Commissioner for Fair Trading v Jonval Builders Pty Ltd

[2019] NSWSC 1893

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner for Fair Trading v Jonval Builders Pty Ltd [2019] NSWSC 1893
Hearing dates:	14 – 17 May 2018; 12 – 13 June 2018
Date of orders:	31 December 2019
Decision date:	31 December 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1)   The Court directs the plaintiff to serve the defendants, through its solicitor, with a draft minute of order reflecting the foregoing reasons for judgment by 10 February 2020 and to file in court, by email to the Associate to Justice Rothman, by 24 February 2020, such draft of orders, or the minutes of order reflecting any agreement thereon between the plaintiff and the defendants.  (2)   To the extent that there is no agreement that the draft minute of order reflects the foregoing reasons for judgment, the defendants shall file any proposed minute of order prescribing that which they submit reflects the foregoing reasons for judgment by 4pm on 24 February 2020.
Catchwords:	CONSUMER LAW – Australian Consumer Law and Fair Trading Act – misleading or deceptive conduct – unconscionable conduct – sale of “movable” and “immovable” dwellings affixed to a site – sites approved for short-term occupation only – purchased after representations as to “permanent living” for retirees – analysis of provisions – factual summary – orders to be made for declarations and compensation – leave to apply for injunctions if conduct were to continue – plaintiff directed to file orders to reflect reasons
Legislation Cited:	Australian Consumer Law (NSW), ss 3, 18 and 21, 232, 237, 239(1)(a)(i), 239(2)(a), 243(d) Competition and Consumer Act 2010 (Cth), Sch 2, ss 140B and 140K Fair Trading Act 1987 (NSW), ss 27, 28, 42, 43, 65, 72 Local Government Act 1993 (NSW), s 68 National Consumer Credit Protection Act 2009 (Cth) Supreme Court Rules 1970 (NSW) Trade Practices Act 1974 (Cth), s 52
Cases Cited:	Australian Securities and Investments Commission v Kobelt (2019) 93 ALJR 743; [2019] HCA 18 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Bell v Thompson (1934) 34 SR (NSW) 431 Blatch v Archer (1774) 98 ER 969 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brown, Lionel & Anor v Jam Factory Pty Ltd & Anor (1981) 35 ALR 79; [1981] FCA 34 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Limited (2015) 326 ALR 556; [2015] NSWCA 264 Fabre v Arenales (1992) 27 NSWLR 437 Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3 Hurley v McDonald’s Australia Ltd [1999] FCA 1728 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44 Qantas Airways Ltd v Cameron (1996) 66 FCR 246; [1996] FCA 1483 R v Burdett (1820) 106 ER 873 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; [1982] FCA 336 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Westpac Banking Corporation v Jamieson & Ors (2016) 1 Qd R 495; [2015] QCA 50 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Texts Cited:	Moore H, Australian Concise Oxford Dictionary (4th ed, 2003) The Macquarie Dictionary (3rd ed, 1997)) Wigmore J, A Treatise on the Anglo-American System of Evidence (3rd ed, 1940) vol 2, s 285, at 162
Category:	Principal judgment
Parties:	Commissioner for Fair Trading (Plaintiff) Jonval Builders Pty Limited ACN 005177793 (First Defendant) Hacienda Caravan Park Pty Limited (Second Defendant) John Allan Willmott (Third Defendant)
Representation:	Counsel: R Francois / K Jones (Plaintiff) A J H Morris QC / L A Jurth (Defendants)   Solicitors: Fair Trading Legal Services (Plaintiff) Worcester & Co Solicitors (Defendants)
File Number(s):	2015/291362

Judgment

1. HIS HONOUR: By Further Amended Statement of Claim, filed 19 April 2018, the Commissioner for Fair Trading (NSW) (hereinafter “the Commissioner”) seeks orders against Jonval Builders Pty Limited (hereinafter “Jonval”), Hacienda Caravan Park Pty Limited (hereinafter “Hacienda”) and John Allan Willmott. Essentially, the plaintiff alleges that the defendants, where relevant, have each engaged in misleading or deceptive conduct and unconscionable conduct.

2. The plaintiff seeks declarations that the defendants’ conduct was unlawful and contravened the Fair Trading Act 1987 (NSW) (hereinafter “FTA”) and the Australian Consumer Law (NSW) (hereinafter “ACL”). The Commissioner is also seeking restraining orders enjoining the defendants from engaging in further conduct of that kind; orders that the defendants jointly and severally compensate and/or pay damages to the relevant consumers for losses that have been suffered; and the Commissioner seeks costs.

3. In short, the Commissioner alleges that the defendants conducted a caravan park (hereinafter referred to as “Hacienda Park”) and sold what were described as “permanent” holdings, containing a caravan, registrable or un-registrable mobile dwellings (“RMD” or “UMD” respectively) to the “consumers” (more accurately the purchasers/occupiers), who are identified (and will be identified later in these reasons), in circumstances where it was unlawful to provide permanent residences on those sites. The caravans or mobile dwelling sites were called, during the course of the proceedings, Marina Villa Sites and the mobile dwellings have been referred to as the Marina Villas or Villas.

4. For the provision of those permanent sites, Jonval marketed and sold the Villas and Hacienda charged the consumers a weekly park fee as well as a payment of a lump sum for the use of the site, the latter being a “key-money” premium for the Villa on the site, some more complete explanation will be provided later in these reasons.

5. The Marina Villa Sites were situated on the water’s edge and, as a consequence, were marketed at a more expensive rate than a site that was not so situated. It is alleged that the defendants misled the consumers in representing to them that the sites were “permanent” and otherwise acted unconscionably in the marketing and sale of the Marina Villas and Marina Villa Sites. I will discuss the detailed allegations later in these reasons.

Legislation

6. As earlier stated, orders are sought, declaratory and otherwise, pursuant to the terms of ss 42 and 43 of the FTA. Further, orders are sought under ss 18 and 21 of the ACL. Orders are also sought under ss 65 and 72 of the FTA and ss 232, 237 and 243(d) of the ACL.

7. The multiplicity of legislative provisions arises because the FTA was amended, with effect on 1 January 2011, and the conduct in question is said to have occurred before and after 1 January 2011. The effect of the amendments was, essentially, to vary the name and number of the provisions, but the substance of the provisions remained the same, or substantially the same. Nevertheless, as a matter of abundant caution, it is appropriate to set out those provisions:

Fair Trading Act (pre-2011)

“42    Misleading or deceptive conduct

(1)    A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Nothing in this Part shall be taken as limiting by implication the generality of subsection (1).

43    Unconscionable conduct

(1)    A supplier shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a consumer, engage in conduct that is, in all the circumstances, unconscionable.

(2)    Without limiting the matters to which the Supreme Court may have regard for the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services, the Court may have regard to:

(a)    the relative strengths of the bargaining positions of the supplier and the consumer,

(b)    whether, as a result of conduct engaged in by the supplier, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier,

(c)    whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services,

(d)    whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer (or a person acting on behalf of the consumer) by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services, and

(e)    the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier.

(3)    A supplier shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a consumer only because the supplier institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.

(4)    For the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services to a consumer:

(a)    the Supreme Court shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention, and

(b)    the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this Act.

(5)    (Repealed)

(6)    A reference in this section to the supply or possible supply of goods includes a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce.

…

65    Injunctions

(1)    Where, on the application of the Minister, the Director-General or any other person, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

(a)    a contravention of a provision of Part 3, 4, 5, 5A, 5B, 5C, 5D, 5E, 5F, 5G or 8,

(b)    attempting to contravene such a provision,

(c)    aiding, abetting, counselling or procuring a person to contravene such a provision,

(d)    inducing, or attempting to induce, whether by threats or promises or otherwise, a person to contravene such a provision,

(e)    being in a way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision, or

(f)    conspiring with others to contravene such a provision,

the Court may grant an injunction in such terms as the Court determines to be appropriate.

(2)    Without prejudice to the generality of subsection (1), an injunction granted under that subsection may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):

(a)    for a specified period, or

(b)    except on specified terms and conditions.

(3)    Where an application for an injunction under subsection (1) has been made, the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1).

(4)    Where in the opinion of the Supreme Court it is desirable to do so, the Court may grant an injunction pending determination of an application under subsection (1).

(5)    The Supreme Court may rescind or vary an injunction granted under subsection (1), (3) or (4).

(6)    The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a)    whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind,

(b)    whether or not the person has previously engaged in conduct of that kind, and

(c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

(7)    The power of the Supreme Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a)    whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing,

(b)    whether or not the person has previously refused or failed to do that act or thing, and

(c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

(8)    Where the Minister or the Director-General makes an application to the Supreme Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertaking as to damages or costs.

(9)    If:

(a)    in a case to which subsection (8) does not apply, the Court would, but for this subsection, require a person to give an undertaking as to damages or costs, and

(b)    the Minister gives the undertaking,

the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.

(10)    If the Court grants an injunction in relation to goods the supply of which would constitute an offence under Part 3, the Court may make such order as it thinks fit with respect to disposal of the goods.

…

72    Other orders

(1A)    A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 5 (section 43 excepted), include a reference to:

(a)    the death of a person, or

(b)    personal injury to a person (including any pre-natal injury, any impairment of the person’s physical or mental condition and any disease).

(1) Without limiting the generality of section 65, if, in a proceeding instituted under this Part, or for an offence against Part 3, 4, 5, 5B, 5C, 5D, 5F or 8, the Supreme Court finds that a person has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8, the Court may, whether or not it grants an injunction under section 65 or makes an order under section 67 or 68, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the first-mentioned person wholly or in part for the loss or damage or will prevent or reduce the loss or damage.

(2) Without limiting the generality of section 65, the Supreme Court may, on the application of a person who has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8 or on the application of the Director-General in accordance with subsection (4) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, wholly or in part for the loss or damage or will prevent or reduce the loss or damage.

(3)    An application may be made under subsection (2) in relation to a contravention of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8 even if a proceeding has not been instituted under another provision of this Part in relation to the contravention.

(4) Where, in a proceeding instituted for an offence against Part 3, 4, 5, 5B, 5C, 5D, 5F or 8 or instituted by the Minister or the Director-General under section 65, a person is found to have engaged in conduct in contravention of a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8, the Director-General may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but the Director-General shall not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made.

