Dewar v Ollier

[2020] WASCA 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DEWAR -v- OLLIER [2020] WASCA 25

CORAM:   BEECH JA

VAUGHAN JA

ARCHER J

HEARD:   12 FEBRUARY 2020

DELIVERED          :   28 FEBRUARY 2020

FILE NO/S:   CACV 76 of 2018

BETWEEN:   CORINNA EVANGELINE DEWAR

Appellant

AND

SEBASTIEN OLLIER

First Respondent

ATNAM PTY LTD

Second Respondent

ANDREW JAMES WALKER

Third Respondent

ANDTRAC PTY LTD

Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   TOTTLE J

Citation: DEWAR -v- OLLIER [2018] WASC 212

File Number            :   CIV 1803 of 2015

Catchwords:

Appeals - Findings of fact based partly on credibility - Whether appellable error demonstrated - Whether judge erred in finding no breach of fiduciary duty and no unconscionable conduct

Limitation of actions - Whether claims statute‑barred - Whether claims 'founded on a deed' for limitation purposes - Whether any and if so which limitation period applicable to claim of breach of fiduciary duty

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 12CB, s 12GF
Limitation Act 2005 (WA), s 13, s 18, s 27

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	A J Musikanth SC & J C Van Der Walt
Second Respondent	:	C S Silver
Third Respondent	:	C S Silver
Fourth Respondent	:	C S Silver

Solicitors:

Appellant	:	In person
First Respondent	:	Jackson McDonald
Second Respondent	:	Chad Silver & Associates
Third Respondent	:	Chad Silver & Associates
Fourth Respondent	:	Chad Silver & Associates

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

Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1

Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 93 ALJR 743

Belan v Casey [2003] NSWSC 159; (2003) 57 NSWLR 670

Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2

Child and Adolescent Health Service v Mabior [2019] WASCA 151

Clay v Clay [2001] HCA 9; (2001) 202 CLR 410

Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91

Collard v The State of Western Australia [2013] WASC 455; (2013) 47 WAR 1

Dewar v Ollier [2018] WASC 212

Gerace v Auzhair Supplies Pty Ltd [2014] NSWCA 181; (2014) 87 NSWLR 435

Hewitt v Henderson [2006] WASCA 233

Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113

Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392

Knox v Gye (1872) LR 5 HL 656

Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118; (2018) 334 FLR 9

Lovell v Western Australian Police Union of Workers [2009] WASCA 34

Mayne v Public Trustee [1945] HCA 38; (1945) 70 CLR 395

Netglory Pty Ltd v Caratti [2013] WASC 364

Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187

R v McNeil [1922] HCA 33; (1922) 31 CLR 76

Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223

Smart v Power [2019] WASCA 106

Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317

Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; (2011) 15 BPR 29,699

Wu v Ling [2016] NSWCA 322

TABLE OF CONTENTS

Introduction

The facts as found by the primary judge

Ms Dewar's personal and work background

17 Mint Circuit, Banksia Grove

The respondents:  Mr Ollier, Atnam, Mr Walker and Andtrac

Ms Dewar enquires about a loan

Meeting on 2 April 2007

Events between 2 April and 13 August 2007

Meeting on 13 August 2007

September 2007

Ms Dewar decides not to proceed

Ms Dewar decides to proceed

Meeting on 2 November 2007

The RAMS application

The Broking Agreement

RAMS application unsuccessful

Meeting on 20 November 2007

The Mortgage Loan Application

Fastdoc Declaration of Financial Position

Record of Interview

Ms Dewar's understanding of the likely monthly repayments and her assessment of her financial capacity

Wholesale Funds application submitted

Mortgage Loan Summary

Lending criteria for a Fastdoc70 loan

The processing of the Wholesale Funds application

Wholesale Funds application approved

Signing of the mortgage and loan documents

Settlement of the loan transaction

Ms Dewar falls into arrears

Ms Dewar attempts to prevent enforcement

Ms Dewar notifies Mr Ollier of potential claim

Ms Dewar loses possession of 17 Mint Circuit

Ms Dewar commences proceedings

Ms Dewar's claims at trial

The primary judge's disposition of Ms Dewar's claims at trial

Contract and negligence claims

What duties were owed?

Were those duties breached?

Did the breach of duty cause Ms Dewar to suffer loss?

Was Ms Dewar contributorily negligent?

Did Ms Dewar fail to mitigate her loss?

What was the quantum of her loss?

Breach of fiduciary duty or assistance in breach of fiduciary duty claim

Unconscionable conduct claim at general law

Unconscionable conduct claim under the ASIC Act

The primary judge's application of the Limitation Act

Grounds of appeal

Principles of appellate review of findings of fact

Ground 2:  was the action founded on a deed?

Ground 3 and notices of contention ground 2: was the unconscionable conduct claim under the ASIC Act statute‑barred?

Ground 3.5: error regarding Operations Manual?

Grounds 4 and 8:  erroneous finding that Mr Ollier correctly assessed Ms Dewar as suitable for a low doc loan?

Ground 5:  the judge's approach to Dr Franzese's evidence

Grounds 6, 7 and 11:  was there a fiduciary duty and was it breached?

Grounds 9 and 10: unconscionable conduct?

Conclusion

JUDGMENT OF THE COURT:

Introduction

1. In 1995, the appellant, Ms Corinna Dewar, acquired a 70% interest in 17 Mint Circuit, Banksia Grove.  In early 2007, she sought a loan to pay off the existing mortgage, acquire the remaining 30% interest in the property and provide her with some further funds.

2. In March 2007, Ms Dewar came into contact with the first respondent, Mr Sebastien Ollier, who was a mortgage broker.  Thereafter, Mr Ollier assumed responsibility for arranging a suitable loan for Ms Dewar.  Mr Ollier was assisted by the third respondent, Mr Andrew Walker, who carried on a finance broking business through the fourth respondent, Andtrac Pty Ltd (Andtrac). 

3. On 2 November 2007, at Mr Ollier's request, Ms Dewar signed an agreement that named Andtrac as the finance broker and provided that Andtrac agreed to arrange a loan for her.

4. In November 2007, Mr Ollier prepared a loan application for submission to a mortgage originator, Wholesale Funds Australia Pty Ltd (Wholesale Funds).  The application was a 'no doc' loan application, which did not require Ms Dewar to provide supporting evidence of income.  In the loan application, Mr Ollier included statements, found by the primary judge to be inaccurate, about Ms Dewar's circumstances.  The application was signed by Ms Dewar and submitted on 22 November 2007.

5. On 14 February 2008, as a result of the loan application, Ms Dewar was granted a loan of $245,000 by GEL Custodians Pty Ltd (GEL).[1]  As intended, Ms Dewar used the majority of the loan funds to pay off the existing mortgage on 17 Mint Circuit and to acquire the remaining 30% interest in the property. 

   [1] GEL was part of a group of companies that traded under the name 'GE Money'. 

6. The loan was secured by way of a first registered mortgage over 17 Mint Circuit granted to GEL.  By 18 June 2008, Ms Dewar was in arrears on the mortgage repayments.  After lengthy but ultimately unsuccessful attempts by Ms Dewar to prevent it, on 23 May 2014, she lost possession of 17 Mint Circuit.

7. Ms Dewar commenced the primary proceedings on 22 May 2015.  She alleged, in essence, that she did not need to borrow the sum of $245,000 and that she could not afford the monthly repayments required to service the loan.  She claimed  that the respondents were liable to her for damages for:

   (1)breach of contract;

   (2)negligence;

   (3)misleading or deceptive conduct in contravention of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act);

   (4)unconscionable conduct contrary to the general law and the ASIC Act; and

   (5) breach of fiduciary duties and knowingly assisting in a dishonest breach of fiduciary duties.

8. On the basis of what he found to be inaccurate statements included in the loan application to Wholesale Funds, the primary judge found that Mr Ollier and Andtrac breached the contractual and tortious duties they owed to Ms Dewar to render their finance broking services with reasonable skill, care and diligence, and that those breaches caused Ms Dewar loss. However, his Honour dismissed Ms Dewar's contract and tort claims on the ground that they had been commenced more than 6 years after they had accrued, and so were barred by s 13 of the Limitation Act 2005 (WA). His Honour found that none of the other claims had been made out. Consequently, the primary judge dismissed Ms Dewar's action.

9. In broad summary, the judge came to the following conclusions:

   (1)The claims for breach of contract and negligence were made out in some respects, but failed because they were statute-barred by s 13 of the Limitation Act.

   (2)The judge rejected the claim for breach of fiduciary duty or assistance in breach of a fiduciary duty on two bases.  First, the judge was not persuaded that Mr Ollier, and thereby Andtrac, breached their duty not to act in their own interests in conflict with Ms Dewar's interests.[2]  Secondly, the duty to act with reasonable skill, care and diligence is not a duty of a fiduciary character.[3]

   [2] Dewar v Ollier [2018] WASC 212 (primary reasons) [260], see also [240].

   [3] Primary reasons [259].

   (3)Ms Dewar's claim for misleading or deceptive conduct rested on four alleged representations said to have been made by Mr Ollier.  The judge found that only one of those representations was made and that that representation was not misleading.[4]

   [4] Primary reasons [267] ‑ [271].

   (4)The claim for unconscionable conduct failed because the judge was not persuaded that Ms Dewar had a special disadvantage affecting her ability to make decisions in her own interests and Mr Ollier was not aware of any such special disadvantage.[5] 

   [5] Primary reasons [272] ‑ [278].

10. Ms Dewar appeals against the primary judge's decision on 11 grounds.  With the exception of the misleading or deceptive conduct claim, Ms Dewar challenges the rejection of each of her claims.  Ms Dewar advances 11 grounds of appeal.  In substance, those grounds contend that:

    (1)The judge should have found that certain documents, including the Broking Agreement, were deeds, meaning that the statutory limitation period was 12 years and Ms Dewar's claim was commenced within the applicable limitation period (ground 2).

    (2)The judge should have found that Ms Dewar's claim of unconscionable conduct under the ASIC Act was not statute‑barred (ground 3) and was made out (ground 10). As a specific complaint relating to this claim, the judge failed to place any, or sufficient, weight on Ms Dewar's financial circumstances when considering whether she was at a special disadvantage for the purposes of her unconscionable conduct claims under the ASIC Act and the general law (ground 9).

    (3)The judge made a specific factual error about whether the respondents were aware of GE Money's Credit Origination Standard and its Product and Policy Manual (ground 3.5).

    (4)The judge erred in his approach to the evidence of an expert called by the respondents (ground 5).

    (5)The judge should have found that the respondents breached fiduciary duties they owed to Ms Dewar (grounds 6, 7 and 11).

    (6)The judge should have found that Mr Ollier breached his duty to find Ms Dewar the 'most suitable loan' for her (grounds 4 and 8).

11. For the reasons that follow, in our opinion, none of the grounds of appeal has been made out.  None provides any sufficient basis for interfering with the judge's findings.  Thus, we would dismiss the appeal.

12. As will be seen, Ms Dewar's challenge to the judge's conclusion that her (otherwise established) contract and tort claims were statute-barred fails.  Further, the other claims she advances on appeal, even if established, would also be statute-barred.  To some, the failure of an otherwise established claim on the ground that it is statute-barred may seem to involve the triumph of a mere procedural technicality over the merits of the case.  However, such a view misunderstands the character and significance of limitation statutes.  We adopt the following observations recently made in the New South Wales Court of Appeal:[6]

    [6] Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118; (2018) 334 FLR 9 [29].

