In the matter of Matcove Pty Limited

[2020] NSWSC 625

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Matcove Pty Limited [2020] NSWSC 625

Hearing dates:

14-16 and 21 April 2020

Decision date:

25 May 2020

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Proceedings dismissed with costs. Parties to make further submissions on whether costs to be awarded against First Plaintiff or all plaintiffs.

Catchwords:

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Where borrower offers share in company to secure personal loan — Where share transferred for failure to repay loan by due date — Whether share transfer was seizure of collateral under PPSA subject to PPSA procedural requirements — Where certain PPSA provisions excluded by security deed — Whether transfer is a mortgage subject to equity of redemption — Whether transfer is a conditional sale.

 

CONTRACTS — Formation — Uncertainty — Intention to contract — Where contract signed and witnessed — Whether absence of essential terms rendered a mere agreement to agree in future.

  CONTRACTS — Implied terms — Terms implied in fact — Obviousness — Whether obviousness established where several alternatives are equally available — Whether informality of contract required application of less stringent test for implied terms — Where pleaded implied term does not satisfy necessity requirement.

Legislation Cited:

- Evidence Act 1995 (NSW), s 136
- Personal Property Security Act 2009 (Cth), s 12, 115, 123, 125, 128, 129, 130, 137, 271

Cases Cited:

- Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
- Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868
- Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 - Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281
- Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281
- Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104
- Beaton v McDivitt (1987) 13 NSWLR 162
- BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
- Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
- Brice v Chambers [2014] QCA 310
- Butt v M’Donald (1896) 7 QLJ 68
- Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
- Carlton & United Breweries Ltd v Tooth & Co Ltd (unreported Hodgson J, 11 June 1985)
- Charmelyn Enterprises Pty Limited v Klonis (1981) 2 BPR 9572
- Cheetham v 805 Archer Road Pty Ltd [2015] VSC 96
- CGM Investments v Chelliah [2003] FCA 79
- Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548
- Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
- DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423
- Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (1998) 71 SASR 161
- Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
- Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
- Fullers’ Theatres Ltd v Musgrove (1923) 31 CLR 524
- G and C Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25
- Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551
- Hawkins v Clayton (1988) 164 CLR 539
- Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
- Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 430
- Kumar v Satsang Hindu Maha Sabha of NSW Incorporated [2019] NSWSC 134
- Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
- Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61
- Lift Capital Partners Pty Ltd (in liq) v Merrill Lynch International [2009] NSWSC 7; (2009) 73 NSWLR 404
- Liverpool City Council v Irwin [1977] AC 239
- Mackay v Dick (1881) 6 App Cas 251
- Marquess of Northampton v Pollock (1890) 45 Ch D 190
- Miller v Hancock [1893] 2 QB 177
- Multiservice Bookbinding Limited v Marden [1979] 1 Ch 84
- NSW Land and Housing Corp v Diab [2015] NSWCA 133
- Re CF Mellick Pty Ltd [2019] NSWSC 1756
- Re Leslie Muir Holdings Pty Limited [2019] NSWSC 1519
- Re Mango Credit Pty Ltd [2016] NSWSC 199
- Re Modular Design Group Pty Ltd (Receiver and Manager Appointed) (in liq) (1994) 35 NSWLR 96
- Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart [2019] HCA 13; (2019) 366 ALR 635
- RPR Maintenance Pty Ltd v Marmax Investments Pty Ltd [2014] FCA 409
- Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60
- Ryder v Frohlich [2004] NSWCA 472
- Southern Cross Autoglass Pty Ltd v Protector Glass Industries Pty Ltd [2014] NSWSC 261
- Summers v Commonwealth (1918) 25 CLR 144
- Sun North Investments Pty Ltd (as Trustee of Sun Development Trust) v Dale [2013] QSC 44; [2014] 1 Qd R 369
- The Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2018] VSC 326
- Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29
- Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
- Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314
- Westfield Holdings Limited v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194
- Wily v Endeavour Health-Care Services Pty Ltd (No 5) (2003) 11 BPR 21,081

Texts Cited:

- JW Carter, Carter’s Breach of Contract, LexisNexis Butterworths (2011)
- ICF Spry, Principles of Equitable Remedies (2009)

Category:

Principal judgment

Parties:

Eric Andrew Fuller (First Plaintiff)
Andrew Simon John Fuller (Second Plaintiff)
Todd Christopher Fuller (Third Plaintiff)
Daniel Eric Neill Fuller (Fourth Plaintiff)
Kerry Albert (First Defendant)
Matcove Pty Limited (Second Defendant)
Moonee Developments Pty Ltd (Third Defendant)
Cassie Albert (Fourth Defendant)
Tristan Albert (Fifth Defendant)
Sandra May Albert (Sixth Defendant)

Representation:

Counsel:
D Cook SC/P Afshar (Plaintiffs)
CRC Newlinds SC/M Hall (First, Fourth-Sixth Defendants)

  Solicitors:
Crowther Sim Lawyers (Plaintiffs)
Pure Legal (First, Fourth-Sixth Defendants)

File Number(s):

2017/213055

Judgment

Background and affidavit evidence

1. By Originating Process filed on 13 July 2017 the Plaintiffs, Mr Eric Fuller and others, originally sought a wide range of relief in respect of the affairs of the Second Defendant, Matcove Pty Limited (“Matcove”). The Plaintiffs then radically amended their claims by an Amended Statement of Claim filed on 15 May 2019 to seek different relief, which was resisted by the First and Fourth-Sixth Defendants (to whom I will refer, for convenience, as the “Defendants”). There are two substantial issues in dispute in the proceedings following that amendment. The first issue relates to an application for a declaration that Mrs Sandra Albert holds one ordinary share in Matcove on trust for the benefit of the First Plaintiff, Mr Eric Fuller, or alternatively as mortgagee subject to an equity of redemption. The second issue, which took up the large part of the time at the hearing, involves the Plaintiffs’ claim for a declaration that a contract dated 18 February 2003, but now contended to have been signed in early 2004 (appearing at Ex J1, p 552, to which I will refer as the “Page 552 Agreement”) in relation to certain land at Moonee Beach is valid and enforceable and an order for specific performance. It is convenient, in this case, to approach the Plaintiffs’ claims by reference to the pleaded case, since there are many factual disputes which it is not necessary to resolve in order to determine that pleaded case.

2. It is common ground that the First Plaintiff, Mr Eric Fuller, is a director of Matcove, the holder of one ordinary fully paid share in the issued capital of Matcove and of one “C” class share in the issued capital of Matcove and is also a director and secretary of the Third Defendant, Moonee Developments Pty Ltd (“Moonee Developments”) and the holder of four ordinary C or E class fully paid shares in the issued capital of Moonee Developments (ASC [14]). The relief sought in the proceedings now does not affect Moonee Developments. Several other Plaintiffs, who are members of Mr Fuller’s family, also hold ordinary shares in Matcove (ASC [15]-[17]), although they do not now seek relief in the proceedings.

3. The First Defendant, Mr Kerry Albert, was an accountant who provided at least some services to Mr Fuller, Matcove and Moonee Developments and is a director and secretary of Matcove, the holder of one ordinary share in the issued capital of Matcove, a director and secretary of Moonee Developments and the holder of 3 ordinary shares in the issued capital of Moonee Developments (ASC [18]). Other members of Mr Albert’s family also hold ordinary shares in Matcove (ASC [21]-[23]). Matcove is the registered proprietor of a property situated in Moonee Beach in New South Wales which comprises undeveloped land (ASC [28]-[30]).

4. Turning now to the parties’ affidavit evidence, the Plaintiffs rely on several affidavits of Mr Fuller. The first of Mr Fuller’s affidavits, dated 12 July 2017, was prepared when the Plaintiffs pursued a very different case, challenging the transfer of land to Mr Albert on the basis that it was made without consideration, rather than relying on the Page 552 Agreement on which they now rely. That affidavit referred to the share structure of Matcove and also to the position in respect of other entities, including Moonee Developments and the Moonee Parklands Trust, and to the history of the several companies. Mr Fuller outlines the history of the acquisition by Matcove of land at Moonee Beach, the transfer of a share in Matcove to Mrs Albert and other dealings with Mr Albert, which I address in the chronology below.

5. By a second affidavit dated 15 May 2018, also sworn prior to the change in Mr Fuller’s case, he responded to several affidavits filed on behalf of the Defendants in the proceedings. Mr Fuller there claimed, by way of bare assertion (which would have been rejected, had objection been taken to it) that:

“It was always the case that Mr Albert and I agreed [that] where Mr Albert to receive a block of land, I would receive a block of land as well. The blocks would be split in a ratio of 60:40 way [sic] where I received 60% and Mr Albert received 40%.” (Fuller 15.5.18 [26])

6. Mr Fuller also took issue with aspects of Mr Albert’s affidavit dated 9 February 2018. I will refer to several aspects of Mr Fuller’s evidence to which the Plaintiffs draw attention below. Other aspects of the differences between Mr Fuller’s and Mr Albert’s evidence are of little relevance for the determination of this proceeding. Mr Fuller there also referred, for the first time in his affidavit evidence, to the Page 552 Agreement (which he then described, using a term coined by his then solicitor, as the “mudmap”) as follows:

“Mr Albert prepared the ‘mudmap’ dated 18 February 2003 … The ‘mudmap’ sets out that the Albert family has a 40% share in Matcove land and the Fuller family have a 60% share in the land. Mr Albert produced more than one version of this document. In fact, Mr Albert provided me with two previous version [of] the mudmap [sic] which I refused to sign as those versions did not clearly set out the 60/40 split. Mr Albert pressured me to sign the mudmap on 18 February 2003 so that he could build his current house.

It was my oversight that this document was not put in my first affidavit.” (Fuller 15.5.18 [67]-[68])

7. The suggestion in that paragraph that the Albert family has a 40% share in the Matcove land and the Fuller family have a 60% share in the land does not recognise the fact that that land is owned by Matcove and, at best, reflects the intent of Mr Fuller and Mr Albert as to the size of the respective plots to be transferred to them and the then economic interests of the respective families in Matcove. That affidavit also annexed the Page 552 Document, which I will address below.

8. By a further affidavit of Mr Fuller dated 15 July 2019 he contended, in evidence admitted with a limiting order under s 136 of the Evidence Act, as evidence of his understanding and belief only, that he was “ready, willing and able to perform”. I will address other aspects of that affidavit in the chronology that appears below. By a fourth affidavit of Mr Fuller dated 28 February 2020, he responded to Mr Albert’s further affidavit dated 7 February 2020.

9. In closing submissions, Mr Newlinds submits that Mr Fuller was an unsatisfactory witness whose evidence should not be accepted unless corroborated by otherwise reliable evidence or amounting to an admission against interest. There were, as Mr Newlinds points out, significant inconsistencies between the evidence led by Mr Fuller in his successive affidavits, including his evidence as to whether he could and did demand performance of Mr Albert’s suggested obligations in respect of the allotment of land to Mr Fuller, before the land was subdivided to permit such an allotment to occur. Mr Fuller also changed his evidence as to the content of conversations set out in his earlier affidavits in the course of cross-examination, referring by way of explanation to “errors” in his earlier affidavit evidence. The inconsistencies in Mr Fuller’s evidence extended to, for example, whether he had signed the Page 552 Agreement on 18 February 2003 (Fuller 2018 [67] and whether he recalled having signed it in January 2004 (T18)). I accept the Defendants’ submission that, in truth, Mr Fuller has no recollection of when he signed that document, some 16 or 17 years ago. There are, as the Defendants point out, also inconsistencies in Mr Fuller’s evidence as to whether he had signed the share transfer to Mrs Albert which formed part of the security arrangements that are in issue, both between his affidavit evidence and his cross-examination, and with the position that he previously took in the proceedings that he did not admit signing those documents. I have had regard to, but need not address, several other inconsistencies and difficulties with that evidence addressed in the Defendants’ submissions. The Defendants also submit, and I accept, that Mr Fuller frequently did not respond to questions in cross-examination, particularly when issues of inconsistency in his evidence arose. I am satisfied that I could not accept Mr Fuller’s evidence as reliable evidence of relevant events, unless corroborated by documents or other evidence. It is not necessary to reach a finding as to whether the difficulties with his evidence reflect dishonesty or a conscious or subconscious shading of his evidence reflecting his belief that he has been wronged by Mr and Mrs Albert.

