondent          :     Lemonis & Tantiprasut Lawyers
Fourth Respondent        :     Alan Rumsley Commercial Disputes Lawyer

Case(s) referred to in judgment(s):

Abigroup Contractors Pty Ltd v Sydney Catchment Authority [2007] NSWSC 220
Australian Hardboards Ltd v Hudson Group Ltd [2007] NSWSCA 104; (2007) 70 NSWLR 201
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker (1979) 2 NSWLR 740
Cameron v Renouf [2008] WASC 60
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
Cassis v Kalfus [2001] NSWCA 460
Esperance Cattle Company Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279; (2014) 47 WAR 318
Grainger v Williams [2009] WASCA 60
Gray v Sirtex Medical Ltd [2011] FCAFC 40; (2011) 193 FCR 1
Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
McCourt v Cranston [2009] WASC 56 (S)
McCreed v R [2003] WASCA 275; (2003) 27 WAR 554
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11
OzEcom v Hudson Investment Group [2007] NSWSC 1441
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

Table of contents

Broad background
The primary proceedings

Esperance
Granite Hill
Navarac and Mammoth
Allen Caratti
Observations on Granite Hill's pleading

The judge's reservation of certain questions and the issues for determination by the judge
The primary decision

Findings as to occupation, rent and related matters
The resolution of the competing claims - summary
Granite Hill's claim against Mammoth for breach of sublease (issue (13))
Granite Hill's claim against Allen Caratti for misleading or deceptive conduct (issue (15))
Mammoth's claims against Allen Caratti for misleading or deceptive conduct (issue (17))
General observations

Orders of the primary judge on 4 September 2014
The appeals to this court

Allen Caratti's appeal
Mammoth's appeal
Granite Hill's appeal and Granite Hill's cross‑appeal in Allen Caratti's appeal

The Court of Appeal decision of 27 May 2016
The hearing before orders made on 27 May 2016
Orders of the Court of Appeal on 27 May 2016
The liberty to apply and Allen Caratti's application

Liberty to apply
Allen Caratti's application in reliance on the liberty to apply

Evidence in support of the application
Parties' submissions

Allen Caratti's submissions

Stay
Orders sought by Allen Caratti
Granite Hill's damages claim against Allen Caratti
Mammoth's damages claim against Allen Caratti
Remitter to a different judge

Navarac's and Mammoth's submissions
Granite Hill's submissions

Statutory provisions

Disposition

The orders the subject of the application
Liberty to apply engaged
An order for assessment of damages
Order 4 - assessment of damages for breach of the Granite Hill Lease Document
Order 5

Allen Caratti's liability to Granite Hill for misleading or deceptive conduct
Allen Caratti's liability to Mammoth for misleading or deceptive conduct

Conclusion on setting aside orders 4 and 5
Order 6

Stay
Remitter to a different judge

Conclusion

JUDGMENT OF THE COURT: This matter involves an application in each of three related appeals. The relevant parties to the present dispute are Mr Allen Bruce Caratti (Allen Caratti), Mammoth Investments Pty Ltd (Mammoth), Navarac Pty Ltd (Navarac) and Granite Hill Pty Ltd (Granite Hill).[1] Mammoth and Navarac are companies associated with the Caratti family.
[1] There was evidence that another party to the appeals, Esperance Cattle Co Pty Ltd, has been placed in liquidation, and it did not appear on the present application.
Allen Caratti is the appellant in CACV 21 of 2014 (Allen Caratti's appeal), the second respondent in CACV 112 of 2014 (Mammoth's appeal), and the fourth respondent in CACV 120 of 2014 (Granite Hill's appeal). In Allen Caratti's appeal, Granite Hill filed a cross‑appeal, and its grounds were identical to Granite Hill's grounds in Granite Hill's appeal. In Mammoth's appeal, Allen Caratti filed a notice of contention.
The three appeals arise out of the decision of Martin CJ in the primary proceedings CIV 1594 of 2013: Esperance Cattle Company Pty Ltd v Granite Hill Pty Ltd (primary decision).[2] The appeals were heard together by this Court, and reasons were delivered on 27 May 2016: Caratti v Mammoth Investments Pty Ltd (appeal decision).[3] Upon delivering its reasons, the Court made various orders, including that the parties have liberty to apply as to certain matters.
[2] Esperance Cattle Company Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279; (2014) 47 WAR 318.
[3] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84.
On 10 May 2017, Allen Caratti filed an application in each of the three appeals, seeking to rely on the liberty to apply. Programming orders were made for affidavits and submissions. Allen Caratti's applications were heard by this court on 22 November 2017. The issues, in substance, are whether the liberty to apply is properly engaged, and if so, what orders, if any, should be made.

Broad background

At all material times, Navarac and Mammoth were companies controlled by the Caratti family. Navarac was the registered proprietor of certain property near Esperance, known as the Young River Station (property). Navarac leased the property to Mammoth.
In or about mid‑November 2012, Mammoth purported to execute a sublease of the property to Granite Hill with effect from 28 February 2013. The document (Granite Hill Lease Document)[4] was executed by Granite Hill, and purportedly executed by Mammoth, in that Allen Caratti signed it as a purported director of Mammoth when he was not, and forged the signature of a director, his mother, Maddeleine.
[4] In the primary proceedings there were two versions of the alleged sublease by Mammoth to Granite Hill. The judge referred to these two versions as the 'GH version of the Granite Hill sublease' and the 'ABC version' (see, eg, primary decision [121], [288] - [289], [397]). The primary judge found that the material instrument binding on Mammoth was the former instrument, although it did not create a proprietary interest in favour of Granite Hill. It was that instrument which was relevant to the appeal, and which the plurality in the appeal decision (at [519]) referred to as the 'Granite Hill Lease Document'. These reasons, consistently with the plurality's reasons in the appeal decision, maintain that terminology.
In early to mid‑December 2012, Navarac negotiated a lease of the property to another company, Esperance Cattle Company Pty Ltd (Esperance). Navarac and Esperance executed a lease agreement of the property on 10 December 2012 (Esperance lease agreement).
Granite Hill commenced occupation of the property around 28 February 2013. There was a contest for physical occupation of the property between representatives of Esperance and representatives of Granite Hill in the early hours of 1 March 2013. Following that contest, Granite Hill ended up in physical possession of the property.[5]
[5] Primary decision [5], [165] - [166], [448] ‑ [450].
There emerged litigation between Granite Hill and Esperance as to who was entitled to the leasehold of the property. There were also claims for misleading or deceptive conduct by various parties. Ancillary disputes emerged as to which members of the Caratti family were officers and authorised agents of Navarac and Mammoth. The disputes fell for resolution in the primary proceedings.
As to the question of whether Esperance or Granite Hill was entitled to possession of the property, the primary judge found, in effect, that:
1.Esperance held the relevant proprietary interest in the property.
2.Granite Hill had no proprietary interest in the property under the Granite Hill Lease Document (or otherwise).
3.That was because although Granite Hill had the benefit of the statutory assumptions about execution of the Granite Hill Lease Document under s 128 of the Corporations Act 2001 (Cth), this did not confer a proprietary interest in the property in Granite Hill pursuant to the Granite Hill Lease Document.
4.Nevertheless, with the benefit of those statutory assumptions, Granite Hill was entitled to damages from Mammoth for breach of the Granite Hill Lease Document.
Procedurally, the question of whether Esperance or Granite Hill was entitled to legal possession of the property was dealt with by the judge by announcing and making orders as to possession on 7 March 2014, with publication of reasons to follow. On 7 March 2014, the primary judge made orders to the effect that Granite Hill give up possession of the property. The primary judge subsequently delivered reasons for judgment in the primary decision on 5 August 2014, following which a more complete set of orders was made, on 4 September 2014.
On 4 September 2014, the primary judge made a number of orders giving effect to his reasons for judgment in the primary decision. The prospect of appeals was evidently then foreshadowed, and the primary judge reserved for further determination the assessment of damages, to allow the parties adversely affected by his decision to appeal the primary decision. As noted earlier, there were appeals by Allen Caratti, Mammoth and Granite Hill, with Granite Hill also cross‑appealing in Allen Caratti's appeal.
It is convenient to mention here a matter raised by senior counsel for Granite Hill at the hearing of the appeals, which apparently was viewed by the other parties as an unexpected turn of events. Senior counsel for Granite Hill informed the court that although in its appeal it contended, in effect, that Granite Hill was entitled to a leasehold interest under the Granite Hill Lease Document, having been ordered by the primary judge to give up possession of the property in March 2014, it did not seek possession again if its appeal were successful. In that regard, senior counsel said:[6]
Can I just make some comments about the disposition of the case and the orders wanted … We asked to set aside orders 1, 2 and 3 of the orders made below and order 6, to delete the reference to order 3. So the effect of that is to remove the declaration that the lease document executed by [Esperance] is valid and enforceable and that to remove the effect that the [statutory] assumption only has a limited effect and that Granite Hill does pay [Esperance] damages for trespass to be assessed. We leave there order 4 which says:
'Mammoth … do pay Granite Hill damages for breach of sublease to be assessed.'
Now the point I'm making is that as a result of the Chief Justice's orders in March 2013 [sic - 7 March 2014], Granite Hill was required to vacate [the property] and it has done so. It maintains that it always had an entitlement to possession and, therefore, is not liable to pay damages [to Esperance] but it does not want to go back into possession of the lease so that it takes the view that the lease has, in fact, been terminated, there has been repudiatory conduct by Mammoth and Navarac, and that has been accepted by our conduct, and that the effect of this appeal is to remove the right of damages that [Esperance] might have for trespass. It's not that we want to go back into possession.
[6] Appeal ts 306 - 307.
It is convenient now to turn in more detail to the primary proceedings.

