Micarone and Bechara v Perpetual Trustees & Ors (No 2) No. Scgrg-94-1917, Scgrg-94-1711 Judgment No. S6628

[1998] SASC 6628

MICARONE AND BECHARA
V
PERPETUAL TRUSTEES AND OTHERS
(NO 2)

Civil
Duggan J

When delivering judgment on the issues of liability in this matter I noted that it was agreed at the hearing that I should refrain from making any orders until I had heard submissions in the light of my findings thus far.   Those submissions have been made and I now proceed to discuss the consequences of my findings.

As I stated in my judgment, it is my view that the Perpetual transaction should be set aside by reason of the unconscionable conduct of the first defendant.  However the important question which arises is whether that relief should be subject to a condition aimed at requiring the plaintiffs to account to the first defendant for any benefits they have received from the transactions.

There is ample authority for the proposition that, when granting the remedy of rescission, it may be appropriate to fashion the order so as to do justice between the relevant parties.  This may involve the application of the principle of restitutio in integrum.  In Spence v Crawford (1939) 3 AER 271 at 288 Lord Wright said:

“The remedy is equitable.  Its application is discretionary, and, where the remedy is applied, it must be moulded in accordance with the exigencies of the particular case.  The general principal is authoritatively stated in a few words by Lord Blackburn in Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218; 35 Digest 77, 748; 48 L.J.Ch. 73; 39 L.T. 269; affg. (1877), 5 Ch.D. 73., where, after referring to the common law remedy of damages, he went on to say, at p. 1278:

‘But a court of equity could not give damages, and, unless it can rescind the contract, can give no relief.  And on the other hand, it can take accounts of profits, and make allowance for deterioration.  And I think the practice has always been for a court of equity to give this relief whenever, by the exercise of its powers, it can do what is practically just, though it cannot restore the parties precisely to the state they were in before the contract.’”

.................. In the joint judgment of Dixon CJ, Webb, Kitto and Taylor JJ in Alati v Kruger (1955) 94 CLR 216 at 224 it was said:

“The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab initio, and, if it is valid, to give effect to it and make appropriate consequential orders: see  Abram Steamship Co. Ltd v Westville Shipping Co. Ltd (1923) A.C. 773. The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitutio in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognize as admitting of rescission.  Of course, a rescission which the common law courts would not accept as valid cannot of its own force revest the legal title to property which had passed, but if a court of equity would treat it as effectual the equitable title to such property revests upon the rescission.”

(See also Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 at 461 and Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 111.

......... Two recent cases, one in the United Kingdom and the other in Australia, illustrate the application of the principle in circumstances not far removed from those in the present case.   In Dunbar Bank plc v Nadeem and Anor [1997] 2 AER 253 a husband and wife purchased a property in their joint names and the property was charged as security for the loan.   The court found that the husband had exercised undue influence over the wife which led her to enter into the transaction and that the lender had constructive knowledge of the undue influence.   However it was held that the order setting aside the charge could take effect only if the wife accounted to the lender for the benefit she had received from the use of the money.

......... Maguire v Makronis (1997) 188 CLR 449 was a case involving breach of fiduciary duty. The plaintiffs were solicitors who advanced funds to their clients, the defendants, to enable them to purchase a business. The loan was secured by the mortgage of a property owned by the defendants. There was default on the loan and the plaintiffs commenced proceedings in which they claimed possession of the mortgage property. The defendants sought, by counterclaim, a declaration that the mortgage was void.

......... It was held at first instance that the plaintiffs did not adequately inform the defendants of the nature of the transaction; nor did they advise them to seek independent legal advice.  The mortgage was set aside but the relief was not made subject to a condition that the money borrowed be repaid.  An appeal to the Appeal Division of the Supreme Court was dismissed.  However it was held on appeal to the High Court that the mortgage could not be set aside without conditioning relief on repayment by the defendants of the principal and interest.

......... The High Court held (p475) that the defendants could not be left with “the fruits of the transaction of which they complained, whereas their equity was to have the whole transaction rescinded and, so far as possible, the parties remitted to their original position”.   The aim of restoring the parties to their original positions was achieved in Maguire’s case by setting aside the mortgage on condition that the borrowers pay to the lenders the principal due and owing but unpaid together with interest as allowed from time to time by the Supreme Court of Victoria.