10. The Defendants rely on Mr Albert’s affidavits dated 9 February 2018 and 7 February 2020. Mr Albert’s first affidavit deals with the commencement of his business relationship with Mr Fuller; the discussions with Mr Fuller leading to the purchase of the Moonee Beach property by Matcove in about 1992; the creation of Matcove and the purchase of the property; the subdivision of the property and development approval for his and Mrs Albert’s house on one lot on the property; the subsequent incorporation of Moonee Developments in order to develop the property; Mr Fuller’s business activities in Indonesia and subsequently Hong Kong in the period from 2008 or 2009; and the circumstances in which Mrs Albert made a loan to Mr Fuller secured against one Matcove share, Mr Fuller subsequently failed to repay that loan and Mr Albert caused the transfer of the secured share in Matcove from Mr Fuller to Mrs Albert. Mr Albert also refers to the fact that capital contributions made by Matcove to pay down the Moonee property’s financing were subsequently funded by the Fuller and Albert interests on a basis that reflected an equal shareholding, to Mr Albert’s decision to cease doing accounting work for Mr Fuller, and to a subsequent meeting between Mr Fuller, Mr King, Mr Bailey and Mr Albert on 1 December 2016 which I address below. Mr Albert’s first affidavit also addresses the current status of development of the property and refers to his expectation that a development application will be approved by State Planning in the next few months, and to the possibility of an “englobo” sale of the land with development approval for 101 lots after such approval is obtained.

11. By his second affidavit dated 7 February 2020, Mr Albert responds to Mr Fuller’s affidavit dated 15 July 2019 and sets out his account of events relating to Mr Fuller’s claim to a lot to be subdivided from the property. Mr Albert’s evidence in that affidavit is that Mr Fuller’s development application was rejected by Coffs Harbour City Council in 2010 and that, in a conversation occurring between 2010 and 2013, although closer to 2010, Mr Albert had proposed and Mr Fuller had seemed agreeable that a value adjustment would need to be made for the lot that Mr Albert had obtained when the sale of the balance of the property occurred (Albert 7.2.20 [19]). I return to that conversation below. Mr Albert also refers to his then hope that Mr Fuller’s profits from other business activities would assist in funding the property development, and to further discussions in 2013 including a conversation as to the allocation of other subdivided blocks in the land to Mr Fuller in place of the block that he had not previously obtained, and to a debate between Mr Albert and Mr Fuller as to whether two or three blocks should be allocated to Mr Fuller in substitution for the earlier block (Albert 7.2.20 [21]).

12. Mr Albert also refers in that affidavit to the present development application for the land, which provides for 103 residential development lots and two other lots for buffer and environmental protection zones, and that the proposal therefore constitutes a State Significant Development and would be determined by the Department of Planning (Albert 7.2.20 [30]). Mr Albert also refers to the receipt of communications of interest to acquire the property, subject to that development being approved (Albert 7.2.20 [34]). Mr Albert also identified, in evidence admitted as a submission to the extent that it extended beyond documents exhibited to his affidavit, to inconsistencies between Mr Fuller’s claim for a lot under the Page 552 Agreement and the current development application, and to Mr Fuller’s involvement in the preparation of that development application (Albert 7.2.20 [36]ff). That affidavit also addressed certain assumptions made in the report of Mr Loader, on which the Plaintiffs relied, and to issues as to Mr Albert’s health which he believes would not permit him live next to or near Mr Fuller (Albert 7.2.20 [50]ff). Mr Albert’s evidence was also that Mr Fuller had not tendered, offered to tender or made any payment on the loan which Mrs Albert had made to him, and that he and Mrs Albert continued to pay loans which could otherwise have been reduced by any repayment of that loan by Mr Fuller (Albert 7.2.20 [55]).

13. Mr Newlinds submits, and I accept, that Mr Albert presented as a truthful witness and his evidence was substantially consistent with the documentary record, and much of that evidence was not challenged in cross-examination. As Mr Newlinds also points out, Mr Albert was cross-examined at some length as to evidence in his 2020 affidavit of matters that had not been addressed in detail in his 2018 affidavit. Mr Newlinds submits, and I accept, that that was readily explicable by the fact that the Plaintiffs’ case, to which Mr Albert’s evidence was responding, was radically changed by the amendment to that case made in 2019. It is not surprising that Mr Albert needed to address, in more detail, matters in his 2020 affidavit that were not raised by the Plaintiffs’ case when his earlier affidavit was sworn. I also accept Mr Albert’s evidence that his position in respect of the allotment of a lot to Mr Fuller, at least without payment by Mr Fuller, fundamentally changed following the demands made by Mr King on Mr Fuller’s behalf in December 2016, to which I refer below, and Mr and Mrs Albert’s consequential payment of $175,000 to Moonee Developments for the lot that was previously allotted to them. That change in Mr Albert’s position was not surprising in those circumstances. The Plaintiffs largely do not challenge Mr Albert’s credit or his evidence, other than, in reply submissions, his evidence in paragraph 19 of his second affidavit as to the suggested discussion of a value adjustment for the lot between Mr Albert and Mr Fuller between 2010 and 2013, to which I referred above. I would be inclined to accept Mr Albert’s evidence in that regard, given the view that I formed as to his credit generally, but it is not necessary to reach a final view as to that question given the conclusions I reach on other grounds.

7. The Defendants also rely on Mrs Albert’s affidavit dated 24 January 2018, which refers to the circumstances of the purchase of the property at Moonee Beach and the home built by Mr and Mrs Albert on part of that property; issues which arose in 2012 in respect of Mr Fuller’s failure to pay bills due to Mr Albert’s firm for accounting services; the conversation between Mrs Albert and Mr Albert after the meeting with Mr King and Mr Fuller in late 2016; and the loan made by Mrs Albert to Mr Fuller in 2013. Mrs Albert was not required for cross-examination.

8. The Defendants’ also rely on the affidavit dated 7 December 2017 of Mr Matthew Bailey who is also an accountant and an employee of Kerry Albert & Co. His affidavit deals with his contact with Mr Fuller when the latter was a client of Kerry Albert & Co in the mid-1990s; his knowledge of Matcove; an occasion on 29 November 2016 when Mr Fuller and Mr King attended the offices of Kerry Albert & Co and inspected the books and records of Matcove; and a meeting attended by Mr Fuller, Mr King, Mr Albert and Mr Bailey on 1 December 2016. Mr Bailey’s evidence is that he also heard reference at that meeting to Mr Albert accepting that there was an agreement for each of him and Mr Fuller to get a block of land, to Mr Albert saying that neither Mr Fuller nor Mr Albert had any obligation to pay for that block and to Mr Fuller acknowledging that was the case. Mr Fuller’s position at that meeting, as set out in Mr Bailey’s evidence, would be less adverse to Mr Fuller’s credit than Mr Fuller’s version of that meeting, but it is not necessary to determine which is correct in order to determine this matter. Mr Bailey’s affidavit also annexes correspondence between Mr Bailey and Messrs King and Fuller where Mr Bailey commented on an email from Mr King recording what had occurred at that meeting, and recorded the additional matters to which I have referred in that email. The Defendants also rely on an affidavit dated 8 December 2017 of Ms Flett, who is also an accountant and an employee of the accounting firm. She gives evidence that Mr Fuller signed the share transfer form in respect of the share in Matcove that was transferred to Mrs Albert and she witnessed that signature. There is no longer any contest as to the fact that Mr Fuller signed that share transfer. Mr Bailey and Ms Flett were not cross-examined.

9. The parties also relied on expert evidence. It will not be necessary to address the expert evidence in detail given the findings that I reach on other grounds below. The Plaintiffs relied on the expert report of Mr Loader dated 15 September 2019 (Ex P1). There seems to me to be a fundamental difficulty with Mr Loader’s evidence so far as he included the land area required to be dedicated to Council in calculating the area of lot 2 allotted to Mr Albert and valuing that land, where no arms’ length purchaser of lot 2 would value it by including the size of a different lot that was dedicated to Council. A further difficulty arises because Mr Loader assumed that a subdivision had occurred in respect of a block to be allocated to Mr Fuller, where it has not yet occurred and may not in future occur, and adopted, as comparable properties, several properties for which development approval had already been obtained.

10. The Defendants relied on the expert report of a planning consultant, Mr Lawer, dated 7 February 2020 (Ex D2). It seems to me that Mr Lawer’s evidence was cogent, although that evidence depended upon making an assumption as to where a subdivided block allotted to Mr Fuller would be placed based on Mr Lawer’s reading of the Page 552 Document diagram at the time of preparing his report. That evidence was qualified in cross-examination when Mr Cook identified an alternative positioning where that block could be placed. I accept Mr Lawer’s evidence that, even if that block was repositioned, it would likely require changes to the current development application that is current in respect of the land as a State Significant Development. I also accept that, as Mr Lawer’s report indicated and Mr Newlinds submitted, an allotment of a lot of substantial size to Mr Fuller, or several lots of smaller size to Mr Fuller, would potentially reduce the number of lots that are subject to the development application below the 100 lot threshold for a State Significant Development application, and potentially require the development application to be resubmitted as a new application on a different basis. It is not, however, necessary to express final views as to those matters, given the conclusions that I reach on other grounds.

11. The Defendants also relied on Ms Parkes’ valuation report dated 3 January 2020. Ms Parkes also appears to have assumed that the land was subdivided to permit Mr Fuller’s block, and her evidence therefore has the same difficulty as Mr Loader’s evidence, that the land in fact had not been subdivided to permit that block at any relevant time. The Plaintiffs do not, and the experts did not, seek to quantify the value of the land by reference to the possibility or probability that such subdivision might in future occur, as distinct from assuming, contrary to the fact, that it has already occurred. Ms Parkes adopted a different assumption to Mr Loader as to the relevant land area, not including land allocated to the Council in that respect. It seems to me that there is significant force in her criticisms of Mr Loader’s report although her instructions did not extend to offering any alternative view as to the current value of a lot to be allotted to Mr Fuller.

12. I now turn to a chronology of events, which I have drawn from the affidavit evidence and cross-examinations and also partly from the Defendants’ helpful opening chronology. On 22 April 1993, Matcove purchased the property at Moonee Beach to which I referred above. Both Mr Fuller and Mr Albert give evidence of conversations at that time which contemplated that Mr Albert would acquire from Matcove, without mention of any payment, a block of land near a creek at the back of the property and that Mr Fuller would acquire a block of land at the front of the property, on the highway, from which he could operate a service station, also without mention of any payment, and the balance of the land would be developed in the long term (Fuller 12.7.17 [57], [73], [77], Albert 9.2.18 [22], [28]). Mr Fuller later abandoned the plan to operate a service station from the land.

13. In 1998 Matcove lodged a development application for Mr Albert’s benefit and with Mr Fuller’s consent, to have the property subdivided to create Mr Albert’s block near the creek, with the expectation that Mr Fuller would lodge a similar application (Albert 9.2.18 [55]-[58]). Mr Albert was later given development consent by Council to build a dwelling on a subdivided lot in the property and has done so and another lot has been set aside for Council.

14. Several documents were prepared between 2003 and 2004 which contained diagrams showing the location of Mr Albert’s and Mr Fuller’s proposed blocks (Albert 7.2.20 [9]; Ex J2, 2-6). The Plaintiffs now rely on the Page 552 Agreement, which is dated 18 February 2003 but which was not signed by Mr Fuller until early 2004. It appears that an earlier version of that document was signed by Mr Albert, but not by Mr Fuller, in a form that was later attached to an email dated 30 November 2016 from Mr King to Mr Fuller (Ex J2, 185C). That earlier version specifies that the two blocks will be of equivalent area, by contrast to other versions that are silent on area (J2, 435) or proportionate to shareholdings, then in a 40:60 proportion. The Page 552 Agreement in turn provides that:

“This agreement made between Eric Andrew Fuller … and Kerry Albert …, being Directors of Matcove Pty Limited, is for the purposes of acquiring one residential building site each from Matcove Pty Limited and subdividing the said blocks from parcel known as [parcel description].