    Limitation law is not some 'unmeritorious procedural technicality'; it is neither a technicality nor necessarily unmeritorious, as Lord Sumption JSC observed in Abdulla v Birmingham City Council [2012] UKSC 47; [2012] ICR 1419 at [41]. Rather, as McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, a limitation period 'represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.'

13. In order to resolve the grounds, it is necessary to outline the judge's reasons in considerable detail.  Doing so assists in identifying the judge's findings of fact, and those which are (and are not) challenged, providing the factual context for consideration of Ms Dewar's grounds of appeal.  We begin with the findings of fact.  As will be seen, relatively few of the factual findings are challenged by a ground of appeal.  We will identify those that are challenged in the course of the outline.

The facts as found by the primary judge

1. The judge made a number of observations concerning the credibility and reliability of the witnesses.[7]  The grounds of appeal do not require attention to those observations.

   [7] Primary reasons [10] - [20].

Ms Dewar's personal and work background

1. In 2007, Ms Dewar was a single 47-year-old woman with four children aged between 11 and 19 years.[8]

2. Ms Dewar completed her secondary education in year 10.  She worked in various jobs after high school, including as a 'dictaphone' typist for RAC Insurance and as a graphic designer.  From 1991 to 1992, Ms Dewar undertook part-time business studies at TAFE, which involved studying accounting, economics and other business-related subjects.  This did not lead to any employment in accounting or any other business-related occupation.  At some stage before November 2007, Ms Dewar also undertook TAFE courses in land law and criminal law.[9]

3. At various times, Ms Dewar gave consideration to starting her own business.  In October 2002, Ms Dewar obtained an ABN.  At first, nothing came of this.  However, in 2006, after obtaining the necessary skills and qualifications to trade as a tiler, Ms Dewar decided to start a tiling business using the ABN.  A profit and loss account for the tiling business for the financial year ending 30 June 2007 recorded that Ms Dewar derived a net profit of $5,728 from revenue of $42,393.  Ms Dewar's income was supplemented by a family payment allowance paid by Centrelink and some child support from her former husband.[10]

4. In about 2010, Ms Dewar undertook a full-time diploma in legal studies at TAFE.  She studied criminal law, contract law, tort law and other legal subjects.[11] 

17 Mint Circuit, Banksia Grove

[8] Primary reasons [22].

[9] Primary reasons [23] - [26], [28].

[10] Primary reasons [27], [29] - [32].

[11] Primary reasons [33].

1. In 1995, Ms Dewar and the State Housing Commission (the Commission) acquired the land at 17 Mint Circuit, Banksia Grove as tenants in common.  Ms Dewar held a 70% interest and the Commission held a 30% interest.  Ms Dewar arranged for a house to be built on the land.  Ms Dewar financed the acquisition of her interest in the land and the construction of the house with a loan from Keystart Loans Ltd (Keystart), to whom she granted a first registered mortgage over her interest in the land.  Ms Dewar and her children lived at 17 Mint Circuit from the time the house was built until early 2006.[12]

   [12] Primary reasons [35].

2. In early 2006, Ms Dewar moved out of 17 Mint Circuit with her three youngest children. After staying with her brother for a short while, she moved to a house in Walcott Street, Coolbinia, which she has used as her primary residence since 2006. Her eldest son, Mr Gavin Libotte, continued to live in 17 Mint Circuit with friends.  He and his friends did not pay Ms Dewar any rent.  Ms Dewar explained that this was because his employment was intermittent.[13]

The respondents:  Mr Ollier, Atnam, Mr Walker and Andtrac

[13] Primary reasons [36] - [38].

1. Mr Walker was a director of, and effectively controlled, both Andtrac and the second respondent, Atnam Pty Ltd (Atnam).  Atnam played no role in arranging the loan for Ms Dewar.[14]

   [14] Primary reasons [5], [57].

2. Mr Ollier became an accredited mortgage consultant in March 2005.  In early 2007, he took steps to establish his own mortgage broking business.  He conducted his business from Andtrac's office in Osborne Park. Mr Walker, a more experienced finance broker than Mr Ollier, acted as Mr Ollier's mentor. Mr Walker carried on his own mortgage broking business through Andtrac. Mr Walker provided Mr Ollier with mortgage broking advice and reviewed all of Mr Ollier's draft loan applications.[15]

   [15] Primary reasons [40], [43], [47], [55].

3. Andtrac submitted loan applications on behalf of its clients to an aggregator, Xinc Financial Services Pty Ltd (Xinc).  This was facilitated by a sub-introducer agreement between Andtrac and another company, under which Andtrac was the sub-introducer and the other company was the introducer.  Mr Ollier and Andtrac had a commission-sharing arrangement, by which commissions from any loan Mr Ollier effected flowed from Xinc to the introducer and then to Andtrac's bank account. Andtrac would then pay a share of that to Mr Ollier. Mr Ollier was also issued with a business card by Xinc that set out his name and contact details above the words 'Andtrac Pty Ltd trading as Xinc Perth, an independently owned and operated business'.[16]

   [16] Primary reasons [44], [47] - [49].

4. The primary judge found that, in November 2007, Mr Ollier was authorised to enter into finance broking agreements with members of the public on behalf of Andtrac.[17]  As will be seen, his Honour found that Mr Ollier was acting as Andtrac's agent for the purpose of the finance broking agreement that was ultimately made between Andtrac and Ms Dewar.

Ms Dewar enquires about a loan

[17] Primary reasons [56].

1. In late 2006, Ms Dewar was in arrears with her mortgage payments to Keystart.  The monthly payments were approximately $500 per month.  In February 2007, an employee of Keystart contacted Ms Dewar and had a discussion with her about her financial circumstances and what she proposed to do to bring the mortgage payments up to date.  As at February 2007, Ms Dewar's monthly income was approximately $2,478 and her monthly housing and related expenses were $1,200.[18]

   [18] Primary reasons [58] - [60].

2. In March 2007, Ms Dewar enquired with a business known as 'Eleven Marketing Leads Distribution System' about the possibility of refinancing her Keystart loan.  The primary judge thought it likely that Ms Dewar told the person to whom she spoke that:  (1) she was self-employed; (2) she earned over $50,000 per annum; (3) she wished to refinance her existing mortgage with Keystart; (4) 17 Mint Circuit was worth approximately $280,000 and she owed $64,000; (5) she wanted to refinance so that she could pay off the amount she owed on her house sooner; and (6) she was interested in borrowing funds to buy a car for work purposes.[19]

   [19] Primary reasons [62] - [63].

3. In mortgage broking terms, Ms Dewar's enquiry as recorded by Eleven Marketing was a 'lead'.  Mr Ollier purchased the lead generated by Ms Dewar's enquiry and arranged to meet with her on 2 April 2007.[20]

Meeting on 2 April 2007

[20] Primary reasons [66].

1. At trial, there were substantial conflicts in the evidence concerning what occurred at the meeting between Ms Dewar and Mr Ollier on 2 April 2007. The primary judge resolved those conflicts adversely to Ms Dewar, primarily on the basis of his preference for the contemporaneous notes made by Mr Ollier (which Mr Ollier referred to as his 'CRM' notes).[21]  The judge's findings were to the following effect.

   [21] Primary reasons [84].

2. Ms Dewar told Mr Ollier that she held a 70% interest in a house and that Keystart owned the remaining interest, which she would like to acquire.  Ms Dewar told Mr Ollier that she was a self-employed tiler.  Mr Ollier told Ms Dewar to obtain a quote from Keystart to establish a value for the property and thus Keystart's 30% interest.  Mr Ollier told Ms Dewar that he could arrange a no doc loan with Macquarie Bank.  Some discussion took place between Mr Ollier and Ms Dewar to the effect that Ms Dewar could borrow more than was required to buy out Keystart's interest, and Ms Dewar told Mr Ollier that she would like to borrow an extra $15,000.[22] 

   [22] Primary reasons [84].

3. There was no discussion of Ms Dewar's income or expenses or her assets and liabilities.  Mr Ollier had formed the view that a no doc loan application was the way to proceed and no further information was required from Ms Dewar at that stage.  There was also no discussion about Ms Dewar investing in a share portfolio or using funds obtained by way of 'equity release' to buy another investment property.[23]

   [23] Primary reasons [85], [88].

4. There may have been a discussion about the amount of the repayments Ms Dewar might be required to make in the event that an application to refinance was successful, but the judge was not satisfied that any such discussion was detailed.[24]

   [24] Primary reasons [87].

5. As he accepted at trial, Mr Ollier said to Ms Dewar that he would find a 'suitable loan' for her.[25]  By ground 8, Ms Dewar contends that this comment was made 'without exercise of skill or judgement'.

Events between 2 April and 13 August 2007

[25] Primary reasons [84].

1. There was intermittent phone contact between Ms Dewar and Mr Ollier over the period from 2 April to 13 August 2007.[26] 

   [26] Primary reasons [89] - [98].

2. On 27 April 2007, Ms Dewar told Mr Ollier that she wanted to go ahead with arranging the refinancing that had been discussed and that she was ordering a valuation with Keystart for the 30% of 17 Mint Circuit that she did not own.  She told Mr Ollier that she owed $70,000 and that she wanted to buy out the 30% of 17 Mint Circuit she did not own.  She told Mr Ollier that 17 Mint Circuit was worth $400,000.  She also told him that she would like to borrow an extra $10,000.  In response, Mr Ollier told Ms Dewar that the loan to value ratio (LVR) would be around 50%, and that he could arrange a no doc loan.[27]

   [27] Primary reasons [92] - [93].

3. On 8 June 2007, Ms Dewar told Mr Ollier that Keystart was asking for a profit and loss statement.  Mr Ollier made a note as follows:  'we must [get] a no-doc.  Place was valued at 300k they own 30% or 90k'.[28]

   [28] Primary reasons [95].

4. Ms Dewar and Mr Ollier arranged to meet again on 13 August 2007.

Meeting on 13 August 2007

1. At the meeting on 13 August 2007, Mr Ollier gave Ms Dewar a handwritten note.  On the basis of this handwritten note and Mr Ollier's CRM notes, the judge made the following findings as to the meeting between Ms Dewar and Mr Ollier on 13 August 2007:[29]

   [29] Primary reasons [102] - [103].

   (1)Ms Dewar told Mr Ollier that 17 Mint Circuit was worth $300,000.

   (2)Ms Dewar told Mr Ollier that she owed Keystart $56,000 and repeated that she wanted to purchase the share of 17 Mint Circuit not owned by her.

   (3)Mr Ollier told Ms Dewar about two possible loans:  first, a loan of $166,000 at an interest rate of 8.1% per annum with a lender referred to by him as 'wholesale' that would require weekly repayments of $284 and, secondly, a loan of $200,000 at an interest rate of 7.61% with Citibank that would require weekly repayments of $326.

   (4)Mr Ollier told Ms Dewar that the first possibility would enable her to be paid $20,000 by way of an 'equity release' and that the second possibility would enable her to be paid $54,000 by way of an 'equity release'.

   (5)Mr Ollier told Ms Dewar that it would cost approximately $1,500 to obtain one or other of the loans.

   (6)Mr Ollier told Ms Dewar that in order to proceed he would need a copy of her birth certificate, a copy of her driver's licence, a copy of her rates notice for 17 Mint Circuit and an 'up to date' statement from Keystart for the last six months' mortgage repayments.