(5)    The orders referred to in subsections (1) and (2) are:

(a)    an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Supreme Court thinks fit, to have been void from its beginning or at all times on and after such date before the date on which the order is made as is specified in the order,

(b)    an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified,

(c)    an order refusing to enforce any or all of the provisions of such a contract or arrangement,

(d)    an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage,

(e)    an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage,

(f)    an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person’s own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage,

(g)    an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person’s own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage, and

(h)    an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that:

(i)    varies, or has the effect of varying, the first-mentioned instrument, or

(ii)    terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument.

(6)    An application under subsection (2) may be made at any time within 6 years after the date on which the cause of action that relates to the conduct accrued.

(6A) Subsection (6) does not apply to a cause of action to which Division 6 of Part 2 of the Limitation Act 1969 applies.

(7) For the purpose of determining whether to make an order under this section in relation to a contravention of section 43, the Court may have regard to the conduct of the parties to the proceedings since the contravention occurred.

(8)    The powers conferred on the Supreme Court under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement.”

8. Lest it be thought otherwise, and notwithstanding the lack of reference thereto in the pleadings in this matter, in the pre-1 January 2011 version of the FTA, there was a provision (s 68) that allowed for actions in damages. The reliance on s 72 is as a result of the fact that it is the Commissioner that has brought the proceedings and, therefore, compensation and/or damage under the FTA arises in relation to the individual purchasers and can be sought pursuant to the provisions of s 72 of the FTA.

9. As earlier stated, on 1 January 2011, the FTA was amended and the provisions of the current ss 27 and 28 were inserted. The terms of ss 27 and 28 of the post-2011 FTA are in the following terms:

“27    The Australian Consumer Law text

The Australian Consumer Law text consists of:

(a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth, and

(b)    the regulations under section 139G of that Act.

28 Application of Australian Consumer Law

(1)    The Australian Consumer Law text, as in force from time to time:

(a)    applies as a law of this jurisdiction, and

(b)    as so applying may be referred to as the Australian Consumer Law (NSW), and

(c)    as so applying is a part of this Act.

(2)    This section has effect subject to sections 29, 30 and 31.”

10. As a consequence of the promulgation of ss 27 and 28 of the post-2011 FTA, the provisions of Schedule 2 (the ACL) of the Competition and Consumer Act 2010 (Cth) (the “Commonwealth Act”) apply, pursuant to the terms of the FTA, as it operated after 1 January 2011. Further, the text of the foregoing Schedule is referred to in the Commonwealth Act as the “Australian Consumer Law”, and, pursuant to s 28 of the FTA, as it existed after 1 January 2011, its application under that statute is referred to as the “Australian Consumer Law (NSW)”.

11. Apart from noting how the ACL applies, and by virtue of which statutory provision, it is unnecessary to refer again to the provisions of either s 27 or s 28 of the FTA (as it existed after 1 January 2011). It is necessary to recite the provisions of ss 18, 21, 232, 237 and 243(d) of the ACL, which apply by virtue of the FTA.

12. To avoid confusion, hereafter I will refer, except where necessary to differentiate, to the substantive provisions of the ACL, as if it were a reference to the ACL, which are in the following terms:

“18    Misleading 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).

Note:    For rules relating to representations as to the country of origin of goods, see Part 5-3.

…

21    Unconscionable conduct in connection with goods or services

(1)    A person must not, in trade or commerce, in connection with:

(a)    the supply or possible supply of goods or services to a person; or

(b)    the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

(2)    This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

(a)    institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

(b)    refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

(3)    For the purpose of determining whether a person has contravened subsection (1):

(a)    the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b)    the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4)    It is the intention of the Parliament that:

(a)    this section is not limited by the unwritten law relating to unconscionable conduct; and

(b)    this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c)    in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

(i)    the terms of the contract; and

(ii)    the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

…

232    Injunctions

(1)    A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

(a)    a contravention of a provision of Chapter 2, 3 or 4; or

(b)    attempting to contravene such a provision; or

(c)    aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d)    inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or

(e)    being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f)    conspiring with others to contravene such a provision.

(2)    The court may grant the injunction on application by the regulator or any other person.

(3)    Subsection (1) applies in relation to conduct constituted by applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term as if the conduct were a contravention of a provision of Chapter 2.

(4)    The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:

(a)    whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and

(b)    whether or not the person has previously engaged in conduct of that kind; and

(c)    whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

(5)    Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):

(a)    for a specified period; or

(b)    except on specified terms and conditions.

(6)    Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following:

(a)    refund money;

(b)    transfer property;

(c)    honour a promise;

(d)    destroy or dispose of goods.

(7)    The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised:

(a)    whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b)    whether or not the person has previously refused or failed to do that act or thing; and

(c)    whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.

…

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

(1)    A court may:

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

(i)    was engaged in a contravention of a provision of Chapter 2, 3 or 4; or

(ii)    constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or

(b)    on the application of the regulator made on behalf of one or more such injured persons;

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

Note 1:    For applications for an order or orders under this subsection, see section 242.

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

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

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

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

(3)    An application under subsection (1) may be made at any time within 6 years after the day on which:

(a)    if subsection (1)(a)(i) applies--the cause of action that relates to the conduct referred to in that subsection accrued; or

(b)    if subsection (1)(a)(ii) applies--the declaration referred to in that subsection is made.

…

243    Kinds of orders that may be made

Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following:

…

(d)    an order directing the respondent to refund money or return property to the injured person;”

13. Some attention was directed to whether the consumers to whom the Commissioner referred were “consumers” in the defined sense in the ACL. First, the operation of neither s 18 nor s 21 of the ACL is confined to consumers. Secondly, s 42 of the FTA is not confined to consumers.

14. While s 43 of the FTA is directed to the supply of goods or services to “consumers”, by operation of s 43(6) of the FTA, supply does include supply for the purpose of “re-supply”. Further, no party relies on ss 23, 29, 30, 34 or Pt 3-2 of the ACL, which are provisions specifically confined to consumers or consumer contracts.

15. As earlier stated, it is alleged that the conduct of each of Jonval and Hacienda and Mr Willmott adversely affected a number of persons. Those persons were Bruce Denley (Villa 2); Brian and Annette Hamilton (Villa 5); Sandra Sorenson (Villa 6); Percy and Gail Hannah (Villa 7); Barbara Timms (Villa 8); John Pestridge (Villa 9); and John and Diana Hodson (Villa 10). Each of them gave evidence. As did others. No oral evidence was adduced by the defendants. It is necessary to deal with the evidence, but it is first necessary to put that evidence in the context of the principles and law to be applied.

General principles on misleading and/or deceptive conduct

16. The provisions of s 18 of schedule 2 of the ACL are in the same terms as the provisions of the former s 52 of the Trade Practices Act1974 (Cth) on which there is much authority and in relation to which certain general principles have been accepted. The first and possibly the most important principle is that the words of the section ought not be given a gloss but applied in their ordinary and natural meaning and wide import.

17. The provision is not based upon any previously applicable cause of action in common law or equity. Nevertheless, concepts involved in the tort of deceit and passing off may be helpful in understanding any particular conduct that may arise under the act: Brown, Lionel & Anor v Jam Factory Pty Ltd & Anor (1981) 35 ALR 79; [1981] FCA 34.

18. The provision does not, of itself, create a liability, but prohibits conduct in trade and commerce, a contravention of which will give rise to damages, pursuant to the other provisions of the statute.

19. The conduct that is proscribed by the provisions of s 18 of the ACL is conduct that is misleading or deceptive or likely to mislead or deceive. For present purposes and the purposes of these reasons for judgment, the Court will use the term “misleading or deceptive” to include the circumstance that it is “likely to mislead or deceive”. Conduct, as it is described in s 18(1) of the ACL, includes the making of a representation or statement which is misleading or deceptive.

20. It is necessary for a plaintiff, or person seeking damages, to satisfy the Court that the misleading or deceptive conduct led to the making of a decision or consequential conduct by the plaintiff or person who suffered damage. In this sense, the ordinary principles relating to causation apply.

21. However, the authorities established that, because of the use of the term “likely to mislead or deceive”, all that is required is for there to be a real and not remote chance or possibility. It is not necessary to show that the possibility is more probable than not.

22. The section requires an objective assessment, by the Court, of the conduct in question and is not concerned, directly, with the subjective belief induced by the conduct. Nevertheless, the effect needs to be one that will likely affect the mind of the person, who is purportedly misled or deceived, and it is that which the Court assesses.

23. In the same vein, the Court is not concerned with examining the intention of the person, alleged to be in contravention of the provision, to mislead or deceive and, unless the conduct is the mere passing of information that is disclosed at the time it is passed, regardless of the intention of the person who has misled or deceived, a contravention may have occurred: Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65.

24. It is the whole of the conduct that must be examined for the purpose of determining whether particular words or acts are, in the context of the whole conduct, misleading or deceptive. Nevertheless, even words that are technically accurate, or literally true, may be misleading or deceptive if the statement conveys a meaning that is false. This is particularly relevant in these proceedings, where on the defendants’ case, some of the words used, e.g. the duration “will not be policed”, were technically accurate, but gave, the plaintiff submits, a misleading or deceptive effect.

25. In some respects, this is part of the broader proposition that conduct includes an omission or a failure or refusing to do an act, if, in the context of the conduct in trade and commerce, the omission or refusal leads to an objectively determined misleading of the person to whom the representation is made or to whom the conduct is directed.

26. Notwithstanding the earlier comment relating to objective analysis, where the conduct in question or the representation made is a representation as to the opinion of the person engaged in the conduct, then, ordinarily, the mere fact that the opinion is incorrect will not amount to misleading or deceptive conduct, but merely be a representation that the opinion is genuinely held and, usually, but not always, that there is a rational basis for the opinion that is held.

27. An opinion, nevertheless, may amount to misleading or deceptive conduct, if the Court were satisfied that the opinion was not, in fact, held or that it lacked any or any adequate or rational foundation. The latter statement is particularly accurate, when referring to an expert opinion or the opinion of the person who ought to know all of the facts that would reasonably give rise to the expression of the opinion.

28. As the High Court made clear in a number of judgments, the Court, in applying the provisions of s 18 of the ACL (or its predecessors) is required to examine whether the evidence establishes the representations or conduct that is pleaded and, secondly, whether the evidence establishes that the representations, or conduct, are, or is, false, misleading or deceptive: Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 at [105]; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60.

29. In Parkdale Custom Built Furniture, supra, Gibbs CJ, referring to the use of the term misleading or deceptive: at CLR 198, said:

“The words of s 52 [a reference to the former Trade Practices Act] require the court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words ‘mislead’ and ‘deceive’ share in common is ‘to lead into error’. If the word ‘deceptive’ in section 52 stood alone, it would be a question whether it was used in a bad sense, the connotation of craft or overreaching, but ‘misleading’ carries no such flavour, and the use of that word appears to render ‘deceptive’ redundant.”