Other terms of agreement include:

1.   The subdivision of the Albert block and Fuller block shall take place at the convenience of the new owners.

2.   Access to the said blocks shall be by existing dirt road until public roads are connected.

3.   Individual block costs are to be borne by the natural [sic] owners unless joint utilities/costs are agreed to be shared.

4.   The said blocks Albert (A) and Fuller (F) shall be of area equivalent to shareholding, i.e. 4/10 and 6/10, and are roughly depicted on the map below with buffer marked [shaded area].”

There follows a rough outline of two lots and a shaded area, presumably the buffer zone, and of the wider area of the land.

22. In February 2004, Matcove lodged a development application for a home block for Mr Fuller on the western side of the creek (Ex P2; Ex J1, 692). In March 2004, Mr Fuller asked Coffs Harbour City Council to delay determination of his development application until he prepared a submission (Ex J2, 11). In May 2004, the Council advised Mr Fuller that the determination of his application would be suspended pending the determination of Matcove’s application for subdivision of the property, to include lot 2 which was to be transferred to Mr Albert (Ex J2, 14). In November 2005, Council gave the necessary approvals for the subdivision of the property into two lots: one larger lot of 12.922 hectare and one smaller lot consisting of 1.293 hectare. One of the subdivided blocks was ultimately transferred to Mr and Mrs Albert and the balance, excluding the land set aside for Council, is the subject of the ongoing subdivision application. On 8 December 2005, a special meeting of Matcove approved the transfer of lot 2 of the property to Mr and Mrs Albert for a consideration of $175,000, which was not then paid, and on the basis that costs associated with the transfer would be paid by Mr and Mrs Albert (Albert 9.2.18 [82]; Ex J1, 620).

23. Following the subdivision of Mr Albert’s block, a contract of sale and a form of transfer was prepared between Matcove as seller and Mr and Mrs Albert as purchasers, which each recorded the consideration as $175,000. Matcove and Mr and Mrs Albert appear to have taken legal advice from the same solicitors in respect of that documentation, which may have been intended to record what was then understood to be the value of the land for stamp duty purposes. That amount was not then paid, although it was later paid by Mr and Mrs Albert to Moonee Developments after Mr King, acting on Mr Fuller’s behalf, contended the transfer of the land without payment of that amount involved “fraud”. I will return to that matter below. In the Plaintiffs’ opening address, Mr Cook submits that the then transfer of lot 2 to Mr Albert took place under the Page 552 Agreement and not under any contract of sale. It seems to me that the transfer of the land to Mr Albert took place in the context of the imprecise arrangements between the parties, which existed in various forms over several years, including oral discussions, the Page 552 Agreement and its predecessor versions, and, as between Matcove and Mr and Mrs Albert, the contract for sale and the transfer. Mr Cook also submits that the Page 552 Agreement (as including oral and implied terms) was performed, so far as Mr Albert was concerned, and he received the full benefit of that agreement. While lot 2 was transferred to Mr and Mrs Albert, it can hardly be said that they obtained the full benefit of an agreement that is alleged to have provided for transfer of the land without consideration, where they later paid $175,000 to Moonee Developments to acquire the land in the circumstances to which I refer below.

24. Mr Fuller’s evidence in his second affidavit is that, in late 2006 or early 2007, he lodged an application with Coffs Harbour City Council to subdivide the relevant property so that he could obtain his own lot (Fuller 15.5.18 [11]). The Plaintiffs subsequently tendered a development application lodged with Coffs Harbour City Council (Ex P2), rather than an application for subdivision. Although the parties gave significant attention to the form of that application in the course of cross-examination and submissions, it has limited significance for the findings I will reach below.

25. In January 2010, Coffs Harbour City Council invited Mr Fuller to withdraw the development application he had lodged in 2004 (Ex J1, 692), because Matcove had in 2009 lodged an application for a major project comprising the residential lot subdivision of the land which was to be (but it appears has not been) determined by the Minster for Planning. The Council indicated it would refuse Mr Fuller’s application for development of his own lot if it was not withdrawn. In opening submissions, Mr Fuller submitted that Mr Albert’s causing the Matcove land to be subdivided to give him his block:

“caused [Mr Fuller] difficulties in obtaining a further subdivision for his block, including a rejection of his application for a further subdivision by the local council in 2010.”

I do not accept this submission, both because the evidence establishes that Mr Fuller did not apply for a further subdivision for the block, but instead lodged a development approval to build a second house on the existing block, and because Council rejected the application by reason of the fact that approval had been sought for a substantial subdivision of the land, which was then before the Department of Planning, rather than by reason of any previous subdivision of the land to create Mr Albert’s block.

26. In subsequent correspondence with Mr Fuller in 2013, Mr Albert suggested that Mr Fuller could choose to have subdivided blocks from the land, if a subdivision were ultimately approved (Fuller 28.2.20 [8]). It is not surprising that Mr Albert later ceased to take that view from at least December 2016, when a representative of Mr Fuller, with Mr Fuller’s acquiescence, accused Mr Albert of wrongdoing in respect of non-payment for the allotment of land to him, and he and his wife had responded to that accusation by payment to Moonee Developments for the land that was allotted to them. I will refer to that event below.

27. The Plaintiffs in turn plead the circumstances in which Mrs Albert made a loan to Mr Fuller and that, from April 2013 until December 2013, Mr Fuller was in “severe financial distress” and that Mr Albert or Mrs Albert offered to lend him $100,000 for a specified purpose (ASC [31]-[34]). The documentary evidence indicates that, in late May and early June 2013, Mr Fuller sought a loan of $100,000 from Mr Albert on the basis that a “big deal is on”; that he would repay that loan from his superannuation; and that he could not lose face in Hong Kong on the deal, and that he would provide security for the loan (Ex J1, 761-789). In his first affidavit, Mr Fuller contended that he needed the loan from Mrs Albert for a different purpose, to pay penalties imposed on another entity and Mr Fuller by Fair Work Australia in the Federal Circuit Court (Fuller 12.7.17 [93]ff). It is not necessary to determine the purpose of the loan in order to resolve these proceedings.

28. Mr Fuller executed a Deed of Loan and Mr and Mrs Albert transferred the amount of $170,000 to Mr Fuller, part of which was applied to part payment of accounting fees owing to Kerry Albert & Co by Mr Fuller and entities with which he was associated (ASC [35]-[37]; Defence [23]). In his first affidavit, Mr Fuller indicated his belief that the signature on the share transfer of the secure share was not his signature, and claimed to have been in Indonesia and not in New South Wales at the time the share transfer was signed (Fuller 12.7.17 [102]) and also questioned his signature to the General Securities Deed (Fuller 12.7.17 [106]). It appears the original documents had been executed by Mr Fuller while he was overseas and left overseas and they were re-executed by Mr Fuller on or about 9 August 2013 (Ex J1, 884-888). The Plaintiffs do not now contend that he did not sign those documents and it is now common ground that Mr Fuller subsequently signed a Deed of Loan, Transfer of Shares for a share in Matcove and General Securities Deed in respect of these transactions (Ex J1, 790-884). Mr Cook also points out that a share transfer executed on 4 June 2013 (Ex J2, 157-158) appears to have been replaced by a second undated transfer in August 2013, but nothing turns on that matter for present purposes.

29. The Deed of Loan (Ex J1, 824) relevantly provided for Mr and Mrs Albert to loan Mr Fuller and related entities $100,000 and the current debtor and work-in-progress amount owed to Kerry Albert & Co to 3 June 2013 (not less than $70,000) for investment as Mr Fuller sees fit. The Deed of Loan also provided that:

“The principal amount shall be secured by 1/10 (10%) equity in [Matcove] owned by [Mr Fuller] represented by one (1) Ordinary Share in [Matcove].

Should the principal amounts, namely One Hundred & Seventy Thousand Dollars ($170,000) not be repaid by 1 December 2013, the said share in [Matcove] will transfer from [Mr Fuller] to [Mrs Albert] on that date.”

The Deed of Loan also contained a reference to “[s]ecurity documents attached as Signed Share Transfer form”. A share transfer dated 4 June 2013 provided for the transfer of one ordinary share in Matcove from Mr Fuller to Mrs Albert (Ex J2, p 825). It appears that share transfer was executed by Mr Fuller in undated form, in early August 2013.

30. An email dated 4 June 2013 from Mr Fuller to Mr Albert indicates that Mr Fuller then understood the transaction documents for the loan by Mrs Albert to him to provide for a sale of the share in Matcove, if the loan was not repaid in December 2013 when due, although he complained as to the circumstances in which those documents were prepared, as follows:

“Just to let you know. I remember the original discussion. You offered 150/60 as security. Then it turns into a sale in December was never discussed as a condition but you slipped it in …

31. Mr Albert responded that:

“You accepted the 100 cash and offered share as security. The 70 odd you owe accounting was just part of the deal. The share will not transfer if you pay all back by Dec[ember].”

32. That prompted a more conciliatory response from Mr Fuller on 5 June 2013 that:

“I don’t mind at all; like you said it’s trust; and it’s a sure thing; and Sandra’s money; she needed strong reassurance it would come back quick !!! and I understood that !!! That’s why I signed it Bro !!! I know the support you have both given me & the trust !!!” (Ex J1, 794)

33. Mr Albert subsequently requested Mr Fuller to execute a General Security Deed (Ex J1, 846ff) which was a more detailed document than the Deed of Loan. The General Security Deed (Ex J1, 846ff) provides, at cl 7.1.1 that, to the extent the law permits, for the purposes of ss 115(1) and 115(7) of the PPSA, the secured party need not comply with each of ss 125 and 130 among others of the PPSA. Clause 12.1.1 of the General Security Deed also provides that:

“The Secured Party may at any time after an Event of Default has occurred exercise any or all of the rights set out in this clause 12 in any manner and at any time and whether or not a Receiver has been appointed:

12.1.1   Claim beneficial ownership of the Collateral and register a transfer of ownership to the Lender ….”

The term “Event of Default” is defined in cl 11 and includes a failure to pay when due an amount payable under the General Security Deed or any other Transaction Document and the term “Transaction Document” is defined to include the Deed of Loan under which Mr and Mrs Albert advanced Mr Fuller the sum of $170,000. The term “Collateral” is defined as one ordinary share in Matcove.

34. In August 2013, an exchange of emails between Mr Fuller and Mr Albert plainly recognised an understanding that Mr Fuller was to acquire a lot, but indicated disagreement as to the terms on which he would do so. Mr Fuller initially requested Mr Albert to:

“Please send original agreement where the block [I] take was in proportion to what you received/in ratio of 60:40.

[e.g.] your block area plus the proportional difference plus the [right] to pick the location of my choice as you have exercised our verbal agreement from day one and many times since.” (Ex J2, 175)

35. Mr Fuller there requested a copy of that agreement from Mr Albert, although his evidence is that he later found a signed copy of the Page 552 Agreement on which he now relies in his files, well after these proceedings were commenced. That email refers to a “verbal agreement from day one”. It is unlikely that the reference to a “verbal agreement” in this email is to the Page 552 Agreement, which was signed some 12 years after the parties entered their original arrangements and would not aptly be described as the “original agreement”. In that email, Mr Fuller also observed that “I am in debted [sic] to you for providing 100k from [Mrs Albert] when I needed help/in the scheme of the whole picture: I should have had a titled block free of mortgage: water under the bridge and new bridges to build: let’s get on with it”. That plainly involves a reference to the loan made by Mrs Albert to Mr Fuller, to which I refer below.

36. Mr Albert responded that:

“The agreement you have says you to receive 60/40 value of my land at the time. It was stamped and valued at $175,000 in 2006. I think it was worth a little more, but had no power or services of any sort.”

Mr Albert’s then approach, by reference to the “value” as distinct from the size of the relevant lot does not seem to find support in the terms of the Page 552 Agreement.

37. Mr Fuller responded at length, in an email in which there are notations in a different colour, likely made by Mr Albert, which I have set out in italics in square brackets below. In particular, that email recorded:

“And I had a da in the same time and they would not approve two houses on one title unless you moved your house back from the 20 metre buffer [incorrect]: you choose a title: I allowed you to take the [coarse [sic] you did: I allowed you: Do what you want: so I take the same proportionate land that you took at the in globo price at the time.