   (7)Mr Ollier told Ms Dewar that she could obtain a copy of her credit record from a website operated by Baycorp with the address told Mr Ollier that she wanted to borrow $200,000 from Citibank.  The judge was satisfied that Ms Dewar had determined this amount for herself; she was not relying on any assurance from Mr Ollier that a loan in that amount was suitable for her circumstances.

   (9)Ms Dewar gave Mr Ollier her ABN.

2. Following the meeting, Mr Ollier did a search of the Australian Business Register and saw that Ms Dewar's ABN had first been registered on 10 October 2002.[30]

September 2007

[30] Primary reasons [104].

1. On 10 September 2007, Ms Dewar left a message for Mr Ollier to the effect that she had obtained both a valuation of 17 Mint Circuit and a statement for her Keystart loan for the last six months, but that she wanted to obtain her credit file.  Mr Ollier telephoned Ms Dewar and left a message for her giving her the details of the 'mycreditfile' website referred to in the handwritten note that he had given to Ms Dewar on 13 August 2007.[31]

Ms Dewar decides not to proceed

[31] Primary reasons [106].

1. On 27 September 2007, a meeting took place between Mr Ollier, Ms Dewar and Mr Pavy (Ms Dewar's partner).  A discussion took place, at the end of which Ms Dewar decided that she would not proceed with a new loan to refinance her existing Keystart loan.  Thereafter, Mr Ollier closed his file.[32]

Ms Dewar decides to proceed

[32] Primary reasons [109].

1. In late October 2007, Ms Dewar contacted Mr Ollier again.  At a meeting between them on 2 November 2007, she said that she did wish to refinance her Keystart mortgage and buy out the Commission's interest in 17 Mint Circuit.[33]

Meeting on 2 November 2007

[33] Primary reasons [110].

1. At the meeting on 2 November 2007 between Ms Dewar and Mr Ollier, Ms Dewar signed two documents.

The RAMS application

1. The first document was an application for a no doc loan from RAMS Home Loans in the amount of $292,000 repayable over 30 years (the RAMS application).[34]  The judge preferred Mr Ollier's evidence to Ms Dewar's evidence as to the circumstances in which the application form was completed.  The RAMS application was completed by Mr Ollier reading aloud the questions posed in the application form and filling in the form according to the answers given by Ms Dewar.  It recorded that the 'purpose' of the loan was 'purchase of investment property $177,500' and 'equity release $114,500'.  The RAMS application did not contain a statement of Ms Dewar's assets and liabilities or her income but Ms Dewar signed a 'borrower self-certification - income and affordability' statement which specified the loan amount as $292,000.  The judge was not persuaded that Ms Dewar signed the RAMS application in reliance on a representation or assurance from Mr Ollier that a loan in the amount of $292,000 was suitable for her circumstances.[35]

The Broking Agreement

[34] GAB 329 - 340.

[35] Primary reasons [111] - [112].

1. The second document was a 'Finance Broking Agreement and Appointment to Act' (the Broking Agreement).[36]  The Broking Agreement was divided into three parts and had two attachments.  Part 1 was headed 'Information on the loan you require'.  The broker's name and details were pre-filled.  The broker's name was recorded as 'Andtrac Pty Ltd t/as X Inc Perth' and the broker's details included Andtrac's Osborne Park address and Mr Walker as the broker's principal.  Ms Dewar was recorded as the borrower.  The loan amount was recorded as $292,000, the term as 30 years and the repayments as $2,254 per month.  The lender was recorded as RAMS.  Further sections under Part 1 made it clear that the broker would receive payment by way of commissions from the lender.  The range of commissions was set out in the two attachments to the Broking Agreement.[37] 

   [36] GAB 342 - 347.

   [37] Primary reasons [114]; GAB 342 - 343, 346 - 347.

2. Part 2 of the Broking Agreement was headed 'General information about our services'.  It included the following dot points:[38]

   [38] GAB 344; see also primary reasons [114], where the first seven paragraphs are extracted.

   •Before you accept your loan offer, make sure you read the credit contract/loan agreement carefully to find full details of the loan.  Warning:  You should check the loan agreement/credit contract to ensure that the terms of the loan do not vary from what you require.  If they do, inform us immediately so that we can assist you.

   •We are obliged to act in your best interests and give you undivided loyalty unaffected by any of our interests.  However, we also represent lenders and have obligations to them, in particular not to provide any information we know is misleading or deceptive.  We also have obligations under the law to report any fraud, forgery, or other illegal activities.  By signing this agreement you confirm that you understand that we have these obligations to the lender and under the law.  If you have any questions about our role, ask before you sign

   •We are required to ensure that the finance we arrange for you is appropriate.  Accordingly we will make reasonable enquiries in relation to your needs, objectives, and financial circumstances.

   Warning:  The proposed loan arrangements will be based on the products available from our panel lenders and the information provided by you.  If the information you provide is incomplete or inaccurate, before entering the loan you should consider its appropriateness having regard to your relevant personal circumstances and if necessary seek independent financial advice.

   •If you are refinancing a loan, and your commitments will be increased, you should seek independent financial advice to make sure that you are able to meet the increased commitments.  Warning:  Your regular repayments may not increase, but the total you have to pay may increase - for example by having to make repayments over a longer period.

   •We do not provide legal or financial advice unless specified in a separate contract.  Accordingly, it is important you ensure you understand your legal obligations under the loan, and the financial consequences.  If you have any doubts, you should obtain independent legal and financial advice before you enter the loan contract.

   •We do not determine or recommend the conditions of the credit contract (such as interest rates, fees, or the term of the loan).

   •We and nobody else will receive any financial or other benefit or have any other interest or relationship which could reasonably be expected to influence our recommendation other than as disclosed in this agreement

   •We undertake to inform you if, after recommending a particular product and prior to you entering into a contract for that product:

   •the commission payments differ from those described in this agreement;

   •if we determine or recommend conditions of the credit contract, the effect of any such condition on the amount of commission we receive from our panel lenders/funders;

   •any other person will receive any benefit if that person could reasonably be expected to influence our recommendation; and

   •any interests or relationships we have that could reasonably be expected to influence our recommendation

   •In WA, the remuneration of finance brokers is limited to a maximum, as prescribed by the Maximum Remuneration Schedule set by law.  (emphasis added)

   Ms Dewar's submissions in support of grounds 6 and 7 contend that the italicised sentences in the above passage created fiduciary duties owed by Andtrac and Mr Ollier to Ms Dewar.

3. Part 3 of the Broking Agreement was headed 'Privacy Disclosure Statement and Consent'.  It included the following paragraphs:[39]

   By signing this document you agree to its terms.  It forms a legal contract between us.  If you have any questions, ask before you sign.

   Where you are taking out a high LVR loan (i.e. a loan where the loan amount represents an amount which is 85% or greater of the value of the security) or a low doc loan, you agree that you have ensured that you are not overcommitting yourself financially and are able to meet the repayment requirements on your proposed loan without suffering hardship.

   We look forward to providing exceptional service.

   [39] Primary reason [115]; GAB 345.

4. Ms Dewar's signature appears at the bottom of Part 3.  Her initials also appear on each of the other pages of the Broking Agreement.  The primary judge found that those initials were inserted by Ms Dewar.  His Honour was satisfied that Ms Dewar had an opportunity to read the form.[40] 

   [40] Primary reasons [117].

5. The Broking Agreement was not signed by Mr Ollier or Mr Walker and was not witnessed by any other party.  As will be seen, that is significant for ground 2, which contends that the Broking Agreement is a deed.

RAMS application unsuccessful

1. On 7 November 2007, Mr Ollier received notice that RAMS had declined the RAMS application.  On 19 November, he spoke to Ms Dewar and told her that the RAMS application had been unsuccessful and that an application could be made to another lender, whom he described as Wholesale Funds, if Ms Dewar could obtain a copy of the certificate of title for 17 Mint Circuit.  Later that day, Ms Dewar faxed a copy of the certificate of title to Mr Ollier.[41]

   [41] Primary reasons [119] - [121].

2. Subsequently, Mr Ollier arranged for Ms Dewar to meet Mr Walker on 20 November 2007 and for him to interview Ms Dewar and submit the loan application to Wholesale Funds.  This arrangement was made because Mr Ollier was not available to meet Ms Dewar himself.[42] 

Meeting on 20 November 2007

[42] Primary reasons [122].

1. On 20 November 2007, Ms Dewar met with Mr Walker and signed the Wholesale Funds mortgage loan application documents in his presence.  The documents comprised a Mortgage Loan Application form, a 'Fastdoc Declaration of Financial Position' and a 'Record of Interview'.

The Mortgage Loan Application

1. The Mortgage Loan Application comprised a number of different sections, including a 'Personal Financial Statement', a 'Loan Purpose Checklist' and a 'Declaration as to Loan Purpose'.[43]  The primary judge found that Mr Ollier had inserted the relevant information into each section of the application prior to the meeting.[44]  Ms Dewar signed each section filled in by Mr Ollier.

Fastdoc Declaration of Financial Position

[43] GAB 177 - 189.

[44] Primary reasons [129].

1. The Fastdoc Declaration of Financial Position specified the proposed loan amount to be $292,000, the loan term to be 30 years and the repayments to be $2,306 per month.  These figures were inserted by Ms Dewar.  The primary judge did not accept Ms Dewar's claim at trial that she did not understand the figures.[45] 

   [45] Primary reasons [138].

2. The judge also did not accept Ms Dewar's claim that she had not inserted the initials that appear next to two amendments made to the document, observing that whether she had done so was ultimately not material.[46]  In ground 10, Ms Dewar appears to challenge this finding, contending that she did not sign or witness amendments made to the declaration and that this circumstance, combined with other circumstances, supported a conclusion of unconscionable conduct on the part of Mr Ollier and Mr Walker.

   [46] Primary reasons [139].

3. The following declaratory statements appeared above Ms Dewar's signature:[47]

   [47] Primary reasons [140]; GAB 190.

   3.Declaration of Financial Position

   I/My/We/Our (being Individual, Individual Trust, Company, or Company Trust) certify warrant and represent to you that:

   (a)I am/we are aware of our financial obligations under my/our proposed loan with you;

   (b)I/we have declared all details of my/our income in Section 4 below, which is a true and accurate representation of my/our financial position.  (*Not required for Unregulated Fastdoc 70)

   (c)I am/we are satisfied, and for Company and/or Company Trustee applicants have resolved at a duly held board meeting, that our obligations to you will not adversely impact on our ability to meet all my/our other financial obligations (including living expenses) as and when they fall due;

   (d)I/we confirm that I/we can comfortably afford all repayments resulting from this loan, without incurring substantial financial hardship and;

   (e)I/we are not relying on you to verify or review my/our financial position

   (f)Where required, my/our Business Activity Statements have been lodged with the Australian Tax office on time and are up to date.

   (g)For Trustee applicants - The declarant has been properly appointed and remains entitled to act as Trustee of the Trust

   (h)For Company applicants - I am a director of the Company

   (i)For Company and Company Trustee applicants, - that the Company or Trustee, at a duly convened board meeting, resolved that the Directors or Trustee submit an application on behalf of the Company/Trustee for the proposed loan.

   I/We acknowledge that you are relying on this statement in considering whether or not to approve my/our loan application.

   (emphasis in original)

Record of Interview

1. The Record of Interview identified Ms Dewar as the borrower and stated:[48]

   I have interviewed the borrower/guarantor named above and verified the following information contained within the loan application form:

   Date of Interview  20/11/07

   (emphasis in original)

   Mr Walker signed the record of interview.  The primary judge rejected Ms Dewar's allegation at trial that Mr Walker was not at the interview.[49]

Ms Dewar's understanding of the likely monthly repayments and her assessment of her financial capacity

[48] Primary reasons [141]; GAB 191.