30. As was made clear in the joint judgment of Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203; [1982] FCA 336, cited with approval in the plurality judgment in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25, the contravening conduct or allegedly contravening conduct, in order for it to induce error of the kind from which misleading or deceptive conduct can be determined, must involve the target of the misrepresentation or deception labouring under some erroneous assumption.

31. Further, particularly where the plaintiff, as in this case, is a regulatory body, which seeks compensation on behalf of members of a class that are said to have been misled or deceived, the conduct must be considered by reference to the class of persons likely to be affected by it and whether it is misleading or deceptive on the basis of whether a reasonable member of that class would be deceived or misled.

32. Evidence that persons have, in fact, been misled is not conclusive of the fact that the conduct was misleading or deceptive; but is admissible; and, subject to the conduct being tested against ordinary or reasonable members of the class of persons on behalf of whom damages are sought, may be persuasive. Further, as made clear in the joint judgment of Deane and Fitzgerald JJ in Taco, supra, it is necessary to enquire how and why the misconception, upon which the persons have acted, has arisen.

General Principles as to Unconscionable Conduct

33. The terms of s 21 of the ACL have already been recited. To understand s 21 of the ACL, it is necessary to compare it with the provisions of s 20 of the ACL.

34. By the provisions of s 20 of the ACL, a standard of conduct is prescribed such that a person is prohibited, in trade or commerce, from engaging in conduct that is unconscionable, within the meaning of the unwritten law from time-to-time.

35. The unwritten law, to which s 20 of the ACL refers, is or includes the concept of unconscionability in equity and applies when one party to a transaction is at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affecting her or his ability to protect her or his own interest and the other party unconscientiously takes advantage of the opportunity thus placed in his/her/its hands: Blomley v Ryan (1956) 99 CLR 362 at 415; [1956] HCA 81. See also Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, per Mason J at 461 and per Deane J at 474; [1983] HCA 14.

36. The foregoing should not be taken as a codification of that which may be able to be remedied by equity under the rubric of unconscionability. But it does not include unfair practice, simpliciter.

37. The only other comment that needs to be made for present purposes is that for equity to relieve unconscionability, it is unnecessary that the party taking advantage of the special disadvantage actually caused that disadvantage. It is sufficient if the party were aware of the special disadvantage and took unfair advantage of the opportunity presented.

33. The plaintiff in these proceedings relies on s 21 of the ACL, which is a provision that is wider in effect than the provisions of s 20 of the ACL. By operation of s 21(4) the Parliament has expressly provided that the operation of s 21 is not limited by the unwritten law relating to unconscionability.

34. Further, the Parliament has prescribed criteria which a Court may take into account in determining whether a person has contravened s 21 of the ACL. Again, the Parliament has expressly provided that the criteria, prescribed by s 22 of the ACL, do not limit the matters to which a Court may have regard.

35. Those criteria include: the relative strengths of the bargaining position of the supplier and the customer; the capacity of the customer to understand any documents relating to the supply or possible supply of the goods or services; any undue influence or pressure or unfair tactics used against the customer by the supplier; comparable costs of acquisition of the goods or services from a person other than the supplier; the consistency of the supplier’s conduct towards one customer as against others; industry codes; the extent to which the contract governing the supply of the goods or services was able to be negotiated; the terms and conditions of any such contract; and the extent to which the supplier and the customer acted in good faith: see s 22(1) of the ACL.

36. The terms of s 21 of the ACL render impermissible: all conduct that would be included within the term “unconscionable conduct” under the unwritten law, rendering a separate reliance upon s 20 of the ACL unnecessary.

37. The meaning of the term “engage in conduct” is the same as it has been described, for the purposes of s 18 of the ACL, earlier in these reasons for judgment.

38. Prior to 1 January 2012, the provisions of ss 21(5) and 21(6) of the ACL applied so as to limit the application of s 21 to unconscionable conduct in connection with supply of goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption and which are not acquired for re-supply or to be used up or transformed in trade or commerce. The limitation was removed on 1 January 2012 and the only limitation that now apples, wholly irrelevant to these proceedings, relates to a supply to or acquisition from a listed public company: s 21(1) of the ACL.

39. By operation of s 21(3) of the ACL, a Court may have regard to conduct engaged in, or circumstances existing, before the commencement of the section, but may not have regard to circumstances that were not reasonably foreseeable at the time of the alleged contravention. Nice questions arise as to whether proceedings taken, claiming a contravention of s 21 of the ACL, in relation to conduct that occurred prior to 1 January 2012, but taken after 1 January 2012, is limited to unconscionability in the supply of goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption and not acquired for resupply. This issue will be dealt with later in these reasons.

The Meaning of ‘Unconscionability’

45. It is important to understand that notwithstanding the fact that s 21 is of broader reach than the unwritten law relating to unconscionability, the term “unconscionable” does not equate with “unfair”. The conduct must still be unconscionable, albeit that unconscionability is not confined to a situation where the purchaser, relevantly, is under a special disadvantage known to the vendor. It does require that the conduct show “no regard for conscience”; be inconsistent with that which is right or reasonable; importing a pejorative moral judgment: Hurley v McDonald’s Australia Ltd [1999] FCA 1728, per Heerey, Drummond and Emmett JJ.

46. Ordinarily, unconscionability requires moral fault or responsibility rather than mere negligence and, in that regard, involves an intentional act. The limits of the meaning of “unconscionable” have not been adumbrated. Nor should they be. Nevertheless, it, at least, includes the dictionary definition, which are actions showing no regard for conscience or that are irreconcilable with what is right or reasonable: Qantas Airways Ltd v Cameron (1996) 66 FCR 246; [1996] FCA 1483 and involve a pejorative moral judgment.

47. In Australian Securities and Investments Commission v Kobelt (2019) 93 ALJR 743; [2019] HCA 18, the High Court recently considered the issue of unconscionability. In the joint judgment of Kiefel CJ and Bell J, their Honours said:

“[57]    ASIC refers to Australian Competition and Consumer Commission v Lux Distributors Pty Ltd as illustrative of the correct approach. The Full Court of the Federal Court of Australia found that Lux Distributors Pty Ltd (‘Lux’) engaged in conduct in connection with promotion and supply of vacuum cleaners to three elderly customers that was, in all the circumstances, unconscionable contrary to s 51AB of the Trade Practices Act 1974 (Cth) and s 21 of the Australian Consumer Law. This was so notwithstanding the customers’ voluntary entry into the sale contracts. The normative standard applied in Lux was that of ‘honest and fair conduct free of deception’[51]. Notably, Lux’s sales strategy employed a deceptive ruse to gain access to the customer’s home and, once entry was gained, a selling technique that was designed to create a sense of obligation to purchase.

[58]    Recognition that the supplier of a financial service may engage in conduct that is unconscionable, notwithstanding the recipient’s voluntary entry into the contract for the supply of the service, does not make the absence of the exertion of undue influence an irrelevant consideration. Section 12CC(1)(d) invites the court to consider ‘whether any undue influence or pressure was exerted on, or any unfair tactics were used against’ the recipient of the financial service (emphasis added) as one of the factors to be weighed in determining whether, in all the circumstances, the supplier’s conduct is unconscionable. The absence of the exertion of undue influence, pressure or unfair tactics bears on the assessment of whether the commercial advantage obtained by the supplier in connection with the supply of the financial service is an unconscientious advantage.

[59] For the same reasons, ASIC’s challenge in its second ground to the weight given by the Full Court to the finding that Mr Kobelt did not act dishonestly must be rejected. ASIC argues that, to the extent that notions of moral tainting or obloquy ‘suggest[s] a need for dishonesty or something more than the taking advantage of the special disadvantage’ of the recipient, they are unhelpful in applying the statutory standard of unconscionability in the ASIC Act and cognate legislation. The submission does not go anywhere. It may be accepted that conduct in the supply of a financial service may be unconscionable in circumstances in which the supplier’s conduct does not involve dishonesty. This is not to say that the absence of dishonesty, or other moral taint, is not a material consideration in determining whether, objectively, the supplier’s conduct involves such a departure from accepted community standards in the supply of the financial service as to warrant the characterisation that it is unconscionable.

[60]   The Full Court made clear that it approached the determination upon a view that consideration of moral obloquy had a role to play but was not a substitute for the statutory words. Their Honours correctly took into account the findings that Mr Kobelt acted with a degree of good faith and not dishonestly as among the circumstances to which it was necessary to have regard in determining whether his conduct fell below the statutory norm of conscience.” (Citations omitted.)

48. The comment of Gageler J, in describing the underlying background to the development of unconscionability as a cause of action and its relationship with the statutorily broader expression, is informative as to the principles to apply in dealing with a claim under the ACL. His Honour said:

“[81]    ‘Unconscionable’ is an obscure English word which centuries of use by courts administering equity have transformed into a legal term of art. In Australia, the central concern of a court administering equity in identifying conduct as unconscionable has long been understood to be to relieve against a stronger party to a transaction exploiting some special disadvantage which has operated to impair the ability of a weaker party to form a judgment as to his or her interests.

[82] Section 12CA of the Australian Securities and Investments Commission Act 2001 (Cth) (‘the ASIC Act’) gives statutory expression to that equitable conception of unconscionable conduct. The section’s prohibition against engaging in conduct in relation to financial services that is ‘unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories’ operates to impose an additional statutory sanction on conduct that is unconscionable in equity. Suggestions that its reference to conduct that is unconscionable within the meaning of the unwritten law imports some more expansive and less precise denotation are contradicted by extrinsic material explaining the precise choice of statutory language and have been properly refuted.

[83] Section 12CB of the ASIC Act does something more. The section’s prohibition against engaging in conduct in connection with the supply or possible supply of financial services ‘that is, in all the circumstances, unconscionable’ is expressed to be ‘not limited by the unwritten law of the States and Territories relating to unconscionable conduct’. Those words make clear that the statutory conception of unconscionable conduct is unconfined to conduct that is remediable on that basis by a court exercising jurisdiction in equity. Furthermore, determination by a court exercising jurisdiction in a matter arising under the section of whether conduct is, in all the circumstances, unconscionable is required by s 12CC to be informed by the numerous considerations specified in that section, each of which has the potential to bear positively or negatively on the characterisation of conduct as conduct that is or is not unconscionable, and each of which must be taken into account if and to the extent that it is applicable in all the circumstances.