The primary proceedings

The primary judge gave an overview of the claims in the proceedings as follows.[7]

Esperance

[7] The following (at [16] ‑ [30]) is taken from the primary judge's summary of the claims in the primary decision [278] - [318], unless otherwise indicated.

Esperance, the plaintiff in the original action in the primary proceedings, claimed that it was the lessee of the property under the Esperance lease agreement. It alleged that Granite Hill's occupation of the property was wrongful, and sought an order for possession, mesne profits, or alternatively damages, or alternatively an account of profits. Although it joined Navarac and Mammoth as parties, it sought no relief against them.

Granite Hill

Granite Hill filed a defence and counterclaim to the action by Esperance. It also filed third party proceedings against Navarac, Mammoth, Allen and Maddeleine Caratti. The counterclaim against Esperance effectively incorporated its claims in the third party proceedings.[8]
[8] Granite Hill's defence to Esperance's claim and its counterclaim appear at BB 212 - 220. Granite Hill's incorporation into its counterclaim of its third party claim is in par 11; BB 219. In its prayer for relief in the counterclaim, by par D, Granite Hill claimed damages against Mammoth under s 236 of the Australian Consumer Law, further or alternatively, damages for breach of the Granite Hill Lease Document. Prayer for relief par E claimed damages against Allen Caratti under s 236 of the Australian Consumer Law.
Granite Hill pleaded, amongst other things, that it was entitled to possession of the property as it had been granted a sublease by Mammoth pursuant to the Granite Hill Lease Document.
In third party proceedings,[9] Granite Hill also alleged, in effect, that Allen Caratti had engaged in misleading or deceptive conduct by representing, falsely, that he was a director of Mammoth, that he was authorised to sign on behalf of Mammoth, that his signature bound Mammoth, and that the Granite Hill Lease Document would take effect as a 'valid document' as between Granite Hill and Mammoth. Granite Hill pleaded that these representations were false and misleading or deceptive in that Allen Caratti was not a director of Mammoth or an authorised agent of Mammoth when he executed the Granite Hill Lease Document.[10] Granite Hill also pleaded that by providing the Granite Hill Lease Document to it, Allen Caratti represented that the Granite Hill Lease Document was signed by the signatories whose names appeared on it, and that this representation was also false. Granite Hill alleged that it suffered loss and damage in reliance on the misrepresentations.
[9] See BB 227 - 242.
[10] Granite Hill's further amended statement of claim, pars 36, 37, read with par 9; BB 229, 238.
Granite Hill also claimed that Mammoth had engaged in misleading or deceptive conduct. Granite Hill claimed damages from Mammoth either for breach of the Granite Hill Lease Document, or for misleading or deceptive conduct, or both.
The judge characterised Granite Hill's claims (relevantly) as follows:[11]
If Granite Hill is not entitled to possession of [the property], it claims damages from Mammoth for breach of the sublease which it claims, and from Mammoth [and] Mr Allen Caratti … for misleading and deceptive conduct. (emphasis added)

Navarac and Mammoth

[11] Primary decision [6].

Navarac and Mammoth, in effect, admitted Esperance's claimed entitlement to the leasehold estate of the property. Navarac, Mammoth and Maddeleine denied Granite Hill's claims.
By their counterclaim in the third party proceedings, Navarac, Mammoth and Maddeleine (referred to by the primary judge as the 'Navarac parties') also claimed that the Granite Hill Lease Document was invalid.
Relevantly, Mammoth also pleaded, in effect, that if Allen Caratti had made the misleading or deceptive representations pleaded by Granite Hill against Allen Caratti, and if Granite Hill had relied on them as pleaded by Granite Hill, then Mammoth has suffered loss and damage by reason of:[12]
(a)any liability it had to Granite Hill; and
(b)the costs incurred by Mammoth in defending Granite Hill's claims.

Allen Caratti

[12] See also Mammoth's Further Amended Defence and Further Amended Counterclaim filed pursuant to leave given on 19 February 2014, pars 42 ‑ 45; BB 265 ‑ 267.

Allen Caratti pleaded that he was, at all material times, a director of (relevantly) Mammoth, and that Mammoth had granted a valid sublease to Granite Hill. He purported to admit Granite Hill's claim against Mammoth for misleading or deceptive conduct. He admitted that his conduct in signing the Granite Hill Lease Document gave rise to the representations alleged by Granite Hill.[13] However, he asserted that those representations were true. He did not admit that Granite Hill relied on the representations, or that it had suffered loss or damage as a consequence.
[13] See also par 36 of Allen Caratti's re‑amended defence to Granite Hill's further amended statement of claim, par 36; BB 248.

Allen Caratti also admitted in his defence to Granite Hill's third party claim that by delivering the Granite Hill Lease Document to Granite Hill, he represented that it had been signed by the signatories named on the document, and that such representation was misleading or deceptive because it had not been signed by Maddeleine.[14] However, he denied that Granite Hill relied on the representation or suffered loss or damage as a consequence of it.

Observations on Granite Hill's pleading

[14] See also par 37A of Allen Caratti's re‑amended defence to Granite Hill's further amended statement of claim; BB 248.

Granite Hill's statement of claim in the third party proceedings was to the effect that (1) Mammoth had granted it a sublease,[15] (2) the Esperance lease agreement was not operative,[16] (3) the sublease from Mammoth bound Navarac,[17] and (4) alternatively,[18] it had, relevantly, claims against Allen Caratti for misleading or deceptive conduct.[19] As noted earlier, the alleged misleading or deceptive conduct involved the making of misleading or deceptive representations.[20]
[15] Further amended statement of claim in the third party proceedings, pars 8 - 11; BB 228 - 229.
[16] Further amended statement of claim in the third party proceedings, pars 23 ‑ 28; BB 234 - 235.
[17] Further amended statement of claim in the third party proceedings, pars 25, 29; BB 234 - 235.
[18] Further amended statement of claim in the third party proceedings, par 30; BB 236.
[19] Further amended statement of claim in the third party proceedings, pars 36 ‑ 39; BB 238 - 239.
[20] Further amended statement of claim in the third party proceedings, pars 36 - 39; BB 238 - 239.
In general terms, Granite Hill pleaded reliance on the representations by, in effect, entering into possession, planting crops and incurring expenditure, and alleged that as a consequence, it suffered loss and damage.[21]
[21] Further amended statement of claim in the third party proceedings, pars 38 - 39; BB 239. In particulars filed 23 December 2013, Granite Hill particularised the damages it claimed against Mammoth, Maddeleine Caratti and Allen Caratti as '$2,460,000 for the loss of the opportunity to earn an annual profit of $615,000 for the years ending on 27 February 2015, 27 February 2016, 27 February 2017 and 27 February 2018. The basis for the calculation of the annual profit of $615,000 is set out in the expert report of Tim Johnston, dated 23 December 2013.'
As the primary judge indicated, Granite Hill also claimed damages against Mammoth for breach of the Granite Hill Lease Document,[22] However, Granite Hill did not plead in its statement of claim a breach of contract or breach of lease.[23] (It may be noted here that, in oral submissions in this application, senior counsel for Granite Hill at one point referred to the plea in pars 3(e), 3(f) and 3(g) of its reply.[24] However, that pleading does not refer to the Granite Hill Lease Document, as senior counsel appeared to acknowledge.)[25]
[22] Prayer for relief in Granite Hill's 'further amended statement of claim in the third party proceedings'; BB 242.
[23] Further amended statement of claim in the third party proceedings; BB 227 - 242.
[24] BB 270; ts 360.
[25] Appeal ts 363 - 367; see also primary decision [322].
The relief claimed by Granite Hill in the third party proceedings did not include a claim for specific performance of the Granite Hill Lease Document. Rather, it claimed:
A.A declaration to the effect that Esperance did not have any leasehold estate in the property or, alternatively, any leasehold estate which it had was subject to Granite Hill's estate as sublessee under the Granite Hill Lease Document.
B.As against Mammoth, damages under s 236 of the Australian Consumer Law and, further or alternatively, damages for breach of the Granite Hill Lease Document.
C.Against Allen Caratti, damages under s 236 of the Australian Consumer Law.
D.Against Maddeleine Caratti, damages under s 236 of the Australian Consumer Law.
E.Interest on all damages awarded.
F.The costs of the action, and the third party proceedings to be payable by the third party.

The judge's reservation of certain questions and the issues for determination by the judge

In the primary decision (referred to in more detail below) the primary judge said:[26]
At an early stage of the trial I made an order reserving for subsequent determination all questions relating to the quantum of any damages due from one party to these proceedings to another, or the amount of any profits for which one party is liable to account to another. However, in these proceedings it is necessary to identify the principles by which any such damages or profits would be assessed. For that reason it is necessary to make general findings with respect to Granite Hill's occupation and use of [the property]. (emphasis added)
[26] Primary decision [212].
This appears to be a reference to the order made by the primary judge on 17 February 2014,[27] pursuant to a minute which included the following:
[27] Trial ts 307.
1.Subject to order 2, there be a trial of all issues in the proceedings, including the following issues:
…
(c)whether [Granite Hill] has any entitlement pursuant to its third party statement of claim or counterclaim to recover damages against [Mammoth, Allen Caratti and Maddeleine Caratti];
(d)if so, the appropriate measure of such damages, and the basis for the calculation of such damages;
(e)whether [Navarac, Mammoth and Maddeleine Caratti] have any entitlement to recover damages against [Allen Caratti] …; and
(f)if so, the appropriate measure of such damages, and the basis for the calculation of such damages.
2.The following issue shall not be heard and determined at the trial which commenced on 17 February 2014:
…
(d)the amount of any damages for which [Mammoth, Allen Caratti and Maddeleine Caratti] may be liable to [Granite Hill];
(e)the amount of any damages for which [Allen Caratti] may be liable to [Navarac, Mammoth and Maddeleine Caratti].
As noted later, the judge (by order 13 of the orders of 4 September 2014), evidently regarded the trial as being a 'trial of … preliminary issues'.
In the primary decision, the primary judge identified that 17 issues 'require[d] determination', including, relevantly:[28]
(13)Is Granite Hill entitled to damages from Mammoth for breach of the Granite Hill sublease?
…
(15)Is Granite Hill entitled to damages from Mr Allen Caratti for misleading and deceptive conduct and if so what is the appropriate measure of such damages?
…
(17)Is Mammoth entitled to damages for misleading and deceptive conduct from Mr Allen Caratti, and if so, what is the appropriate measure of such damages?
[28] Primary decision [346].