[49] Primary reasons [142].

1. The primary judge found that, at the time Ms Dewar signed the documents comprising the application, she was confident about the state of her business and thought that she could afford repayments of about $500 per week.[50]  Further, Ms Dewar was not relying on a representation or assurance from Mr Ollier that a loan in the amount of $292,000 was suitable for her circumstances or that she could afford the repayments for a loan in that amount.[51]  The judge was also not satisfied that, as she claimed at trial, Ms Dewar did not understand that the 'equity release' portion of the loan funds was a loan.[52]

Wholesale Funds application submitted

[50] Primary reasons [150] - [151].

[51] Primary reasons [153].

[52] Primary reasons [157].

1. On 22 November 2007, the Wholesale Funds mortgage loan application was submitted.  The loan application documents were accompanied by a document entitled 'Mortgage Loan Summary'. 

Mortgage Loan Summary

1. The Mortgage Loan Summary was a two-page document with a number of headings.  Next to each heading was a small amount of information, inserted by Mr Ollier.[53]  Underneath the details of the mortgagor and mortgagee, the following headings (and corresponding information) appeared:[54]

   [53] ts 510.

   [54] GAB 173.

   LOAN AMOUNTS:             $266 000

   LOAN TERM:  30 years

   LOAN PACKAGE:             No doc standard variable P&I

   INTEREST RATE:             8.79%

   REPAYMENTS (P/M):        Approximately $2100

   SECURITY:17 Mint Circuit Banksia Grove WA 6031

   1st R/Mortgage over:

   Total M/V $:  $380 000

   Total LVR %:  70%

   PURPOSE:Refinance of existing loan with Keystart   and purchase of the remaining portion   of the property that belongs to the   department of housing and works

   INCOME/SERVICIBILITY: Under the no-doc criteria, Corinna did   not disclose her income

1. The following statements were inserted next to the heading 'BACKGROUND & COMMENTS':[55]

   [55]Primary reasons [145]; GAB 173 - 174.

   •Corrinna is a qualified Tyler with many years of experience (ABN registered in 2002) working as a sole trader.

   •Corrinna did originally purchase her investment property as a shared ownership set up with Key start where she owns 70% and key start owns 30% of the property.

   •She has the opportunity to purchase the property at her will and Key start have recently organised a valuation and came out with the pay out figure of $177 350 inclusive of all the discharge cost (see the statements provided).

   •Corinna wishes to use this opportunity to borrow additional funds as an equity release for investment purpose (purchase of shares and or purchase of a new investment property).

   •Since the citizenship certificate provided for 100 point check purpose was in Corinna's maiden name I did provide a copy of her marriage certificate although she has since separated and is single.

   •I did include a copy of the title which shows that the registered proprietor is the state housing commission and did include their letter confirming the 70% ownership for Corrinna and the pay out figure required for the purchase of the remaining 30%.

   •Corrinna did submit an application for the refinance with RAMS but due to her concern with their unstable state (bad publicity in the media), the application was withdrawn and she wishes to go ahead with Wholesale Funds Australia.

   •Considering the fact that Corinna has been self-employed for many years, the very high demand for qualified construction personal in WA, the fact that she has a clear credit history and she has demonstrated perfect conduct on her existing loan (see the statement provided), I am convinced that she will remain an excellent long term customer for Wholesale funds Australia.  (emphasis added)

2. As will be seen, the primary judge found that the italicised statements were inaccurate and constituted breaches of both Mr Ollier's and Andtrac's duty to render their finance broking services with reasonable skill, care and diligence.

Lending criteria for a Fastdoc70 loan

1. The primary judge identified two documents used in GE Money's home lending business that were relevant in 2007:  (1) the 'GE Money Operations Manual:  Credit Origination Standard'; and (2) the 'GE Money Operations Manual:  Product and Policy'.  The Credit Origination Standard set out the criteria applicants were required to satisfy for different types of loans.  The Product and Policy Manual, while also setting out such criteria (albeit to a lesser extent), contained commentary on the regulatory regime applicable to finance brokers in various states.[56]

   [56] Primary reasons [158].

2. The primary judge made the following observations about the manuals, which is the subject of ground 3.5:[57]

   There was no evidence to suggest that the contents of the Credit Origination Standard or the Product and Policy Manual were known to Mr Ollier or Mr Walker in 2007 or that they were of any contractual relevance as between one or both of Mr Ollier and Andtrac on the one hand and GE Money on the other.  The Credit Origination Standard or the Product and Policy Manual regulated the relationship between GE Money and its 'correspondents'. In this case, the correspondent was Wholesale Funds.

   Ground 3.5 contends that these observations were in error because the respondents were in fact aware of the manuals.

   [57] Primary reasons [158].

3. GE Money had two no doc loan products:  the Fastdoc80 and the Fastdoc70.  The suffixes '80' and '70' signified the loan to valuation ratio for each type of loan.  The Product and Policy Manual contained the following description of Fastdoc80 and Fastdoc70 loans:[58]

   [58] Primary reasons [159]; GAB 235.

   2.1Fastdoc80 and Fastdoc70

   Fastdoc refers to loans where self-employed borrowers self-certify their income.

   There are currently two types of Fastdoc loans, available for loans from $30,000 to $1,000,000:  Fastdoc70 has a maximum LVR of 70% and Fastdoc80 has a maximum LVR of 80%.

   If a self-employed applicant has turnover or income of $75,000 or more per annum, they must be registered for GST or have a letter from their accountant or the ATO confirming they are exempt from GST.  Correspondents must verify a self-employed applicant's ABN and GST registration status by completing a search on analysis for Fastdoc loans is the same as for other (non-Fastdoc) loans except that:

   •Self-employed borrowers make a declaration about their income and the affordability of the loan, although the usual verification of income is not undertaken;

   •Self-employed borrowers must demonstrate they have been self-employed for at least two years (except Fastdoc70 where no minimum self-employed period applies);

   •Where a co-borrower earns PAYG income, it must be verified by the same process as for other (non-Fastdoc) loans;

   •Fastdoc80 or Fastdoc70 loans may be either regulated or unregulated; and

   •Fastdoc80 and Fastdoc70 (regulated) the usual NSR test (minimum 1.00:1) is applied.

   •Fastdoc70 (unregulated) self-employed borrowers make a declaration as to affordability of the loan and no NSR is completed.

4. The primary judge explained that the Credit Origination Standard stipulated criteria applicable to a Fastdoc70 loan application in terms that were more detailed than those contained in the Product and Policy Manual.  His Honour summarised those terms as follows:[59]

   [59] Primary reasons [160]. See GAB 204, 220 - 221.

   (a)The applicant had to be self-employed - though there was no minimum business operating period (cl 10.2.1).

   (b)The purpose of the loan had to be an 'acceptable purpose' - this term was widely defined as 'any reasonable housing, housing-related, personal investment or personal purpose' (cl 10.2.1 and cl 5.1).

   (c)The applicant did not have to satisfy a net surplus ratio (NSR) test - the NSR was the ratio the borrower's net disposable income after tax and living costs bore to the total loan payments/commitments (cl 10.3).

   (d)An applicant had to provide an asset and liability statement (cl 10.3).

   (e)The loan to value ratio could not exceed 70% ([cl] 10.3.1).

   (f)There was no requirement to verify the applicant's income - this was because the applicant verified their income by signing the application (cl 10.3).

   (g)The applicant's status as a self-employed person was verified by checking the applicant's ABN status (cl 10.3.2).

   (h)Applicants with a credit history which showed defaults of up to $500 would be considered if the defaults were remedied at least six months prior to the loan application (cl 10.2.3).  From this I infer that applicants were otherwise required to have a credit history free of defaults.

5. The primary judge also found, on the basis of a separate clause in the Credit Origination Standard, that the fact that an applicant was in receipt of social security benefits did not disqualify the applicant from obtaining a loan from GE Money.[60]

The processing of the Wholesale Funds application

[60] Primary reasons [161].

1. Following the submission of the Wholesale Funds loan application it was scrutinised by employees of Xinc (the mortgage aggregator), GE Money (the proposed lender) and Genworth Financial (the proposed mortgage insurer). 

2. Xinc in its role as a mortgage aggregator retained a business known as Starworks to administer and process loan applications submitted to lenders.  Starworks' role was to ensure that a loan application satisfied all of the lender's pre-requisites before the application was processed by the lender.  This included ensuring that there were no discrepancies in the loan application documents, obtaining valuations and ensuring that lender's mortgage insurance would be available.  In late 2007, Mr Robert Layh was the person at Starworks responsible for processing Ms Dewar's Wholesale Funds application.[61]

   [61] Primary reasons [163] - [165].

3. Mr Layh communicated with Mr Ollier about Ms Dewar's application.  He also communicated with Mr Niall McLynskey of Genworth Financial about the availability of lender mortgage insurance and Mr Peter Davis of GE Money (the proposed lender) about the loan application.  Mr Layh raised queries with Mr Ollier, relayed queries raised by Mr McLynskey and Mr Davis to Mr Ollier for answers, and explained to Mr Ollier how the queries needed to be addressed.[62]

   [62] Primary reasons [165] - [166].

4. Mr Layh raised a number of such queries in the processing of Ms Dewar's Wholesale Funds loan application. In the course of that processing, the following (among other things) occurred:

   (1)Mr Layh obtained a valuation of 17 Mint Circuit in the amount of $350,000.  As a consequence of this valuation, the maximum that Ms Dewar could borrow was $245,000.  Mr Ollier told Ms Dewar of that and she said that she wished to proceed with an application for a loan in that amount.  He relayed that to Mr Layh.[63]

   [63] Primary reasons [166(a) - (c)].

   (2)A search of Ms Dewar's credit history was obtained.  It confirmed that she had no 'defaults', that is, she had a good credit history.  The credit history did not record any enquiry about Ms Dewar's credit history made by RAMS, that is, anyone looking at the credit history would not be put on notice that a loan application had been made to RAMS and had been declined.[64]

   (3)On 28 November 2007, Mr Layh completed an application for lender's mortgage insurance to Genworth Financial.  In the application he identified three loan purposes:  'refinancing investment ppty loan' ($177,500); 'Minor renovations' ($10,000); and 'Funds for personal purchases' ($67,500).  Mr McLynskey asked what the funds not required for refinancing and renovations were going to be used for.  This query was referred by Mr Layh to Mr Ollier, who responded:[65]

   The loan summary clearly state[s] that the additional funds were to be used for Investment purpose (purchase of share or purchase of a new investment property).

   On the basis that the loan amount had to be reduced after valuation from $266 000 to $245 000, the client will review the properties available on the market prior to making her decision to purchase a new property or a share portfolio.

   The primary judge found that Ms Dewar had not told Mr Ollier that she was going to use the equity release portion of the loan to buy shares or to purchase a new investment property.[66]

   (4)Mr McLynskey asked Mr Layh to have the valuer state the cost of the repairs (renovations) that were required.[67]

Wholesale Funds application approved

[64] Primary reasons [166(g)].

[65] GAB 361.

[66] Primary reasons [166(i) - (j)].

[67] Primary reasons [166(k)].

1. On 28 December 2007, Ms Dewar's Wholesale Funds loan application was approved.[68]

Signing of the mortgage and loan documents

[68] Primary reasons [168].

