Moltoni Corporation Pty Ltd v Westpac Banking Corporation - [2013] FCA 1424

FEDERAL COURT OF AUSTRALIA
Moltoni Corporation Pty Ltd v Westpac Banking Corporation [2013] FCA 1424

Citation: Moltoni Corporation Pty Ltd v Westpac Banking Corporation [2013] FCA 1424

Parties: MOLTONI CORPORATION PTY LTD ACN 009 018 571 (RECEIVERS & MANAGERS APPOINTED), MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED), MOLTONI NO 1 PTY LTD ACN 079 113 698 (RECEIVERS & MANAGERS APPOINTED), ROBERT CHARLES MOLTONI, BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405 and HAPPY VALLEY RESOURCES PTY LTD v WESTPAC BANKING CORPORATION ACN 007 457 141, ST GEORGE FINANCE LTD ACN 001 094 471, ERNST & YOUNG TRANSACTION ADVISORY SERVICES LTD ABN 87 007 599 844, VINCENT ANTHONY SMITH and ADAM PAUL NIKITINS; MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED), VINCENT ANTHONY SMITH and ADAM PAUL NIKITINS; HAPPY VALLEY RESOURCES PTY LTD ACN 110 865 408 and BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405

File number: NSD 1976 of 2012

Judge: BARKER J

Date of judgment: 20 December 2013

Catchwords: PRACTICE AND PROCEDURE – applications for summary judgment – whether misleading and deceptive conduct claim has reasonable prospect of success – whether intentional interference with contractual relations claim has reasonable prospect of success – whether breach of duty by receivers claim has reasonable prospect of success – whether issues of fact and law that should be determined at trial

Legislation:
Corporations Act 2001 (Cth) s 127
Federal Court of Australia Act 1976 (Cth) s 31A
Trade Practices Act 1987 (Cth) s 52

Federal Court Rules 2011 (Cth) R 26.01

Cases cited: American Express International Banking Corp v Hurley [1985] 3 All ER 564
Arcadia Holdings Pty Ltd v Brown (1997) 18 WAR 350
Cutler v McPhail [1962] 2 QB 292
Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156; (2012) 207 FCR 220
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383
Lictor Anstalt (a company) v MIR Steel UK Limited [2011] EWHC 3310 (Ch)
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
O’Brien v Dawson (1942) 66 CLR 18
Owston Nominees (No 2) Pty Ltd v Clambake Pty Ltd [2011] WASCA 76
Rustic Haven Sdn Bhd v The Ravenswood Resort Pty Ltd [2005] WASC 88
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
State Bank of New South Wales v Chia [2000] NSWSC 552; (2000) 50 NSWLR 587
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Date of hearing: 7 May 2013

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 217

Counsel for the Applicants: Mr J Kelly SC, Mr S Wells and Mr N Furlan

Solicitor for the Applicants: Levitt Robinson Solicitors

Counsel for the First and Second Respondents: Mr S Dharmananda SC and Ms C Garde

Solicitor for the First and Second Respondents: Lavan Legal

Counsel for the Fourth and Fifth Respondents: Mr J Thomson SC and Mr M del Gallego

Solicitor for the Fourth and Fifth Respondents: King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1976 of 2012

BETWEEN:
MOLTONI CORPORATION PTY LTD ACN 009 018 571 (RECEIVERS & MANAGERS APPOINTED)
First Applicant

MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED)
Second Applicant

MOLTONI NO 1 PTY LTD ACN 079 113 698 (RECEIVERS & MANAGERS APPOINTED)
Third Applicant

ROBERT CHARLES MOLTONI
Fourth Applicant

BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405
Fifth Applicant

HAPPY VALLEY RESOURCES PTY LTD
Sixth Applicant

MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED)
First Cross-Claimant

VINCENT ANTHONY SMITH
Second Cross-Claimant

ADAM PAUL NIKITINS
Third Cross-Claimant

AND:
WESTPAC BANKING CORPORATION ACN 007 457 141
First Respondent

ST GEORGE FINANCE LTD ACN 001 094 471
Second Respondent

ERNST & YOUNG TRANSACTION ADVISORY SERVICES LTD ABN 87 007 599 844
Third Respondent

VINCENT ANTHONY SMITH
Fourth Respondent

ADAM PAUL NIKITINS
Fifth Respondent

HAPPY VALLEY RESOURCES PTY LTD ACN 110 865 408
First Cross-Respondent

BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405
Second Cross-Respondent

JUDGE:

BARKER J

DATE OF ORDER:

20 DECEMBER 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.On the cross-claimants; interlocutory application filed 8 March 2013:
a.Leave be granted pursuant to R 1.32 of the Federal Court Rules 2011 (Cth) to join the first cross-claimant as a claimant to the cross-claim.
b.Summary judgment be entered for the cross-claimants.
c.It be declared that the first and second cross-respondents have no legal entitlement to prevent the second and third cross-claimants exercising their powers as receivers and managers of the property of the first cross-claimant to cause the first cross-claimant to give or act upon a Notice to Vacate dated 20 November 2012, in respect of the following properties (Properties):
i.73 Miguel Road, Bibra Lake, Western Australia (certificate of title volume 1947 folio 919); and
ii.Lot 451 Railway Parade, Bibra Lake, Western Australia (certificate of title volume 1895 folio 282).

d.It be declared that the Notice to Vacate, given by the second and third cross-claimants (as agents for the first cross-claimant) to the first cross-respondent is legally valid and effective.
e.It be declared that the first cross-claimant is immediately entitled to vacant possession of the Properties.
f.It be ordered that the first cross-respondent immediately give the first cross-claimant vacant possession of the Properties.
g.The first and second cross-respondents pay the costs of this application and the costs of the cross-claim, to be taxed if not agreed.

2.On the fourth and fifth respondents’ interlocutory application filed 8 March 2013:
a.Summary judgment be given in favour of the fourth and fifth respondents dismissing the claims of the applicants contained in the following parts of the further amended originating application:
i.The claims in [7], [8] and [13];
ii.The claims in [9], in so far as these claims are based upon the allegations contained in [45]-[47] of the further amended statement of claim.

b.The first and second cross-respondents pay the costs of this application and the costs of the claims which are dismissed, to be taxed if not agreed.

3.On the sixth and seventh applicants’ interlocutory application filed 3 May 2013:
a.The application be dismissed.
b.The sixth and seventh applicants pay the first, fourth and fifth respondents' costs of the application, to be taxed if not agreed.