The primary decision

Findings as to occupation, rent and related matters

In broad terms, it appears that the judge made findings to the following effect:[29]
[29] Primary decision [156], [164] - [166], [173], [179], [198], [203] - [204], [205] - [211].
1.On 25 January 2013, Mammoth invoiced Granite Hill for six months rental for the property from 28 February 2013 to 27 August 2013, in the sum of $357,500.
2.On 22 February 2013, Mammoth and Navarac executed a deed of surrender of the head lease from Navarac to Mammoth, to take effect from 28 February 2015.
3.On 25 February 2013, Granite Hill paid $357,500 into Mammoth's bank account for rent.
4.By about 28 February 2013, Granite Hill was in physical occupation of the property.
5.On 1 March 2013, representatives of Esperance went to the property, cut the chains on the gates and entered the property with a view to taking physical possession of the property. The attempt was unsuccessful, and Granite Hill remained in physical possession of the property until effect was given to the orders of the primary judge made on 7 March 2014.
6.On 7 March 2013, Mammoth and Navarac, by its directors John and Maddeleine Caratti, wrote to Granite Hill informing it, in effect, that Mammoth had not granted a sublease of the property to Granite Hill.
7.In August 2013, Mammoth by its solicitors, wrote to Granite Hill's solicitors effectively denying that Mammoth had granted a sublease to Granite Hill.
8.On 28 August 2013, Granite Hill paid the second half‑yearly rent instalment of $357,500 into a solicitor's trust account, and there were negotiations as to the terms on which it might be paid to Mammoth. Those negotiations broke down, and by the time of trial, the funds had been returned from the solicitor's trust account to Granite Hill.

The resolution of the competing claims - summary

In summary, the primary judge found, relevantly,[30] that:
1.Esperance was entitled to possession of the property under the Esperance lease agreement and was entitled to damages from Granite Hill for trespass;
2.Granite Hill had no proprietary interest in the property pursuant to the Granite Hill Lease Document;
3.although Granite Hill had no proprietary interest in the property, it was entitled to assume that Mammoth had duly executed a sublease in its favour, and Granite Hill was entitled to damages from Mammoth for breach of the Granite Hill Lease Document;[31]
4.Granite Hill's claim against Mammoth for misleading or deceptive conduct should be dismissed;
5.Granite Hill was entitled to damages from Allen Caratti for misleading or deceptive conduct; and
6.Mammoth is entitled to damages for misleading or deceptive conduct from Allen Caratti.

Granite Hill's claim against Mammoth for breach of sublease (issue (13))

[30] Primary decision [485].

[31] See also primary decision [436], [442].

As noted earlier, although Granite Hill had claimed damages for breach of the Granite Hill Lease document, it did not plead a breach of the Granite Hill Lease Document.
Also, although the judge found Mammoth to be liable for breach of the Granite Hill Lease Document, his Honour did not expressly identify any term of the Granite Hill Lease document that was breached, or the conduct of Mammoth said to constitute the breach, or when the breach occurred.
However, in relation to his finding that Granite Hill was entitled to damages from Mammoth for breach of the Granite Hill Lease Document, the primary judge said:[32]
I have … found that in these proceedings Granite Hill is entitled to rely upon the due execution of the [Granite Hill Lease Document], and that Mammoth cannot deny the execution of that document. It follows that Granite Hill is entitled to damages from Mammoth for breach of the sublease …
…
It follows from my conclusion that Granite Hill is entitled to rely upon the assumption of due execution of the [Granite Hill Lease Document] that it is entitled to damages from Mammoth for breach of that sublease. The conventional measure of damages will apply to the quantification of that claim, with the result that Granite Hill will be entitled to damages from Mammoth equal to the amount required to put Granite Hill in the position it would have been in if the Granite Hill sublease had been performed and it had been entitled to possession of [the property] in accordance with the terms of that sublease. (emphasis added)

Granite Hill's claim against Allen Caratti for misleading or deceptive conduct (issue (15))

[32] Primary decision [471], [475].

In relation to Granite Hill's claimed entitlement to damages from Allen Caratti for misleading or deceptive conduct, the primary judge referred to Granite Hill's misrepresentation claims to the effect that:[33]
1.Allen Caratti, by executing the Granite Hill Lease Document, represented that he was a director of Mammoth, that he was authorised to sign on behalf of Mammoth, that by his signature he was binding Mammoth to the terms of the document, and that the document would take effect as a 'valid document' as between Granite Hill and Mammoth; and
2.Allen Caratti, by providing the Granite Hill Lease Document to Granite Hill, represented that the instrument had been signed by the signatories that appeared on the face of the document.
[33] Primary decision [479].
The primary judge continued:[34]
In his defence Mr Allen Caratti admits the representations alleged by Granite Hill, and, in the case of the representation relating to the execution of the [Granite Hill Lease Document], admits that it was misleading or deceptive. Although he denies the misleading and deceptive character of the representations made with respect to his capacity to act on behalf of Mammoth, it follows from the findings I have made that those representations were also misleading and deceptive. I make that finding notwithstanding my conclusion that Granite Hill is entitled to rely on the statutory assumption of due execution by Mammoth because, as I have also found, the benefit of that statutory assumption is not equivalent to actual execution by Mammoth, which was the representation effectively made by Mr Allen Caratti.
There is no doubt that the representations attributed to Mr Allen Caratti were made by him in trade or commerce. Nor is there any doubt that Granite Hill acted in reliance upon those representations. The precise extent of Granite Hill's reliance upon those representations will be a matter to be determined in the course of the quantification of its claim for damages, if [Granite Hill] pursues that claim having regard to its entitlement to damages from Mammoth in an amount equivalent to the amount required to put it in the position it would have been in had the sublease been performed. If [Granite Hill] does wish to pursue its claim for damages against Mr Allen Caratti for misleading and deceptive conduct, the conventional measure will apply to the quantification of those damages, which will be assessed by reference to the amount required to put Granite Hill in the position in which it would have been if Mr Allen Caratti had not engaged in the misleading and deceptive conduct which I have found. (emphasis added)

Mammoth's claims against Allen Caratti for misleading or deceptive conduct (issue (17))

[34] Primary decision [480] - [481].

In relation to Mammoth's claimed entitlement to damages for misleading or deceptive conduct from Allen Caratti, the primary judge said, relevantly:[35]
[A]s I have found that the representations made by Mr Allen Caratti, at the time he executed the [Granite Hill Lease Document] and provided it to Granite Hill, were misleading and deceptive, it follows that Mammoth is also entitled to claim damages if it suffered loss by reason of that conduct. As I have found that Mr Allen Caratti's purported but unauthorised execution of the [Granite Hill Lease Document] has rendered Mammoth liable to Granite Hill in damages for breach of that sublease, it follows that Mammoth's liability to Granite Hill was relevantly caused by Mr Allen Caratti's misleading and deceptive conduct, and it is entitled to recover those damages from Mr Allen Caratti, together with its costs of defending Granite Hill's claim and any costs it is ordered to pay Granite Hill. (emphasis added)

General observations

[35] Primary decision [484].

By way of overall general observations, his Honour also added:[36]
In more general terms, [Esperance] will recover damages from Granite Hill in respect of any losses which it suffered which are the natural and probable consequence of Granite Hill's trespass. However, Granite Hill is entitled to damages from Mammoth in the amount necessary to put Granite Hill in the position in which it would have been if the sublease from Mammoth had been performed. On the face of it, that amount will include any and all of Granite Hill's liability to [Esperance]. Mammoth is in turn entitled to damages for misleading and deceptive conduct from Mr Allen Caratti which, on the face of it, would extend to and include all of its liability to Granite Hill. In addition, Mr Allen Caratti is liable to Granite Hill in damages for misleading and deceptive conduct.
So, in general terms, subject to the continuing solvency of all relevant parties, [Esperance] will recoup its losses from Granite Hill, Granite Hill will recoup its losses from Mammoth, and Mammoth will recoup its losses from Mr Allen Caratti. Given Mr Allen Caratti's role in the causation of those losses, and the manner in which he has conducted his defence of these proceedings, that outcome appears to me to be both just and appropriate. (emphasis added)
[36] Primary decision [486] - [487].

Orders of the primary judge on 4 September 2014

On 4 September 2014, the primary judge made, relevantly, the following orders:
1.The lease document executed by [Esperance] and [Navarac] on 10 December 2012 is valid and enforceable; and
2.[Granite Hill] is entitled to assume under s 128 of the Corporations Act 2001 (Cth) that [Mammoth] duly executed a sublease in respect of the [property] in or about November 2012 in its favour [being the Granite Hill Lease Document] … and [Mammoth] is prevented from denying that assumption, but Granite Hill has no proprietary interest in that land.
…
3.Granite Hill does pay [Esperance] damages for trespass to be assessed;
4.[Mammoth] … does pay Granite Hill damages for breach of the [Granite Hill Lease Document] to be assessed;
5.[Allen Caratti] does pay Granite Hill and [Mammoth] … damages for misleading and deceptive conduct under s 236 of the Australian Consumer Law (Cth) to be assessed;
6.For the purposes of orders 3, 4 and 5 above, the assessment of damages be deferred until the determination of [the appeals to the Court of Appeal];
7.The question of whether interest is to be included as a component of the damages to be assessed or pursuant to statute be reserved to that assessment;
8.[Esperance's] claim against Granite Hill for mesne profits (beyond damages for trespass) be dismissed;
9.[Esperance's] claims against Granite Hill for an account of profits be dismissed;
…
12.Granite Hill's claim against [Mammoth] … and [Maddeleine] … for misleading and deceptive conduct be dismissed; and
13.The costs of the trial of the preliminary issues are reserved.
Section 236 of the Australian Consumer Law (Cth), to which order 5 refers, is a reference to s 236 in sch 2 to the Competition and Consumer Act 2010 (Cth). The relevant provision is set out later in these reasons.