You fuck with me now and I will fuck back with you: [I’m] sick of hearing a one sided unfair argument from you [same team?] …

The deal sticks: If you want to do it at today’s values both lots/we will go to valuation.

If you want it on 2002 values [? Why this yr] [sic] I will take my land area proportionate to yours at the time [Yes at value is fine]

If you prefer neither take it to arbitration/love to see what you wrote in your will [may change it if continue nutty] …

As for your kind gestures of doing my tax for 23 yrs and more recently did I not re sign an agreement to pay you 10% of a property worth in globo 2 3 4 5 6 million? For 170k security Yr joking aren’t you [It is security only – not a sale]

I’m sticking to the 60:40 2002 equall [sic] distribution on the day !!!

And that’s in my will ha ha ha.”

That reference in the third last paragraph is plainly to the loan made by Mrs Albert to Mr Fuller, although the notation (apparently by Mr Albert) records that it is as security only and not a sale, contrary to the position he put at this hearing.

38. It is common ground that Mr Fuller did not repay the amount of that loan when due, by 1 December 2013. Mr Albert’s evidence is that, in June 2014, he advised Mr Fuller that he would transfer the share in Matcove to Mrs Albert (Albert 9.2.18 [152]). Minutes of a meeting of directors of Matcove attended by Mr Albert and Mr Fuller on 1 August 2014 records a resolution to transfer the share in Matcove from Mr Fuller to Mrs Albert with effect from 1 August 2014 and that notification of the share transfer be lodged with ASIC (Ex J2, 14A). It is not necessary to reach a finding whether these minutes recorded a formal meeting attended by those persons on that date, given the findings that I reach on other grounds. On 18 August 2014, a Form 484 notifying the transfer of the share in Matcove to Mrs Albert was lodged with the Australian Securities & Investments Commission (Ex J1, 939-940). After that share was transferred to Mrs Albert, Mr Fuller and Mr Albert made their respective contributions to Matcove and Moonee Developments in 50/50 proportions, reflecting the effect of that share transfer, rather than in the 60/40 proportions that had previously been adopted. When the property was subsequently refinanced with a different bank, guarantees were provided by Mr Albert and Mr Fuller in 50/50 rather than 60/40 proportions (Albert 9.2.18, [154]-[158], Ex J1 976ff).

39. Returning now to events in respect of the Page 552 Agreement, Mr Fuller claims that, in December 2016, he required Mr Albert to perform that agreement. His evidence in his third affidavit is that:

“In or about December 2016, I spoke to Mr Albert and said words [to] the effect, “I would like you too to perform the mudmap”. Mr Albert responded [in] words to the effect, “No, I don’t agree”. Mr Albert has refused me acquiring my block as agreed and contained within the mudmap.”

It is plain that that conversation did not take place in those terms, not least because the term “mudmap” was not used by any party at that time, until Mr Fuller’s former solicitor adopted it subsequently. Mr Fuller amended the form of that conversation, in several alternative forms, in the course of cross-examination. His evidence of that conversation is also inconsistent with his evidence in his fourth affidavit (Fuller 28.2.20 [6]) that, in order to take a transfer of the block that he claimed, he would have to obtain approval for a subdivision which he did not obtain, and that

“I had no basis for demanding that [Mr Albert] or Matcove perform the agreement until this occurred”.

Not surprisingly, Mr Fuller was cross-examined at some length as to that inconsistency, and provided no satisfactory explanation of it.

40. Also in December 2016, Mr Fuller and his representative, Mr King, met with Mr Albert and alleged that the transfer of lot 2 by Matcove to Mr Fuller without payment was wrongful (Fuller 12.7.17 [125]-[129]; Fuller 15.5.18 [25] (denying that he had agreed that Mr Albert need not pay for the lot, contrary to the position he now puts), [66]; Fuller 28.2.20 [9]; Albert 9.2.18 [164]-[165]; Albert 7.2.20 [11]; Bailey 7.12.17 [16]-[20]; Ex J1, 1003-1006). It is plain that Mr King was acting for Mr Fuller in respect of the meeting on 1 December 2016, and handwritten notes subsequently made by Mr Fuller recorded that:

“I instructed James King to pursue the matter on the non-repayment of lands and to pursue the return of my share.” (Ex J2, 191)

41. In his first affidavit, Mr Fuller referred to the circumstances of that meeting, and says that Mr King demanded evidence that Mr Albert had paid Matcove for the land transferred by it to Mr Albert and Mrs Albert; Mr Albert responded that he did not need to make such payment as Mr Fuller and Mr Albert had an agreement that did not require payment for the land; Mr King referred to a contract prepared by solicitors which had provided for a payment of $175,000 within 35 days and a transfer indicating that payment and contended that Mr Albert had not acted in the best interests of Matcove and its shareholders by taking a transfer of the land without paying for it; and Mr Albert again referred to the agreement with Mr Fuller in that respect. On Mr Fuller’s evidence he remained silent, permitted Mr King to advance these assertions, without acknowledging the existence of any agreement with Mr Albert such as that for which he now contends, although Mr Bailey’s evidence suggests that he acknowledged the fact of that agreement including that neither party had to pay for the land. By a subsequent letter dated 9 December 2016 (Ex J2, 186), Mr Fuller went further to allege that the transfer of lot 2 to Mr and Mrs Albert, without payment, amounted to “fraud” and that Mr Fuller was “compelled”, as a director of Matcove, to refer the matter to the NSW Police and ASIC, and he did at least the former.

42. In opening submissions, Mr Cook sought to distance the Plaintiffs and Mr Fuller from the allegations made at the meeting on 1 December 2016 and in that letter, as follows:

“On 1 December 2016, [Mr Fuller] went to [Mr Albert’s] offices with a Mr James King, who described himself as a private investigator. At that meeting, Mr King seized upon the contract of sale in respect of [Mr Albert’s] block and the admission from [Mr Albert] that he had not paid the purchase consideration under that contract to accuse [Mr Albert] of serious misconduct.

There was no substance to that accusation at all. There never was any intention that the contract of sale would be performed on its terms. [Mr Albert] immediately pointed to the long-standing agreement he had with [Mr Fuller] under which he took the transfer. [Mr Fuller] did not deny the agreement but stood by whilst Mr King made these unfounded accusations.

Subsequent to this confrontation, [Mr Fuller] reported Mr King’s accusations to the police. Further, this unfounded allegation then found itself being made in these proceedings when they were first commenced and a claim was made against [Mr Albert] for breaching his director duty in taking a transfer without the knowledge and consent of Eric.”

43. Mr Cook accepts that “[t]hese matters do not reflect well upon” Mr Fuller but submits that the Court should not be “overly distracted” by Mr Fuller’s conduct; that the matters impact significantly upon Mr Fuller’s credit; but the facts upon which Mr Fuller relies are “either common ground or based upon Mr Albert’s evidence”. It seems to me that that submission is not correct, since at least Mr Fuller’s claim that he orally demanded performance of the Page 552 Agreement was denied by Mr Albert and subsequent conversations which Mr Albert contends amounted to a variation or abandonment of the relevant agreement are also contested.

44. Mr Fuller’s evidence (Fuller 15.5.18 [128]) is that Mr Albert then offered to pay the purchase price for the land, as specified in the contract prepared by the solicitors and transfer $175,000, which he subsequently did; Mr Albert offered to transfer the share received by Mrs Albert in Matcove back to Mr Fuller, at the current value and Mr Fuller insisted that Mr Albert should instead pay the current value of the land transferred by Matcove to him. That proposition is wholly inconsistent with Mr Fuller’s submission put at this hearing that he had not demanded that Mr Albert pay for that land, contrary to the alleged terms of the Page 552 Agreement. Mr Fuller’s then evidence was that he had reported the matter to the New South Wales Police and the matter was then under investigation by the Police although it appears that the Police took no further action in the matter.

45. On 21 December 2016, Mr Albert paid $175,000 to Moonee Developments for the purchase of lot 2 of the property (Ex J1, 1012-1016). In opening submissions, Mr Cook submits that that payment was not performance under the contract prepared by the solicitors for the sale of the land by Matcove to Mr and Mrs Albert for $175,000 (which Mr Cook characterises as the “sham” contract) because the money was paid to Moonee Developments and did not include interest on the amount that would have been due to Matcove some years before. Nothing turns on that submission because Mr Fuller’s claims are not brought under that contract.

46. By a letter dated 8 February 2017 (Ex J2, 193-198), Mr Fuller made further allegations (formulated as “issues”) against Mr Albert of misappropriation and breach of fiduciary duty to Matcove, which were also inconsistent with Mr Albert (or Mr Fuller) being entitled to a transfer of land from Matcove without consideration under the Page 552 Agreement.

47. By the Plaintiffs’ original Statement of Claim filed in these proceedings in September 2017 (Ex J2, 204) he sought a number of orders, including a declaration that, by reason of Mr Albert’s breach of duties as a director of Matcove arising from the transfer of lot 2 to Mr Albert and his wife, Mr Albert and his wife held that lot on constructive trust for Matcove or were liable to a range of equitable gain or loss based remedies to Matcove. Paragraphs 112-115 of that Statement of Claim relevantly pleaded that (particulars omitted):

“In or about 2005 [Mr Albert] caused Lot 2 to be transferred from [Matcove] to himself and [Mrs Albert] as tenants in common (the Transfer).

The Transfer was not made pursuant to a resolution of the board of Matcove and without the knowledge or consent of the other directors of Matcove.

In causing the Transfer [Mr Albert] breached the Director’s Duties [as defined].

Mrs Albert was a knowing recipient of property transferred in breach of the duties pleaded above, and as such is liable to account for the property she received, alternatively was not a bona fide purchaser for value without notice.”

Those allegations were verified by Mr Fuller by affidavit dated 22 September 2017 which represented that he believed the allegations of fact in the statement of claim were true (Ex J2, 221, 223). The omission of any reference in that pleading to the Page 552 Agreement or to any entitlement of each of Mr Albert and Mr Fuller to a transfer of a lot in the property by Matcove to them without consideration is striking.

48. Subsequently, by a letter dated 28 February 2020 (Ex J1, 1268) the solicitors for Mr Fuller wrote to the solicitors for Mr Albert seeking to invoke an equity of redemption in respect of the transfer of a share in Matcove to Mrs Albert, stating that:

“… Mr Eric Fuller offers to redeem the share held by Sandra Albert as mortgagee which our client pledged as security for the loan made by Ms Albert.

We presently hold funds in trust to cover the repayment amount of the debt in respect of which the security was provided, that is $170,000 plus interest.

… Please also provide us with a form of the transfer of the share proposed by Ms Albert [sic] to be provided in exchange for the aforementioned cheque as well as a copy of the share certificate itself.”

49. By a further letter dated 26 March 2020 (Ex J2, 319) the Plaintiffs’ solicitors denied that Mr Fuller was under any obligation under the loan or security to pay interest, but indicated that he would pay out the amount for which Mrs Albert contended (implicitly, including interest) while reserving his right to seek to recover the overpayment as monies had and received by Mrs Albert. Mr Fuller did not then make any offer to pay costs of the redemption proceedings.

50. By letter dated 27 March 2020, Mrs Albert’s solicitors responded that, in order to attract the principles of the equity of redemption, Mr Albert would need to pay the principal amount in question, interest and costs, and contended that such costs included legal costs incurred in the current proceedings in relation to the share transfer issue. That letter noted that Mrs Albert’s solicitors read Mr Fuller’s solicitors’ letter dated 26 March 2020 as a refusal to pay legal costs and indicated that Mrs Albert would not accept the tender of any amount calculated on that basis. Mrs Albert’s solicitors also pointed to the fact that costs for the development had been allocated on the basis that Mrs Albert was the owner of the relevant share, since the share transfer to her had occurred, and sought confirmation that Mr Fuller accepted that:

“[A] necessary consequence if any redemption were to occur would be a reversing of all such amounts as recorded in the books and records of [Matcove] from [Mrs Albert] to [Mr Fuller].”