4.On the first and second respondents’ interlocutory application filed 6 May 2013:
a.Summary judgment be given in favour of the first and second respondents on the following parts of the further amended statement of claim:
i.The claims in [11]-[20];
ii.The claims in [36]-[39] and [42]-[44];
iii.The claims in [48]-[52].

b.The applicants pay the first and second respondents’ costs of the application, to be taxed if not agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1976 of 2012

BETWEEN:
MOLTONI CORPORATION PTY LTD ACN 009 018 571 (RECEIVERS & MANAGERS APPOINTED)
First Applicant

MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED)
Second Applicant

MOLTONI NO 1 PTY LTD ACN 079 113 698 (RECEIVERS & MANAGERS APPOINTED)
Third Applicant

ROBERT CHARLES MOLTONI
Fourth Applicant

BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405
Fifth Applicant

HAPPY VALLEY RESOURCES PTY LTD
Sixth Applicant

MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED)
First Cross-Claimant

VINCENT ANTHONY SMITH
Second Cross-Claimant

ADAM PAUL NIKITINS
Third Cross-Claimant

AND:
WESTPAC BANKING CORPORATION ACN 007 457 141
First Respondent

ST GEORGE FINANCE LTD ACN 001 094 471
Second Respondent

ERNST & YOUNG TRANSACTION ADVISORY SERVICES LTD ABN 87 007 599 844
Third Respondent

VINCENT ANTHONY SMITH
Fourth Respondent

ADAM PAUL NIKITINS
Fifth Respondent

HAPPY VALLEY RESOURCES PTY LTD ACN 110 865 408
First Cross-Respondent

BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405
Second Cross-Respondent

JUDGE:

BARKER J

DATE:

20 DECEMBER 2013

PLACE:

PERTH

REASONS FOR JUDGMENT
OVERVIEW

The first and second respondents (bank), seek summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) or pursuant to R 26.01 of the Federal Court Rules 2011 (Cth) in respect of:
(1)The claims in [11]‑[20] of the further amended statement of claim dated 28 February 2013 (statement of claim) (misleading conduct claim).
(2)The claims in [36]‑[39], [42]‑[44] of the statement of claim (intentional interference with contractual relations claim).
(3)The claims in [48]‑[52] of the statement of claim (forbearance representation claim).
The misleading conduct claim and the forbearance representation claim are related.
The fourth and fifth respondents (receivers) seek summary judgment in respect of [7], [8] and [13] of the further amended originating application and also in respect of [9] of the further amended originating application in so far as these claims are based upon the allegations contained in [45]‑[47] of the statement of claim (breach of duty by receivers claim).
The receivers also apply to add Moltoni Holdings as a claimant to the cross‑claim and to seek judgment on the cross‑claim including declarations and orders pertaining to their entitlement to take possession of the Bibra Lake land referred to below.
The various applicants oppose the various interlocutory applications made by the other parties and, additionally, the sixth and seventh applicants (BLI and Happy Valley) seek summary judgment against the first respondent (Westpac) and the receivers in respect of the unlawful interference with contractual relations claim pleaded at [39]‑[44] of the statement of claim, with damages to be assessed.
The bank and the receivers, and the applicants, press their applications for summary judgment understanding that the power of the Court under s 31A of the Federal Court of Australia Act 1976 (Cth) or pursuant to R 26.01 of the Federal Court Rules 2011 (Cth) to summarily terminate proceedings must always be attended with caution. They accept that the critical question for the purposes of s 31A is whether the claim is of such a nature that it is apparent there is no reasonable prospect of success. In that regard what was said by the plurality in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [60] (Hayne, Crennan, Kiefel and Bell JJ) to the effect that it is important to emphasise that the evident legislative purpose revealed by the text of s 31A will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes, should be borne in mind. The applicants resist summary judgment on the ground that there are issues of fact and law that should be determined after a trial.
For the reasons which follow I would enter summary judgment on the applications of the bank and the receivers and dismiss the applicants’ application for summary judgment.
BACKGROUND
The proceeding brought by the applicants is brought in the following generally described circumstances. Moltoni Corporation (first applicant) is the registered proprietor of land in Geelong, Victoria including the development known as the Fyansford Green Development.
Moltoni Holdings (second applicant) is the registered proprietor of land in Western Australia, including 73 Miguel Road, Bibra Lake and Lot 451 Railway Parade, Bibra Lake (Lot 410 and Lot 451 respectively or together the Bibra Lake land).
In October 2011, the receivers were appointed over land owned by Moltoni Corporation and Moltoni Holdings including land the subject of the Fyansford Green Development and the Bibra Lake land pursuant to finance and security instruments given by them in favour of the bank.
Members of the first to fifth applicants (Moltoni Group) bring this proceeding against the bank and the receivers in response to the action of the bank with the assistance of the receivers to recover debt under finance and security instruments and seek to challenge the bank’s actions by reference to the misleading conduct claims, intentional interference with contractual rights claim and the deed of forbearance claim.
MISLEADING AND DECEPTIVE CONDUCT CLAIM
By [13] of the statement of claim, the Moltoni Group alleges that during the period from about 16 February 2007 to 26 October 2007 and continuing thereafter up to and including 2009 and 2010, the bank (by the predecessor St George Bank Limited and the second respondent, St George Finance or Finance) engaged in a course of conduct involving some nine representations, which are described in the pleading as the “First to the Ninth St George Misrepresentations”, generally to the following effect:
·First – if Moltoni Corporation was to remove its banking business from the ANZ Bank to the bank, the bank would provide finance to enable Moltoni Corporation and other members of the Moltoni Group, amongst other things, to carry out the Fyansford Green Development to completion.
·Second – the bank would provide finance for the Fyansford Green Development upon terms that would enable interest on the funds to be used for the purpose of the development to be capitalised.
·Third – the bank would provide an initial facility of $24 million on or about 26 October 2007 for stated purposes and later supplement that facility with funds required to carry out the Fyansford Green Development to completion once other things had occurred.
·Fourth – a two tier funding facility of $34 million consisting of a $10 million operating facility to be serviced from generated cash flow and a second tier of $24 million under which interest would be capitalised (the revised facility) had been signed off and approved by the bank in Perth and would be made available for that purpose after sign off in Sydney.
·Fifth – sign off of the revised facility in Sydney was assured and would occur shortly.
·Sixth – pending sign off, Moltoni Corporation could safely assume that the revised facility would be made available and proceed with development of the Fyansford Green Development.
·Seventh – sign off on the revised facility had been delayed in Sydney but was assured.
·Eighth – pending the revised facility being made available, Moltoni Corporation and others in the Moltoni Group could safely proceed to borrow working capital from third parties secured over the Fyansford Green Development and apply funds from that source to the development of the Fyansford Green Development.
·Ninth – banking arrangements in relation to the Fyansford Green Development would be kept separate from banking arrangements in relation to the landfill and real estate development at Bibra Lake, including any securities which may be granted to the bank, and there would be no cross‑collateralisation of obligations or securities or any other way St George would exercise any rights over the assets of the joint venture between Moltoni Holdings and the sixth applicant (BLI) made pursuant to a joint venture agreement dated 20 June 2007 (Bibra Lake joint venture agreement).
The applicants further plead that:
·at no time did the bank correct any of the representations so made or disclose to Moltoni Corporation or any other person on behalf of the Moltoni Group that it would not provide finance to the Moltoni Group to enable Moltoni Corporation to carry out the Fyansford Green Development to completion and other related disclosures, which are described as the “St George non-disclosures”; and
·the bank stood by “with knowledge of the fact” that Moltoni Corporation was carrying out works on the Fyansford Green Development and related activities in the belief that sign off on the revised facility was assured and funds would soon be advanced to enable the development to be carried to completion when the bank had induced that belief by making the St George representations and non-disclosures and “it was unconscionable for [the bank] to depart from that position and deny Moltoni Corporation the Revised Facility”. This latter conduct is described in the pleading as the “St George Conduct”.
The applicants then plead that the St George Conduct was, amongst other things, misleading and deceptive by reason of the following facts:
(1)Various St George representations were as to future matters and made without reasonable grounds.
(2)The bank did not provide finance to the Moltoni Group to enable Moltoni Corporation to carry out the Fyansford Green Development to completion.
(3)The bank did not provide the revised facility.
(4)Sign off of the revised facility in Sydney was not assured.
(5)Sign off on the revised facility did not occur shortly or at all.
(6)Moltoni Corporation could not safely assume that the revised facility would be made available and proceed with the development of the Fyansford Green Development.
(7)Moltoni Corporation and other members of the Moltoni Group could not safely proceed to borrow working capital from third parties secured over the Fyansford Green Development and apply for funds in the development but were at risk that, in so doing, they were serving no commercial purpose other than to enhance the value of the property over which the bank held first ranking security.
(8)Westpac withheld signing off on the revised facility notwithstanding the St George representations and non-disclosures.
(9)By a notice to vacate served on behalf of Westpac and the receivers in their capacity as receivers and managers of Moltoni Holdings, after alleged default by Moltoni Holdings under the securities, Westpac and the receivers have demanded that Happy Valley vacate the Bibra Lake land with the intention and the effect of disabling and preventing Moltoni Holdings and BLI from carrying out landfill operations by their licensed landfill operator, and entered possession of that land and commenced drilling and other geotechnical operations to the exclusion of the interests of the Bibra Lake joint venture in maintaining the integrity of the certified remediation work which has been carried out by Happy Valley to date.
By [19] of the pleading, the applicants allege that acting in reliance upon the St George Conduct and induced thereby, “as the events which comprised that course of conduct occurred”:
(1)Moltoni Corporation accepted the facility offer dated 26 October 2007 from St George under which the initial advance was made and facility offers from St George dated 1 September 2008 and 19 March 2009 pending the provision of the revised facility, gave the securities, paid out the ANZ Bank and did the other things pleaded when it would not have done any of those things but for the St George Conduct.
(2)Moltoni Holdings, Moltoni No 1 (third applicant) and Mr Robert Moltoni and Mrs Gemma Moltoni (fourth and fifth applicants) gave securities under which they exposed themselves to liabilities to the bank when they would not have done so but for the St George Conduct, including the Bibra Lakes securities.