The appeals to this court[37]

Allen Caratti's appeal

[37] See appeal decision [192] ‑ [195], [308] ‑ [312].

Allen Caratti had four grounds of appeal centring upon his alleged position or authority as a director of Mammoth. As noted in the appeal decision, they were as follows:[38]
Ground 1 alleges that the trial judge erred in holding that Allen Caratti was validly removed as a director of Mammoth in May 2002.
Ground 2 alleges that his Honour erred in holding that Allen Caratti was precluded by the Deed of Compromise from challenging that he was validly removed as a director of Navarac and Mammoth in May 2002.
Ground 3 alleges that '[i]n the premises of Grounds 1 and 2', the trial judge erred in failing to find that Allen Caratti was a director of Mammoth in October/November 2012, and so did not find, as he should have, that 'Allen Caratti had duly executed the [Granite Hill Lease Document] by signing it in that capacity'. The further minute seeks to delete the words 'and signing for his fellow director Maddeleine [Caratti] with her authority', which appear in the original ground 3 after the word 'capacity'.
Ground 4 alleges that [the judge] failed to exercise his discretion properly or at all in refusing at trial Allen Caratti's proposed amendments to plead, in the alternative, that he was a de facto director of Mammoth.
[38] Appeal decision [192] - [195].
Allen Caratti also sought leave to amend to add a new ground of appeal, proposed ground 5, in the following terms:
37.In the judgment at [479] and [480] the trial judge found the following five grounds of misleading or deceptive conduct established against Allen Caratti vis-à-vis Granite Hill in relation to the [Granite Hill Lease Document], namely that he had represented that:
37.1he was a director of Mammoth;
37.2he was authorised to sign on behalf of Mammoth;
37.3by his signature on the sublease he was binding Mammoth to the terms of the sublease;
37.4the sublease would take effect and would bind Mammoth;
37.5by providing the [Granite Hill Lease Document] to it, he represented that the lease had been signed by the signatories who appeared on the face of the lease.
38.In the result, the trial judge made order 5 on 4 September 2014.
39.In the premise of:
39.1the preceding grounds of appeal no 1 to 3 succeeding, order 5 stands to be amended to reflect that it refers only to the findings in paragraph 37.5 above; or
39.2[Granite Hill's appeal] succeeding, order 5 stands to be set aside.

In his 'orders wanted' in the appeal,[39] Allen Caratti referred to pars (a), (b), (c), (d) and (g) of [485] of the primary decision. Those paragraphs related to findings to the effect that Mammoth pay damages to Granite Hill for breach of the Granite Hill Lease Document (primary decision [485(d)]) and that Allen Caratti pay damages to Granite Hill and Mammoth for misleading or deceptive conduct (primary decision [485(e) and (g)]).

Mammoth's appeal

[39] Allen Caratti's appeal CACV 21 of 2014; WB 40 ‑ 41.

Mammoth alleged that the judge erred in finding that Granite Hill was entitled to assume, under s 128 and s 129(5) of the Corporations Act, that Mammoth had duly executed the Granite Hill Lease Document, and that Mammoth was prevented from denying that assumption. Mammoth sought orders in the appeal to the effect that pars 2 and 4 of the primary judge's orders of 4 September 2014 be set aside, and that Granite Hill's counterclaim and third party claim be dismissed.[40]

Granite Hill's appeal and Granite Hill's cross‑appeal in Allen Caratti's appeal

[40] Mammoth's appeal CACV 112 of 2014; WB 7, 26.

As noted in the appeal decision,[41] Granite Hill alleged:
(a)The learned judge erred in law by construing sections 128 and 129(5) of the Corporations Act 2001 (Cth) so that the statutory assumption of due execution of the [Granite Hill Lease Document] only applied to regulate the legal rights and obligations as between [Granite Hill] and [Mammoth], and had no application to the rights and obligations of other parties to the proceedings.
(b)The learned judge should have held that, on a proper construction of sections 128 and 129(5) of the Corporations Act 2001 (Cth), the statutory assumption of due execution of the [Granite Hill Lease Document] applied to regulate the legal rights and obligations of all parties to the proceedings.
[41] Appeal decision [311].

The Court of Appeal decision of 27 May 2016

This court delivered reasons for decision on 27 May 2016. In substance, this court found that the Granite Hill Lease Document was binding and effective to grant Granite Hill an equitable lease of the property in priority to the interest obtained by Esperance under the Esperance lease agreement. The court allowed Granite Hill's appeal and cross‑appeal, and dismissed the other appeals, and dismissed Allen Caratti's notice of contention.
In relation to Allen Caratti's application to amend to introduce proposed ground 5, Buss JA (Newnes & Murphy JJA relevantly agreeing) said:[42]
[42] Appeal decision [299] - [304].
The trial judge found that Allen Caratti had engaged in misleading or deceptive conduct, in trade or commerce, in relation to the [Granite Hill Lease Document], in that he falsely represented:
(a)that he was a director of Mammoth;
(b)that he was authorised to sign on behalf of Mammoth;
(c)by his signature on the [Granite Hill Lease Document], that he was binding Mammoth to the terms of the sublease;
(d)that the sublease would take effect and would bind Mammoth; and
(e)by providing Granite Hill with the [Granite Hill Lease Document], that the sublease had been signed by the signatories who appeared on the face of the document [479] - [480].
After publishing his reasons for judgment, the trial judge made a number of orders, including order 5 as follows:
'Allen Bruce Caratti does pay Granite Hill and Mammoth … damages for misleading and deceptive conduct under s 236 of the Australian Consumer Law (Cth) to be assessed.'
Proposed ground 5 is fundamentally misconceived. It is not, in substance, a ground of appeal. Rather, it foreshadows proposed amendments to an order made by the trial judge if this court decides that Allen Caratti's appeal (CACV 21 of 2014) or Granite Hill's appeal (CACV 120 of 2014) should be allowed.
In any event, in proposed ground 5, Allen Caratti contends that '[i]n the premise of … the preceding grounds of appeal no 1 to 3 succeeding, order 5 stands to be amended to reflect that it refers only to the findings [that, by providing Granite Hill with the [Granite Hill Lease Document], Allen Caratti falsely represented that the sublease had been signed by the signatories who appeared on the face of the document]'. I have decided that grounds 1, 2 and 3 are without merit. This aspect of proposed ground 5 therefore falls away.
But anyway, Allen Caratti's contention is flawed because order 5 does not refer to any findings made by the trial judge. Order 5 merely requires Allen Caratti to pay damages to Granite Hill and Mammoth, for misleading and deceptive conduct, 'to be assessed'. The assessment of damages must be made by reference to his Honour's relevant findings and conclusions, subject to any orders this court may make in deciding or disposing of the appeals. I note that Allen Caratti does not challenge, in grounds 1, 2 and 3 or any other grounds, his Honour's findings that, by providing Granite Hill with the [Granite Hill Lease Document], Allen Caratti falsely represented that the sublease had been signed by the signatories who appeared on the face of the document.
Further and in any event, in proposed ground 5, Allen Caratti also contends that '[i]n the premise of … appeal CACV 120 of 2014 [that is, Granite Hill's appeal] succeeding, order 5 stands to be set aside'. As I will recount later in these reasons, Granite Hill's cross-appeal in CACV 21 of 2014 and its appeal in CACV 120 of 2014 should be allowed. The parties will be heard as to the precise form of the orders that should be made. But anyway, Allen Caratti's contention is flawed, generally for the reasons I have given at [303] above in relation to his other contention. (emphasis added)

The hearing before orders made on 27 May 2016

Following the delivery of reasons in the appeal decision on 27 May 2016, the parties made submissions as to appropriate final orders. It was common ground that this court should set aside orders 1 ‑ 3 of the primary judge's orders of 4 September 2014.
Counsel for Allen Caratti also submitted that in addition to setting aside orders 1 ‑ 3 of the primary judge's orders, this court should also set aside orders 4, 5 and 6 made by the primary judge on 4 September 2014. The submissions included, relevantly, those in the following exchange:[43]
[43] Appeal ts 328 - 330.
METAXAS, MR: Paragraph 4 should be set aside because what has happened is that Granite Hill received the lease that it contracted with - - -
…
METAXAS, MR: … [P]aragraph 5 follows on. So what happened is, as a result of the orders made by this court or that will be made by this court, the decision is that Granite Hill should have had - or did have a lease that would have given it a right to occupy the [property] for the period of the lease, five years. The only reason that that didn't eventuate was because of the orders made by the Chief Justice that put Granite Hill out and gave possession to [Esperance].
So what we say is that the basis of the damages claim - the basis of the order for damages made by the Chief Justice is that, on his reasoning, Granite Hill never got - didn't get the sublease that it contracted to receive. But the effect of the orders of this court will be that it did and, therefore, the basis upon which damages should be paid to Granite Hill for breach of the sublease, we say, disappears.
…
METAXAS, MR: … [T]his court's orders do say that Mammoth - sorry, that Granite Hill was entitled by its sublease to occupy the [property] in the context of the dispute or competing claim from [Esperance]. And that's ‑ ‑ ‑
…
- - - the fundamental difference between - - -
…
- - - this decision and the decision below.
BUSS JA: Well, that's something that may go to the quantum of damages and, no doubt, will, but it doesn't affect the question as to whether there has been a breach or not. So, it's, really, something that goes to quantum, and that's something that hasn't been determined by the trial judge yet.
METAXAS, MR: Well, my submission is it does go to the quantum, that there is no breach. If they - if Granite Hill was entitled to occupancy, there was no breach. The fact that it had to come to court to get the right to occupy isn't damages. That goes to an issue of cost.
…
BUSS JA: And paragraph 6?
METAXAS, MR: If there's no damages, then there's nothing to be deferred. [Esperance's] damages are the damages that were under the orders made by the Chief Justice, the damages to be initially assessed then the damages suffered by Granite Hill and then the liability of the parties to pay those damages.
BUSS JA: So that's the same point, really.
METAXAS, MR: Yes.