......... In my view the Perpetual transaction, in so far as it involves the plaintiffs, should be set aside, but I am also of the view that justice requires the plaintiffs to account for the respective benefits which they have received from the transaction.  Unfortunately those benefits are not as straightforward to calculate as was the benefit in Maguire’s case.

......... Seven members of the Micarone and Bechara families, including the four plaintiffs, borrowed the $640,000 advanced by the first defendant.  The seven members were principal borrowers and there were no guarantors.   I have expressed the view in my judgment that the nature of the transaction was explained to the plaintiffs and I am satisfied that each of them knew that he or she was a borrower and not a guarantor.

......... In identifying the benefit which the individual plaintiffs received from the transaction it is appropriate to begin with the settlement statement (D46) prepared by the first defendant’s solicitors in relation to the Perpetual transaction.   The relevant details are set out in the statement as follows:

“BY    Perpetual Trustees Australia        Limited        - advance	$640,000.00
TO   Stamp Duties Office        - duty on Mortgages	$  2,230.00
TO   Registrar-General       - registration fees (18 documents)	1,080.00
TO   B.M. Swincer Trust Account	394,555.83
TO   Credential Acceptance Corporation        Pty Ltd	70 ,559.38
TO   Boag Collins & Associate       - fees	390.00
TO   AGC Limited	62,524.22
TO   Kelly & Co. - fees	360.00
TO   Commonwealth Bank	82,240.75
TO  International Financing &      Investment       Pty Ltd	2,560.00
TO   Capital Link Australia Pty. Limited	3,918.16
TO   CAUMIC       - mortgage insurance premium	13,132.00
TO   Perpetual Trustees Australia        -  first interest payment	3,126.82
TO   Lempriere Abbott McLeod        -  charges and disbursements	3,335.00
BY Due by Perpetual Trustees Australia      Limited      -  interest shortfall	3,335.00	12.16
$640,012.16	$640,012.16”

The payments to B.M. Swincer Trust Account, Credential Acceptance Corporation and AGC Limited identify the amounts due to the mortgagees of the properties of the four plaintiffs under the first re-financing.   The sum of $82,240.75 paid to the Commonwealth Bank was in respect of the borrowing by Tony Bechara and his wife on the security of their St Agnes property.

It is important to bear in mind that the validity of the various transactions involved in the first refinancing has not been contested in the present litigation. (cf McNally v GIO Finance Ltd (Supreme Court of New South Wales - Equity Division No. 2273 of 1993, BC9402995 at 41).   The amounts outstanding represent the liabilities of the plaintiffs as at the date of the Perpetual transaction.  The effect of the Perpetual transaction was to satisfy those liabilities and, in my view, this represents the most appropriate indicator of the benefits received by the individual plaintiffs.   Even so, the calculation of the individual liabilities is not straightforward because the properties of both the Micarones and the Becharas were used to secure the Credential Acceptance loan.  Nevertheless I calculate the benefit to the respective plaintiffs as follows:

BECHARAS

MORTGAGEE	BENEFIT        $	AMOUNT PAID IN RESPECT OF LOAN SECURED ON
Swincer (Ramsey)	95, 153.93	The Parkway, Hampstead Gardens
CredentialAcceptance Corporation	35,474.69	“    “    “
AGC Limited	20,961.40	“    “     “
151,590.02
MICARONES
MORTGAGEE	BENEFIT      $	AMOUNT PAID IN RESPECT OF LOAN SECURED ON
Swincer (Don Clarke Nominees)	130,776.00	Gladstone Road, Prospect
Swincer (Burrows)	74,503.91	Kings Avenue, Blair Athol
Credential Acceptance Corporation	35,474.69	Kings Avenue, Blair Athol and Gladstone Road, Prospect
AGC Limited	41,922.80	Kings Avenue, Blair Athol and Gladstone Road, Prospect
282,678.00

In the case of the CAC loan the Micarones and the Becharas were joint borrowers.   The lender would be overcompensated if the full amount of the loan were allowed against each.   If one of the borrowers had been pursued and the debt satisfied that borrower would have been entitled to recover an appropriate share against the other borrowers.   In the circumstances it is appropriate to regard the benefit received by each set of borrowers as one half of the total debt which was extinguished as a result of the Perpetual transaction.  AGC Limited advanced two loans, one for $30,000 to the Micarone plaintiffs and the other for $15,000 to the Bechara plaintiffs.   The evidence led before me does not distinguish between the two loans, but discloses a pay-out figure of $62,884.22 for the two loans.  Accordingly the Bechara portion has been calculated as one-third of the total payment figure and the Micarone portion as two-thirds of that amount.