By [20] of the pleading particulars of loss and damage are provided.
The bank says it is important to note three features of the representations:
(1)The representations are alleged to have been made at a time well before the execution of the deed.
(2)The falsity of the representations would have been apparent immediately upon the event of the subject of the representations not occurring. The non-occurrence in each instance (other than possibly as to the Ninth St George representation) must have been before the date of the deed.
(3)Not one single representation is dependent on matters of interpretation or matters not within the Moltoni parties’ own knowledge.
The bank then draws attention to the deed of forbearance that was executed on or about 27 May 2011 by the first to fifth applicants, that is the Moltoni Group and the bank. The bank says the Moltoni Group has executed the deed and is bound by it.
The bank notes the sixth and seventh applicants (to the extent it matters) are also bound by the deed as they were named in the deed and knowingly accepted benefits conferred by the deed, referring to what was said by Kennedy J in Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 359.
The bank contends the following matters are clear and incontrovertible:
(1)The deed is duly executed and delivered as required by s 127 of the Corporations Act 2001 (Cth).
(2)The words of the deed are clear and unambiguous.
(3)The bank was not under a duty to advise the Moltoni parties as to the ramifications of the deed in the circumstances of the case.
(4)The deed was entered into voluntarily and provisions that subsequently prove to be against the interest of the applicants are not unjust on the basis of some general, unarticulated, unprincipled reference to fairness.
Clause 2 of the deed (not including the headings which, by cl 1.2.14, are only included for guidance and do not affect interpretation) provides as follows:
2.1Moltoni Corporation and the Guarantors acknowledge and agree that:
2.1.1they have received the Default Notices (to the extent to which the Default Notices were issued to the Customers);
2.1.2all action taken to date by the Bank or Finance under or with respect to the Loan Agreements, the Securities and the Guarantees were valid;
2.1.3the Loan Agreements, the Securities and the Guarantees are valid and enforceable in accordance with their terms;
2.1.4the Customers and the Guarantors are in default of (amongst other things) the Loan Agreements and the Securities;
2.1.5the Bank and Finance are immediately entitled to enforce their rights pursuant to the Loan Agreements, the Securities, the Guarantees and the Notices;
2.1.6the Customers and the Guarantors have no defence, set-off or counterclaim in relation to the Loan Agreements, the Securities, the Guarantees and hereby waive any such defence, set-off or counterclaim in any event;
2.1.7the forbearance provided by the Bank and Finance in accordance with clause 3 of this Deed will terminate if an Event of Default occurs;
2.1.8they do not have any right to obtain any further advances under the Loan Agreements; and
2.1.9nothing in this Deed has the effect of:
(a)remedying the defaults under, or with respect to, the Loan Agreements, and the Securities;
(b)altering, diminishing or otherwise affecting the liability of the Customers or the Guarantors pursuant to the Loan Agreements, the Securities or the Guarantees; or
(c)requiring the Bank or Finance to extend any period of forbearance or the terms of the Loans or to provide further facilities to the Customers.
2.2Moltoni Holdings acknowledges and agrees that the Moltoni Holdings Securities secure the obligations of:
2.2.1Moltoni Corporation under the Moltoni Corporation Loan Agreements;
2.2.2Bibra Lake under the Bibra Lake Loan Agreement; and
2.2.3Moltoni Holdings under the Guarantees.
2.3Robert and Gemma acknowledge and agree that the Robert Moltoni Securities secure the obligations of:
2.3.1Moltoni Corporation under the Moltoni Corporation Loan Agreements; and
2.3.2Bibra Lake under the Bibra Lake Loan Agreement; and
2.3.3Robert and Gemma under the Guarantees.
The bank says that cl 2 should be construed as covenants between the parties because it uses language of “acknowledge and agree” which shows an express intention to be bound and it creates a release and does not require any particular form of words.
The bank says it is entitled to rely on the covenants contained in cl 2.
The bank says the effect of cl 2.1.6 is to release the bank from the misleading conduct claims brought in this proceeding. It says cl 2.1.6 is an enforceable undertaking by the Moltoni parties to renounce all claims that it might have against the bank and that no particular form of words is necessary to constitute a valid release, as explained in Cutler v McPhail [1962] 2 QB 292 at 296‑7.
The bank contends that reading the deed as a whole and in its ordinary and natural meaning, cl 2 prevents the Moltoni parties from making any claim against the bank in relation to the loan agreements, securities and guarantees as defined by the deed.
The bank says the events which transpired must have been in the contemplation of the parties at the time the provisions were made and that nothing in the material before the Court goes even close to suggesting that the Moltoni parties were deprived of a real or informed choice to enter the deed and the terms are reasonable as between the parties.
The bank says a party will be bound by a deliberate decision not to pursue a cause.
Further the bank says the deed replaces all prior subsisting causes of action irrespective of the likely merits of any foregone causes and so defeats the claims in [11]‑[20] and [48]‑[52] of the statement of claim.
The bank contends, in particular, that the provisions of the deed nullify the claims based on the alleged first to ninth representations in the following way:
(1)Clauses 2.1.2 and 2.1.3 nullify the alleged first, second, third, fourth and ninth representations because:
(a)The Moltoni parties acknowledge and agree that all action taken by the bank in relation to the loan agreements, securities and guarantees (as defined in the deed) was valid.
(b)The Moltoni parties acknowledge and agree that the loan agreements, securities and guarantees (as defined in the deed) are enforceable in accordance with their terms.
(c)Carrying out the Fyansford Green Development to completion was not a purpose of the loan facilities.
(d)The obligations of BLI under the BLI facility are secured by a real property mortgage by Moltoni Holdings.
(e)Moltoni Holdings provided a real property mortgage over the Bibra Lake land, the terms of which provide that it secures all of Moltoni Holdings’ obligations to St George, including the guarantee and indemnity in respect of Moltoni Corporation.
(2)Clause 2.1.5 nullifies the ninth representation because:
(a)The Moltoni parties acknowledge and agree that the bank is immediately entitled to enforce its rights pursuant to the loan agreements, the securities, the guarantees and the notices (as defined by the deed).
(b)Under cl 23(c) and 43 of the Commercial Mortgage Memorandum No. I439579, which is incorporated into Mortgage K406485 over the Bibra Lake land, Westpac can enforce its rights where there is a default in “any arrangement with us”.
(3)Clause 2.1.8 also nullifies the alleged third St George representation because the Moltoni parties acknowledge and agree that they do not have a right to obtain any further advances.
(4)Clause 2.1.9(c) nullifies the alleged third and fourth St George representations because the Moltoni parties acknowledge and agree that the bank does not need to provide any further facilities to the Moltoni parties.
(5)Clause 2.2.2 nullifies the alleged ninth St George representation because the Moltoni parties acknowledge and agree that Moltoni Holdings’ securities secure the obligations of BLI under the Bibra Lake facility.
The bank also submits it is able to rely on the deed for the purposes of estoppel, but recourse to estoppel is only necessary if, for any reason, the whole deed does not operate in accordance with its terms.
So far as estoppel is concerned, the bank submits the Moltoni parties are estopped by deed and in the alternative by representation because:
(1)By executing the deed they acknowledged and agreed to admit the propositions contained in cl 2.
(2)By executing the deed, the bank assumed that the deed created a particular legal relationship described in cl 2 from which the Moltoni parties were not free to withdraw.
(3)Clause 2 is unambiguous and is contained in the operative provisions.
(4)In reliance on the representation the bank agreed to forbear from enforcing its rights until July 2007.
(5)The Moltoni parties were aware that the bank intended to forbear from enforcing its rights.
(6)The bank has suffered detriment due to the Moltoni parties’ failure to repay the moneys owing and legal fees as described in the deed.
The bank submits there is no basis in the claim made to defeat the deed.
The bank notes that the applicants allege that the circumstances in which the alleged forbearance representation was made render it misleading and somehow vitiated their consent to the deed, which otherwise stands unimpeached. The bank says that rather than alleging that the representation made by Mr Steve Waterman (senior relationship manager of the bank) was false, the applicants seem to impugn what was not said. In particular, they allege that Westpac, by Mr Waterman, misled Mr Moltoni by remaining silent as to the inclusion of cl 2.1.6 of the deed at the time it was executed.