There is no evidence that Mr Fuller subsequently accepted that matter. Counsel for Mr Fuller acknowledged, on the last day of closing submissions, that Mr Fuller had also made no offer to pay costs of the redemption proceedings, such as they might be, until Counsel obtained instructions to make and made that offer in the course of Mr Fuller’s closing submissions in reply.

The issue as to the share in Matcove transferred to Mrs Albert

51. As I noted above, the first issue to be determined relates to Mr Fuller’s application for a declaration that Mrs Albert holds one ordinary share in Matcove on trust for his benefit, or alternatively as mortgagee subject to an equity of redemption. An order is also sought for the Defendants to execute documents to give effect to the declaration sought, without identifying what those documents would be, or alternatively that Mrs Albert transfer or take all necessary steps to deliver that share to Mr Fuller. I have set out the circumstances in which that loan was made, the share in Matcove was transferred from Mr Fuller to Mrs Albert as security for that loan and Mr Fuller failed to repay that loan in dealing with the chronology of events above.

52. An initial question arises as to whether the Deed of Loan, General Securities Deed and associated arrangements constituted a security interest under s 12 of the Personal Property Security Act 2009 (Cth) (“PPSA”). Subsection 12(1) of the PPSA provides that a “security interest”means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property). Subsection 12(2) gives examples of security interests including not only a pledge but also a conditional sale agreement or transfer of title. Mr Cook submits that the Deed of Loan, General Securities Deed and associated arrangements were a “security arrangement” both by reference to their form but also by reference to their substance for the purposes of s 12 of the PPSA. I do not understand that contention to be disputed, and I find that the arrangements gave rise to a security interest under s 12 of the PPSA where, even on the Defendants’ case, they amounted to a conditional sale or transfer of title and would fall within the specific examples of a security interest in that section. I return to the question whether the transaction gave rise to a mortgage at general law below.

53. The Plaintiffs submit that Mrs Albert did not purchase or acquire the share in Matcove by public sale or by paying its value as at 18 August 2014, implicitly relying on provisions of the PPSA to which I refer below, and that the transfer of that share in Matcove from Mr Fuller to Mrs Albert was “unlawful and was not effectual”, although that pleading does not identify the source of the relevant unlawfulness or invalidity.

54. By letter dated 16 May 2019, the Defendants’ solicitors sought particulars of that claim, so far as it (implicitly) relied on an alleged a breach of s 129 of the PPSA, and the Plaintiffs’ solicitors provided particulars by letter dated 23 May 2019 (Ex J2, 307-310). The particulars requested by the Defendants’ solicitor included whether it was alleged that there had been a seizure of the secured share, and if so when that seizure was alleged to have occurred and whether any seizure had occurred pursuant to s 123 of the PPSA or otherwise. The Plaintiffs’ solicitors responded that:

“There was no seizure under s 123 [of the PPSA]. The shares [sic] were transferred by means of a share transfer provided at the time that the [General Security Deed] was entered into.”

55. The Defendants’ solicitors also sought particulars of any disposal of the secured share, including any disposal by purchase of the collateral, and the Defendants provided particulars by reference to paragraph 70 of Mrs Albert’s then Defence and advised that the facts were otherwise peculiarly within Mr Albert’s and Mrs Albert’s knowledge.

56. In opening submissions, Mr Cook submits that Mr Fuller’s primary claim in respect of the share transferred to Mrs Albert is that the transfer of that share was contrary to the provisions of the PPSA. Mr Cook submits that the PPSA prohibits the sale of collateral to a creditor unless its requirements are complied with, and refers to ss 128(1), 128(3), 129(1), 129(3) and 130 of the PPSA in that respect. Mr Cook accepts that it was open to Mrs Albert to contract out of the limitations under s 129 and 130 under s 115 of the PPSA but submits that she did not do so. I do not accept that submission, where cl 7.1.1 of the General Security Deed contracts out of several aspects of that regime, to which I refer below. Mr Cook then submits that any transfer of the share to Mrs Albert was “unlawful as contrary to the PPSA” but did not, in opening submissions, identify how that contention could give rise to the trust for which Mr Fuller contends.

55. Relevantly, s 123(1) of the PPSA provides that a secured party may seize collateral, by any method permitted by law, if the debtor is in default under a security agreement. That section does not appear to be relevant here, where the Plaintiffs disclaim any allegation that Mrs Albert seized the share in Matcove, whether understood as a share certificate or as a chose in action. Section 125(1) of the PPSA in turn provides that a secured party who seizes collateral under s 123 of the PPSA must dispose of the collateral in accordance with Div 3 (which relevantly includes ss 128 and 129) or take action to retain the collateral in accordance with Div 4. As I noted above, that section was relevantly excluded by cl 7.1.1 of the General Security Deed and, in any event, it does not seem to apply where there is no allegation that Mrs Albert seized the share.

56. Sections 128 and 129 of the PPSA then appear in Pt 4.3 Div 3 of the PPSA, headed “Disposing of Collateral (including by purchasing collateral)”. Section 128 of the PPSA provides:

128 Secured party may dispose of collateral

(1) A secured party may dispose of collateral if the secured party has seized the collateral in the exercise of a right to seize the collateral on default by the debtor (whether under section 123 or otherwise).

Note 1: A secured party may dispose of collateral by purchasing the collateral (see section 129).

Note 2: The person who takes the collateral as a result of the disposal does so free of certain security interests (see section 133).

Note 3: The secured party may act as agent for the grantor in transferring title (see section 141).

Method of disposal

(2)   A secured party may dispose of collateral under this section:

(a)   by private or public sale (including auction or closed tender); or

(b)   by lease, if the security agreement so provides; or

(c)   if the collateral is intellectual property—by licence.

Note 1: A different rule applies in relation to disposal by purchase (see subsection 129(3)).

Note 2: Paragraph (2)(b) does not apply in relation to collateral that is used predominantly for personal, domestic or household purposes (see subsection 109(5)) …

That section does not apply where the Plaintiffs do not contend that Mrs Albert had seized the collateral.

59. Section 129 of the PPSA in turn provides:

129 Disposal by purchase

(1)   A secured party may, under subsection 128(1), dispose of collateral by purchasing the collateral.

Note: This section does not apply in relation to collateral that is used predominantly for personal, domestic or household purposes (see subsection 109(5)).

(2)   However, the secured party may dispose of the collateral by purchasing it only if:

(a) the secured party gives a notice under section 130 stating that the secured party proposes to purchase the collateral; and

(b)   no notice of objection is given to the secured party in accordance with subsection 137(2).

(3)   Despite subsection 128(2) and section 131, a secured party may purchase collateral only:

(a)   by public sale (including auction or closed tender); and

(b)   by paying at least the market value at the time of the purchase.

Note: Section 296 deals with the onus of proving matters under this subsection.

60. Mr Cook submits that, under s 129 of the PPSA, a secured party may dispose of collateral by purchasing the collateral only if the secured party gives a notice under s 130 of the PPSA stating that the secured party proposes to purchase the collateral and no notice of objection is given to the secured party in accordance with s 137(2) of the PPSA. However, s 129(1) applies to a disposal of collateral under s 128(1) and, as I noted above, that subsection does not appear to apply where there is no allegation of seizure of the collateral. Section 130 of the PPSA was excluded by cl 7.1.1 of the General Security Deed, and there is no suggestion that it could not be excluded in that manner. Mr Newlinds responds that s 129 is engaged only where a secured party seeks to dispose of collateral by purchasing it and that does not arise here, because the share was previously transferred to Mrs Albert, who now holds legal ownership of it, subject to any successful claim for redemption, which I will address below. He submits that no question arises of Mrs Albert now seeking to dispose of a share that she already owns.

61. It seems to me that the Plaintiffs have not established that ss 128 -129 of the PPSA apply, because they do not allege a seizure of the collateral, because some of the provisions on which they seek to rely were excluded by the terms of the General Security Deed to which I have referred above, and because the security was given by a transfer of the Matcove share in a manner that does not require Mrs Albert now either to dispose of or to purchase that share. In any event, it seems to me plain that the Plaintiffs cannot establish the relief they seek on this basis. They rely on the suggested non-compliance with the PPSA to submit that:

“Accordingly, the transfer of the legal title to the share was ineffectual, alternatively unlawful, and [Mrs Albert] holds the share on trust for [Mr Fuller].”

62. This submission reflects the relief sought by Mr Fuller in the proceedings. However, Mr Cook was unable to point to any provision of the PPSA that invalidates a secured party’s purchase of collateral by reason of any non-compliance with the PPSA. Mr Cook did not submit that a contravention of ss 128-129 of the PPSA gave rise to illegality at general law, or address any of the case law that would be relevant to such a submission. Mr Newlinds points out that the PPSA does not contain a provision that avoids or invalidates a conveyance in breach of s 129 of the PPSA and that s 271 provides for an entitlement to damages in respect of a breach of duties or obligations under PPSA. He submits, and I accept, that the Court should not imply some other consequence of breach of the PPSA, where that matter is addressed by the statute itself. There is no reason to infer that a contravention of the provisions of the PPSA on which the Plaintiffs rely invalidates a transaction absent a statutory provision which provides for that result, particularly where third parties may rely upon the validity of apparently regular transactions between persons granting securities and secured parties.

63. I note, for completeness, that Mr Cook also advanced several criticisms of the circumstances in which the loan arrangements between Mr Fuller and Mr Albert were documented. It is not necessary to address those submissions where there is no pleaded challenge to those arrangements, quite apart from the fact that they resulted in Mr Fuller obtaining substantial funds in circumstances that he said he had urgent financial need for them. Mr Cook also advanced several submissions as to the manner of the transfer of the share by Mr Fuller to Mrs Albert, but I also need not need to address those submissions where that transfer is not impugned in these proceedings and, as Mr Cook accepts, they have been conducted on the assumption that that transfer was valid. Although Mr Cook foreshadowed seeking a declaration to the contrary, if the evidence at the hearing established the contrary, he did not pursue that course.

64. Mr Fuller also seeks to invoke an equity of redemption at general law. Mr Fuller contended that the share transfer was intended to act as security for the loan and that he has made an offer to redeem the share by repaying the loan. I have referred above to the solicitors’ correspondence, after February 2020, in respect of the equity of redemption in setting out the chronology of events above.

65. A first question arises, in dealing with Mr Fuller’s reliance on the equity of redemption, as to whether the Deed of Loan, General Securities Deed and associated arrangements gave rise to a mortgage rather than a conditional sale. Mr Newlinds submits that, on the proper construction of the Deed of Loan, transfer of shares and General Securities Deed, the transaction was a conditional sale rather than a mortgage. He submits, and I accept, that the Court must assess the substance of the contract and have regard to the underlying nature of the transaction. He recognises that the Deed of Loan provides that the principal amount will be “secured” by the share in Matcove but emphasised that it provides for that share to transfer from Mr Fuller to Mrs Albert if the loaned amount was not repaid by the due date. It seems to me that that provision provides little support for a submission that the transaction was a sale rather than a mortgage, where that transfer is consistent with the exercise of a mortgagee’s rights on default. Mr Newlinds also points to the fact that the Deed of Loan and subsequent General Securities Deed do not provide for interest, but that is consistent with a short term arrangement and also provides no support for a characterisation of the transaction as a conditional sale, since it is equally consistent with a mortgage, where Mrs Albert could exercise the rights of a mortgagee on default. Mr Newlinds points out, and I accept, that Mr Fuller referred to the transaction as a “sale” in emails, but Mr Albert conversely referred to the transaction as a “security” with each taking the opposite position to which they now advance. It seems to me that the arrangements were in the nature of a mortgage, and the provision for the sale of the Matcove share was a remedy for default under the Loan Agreement and General Security Deed rather than a sale on condition.

66. The parties did not make detailed submissions as to the applicable legal principles in respect of the equity of redemption, which I address before turning to the applicable facts. In Marquess of Northampton v Pollock (1890) 45 Ch D 190 at 215, Bowen LJ observed that:

“… whenever a transaction is in reality one of mortgage, equity regards the mortgaged property as security only for money, and will permit of no attempt to clog, fetter, or impede the borrower’s right to redeem and to rescue what was, and still remains in equity his own.”