I referred in my judgment to the fact that Tony and Amelia Bechara sold their property at 390 Regency Road, Prospect on 22nd July 1993.   The proceeds of the sale ($107,500) were credited to the Perpetual transaction.  However this payment did not affect the level of benefit acquired by the plaintiffs under the Perpetual transaction.   Its intended effect was to reduce the overall loan facility to $422,500 and it came entirely from the property of Tony and Amelia Bechara.

There was evidence that $60,000 from the proceeds of the insurance claim which settled in June 1993 was paid to Perpetual by way of reduction of the loan.   Although the proceeds of the claim were paid by the insurance company to the policy holders, it seems clear that Tony Bechara intended the monies to be used to reduce the liability of his parents and parents-in-law.  I think it is correct to view the payment as being made on the plaintiffs behalf and that the respective liabilities of the Micarones and Becharas should be reduced by $30,000.  Their liability should be further reduced by interest payments, including penalty interest payments made pursuant to the Perpetual loan.   These amounts are not readily apparent on the face of the evidence but I am prepared to hear further argument on that aspect.  These are the only adjustments I would make in calculating the benefits received by the plaintiffs.

There remains the question of interest.  This was an issue discussed at some length in Maguire’s case.   In my view the first defendant should not be entitled to the interest rate provided for in the mortgage and certainly not the penalty rates which have been suggested by counsel for the first defendant.  I think the emphasis should remain on the benefit which the plaintiffs received as opposed to the profit which the first defendant might have made if the transaction were not set aside.  In my view the plaintiff should pay the rates of interest on the principal sum which have been fixed for the relevant period by the Court pursuant to SCR 84.19.

I will hear argument on the wording of the appropriate orders but their general effect in so far as they relate to the position as between the plaintiffs and the first defendant will be as follows:

BECHARAS

The mortgage on the Hampstead Gardens property will be set aside on condition that the Bechara plaintiffs pay to the first defendant the sum of $151,590.02 together with interest calculated in accordance with this judgment less the deductions appropriate for the payment over in relation to the insurance pay-out ($30,000) and the amount of interest already paid to the first defendant (still to be calculated).

MICARONES

The mortgage on the Blair Athol property will be set aside and the sum of $184,001.76 paid into the Suitors Fund of the Supreme Court and being the net proceeds of the sale of the Prospect property together with interest accrued thereon will be paid to the Micarone plaintiffs on condition that they pay to the first defendant the sum of $282,687 together with interest calculated in accordance with this judgment less the deductions appropriate for the payment over in relation to the insurance pay-out ($30,000) and the amount of interest already paid to the first defendant (still to be calculated).

A period of time will have to be fixed for the performance of the conditions.

It follows from these conclusions that I have rejected the courses suggested in the Micarone and Perpetual submissions in particular.   It was an important element in the Micarone submissions that, by reason of the actions of the first defendant, the plaintiffs were in some way deprived of the opportunity of pursuing an action against the mortgagees who advanced the funds for the first refinancing.   I regard this consideration as quite irrelevant, even if there was some way of calculating the value of the lost opportunity.    I repeat that I am left with no alternative but to proceed on the basis that the transactions involved in the first refinancing were valid.

An alternative method advanced by counsel for the Micarones of arriving at the conclusion that the Micarones received no benefit from the Perpetual transaction but rather should be entitled to damages from the first defendant was based on a number of unacceptable premises including the claim that any benefit to the Micarones should be offset by a liability to Perpetual calculated on the basis of joint responsibility for the total loan of $640,000.   I reject this method also.  Considerations such as these are irrelevant to the identification of the nature which it is appropriate to take into account when imposing a condition upon rescission.

On the other hand, counsel for the first defendant invited me to assess the benefit to the plaintiffs on the basis of either of two alternatives.   The first alternative involves an assumption that the first refinancing loans ran their full course to 16th December 1997 and assesses the benefit to the plaintiffs by reference to the total principal and interest payments which would have been made throughout the term of the loans.   The second method assumes continuing defaults on the loans as from the date of the receipt of the moneys from the Perpetual transaction and the benefit to the plaintiffs is assessed by reference to the default penalties which would then apply.  The first method results in a total benefit to both plaintiffs of $500,636.20 and the application of the second method results in a total benefit to the plaintiffs of $846,835.44.