[84] Exactly what s 12CB does might be seen in different ways. The section might, on the one hand, be seen to confer statutory authority on a court exercising jurisdiction in a matter arising under it to develop the equitable conception of unconscionable conduct taking into account a range of considerations that are broader than those traditionally taken into account by courts administering equity and that include the considerations specifically identified in s 12CC. The section might, on the other hand, be seen to prescribe a normative standard of conduct, which standard a court exercising jurisdiction in a matter arising under it is required to recognise and to administer having regard to considerations which include those identified in s 12CC. Both perspectives on the operation of the section can be found, sometimes intertwined, in the case law. Examination of the legislative history and pre-history of s 12CB, much of which Edelman J helpfully refers to in his reasons for judgment, yields no real indication of a legislative intention to adopt one view in preference to the other.

[85]    The difference between the perspectives is diminished when it is recognised that the Commonwealth Parliament can be taken to have understood that ‘[a]ny standard or criterion will have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre – an area of choice and of discretion; an area where some aspect of policy will inevitably intrude’, that ‘[t]he degree of vagueness or discretion will be affected by what is conceived to be the object of the law and by judicial techniques and precedents’ and that, ‘[g]iven a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis’. The distinction between a judicially developed standard and a statutory standard developed judicially can in practice be a fine one.

[86] The difference in perspective nevertheless bears on how a court exercising jurisdiction in a matter arising under s 12CB goes about determining whether impugned conduct is, in all the circumstances, unconscionable. For reasons which will become apparent, I consider that identification of the correct perspective bears materially on the resolution of this appeal.

[87]    The correct perspective, in my opinion, is that unambiguously adopted by the Full Court of the Federal Court in relation to materially identical provisions in Australian Competition and Consumer Commission v Lux Distributors Pty Ltd. The correct perspective is that s 12CB operates to prescribe a normative standard of conduct which the section itself marks out and makes applicable in connection with the supply or possible supply of financial services. The function of a court exercising jurisdiction in a matter arising under the section is to recognise and administer that normative standard of conduct. The court needs to administer that standard in the totality of the circumstances taking account of each of the considerations identified in s 12CC if and to the extent that those considerations are applicable in the circumstances.

[88] The Commonwealth Parliament’s appropriation in s 12CB of the terminology of courts administering equity in the expression of the normative standard which the section prescribes serves to signify the gravity of the conduct necessary to be found by a court in order to be satisfied of a breach of that standard. ‘Unconscionability’, as has been long and well understood, ‘is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person’s legal rights’.” (Citations omitted.)

49. I apply the approach of Gageler J in the last recited paragraph, whose reasons for judgment were part of the majority, and are consistent with the approach, extracted above, expressed in the joint judgment.

50. Other matters need noting. No party has put submissions on the issue of whether any one of the defendants is engaged in “trade or commerce”. I use that expression to refer, in the foregoing, to the application of the ACL and also to whether the supply of the Marina Villas and the Marina Villa Sites were each a supply of goods or services in trade or commerce.

51. The lack of attention to the foregoing issue is understandable. Jonval was in the business of providing UMDs or Villas and Hacienda was in the business of running at least one Park. Mr Willmott was the controlling mind of each of Jonval and Hacienda and the controller of its conduct (and the person who directed its conduct at a practical level). Mr Willmott was “involved” in all contraventions: see s 3 of the ACL, as it defines “involved” and ss 239(2)(a) and 240(1) of the ACL in relation to “consumers”.

52. Plainly, Mr Willmott was “knowingly concerned” and, therefore, involved in any contravention. Each of the purchasers/occupiers were misled (see later in these reasons) into an understanding that these Marina Villa Sites were available for “retirement living” (the advertisements and the oral representations) and could be occupied permanently and on a full-time basis.

53. A contract for the purposes of the ACL includes a licence to occupy. Further, the term “premises”, where used in the ACL, includes a “vehicle” or a “vessel” and an “interest in land” includes a “right, power or privilege over or in connection with land”.

54. Lastly, for present purposes, no attention has been given in submissions to the definition of “application law” in s 140 and the effects if any, of ss 140B and 140K of the Competition and Consumer Act 2010 (Cth). In my view, these provisions have no practical impact on these proceedings. To the extent constitutionally permissible they may have an effect on other proceedings, while the terms of s 140H of the Competition and Consumer Act expresses the legislative intent that the FTA and the ACL (NSW) apply concurrently with the Commonwealth scheme.

Evidence relating to the purchasers

Barbara Timms

55. Ms Timms’ Affidavit of 3 August 2016 refers to her as the owner of Marina Villa 8 at Hacienda Holiday Park and attests to the fact that she “currently permanently reside[s] at Villa 8”. The Villa is, in a somewhat irrelevant aspect of confusion in the proceedings, sometimes referred to a Site 66.

56. Ms Timms had been searching for a place to live, within her price range, after the death of her husband, which required her to sell the house in which they were living. She was referred by her sister-in-law to a website, to which she gained access.

57. There were three different price ranges, $69,000, $89,000 and $189,900, the latter being on the Tweed River. She was particularly interested in the more expensive Tweed River sites.

58. Ms Timms followed up the website and rang the contact number provided and spoke to a person by the name of Kirsty (Kirsty Simons). The conversation with Kirsty, or words to that effect, is set out at paragraph 7 of the Affidavit of Ms Timms.

59. Kirsty represented to her that the premises had been lived in previously and she made a time and date on which she could see the villas.

60. On the date arranged in April 2010, Ms Timms met Kirsty at the Hacienda Caravan Park. Ms Timms was accompanied by her daughter-in-law, Sue Hayter and her husband, Ian Hayter.

61. A person who identified herself as Kirsty met them at the entrance to the Homestead Park (an adjacent caravan/movable dwelling Park). Apparently, there is some degree of cooperation (and possibly some common Directors) as between Hacienda and Homestead Park. Kirsty showed Ms Timms (and the others) various homes within both Homestead and Hacienda Parks for comparison purposes.

62. The last homes, inspected by Ms Timms, were the Marina Villas. She looked at both Villas 8 and 9 and stood on the verandas of Villas 5, 6 and 7. Ms Timms had a conversation with Kirsty that included the following:

“My husband has passed away and I am selling our home. I will be looking to make this my new home.”

63. The conversation also included issues about site fees. Kirsty informed Ms Timms that the sites for use were from $139 per week … “the new rent will be $175 a week, it goes up each April, based on CPI. Water and gas is included and electricity is about $40 per month.”

64. There was a discussion about parking availability and parking in undercover parking spots. Ms Timms’ examination of the Villa revealed that the Villa was on concrete footings and the electrical and gas connections were hard-wired into the ground. Further, there were no wheels under the Villa.

65. After Ms Timms returned to her car, she had a conversation with Kirsty, which included words to the following effect:

Timms:    “I am interested in Villa 8 but while my house is under contract, it has not been sold yet, so any purchase would be subject to that sale.”

Kirsty:    “Can you find out the settlement date and get me a copy of your contract and rates notice. That should be fine.”

66. There was some attempt by Ms Timms to negotiate a lower price and she asked whether she was able to purchase it for $10,000 less than the asking price upon which she was referred to the possibility of purchasing one of the other homes and, when that was of no interest to Ms Timms, Kirsty informed her that she would need to take that request to the owner, who, apparently, was overseas at the time. I infer from other evidence that this was a reference to Mr Willmott.

67. In answer to a request about solicitors’ papers or costs and searches, Kirsty informed Ms Timms that it was not necessary saying:

“You only own the Villa, not the land. You don’t need a conveyancer, the Villas are not old, so you will be able to save on all those costs.”

68. Ms Timms asked for the Villa not to be sold to another and Kirsty required a deposit of $2000 for that purpose. The deposit could not be afforded by Ms Timms. Ms Timms was provided with a brochure, which was in or to the same effect as the information on the website.

69. Eventually, Ms Timms settled on the sale of her own home on 5 May 2010 and made a firm decision to buy Villa 8. There were various emails, some of which dealt with the price, including an agreement that there would be a price reduction of $9,900. Eventually, Ms Timms bought Marina Villa 8 for $180,000.

70. It was necessary for Ms Timms to pay a deposit of $2000, for which purpose she attended Hacienda Park and met, again, with Kirsty. Ms Timms paid her the $2000 deposit in person. Ms Timms also gave her a letter from her solicitors, dated 20 April 2010, confirming the settlement date for the sale of the house as 5 May 2010.

71. Kirsty gave Ms Timms a number of documents for her to sign. Other than a sales agreement of which Ms Timms was given a copy, Ms Timms was unable to recall any other documents. Nor was she able to recall the exact conversations, but could recall certain things.

72. Ms Timms recalled that the price reduction was said to be confidential and no one else ought to know about it. Arrangements were made for Ms Timms to move into the park on 1 May 2010, but the balance of the payment for the Villa would not be paid until 7 May 2010.

73. On 22 April 2010, a letter was written from Tweed River Hacienda Holiday Park advising Ms Timms that her Application for Occupancy had been approved. Ms Timms did not recall completing an Application for Occupancy, but, she accepts, it may have been one of the documents signed by her of which she has no recollection.

74. When, on 1 May 2010, Ms Timms attended on the office and obtained the keys to Marina Villa 8 from a person identified as Helen, she was asked to sign further documents and, in doing so, dealt with another person named Tanya. She then signed the Occupation Agreement. Each of which is in evidence.

75. Ms Timms was given a copy of the Occupation Agreement and Schedules 1 and 2 thereto. She did not read the documents at the time and left the office with the keys and documents and moved into Marina Villa 8. She has resided permanently at Marina Villa 8 since that time and it is her principal place of residence.

76. The remainder of the purchase price, a balance of $178,000, was paid on 7 May 2010. This was paid by way of cheque from solicitors representing the Ms Timms in the sale of her home as part of the directions for disbursement of the sale of the home.

77. About a week after Ms Timms moved into the Marina Villas, Ms Timms commenced to read through the documents and, in particular, the document entitled “Occupation Agreement”. In doing so, Ms Timms noticed that the Agreement indicated that she could not use the site for more than 180 nights per year. This concerned her and, as a consequence, she telephoned the Hacienda Park office and spoke to Helen, whom she had previously met. The conversation was in or to the following effect:

Ms Timms:   “It’s Barbara Timms, from Villa 8. I have been reading through my documents and noticed the Occupation Agreement I was given indicates that I can stay in the park for 180 days. This is not true I’m here permanently.”

Helen:      “It doesn’t apply to you and it’s not monitored anyway.”

Ms Timms:    “I’m going to put a line through it and through the Clause that I can’t stay here for more than 28 days at a time.”