1. On 2 January 2008, GE Money's lawyers prepared a letter addressed to Ms Dewar at her Walcott Street home.  The letter stated that it enclosed a number of documents, including a loan agreement and a mortgage.[69]  By 14 February 2008, Ms Dewar had signed the documents necessary to effect the loan and mortgage.[70] 

   [69] Primary reasons [169].

   [70] Primary reasons [184].

2. The circumstances in which the documents were signed were the subject of dispute at trial.  Ms Dewar gave evidence that she did not receive the letter and documents at her home address.  She said that, at Mr Ollier's request, she met Mr Ollier at his office in Osborne Park to sign the documents on 8 January 2008.  She said that when she and Mr Pavy arrived at the office and met Mr Ollier, he gave her documents to sign and told her they had to be signed that day.  Ms Dewar said that she asked Mr Ollier whether she could take the documents away and obtain legal advice, to which he replied that she could not.  She said that Mr Walker was also present, albeit coming in and out, and that he agreed with Mr Ollier that there was no time for her to obtain legal advice about the documents.  Ms Dewar said that she signed the documents, and Mr Pavy witnessed the documents, in the reception area of the office.  Her evidence as to the signing of the documents was supported by Mr Pavy.[71]

   [71] Primary reasons [170] - [173].

3. On the basis of Mr Ollier and Mr Walker's evidence, and Mr Ollier's CRM notes, the primary judge rejected the account of events given by Ms Dewar and Mr Pavy.[72]  His Honour found that the letter from GE Money's lawyers was delivered to Ms Dewar's home address on or before 4 January 2008.  Ms Dewar then signed the documents and returned them to GE Money's lawyers on 9 January 2008.[73]

   [72] Primary reasons [177].

   [73] Primary reasons [183].

4. Despite his Honour's rejection of Ms Dewar's account of events, her account of events is part of the basis upon which Ms Dewar contends, by ground 10, that the respondents engaged in unconscionable conduct contrary to the ASIC Act.

Settlement of the loan transaction

1. On 14 February 2008, Ms Dewar's acquisition of the Commission's interest in 17 Mint Circuit was completed.  The Keystart mortgage, for which the balance was $64,782.77, was discharged and a first registered mortgage was granted to GEL.  Ms Dewar received a loan of $245,000.  The monthly repayments on the loan were $1,934.42.[74]

Ms Dewar falls into arrears

[74] Primary reasons [184] - [185].

1. By 18 June 2008, Ms Dewar was in arrears with her mortgage repayments.  By 24 February 2009, the arrears stood at $6,661.11 and GEL served a notice of default.  Ms Dewar accepted at trial that in February 2009 she should have thought about whether she could keep 17 Mint Circuit.[75]

   [75] Primary reasons [189].

2. From February 2009 to June 2010, Ms Dewar remained in arrears, although the quantum fluctuated up and down.  In February 2009, she remained confident that she would be able to meet her commitments to GEL and pay off the accumulated arrears.[76]

   [76] Primary reasons [190] - [192].

3. On 15 June 2010, GEL commenced proceedings for possession and for payment of the balance owing under the mortgage, being $250,337.  Ms Dewar defended the possession proceedings and counterclaimed.  She claimed that she fell into arrears as a result of injuries that left her unable to work.[77]

Ms Dewar attempts to prevent enforcement

[77] Primary reasons [193] - [196].

1. On 22 July 2010, Ms Dewar wrote to GE Money seeking 'hardship assistance'.[78]

   [78] Primary reasons [198].

2. On 7 December 2011, GE Money wrote to Ms Dewar informing her that her request for hardship assistance in the form of reduced repayments had been unsuccessful.  Ms Dewar then made a further request for assistance, from which the primary judge inferred that, by late 2011, Ms Dewar had formed the view that she had no option other than to sell 17 Mint Circuit.[79]

   [79] Primary reasons [203].

3. On 29 December 2011, Ms Dewar lodged a complaint about GEL with the Credit Ombudsman Service.  The complaint had the effect of staying GEL's enforcement action.  She wrote a further letter to the Credit Ombudsman Service on 1 February 2012.[80]

   [80] Primary reasons [205] - [207].

4. On 15 February 2012, Pepper Group Ltd (who by this time had obtained GE Money's mortgage loan portfolio) offered to allow Ms Dewar two months to sell 17 Mint Circuit on certain conditions.  Ms Dewar did not accept the offer.[81]

Ms Dewar notifies Mr Ollier of potential claim

[81] Primary reasons [208].

1. On 26 March 2012, Ms Dewar telephoned Mr Ollier and told him that she wanted to take him to court because he had not provided her with the correct advice.[82]  Ms Dewar accepted at trial that by March 2012 she had formed the view that Xinc and Mr Ollier were responsible or partly responsible for her financial predicament and that they were parties she could potentially sue.[83]  On 26 July and 13 August 2012, Ms Dewar wrote emails to Mr Ollier to the effect that she had sought legal advice and intended to take legal action against him.[84]

Ms Dewar loses possession of 17 Mint Circuit

[82] Primary reasons [209].

[83] Primary reasons [210].

[84] Primary reasons [211] - [212].

1. By 13 September 2012, Ms Dewar owed $307,845.68 under the mortgage and the arrears stood at $71,255.49.[85]

   [85] Primary reasons [213].

2. On 13 September 2012, the Credit Ombudsman Service notified Ms Dewar that her complaint against GEL could be taken no further.[86]

   [86] Primary reasons [213].

3. On 23 May 2014, GEL obtained summary judgment against Ms Dewar for the amount then due under the mortgage and for possession of 17 Mint Circuit.[87]  In opposition to the summary judgment application, Ms Dewar raised many of the complaints about Mr Ollier that were raised at trial, arguing that he was the mortgagee's agent and that the mortgagee was vicariously liable for his alleged wrongdoing.

Ms Dewar commences proceedings

[87] See GEL Custodians Pty Ltd v Dewar [2014] WASC 177.

1. On 22 May 2015, Ms Dewar commenced the primary proceedings.[88]

   [88] Primary reasons [215].

Ms Dewar's claims at trial

1. At trial, Ms Dewar pursued a number of causes of action.  She claimed that Mr Ollier, Atnam, Mr Walker and Andtrac were liable to her for damages for:

   (1)breach of contract;

   (2)negligence;

   (3)misleading or deceptive conduct in contravention of the ASIC Act;

   (4)unconscionable conduct contrary to the general law and the ASIC Act; and

   (5) breach of fiduciary duties and knowingly assisting in a dishonest breach of fiduciary duties.

2. As already noted, the primary judge found that Mr Ollier and Andtrac breached the contractual and tortious duties they owed to Ms Dewar to render their finance broking services with reasonable skill, care and diligence, and that those breaches caused Ms Dewar loss.  However, his Honour found that the contract and tort claims were both statute‑barred on the basis that they were brought after the limitation period had expired, having been commenced more than six years after the causes of action accrued.  His Honour found that none of the other claims had been made out.

3. The primary judge's disposition of all but one of Ms Dewar's claims at trial is attacked by one or more of her grounds of appeal.  The exception is his Honour's disposition of the misleading or deceptive conduct claim, about which the appellant makes no complaint on appeal. 

The primary judge's disposition of Ms Dewar's claims at trial

Contract and negligence claims

What duties were owed?

1. The primary judge found that the Broking Agreement was an agreement made between Ms Dewar and Andtrac, with Mr Ollier acting as Andtrac's agent.[89] 

   [89] Primary reasons [221].

2. His Honour found that the Broking Agreement, expressly or impliedly, imposed contractual obligations on Andtrac to:

   (1)render its services as a finance broker with reasonable skill, care and diligence;

   (2)act in Ms Dewar's best interests and give her undivided loyalty unaffected by its interests; and

   (3)act in good faith towards Ms Dewar, be honest and truthful in its dealings with her and represent her circumstances, as known by it, accurately to any prospective lender.[90]

   [90] Primary reasons [222] - [223].

3. The judge said that Andtrac's contractual duty to render services with reasonable skill, care and diligence was concurrent with an identical duty owed at common law.[91]  The judge found that Mr Ollier, as he accepted at trial, also owed a duty at common law to render his services as a finance broker with reasonable skill, care and diligence.[92]

   [91] Primary reasons [222].

   [92] Primary reasons [216].

4. The primary judge found that Mr Ollier and Andtrac were not obliged to provide Ms Dewar with financial advice.  Specifically, they were not obliged to determine whether Ms Dewar could afford to make the repayments on the loan for which she applied or to give her advice regarding her ability to make those repayments.[93]

Were those duties breached?

[93] Primary reasons [224].

1. The primary judge found that the inclusion in the Mortgage Loan Summary of inaccurate statements about:

   (1)Ms Dewar's application to RAMS;

   (2)the period for which she had been self-employed as a tiler; and

   (3)Ms Dewar's wish 'to borrow additional funds as an equity release for investment purpose (purchase of shares and or purchase of a new investment property)',

   constituted breaches of both Mr Ollier's and Andtrac's duty to render their finance broking services with reasonable skill, care and diligence.[94]

   [94] Primary reasons [225].

2. His Honour found that there was no basis for (1) the statement that the RAMS application was withdrawn due to Ms Dewar's concern with RAMS' 'unstable state (bad publicity in the media)',[95] or (2) the statement to the effect that Ms Dewar was going to use the equity release funds to purchase shares or to purchase a new investment property.[96] 

   [95] Primary reasons [226].

   [96] Primary reasons [228].

3. The judge found that the statements that Ms Dewar was a 'qualified [tiler] with many years of experience (ABN registered in 2002) working as a sole trader' and that she had been 'self-employed for many years' were materially inaccurate in that, although Ms Dewar had an ABN as early as 2002, she did not start her tiling business until 2006.  Failing to check this simple matter with Ms Dewar and including the inaccurate statement in the Mortgage Loan Summary amounted to a failure to exercise reasonable skill, care and diligence.[97]

   [97] Primary reasons [227].

4. The judge then turned to evaluate Ms Dewar's contention that the loan she received was not appropriate for her needs, objectives and financial circumstances.  The judge found, on the basis of what was known to Mr Ollier and what should have been known to him, that it was reasonable for Mr Ollier to form the view that an application for a no doc loan was an appropriate loan for Ms Dewar to make.[98]  As grounds 4 and 8 impugn this conclusion,  and the reasoning supporting it, we set out all of what this Honour said in so finding:[99]

   In November 2007 Mr Ollier knew that Ms Dewar was self-employed and her objective was to acquire the Commission's interest in 17 Mint Circuit.  He knew that no doc or self-certified loans were available to self-employed people provided they satisfied the relevant criteria.  It was reasonable for Mr Ollier to make the judgment that a 'no doc' application was an appropriate application for Ms Dewar to make and that she did not need to provide documentary verification of her income.  I am not persuaded that Mr Ollier knew that if Ms Dewar's financial position was disclosed she would not obtain a loan.  That said, he correctly identified that a 'no doc' application was an appropriate one for Ms Dewar to make as she might not have been able to verify her income in the conventional way.  The recommendation to make a 'no doc' application does not give rise to the inference that he knew that if her true financial position had been disclosed she would not obtain a loan.

   There was no reason for Mr Ollier to doubt that Ms Dewar had a good credit history as the subsequent search disclosed that she did.

   Mr Ollier had four face to face meetings with Ms Dewar before he submitted the RAMS application on Ms Dewar's behalf.  Whilst Ms Dewar may not have been experienced in financial matters, I do not have reason to conclude either that Ms Dewar presented to Mr Ollier as a person who was particularly naïve or gullible or that she presented as a person who was unable to determine for herself what amount she wished to borrow or whether she could make the repayments required to service the loan for which she applied.