Orders of the Court of Appeal on 27 May 2016

On 27 May 2016, the Court of Appeal ordered, in effect, that Granite Hill's appeal and cross‑appeal be allowed, and that the other appeals and the notice of contention be dismissed.
The court relevantly ordered:
3.Orders 1-3 of the orders made by the Chief Justice on 4 September 2014 (the 'Trial Orders') be set aside, and order 6 of the Trial Orders be amended to delete reference to Order 3 of the Trial Orders.
4.In lieu of the Trial Orders set aside by reason of Order 3 above:
(a)the Court declares that, in the period from 1 March 2013 to 7 March 2014, by reason of sections 128 and 129(5) of the Corporations Act 2001 (Cth), Granite Hill Pty Ltd ('Granite Hill') was entitled to enforce [the Granite Hill Lease Document], as against [Esperance], [Navarac] and [Mammoth] … (the 'Sub-Lease') as if it had been duly executed by Mammoth;
(b)the Court declares that, in the period from 1 March 2013 to 7 March 2014, any leasehold estate which [Esperance] had in [the property] was subject to Granite Hill's estate as sub-lessee under the Sub-Lease;
(c)the Court declares that, for the term of the Sub-Lease, Granite Hill was entitled to possession of the Young River Station;
(d)the Court orders that [Esperance's] action against Granite Hill be dismissed.
…
8.The question of costs of the trial of the preliminary issues be reserved to the trial judge.
9.Each party has liberty to apply on 7 days' written notice to the other parties in relation to Orders 4 and 5 and Order 6 as amended of the Trial Orders.
In oral reasons on 27 May 2016 in relation to these orders, Buss JA (speaking for the court) said, relevantly:
The court is satisfied that the orders that it has just made in the appeal proceedings are just and equitable as between the parties. Any issues arising from orders 4, 5 and 6 of the trial orders, in particular their appropriateness in light of this court's orders and reasons for judgment, have not been adequately addressed by the parties and, accordingly, we have reserved liberty to apply, if necessary. (emphasis added)

The liberty to apply and Allen Caratti's application

Liberty to apply

As noted earlier, order 9 of this court's orders on 27 May 2016 provided for liberty to apply (in relation to orders 4 and 5, and 6 as amended, of the 'Trial Orders'). In other words, the liberty to apply was in relation to the following orders of the primary judge on 4 September 2014 (as amended by this court):
4.[Mammoth] … does pay [Granite Hill] damages for breach of the Sublease to be assessed.
5.[Allen Caratti] does pay [Granite Hill] and [Mammoth] … damages for misleading and deceptive conduct under s 236 of the Australian Consumer Law (Cth) to be assessed.
6.For the purposes of orders 4 and 5 above, the assessment of damages be deferred until the determination of [the appeals to the Court of Appeal].

Allen Caratti's application in reliance on the liberty to apply

Allen Caratti's application in each of the appeals seeks, relevantly, the following orders:
1.Orders [sic] 5 of the orders made [by the primary judge] on 4 September 2014 be set aside and order 6 of those orders be amended by deleting 'and 5' in line 1.
2.In the alternative to 1 above[,] orders 4, 5 and 6 of the orders made on 4 September 2014 [by the primary judge] be set aside.
3.The action be otherwise remitted to a judge of the Court other than the Chief Justice for further hearing.

Evidence in support of the application

Mr Alan Rumsley, a solicitor appointed by Allen Caratti on 19 April 2017, swore an affidavit in support of the application dated 10 May 2017. Amongst other things, Mr Rumsley stated:
The reasons for any delay in seeking to exercise the liberty to apply under order 9, is:
a.the applications for special leave [by Mammoth and Esperance to the High Court of Australia] were not resolved until 9 November 2016;
b.settlement discussions between Mr Caratti and Mr Bott [of Granite Hill] took place after 9 November 2016, until early 2017;
c.after settlement discussions between Mr Caratti and Mr Bott were concluded Mr Caratti and his lawyers were waiting until 27 March 2017, for the lawyers for Granite Hill … to advise if they intended to proceed and if so how;
d.from 3 April 2017 until 20 April 2017, Mr Caratti's lawyers, including counsel had to consider the effect of each of the changes to the position of the parties … as well as the approach proposed by Granite Hill.
The reference in par (d) above to the 'position of the parties' is a reference by Mr Rumsley to the following:
1.Orders made by the Chief Justice in other proceedings involving Navarac, Esperance and Mr Blair, CIV 1775 of 2015, in which Esperance's claims were dismissed against Navarac, and Esperance and Mr Blair were ordered to pay Navarac $1 million and Esperance was ordered to deliver up vacant possession of the premises.
2.A statement said to have been made by senior counsel for Mammoth and Navarac on 27 May 2016 to the effect that 'both parties are agreed that the lease came to an end on 23 September 2015'.
3.The appointment of liquidators to Esperance on 13 October 2016.
Allen Caratti also sought to rely on an affidavit sworn by Mr A Metaxas on 14 November 2017 which, in effect, annexed various court records and other documents indicating the most recent course of events in the primary proceedings relevant to the present application.
Mr Metaxas's affidavit is admissible on the application as it effectively brings the court up‑to‑date with the present position in the primary proceedings. Insofar as Granite Hill objected to its receipt, the objection is dismissed.
Granite Hill also contended that Mr Rumsley's affidavit, insofar as he deposed to settlement discussions between Allen Caratti and Mr Bott of Granite Hill, was inadmissible because it was hearsay, and because it referred to 'without prejudice' communications.[44] Each basis of the objection should be rejected. Hearsay evidence is admissible on an interlocutory application. Also, the fact of the settlement negotiations is relevant to the question of delay, and evidence of that fact does not infringe the principle that statements made without prejudice in an attempt to settle a dispute or action are privileged and, on that account (generally speaking) excluded from evidence.[45]
[44] Granite Hill's written submissions, par 3(e).
[45] As to without prejudice communications see Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 [91] ‑ [95]; see also, generally, Civil Procedure Western Australia [26.4.10].

Parties' submissions

Allen Caratti's submissions

Allen Caratti's written submissions were organised into five main categories - stay, orders sought, Granite Hill's damages claim, Mammoth's damages claim, and remitter.

Stay

In written submissions,[46] Allen Caratti contends that the primary proceedings should be stayed pending the outcome of the present applications. He also submits that there are other 'unresolved matters' concerning liability for damages as between Granite Hill and Mammoth, which make it inappropriate for the primary judge 'to proceed with a process termed "an assessment of damages"'.

Orders sought by Allen Caratti

[46] Allen Caratti's written submissions, pars 9 ‑ 11.

Allen Caratti submits:[47]
1.The Court of Appeal should make orders that all damages claims against him be dismissed.
2.The misleading and deceptive conduct found against him did not cause Granite Hill or Mammoth any recoverable loss.
3.Mammoth expressly claims that the damages should include the costs of defending Granite Hill's claims against it. However, legal costs incurred in connection with litigation are not recoverable as damages, in either that, or related, litigation against a party to that litigation: Grainger v Williams;[48] McCourt v Cranston;[49] Queanbeyan Leagues Club Ltd v Poldune Pty Ltd.[50]
4.The 'issues of costs orders should only be considered once damages issues have been decided'.
5.Alternatively, the Court of Appeal should set aside the relevant orders and remit issues concerning any liability for damages and their assessment to a trial judge other than the Chief Justice.

Granite Hill's damages claim against Allen Caratti

[47] Allen Caratti's written submissions, pars 13 - 18.

[48] Grainger v Williams [2009] WASCA 60 [203].

[49] McCourt v Cranston [2009] WASC 56 (S) [16] ‑ [26].

[50] Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 [34] ‑ [45].

Allen Caratti submits, in essence, the following.[51]
[51] Allen Caratti's written submissions, pars 13 - 22 (where the numbering of the paragraphs in the written submission, after par 19, restarts at par 13).
The primary judge's findings to the effect that Allen Caratti engaged in misleading or deceptive conduct in relation to the Granite Hill Lease Document, by representing that he was a director of Mammoth, that he was authorised to sign on behalf of Mammoth, that by his signature he was binding Mammoth to the terms of the instrument, that the instrument would take effect and would bind Mammoth, and that it had been signed by the signatories who appeared on the face of the instrument, are all 'immaterial' findings. The findings are said to be 'immaterial' in light of this court's decision that the Granite Hill Lease Document was binding in equity on Mammoth, and that the Granite Hill Lease Document is to be treated as if it were duly executed by Mammoth.
Allen Caratti submits that Granite Hill should still be entitled to damages from Mammoth for breach of the Granite Hill Lease Document, but those damages would no longer include any liability of Granite Hill to Esperance '[because] there can be no such liability'.