Helen:       “You don’t have to worry, we don’t monitor it.”

Ms Timms:    “Why isn’t the green part completed?”

Helen:    “It’s okay that is only the occupant’s copy it is not necessary on that.”

78. Whilst Ms Timms was on the phone to Helen, and as stated to Helen, Ms Timms crossed out the line containing “180 days” under the heading “Additional Clauses” referring to 45.1 and 28 days at 45.2. The altered copy of the document is in evidence.

79. In about September 2010, Ms Timms discussed with John Hodson and Brian Hamilton the possibility of installing carports. In speaking with another resident of Hacienda Park, Ms Timms was advised that approval was required from the Tweed Shire Council and was given a contact, being Mr Alain Le Grande.

80. Ms Timms contacted Mr Le Grande; he attended the site and there was a conversation in or to this following effect:

Ms Timms:      “What is needed for us to get carports?

Mr Le Grande:    “You will need to get an engineer to draw up plans. You will also need to get the Park owners’ approval and complete an application with Council.”

81. Ms Timms advised some other Villa owners of the discussions she had with Mr Le Grande. There was disagreement amongst the Villa owners about what should be done and the plans were put on hold.

82. In about May or June 2011, Mr Le Grande and another, who introduced himself as also from Tweed Shire Council (the Council) visited Ms Timms and they had a conversation in or to the following effect:

Mr Le Grande:   “I am interviewing all the owners of the Villas. When you came into the Park where you offered full-time or casual?

Ms Timms:       “Permanent. I sold my house to move into this home.”

Mr Le Grande:    “Don’t go ahead with the carport at this stage.”

83. Sometime later in 2011, or possibly early 2012, according to Ms Timms, numbers were painted on the road outside the Marina Villas. The number 66 was painted outside the Marina Villa occupied by Ms Timms, notwithstanding that she had purchased Marina Villa 8.

84. On the advice of a person from the Affiliated Residential Park Residents’ Association Inc, Ms Timms submitted an Informal Access Request to the Council, requesting access to the dwelling approval for Site 66 in Hacienda Park. That request is in evidence.

85. On about 8 March 2012, the Council replied to the request. That letter, which is in evidence, enclosed the section 68 Approval to Operate the caravan park and a copy of the community map for the Hacienda Caravan Park, showing Site 66 as a short-term site.

86. The letter records that the Council’s official records has no approval for a construction of a dwelling on Site 66. That letter and the accompanying documents to which reference has been made, as earlier stated, is in evidence.

87. Ms Timms then, on or about 27 May 2012, submitted another Informal Access Request to the Council requesting the dwelling approval and/or application for the placement of a UMD for the site of Marina Villa 8 and/or Site 66. By letter dated 6 June 2012, the Council responded to the request.

88. The response letter, which is in evidence before the Court, refers to and encloses an undated application for installation of a UMD on Site 66, which was refused on 24 October 2005; a reference to the earlier letter of 8 March 2012, see above, reiterating that a search of Council’s records has failed to find any approvals for construction on Site 66; and, that a search of Council’s records failed to find any approvals for construction of a dwelling on Site 8.

89. The letter also included a copy of a letter, dated 19 March 2007, addressed to Mr John Willmott (a defendant in the proceedings) at Hacienda Caravan Park, in regards to section 68 Approval to Operate. Relevantly, the Approval to Operate lists a number of sites as short-term sites, being: site numbers 1 to 40, 42, 43-53, 57, 62-72, 78, 79, 84, 85, 92-94, 101, 102, 107, 108, 116-122, 133-135, and 140-153. There are a number of conditions imposed upon the approval, which, at this stage, it is unnecessary to recite or to summarise.

90. The Marina Villas are numbered 39, 40, 42, 53, 62, 64, 66, 68 and 71 on the plans. The 8th Marina Villa from the west is number 66 and is the Villa otherwise referred to as Marina Villa 8. It, together with the other nine villas in that group, sits opposite the private harbour and away from the other units or campsites in Hacienda Park. None of those Marina Villas are listed as permanent, full-time or long-term sites in the Approval Letter of 18 September 2011.

91. During the course of living at Marina Villa 8, Ms Timms has undertaken a number of renovations that, she testifies, would not have been undertaken, if she were to have been aware that she could not live at the Villa site permanently. Those payments include $1,818 in about 8 March 2011 for awnings to provide shade; $530 for a permanent cupboard on the veranda, which was expended on or around 12 March 2014; and payment of $350 for materials to build a retaining wall in about September 2014.

92. During the time that Ms Timms has resided in Marina Villa 8, she has paid site fees continuously, which are debited from her bank account. Those fees were $175 per week, initially, and, at the time of swearing her Affidavit, had moved to $461.50 per fortnight. She received Centrelink rent assistance on the basis that Marina Villa 8 is her permanent home (a fact that Hacienda or Mr Willmott confirmed or was required to confirm).

93. Ms Timms attests to the fact that she would not have purchased the Marina Villa 8, if she had thought she could not live there on a permanent basis. She believed, on the basis of the material on the website and the discussions she had with one or other of the defendants’ representatives, together with the appearance of the Villa and its permanent features such as concrete footings, plumbing, sewerage and electricity, that the sale of Marina Villa 8 was a sale that allowed her to live there permanently and use Marina Villa 8 as her principal place of residence. Further, she would not have undertaken the renovations, referred to above, if she were aware of any other arrangement than permanent residence.

94. Ms Timms’ son, Brian, and his former wife, Ms Hayter, also swore affidavits which, to the extent that each was involved in transactions or discussions, corroborates the evidence of Ms Timms. Further, Ms Hayter, in cross-examination, accepted that Ms Timms did not show her the Agreements, but had a clear recollection that she asked Ms Simons three times about permanency. She did so because of the name “Holiday Park” and wanted to make sure that Ms Timms could live permanently at the Park, as Ms Timms wanted.

95. In cross-examination, Ms Timms made it clear that were she not to have purchased Marina Villa 8 she would have looked for another suitable home, but she was unaware of the precise cost to her of that home.

96. Notwithstanding her statement as to awareness when in the witness box, her Affidavit of 26 May 2017 annexes advertisements for accommodation, other than Marina Villa 8. One example of that was a unit (5/156 Pacific Drive Port Macquarie) at Shelly Beach Resort, which was listed for sale at $195,000, some $6,000 more than was paid for the Marina Villa. There are examples of other advertisements for the sale of other UMDs.

97. Predominantly, the cross-examination was directed at Ms Timms’ enjoyment of the expected benefits of living in Marina Villa 8 on a permanent basis. Ms Timms did not suggest that she missed out on anything that she otherwise expected, if the land she had obtained were permitted to be the subject of permanent residency.

98. While the Villa is described as “movable”, Ms Timms maintains that the dwelling is not movable, because it does not have wheels and it is permanently affixed to the land. Further, as far as she can tell, not being an expert, it could not be moved in one piece. No evidence was adduced to the contrary.

99. In cross-examination, she also clarified that she understood that she was to be on the land permanently, as long as she was there, or for as long as she paid rent and had not considered what would happen if the caravan park had closed down. Ms Timms had never stayed in a caravan park before.

100. Ms Timms was definite that Kirsty, a representative of Hacienda and/or other defendants, had said that the residence was “Council approved for permanent residence”, but is unclear as to the conversation in which that occurred. Any difference between the terms of a conversation in the Affidavit and in a previous statutory declaration as to the details of the conversation relates, predominantly, to the inability of her to refer to previous emails at the time of crafting the document.

101. Brian Timms, Ms Timms’ son, corroborated her evidence to the extent of his knowledge. He agreed, in cross-examination, that his mother enjoyed living there and that, he thought, she would want to continue to do so.

Sandra Sorenson

102. Ms Sandra Sorenson swore Affidavits of 1 August 2016 and 25 May 2017. In the Affidavit of 1 August 2016, she attests to the fact that she and her late husband desired to retire and were keen to retire to a place that was close to the water, so that her husband and she could engage in boating and kayaking activities. They had experience of camping and enjoyed that experience.

103. In early October 2010, she was advised of the villa units for sale by a friend and she and her husband decided to camp, casually, at Hacienda Park. That stay made a very good impression and Ms Sorenson said that the park seemed to “tick all the boxes for what we had in mind to buy to retire in”.

104. After a conversation between Ms Sorenson and her late husband, they approached the office and a representative of Hacienda, by the name of Peter (Peter Simons), drove them to look at the available locations. They informed Peter that they were looking for a place to live in their retirement.

105. Peter showed them a villa, being a Marina Villa and informed them that it was the last villa left in this size. There was a discussion about the possibility of building a carport and a further mention of their desire to live in the location in their retirement.

106. During the terms of that conversation, or one of the conversations that occurred, an enquiry was made by Ms Sorenson’s late husband, as to the capacity to purchase the Villa conditional upon the selling of their current house, which they were in the process of selling. Peter, the representative of Hacienda, as already stated, informed them that this was not possible.

107. They were handed a brochure and shown the inside of the Villa, which they inspected at their leisure.

108. Ms Sorenson attests to the fact that she and her husband inspected under the Villa and noticed that it was sitting on concrete foundations and the power was hard-wired, with an electricity meter that was located at the front of the Villa. This was noticed, particularly, because Ms Sorenson’s mother lived in a similar situation in Queensland and her home still had the wheels attached, and was perched on pillars, with extension leads from the power box to the home.

109. On returning home, and after discussion between them, Ms Sorenson’s husband rang the number on the advertisement/brochure and said to the person who answered, words to the effect that they wanted to go ahead with the purchase and that their solicitor would be in touch to sort out the sale.

110. Ms Sorenson and her husband were represented by a solicitor and the material provided by the solicitor is before the Court. Michael Singh Lawyers acted on behalf of Ms Sorenson and her late husband in respect of the purchase of Marina Villa 6 at the Hacienda Holiday Park. The letter confirming that representation is before the Court.

111. On or about 27 October 2010, Michael Singh Lawyers provided a summary to Ms Sorenson and her husband of the Sale Agreement. That summary is before the Court.

112. It is important to note, at this time, and greater attention will be paid to the issues later in these reasons the judgment, that the Sale Agreement, was one only of the documents that were required to be executed. Over and above the Sale Agreement, there was executed an Occupancy Agreement.

113. Given the terms of the letter of 27 October 2010, and the advice as to what should be prepared and what it should contain, it seems that an Occupancy Agreement or the Occupancy Agreement was not provided to the solicitor or to Ms Sorenson or her husband at that time. Indeed, the evidence before the Court is that the solicitor was provided with a completed Occupation Agreement, for the first time, on 28 February 2011, which was approximately one week after the purchase of the UMD, a receipt for which was provided on 21 February 2011.