   As I have found, in November 2007 Ms Dewar was confident that her business was going well.  It is likely that she conveyed that confidence to Mr Ollier.  Whilst Mr Ollier was under the mistaken impression that Ms Dewar had traded as a tiler for five years as opposed to just over a year, this was not critical as the criteria to be satisfied by an applicant for a Fastdoc70 application did not include a minimum period of self-employment.

   Mr Ollier knew that Ms Dewar was in receipt of a 'single parent's pension', more accurately a Family Payment Allowance, but once again, this did not prevent Ms Dewar from applying for a Fastdoc70 loan.  To the extent to which the receipt of a pension ought to have given rise to a concern about whether Ms Dewar could afford to make the repayments, I think it was reasonable for Mr Ollier to rely upon Ms Dewar to determine whether she could afford the repayments.  As I noted earlier, Mr Ollier was not obliged to determine whether Ms Dewar could afford the repayments.

   There is no evidence that Mr Ollier put undue pressure on Ms Dewar to apply for a loan or to apply for a loan in the sum of $245,000.  It is significant that after a long meeting in September 2007 Ms Dewar decided against proceeding with the refinancing of 17 Mint Circuit.  There was no evidence that Mr Ollier tried to talk her out of that decision - it was she who got back in touch with him some weeks later and said she had changed her mind and wished to proceed.  (emphasis added)

   [98] Primary reasons [239].

   [99] Primary reasons [232] - [237].

5. The judge was not persuaded that Mr Ollier breached his obligation to act with undivided loyalty unaffected by his own or Andtrac's interests. Nor was he persuaded that Mr Ollier acted otherwise than in good faith towards Ms Dewar.[100]

Did the breach of duty cause Ms Dewar to suffer loss?

[100] Primary reasons [240].

1. The primary judge identified two questions relevant to whether the breaches of duty committed by Mr Ollier and Andtrac caused Ms Dewar loss.

2. The first question was:  had the statements contained in the Mortgage Loan Summary to the effect that (1) the RAMS application was withdrawn, (2) Ms Dewar had been working as a self-employed tiler since 2002 and (3) Ms Dewar wished to borrow additional funds as an 'equity release for investment purpose (purchase of shares or purchase of a new investment property)' not been made, would Ms Dewar have suffered the losses she claimed?[101]

   [101] Primary reasons [244].

3. In determining this question, the judge had reference to opinion evidence given by  an expert, Dr Pasquale Franzese, called by the first respondent, on the likelihood or otherwise of the loan being granted had information other than that set out in the Mortgage Loan Summary been provided to GEL.  The judge's approach in dealing with Dr Franzese's evidence is the subject of ground 5.

4. Dr Franzese's evidence, broadly speaking, was to the effect that, had the three inaccurate statements not been included, and in their place three statements reflecting the true position been included, this would not have prevented Ms Dewar from obtaining a loan from GEL under the Fastdoc70 criteria.[102]

   [102] Primary reasons [245] - [246].

5. The judge considered that, had the application disclosed the correct position as to Ms Dewar's employment, this would not have led to a rejection of her application for a loan.[103]  However, his Honour considered that the other two matters were likely to have attracted more significance. 

   [103] Primary reasons [248].

6. In the judge's view, had the reason for the rejection of the RAMS application been disclosed, it was likely that this would have provoked questions on the part of Genworth and GE Money about Ms Dewar's ability to service the loan.  Further, had it been disclosed to Mr McLynskey of Genworth that Ms Dewar had no particular use in mind for the $67,500 that was to be used for 'personal purchases', he would not have approved lender's mortgage insurance for a loan of $245,000 and, consequently, GE Money would not have made an offer of a loan of $245,000 to Ms Dewar.  Central to his Honour's conclusions was the fact that, as explained above, both Genworth and GE Money scrutinised Ms Dewar's application closely, and Mr McLynskey specifically enquired about the use to which the $67,500 would be put.[104]

   [104] Primary reasons [253] - [254].

7. The second question concerning causation was: were any losses suffered by Ms Dewar following the advance of the loan funds caused by any breach of duty that was established?[105]  The primary judge found that Ms Dewar's injuries, and her lack of work, following the advance of the loan funds were not sufficient to break the causal relationship between Mr Ollier and Andtrac's breaches of duty and the loss claimed by her.[106]

   [105] Primary reasons [256].

   [106] Primary reasons [258].

8. The judge's finding of causation between the inaccurate statements in the Mortgage Loan Summary and Ms Dewar's loss is challenged by ground 1 of the respondents' notices of contention.  However, as explained below, it is not necessary to resolve that challenge.

Was Ms Dewar contributorily negligent?

1. The primary judge found that a reasonable person in Ms Dewar's position in November 2007 would not have signed the Fastdoc Declaration of Financial Position, declaring that she could afford repayments of $2,306 per month.  His Honour found that, but for the declaration, GEL would not have offered Ms Dewar a loan.  Consequently, Ms Dewar was contributorily negligent and, had her claims not been statute-barred, the judge would have reduced her damages by 60%.[107]

Did Ms Dewar fail to mitigate her loss?

[107] Primary reasons [283] - [284].

1. In the judge's view, a reasonable person in the position of Ms Dewar would have taken steps to sell 17 Mint Circuit by no later than the end of 2011, by which stage her application for hardship assistance had been rejected.  Ms Dewar's failure to put the property on the market at the end of 2011 was unreasonable.[108]

What was the quantum of her loss?

[108] Primary reasons [288].

1. The primary judge noted that the parties had not had the opportunity to make submissions on the consequences that flowed from his Honour's finding that Ms Dewar failed to mitigate her loss.  For that reason, his Honour did not make a provisional assessment of Ms Dewar's damages.[109]

Breach of fiduciary duty or assistance in breach of fiduciary duty claim

[109] Primary reasons [289].

1. The primary judge found that the duty to render finance broking services with reasonable skill, care and diligence, which Mr Ollier and Andtrac breached, was prescriptive and so not of a fiduciary character.[110]  Ground 11 contends that this duty is fiduciary in nature.

   [110] Primary reasons [259].

2. The judge found that Mr Ollier and Andtrac had not breached their fiduciary duty to not act in their own interests in conflict with Ms Dewar's interests.[111]  Ground 7 contends that the judge should have found that there was a breach of this duty.

   [111] Primary reasons [260].

3. Consequently, the judge found that Ms Dewar's claims of breach of fiduciary duty and knowing assistance of breach of fiduciary duty failed.[112]

Unconscionable conduct claim at general law

[112] Primary reasons [260].

1. The primary judge noted that Ms Dewar contended that she was under a special disadvantage by reason of one or more of the following:  (1) she only completed her formal education to year 10; (2) she suffered from dyslexia; (3) she was not educated in financial matters; (4) she had been a full‑time mother for 16 years while raising her children and had little financial or commercial experience; (5) her only prior experience of obtaining a mortgage was obtaining the Keystart loan; and (6) she had limited financial means.  She contended that, as a result, she was unable to protect her interests properly in completing the Broking Agreement and the loan application to Wholesale Funds.[113]

   [113] Primary reasons [274].

2. The judge accepted that Ms Dewar had limited experience in financial matters but did not accept that she was unable to protect her interests.  His Honour explained:[114]

   In 2007 she was a mature woman with experience of life. She had progressed her education as an adult by taking TAFE courses in business and law, subjects that required an ability to understand relatively complex concepts.  She was a resourceful person.  She had taken positive steps to improve her own education and improve the educational opportunities of her children.  She had learnt a new trade at a comparatively late stage in her working life and had established her own business.  I am not satisfied that Ms Dewar was unable to protect her own interests as she alleges.

   [114] Primary reasons [275].

3. For those reasons, the judge found that Mr Ollier was not aware of any special disadvantage suffered by Ms Dewar, and her unconscionable conduct claim under the general law failed.[115]  By ground 9, Ms Dewar contends that the judge placed insufficient weight on her financial circumstances for the purpose of determining whether she had a special disadvantage.

Unconscionable conduct claim under the ASIC Act

[115] Primary reasons [276].

1. The primary judge noted that the facts relied upon by Ms Dewar for the purposes of the claim of unconscionable conduct under the ASIC Act were the same facts as those relied upon by her for the purposes of her claim under the general law. His Honour considered that, given that the factual basis for the general law claim had not been made out, the statutory claim of unconscionable conduct must also fail.[116] 

   [116] Primary reasons [278].

2. Ground 3 contends that the claim of unconscionable conduct under the ASIC Act was not statute-barred. Ground 10 contends that the judge erred in dismissing the claim.

The primary judge's application of the Limitation Act

1. Having determined the merits of each of Ms Dewar's claims, the primary judge turned to the application of the Limitation Act. His Honour noted that the effect of s 13 of the Limitation Act was that, subject to certain exceptions, none of which was applicable, actions could not be commenced if six years had elapsed since the cause of action accrued.[117]

   [117] Primary reasons [290].

2. The judge said that, in claims for breach of contract, the cause of action accrues at the time of the breach of contract.  Given that Andtrac's breach of contract occurred in November 2007 (when it made the inaccurate statements in the Mortgage Loan Summary) and Ms Dewar commenced the primary proceedings on 28 May 2015, Ms Dewar's claim based on breach of contract was not commenced within the applicable six‑year limitation period and therefore failed.[118]

   [118] Primary reasons [292] - [294].

3. The judge then turned to the negligence claim.  His Honour noted that a cause of action for damages for negligence accrues when the plaintiff suffers actionable damage, the identification of which requires a consideration of the precise interest infringed by the negligent act or omission.[119]  The judge applied these principles as follows:[120]

   Ms Dewar's primary interest infringed by the breaches of duty found by me was her equity in 17 Mint Circuit.  Arguably, Ms Dewar suffered damage when she executed the mortgage in favour of GEL because the execution of the mortgage diminished her equity.  The latest date upon which it could be said that Ms Dewar first incurred damage was in June 2008 when she fell into arrears with her loan repayments and incurred interest and other charges.  On this basis, Ms Dewar was required to bring her action for damages for negligence within six years of June 2008, that is, by June 2014.  Her claim for damages for negligence fails because the action was not commenced within the limitation period.   (footnotes omitted)

   [119] Primary reasons [295] - [296].

   [120] Primary reasons [297].

4. The primary judge went on to consider the operation of s 38(2) of the Limitation Act, which enables a plaintiff to apply to the court to extend the time within which an action can be commenced by up to three years if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant. His Honour noted that Ms Dewar had not made a formal application to extend the time for commencing the action. His Honour found that, even if she had, s 38(2) of the Limitation Act would not have assisted her because her failure to commence the action was not attributable to fraudulent or other improper conduct on the part of Mr Ollier or Andtrac.  Not only was there no such conduct, but Ms Dewar was aware that she had grounds to sue Mr Ollier and Andtrac by early 2012, when she notified Mr Ollier that she had sought legal advice and intended to sue him.[121]

   [121] Primary reasons [298] - [300].

5. For those reasons, the judge found that Ms Dewar's action was commenced outside the limitation period, so the law required that it be dismissed.[122]  This conclusion is challenged by ground 2.

   [122] Primary reasons [300].

Grounds of appeal

1. Omitting references to particulars, the appellant's grounds of appeal are in the following terms:[123]

   [123] WAB 6 - 10.