Mammoth's damages claim against Allen Caratti[52]

[52] Allen Caratti's written submissions, pars 23 - 45.

Allen Caratti submits that, in summary, his position is that Mammoth is liable to Granite Hill for breach of contract, and Mammoth is solely to blame for the breach. As a matter of law, it had been bound at all material times to sublease the property to Granite Hill, and '[i]n the circumstances of the case, it should have at all material times acted accordingly'.
It is submitted that Mammoth claimed damages against Allen Caratti on the basis of:
conditional and reflective loss, namely if Mammoth … was found liable to Granite Hill on the basis of the misleading or deceptive conduct on the part of Allen Caratti and relied upon by Granite Hill, then that conduct also caused [Mammoth] loss … There was no plea of damages by Mammoth … against Allen on the basis that it was bound by the [Granite Hill Lease Document] put in place by Allen Caratti on its behalf. (original emphasis)
It is contended that on the facts found by the primary judge, Allen Caratti had 'fully concluded the sublease agreement between [Mammoth] and Granite Hill', and all that was lacking, 'in a formal sense', was a sublease document signed by the directors of Mammoth. It is alleged that Granite Hill could always have sued Mammoth for specific performance.
Allen Caratti also makes a variety of submissions concerning certain facts of the case in support of an allegation that:
There was simply no reasonable basis for Mammoth … to reject the deal Allen Caratti had concluded through the sublease between Mammoth … and Granite Hill. Mammoth … through Maddeleine and Aaron Caratti acted inconsistently with this deal, and Mammoth … should bear the consequences, being a liability in damages to Granite Hill, as found by the Trial Judge and not disturbed on appeal. Mammoth … should not be allowed to foist any of this liability to Granite Hill on to Allen Caratti by means of a damages claim against him.

Reference is made to McGregor on Damages (18th ed) [17‑065]:
Where the now claimant has unsuccessfully defended a civil action, his claim for costs will fail if the defence is held unreasonable. As was said in Short v Kalloway [(1839) 11 A&E 29, 31]:
'no person has a right to inflame his own account against another by incurring additional expense in the unrighteous resistance to an action which he cannot defend.'

Remitter to a different judge

Allen Caratti contends that if a remitter is to occur, it should be to a different trial judge. It is submitted that the primary judge made strong and far‑reaching credibility and character findings adverse to Allen Caratti.[53] It is submitted that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it.[54] There is no allegation of actual bias.
[53] Reference was made, in particular, to primary decision [10], [43] - [48], [50] - [51], [133], [487].
[54] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 ‑ 294; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 258 ‑ 259; McCreed v R [2003] WASCA 275; (2003) 27 WAR 554 [8].
Allen Caratti submits:
On any factual issues which may arise in damages claims against him, Allen Caratti will be a key, and with respect, obvious witness.
The further part of the hearing at trial level requires further and fresh determinations by the Judge hearing that part of the case. There is no relevant 'necessity' that the Trial Judge should continue sitting for that process. After the handing down of the decision of the Court of Appeal in this matter, the Trial Judge has only made formal orders for the further conduct of the case.

Navarac's and Mammoth's submissions

Mammoth and Navarac referred to, and relied upon, an affidavit sworn by their solicitor, Ms Tantiprasut, on 12 July 2017. They submitted, in effect, that:
1.The application is not within the scope of the liberty to apply, including on the basis that it is tantamount to an application to advance a new ground of appeal in terms of the previously proposed ground 5, which had been dismissed by this court in the appeal decision, and on the basis that it is too late to bring the application.
2.The findings that Allen Caratti engaged in misleading or deceptive conduct were not challenged in the appeals.
3.The unchallenged findings were the bases for the orders relating to the assessment of damages in favour of Mammoth and Granite Hill.
Mammoth and Navarac contend that the decisions in McCourt and Grainger are distinguishable. They also submit that Templeman J's decision in McCourt was not followed by the Full Court of the Federal Court in Gray v Sirtex Medical Ltd.[55]
[55] Gray v Sirtex Medical Ltd [2011] FCAFC 40; (2011) 193 FCR 1 [41].
They submit that:
[In Grainger, McLure JA] spoke only of the general rule in litigation between parties seeking to vindicate a cause of action, as against the present case where [Allen Caratti's] conduct cause[d] loss to Mammoth, being the costs of the action between it and Granite Hill. The costs are not an incident of the vindication of a claim, but part of the damages claimed.
Mammoth and Navarac also submit that there is no basis for a stay or to remit the matter to a different trial judge. As to the latter, they say that Allen Caratti has failed, ever since the delivery of the primary judge's reasons on 5 August 2014, to ask the primary judge to recuse himself. They submit that any such application should have been made directly to the primary judge himself: Australian National Industries Ltd v Spedley Securities Ltd (in liq);[56] Barton v Walker[57] and Bainton v Rajski.[58]

Granite Hill's submissions

[56] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 436.

[57] Barton v Walker [1979] 2 NSWLR 740, 749.

[58] Bainton v Rajski (1992) 29 NSWLR 539, 544.

Granite Hill contends, in effect, that:
1.The liberty to apply was required to be exercised within a reasonable time, and there has been substantial and unexplained delay in making the application, and so the liberty has now expired.
2.The applications seek to revisit matters already previously determined. At the hearing on 27 May 2016, when Allen Caratti's counsel sought orders to the same effect, Buss JA responded to that submission by stating that the issue was reserved to the assessment of damages. Also, the grounds for the present application are the same as those in proposed ground 5 of Allen Caratti's appeal, which was dismissed.
3.Allen Caratti accepted that he acted in a manner which was misleading or deceptive towards Granite Hill, and there are no challenges to the trial judge's findings about his misleading or deceptive conduct.
4.There is no demonstrated basis for a stay of the trial proceedings.
5.Allen Caratti's contention that his misleading or deceptive conduct did not occasion Granite Hill any loss is an argument for the assessment of damages, which is yet to occur.
6.In any event, Granite Hill says that the submission that it did not suffer loss or damage is without merit in that:
If Allen Caratti had not acted in a misleading or deceptive fashion, and had said plainly that he did not have any actual authority to enter the sublease, Granite Hill would not have become embroiled in the disputes which have occurred. Granite Hill would not have entered the sublease, and would not have purchased cattle and entered into possession of [the property], only to be removed from that property by order of the court one year into the term of the sublease.
7.Allen Caratti's submissions make other points that were not the subject of a ground of appeal, and which appear to raise new points never ventilated in court.
8.There is no basis for the alternative relief sought in the application to set aside trial orders 4 and 6, as well as trial order 5. Trial order 4 relates to the damages payable by Mammoth to Granite Hill, which does not concern Allen Caratti, and he has no standing to challenge it. Trial order 6 is a procedural provision about the timing of the assessment of damages and its force has been spent.
9.There are no grounds to remit the matter to a different judge. The primary judge performed his functions as a trial judge, and no challenge was made in the appeal to his findings on the basis that he ought to have regarded Allen Caratti as a credible witness. Also, there was no suggestion of apprehended bias against the primary judge at the trial, and any application ought to have been made to the primary judge in the first instance.

Statutory provisions

Section 18 of the Australian Consumer Law, which is in Chapter 2, provides as follows.
18Misleading or deceptive conduct
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2)Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
…
Section 236 of the Australian Consumer Law provides as follows.
236Actions for damages
(1)If:
(a)a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b)the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
(2)An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
As with its statutory predecessor, s 82 of the Trade Practices Act 1974 (Cth), loss or damage is the gist of the statutory cause of action.[59]
[59] As to s 82 of the Trade Practices Act see Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 [38], [41], [76], [106].
Section 137B of the Competition and Consumer Act provides:
137BReduction of the amount of loss or damage if the claimant fails to take reasonable care
If:
(a)a person (the claimant) makes a claim under subsection 236(1) of the Australian Consumer Law in relation to economic loss, or damage to property, suffered by the claimant because of the conduct of another person; and
(b)the conduct contravened section 18 of the Australian Consumer Law; and
(c)the claimant suffered the loss or damage as result:
(i)partly of the claimant's failure to take reasonable care; and
(ii)partly of the conduct of the other person; and
(d)the other person did not intend to cause the loss or damage and did not fraudulently cause the loss or damage;
the amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage.

Disposition

The orders the subject of the application

It is convenient to recall that the orders the subject of the application are:
4.[Mammoth] does pay Granite Hill damages for breach of the [Granite Hill Lease Document] to be assessed.
5.[Allen Caratti] does pay Granite Hill and [Mammoth] … damages for misleading and deceptive conduct under s 236 of the Australian Consumer Law (Cth) to be assessed.
6.For the purposes of orders 4 and 5 above, the assessment of damages be deferred until the determination of [the appeals to the Court of Appeal].

Liberty to apply engaged

The relevant principles have been summarised by Newnes JA in Cameron v Renouf.[60] The scope and effect of an order giving liberty to apply depends upon the proper construction of the order in the context in which it has been made.
[60] Cameron v Renouf [2008] WASC 60 [28] ‑ [31].
In the present case, the liberty to apply in par 9 of the court's orders of 27 May 2016 is, on its proper construction, an order reserving for further consideration the appropriateness of the continued operation of orders 4, 5 and 6 (as amended) of the primary judge's orders of 4 September 2014.[61]
[61] As to the reservation of orders for further consideration, see, eg, Australian Hardboards Ltd v Hudson Group Ltd [2007] NSWSCA 104; (2007) 70 NSWLR 201 [72] ‑ [74].
That is evident from its terms read in the context of the oral reasons given on 27 May 2016 for the making of the order giving liberty to apply (see [57] above). The appeal decision (particularly at [304]) provides further context confirming the correctness of that conclusion.
For the reasons given in [92] ‑ [119] below, there is some merit in the application, and it is in the interests of justice, particularly in the context of a long‑running and difficult case such as this one, for the application to be determined on its merits, notwithstanding the lateness of the application.