In my view neither of these alternatives is appropriate.   The benefit for the purposes of doing justice to the parties by way of equitable relief is not to be calculated by reference to one of the traditional methods of assessing damages, namely, by way of prediction and the consideration of contingencies.   The authorities to which I have referred focus on identifying in a practical manner any actual benefit received by the party entitled to the principal relief.   In the present case the amounts required to satisfy the secured loans involved in the first refinancing provide the most obvious indicator of the benefit received.

The next question which must be considered is the liability of the other defendants in relation to the Perpetual transaction.   I have found that the second defendant made misrepresentations which induced the plaintiffs to enter into the Perpetual transaction.  I have also found that a breach of duty of care has been established by the plaintiffs against the third, fourth and fifth defendants in relation to the same transaction.   However the question remains whether the misrepresentations and breach of duty of care were causative of financial loss to the plaintiffs.

The answer to this question might well depend upon events which have not yet taken place.   If in the case of either the Micarones or the Becharas the condition for rescission by way of payment to the first defendant is met and the transaction in so far as it affects them is set aside, then it would seem that the actions of the other defendants would not have resulted in loss to the plaintiffs.  The operation of the order would, of itself, put them in the position they were in prior to entering into the Perpetual transaction.  On the other hand if the condition for relief were not fulfilled then the plaintiffs would be required to pay to Perpetual a significantly higher sum by reason of the operation of the mortgage.   In that event I am of the opinion that the amounts paid over and above those required to fulfil the condition for relief could well be recoverable from the defendants Frost and Belperio and his partners.   At that stage it would also be necessary to consider the applications for contribution as between the defendants.   This aspect of the matter was not argued before me and I will refrain from making a specific order in relation to it until such time as the parties are given an opportunity to make submissions.

It is necessary, however, to consider further the question of the liability of Mr Frost.  No relief was claimed by the Micarone or Bechara plaintiffs from Mr Belperio and his partners in relation to the first refinancing.  However the Becharas claim that they were induced to enter into the first refinancing mortgages by reason of the misrepresentations made by Frost.   I have accepted this assertion in my judgment.  They would not have incurred the liability arising from the first refinancing had it not been for these misrepresentations.   The amount of that liability falls to be calculated by reference to the pay-out amounts set out in the settlement statement D46. It follows that the Becharas are entitled to an indemnity from Frost for the full amount of the benefit which must be repaid to Perpetual in order to have the Perpetual transaction set aside.  In addition they are entitled to receive from Frost the legal fees and costs associated with both the first and second refinancing, except those for which they have been given allowance in the calculation of the amount payable in order for the Perpetual transaction to be set aside.   The Becharas are also entitled to interest on these amounts.

The Micarone pleadings are significantly narrower in their scope.  The allegations against Frost in the Micarone statement of claim are confined to the Perpetual transaction.   Immediately before counsel for Frost commenced his final address Mr Niarchos, for the Micarones, applied to amend the statement of claim so as to allege that Frost made certain representations which induced the Micarones to enter into the first refinancing and that Frost was liable for any loss suffered by reason of these misrepresentations.   The proposed amendment met with strong opposition from counsel for Frost.   It is true that a number of the events relevant to these allegations were canvassed in the evidence, but counsel for Frost had no idea that any alleged misrepresentations would be relied upon for this purpose and he complained that he had not been afforded the opportunity to test the evidence and lead further evidence relevant to these fresh allegations.

After hearing submissions on the issue I indicated (transcript p7146) that I was disposed to allow the amendment but that I would look favourably on any application which might be made by counsel for Frost to have relevant witnesses recalled for further questioning on the issues raised in the amendments.   After considering the matter further, counsel for the Micarones decided not to press the application for amendment.  (Transcript p7364).

It follows that in the case of the Micarones I cannot make any order for relief against Frost by reason of his involvement in the first refinancing.   This appears to be the reason for the Micarones seeking to rely on the first refinancing transactions in a somewhat indirect way by claiming that, as part of the process of entering into the Perpetual mortgage the Micarones paid out the first refinancing mortgages, thus leaving them without any remedy they might have had against the prior mortgagees.   As I have pointed out already it was argued that the Micarones could not be restored to their original position with those earlier rights intact and that this should impact in some way on the relief available against Perpetual.  