   1.0GROUNDS of APPEAL

   2.0The learned Judge was in error at law by finding that the action was statute barred in that the Appellant was suing on a deed and therefore the action was not statute barred.

   3.0The learned Judge failed to give sufficient or any weight to the factor that the Australian Investment and Securities Act ('the Act') is consumer protection legislation without any limitation as to time within which a cause of action may be pursued.  Therefore, any cause of action based on the Act is not statute barred.

   3.50The Judge has erred in the fact that the Respondents were not aware of the GE Money Operations Manual however, the Introducer provided the policy and procedures of the Lenders, for the Fastdoc70 product.

   4.0The learned Judge erred in law and fact in finding that the first respondent correctly assessed the Appellant as suitable for a low document loan

   …

   5.0The learned Judge erred in law by adopting an incorrect approach to the evidence of the expert witness …

   …

   6.0The learned Judge erred in law by finding that neither Respondent owed fiduciary duties to the Appellant

   …

   7.0The learned Judge erred in law by not finding the Respondents' [sic] owed fiduciary duties to the Appellant and having such duties acted in conflict to such duties by preferring their own or their employer's interests over those of the appellant …

   8.0The learned Judge was in error in fact and law in finding that the representation of the first Respondent about the most suitable loan was made with exercise of skill or judgement and contradicts the conclusions of TJ paragraph [6(a)] and [18 sentence 6]] …

   9.0The learned Judge failed to give any or any sufficient weight to deciding whether the appellant was at special disadvantage to the Respondents in relation to her financial circumstances …

   …

   10.0The learned Judge erred in law by dismissing the Appellant's claim based on the Australian Securities Investment Commission Act ('the ASIC Act') in rejecting the Appellant's plea of 'unconscionable conduct' by the Respondents …

   …

   11.0The Judge has erred in fact and law, stating there is no duty owed by the Respondents to the Appellant as the fiduciary duty applied is prescriptive in nature. 

2. In substance, the grounds contend that:

   (1)The judge should have found that certain documents, including the Broking Agreement, were deeds, meaning that the statutory limitation period was 12 years and Ms Dewar's claim was commenced within the applicable limitation period (ground 2).

   (2)The judge should have found that Ms Dewar's claim of unconscionable conduct under the ASIC Act was not statute‑barred (ground 3) and was made out (ground 10). As a specific complaint relating to this claim, the judge erred in not placing any, or sufficient, weight on Ms Dewar's financial circumstances when considering whether she was at a special disadvantage for the purposes of her unconscionable conduct claims under the ASIC Act and the general law (ground 9).

   (3)The judge made a specific factual error about whether the respondents were aware of GE Money's Credit Origination Standard and its Product and Policy Manual (ground 3.5).

   (4)The judge should have found that Mr Ollier breached his duty to find Ms Dewar the 'most suitable loan' for her (grounds 4 and 8).

   (5)The judge erred in his approach to Dr Franzese's evidence (ground 5).

   (6)The judge should have found that the respondents breached fiduciary duties they owed to Ms Dewar (grounds 6, 7 and 11).

1. Given the subject matter of Dr Franzese's evidence, and the limited use to which the judge put that evidence, the fact that his evidence did not address the matters highlighted by Ms Dewar was of no moment.  Ground 5 fails.

Grounds 6, 7 and 11:  was there a fiduciary duty and was it breached?

1. Ground 6 asserts that the judge erred in law in finding that the respondents did not owe fiduciary duties to Ms Dewar.  In support of ground 6, Ms Dewar advances submissions as to why it should have been found that the respondents owed a fiduciary duty to her.[158]  This ground seems to rest upon a misunderstanding of the judge's reasons.  In our view, it is clear that when the judge's reasons are read as a whole, his Honour found that the respondents owed a fiduciary duty to Ms Dewar, but was not persuaded that the duty had been breached.[159]  The judge also found that Mr Ollier and Andtrac each breached their duty to render their finance broking services with reasonable skill, care and diligence,[160] but found that that is not a duty of a fiduciary nature.[161]

   [158] Appellant's submissions [6.0], [6.01] ‑ [6.04].

   [159] See primary reasons [260].

   [160] Primary reasons [225].

   [161] Primary reasons [259].

2. Insofar as ground 11 challenges that last conclusion, the appeal cannot succeed even if Ms Dewar were correct in characterising the duty as fiduciary in nature.  In concluding that the duty is not fiduciary in character, the judge adopted the approach taken by Pritchard J in Collard v The State of Western Australia[162] in following the oft‑cited principles stated in the decision of this court's predecessor in Permanent Building Society (in liq) v Wheeler.[163]  While there has been some debate about aspects of what was said in Wheeler,[164] on any view, the breaches of the respondents' duties of skill, care and diligence, even if characterised as breaches of fiduciary duties, could not assist Ms Dewar. As explained below, even if those breaches were characterised as breaches of fiduciary duties, a claim based on such breaches, having been commenced more than six years after it accrued, would be statute‑barred by operation of the general limitation period of six years in s 13 of the Limitation Act, or by operation of s 27 of the Limitation Act.   

   [162] Collard v The State of Western Australia [2013] WASC 455; (2013) 47 WAR 1 [1218] ‑ [1220].

   [163] Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187, 238 ‑ 239.

   [164] See, for example, Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity:  Doctrines and Remedies (5^th ed, 2015) [5‑325] ‑ [5‑375].

3. Under the Limitation Act 1935 (WA), there were many equitable causes of action to which no limitation provision directly applied. In some cases, even though the terms of the limitation statute did not make it directly applicable, where the equitable claim corresponded to an action at law that was statute‑barred, equity would apply that limitation period by analogy.[165] 

   [165] See, for example, Knox v Gye (1872) LR 5 HL 656, 674; R v McNeil [1922] HCA 33; (1922) 31 CLR 76, 100; Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91, 99 ‑ 100; Mayne v Public Trustee [1945] HCA 38; (1945) 70 CLR 395, 401; Clay v Clay [2001] HCA 9; (2001) 202 CLR 410 [23]; Hewitt v Henderson [2006] WASCA 233 [16] ‑ [17]; Lewis Securities Ltd (in liq) v Carter [32].

4. The position in Western Australia concerning limitation periods for equitable claims changed with the introduction of the Limitation Act 2005.  As Leeming JA has observed, under the Limitation Act 2005, it is clear that every cause of action, even an equitable one, is subject to some limitation period.[166] Section 13 provides:

   13.     General limitation period - 6 years

   (1)An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.

   (2)Subsection (1) does not apply to an action if Division 3 provides for a different limitation period for that action.

   [166] Lewis Securities Ltd (in liq) v Carter [31].

5. Thus, s 13 applies to every cause of action unless another section, contained in div 3 of pt 2, makes a different provision for an action of a particular kind.

6. For present purposes, the only relevant provision in div 3 of pt 2 is s 27, which governs equitable claims to which (had a limitation period not been provided by s 13) equity would not have applied a statutory limitation period by analogy. Thus, whether s 27 or s 13 applies depends upon whether equity would have applied a limitation by analogy to the limitation period for another kind of action. If it would have, s 13 applies; if not, s 27 applies.

7. In our view, if it is assumed that such a fiduciary duty exists, in a claim of breach of fiduciary duty by failure to exercise reasonable skill, care and diligence, equity would have applied the legal limitation period by analogy.  A commonly accepted formulation of when equity will apply a limitation period by analogy is when the equitable claim corresponds to an action at law that is statute‑barred.[167]  Whether that is so in a case of breach of fiduciary duty requires attention to the nature of the breach of fiduciary duty and the particular facts giving rise to the equitable claim.[168]  If the breach of fiduciary duty is founded upon the same facts as would justify a claim in tort, the limitation period for tort should, ordinarily at least, be applied to the claim for breach of fiduciary duty.[169]  That is the case here - the same facts support the claim for breach of the putative fiduciary duty and the tort claim.  See also, by parity of reasoning, Gerace v Auzhair Supplies Pty Ltd.[170]  In the present context, as in that case, the equitable claim corresponds to, and is 'practically indistinguishable' from, the claim at law to which the six-year limitation period applies.[171] Thus, s 27 is not applicable; the six-year limitation period in s 13 would apply to any breach of fiduciary duty constituted by a failure to exercise reasonable skill, care and diligence. Consequently, the claim would be statute‑barred.

   [167] Knox v Gye (674); Lovell v Western Australian Police Union of Workers [2009] WASCA 34 [69]; Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317 [358], [363]; Lewis Securities Ltd (in liq) v Carter [35].

   [168] Lewis Securities Ltd (in liq) v Carter [34].

   [169] Lewis Securities Ltd (in liq) v Carter [35], citing Belan v Casey [2003] NSWSC 159; (2003) 57 NSWLR 670 [149]. See also Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1 [209] - [213].

   [170] Gerace v Auzhair Supplies Pty Ltd [2014] NSWCA 181; (2014) 87 NSWLR 435.

   [171] Gerace v Auzhair Supplies Pty Ltd [79].

8. In any event, if s 27 were applied, the result would be the same. The claim would be statute‑barred in that:

   (a)it was commenced more than six years after the cause of action accrued; and

   (b)it was commenced more than three years after time started running, on equitable principles, for the commencement of the action, as, by March 2012 (more than three years before the action was commenced in May 2015), Ms Dewar had formed the view that she had been 'scammed' by Xinc and that she wanted to sue Mr Ollier.[172]

   [172] Primary reasons [299].

9. Thus, whichever of s 13 or s 27 is applicable, the action is statute‑barred.

10. It will be apparent from what we have said that we do not accept Ms Dewar's submission that all provisions of the Limitation Act should be read as not applying to a claim for breach of fiduciary duty, because they do not expressly specify that they so apply.[173] That submission flies in the face of the language of s 13, which applies to any cause of action, subject only to s 13(2).

    [173] Appeal ts 39.

11. As to ground 7, on the judge's factual findings, it could not be said that Mr Ollier acted in a conflict of interest or to advance his own interests in preference to those of Ms Dewar. We repeat the judge's findings outlined at [154] above. The judge considered that Mr Ollier set out to assist Ms Dewar by obtaining a loan for her and that he did his best to achieve that.[174]  The judge was not persuaded that Mr Ollier breached his obligation to act with undivided loyalty unaffected by his own or Andtrac's interests.  Nor was he persuaded that Mr Ollier acted otherwise than in good faith towards Ms Dewar.[175]  Further, the judge did not accept that Mr Ollier took advantage of Ms Dewar or that his sole interest lay in the obtaining of the commissions.[176] 

    [174] Primary reasons [18].

    [175] Primary reasons [240].

    [176] Primary reasons [18].

12. Ms Dewar submits that the respondents preferred their own interests by proceeding with a low doc loan when a full‑document loan may have been available with a much reduced financial impact on her.[177]  The judge's factual findings remove the foundation for this submission.  The judge found, in effect, that Mr Ollier formed the view, and it was reasonable for him to form the view, that an application for a no doc loan was an appropriate one for Ms Dewar to make.[178] 

    [177] Appellant's submissions [7.05].

    [178] Primary reasons [232] ‑ [239].

13. The appellant further submits that 'there is a question of' conflict of interest in that the same person, Mr Dean Rushton, signed documents for both Wholesale Funds and Xinc Financial Services.[179]  On appeal, Ms Dewar did not explain, and it is not apparent, how the signing of these documents by the same person sustains a conclusion that one or more of the respondents breached their fiduciary duty owed to Ms Dewar.  Moreover, at trial, Ms Dewar did not plead, or submit, that Mr Rushton's signing of these documents gave rise to, or even evidenced, a breach of fiduciary duty by one or more of the respondents.