67. In G and C Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 (“Kreglinger”) at 61, Lord Parker observed that:

“… there is now no rule in equity which precludes a mortgagee, whether the mortgage be made upon the occasion of a loan or otherwise, from stipulating for any collateral advantage, provided such collateral advantage is not either (1) unfair and unconscionable or, (2) in the nature of a penalty clogging the equity of redemption or, (3) inconsistent with or repugnant to the contractual and equitable right to redeem.”

68. In Westfield Holdings Limited v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194 (“Westfield”) at 202-203, Young J in turn observed that:

“There does not appear to be any commercial reason why, in 1992, the court should invalidate any transaction merely because a mortgagee obtains a collateral advantage or seeks to purchase a mortgage property. Quite obviously equity must intervene if there is unconscionable conduct. Again equity must intervene in the classic case where it can see that a necessitous borrower is not, truly speaking, a free borrower.

In my view, in 1992, the rule [concerning clogs on the equity of redemption] only applies where the mortgagee obtains a collateral advantage which in all the circumstances is either unfair or unconscionable. It may be that the court presumes from the mere fact of a collateral advantage that the transaction is unconscionable unless there is evidence to the contrary, but the principle does not extend to invalidate automatically cases in which the mortgagee has obtained the right to purchase the whole or part of the mortgaged property in certain circumstances or has obtained a collateral advantage where the circumstances show that there has been no unfairness or unconscionable conduct.”

69. In Lift Capital Partners Pty Ltd (in liq) v Merrill Lynch International [2009] NSWSC 7; (2009) 73 NSWLR 404 (“Lift Capital Partners”) at [131] and [136]-[137], Barrett J also limited the operation of the rule in cases in which a finding of unconscionability can be made, and observed that:

“It cannot be said today that a contractual provision freely assented to by a mortgagor is void or unenforceable just because it allows the mortgagee to acquire the mortgaged property or to resist that mortgagor’s attempt to redeem. The susceptibility of such a provision to equitable intervention is, however, well established. In a given case, equity will prevent reliance on the provision by the mortgagee if that reliance is unconscientious because of some factor associated with the formation of the contract or something distinct from mere changed circumstances or supervening event operative at the time of reliance.

In determining whether reliance is unconscientious, regard must be had to the nature of the bargain, the circumstances in which it was made and the circumstances in which the mortgagee seeks to assert the mortgagor’s promise to defeat the right to redeem.”

70. In Sun North Investments Pty Ltd (as Trustee of Sun Development Trust) v Dale [2013] QSC 44, [2014] 1 Qd R 369 at [74]-[75], Henry J in turn summarised the applicable principles as follows:

“It is an essential feature of every mortgage that the mortgagor has a right to discharge the mortgage in payment of the debt or performance of the obligation for which security was given. That right, the “right of redemption” or the “right to redeem”, can arise contractually, so long as the mortgagor is not in default. But even if the mortgagor does not repay a loan in time and thus loses the contractual right to redeem, there exists an equitable right to redeem. The equity of redemption may be enforced, notwithstanding a failure to redeem by the repayment date, until the point in time when the mortgagee’s power of sale has been exercised or a court has made an order for foreclosure.

The principle that a mortgage cannot at the time of the mortgage transaction in any way fetter or lessen redemption has been characterised as a special application of a more general power to relieve against penalties and to mould them into mere securities. It was the severity or hardship inherent in forfeiture of a security far exceeding the quantum of the repayment to be secured which, from an early date, attracted the intervention of equity to relieve against what was virtually a penalty.” [citation omitted]

71. Henry J there noted several of the authorities to which I have referred above but expressed the view that “[t]he failure of the Westfield approach to give determinative weight to the inherently unconscientious nature of the transaction as an automatic foundation for intervention involves a departure from established law” and declined to follow that approach. His Honour’s decision has been referred to in two later cases and three case notes or articles, none of which address the correctness of his view as to Westfield. I will return to that view, albeit briefly, below.

72. In a comprehensive summary of the applicable principles in Re Mango Credit Pty Ltd [2016] NSWSC 199 at [98]ff, Lindsay J in turn referred to these cases and observed that the statements in Marquess of Northampton v Pollock and Kreglinger remain “foundational to an analysis of current Australian law”, although also recognising that they may require qualification in light of subsequent case law. His Honour also referred to Charmelyn Enterprises Pty Limited v Klonis (1981) 2 BPR 9572, where the Court of Appeal adopted a statement made by Browne-Wilkinson J in Multiservice Bookbinding Limited v Marden [1979] 1 Ch 84 at 110 that:

“… a bargain cannot be unfair and unconscionable unless one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say, in a manner which affects his conscience.”

73. Lindsay J also there noted that the approach adopted by Young J in Westfield had been largely followed by Santow J in Re Modular Design Group Pty Ltd (Receiver and Manager Appointed) (in liq) (1994) 35 NSWLR 96 at 103-104 and 108G, by Gzell J in Wily v Endeavour Health-Care Services Pty Ltd (No 5) (2003) 11 BPR 21,081 and by the Full Court of the South Australian Supreme Court in Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (1998) 71 SASR 161 at 173. Lindsay J also there noted (at [102]ff) that:

“An examination of case law confirms that Australian courts, mindful of a need to respect freedom of contract, proceed to the making of a finding of a clog on the equity of redemption with the utmost caution.”

74. His Honour also observed (at [106] that “[t]here remains room for debate about the rationale, nature and scope of any rule governing a mortgagor’s right to redeem mortgaged property and principles governing equitable intervention to vindicate that right” and referred to treatment of the issue in texts and academic writings. This case will not require the determination of any aspect of that debate. His Honour also noted (at [109] and [112]) that:

“… consideration of whether there is “something more” that bespeaks of a clog generally commences with a consideration of the substance of the parties’ transaction (having regard to its nature and purpose), and the question whether their contract documentation includes a collateral impediment to redemption of the mortgage security …

Each party (but, here, particularly, the mortgagee) is liable to be held to the intended purpose for which, objectively, the parties’ transaction was entered: provision of a loan on security, coupled with an obligation on the mortgagee to return the security on repayment of the loan.”

75. Mr Cook here refers to the offer made by Mr Fuller to redeem his share to which I referred above and to an offer by Mr Fuller to pay interest on the share, although disputing the calculation of Court interest made by Mrs Albert. Mr Cook points out that Mrs Albert did not accept that offer but required a contribution to her costs of this issue in the proceedings in a substantial amount. Mr Cook submits that:

“To the extent that [Mrs Albert] characterises the proceedings brought against her as a redemption suit, and on that basis claims an entitlement to payment of her costs of a redemption suit, there are a number of difficulties with that proposition. First … the redemption suit is brought in the alternative. Second, there is no evidence before the Court that she, as opposed to [Mr Albert] has incurred any costs in these proceedings (and the tenor of her evidence suggests strongly that she has not had any involvement in these proceedings, having let [Mr Albert] deal with the arrangements. Third, to assume that [Mrs Albert] will receive a costs order in her favour if [Mr Fuller] is successful prejudges the matter, particularly where [Mrs Albert] denies the equity of redemption.”

In reply submissions, Mr Cook again submits that the question of costs does not extend to costs in a redemption claim, where the Plaintiffs’ primary attack on the transfer is based on the PPSA. It does not seem to me that these submissions assist Mr Fuller. This position would have been open had Mr Fuller limited his claim to that under the PPSA but is not open where he has also sought relief in reliance on an equity of redemption. Once a redemption claim is raised in the alternative, and the proceedings involve a redemption suit, the authorities establish that the party seeking to establish an equity of redemption needed to address the costs of that suit in order to do so. Mr Fuller did not offer to pay proper costs of that application until an offer made at the end of his closing oral submissions in reply, to which I refer below.

76. The Defendants also rely, in resisting the claim for redemption, on Mr Fuller’s maintenance of a case that put in question whether he signed the transfer of shares to Mrs Albert or General Securities Deed and the maintenance of his claim under the PPSA. It does not seem to me that these are strong factors against an order for redemption, if it were otherwise justified. The Defendants also rely on Mr Fuller’s failure to offer any payment to redeem the share until 28 February 2020, and his failure to make any offer as to costs incurred in defending the redemption application after that date. These matters seem to me to have more substantial weight. Mr Newlinds submits, and it is well established, that a party seeking redemption must have made an open and unconditional tender to pay the outstanding amount and that tender must extend to the principal amount, interests and costs: Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 at [512]. Mr Newlinds submits that the Plaintiffs are not entitled to be heard in respect of the equity of redemption, as no open unconditional tender of the principal amount plus interest and costs was made by Mr Fuller, although I note that the position as to costs belatedly changed in the Plaintiffs’ closing submissions in reply. Mr Newlinds also submits that the Court would not grant relief against forfeiture because it was not unconscionable to give effect to the terms of the transaction documents that caused the transfer, and again refers to Mr Fuller’s original evidence putting in issue whether he had signed the relevant transaction documentation.

127. On balance, it seems to me that the Page 552 Agreement is sufficiently certain, for reasons that I have addressed in dealing with its pleaded terms, other than possibly in respect of the position as to any price to be paid by Mr Fuller and Mr Albert for their respective lots. As I noted above, the Defendants also submit that the Page 552 Agreement is uncertain as to price. Mr Cook responded that the absence of an express reference to price in the Page 552 Agreement was less significant in an acquisition of land by subdivision than in respect of a transfer of land. That does not seem to me to be a distinction of substance, where in either case Matcove would part with an asset of value for the benefit of Mr Albert or Mr Fuller.

128. I noted above that I was inclined to the view that the pleaded oral term as to consideration was not established, but that it was not necessary to reach a final view as to the question given the other findings that I have made. If that term was not established, the Page 552 Agreement did not otherwise indicate whether any payment was required by Mr Fuller or Mr Albert to acquire the relevant parcels, since numbered paragraph 3 dealt with costs incurred in respect of the relevant blocks rather than any amount payable to Matcove to acquire those blocks. Several different approaches could have been adopted as to such a payment. A first possibility is that a lot could have been allotted (subject to company law considerations) to Mr Fuller or Mr Albert for no further payment. That appears to have been the parties’ common intention until Mr Fuller permitted Mr King to assert the contrary and then alleged, in the initial form of these proceedings, that the allotment of Mr Albert’s lot for no payment breached Mr Albert’s duties as a director of Matcove. Alternatively, a lot could have been allotted to Mr Fuller or Mr Albert for a price referable to the value of the lot at the time of the parties’ informal arrangements reached in the 1990s or at the date the Page 552 Agreement was dated or the different date it was executed by one or both parties or at current market value at the date of a transfer. The case law establishes that the absence of a provision specifying the price within a contract will commonly deprive that contract of certainty: Australian & New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 at 700-701. It seems to me that the Page 552 Agreement was likely too uncertain to have contractual effect, if the pleaded oral term as to consideration was not established. However, it is also not necessary to reach a final view as to that question given the findings that I have reached on other grounds.

The Defendants’ other defences

131. The Defendants also plead many other matters by way of defence and, as will emerge below, it is doubtful that any defence that could be found in a contracts or equity text has not been invoked by them. It is not necessary to deal with these numerous defences in detail, given the findings which I have reached above, and I will address them only briefly.

132. The Defendants plead variously that an agreement had previously been reached between Mr Albert and Mr Fuller as to the terms on which they would receive subdivided parts of the Moonee Beach land from Matcove for no payment as set out in Mr Albert’s affidavit of 9 February 2018; that agreement had subsequently been varied, and included that Mr Albert would proceed with lodging a development application first and prior to Mr Fuller; the document annexed to Mr Fuller’s affidavit (comprising the Page 552 Agreement) recorded the agreement that was already in place and was subject to the terms pleaded by the Defendants; and it was subsequently superseded and/or varied by other matters, including circumstances in December 2016 in which Mr Fuller demanded that Mr Albert pay for Lot 2 of the relevant property and Mr Albert did so (Amended Defence [29]).