The claim that the Micarone plaintiffs were deprived of the right to challenge the first refinancing transactions was also raised in relation to their claim against  Belperio arising out of the Perpetual transaction.     However, I repeat the observation that the evidence falls far short of permitting any evaluation to be made as to whether such an action would have any chance of succeeding.   In my view I cannot take this consideration into account for any purpose.

It was further argued that the Micarones were entitled to recover from Frost and Belperio the amounts paid to Mr Finnimore for advice and assistance in relation to the Perpetual transaction.   However the expenditure of these amounts was necessary in order to achieve the benefit of paying off the loans involved in the first refinancing.  I do not think it should be regarded as a loss for which an award of damages is appropriate.

In the result, if the Perpetual transaction in so far as it affects the Micarones, is set aside upon the fulfilment of the conditions which I propose, then I consider that the Micarones have suffered no compensable loss recoverable in the present proceedings for which Frost and Belperio are responsible.  If on the other hand, the Micarones incur further liability by reason of the non-fulfilment of the conditions, they may well be entitled to recover in relation to the additional amount.

The first defendant filed contribution notices in each action addressed to the defendant Frost.   The effect of the notices was to claim contribution or, in the alternative, indemnity from Frost to such an extent as might be found by the court to be just and equitable.   The notices referred to the plaintiffs’ allegations of statements and misrepresentations made by Frost to the plaintiffs.   The notices then referred to the plaintiffs’ further  allegations of constructive knowledge by the first defendant of those statements and misrepresentations.   The notices further stated that if the court granted the plaintiffs the relief they were seeking, the first defendant would suffer loss and damage as a consequence of the statements or misrepresentations.  The notices were poorly worded but, charitably construed, they seemed to raise a claim of contribution in the event that both the first and second defendants were held liable to the plaintiffs. 

In the course of the trial I raised with counsel for the first defendant the problem of ordering contribution where quite different causes of action were being pursued against each of the defendants and the case in relation to one of the defendants did not relate to tortious liability.  Counsel conceded the inappropriateness of the claim for contribution and abandoned that application.  However application was then made to file an “amended contribution notice”.  The application was made after I had given judgment and at the commencement of Mr Trim’s argument on the orders which I should make.  I did not rule on whether this pleading should be allowed then and there but said that I would deal with the issue in these reasons. 

In the proposed amended notice the first defendant claims contribution or, in the alternative, indemnity from Frost in respect of any relief which the plaintiffs might recover against the first defendant to such an extent as may be found just and reasonable.  The notice then goes on to allege that Frost owed a duty of care to the first defendant to prepare proper financial statements and to make proper and accurate statements to the first defendant concerning the financial position of the plaintiffs and other proposed borrowers to the loan transaction.  It is pleaded in the alternative that the financial statements prepared and made by Frost constituted a representation by him to the first defendant that the statements were true and accurate.

The contribution notice then alleges that Frost was negligent in making the statements; that the statements were false; and that the first defendant would not have entered into the transaction had it known the true position.  The notice concludes with the statement that “if the Court grants to the plaintiffs against the defendants the relief that they are seeking, the first defendant will suffer loss and damage as a consequence of its reliance upon the financial statements prepared by you (Frost).”

Mr Trim QC said that this notice did not raise a claim for contribution nor, strictly speaking, was it a claim for indemnity.  Nevertheless he argued that the relief claimed came within the description in SCR 37.07(b) in that it was “relief related to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff”.  (See Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 48 ALR 365 at 372).

As I have noted the notice claims damages for breach of a duty of care owed  by Frost to the first defendant and, alternatively, damages for misrepresentations allegedly made by Frost to the first defendant.  No such relief was hinted at during the course of the trial and, although I commented in my judgment on some aspects of the evidence which would be relevant to such a claim, I did not make findings which would support the relief now claimed.   The focus at trial was on whether there had been a breach of duty owed to the plaintiffs and whether they could claim damages for misrepresentations made to them.  To allow the issues referred to in the proposed amendment to be raised after judgment delivered and while the appropriate orders consequent on the judgment were being discussed would be quite unfair to the defendant Frost.  For these reasons I refuse leave to issue the notice.