    [179] Appellant's submissions [7.10]; appeal ts 40, referring to GAB 368 and GAB 681. 

14. In any event, as we have said, even if a breach of fiduciary duty were established, that claim is statute‑barred.

15. For these reasons, none of grounds 6, 7 and 11 is made out.

Grounds 9 and 10: unconscionable conduct?

1. Ground 9 complains that the judge failed to place any, or sufficient, weight on Ms Dewar's financial circumstances when considering whether she was at a special disadvantage for the purposes of her claim of unconscionable conduct.  Ms Dewar's submissions in support of ground 9 assert that a person's constrained financial circumstances is capable of amounting to a special disadvantage.[180]  That may be accepted.  There is no reason to suppose that the judge overlooked Ms Dewar's limited financial means as a factor relevant to whether she was under special disadvantage.  To the contrary, the judge specifically mentioned that that was one of the matters upon which Ms Dewar relied in contending that she was under a special disadvantage.[181]  Moreover, contrary to Ms Dewar's submissions on appeal,[182] the judge did not overlook, and made specific findings as to, the very modest financial results of her nascent business.[183]

   [180] Appellant's submissions [9.01].

   [181] Primary reasons [274(f)].

   [182] Appeal ts 26, 27.

   [183] Primary reasons [31], [154].

2. In light of the judge's finding that Ms Dewar was able to protect her own interests, her limited financial means fell well short of constituting a special disadvantage.  In this regard, the judge found as follows:[184]

   I accept that Ms Dewar had limited experience in financial matters but I do not accept she was unable to protect her interests.  In 2007 she was a mature woman with experience of life.  She had progressed her education as an adult by taking TAFE courses in business and law, subjects that required an ability to understand relatively complex concepts.  She was a resourceful person.  She had taken positive steps to improve her own education and improve the educational opportunities of her children.  She had learnt a new trade at a comparatively late stage in her working life and had established her own business.  I am not satisfied that Ms Dewar was unable to protect her own interests as she alleges. 

   [184] Primary reasons [275].

3. Further, on the judge's factual findings, Mr Ollier was not aware of all of the matters upon which Ms Dewar relies as to her limited financial means.  In that regard, one person's special disability is sufficiently evident to the other, for the purposes of the doctrine of unconscionable conduct, only if the first person actually knows of it or is wilfully blind to it; constructive knowledge is not sufficient.[185]

   [185] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 [155] - [161]; Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223 [18].

4. For these reasons, ground 9 fails.

5. Ground 10 challenges the judge's finding that Ms Dewar's claim of unconscionable conduct under the ASIC Act was not made out. As already noted, success on this ground would not result in a judgment in Ms Dewar's favour, because any claim of unconscionable conduct under the ASIC Act is statute‑barred. In any event, for the reasons that follow, ground 10 is not made out.

6. At all material times, s 12CB(1) of the ASIC Act relevantly provided that a person must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable. Section 12CB(2) set out a number of factors to which the court could have regard, without limitation, for the purpose of determining whether a person had engaged in conduct that was unconscionable. As in Serventy v Commonwealth Bank of Australia [No 2], for the purpose of this case it is not necessary to explore in any detail the meaning of the word 'unconscionable' in its statutory setting.  It is sufficient to note that the ordinary meaning of the word is something that is done not in good conscience and which is irreconcilable with what is right or reasonable.[186] In the High Court Kiefel CJ, Bell and Gageler JJ have recently suggested that, in the context of s 12CB, 'unconscionable' connotes such a departure from accepted community standards in the supply of financial services to warrant characterisation of the conduct as unconscionable, in other words as offensive to conscience.[187]  While proof of statutory unconscionability need not always involve proof of the taking advantage of a special disadvantage known or sufficiently evident to the stronger party, that was Ms Dewar's pleaded claim in this case.[188]

   [186] Serventy [23] and cases there referred to.

   [187] Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 93 ALJR 743 [59], [92].

   [188] Statement of Claim, pars 38 - 41, BAB 115.

7. Determining whether a party is engaged in unconscionable conduct will entail 'a precise examination of the particular facts' and 'every connected circumstance' as well as 'a scrutiny of the exact relations established between the parties'.[189] 

   [189] Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113, 118 ‑ 119; Kakavas [18], [122], [158] ‑ [159], referring to the equitable doctrine of unconscionable conduct.  The same is true of the statutory jurisdiction to relieve against unconscionable conduct:  Australian Securities and Investments Commission v Kobelt [115], [120], [150]; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; (2011) 15 BPR 29,699 [291] ‑ [293]; Wu v Ling [2016] NSWCA 322 [7].

8. Ms Dewar's particulars and submissions in support of ground 10 assert the following matters in support of her contention that there should have been a finding that the respondents engaged in unconscionable conduct:

   (1)Mr Ollier's failure to allow Ms Dewar time to consider the loan application and to take it to a lawyer.

   (2)Mr Ollier and Mr Walker's failure to supply the loan agreement documents in sufficient time, or otherwise allow Ms Dewar sufficient time, to seek legal advice.

   (3)Mr Ollier failing to explain, and forcing Ms Dewar to sign, the 'waiver to seek to provide the appellant legal advice' without giving her sufficient time to seek legal advice.

   (4)Mr Ollier and Mr Walker's failure to provide amended documents to Ms Dewar in order to have those documents signed and witnessed.

   (5)The respondents' failure to satisfy themselves about Ms Dewar's ability to adequately service the subject loan.

   (6)Ms Dewar's inability to discharge the loan other than by the sale of 17 Mint Circuit.

   (7)Mr Ollier and Mr Walker's failure to seek and obtain a profit and loss statement from Ms Dewar, when doing so would have disclosed her limited financial means. 

   (8)Without her knowledge, Mr Ollier (or Mr Walker) inserted false information into the Personal Financial Statement within the Wholesale Funds loan application.

   (9)Mr Ollier and Mr Walker's failure to provide documents, including the Mortgage Loan Summary, to Ms Dewar.

9. Most of these assertions overlook, or fail to engage with, unchallenged factual findings made by the trial judge that are directly inconsistent with, or that provide substantial obstacles to, the assertions. 

10. As to (1) ‑ (3) above, as already noted, the judge rejected Ms Dewar's evidence as to the circumstances in which she signed the mortgage and loan documents. See [73] ‑ [74] above. Ms Dewar's account that she was pressed to sign the documents on 8 January 2008, and was told that there was no time to obtain legal advice, was rejected by the judge. His Honour found that the documents were received at Ms Dewar's home address by no later than 4 January 2008 and that she signed them and returned them to GE Money's lawyers on 9 January 2008.[190]

    [190] Primary reasons [183].

11. At the hearing of the appeal, the difficulties these findings create for ground 10 were drawn to the appellant's attention.  In response, she asserted that the findings were wrong.[191]  As was pointed out to the appellant,[192] there is no ground of appeal challenging the findings. In any event, applying the principles set out at [130] above, Ms Dewar has fallen well short of meeting the high hurdle for interfering with credibility‑based findings of fact. The reasons given by the primary judge for his findings of fact concerning the circumstances in which Ms Dewar received and signed the loan documents were as follows:[193]

    First, there is no contemporaneous documentary evidence which supports Ms Dewar's account. 

    Secondly, the fact that the letter of 2 January 2008 from [GE Money's lawyers] was addressed to Ms Dewar at her home address gives rise to an inference that it was sent to her by mail at that address. 

    Thirdly, Mr Ollier's entry of 4 January 2008 in the CRM notes is a contemporaneous record that Ms Dewar told him that she had received the loan documents that day. 

    Fourthly, I think it is inherently improbable that Mr Ollier and Mr Walker would have said to Ms Dewar that she did not have time to obtain legal advice in relation to the loan documents.

    Fifthly, settlement of the loan transaction did not take place until 14 February 2008.  In the period between 8 January 2008 and 14 February 2008 Mr Ollier made a number of the entries in the CRM notes about administrative details that needed to be resolved before settlement could take place.  There is no indication of urgency in any of these entries. 

    Sixthly, the date stamp upon which Ms Dewar places reliance [being a date stamp saying 'RECEIVED 09 JAN 2008 BY: ………………..' on the letter dated 2 January 2008 sent by GE Money's lawyers] does not support an inference that the documents were received by Mr Ollier at his office rather than by her at her home.  If the documents had been received at Mr Ollier's Osborne Park office it is likely that the letter would have borne a date stamp with a date of 8 January 2008 or an earlier date.  The fact that the letter has a date stamp with the date 9 January 2008 on it is consistent with that being the date upon which the documents were returned to [GE Money's lawyers], that is, the date stamp was applied in the solicitors' office.  Ms Dewar contended that it was unlikely or improbable that she would have returned the letter itself to the solicitors as opposed to the loan agreement, the mortgage and the other documents.  I do not think that this is so unlikely as to justify the conclusion that she did not receive the letter at her home on or before 4 January 2008.

    [191] Appeal ts 35.

    [192] Appeal ts 35.

    [193] Primary reasons [178] ‑ [183].

1. In our respectful view, far from revealing error, the judge's reasoning is cogent.  Moreover, the judge had the advantage, which this court does not have, of having seen and heard the witnesses give their evidence.  In our opinion, there is no basis to interfere with the judge's findings of fact in this regard.

2. As to (5) ‑ (7) above, as we have said, the judge found that Mr Ollier and Andtrac were not obliged to give advice concerning, or to determine whether, Ms Dewar could afford to make the repayments on the loan for which she applied, or give her advice on her ability to make those repayments.[194] The judge also found that it was reasonable for Mr Ollier to make the judgement that Ms Dewar did not need to provide documentary verification of her income,[195] and his Honour was not persuaded that Mr Ollier knew that if her financial position was disclosed she would not obtain a loan.[196]  On the judge's findings, Mr Ollier did not have, and was not obliged to have obtained, a complete and accurate picture of Ms Dewar's financial position.  In light of those factual findings, which have not been successfully challenged, the matters in (5) ‑ (7) do not support a conclusion of unconscionable conduct.

   [194] Primary reasons [224].

   [195] Primary reasons [232].

   [196] Primary reasons [232].

3. Again, Ms Dewar's assertion in (8) above is inconsistent with the judge's credibility‑based findings of fact.  The judge found that the documents comprising the Wholesale Funds loan application had been filled in by Mr Ollier before Ms Dewar signed the documents on 20 November 2007.[197]  No ground of appeal challenges that finding.  In any event, applying the principles in [130], no basis has been demonstrated for interfering with those findings.

   [197] Primary reasons [129].

4. The judge did not make a finding to the effect asserted in (4) above.  Nor was it pleaded, or put to Mr Ollier or Mr Walker in cross‑examination, that there had been any such failure.

5. The matter in (9) above is of marginal significance to the question of whether the respondents engaged in unconscionable conduct.

6. The facts found by the primary judge and not challenged, or not successfully challenged, amply sustain the judge's conclusion that unconscionable conduct on the part of the respondents had not been established.  The matters raised by Ms Dewar fall well short of providing a basis to interfere with the judge's conclusion.

7. For these reasons, ground 10 fails.

Conclusion

1. As already noted, we would grant an extension of time within which to appeal.  However, for the above reasons, none of the grounds of appeal has been made out.  Consequently, the appeal must be dismissed.  It is unnecessary to deal with ground 1 of the respondents' notices of contention.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SL
Associate to the Honourable Justice Beech

28 FEBRUARY 2020