In this regard, the bank notes that silence is unlikely to be misleading or deceptive unless the circumstances give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, as discussed in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 41 (Gummow J).
The bank says the question is whether a reasonable person in Mr Moltoni’s position would have expected further disclosure from Mr Waterman at the time he executed the deed. The Court looks to a reasonable person in Mr Moltoni’s position – a defaulting borrower in arm’s length negotiations with a financial institution – and asks whether that person could have expected the relevant disclosure in the relevant context, when the deed was in English and made available to him.
The bank contends that negotiations at arm’s length are unlikely to give rise to an expectation that one party will disclose more than what was provided for in a contract resulting from negotiations and in this regard refers to Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 (Miller).
The bank submits s 52 of the Trade Practices Act 1987 (Cth) at material times did not go so far as to encroach on the traditional secretiveness and obliquity of the bargaining process, as it was described in Owston Nominees (No 2) Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 at [51] (McLure P).
The bank says there was nothing secretive about Westpac’s conduct at material times and the form of the release was signalled in the negotiations where the draft deed was provided.
As to the applicants’ contention that Westpac sought to vary the status quo and enhance its legal rights vis-a-vis the Moltoni Group by deliberately not alerting it to the inclusion of cl 2.1.6, and further that the effect of the clause was not reflected in the title or contents of the deed, nor foreshadowed by a descriptive subheading in the document, the bank says the deed was provided with cl 2 before its execution and was available to be read. There were amendments requested and made but no amendments requested to cl 2.
The bank says whether or not Mr Moltoni in fact read these documents or sought legal advice prior to executing the deed is irrelevant, and refer to Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [45].
The bank submits that in these circumstances the forbearance representation does not constitute conduct by the bank that was misleading or deceptive and the deed stands unimpeached.
The bank says the result is that the applicants are unable to rely on the material contained in [11]‑[20] and [48]‑[52] of the statement of claim as they are contrary to the express provisions of the deed.
The applicants submit that the bank’s application for summary judgment should be dismissed because it cannot demonstrate that the applicants do not have a reasonable prospects of establishing two things:
(1)That, on their proper construction, the provisions of the deed upon which the bank relies to defeat the claims in [11]‑[20], do not bear the meaning contended for by the bank; and
(2)That the misleading and deceptive conduct alleged induced them to sign the deed, occurred.
They thus say that each of those matters raises questions of fact and law including contested questions concerning the making of representations in which a court will need to decide who is to be believed, and questions of reliance and damage. They say that significantly the bank has chosen not to call evidence from a person who is alleged to have induced the making of the deed of forbearance by oral representations, but instead seek to rely upon information and belief of a colleague who has recently spoken to that person. They submit that such a class of case is singularly inappropriate for summary disposal.
As to the terms of cl 2.1 of the deed, the applicants say that, if they are ambiguous or susceptible of more than one meaning, then regard may be had to surrounding circumstances. They contend that on its proper construction cl 2.1 is not an obstacle to the claims in [11]‑[20] and it is necessary to refer to cll 3.1, 4.1 and 5.1 of the deed to demonstrate why this is so.
These clauses provide as follows:
3.1Without prejudice to any of their rights, and subject to Moltoni Corporation and the Guarantors strictly complying with the terms of this Deed, the Bank and Finance each agree to forbear from further enforcing their rights against the Customers and the Guarantors pursuant to the Loan Agreements, the Securities, the Guarantees and the Default Notices until 4pm, Perth time, on 2 July 2011.
…
4.1In consideration of the forbearance to be provided by the Bank and Finance (as directed by the Bank and Finance) in accordance with clause 3 of this Deed:
4.1.1Moltoni Corporation and the Guarantors must strictly comply with the terms of the Loan Agreements and the Securities and ensure that no further Events of Default occur;
4.1.2Moltoni Corporation and the Guarantors agree to pay to the Bank and Finance, by way of cleared funds:
(a)the Moneys Owing; and
(b)the Legal Fees,
by no later than 4pm, Perth time, on 5 July 2011; and
4.1.3Moltoni Corporation and the Guarantors must provide regular updates to the Bank and Finance at least once a week (or as otherwise requested by the Bank or Finance) from the date of execution of this Deed with respect to the efforts by Moltoni Corporation or any Guarantor to raise debt or equity to repay the Moneys Owing (or any information as requested by the Bank or Finance from time to time).
…
5.1The Bank agrees to provide Moltoni Corporation with a statement of the Moneys Owing:
5.1.1within 7 days of receiving a written request from Moltoni Corporation or any of the Guarantors; or
5.1.2on 28 June 2011,
whichever occurs sooner.
They note that by cl 3.1 the bank agrees to forebear from further enforcing its rights against the applicants until 4pm on 2 July 2011. They note that pursuant to cl 4.1 the applicants agree it is consideration for the bank’s forbearance in accordance with cl 3, to pay all monies owing by 4pm on 5 July 2011. They note that by cl 5.1 of the deed the parties agreed to convene a settlement conference no later than 2pm on 5 July 2011 at which the applicants were to pay all monies owing to the bank and that the bank was to execute a “deed of settlement”.
The applicants note that pursuant to cl 1.1 of the deed, the term “deed of settlement” means “a deed of settlement the material terms of which are contained in the letter marked ‘Annexure A’ to this Deed” and according to that letter the material terms of the deed of settlement were to include those set out in [2] of the letter, as follows:
2the Moltoni Parties agree to:.
2.1keep the terms of the settlement confidential;
2.2release and discharge St George from any and all claims arising directly or indirectly in connection with the financial accommodation provided by St George to the Moltoni Group, including in relation to any guarantee, security, loan agreement or other document between St George and any of the Moltoni Parties; and
2.3indemnify St George against all actions, claims, demands, losses, damages, liabilities, costs and expenses of any nature incurred at any time actually or intentionally arising directly or indirectly in connection with the financial accommodation provided by St George to the Moltoni Group, including in relation to any guarantee, security, loan agreement or other document between St George and any of the Moltoni Parties and anything done or not done during the forbearance period.
As a result, the applicants say it is clear that the parties did not intend for the bank to be released from or indemnified against any and all claims the applicants might have against them in connection with the various loans, guarantees and securities until all monies were repaid and a formal settlement deed executed.
They say it is also clear that the parties did not intend cl 2.1 of the deed to have the effect of releasing the bank from all liability in respect of such claims.
They submit that the better view of cl 2.1 is that to the extent to which it was intended to obstruct the path of any claim the applicants might advance against the bank, it was limited to its scope and probably only temporary in its effects.
In particular, they submit that it is apparent that the parties did not intend the bank’s price for a mere month’s forbearance to be a permanent relinquishment of all rights the applicants might then have had in connection with misleading and deceptive conduct of the bank that induced the making of the various loan and other arrangements. They say a contrary construction would work capricious, unreasonable and unjust consequences and would mean the release the banks were to have on repayment of the whole of the borrowed monies would be superfluous and of no value.
The applicants submit there is, at the very least, uncertainty as to the meaning of cl 2.1 as a result of cl 5.1 and the terms of annexure A.
They also rely on the evidence of their solicitor, Mr Stewart Levitt, to the effect that the bank did not tell the applicants that the price of their forbearance would be the loss of their legal rights, a point consistent with the construction of cl 2.1 contended for by the applicants.
They say that discovery of documents in due course may assist in making out this claim.
As to the forbearance representation, the applicants refer to the representation pleaded at [48] of the statement of claim and, relying on what was said by French CJ and Kiefel J at [19] of Miller, contend that it is not possible to decide whether the claims made in [48]‑[52] have reasonable prospects of succeeding without complete evidence of the context in which the representation was made.