Contribution notices were also served by the first defendant against the defendant Belperio in both actions.   By the notices the first defendant claimed that it had relied on the certificates of  independent legal advice provided by Belperio in relation to the Perpetual transaction.   Contribution or indemnity must be based on some substantive right and it was not satisfactorily explained in the course of argument as to how the relief claimed in the notice could be traced back to such a right.  However that may be, there are other difficulties in the way of the first defendant relying on the certificate signed by Mr Belperio as entitling it to some form of contribution or indemnity.  I repeat a passage from my judgment in which the certificates are discussed.

“This is a matter which is relevant to take into account when considering the issue of unconscionability.  However it was not as though Perpetual insisted on independent legal advice being given before or at the time the legal obligations arose.  The requirement of certificates was an afterthought.   For all Perpetual knew at the time of the signing of the documents there may have been no advice at all.  The evidence as to why the subsequent request for certificates was made is vague and the person who made the decision was not called to give evidence.   Nor was there any evidence that Perpetual would have released the plaintiffs from their legal obligations if it had been discovered that no legal advice had been given.  Mr Brennan simply said that he would not have allowed settlement to proceed in the absence of the certificates.  The effect of obtaining the certificates was to enable Perpetual to claim to any purchaser of the rights under the mortgages that the guidelines had been fulfilled.   There was no evidence to suggest that there was a further purpose in the request for certificates after the documents had been signed.  Nor was there any evidence as to what Puma or Perpetual inferred from the certificates.   There is some ambiguity on the face of the certificates as to the extent of the advice.  Mr Brennan said he did not read the certificates, but he did not expect the solicitor to provide any financial advice and, as far as he knew, he did not think they had any independent financial advice.”

The certificates themselves focus on an explanation of the content and effect of the security document.  In my view the statements in the certificate were accurate in so far as they went.  To my mind the only possibly contentious issue is the statement in paragraph 6 that the solicitor has “given this Certificate independently of all other parties to the Documents”.  There is some ambiguity in the statement.  The advice was given independently of the lender and Belperio said he understood that this is what was anticipated by the certificate.  He did not physically separate the group and he acknowledges that it would have been wise to do so.  But he did give independent advice in the sense that he explained the dangers of entering into the transaction and indeed advised the plaintiffs not to do so.  This advice was against the interests of Tony Bechara, his wife and her sister.  

I pointed out in my judgment that the duty of a solicitor to his or her client was not to be regulated entirely by the contract of employment and I referred to Hawkins v Clayton (1988) 164 CLR 539 at 574. I expressed the view that, in the circumstances, Belperio’s duty to the plaintiffs extended to investigating the particular circumstances of the transaction in more detail and enquiring whether pressure had been exerted on the plaintiffs. He did not discuss with them in any detail the improvident nature of this particular transaction. I will not repeat all the concerns I expressed about the advice, but all this is not to say that the certificates were inaccurate. I do not think they were and I do not think that the first defendant can mitigate its liability in the manner claimed by purporting to rely on the certificates. I am not prepared to grant relief on the basis of what is claimed in the contribution notice addressed to the defendant Belperio.

The third, fourth, and fifth defendants issued a contribution notice against the first defendant.  The claim for contribution faces the same difficulty as that made by the first defendant against the defendant Frost and which was subsequently abandoned.   I do not think that contribution can be ordered as between a party against whom unconscionable conduct has been found and a party who has committed a tort.  However that my be,  the event which would place the third, fourth and fifth defendants in the situation of paying damages has not yet occurred.   I should add that I am not prepared to find contributory negligence against the plaintiffs.

There is also the question of contribution as between Belperio and Frost in relation to the Perpetual transaction.  Again the circumstances which would render that aspect relevant have not yet occurred, but I record my view that as between these two defendants the major responsibility for both the Micarone and Bechara plaintiffs entering into the Perpetual transaction must rest on the shoulders of the defendant Frost.  In my view the appropriate apportionment of the responsibility is 90% against Mr Frost and 10% against Mr Belperio and his partners.

I have been asked to bring the possession action (999 of 94) before me and I will do that but I am not prepared to make any orders in that matter other than consent orders.

I will give the parties an opportunity to consider these reasons before bringing the matter on in order to finalise the orders which should be made.