133. In opening submissions, the Defendants indicated that the many alternative defences reflected a single proposition that the parties had subsequently acted inconsistently with the Page 552 Agreement such that it had been varied, superseded, abandoned, waived or repudiated or an estoppel operated to prevent Mr Fuller relying upon it. The Defendants there refer to steps taken by Mr Fuller in respect of his application in relation to his own lot which was not substantially progressed for many years and the fact that Mr Fuller was involved in the preparation of an application for approval of a state significant development on the land on behalf of Matcove, which Mr Newlinds submits is inconsistent with the maintenance of an entitlement to land within lot 1 of the property for Mr Fuller, because that development application seeks the maximum number of lots and land to be utilised. The Defendants also refer to the allegations made by Mr King on Mr Fuller’s behalf in December 2016, and submit they caused Mr Albert to pay the consideration nominated in the contract for the sale of lot 2 to Moonee Developments; and also refer to the fact that Mr Fuller had originally alleged fraud, breach of fiduciary duties and directors’ duties and knowing receipt by reason of the allotment of lot 2 for no consideration to Mr and Mrs Albert, when these proceedings were commenced, before reversing his position in the amendments made in May 2019.

134. In closing submissions, the Defendants similarly rely on similar facts for legal propositions formulated from the multiple alternative defences, namely the claim that from November 2005 Mr Fuller has acted inconsistently with any entitlement to a block of land out of the property for no consideration, by taking no active steps to pursue his own development application since Mr Albert’s development application was approved at that time; taking no steps to seek his own block of land since his development application, which had been suspended for some years, was rejected in January 2010; being involved in the preparation of the state significant development application on behalf of Matcove; advancing, or permitting Mr King to advance, the allegations made in December 2016, which caused Mr Albert to pay the stated contract price for his lot; and making the allegations originally advanced in the earlier version of these proceedings. There is dispute at least as to whether the state significant development application is necessarily inconsistent with the allotment of the lot claimed by Mr Fuller under the Page 552 Agreement; whether Mr King’s allegations, in which Mr Fuller acquiesced, can be treated as made by Mr Fuller; and whether Mr Fuller sought the payment of consideration for the land as distinct from advancing allegations for fraud and breach of duty based on its non-payment. I have addressed those matters above.

135. The Defendants generally deny (Amended Defence [34(a)]) the allegation (ASC [47]) that the Page 552 Agreement subsists and continues. The Defendants then plead that the Page 552 Agreement was completed by 6 January 2010 (Amended Defence [34(b)]). Mr Newlinds submits that the Page 552 Agreement is at an end, in that it does not permit multiple applications before the parties’ obligations end, by reason of Mr Fuller’s unsuccessful development application lodged in 2004 and rejected in January 2010. That submission has the difficulty that Mr Fuller did not then seek a subdivision of a separate block, but approval to erect a house on the existing block. The Defendants also submit that Mr Albert had discharged any obligation of cooperation at the time Mr Fuller previously pursued a development application for the land prior to 2010. Mr Cook rightly responds that the Amended Defence refers (consistent with Mr Fuller’s evidence) to the rejection of an application for subdivision of the land, whereas Mr Fuller had lodged a development application to construct a house on the block in 2004. In any event, it seems to me that Mr Cook is correct that the Page 552 Agreement (if it was otherwise enforceable) was not completed at that date, where Mr Fuller had not received the benefit of that agreement at that date. It is not necessary to reach a final view as to this defence given the other findings that I have reached above.

136. The Defendants then plead (Amended Defence [34(c)]) that Mr Fuller’s original statement of claim alleged that Mr Albert was not entitled to a transfer of his lot and plead that any agreement between Mr Fuller and Mr Albert was superseded or varied (Amended Defence [29(b)(v)], [34(d)]). The Defendants put their submission as to variation by reference to the parties’ subsequent conduct, Mr Fuller’s development application and the subsequent discussions of alternative approaches to the allotment of a lot to Mr Fuller and refer to Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570. They submit that consideration existed for such variations in the increase in the value of lot 1 of the property by reason of a development application. An obvious difficulty with that submission is that Matcove, rather than Mr Fuller directly, would benefit from such an increase, which does not appear to be consideration in any contractual exchange.

137. Mr Cook points out that the present form of development application appears to have been lodged in March 2009 and that the Defendants appear to rely on Mr Fuller’s continued involvement with the development application after his application to build a dwelling on lot 2 was refused by the council in January 2010. Mr Newlinds submits, and I accept, that the steps taken in respect of the subdivision of the land from 2009 appear to have been inconsistent with reserving a substantial block for Mr Fuller and, in particular, the plans for the allotment of a substantial number of smaller blocks were inconsistent with the allocation of that large block to Mr Fuller. However, it seems to me that there is substantial force in Mr Cook’s submission that these matters do not identify any particular variation of the Page 552 Agreement and raise the same issues as the Defendants’ claim that Mr Fuller has abandoned the Page 552 Agreement or his rights.

138. Mr Cook submits that, even if the conversation between Mr Fuller and Mr Albert between 2010 and 2013 relating to a value adjustment instead of a transfer of land to Mr Albert took place (as I have found), it did not amount to a variation of the Page 552 Agreement or an enforceable agreement because it was too vague and not reduced to writing. Little turns on the further discussions in 2013 because, as Mr Cook points out, there was no agreement at that point between Mr Fuller and Mr Albert as to whether 2 or 3 lots from the proposed subdivision should be transferred to Mr Fuller. It is not necessary to determine these matters given the findings that I reach on other grounds.

139. So far as the Defendants rely on the steps taken by Mr King at the meeting in December 2016, Mr Cook responds that an allegation of impropriety was made by Mr King; that no demand for payment was made by Mr Fuller or Mr King; and that Mr Fuller, at least, appears to have maintained the allegation of impropriety against Mr Albert rather than accepting that any payment would resolve it. Although it is also not necessary to decide this issue, given the other findings that I have reached above, it does not seem to me that these matters gave rise to any variation of the Page 552 Agreement where, as I noted above, I am inclined to the view that that agreement did not specify whether any payment was required by Mr Fuller or Mr Albert in respect of their respective lots. The position then taken by Mr King on Mr Fuller’s behalf was, however, fundamentally inconsistent with the position now advanced by Mr Fuller that no payment was required in respect of those lots.

140. The Defendants plead that the Page 552 Agreement was repudiated by Mr Fuller (Amended Defence [34(e)]). Mr Newlinds submits that Mr Fuller’s conduct, particularly in the allegations made from December 2016 and in the initial form of these proceedings, amounted to repudiation so far as it would convey to a reasonable person in Mr Albert’s position a renunciation of the Page 552 Agreement, and insistence instead on a requirement for Mr Albert to pay for his lot in accordance with the sale contract for that lot. In opening submissions, Mr Cook submits that Mr Fuller’s conduct on 1 December 2016 did not repudiate the Page 552 Agreement, on the basis that Mr Fuller did not deny the existence of the Page 552 Agreement (and, on Mr Bailey’s evidence, confirmed the existence of the Agreement and that Mr Albert had no obligation to pay for the block) and did not give any indication that he would not perform the Page 552 Agreement on its terms.

141. I proceed on the basis that, as Lord Wright noted in Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60 at 71, repudiation of a contract is a “serious matter, not to be lightly found or inferred”. It is uncontroversial that repudiation involves an expressed unwillingness or inability to render substantial performance of a contract: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 659; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [44]. In JW Carter, Carter’s Breach of Contract, LexisNexis Butterworths (2011) at [8-04], the author notes, by reference to authority, that it is sufficient to establish repudiation that a promisor has behaved in such a way as to indicate a refusal to perform to a reasonable person in the promisee’s position. In Southern Cross Autoglass Pty Ltd v Protector Glass Industries Pty Ltd [2014] NSWSC 261 at [123], Kunc J summarised the relevant legal principles as follows:

“The relevant legal principles are not in doubt … A party will be taken to have repudiated a contract if it manifests the intention no longer to be bound by it or to fulfil it only in a manner substantially inconsistent with that party’s obligations and not in any other way. That manifestation may occur before performance is due (known as anticipatory breach) and does not depend upon the existence of an actual intention to repudiate. Rather, the Court looks to how a reasonable person, in the position of the “innocent” party, would view the allegedly repudiatory conduct.”

I adopted that summary in Vanguard Financial Planners Pty Ltd & Anor v Ale [2018] NSWSC 314 at [228], from which I have drawn the outline of principles that appears above.

142. On balance, it seems to me that Mr Fuller’s conduct at the December 2016 meeting and in surrounding correspondence, in permitting Mr King to allege that, and himself raising issues as to whether, transfer of the lot to Mr and Mrs Albert amounted to fraud, did amount to a repudiation of the pleaded Page 552 Agreement, to the extent that it included an alleged oral term that the transfer was for the stated consideration and, implicitly, did not require further payment. (No question of repudiation would arise other than on that basis, since the pleaded agreement and the relief claimed by Mr Fuller both depend on no consideration being payable.) It is not to the point that Mr Fuller may have acknowledged the existence of the agreement or its terms to Mr Bailey, at the same time as permitting Mr King to put the position that it amounted to fraud for Mr Albert to take a transfer of the lot without payment. It is also not to the point that Mr King or he relied on the statement of consideration in the sale contract between Mr and Mrs Albert and Matcove or in the transfer form, where an obligation to make that payment would be inconsistent with the pleaded oral term as to consideration in the Page 552 Agreement. It is not to the point that, as Mr Fuller claimed in cross-examination, he may have been confused by advice given by Mr King or others, where repudiation does not depend on his subjective intention, still less on whether he was well-advised in acting as he did. The position that Mr Fuller permitted Mr King to take at the December meeting, and himself took in surrounding correspondence, manifested an intention no longer to be bound by a critical term of the pleaded Page 552 Agreement (if that term was established), namely that the transfer of the lots to Mr Albert and Mr Fuller was to take place for the pleaded consideration and, by necessary implication, would not require further payment by Mr and Mrs Albert or Mr Fuller, or to fulfil it only in a manner substantially inconsistent with his obligations, that Mr and Mrs Albert made a payment of $175,000 for their block. A reasonable person, in the position of Mr Albert, would plainly view that conduct as radically inconsistent with the pleaded terms of the Page 552 Agreement and as a refusal by Mr Fuller to recognise or comply with its terms. That is sufficient to establish repudiatory conduct.

143. Mr Cook also submits that it is not pleaded that the repudiation was accepted or an election to terminate the Page 552 Agreement was conveyed to Mr Fuller. There is nothing in the pleading point where the Plaintiffs and their legal representatives could have been in any doubt that the repudiation defence, and the acceptance of repudiation implicit in it, was squarely raised. The nature of the conduct amounting to acceptance of the repudiation was also obvious enough. It seems to me that repudiation was accepted by Mr Albert, together with Mrs Albert, paying the consideration of $175,000 stated in the sale contract and transfer for their lot to Moonee Developments. It was again accepted when Mr Albert took the understandable view that, it Mr Fuller would not recognise any right on Mr Albert’s part to a transfer of the lot without payment, Mr Albert would not recognise any corresponding right of Mr Fuller.

144. The Defendants also submit that the Page 552 Agreement was waived or abandoned (Amended Defence [34(f)], [40(d)]). A waiver can occur where there is “an intentional act, done with knowledge, whereby a person abandons a right by acting in a manner inconsistent with that right, or where a conclusive step securing one outcome is taken in a way that is incompatible with attainment of the alternative outcome”: Agricultural and Rural Finance Pty Ltd v Gardiner above at [56]; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 at [361]; Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551 at [163], [229]. As to abandonment, Counsel referred, inter alia, to Summers v Commonwealth (1918) 25 CLR 144; Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 at 434; CGM Investments v Chelliah [2003] FCA 79 at [21]-[23] and Gupta v Fordham Laboratories Pty Ltd above.

145. In Fitzgerald v Masters above at 432, Dixon CJ and Fullagar J observed that the inference of abandonment will be drawn where an “inordinate” length of time has been allowed to elapse during which neither party has attempted to perform or called on the other to perform and that:

“What is really inferred in such a case is that the contract has been discharged by agreement, each party being entitled to assume from a long-continued ignoring of the contract on both sides that … ‘the matter is off altogether’”.