The applicants say the bank’s evidence in support of this part of its interlocutory application is unsatisfactory as Mr Michael John Cane on information and belief, gives evidence to the effect that the forbearance representation was never made by Mr Waterman but do not explain why he is not called to give the evidence himself.
On the other hand, the applicants contend Mr Levitt gives evidence to the effect that Mr Waterman represented that the banks would forebear for a period of six months provided the applicants actively demonstrated that they were trying to sell their property to pay down their debts to the bank and at no time did he raise or discuss with Mr Moltoni that to obtain this forbearance the applicants would have to give away legal rights.
As to these issues, they say these cannot be resolved by summary judgment application.
In reply, the bank submits that nothing in cl 4.1.1 of the deed, or in cl 6.2 that records, by cl 6.2.1, that monies owing are immediately due and payable and, by cl 6.2.3, that provides the bank will be entitled to immediately exercise any and all of its rights pursuant to the deed, is consistent with a more limited construction of cl 2.1.6 that the applicants contend for.
In the circumstances, the bank submits that the use of the word “waive” in cl 2.1.6 is not to be given some limited construction but indicates that the Moltoni Group provided a release to the bank.
So far as the terms of [2] of the letter at annexure A is concerned, the bank submits that it is inappropriate, in construing cl 2.1.6 of the deed, to have regard to what the terms of another deed provide. In any event, it is submitted that the reason for the other deed is clear. If the deed of forbearance was complied with in accordance with its terms, there would have been a sale so as to enable a refinancing or other transactions to enable a refinancing, and any deed of settlement would need to capture those matters within the framework of a release.
It is also submitted that the deed of settlement envisages a mutual release and it is in that context that it may be seen that the deed of settlement was not only a separate instrument, not intended to take up whatever was contained in the deed of forbearance, but importantly does not require a reading down of the language in the deed of forbearance.
As to any alleged differences between what Mr Waterman and Mr Moltoni said or did not say, the bank submits the point is irrelevant, because even if taking what Mr Levitt says Mr Moltoni says, it is the case that it apparently was said that there would be no action taken or the status quo altered for six months. The bank says that as a matter of fact no enforcement action was taken for close to seven months. Thus, as a matter of analysis the status quo put forward relevantly, even if that statement be true, is the status quo as recorded in the recitals. There is nothing in the representation case that requires any further analysis. Thus, it comes down to a silence case and in the bank’s submission that goes nowhere because there is no cogent material to suggest misrepresentation by silence.
I have come to the conclusion that the bank, and the receivers who also press for summary judgment on this issue, are entitled to summary judgment on the basis that the applicants have no reasonable prospect of succeeding on the misleading and deceptive grounds at a trial.
In so finding, as I will explain in more detail below, I am cognisant of the remarks made by the plurality in Spencer, as well as by their Honours, French CJ and Gummow J in their joint judgment, about the circumstances in which summary judgment should not be entered.
This is a case where, in my view, despite the best attempts of the applicants to identify disputed questions of fact and law that would suggest the matter should go to trial and not be summarily terminated, the issues of fact said to be in dispute are more apparent than real and the prospect of the applicants succeeding must be considered to be not reasonable.
The prospects of success are not considered by me to be reasonable because when one takes into account the sequence of factual events culminating in the execution of the deed of forbearance and the terms of the deed of forbearance properly construed the only proper conclusion in my view is that the Moltoni Group plainly released the bank from any possible liability in respect of the matters that constitute the cause of action pleaded in [20]‑[44] of the statement of claim and that there is nothing in the annexure A letter that requires a limited construction of cl 2.1.6 of the deed of forbearance.
As set out above, the initial financing facilities were provided to the relevant applicants in 2007, with variations in some respects in 2009, and subsequent facility letters in 2010. The receivers were subsequently appointed upon events of default and notices of default on 17 October 2011.
It may be noted that the current proceeding and the misleading conduct claims raised in the relevant paragraphs of the claim do not appear to have arisen until some time after the appointment of the receivers.
The affidavit of Mr Cane, dated 8 March 2013, and his subsequent affidavit dated 26 April 2013 provide an account of material transactions and relevant documentation. Mr Cane, at the time of his affidavit, was a senior manager of the loans management unit of Westpac and at material times prior to March 2011 was a senior manager of the loans management unit of St George Bank.
At [13] and [14] of his first affidavit he deposes as to the relevant 2007 and 2009 facilities. At [15], he describes and produces various securities identified in the deeds of appointment.
In that regard, it is instructive to note that the facility offer letter dated 28 September 2010 to the directors of BLI contains the following “Acknowledgement”:
In consideration of the provision of this offer by the Bank, the Borrowers and Guarantors acknowledge and agree that they have no residual grievances with the conduct of the Bank with respect to the facilities and their previous dealings and that any claim with respect to such matters are released in full.
That letter was signed by two representatives of St George Bank including Mr Waterman. Mr Moltoni signed on behalf of BLI. Happy Valley, Moltoni Holdings and Mr Moltoni in his individual capacity signed as guarantors.
By a further facility offer letter dated 28 September 2010 to the directors of Moltoni Corporation there appears an “Acknowledgment” in identical terms and the execution pages confirm that Mrs Moltoni, Mr Moltoni, Moltoni No 1 and Moltoni Holdings have all signed the facility offer as guarantors.
By the deed of appointment of receivers and managers to Moltoni Corporation in its own right and as trustee for the Moltoni Family Trust, in October 2011, the appointment of the receivers as of 17 October 2011 is confirmed.
The notice of default that led to the appointment was provided to the directors of Moltoni Corporation on or about 28 February 2011.
Soon after the notice of default, on or about 4 April 2011, Mr Moltoni was in email contact with Mr Waterman about various developments including the Fyansford Green and the Bibra Lake developments. An email of that date does not suggest that Mr Moltoni on his own part or on behalf of the company was of the view that the bank was guilty of any misleading conduct, either of the type now pleaded or at all as no such allegation was made. Rather, the email suggests Mr Moltoni was looking to achieve solutions to the financial predicament the company found itself in.
The same is to be said of communications at about this time with Mr Waterman on behalf of Mr Moltoni or the company by Mr Paul Gwilym, principal of Lawsons Commercial Solutions. The first of these is about 5 April 2011. On 28 April 2011, Mr Gwilym in a letter to Mr Waterman concludes by thanking Mr Waterman for his support “and for your ongoing understanding of our position and in anticipation of your assistance to expedite this process as we move from St George to our new lender”. In other words, the focus of the advisor to the company was about refinancing. As senior counsel for the bank submits, the tone of this correspondence is conciliatory and it seeks an indulgence from the bank in relation to the release of security that the bank then held over the Moltoni Group’s assets.
Not long after this, Lavan Legal, the bank’s solicitors, wrote to Mr Moltoni as executive chairman and founder of the Moltoni Group, with a copy to Mr Gwilym noting that:
·The bank is entitled, amongst other things, to enforce the securities provided by the Moltoni Group.
·Attaching a deed of forbearance which sets out terms upon which the bank would agree to forbear from enforcing its securities.
These points were made following the opening paragraph in which the author of the letter indicated that the firm acted for the bank and referred to conversations with Mr Waterman “concerning the proposed refinance of the facilities provided by the Banks to the Moltoni Group”.
The attached draft deed of forbearance involved numerous parties, being those in the Moltoni Group as well a number of companies or individuals who were signatories to the various facilities as parties or guarantors.
While the number of proposed parties was subsequently diminished when the deed of forbearance was eventually signed, cl 2.1 of the draft then proposed remained in the same terms throughout. It included the cl 2.1.6 the subject of submissions above.
Mr Gwilym, who, as noted above, had been engaged by Mr Moltoni and the company to advise in respect of refinancing, responded to Mr Waterman directly by email about the terms of the draft deed of forbearance on 23 May 2011 at about 5:24pm. He thanked Mr Waterman for providing the draft and stated:
In reading the Deed, I have a concern that I am not going to be able to get the named parties to agree to the Deed in its current form. This issue is between the bank and Moltoni related entities in which Moltoni is the borrower. Please can you re‑read the Deed in its current form and advise Lavan to either liaise with me, or instruct them to amend the Deed such that Robert Moltoni, and the Moltoni Group direct, for whom he can sign with his family, are the only parties to the Deed. (Some typographical glitches have been removed from this passage.)
What then occurred is that the bank’s solicitors provided Mr Moltoni, with a copy to Mr Gwilym, a revised deed that met these requirements, that is, engaged only the members of the Moltoni Group.
Clause 2.1 of the earlier draft remained unaltered, however new cll 2.2 and 2.3 were added.
In this regard, I accept the submission made by senior counsel for the bank that in this context no material has been put forward by the applicants concerning what their apprehension was by reference to any other communications with bank officers or any internal communications with Mr Gwilym, or any other communications with any other persons who were called upon to advise them, in relation to their understanding of what Mr Waterman’s conversation, some time before the provision of the deed in draft actually meant, and what that had to do with the terms of the deed which the Moltoni Group members were called upon to execute.
On 27 May 2011, at 2:57pm, Mr Moltoni emailed the solicitors handling the transaction at Lavan Legal, with a copy to Mr Gwilym, advising that:
Signed copies of the forbearance deed are attached. Please confirm that they are signed correctly and that all is in order.
As it transpires there was not a settlement in terms of the refinancing that was hoped for. On 10 June 2011, Mr Gwilym wrote to Mr Waterman referring to their “ongoing discussions” with regard to the facility that the Moltoni Corporation has with the bank “and to the more recent Deed of Forbearance signed with the Bank”.
As senior counsel for the bank submits, the correspondence proceeds on the understanding that the deed of forbearance is operative or controlling.
Mr Gwilym’s letter then goes on to provide what is called a “status update on the affairs of the Group”. Amongst other projects dealt with, he deals with the Fyansford Green Development and the Bibra Lake land. The last point made is that:
Moltoni Group to remain Guarantor for the St George debt until such time as full and final payment is made…
Again, as senior counsel for the bank submits, that statement is not indicative of any party seeking to retain such rights to challenge the facility of security, but rather it is to the contrary.
On 30 June 2011, Mr Waterman, on behalf of the bank, wrote to Mr Moltoni as executive chairman and founder of the Moltoni Group, and to Mr Gwilym, although the letter is addressed to “Rob” (Mr Moltoni at the commencement). By the first paragraph he stated:
Pursuant to a Deed of Forbearance executed on or about 31 March 2011 (the Deed), the Moltoni Group was required to effect a refinance of the amounts owed to St George by 5 July 2011.
While the month mentioned is “March” this should be taken to be a simple error and the reference should have been to “May”. There is no evidence of any other deed of forbearance having been executed.
The second paragraph of the letter noted that at a meeting on 27 June 2011, Mr Moltoni had acknowledged that the Moltoni Group would be unlikely to comply with its obligations under the deed to effect a refinance of the amounts owed by 5 July 2011.
The letter then went on to say that if St George formed the view that it would not be possible to effect a refinance of the amounts owed by 5 July 2011 “then pursuant to clause 6.2 of the Deed St George is no longer required to forbear from, and is entitled to enforce its securities”.
The letter went on, however, to state:
Notwithstanding that it is presently entitled to enforce its securities, St George does not intend to take any action until 6 July 2011, when it intends to engage the firm of Ernst & Young to undertake an investigation into the Moltoni Group’s financial affairs on behalf of St George…
Mr Moltoni initialled the letter whereby he acknowledged and agreed to the matters governing the appointment of Ernst & Young as investigative accountants.
Subsequently on 3 October 2011 a notice of demand on guarantors was issued by Westpac.
The receivers were then appointed on 17 October 2011.
In those circumstances one returns to the deed of forbearance and its terms.
The deed, by way of background, recites relevantly the facilities (recital A), that in order to secure their obligations the “customers” and guarantors provided the bank with securities (recital E), that the bank served default notices on 28 February 2011 (recital F), the customers are in default (recital G), by reason of the default the bank may (amongst other things) enforce the “Loan Agreements, the Group Guarantees and the Securities” (recital H) and, by recital I:
The Bank and Finance agree to forbear from enforcing the Loan Agreements, the Group Guarantees and the Securities on the terms contained in this Deed.
Amongst the definitions then set out in cl 1 is that of the “Deed of Settlement” which “means a deed of settlement the material terms of which are contained in the letter marked ‘Annexure A’ to this Deed”.
Clause 5 then has the heading “Repayment of the Monies Owing”, although by cl 1.2.14 headings are inserted for guidance only and do not affect the interpretation of the document. By cl 5.1, the bank agrees to provide Moltoni Corporation with a statement of the monies owing within seven days of receiving a written request or on 28 June 2011, whichever occurs sooner. By cl 5.2, the parties agree to convene a “settlement conference” at the offices of Lavan Legal at 2pm (Perth time) on 5 July 2011 or within seven days from receiving the request from Moltoni Corporation or any of the guarantors, whichever occurs sooner. By cl 5.3, Moltoni Corporation and guarantors agree that at the settlement conference they will comply with their obligation pursuant to cl 4.1.2 of the deed and execute the deed of settlement. By cl 5.4, subject to receiving payment of the monies owing and the legal fees in accordance with cl 4.1.2, contemporaneously with the execution of the deed of settlement by the bank, the bank agrees to execute all documents necessary to give effect to the terms of the deed of settlement.
The letter marked as annexure A to the deed included [2], which has been set out above, that relevantly included [2.2]:
2.2release and discharge St George from any and all claims arising directly or indirectly in connection with the financial accommodation provided by St George to the Moltoni Group, including in relation to any guarantee, security, loan agreement or other document between St George and any of the Moltoni Parties; and…
Paragraph 2.3 included an indemnity in favour of St George in relation to such transactions.
In my view, the significance of the deed of settlement, in the context of the deed of forbearance, was that at the time the deed of forbearance was executed, Mr Moltoni and the members of the Moltoni Group and guarantors were hopeful of refinancing their business activities and paying the monies owing on 5 July 2011 to the bank. Thus, in contemplation of that occurring, it was agreed a deed of settlement was to be executed at the time of such settlement.
In these circumstances, the submission made on behalf of the applicants that the terms of cl 2.1.6, in particular, of the deed of forbearance should be construed as having only some temporary application should be rejected.
On its face, the deed of forbearance was clear and unambiguous as far as the terms of cl 2.1 are concerned. That the deed of forbearance was also designed to allow the relevant Moltoni Group members to organise refinancing does not, in the circumstances, suggest that the clear and unambiguous provisions of cl 2.1 should have some limiting construction placed on them.
Moreover, the factual circumstances described above clearly indicate that Moltoni Group members, for example Mr Gwilym, understood that the deed of forbearance operated according to its own terms and that it was not temporary. There is no evidence to suggest Mr Moltoni had a different view.
At the very least, it cannot be said that there is any reasonable prospect that an argument that the deed of forbearance terms in cl 2.1.6 were merely temporary, pending refinancing, can succeed at a trial.
Further, I accept the submissions made on behalf of the bank that the terms of cl 2.1 should be construed as covenants in regard to the language of acknowledgment and agreement employed. The terms are clear. For the reasons submitted on behalf of the bank and referred to above, the terms of cl 2.1 respond to each of the misleading conduct claims made on behalf of the Moltoni Group members as pleaded in the claim. That different or more emphatic words or expressions of release could have been employed in cl 2.1 to signify the release agreed upon, having regard to the form of release expressed in the annexure A letter, is in my view of no consequence. The terms of cl 2.1 must be construed as they appear, not by inference to the terms of the release expressed in annexure A.
The likelihood of a claim of misleading or deceptive conduct based on the failure (or silence) of Mr Waterman or the bank to highlight the existence of cl 2.1.6, either through failing to list it in the table of contents of the deed, or by expressly pointing it out, has very little likelihood or prospect of succeeding at a trial.
The fact is that Mr Moltoni had separate advice; he plainly was, from all the materials before the Court, experienced in business. There is nothing to indicate Mr Moltoni had any other difficulty in understanding the finance matters that had been raised with him. He signed the deed of forbearance as did others and returned it to the bank.