114. As stated, the advice from Michael Singh lawyers included an advice as to what should be contained in an Occupancy Agreement that was to have been provided by the defendants or one of them. No advice was provided as to the terms of any Occupancy Agreement that had been sighted.

115. The Occupancy Agreement that Mr and/or Mrs Sorenson were provided and executed, on attendance at Hacienda Park, was a standard form Occupancy Agreement. Amendments sought to one or more documents were peremptorily rejected and neither Hacienda nor any other defendant were prepared to negotiate the terms of the contracts: see s 22(2)(j)(i) of the ACL.

116. The Occupancy Agreement is poorly drafted. Relevantly, as was the case with Ms Timms and the other purchasers/occupiers, the Occupancy Agreement contained a Clause 45 in the following terms:

“Clause 45    Occupation of the Site

The occupant agrees

45.1    During the course of a year not to use the site for more than the number of nights set out in the Schedule 1;

45.2    Not to use the site for any continuous period of greater than the number of nights set out in Schedule 1 except with the prior permission of the park owner;

45.3    If the site is occupied for a period greater than the number of nights permitted under Clause 45.2 to pay the occupation fee set out in schedule 1”

117. There is then a separate document with the heading “Occupation Agreement Schedule 1 & 2” which, according to its terms is “to be read in conjunction with attached Occupation Agreement [Green]”. That document described as Schedule 1 & 2 is in three parts: the first part is headed “Introduction”; the second part is headed “Part 2 & 3-Occupation Fees and Charges, Rights & Obligations”; and the third part of the page is entitled “Additional Terms”. Under the heading “Additional Terms”, there are the following entries:

“45.1    One hundred and eighty

45.2    Twenty eight”

118. While it is unclear from the document whether the “Additional Terms” are part of Schedule 1, each of the parties (and the purchasers/occupiers) seems to have assumed that the reference to 45.1 is a reference to Clause 45.1 of the green Occupation Agreement and the reference to 45.2 is a reference to Clause 45.2 of the green Occupation Agreement. The foregoing cross-reference is not expressed in the document itself. Nor does the document make clear whether the “Additional Terms” are part of Schedule 1 or Schedule 2.

119. As a consequence of the foregoing, leaving aside for present purposes the effect of the subsequent conversation with Ms Timms purporting to alter the reference to 180 and 28, the written document limited each of the total number of nights in any one year and the duration of every continuous period of occupation.

120. The Sale Agreement was executed by Ms Sorenson and her husband and provided to the defendants, or one of them, on or about 4 November 2010, and, on or about 12 November 2010, the purchasers’ solicitors asked Ms Sorenson and her husband to prepare a bank cheque for the deposit of $9,500.

121. On 21 February 2011, the sale and occupation was completed. Ms Sorenson and her late husband paid the balance of the purchase price of $180,400 by cheque to Hacienda. She delivered them personally and received the keys.

122. The new occupants made improvements to the Marina Villa after moving in. These included the building of a pantry; linen and broom storage; an enclosed deck; installation of shutters, blinds; and a small roof extension. They also replaced the stovetop; the hot water system; installed ceiling fans, a ventilator and a dishwasher.

123. In or about April or May 2011, Ms Sorenson’s late husband received a visit from an Officer of Tweed Shire Council, Mr Alain Le Grande. As a consequence of the conversation with that Officer, as relayed by Ms Sorenson’s late husband to her, Ms Sorenson became suspicious of the status of the Villa and whether it was Council approved or deemed to be a permanent dwelling.

469. Dealing with the substance of the defendants’ case, it first deals, somewhat theoretically, with the meaning of the representation of “permanency” or the meaning of the term “permanently” or “permanently occupied”. Essentially, the defendants submit that nothing is “permanent”.

470. The term permanently or permanent is not used in the sense of “forever”. Rather, the context of the pleading and the context of the “evidence” is to use the term in contradistinction to “casually”, or as holiday accommodation, in a similar but not identical way to the use of the term in the expression “permanent employment”.

471. The term “permanent occupation”, in the context of the proceedings before the Court in this matter, is used as meaning full-time and indefinite. In that sense, the term refers to something that “happens all the time” or “remains unchanged indefinitely”.

472. The Australian Concise Oxford Dictionary (H. Moore, Australian Concise Oxford Dictionary (4th ed, 2003)) defines “permanent” to mean “lasting, or intended to last or function indefinitely”. The Macquarie Dictionary (A. Delbridge, The Macquarie Dictionary (3rd ed, 1997)) refers to additional meanings of “remaining unchanged; not temporary; enduring; abiding”. The Unabridged Oxford defines the term as “continuing or designed to continue indefinitely without change”. It is that last definition that is most fitting for the context of these representations. The fact, if it be the fact, that land may be compulsorily acquired by government, or sold to a developer, for example, does not assist the defendants.

473. In the case of each of the occupiers to which these proceedings relate, their evidence is uncontested, that, in the context of an enquiry about a retirement home or not living at a holiday home or otherwise, see summary above, the conduct and statements of representatives of the defendants, at the behest of the third defendant, Mr Willmott, was that each of the occupiers, when they so chose, could live for as long as they so chose, without interruption, and/or all the time.

474. In the case of the plaintiff’s claims for unconscionable conduct, the defendant summarises the plaintiff’s pleadings in a manner, which does not accurately reflect the total extent of the pleadings, for the purpose of demolishing them. The pleaded case against Hacienda and Jonval is that they acted in concert and, in the case of Jonval, they sold the Marina Villas knowing the circumstances of each consumer and Hacienda rented or licensed the sites, again, knowing the circumstances of each potential occupier and that their conduct was unconscionable in that there was no Council approval for those Villas to be erected on those sites and for those sites to be used other than on a short-term basis.

475. As has been made clear, earlier in these reasons, whatever approval had been granted by the Council, that approval allowed the Marina Villa sites to be used only for short-term sites. Further, whether the approval existed at all for the erection of a Villa on those sites, which depended on an understanding of the approval letter from Council, the structure erected on each site in the draft plan to which the letter referred, was not a structure which accorded with, in each case, the Villa located on each Villa site.

476. The representations as to permanent fixing are in evidence. Ms Kirsty Simons told Mr Denley, in answer to an enquiry as to whether the villas were transportable, that they were not and that they were “concreted to the ground”. Thereafter, Mr Denley inspected the Villa and the sites and confirmed that representation.

477. Similar observations were made by Mr Hodson, Mr Pestridge, Ms Timms, Mrs Hannah, Ms Sorenson, Mr Hamilton and Mrs Hamilton.

478. There is also the issue of the “vendor’s finance”, which seems to have been provided by Mr Willmott, through Jonval, to each of Mr Pestridge and Mr Denley. The contracts, to the extent that they are before the Court, do not accord with any of the legislative requirements and, it is accepted by each party that none of Mr Willmott, Jonval and Hacienda are registered for the purpose of providing finance.

479. The defendants submit that it cannot be unconscionable to enter into contracts that were “fully performed”. The fact, if it be the fact, that each occupier lived on the premises “permanently” (or was able so to do) does not render the representations and the making of the contracts not unconscionable.

480. First, the contracts (subject to alterations seemingly effected by one or other occupier) provided for limitations on the duration of any stay in any one year and on any consecutive basis. Secondly, they were only “fully performed” because the defendants represented that the occupiers could conduct themselves in that way and in so doing represented that Hacienda and/or Mr Willmott would behave unlawfully and encourage the occupiers to behave unlawfully, in circumstances where the occupiers were, at the time of the representation and the decision to enter into the contract, unaware that the conduct was unlawful.

481. It cannot be the situation in law that a party can represent, other than unconscionably, that conduct can be performed, inconsistent with a contract, in circumstances where the conduct was, even apart from the breach of contract, unlawful and prohibited by law. Such a representation, inducing, as it did, the purchasers/occupiers into purchasing the goods, must be unconscionable.

482. Next, the plaintiffs rely upon the approval of 26 October 2006, to which earlier reference has been made. As already indicated, the defendants’ reliance upon that approval is misplaced. But, even if they were able to rely upon that approval as an approval for the placement of Villas, they would have to be Villas that accorded with the plans submitted. There is no suggestion that the structures on the Marendy plans disclose the structures ultimately erected on the sites.

483. Nevertheless, as already indicated, the approval granted on 26 October 2006 was an approval for the “sites”, not the structures thereon.

484. The defendants admit that, in light of the letter of 26 October 2006, it cannot be said, nor can the Court be satisfied, that the defendants “knew” that the Villas were not approved for those sites. That submission of the defendants, which relates to all the knowledge of the defendants, is unsupported by any evidence. The defendants have chosen not to adduce evidence as to the state of mind or knowledge of Mr Willmott who, relevantly, is the controlling mind of the corporate defendants.

485. Secondly, the submission is inconsistent with the evidence otherwise adduced, being notes of meetings and correspondence between Mr Willmott, on the one hand, and Council representatives on the other. While it is accurate to suggest that the Council was attempting to find some process, which could overcome the impasse between the defendants and Council, it is also obvious from the correspondence and the meetings that Mr Willmott was aware of the three stage process necessary to obtain approval of the Marina Villas to which the Council representatives attested in evidence.

486. That three stage process was the subject of evidence from Mr Ainsworth (and others) and required: first, development consent (or an amendment to current approval that already existed), relating to the approval to operate; secondly, there was a need to obtain development consent approval, in relation to any boundary adjustments; and, thirdly, approval under s 68 of the Local Government Act was required to relocate (or to locate for a first time) an individual structure on the particular site.

487. The evidence, as a whole, makes it abundantly clear that Mr Willmot was aware of that three stage process and, most importantly, was aware: first, that the Marina Villa sites were, once approved, approved only for short-term purposes; and, secondly, that the particular structures located on each of the Marina Villa sites had not been approved at all. It was the application by Mr Willmott that sought the approval of the sites as short-term.

488. It is simply inaccurate to submit that neither Hacienda nor Council had ever enforced or policed the limitation clauses. The defendants reserved to themselves the ability to enforce the contract as was disclosed in their attitude to the purchasers/occupiers during, or as a result of, the NCAT proceedings. Even if it were correct, it would not render the conduct other than a misrepresentation and/or unconscionable.

489. If there were to have been a failure to enforce, it speaks only of the resources and/or desire of Hacienda or Council. It does not render the conduct of Mr Willmott, Hacienda (or Jonval) lawful or any less unconscionable.