An order for assessment of damages

When the judge made dispositive orders on 4 September 2014, his Honour may be taken to have proceeded on the conventional basis that there should not be an order for an inquiry as to damages unless there is some evidence of damage, or at least some circumstances suggesting that damage is likely to have occurred. In OzEcom v Hudson Investment Group,[62] McDougall J said:
The relevant principles were not in dispute … For example, in Enkelmann v Glissan (1982) 2 BPR 9640, in dealing with a tenant’s claim for damages through having been wrongfully locked out overnight, Rath J said that there should be no order for an inquiry as to damages unless there was some evidence of damage, or some circumstances suggesting that damage was likely to have occurred:
'Before an order is made for an inquiry as to damages, the court requires to be satisfied that it is proper to direct such an inquiry, and ordinarily the court will not be so satisfied unless there is before the court evidence of damage, or there are circumstances indicative of a probability of damage.'
Hodgson J expressed a similar view in Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (No2) (1989) 98 FLR 324 at 325. His Honour said that there must be proof - if only at a prima facie level - of damage before an inquiry would be ordered; and that this was so even where damages were not of the gist of the action, so that a cause of action could be made out without proof of actual damage:
'… The party seeking the inquiry as to damages does have to prove that it has suffered some damage. This may only be perhaps a prima facie case of some damage, but at least a prima facie case of some damage must be shown. In my view, this is the case, not only where the existence of damage is part of the [cause] of action, but is also the case where a cause of action is made out although no actual damage is suffered.
Accordingly, I adhere to the view … that without at least a prima facie case of damage, the court should not order any inquiry as to damages.'
(emphasis added)
[62] OzEcom v Hudson Investment Group [2007] NSWSC 1441 [48] - [49].
Before making an order for an assessment of damages for misleading or deceptive conduct (where loss or damage is the gist of the action), ordinarily the judge should find, at least prima facie, causation of some loss or damage, even if the full scope of the loss or damage caused by the contraventions remains to be determined in the course of the proposed assessment. See, for example: Cassis v Kalfus;[63] Abigroup Contractors Pty Ltd v Sydney Catchment Authority;[64] Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd.[65]

Order 4 - assessment of damages for breach of the Granite Hill Lease Document

[63] Cassis v Kalfus [2001] NSWCA 460 [88].

[64] Abigroup Contractors Pty Ltd v Sydney Catchment Authority [2007] NSWSC 220 [33].

[65] Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 [24].

As noted earlier, Granite Hill did not plead a breach of contract claim against Mammoth. The judge did not make an express finding as to the term or terms of the Granite Hill Lease Document breached by Mammoth, or what Mammoth said or did to be in breach of contract, or when the breach occurred.
Nevertheless, when the judge's reasons are read as a whole, and, in particular, at [471] and [475], it is implicit that, in relation to order 4, his Honour:
(a)regarded Mammoth as being in breach of the Granite Hill Lease Document by not granting Granite Hill a leasehold interest in the property as and from 28 February 2013; and
(b)was satisfied that Granite Hill had suffered loss or damage arising from its lack of entitlement to legal possession of the property under the Granite Hill Lease Document as from 28 February 2013.[66]
[66] See primary decision [475].
As to the second of those matters, his Honour evidently regarded Granite Hill's loss or damage for breach to include Granite Hill's liability to Esperance for Granite Hill's trespass.[67]
[67] Primary decision [486].
Given that this court has found, and made orders to the effect that, at all material times Granite Hill was entitled to legal possession, and that the Granite Hill Lease Document operated to confer a proprietary interest on Granite Hill in priority to Esperance Cattle, the basis for the breach apparently found by his Honour has disappeared.
That also means that the basis for the order for damages for breach to be assessed has also disappeared.
That is not to say that this court, by the appeal decision, has found that Mammoth did not breach the Granite Hill Lease Document having regard to the legal effect which this court has found it to have. No question of breach of agreement for lease, or lease, arose in any of the appeals in the event that, as was ultimately found, the Granite Hill Lease Document operated to confer a proprietary, leasehold, interest on Granite Hill in priority to Esperance Cattle.
The primary judge proceeded, with respect, on a misconception of the legal effect of the instrument, and he has not determined one way or another, in accordance with the true meaning and effect of the Granite Hill Lease Document, the issue he had posed as issue (13):
Is Granite Hill entitled to damages from Mammoth for breach of the Granite Hill sublease?
The effect of this court's decision is that Granite Hill's prayer for relief for damages for breach of the Granite Hill Lease Document in the primary proceedings has not been determined according to law.
Whether Granite Hill is entitled to damages from Mammoth for breach of the Granite Hill Lease Document on the pleadings as they stand, or whether Granite Hill should be permitted to amend its pleadings, including in the context of its claim for damages being, at least arguably, an alternative claim only if it failed in its claim that the Granite Hill Lease Document conferred a proprietary interest on it, are matters that will need to be determined by the primary judge. If such a claim proceeds, whether on pleadings or otherwise as the primary judge may determine, the onus will be on Granite Hill to identify the term or terms of the instrument breached, the breach or breaches and when they occurred, and the loss or damage suffered as a result of the breach or breaches.[68] If such a claim proceeds, the primary judge will then need to make findings on each of those matters, albeit utilising, insofar as may be relevant, such background findings of fact as he has already made in the primary decision.
[68] Granite Hill did not identify such matters with any clarity at the hearing of this application, although it did indicate that there was no claim for loss of bargain damages: ts 368 ‑ 369, 373 ‑ 374, 376 ‑ 377.
In the circumstances, it is appropriate to set aside order 4 of the primary judge's orders of 4 September 2014 on the basis, in general terms, that Granite Hill's claim for damages against Mammoth for breach of the Granite Hill Lease Document be remitted for determination in light of the true legal effect of the Granite Hill Lease Document, as found by this court in the appeal decision.
Further, the emergence of the allegation by Granite Hill that Mammoth had repudiated the Granite Hill Lease Document, and that Granite Hill had accepted the repudiation, appears to have led to counter‑allegations that Granite Hill itself repudiated the Granite Hill Lease Document.[69] To the extent that Granite Hill and Mammoth seek to ventilate such matters in the primary proceedings, they will need to be dealt with by the primary judge one way or another, and those matters go beyond an order for the assessment of damages.

Order 5

[69] Metaxas affidavit, annexure 'AM1', page 6.

Order 5 has two aspects. One concerns Allen Caratti's liability to Mammoth, and the other concerns Allen Caratti's liability to Granite Hill. They are addressed separately below. It is convenient to commence with a consideration of Granite Hill's position first. This concerns issue (15) which, as noted earlier, was as follows:
Is Granite Hill entitled to damages from Mr Allen Caratti for misleading and deceptive conduct and if so what is the appropriate measure of such damages?

Allen Caratti's liability to Granite Hill for misleading or deceptive conduct

As noted earlier, Granite Hill had pleaded that Allen Caratti had engaged in misleading or deceptive conduct in that:
(a)by executing the Granite Hill Lease Document, he represented that:[70]
(1)he was a director of Mammoth;
(2)he was authorised on behalf of Mammoth to sign the Granite Hill Lease Document for and on behalf of Mammoth;
(3)by his signature he was binding Mammoth to the terms of the Granite Hill Lease Document; and/or
(4)the Granite Hill Lease Document would take effect as a 'valid document' as between Granite Hill and Mammoth;
(b)the representations were misleading or deceptive because, in effect, Allen Caratti was not a director of Mammoth at the time of the execution of the Granite Hill Lease Document.[71]
[70] Primary decision [297]; further amended statement of claim, pars 9, 36; BB 229, 238.
[71] Further amended statement of claim, par 37; BB 238.

Granite Hill also alleged a fifth representation. It was alleged that by providing the Granite Hill Lease Document to Granite Hill, Allen Caratti also represented that the instrument had been signed by the persons whose names appeared on it, and that the representation was misleading or deceptive.[72]
[72] Primary decision [298], par 37A of Allen Caratti's re‑amended defence to Granite Hill's further amended statement of claim; BB 239.
Allen Caratti admitted representations (1) - (4), but denied that they were misleading. Allen Caratti admitted the fifth representation and further admitted that it was misleading or deceptive.
The primary judge found each of the representations to be established, and that each was misleading or deceptive.[73]
[73] Primary decision [484].
Although, by his grounds of appeal, Allen Caratti, in effect, challenged the findings of misleading or deceptive conduct by contending (one way or another) that the judge should have found that he was a director of Mammoth at the relevant time, his appeal was dismissed. The findings, referred to in the preceding paragraph, were not disturbed by this court in the appeal decision, and there is no occasion to disturb them now. As noted above, Allen Caratti admitted that each of the pleaded representations was made, and admitted that the fifth representation was misleading or deceptive. The finding that each of the first to fourth representations was misleading or deceptive is confined to the sense in which it was pleaded by Granite Hill to be misleading or deceptive, namely that it had that character because Allen Caratti was not a director of Mammoth at the time of the execution of the Granite Hill Lease Document. In relation to the alleged fourth misrepresentation, the burden of the pleaded case was that Allen Caratti represented, falsely, that the Granite Hill Lease Document would take effect as a valid document on the basis that it was validly executed by Allen Caratti as a director of Mammoth at the time. None of the judge's findings with respect to the five misrepresentations derogates from the force or effect of this court's reasons in the appeal decision in general, or order 4 of this court's orders in particular, that, 'by reason of' s 128 and s 129(5) of the Corporations Act 2001 (Cth), Granite Hill was 'entitled to enforce' the Granite Hill Lease Document as against Esperance, Navarac and Mammoth 'as if it had been duly executed by Mammoth'. In other words, the Granite Hill Lease Document was enforceable even though it did not take effect as a 'valid document' on the basis that it had been duly executed by Allen Caratti as a director of Mammoth at the relevant time.
As to reliance, the judge said that '[n]or is there any doubt that Granite Hill acted in reliance upon those representations. The precise extent of Granite Hill's reliance upon the representations will be a matter to be determined in the course of the quantification of its claim for damages'.[74] His Honour also added that the 'conventional measure will apply to quantification of those damages, which will be assessed by reference to the amount required to put Granite Hill in the position it would have been if Mr Allen Caratti had not engaged in the misleading and deceptive conduct'.[75]
[74] Primary decision [481].
[75] Primary decision [481].
His Honour did not expressly identify the conduct of Granite Hill in reliance on the misrepresentations of which his Honour said there was, in effect, no doubt. Nevertheless, when his Honour's reasons are read as a whole and, in particular, at [484] read with [475] and [487], it appears that his Honour implicitly found, in effect, that in reliance on the misleading or deceptive conduct, Granite Hill had, at least, entered into physical possession of the property. His Honour also evidently found that Granite Hill had entered into physical possession when it had no proprietary interest under the Granite Hill Lease Document, and when Esperance was entitled to legal possession of the property and, upon Granite Hill being ordered by his Honour on 7 March 2014 to give up physical possession of the property, Granite Hill had, prima facie, suffered some loss or damage. That is, Granite Hill's reliance on Allen Caratti's misleading or deceptive conduct by entering into physical possession had caused the loss or damage which Granite Hill had, prima facie, suffered.
The judge's findings in relation to causation and the prima facie suffering of some loss or damage appear to have been infected by his erroneous view of the legal effect of the Granite Hill Lease Document. It is appropriate, accordingly, to set aside this aspect of order 5 and to remit all questions of causation and the suffering of loss or damage for fresh consideration by the primary judge in relation to the undisturbed findings of misleading or deceptive conduct by Allen Caratti and reliance by Granite Hill.