146. In Ryder v Frohlich [2004] NSWCA 472 at [135]-[137], McColl JA (with whom Hodgson and Ipp JJA agreed) similarly observed that:

“Where it is plain from the conduct of parties to a contract that neither intends that the contract should be further performed the parties will be regarded as having so conducted themselves as to abandon or abrogate the contract …

Whether there is abandonment or abrogation of a contract is a matter of fact to be inferred from an objective assessment of the conduct of the parties …

The underlying premise of the abandonment cases is that a period of time elapses during which neither party to the contract manifests any intention to perform the contract, leading to the inference that the contract has been abandoned.” [citations omitted]

147. Mr Cook submits that an argument as to abandonment is undermined when one party has already performed part of the relevant agreement and that actions said to amount to abandonment need to be unequivocal: Fitzgerald v Masters above; Cheetham v 805 Archer Road Pty Ltd [2015] VSC 96. I recognise that abandonment may be established where, for a period of time, neither party takes and steps to perform a contract: DTR Nominees Pty Ltd above; Gupta v Fordham Laboratories Pty Ltd at [162].

148. The Defendants rely on the conduct to which I have referred above as a waiver or abandonment by Mr Fuller of any entitlement to his own block of land, and submit that the parties’ conduct indicated that neither intended the Page 552 Agreement should or would be further performed, given the length of time that has elapsed. Mr Newlinds submits that the lodgement of the present plans for subdivision of lot 1 evinced an intention on the part of Mr Fuller to abandon any rights under the Page 552 Agreement. I accept that the evidence indicates that the allotment of a lot, or several lots, to Mr Fuller would undermine the present State Significant Development application, and potentially deprive it of that character so far as it would reduce the number of lots to be allocated, and would also require additional costs to be incurred in amending the application, if it was possible to do so. I am not persuaded that that matter gives rise to any waiver or abandonment of any rights which Mr Fuller otherwise had under the Page 552 Agreement, had such rights been established, as distinct from being a matter that may well have been relevant to whether an order for specific performance should have been made.

149. I am inclined to think that the defences of waiver or abandonment add little to the claim for repudiation, and it is not necessary to reach a final view as to those defences given the conclusions that I have reached on other grounds.

150. The Defendants also rely on election (Amended Defence [34(g)]) and release (Amended Defence [34(h)]). Mr Newlinds submits that Mr Fuller’s conduct unilaterally released Mr Albert of any obligation he still had under the Page 552 Agreement, where that obligation is solely for Mr Fuller’s benefit, referring to Agricultural and Rural Finance Pty Ltd v Gardiner above. He submits that Mr Fuller’s failure to insist on the allotment of a block to him, and his maintaining a claim that Mr Albert had no basis or entitlement to lot 2 of the property without the payment of its value, constituted a unilateral release by Mr Fuller of any obligation of Mr Albert to cause Mr Fuller to obtain a subdivided lot in the property. It seems to me that there is significant force in Mr Cook’s submission that no question of election between alternative remedies arose from those matters. I would be inclined to accept Mr Cook’s further submission that the defence of release does not raise any matter that is not raised in respect of the questions of waiver and abandonment which I have addressed above, and that no consideration was given or promised by Mr Albert for any release. It is also not necessary to determine that issue where Mr Fuller has failed on other grounds.

151. The Defendants also rely on estoppel (Amended Defence [34(i)]) which appears to be put as a form of promissory estoppel in equity arising from a representation made by Mr Fuller to Mr Albert. It seems to me that that defence would not be established because, as Mr Cook points out, the evidence does not establish the pleaded representation by Mr Fuller that he was not entitled to and did not wish to receive a subdivided part of the property and that Matcove was under no obligation to cause that subdivision. It is not necessary to address other aspects of the suggested estoppel, where the pleaded representation underlying that estoppel is not established and given the other findings that I have reached above.

152. The Defendants also rely on a limitations defence (Amended Defence [40(a)]) and laches (Amended Defence [40(b)-(c)]). Mr Newlinds advances elaborate submissions that the statute of limitations would apply by analogy, on the basis that any refusal by Mr Albert to perform the allotment occurred as early as 2008 or in 2010. While that may be formulated as an alternative case, it is radically inconsistent with the Defendants’ substantive case that there was no demand for an allotment of a lot to Mr Fuller and no refusal by Mr Albert in that respect. Happily, it is not necessary to decide that claim given the other findings that I have reached above. It is also not necessary to decide the Defendants’ further alternative defence based in laches in respect of claims for equitable relief.

The Plaintiffs’ claim to specific performance

153. The Plaintiffs plead (ASC [48]-[49]) that Mr Fuller is, and has at all times been, ready, willing and able to perform the Agreement and is entitled to specific performance by Mr Albert (and, to the extent necessary, Matcove) of the Agreement or damages in lieu of specific performance. I recognise that the starting point in an application for specific performance is, if a contract is enforceable and damages are inadequate, an applicant is prima facie entitled to specific performance of a valid and enforceable contract: ICF Spry, Principles of Equitable Remedies (2009), 204; Fullers’ Theatres Ltd v Musgrove (1923) 31 CLR 524 at 548-549; Gupta v Fordham Laboratories Pty Ltd above at [234].

154. In opening submissions, Mr Cook submits that the “unique nature” of Mr Fuller’s block and its “personal value” to Mr Fuller are such that specific performance should be ordered, rather than damages in lieu of specific performance. In closing submissions, Mr Cook addresses what would be required in an order for specific performance and submits that the Court must first determine whether the Page 552 Agreement is on foot and then determine whether it should order that it be specifically performed. Mr Cook submits that, if the Court were to order that the agreement be specifically performed, it would simply make an order to that effect and then direct that the parties provide proposed directions to give effect to that order. Mr Cook then identifies several steps which would be necessary to give effect to such an order.

155. Mr Cook accepts, in dealing with the claim for specific performance, that the terms pleaded at paragraph 44 of the Amended Statement of Claim would impose only one obligation on Mr Albert and Matcove, being the obligation pleaded at paragraph 44(d) of the Amended Statement of Claim. Mr Cook also submits that the obligation pleaded at paragraph 44(d) of the Amended Statement of Claim requires Mr Albert to cause Matcove, with Mr Fuller’s assistance, to subdivide Mr Fuller’s block from remainder of lot 1. I have noted obvious alternatives to that term above and I am not satisfied that the term for which the Plaintiffs contend can be implied. An order for specific performance could not be made where I have held that the pleaded obligation is not established. As I noted above, no allegation that Mr Albert breached any wider duty of cooperation was made or established on the evidence and a breach of that duty would not have supported an order for specific performance in the form sought by Mr Fuller in any event.

156. Mr Newlinds submits, and I accept, that Mr Fuller’s previous challenge to Mr Albert’s entitlement to a lot for no consideration from December 2016, and on the commencement of these proceedings, would be a factor tending against his being permitted to insist on specific performance of an entitlement for a lot for himself for no consideration: Fullers’ Theatres Ltd v Musgrove above at 533, 545-546, 551. Mr Newlinds also submits that the Page 552 Agreement is not capable of specific performance because the time for performance has not arisen, there has been no breach by Mr Albert and, for the reasons raised in respect of defences that I will address below, Mr Fuller has repudiated the Page 552 Agreement. He also submits that several discretionary factors warrant the refusal of relief. I need not address those matters given the findings that I have reached on other grounds.

The Plaintiffs’ claim to damages in lieu of specific performance

157. In closing submissions, Mr Cook submitted that, if the Court declined to order specific performance, Mr Fuller sought damages to be paid by Mr Albert in the first instance, and by Matcove if he failed to do so. Mr Cook in turn summarised evidence of Mr Loader as to the value of Mr Fuller’s block, and recognised difficulties which might arise with that evidence, so far as the comparable sales on which Mr Loader had relied included land which already had development approval, which Mr Fuller’s block does not. As Mr Cook recognised, aspects of Mr Loader’s report were also criticised in the report of Ms Parkes, a valuer retained by the Defendants, who expressed the view that the value of Mr Fuller’s block was $280,000, albeit at the time that Mr Albert took a transfer of his block rather than at present. The Defendants respond that no cause of action for damages can arise in the absence of an established breach of the Page 552 Agreement. This claim is also not established where I have held that the pleaded obligation in paragraph 44(d) of the Amended Statement of Claim is not established. As I noted above, no allegation that Mr Albert breached any wider duty of cooperation was made or established on the evidence.

The Plaintiffs’ claim in unconscionability

158. The Plaintiffs also plead (ASC [51]) that, further or in the alternative, it is unconscionable for Mr Albert to retain the benefit of his block in specified circumstances and that Mr Fuller is entitled to equitable compensation from Mr Albert equal to the current value of Mr Fuller’s block (ASC [51]-[52]). In closing submissions, Mr Cook put the claim for unconscionability as follows, and on the basis that it is alternative to the claim for specific performance or compensation in lieu of specific performance of the Page 552 Agreement:

“On this hypothesis [Mr Albert] received a block of land in circumstances where [Mr Fuller], as the other director of Matcove, allowed the block to be transferred free of any consideration.

[Mr Albert] only received this benefit on the assumption that [Mr Fuller] and he shared, namely that [Mr Fuller] would also receive a block of land.

That mutual assumption, having falling away, renders it unconscionable for [Mr Albert] to maintain the benefit he has received under that assumption, to the detriment of [Mr Fuller] as a founding shareholder who has funded Matcove to acquire the land and develop it on the basis of the assumption.”

159. The Defendants respond that there is no equitable cause of action at large for unconscionable conduct, although unconscionability may support specific claims in equity. They submit, and I accept, that the costs which both parties have incurred in acquiring the land, and taking steps for its development, should be treated as referrable to the development opportunity in respect of the land rather than to any proposal for allotment of a particular lot to Mr Fuller. There is also no detriment in Mr Fuller’s previously permitting the transfer of a lot to Mr and Mrs Albert, particularly where it is not established that the consideration that Mr and Mrs Albert subsequently paid was not at least a fair approximation of the value of the land at the time of the transfer, albeit it was only paid when Mr Fuller first permitted Mr King to assert that such payment was required.

160. It seems to me that unconscionability is not established, even if it were capable of establishing a freestanding basis for relief. The first, and most obvious, difficulty with that contention is that the assumption for which Mr Cook contended was falsified by Mr Fuller, not Mr Albert, when he allowed Mr King to allege wrongdoing on the part of Mr Albert in acquiring the land for no consideration. Second, the proposition that Mr Fuller “allowed the block to be transferred free of any consideration” is also falsified, when the steps he subsequently permitted Mr King to take prompted Mr Albert to pay the amount recorded in the sale contract in respect of the land. Third, there is no unconscionability in Mr and Mrs Albert retaining land for which they had paid because of the steps taken by Mr Fuller and Mr King in that regard.

161. In closing submissions, Mr Cook also contended that the Defendants are estopped from disputing Mr Fuller’s entitlement to a block of land, and contended that there are several representations in the earlier email correspondence to the effect that Mr Fuller would be allocated a block or several blocks of land, consistent with the wider understanding of the parties to which I have referred above. Although the Plaintiffs did not specifically plead a case of estoppel, that case is arguably consistent with their unconscionability case. It does not seem to me that such an estoppel is established. It would not be against conscience for Mr Albert no longer to support an allocation of a block of land to Mr Fuller without payment, where Mr King’s and Mr Fuller’s conduct in December 2016 caused Mr and Mrs Albert to pay the amount of $175,000 to Moonee Developments in respect of the acquisition of their block of land, and significant steps have subsequently been taken in respect of the subdivision of the land which would, at least, be put at risk by the relief now sought by Mr Fuller.

Orders

162. For these reasons, the proceedings should be dismissed. Where only Mr Fuller, and not the other Plaintiffs, sought substantive relief, my preliminary view is that he rather than the other Plaintiffs should pay those costs of the proceedings, as agreed or as assessed. I direct the parties bring in agreed short minutes of order to give effect to this judgment and as to costs within 7 days or, if there is no agreement between them, their respective draft orders and submissions as to the differences between them, not exceeding 8 pages in 12 point Arial font and one and a half spacing.

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Decision last updated: 27 May 2020