490. Mr Willmott, Jonval and Hacienda were charging money to persons for goods or services they were purporting to provide in circumstances where they had no legal capacity to provide those goods or services. Such conduct is, almost by definition, unconscionable and, to the extent that the services that were purported to be provided were the subject of representation, either by statement or conduct, that the services were capable of being provided or were to be provided, such representations were either by statement or conduct, necessarily misleading or deceptive.

491. Not only are the permanency representations made out, they were misleading and deceptive. The fact, if it were the fact (which it is not), that no attempt was made to enforce a lack of permanency, does not make the representations any less misleading or deceptive.

492. The submission of the defendants, as to the failure of the plaintiff to make out its case, confines that case to some evidence only and, in so doing, ignores the evidence of representations that go beyond the policing and enforcement of the limits that were prescribed in the Occupation Agreements.

493. Next, the defendants rely upon the series of letters which notify Hacienda and Mr Willmott that there were no “outstanding matters”. On a subjective basis, if that be the purpose of the submission, it cannot be said at the time those letters were written and delivered that Mr Willmott or Hacienda was under any illusion as to the outstanding issues relating to approval and the short-term nature of the Marina Villa sites.

494. Secondly, to the extent that the letters are relied upon as “objective” evidence of approval of the sites, they do not withstand even the mildest of scrutiny. The contentious letters referred to “outstanding matters”. The evidence before the Court was that it related to cleanliness, toilet facilities and the like, painting, and general areas of dilapidation. It was not intended to deal with matters of contention between the Council and the operator.

495. Further, it could not be said that the issues of approval were “outstanding”. They were the subject of current exchanges of correspondence and meetings.

496. Clearly, the meaning of the term “outstanding”, in the context of the relevant letters, does not refer to something that is “excellent” or “stands out”. It is intended to be a reference to matters “that have not been resolved or dealt with” and need to be.

497. As a consequence, “outstanding matters” would not detail those matters with which Council were already dealing. The Marina Villa sites (and the erection of the Marina Villas) were matters with which the Council was already dealing.

498. Ultimately, the matters upon which the defendants rely to answer the evidence adduced on behalf of the plaintiff and their claims do not withstand scrutiny. The plaintiff’s case has been made out. The Court is satisfied that each of the defendants has engaged in misleading or deceptive conduct and conduct that is unconscionable within the meaning of the statute.

499. There are other issues that should be clarified. Some minor attention was given to the contractual relations between Hacienda, on the one hand, and Ms Hickling, Mr Simons and Ms Simons, on the other. Based on some evidence of Ms Holt, the defendants submitted, it seems, that these persons were not employees. The evidence is not sufficiently detailed to conclude the nature of the relationship. But it matters not. The ACL provisions (and the pre-2012 FTA provisions) apply to “agents” as well as “employees”. Each of the named workers (or staff in the office) were agents of Jonval, Hacienda and Mr Willmott for all relevant purposes.

500. The Court has already dealt with the nature of the representations. Even so, it is necessary to detail, once more, the pre-contractual context for each purchaser/occupier.

501. Ms Timms was knowingly seeking retirement living. She was told the clauses that limited occupancy duration did not apply to her and that the duration, in any event, is not monitored. The Sorensons made it clear, also (as did all of the purchasers/occupiers), that they were seeking a place “to live in their retirement”.

502. In relation to the Hannah Villa, the Hannahs made it clear that they wished to live there on a “permanent” basis and said they intended “living [t]here permanently”. Mr Hamilton made it clear he was to live there “permanently with his wife”. It was Mr Hamilton who, apart from the usual representations as to permanency, was told that the owner “had been [t]here for 25 years” and was not moving.

503. Mr Denley, like Ms Timms and others, was told that the duration limitations did “not apply”. He has not made loan payments since 16 October 2014. Mr Hodson was told that he could live there permanently and “as long as [he] like[s]”. Mr Pestridge, after being re-assured as to permanency, was advised as to the parking for two cars and that he “could stay as long as … [he] … like[s]”; and that the 180 day limitation was “only for people with holiday units” and that he “can stay as long as … [he] … like[s]”.

504. The similarity in the representations by Mr Simons, Ms Simons and Ms Hickling are startling and give verisimilitude to the content of the representations and the evidence that the staff were coached in what to say. It also makes more relevant the direction to Ms Holt that, beyond the matters on which she was coached, she was to refer enquiries to Ms Hickling.

505. Earlier in these reasons the Court referred to the cross-examination of the witnesses, with particular reference to Ms Sorenson (see [132]-[133] infra). It is appropriate, although ultimately unnecessary for the findings, to refer to the issues raised as to the purchase of the UMD and the ability to move them or sell them.

506. First, I accept the evidence that the “homes” could not be moved easily, or at all without major work: the disconnection of services; the separation from concrete footings; and the division of the home into at least two parts (being the way they were installed). Further, at the same practical level, the consent and co-operation of Hacienda (and Homestead Park) would be required.

507. On a contractual level, the propositions put to the witnesses do not withstand scrutiny. First, cl 23 of the Occupation Agreements prevents the occupier from selling the “movable dwelling” while it is on the site without the prior written permission of the Park owner (or an order from what is now NCAT). As a consequence, the proposition, put by Counsel, that an occupier could move or sell a dwelling is, in its terms incorrect.

508. Secondly, under cl 47 of the Occupation Agreement, the occupier had agreed: to install any movable dwelling and any additions as directed by the Park owner (cl 47.10); not to install and movable dwelling other than the one prescribed by the Schedule (cl 47.2); and not to bring any other dwelling onto site without the agreement of the Park owner (cl 47.4). By cl 49, the occupier agreed to maintain the dwelling in a condition satisfactory to the Park owner; and, by cl 50, the occupier was not entitled to build, extend or alter the dwelling on the site without the Park owner’s permission.

509. The combination of the foregoing contractual obligations required the Park owner’s consent for sale, removal, alteration or extension of the dwelling specified in the Schedule. Thus, both practically and contractually, no occupier could sell or move a dwelling without express consent. It was misleading and inappropriate, given those contractual limitations, to suggest that any occupier could sell the dwelling; or to move it. Each required the consent of Hacienda and Mr Willmott.

510. While dealing with the nature of the contracts, it is necessary to repeat that each Occupation Agreement specified, in the “Schedule” thereto, the villa that was supplied. The Sale Agreement was part of an intertwined collateral arrangement. The Sale Agreement referred to the villa by its site number e.g. Ms Timms was sold “Marina Villa 8” (cl 1). Further, the Sale Agreement was to be “cancelled” if the purchaser was not approved as an occupier of Hacienda Park (cl 11 of the Sale Agreement) and provides, somewhat incongruously, that the “Park owner” grants the purchaser “the right to hire out” the dwelling (Sale Agreement, cl 12): see, for example, Exhibit C1 at pp 19-20.

511. Next, it is necessary to deal with the issue raised about whether the Hodsons or Hamiltons were consumers. This, it seems, relates to the fact that the Hodsons purchased the dwelling through their Superannuation fund Trust and they and Mrs Hamilton were renting out the premises (Mrs Hamilton living for a significant time in South Australia to be with family).

512. The definition of “consumer” in the ACL is contained in s 3 thereof. The dwellings are ordinarily acquired for “personal, domestic or household use”: s 3(1)(b) of the ACL. Similarly, the licence of the site: s 3(3)(b) of the ACL (if it is a licence) is a service.

513. By the provisions of s 3(2) of the ACL, the definition does not apply if the goods are acquired “… for the purpose of re-supply”: s 3(2)(a) of the ACL. That exception does not apply to the provision of services.

514. The express purpose of each of the Hodsons and Mrs Hamilton was for the purpose of living in the dwelling in retirement. It was not for the purpose of re-supply by rental or otherwise. As a consequence, the evidence is that the purpose of each of them is not re-supply.

515. As to the interposing of the Superannuation Trust, there is no evidence as to its functions or its structure. However, given the current state of the law, the Court can assume that it is a trust, the beneficiaries of which are the Hodsons. It seems, although the evidence is not significant, that at least Mr Hodson is a Trustee.

516. The interposing of a trust as the purchaser of goods for a beneficiary does not necessarily involve a re-supply. There may be some circumstances where it does, but it is for the defendants to show that the Hodsons were not consumers: s 3(10) of the ACL. They have not shown that.

517. Further, the occupation by the Hodsons is not a “re-supply” of the dwelling. It is the use of the dwelling other than by way of “sale, exchange, lease, hire or hire-purchase”. This argument of the defendants fails.

518. The foregoing conclusions apply equally to the ACL, the ACL (NSW) (if it be different) and to the pre-2012 Fair Trading Act, at least at all relevant times.

519. Apart from the foregoing, and in addition thereto, the Court accepts fully the plaintiff’s written submissions on the conclusions of fact and on the operation of the law and does not need to deal separately with any other issue and, except as indicated hereafter, as to the orders to be made, makes all the findings sought and in accordance therewith.

520. Despite the conclusions reached by the Court as to the involvement of Mr Willmott in the misleading or deceptive conduct (see ss 239(1)(a)(i) and 239(2)(a) of the ACL and also s 72(1) of the FTA), and to the collateral nature of the arrangements, or that each of the defendants were acting in concert, the plaintiff puts its case much more narrowly. It seeks orders against Mr Willmott only on the basis of unconscionable conduct.

521. I have already made clear that Mr Willmott, on the evidence before the Court, has acted unconscionably (see [447](xx) and (xxi) infra). My general statement at [524] particularly applies to the plaintiff’s written submission at [128] and following. The foregoing is not intended to limit my adoption of the plaintiff’s submissions at [524], infra.

469. Before dealing with the appropriate orders, it is necessary to acknowledge that the allegations of conduct that amount to misleading or deceptive conduct or unconscionable conduct are extremely serious, and require an appropriate level of satisfaction: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. I am so satisfied.

Orders

528. The plaintiff seeks multiple orders. The plaintiff seeks declarations; injunctive relief; and damages or compensation payable to each of the occupiers of the Marina Villas to which reference has been made. The submissions of the defendants raise issues of principle and of fact, relating to those orders.

529. First, it is said there is no evidence upon which the Court could be satisfied that there is a danger of further conduct that is misleading or deceptive or unconscionable. To the extent that the proceedings have related only to the question of the Marina Villas and the Marina Villa sites, the defendants’ submission is partly accurate, to the extent that there are no more Marina Villas and no more Marina Villa sites available for sale or occupation. However, advertising continues. If, as the plaintiff requests, the Sale and Occupation Agreements are rescinded and orders are made for the return of the purchase prices, those Marina Villas and Marina Villa sites would again be available for “sale”.