Allen Caratti's liability to Mammoth for misleading or deceptive conduct

This aspect of order 5 concerns issue (17) which, as noted earlier, was as follows:
Is Mammoth entitled to damages for misleading and deceptive conduct from Mr Allen Caratti, and if so, what is the appropriate measure of such damages?
Also, as noted earlier, the judge said, relevantly:[76]
[A]s I have found that the representations made by Mr Allen Caratti, at the time he executed the Granite Hill sublease and provided it to Granite Hill, were misleading and deceptive, it follows that Mammoth is also entitled to claim damages if it suffered loss by reason of that conduct. (emphasis added)
[76] Primary decision [484].
The judge continued:[77]
As I have found that Mr Allen Caratti's purported but unauthorised execution of the [Granite Hill Lease Document] has rendered Mammoth liable to Granite Hill in damages for breach of that sublease, it follows that Mammoth's liability to Granite Hill was relevantly caused by Mr Allen Caratti's misleading and deceptive conduct, and it is entitled to recover those damages from Mr Allen Caratti, together with its costs of defending Granite Hill's claim and any costs it is ordered to pay Granite Hill. (emphasis added)
[77] Primary decision [484].
The primary judge appears to have reasoned in relation to Mammoth's claim for misleading or deceptive conduct against Allen Caratti as follows:
1.Mammoth is liable to Granite Hill for breach of the Granite Hill Lease Document.
2.Mammoth's liability to Granite Hill in that regard, and Mammoth's consequential liabilities for costs in defending Granite Hill's claims and any costs it is ordered to pay Granite Hill, constitute loss or damage to Mammoth caused by Allen Caratti's misleading or deceptive conduct for the purposes of s 236 of the Australian Consumer Law.
His Honour's reasoning is broadly consistent with Mammoth's pleaded claim for damages for misleading or deceptive conduct.[78] Also, on the hearing of this application, Mammoth described its claim as effectively 'parasitical' on Granite Hill's claims.[79]
[78] See [24] above.
[79] ts 387.
As the fundamental question of whether Mammoth is liable to Granite Hill for breach of the Granite Hill Lease Document has not been determined (as discussed earlier), this aspect of order 5 should also be set aside. Granite Hill's claims for damages for misleading or deceptive conduct, and Mammoth's claims for damages for misleading or deceptive conduct, against Allen Caratti, should, in general terms, be remitted for determination by the primary judge on the bases that:
1.Subject to 2 and 3 below, all the primary judge's findings relevant to these claims, including, without limitation, his findings in relation to Allen Caratti's engagement in misleading or deceptive conduct, remain undisturbed and binding on the relevant parties.
2.The Granite Hill Lease Document has the legal effect assigned to it by this court in the appeal decision.
3.All questions of causation and damages in relation to such claims, remain to be determined.

Conclusion on setting aside orders 4 and 5

For the reasons given earlier, orders 4 and 5 should be set aside. The allegations and counter‑allegations of repudiation on the Granite Hill Lease Document indicate that wider issues may require consideration by the primary judge. Whether such claims are open on the pleadings as they stand or as amended (if leave is given by the primary judge), are matters which must be left to the primary judge.
Contrary to the submissions filed by Allen Caratti, there is no proper basis for this court on these applications to:
1.Order that all damages claims against him be dismissed.
2.Find as a fact that the misleading or deceptive conduct did not cause Granite Hill or Mammoth any recoverable loss.
3.Make a determination that legal costs are not loss or damage within the meaning of s 236 of the Australian Consumer Law for present purposes.
4.Find as a fact that Mammoth had not acted reasonably.
None of those matters properly arise consequentially upon the disposition of the appeals pursuant to the appeal decision.

Order 6

Order 6 should consequently be set it aside.

Stay

No application for a stay has been filed, and the liberty to apply does not extend to an application for stay orders. Insofar as Allen Caratti's submissions purport to deal with a stay application, they are extraneous to the matters before the court. In any event, on the basis of Mr Metaxas's affidavit, there is no need for a stay given the delays and slow pace in implementing programming orders in the court below.

Remitter to a different judge

The application that the action be remitted to a judge other than the primary judge involves the proposition that the primary judge is disqualified from continuing to hear the action on the ground of apprehended bias.
Even if this aspect of the application were to be regarded as within the scope of the liberty to apply (upon which it is unnecessary to decide), the application should be dismissed for two reasons.
One is that any such application should be made, at first instance, to the primary judge.[80] That has not occurred. The other is that on the material and submissions before this court there is no apprehended bias.
[80] Australian National Industries (436); Barton (749); Bainton (544).
The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson.[81]
[81] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
If an allegation of apprehended bias is made, it is essential that there be an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to the case: Michael Wilson & Partners Limited v Nicholls.[82]
[82] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67].
The adverse findings against Allen Caratti made by the primary judge in the primary decision have not been challenged in or disturbed on appeal. In the primary proceedings, the relevant question for the trial judge to decide is (relevantly for present purposes) the liability of Allen Caratti for damages to Mammoth and Granite Hill. The character of that question has not been altered by the conduct of the trial in two tranches. It has not been finally determined. It could not be said that a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the question by the judge taking into account his impressions of Allen Caratti's credibility as a witness in one part of the case, in assessing his evidence in another part of the case.

Conclusion

Subject to hearing from the parties as to the precise terms, orders should be made along the following lines with a view to giving effect to these reasons:
1.Allen Caratti is granted an extension of time to apply to this court in relation to order 4, order 5 and order 6 as amended of the orders made by Martin CJ on 4 September 2014 (the Trial Orders) in action CIV 1594 of 2013 (the Action).
2.Order 4, order 5 and order 6 as amended of the Trial Orders are set aside.
3.The Action is remitted to Martin CJ for further hearing and further determination as to the final disposition of the Action, including as to the relief (if any) that should be granted in respect of any breaches by Mammoth of the Granite Hill Lease Document, and in respect of Granite Hill's claims against Allen Caratti for damages for misleading or deceptive conduct, and Mammoth's claims against Allen Caratti for damages for misleading or deceptive conduct.
4.The remitter referred to in order 3 is to proceed, subject to order 5 below, on the basis of the primary judge's findings in the primary decision, including without limitation his findings as to Allen Caratti's engagement in misleading or deceptive conduct.
5.The remitter referred to in order 3 is also to proceed:
(a)on the basis of the legal effect of the Granite Hill Lease Document as found by this court in the appeal decision, and otherwise consistently with the appeal decision and the liberty to apply decision (including the redetermination of the primary judge's findings in the primary proceedings in relation to causation and the prima facie suffering of loss or damage); and
(b)on the basis of the Trial Orders as amended by this court on 27 May 2016 and pursuant to order 2 above.
6.The applications by Allen Bruce Caratti filed 10 May 2017 otherwise be dismissed.
7.In these orders:
(a)Allen Caratti is Allen Bruce Caratti, the appellant in CACV 21 of 2014, the second respondent in CACV 112 of 2014 and the fourth respondent in CACV 120 of 2014;
(b)Granite Hill is Granite Hill Pty Ltd, the fourth respondent in CACV 21 of 2014, the first respondent in CACV 112 of 2014, and the appellant in CACV 120 of 2014;
(c)Mammoth is Mammoth Investments Pty Ltd, the first respondent in CACV 21 of 2014, the appellant in CACV 112 of 2014 and the third respondent in CACV 120 of 2014;
(d)the 'Granite Hill Lease Document' is the 'Sub‑Lease' as defined in par 4(a) of this court's orders on 27 May 2016;
(e)the 'primary decision' is the decision of Martin CJ in Esperance Cattle Company Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279 delivered on 5 August 2014;
(f)the 'appeal decision' is the decision of this court in Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84 delivered on 27 May 2016; and
(g)the 'liberty to apply decision' is this decision of this court.
The parties should also be heard on the question of costs.