530. There is no suggestion that the conduct in which the defendants have engaged and which is outlined in these reasons for judgment would not occur again. On the contrary, the attitude of the defendants in these proceedings is that there is no reason why the defendant ought not engage in that conduct and nothing impermissible in the conduct itself (or, presumably, its repetition).

531. Against that, the defendants are now aware of the view of the Court of their conduct. It may well be that, now that the defendants are aware of the unlawfulness and illegality of their conduct, they would not engage in it.

532. On the basis of the evidence before the Court, I am inclined to the view that there is a real threat that the conduct would continue. Nevertheless, I am also mindful of the fact that the plaintiff is a regulator, which is capable of seeking injunctions if the conduct should be repeated or, in the case of advertising, continues. In the circumstances, no injunctive relief will issue at this point in time, but the Court will grant leave to the plaintiff to approach the Court for injunctive relief, if there were to exist an indication of a threat of further conduct of the kind in which the defendants have already engaged.

533. Declarations will be made in accordance with the orders sought by the plaintiff. As to the orders for compensation and/or damage, there are a number of issues that arise. First, I am satisfied that, but for the misrepresentations and or unconscionable conduct, none of the occupiers would have purchased the Marina Villas and none of them would have entered into the Occupation Agreement relating to each of them.

534. Further, I am also satisfied that purchase of the villas and, in large measure, the improvements to the site were performed as a result of the misleading or deceptive conduct or unconscionable conduct and the belief, in the mind of each of the occupiers, that they were able lawfully to live, in retirement, in the Marina Villa and on the Marina Villa site.

535. The foregoing reference to “in large measure” is a reference, particularly to the situation of Mr Pestridge, who carried out some of the work after he had become aware of the issues with permanency. He did that for his own comfort. But that applied only to some of the renovations (Tcpt, pp 151.40-152.4).

536. Nevertheless, there is some evidence that some of the alterations have been made even though the occupier or occupiers were aware of the legal position in relation to the sites or the risk of it. There is also a natural inference available that the improvements that were made increased the enjoyment of each of the occupiers of the premises.

537. It seems, given the lapse of time that has occurred since the purchase and these orders, the compensation that should be provided for the improvements that were made to the sites and/or the Villas, should be reduced to take account of the purchaser/occupier enjoyment of the better facility. Of course, if the villas are returned to one or other defendant, the defendants will have the benefit of those improvements in their business and in renting out these holiday sites. The reduction should be minimal and I assess that compensation should be awarded at 85% of the costs incurred. Pre-judgment interest will apply from the date the expense was incurred at the same rate as post-judgment interest.

538. The defendant submits that the Court should not award damages, because the occupiers have “enjoyed” the benefits of their purchase and can continue to “enjoy” the benefits, because the restrictions are not “policed”. This is the other side of the coin of the submission that the Court should lend itself to an illegal or unlawful occupation, which would be contrary to law. The Court will not.

539. The “benefit enjoyed” by each of the occupiers is significantly diminished by the stress and anxiety that has been inflicted on the occupiers after they learnt of the precarious situation of their occupation. Each of them, either expressly or in the demeanour of their evidence, disclosed a significant level of anxiety as to the situation in which they were placed. I do not consider that what they have been given is a “benefit”. Nor do I consider that they have “enjoyed” it.

540. More importantly, each of the occupiers has paid rent to Hacienda for the occupation of the Villas. That rent is the payment for the occupation of the site and adequately compensates, in the circumstances, for the “benefit” that the occupiers have “enjoyed”. The level of rent is greater than for other sites, of which evidence has been adduced. The Council requirements provide that those Villas be owned by Hacienda Park and rented casually, if the 180 day limit, contained in the Occupation Agreement, is to apply.

541. The defendants raise, as a matter of principle, the inability of the Court to grant relief of the kind sought by the plaintiff for two reasons. The first reason is that there was no consent by each of the occupiers. The evidence before the Court is that there is such consent; it has existed for as long as the proceeding has been conducted; and the written consents were adduced in evidence in reply to the defendants’ submissions on this issue.

542. Next, the defendants submit that the basis of the orders that can be made should be the restoration of the occupiers to the position which he, she or they would have been in but for the actionable conduct. I agree with that submission in part, that is the reason that no orders will be made for the repayment of the rent.

543. Further, it is not the intention of the Court, in awarding the damages in this proceeding, to provide damages that would enable the occupiers to purchase that which they could have purchased at the time that they purchased the Marina Villa. As a consequence, it is not the “disappointed expectations… induced by a misrepresentation” that is compensated. It is the payment that was made as a result of the misrepresentation and the direct consequential losses associated therewith.

544. The major aspect of the opposition to damages and/or compensation that repays the price of the Marina Villas is that the defendants submit that the measure of damages cannot be on the basis that the purchase of each and registrable movable dwelling is to be “void ab initio”. This submission is put on two bases: first, it is not possible to postulate a hypothetical alternative scenario (see Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1, at 13-14; [1986] HCA 3).

545. Secondly, it is not possible to do so on the basis of a hypothetical alternative scenario, because there is no evidence suggesting what any of them would have done. In so submitting, the defendants maintain the proposition that the plaintiff is seeking damages on the basis of a “no transaction” case in circumstances where that which is alleged is that each occupier and/or purchaser would not have entered into “this specific transaction” to which, the defendants allege, the “no transaction” rules do not apply.

546. Current authority is to the effect that it is not necessary, albeit that it may be helpful, for a plaintiff in a “no transaction” case to prove the alternative transaction that would have been undertaken. It is sufficient for the plaintiff to prove (assuming it is the plaintiff that seeks the damages for himself, herself or itself) that the plaintiff would not have entered into the particular contract or transaction: Westpac Banking Corporation v Jamieson & Ors (2016) 1 Qd R 495; [2015] QCA 50 at [146], [147].

547. In Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Limited (2015) 326 ALR 556; [2015] NSWCA 264, the then President, Beazley P (with whom Gleeson and Leeming JJA agreed) said, at [133]:

“In my opinion, the trial judge was correct in stating that there was no strict requirement to prove a ‘no transaction’ or ‘different transaction’ case. Rather, it is necessary for a party to prove that in reliance on the misrepresentation it acted in a particular way that caused it loss and to then prove the quantum of that loss. That involves a consideration of the particular circumstances in which the conduct that caused the loss occurred. This was demonstrated in the recent decision of the Queensland Court of Appeal in Westpac Banking Corporation v Jamieson [2015] QCA 50.”

548. In so stating, the Court of Appeal explained the judgment of the High Court in Gates, supra. Reliance by the defendant on Gates is misplaced.

549. In Gates, the plaintiff was seeking the benefit of an insurance policy that did not exist and could not prove that, in the absence of the transaction to purchase the insurance policy he did purchase on the basis of the representations made as to the existence of such a benefit, he was entitled to that benefit. He may have been entitled, if he were to have shown that, in the absence of the representation, no insurance policy would have been executed, to the return of the premiums. That is analogous to what is sought by the plaintiff, on behalf of the purchasers/occupiers in these proceedings.

550. The purchasers/occupiers are not entitled to an order, assuming for present purposes that the Court were capable of making such an order, to the effect that they can live permanently in the Marina Villas on the Marina Villa sites. Such an order would be the equivalent of seeking the benefits of an insurance policy that did not exist.

551. Further, the plaintiff is not seeking, on behalf of the purchasers/occupiers, damages that would put them into, or enable them to pay for, similar accommodation on a similar site in a similar location. Rather, the plaintiff is, on behalf of the purchasers/occupiers, seeking to obtain the purchase price of the Marina Villas, which purchase price was paid as a result of the representations made by, and the unconscionable conduct of, the defendants.

552. The purchasers/occupiers are entitled to that compensation.

553. Further, the damage/compensation for each occupier/purchaser will include interest on the monies expended on the purchase from the date of purchase until the date of judgment at the rates prescribed for post-judgment interest, under the Supreme Court Rules 1970 (NSW) and, of course, will include post-judgment interest.

554. In the case of those persons who were provided vendor finance, the amount of purchase will be reduced by the amount of principal provided by the vendor (or any one of the defendants) and the interest will run on the remainder. Further, the compensation will include the cost of the finance, being any interest and/or charges occasioned by and paid under the loan transaction. To the extent that there are loan contracts, not otherwise void by operation of law, an order will be made declaring the loan contracts void.

555. The provisions of s 237 of the ACL and s 72 of the FTA apply to the awarding of compensation. The parties submit that there is no basis for any apportionment to the purchasers/occupiers, except to the extent that the “compensation” is not for a loss: see reference to Mr Pestridge at Tcpt, pp 151.40-152.4. Otherwise, the defendants are each responsible, by their conduct, for the whole of the damage. The compensation will be paid jointly and severally and shall not be apportioned. Further, the defendants shall pay the plaintiff’s costs of and incidental to the proceedings.

556. Two other issues require attention. First the contracts for the sale of the villas will not be “voided”. The Court will require an undertaking from each of the purchasers/occupiers to transfer to Jonval the villa that each owns. The compensation payable by the defendants will include any stamp duty originally paid or to be paid on the transfer required by the undertaking. The undertaking will require transfer within three (3) working days of the payment of the compensation.

557. Secondly, there is an issue as to the damages to Mr Pestridge for depression. I accept he has suffered depression as a result of the conduct of the defendants. The provisions of s 72 of the FTA do not permit an award of compensation for any “personal injury”, which, in my view, includes psychological injury. Such compensation will not include an amount to compensate his depression.

558. I will grant leave to the parties to apply for costs to be on a basis other than party-party costs or on a different basis to that indicated above. Such application shall be made by 10 February 2020 and will include any submissions or evidence in support thereof. Any such application and submission may be answered by any party affected by any such application within two weeks of its receipt. The issue of costs will be dealt with on the papers. The submission shall be no longer than five pages (excluding any evidentiary material relating to costs).

559. The Court directs the plaintiff to serve the defendants, through its solicitor, with a draft minute of order reflecting the foregoing reasons for judgment by 10 February 2020 and to file in court, by email to the Associate to Justice Rothman, by 24 February 2020, such draft of orders, or the minutes of order reflecting any agreement thereon between the plaintiff and the defendants.

560. To the extent that there is no agreement that the draft minute of order reflects the foregoing reasons for judgment, the defendants shall file any proposed minute of order prescribing that which they submit reflects the foregoing reasons for judgment by 4pm on 24 February 2020.

**********

Decision last updated: 31 December 2019