There is no particular circumstance to suggest that, in a case such as this, “silence” exists in any material form so as to constitute a factor that would lead a court to find misleading or deceptive conduct on behalf of the bank. This is not a case in which the types of circumstances described by the Court in Miller could result, in my view, in such a finding. Again, at the very least, there is no reasonable prospect of such a claim succeeding after a trial on the facts of this case, even if one adopts the applicants’ view of what Mr Waterman did or did not do or say.
I accept that, as submitted by senior counsel for the bank, any debate as to what Mr Waterman said or did not do or say, is irrelevant to the silence case in the circumstances.
The applicants, following the hearing of the various applications, drew the Court’s attention to the decision in O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 (O’Brien). On behalf of the bank it is submitted that the decision in O’Brien is of no assistance, for four reasons. First, the summary judgment application in O’Brien was primarily concerned with the proper construction and enforcement of bank guarantees involving the use of “suspension clauses” and “preservation clauses” which are entirely different in nature and character from the covenants, releases and warranties in the deed of forbearance in the present case. Suspension clauses in issue put on hold any rights of a borrower or guarantor until the repayment of a debt. The bank submits this is entirely different from extending an obligation to repay a debt in consideration of the abandonment of particular rights under a deed of forbearance.
Secondly, there is no term or condition in the guarantees in O’Brien that is similar or analogous to any term or condition in the deed of forbearance. The language is different. To the extent that there is consideration of the phrase counter-claim, it supports the bank here.
Thirdly, in O’Brien the guarantors sought to argue that the bank was estopped from asserting an event of default as there was no failure to repay the loan. The assertion went to the existence of an event of default. In the present case, the applicants do not allege any estoppel. Rather, they rely on wavering evidence with no cogency, a representation by conduct or otherwise to vitiate the deed of forbearance when, on analysis, that representation case goes nowhere. It certainly does not have the effect of negating the existence of an event of default, a matter of importance in O’Brien: see [62]‑[63], [70] and [71]. In other words, the bank argues, there was an arguable defence in O’Brien as the bank relied on the “pay now, litigate later” clauses to defeat those arguments. Here it is submitted no arguable case impeaching the deed of forbearance has been demonstrated on cogent evidence.
Fourthly, and relevantly, it is submitted that whilst misleading and deceptive conduct is raised in both cases, the basis for the respective claims is inherently different. In O’Brien the guarantors asserted that they ought to be alleviated from their liabilities under the guarantees because of alleged representations that the bank would not enforce the repayment of the loan until a later date. In the present case, the parties entered into a deed of forbearance which stated and agreed the specific period of extension on particular terms.
I accept the bank’s submissions in this regard.
In these circumstances, I would not consider the bank’s alternative estoppel case.
I would, therefore, for these reasons, enter summary judgment for the bank and the receivers in relation to the misleading conduct claims.
It follows that the interlocutory application of the applicants for summary judgment in relation to the misleading conduct claim has no reasonable prospects of succeeding at a trial and that the bank and receivers are entitled to summary judgment by way of dismissal of that claim.
TORTIOUS INTERFERENCE CLAIM
BLI and Happy Valley seek summary judgment against Westpac and the receivers in respect of the causes of action pleaded in [39]‑[44] of the statement of claim, with damages to be assessed.
Those paragraphs relate to the Bibra Lake land and plead in summary that:
·At all material times from on or about 20 June 2007 to date, Westpac was aware and it was the fact that Moltoni Holdings and BLI were parties to the Bibra Lake joint venture agreement, as pleaded at [36] of the claim (which is described as the Contract in the pleading but referred to here as the joint venture agreement or JVA).
·The JVA provided by cl 2.1 that the acquisition cost of the land made the subject of the contract was $6.5 million.
–    Clause 2.4 that Moltoni Holdings and BLI have a percentage interest in the Bibra Lake joint venture.
–    Clause 2.5 that the percentage interest of Moltoni Holdings was 35% and the percentage interest of BLI was 65%.
–    Clause 2.6.2 that neither Moltoni Holdings nor BLI shall deal with or otherwise do or omit to do anything which may adversely affect the value of the joint venture assets, the joint venture or their interests in the joint venture.
–    Schedule 2 that Moltoni Holdings must, amongst other things, fill the land with construction demolition waste and inert fill, with no putrescible components or timber, green waste or similar waste and compact the land in a prescribed fashion so as to achieve to a site classification in terms of AS2870 on completion that is suitable for building purposes, including capping the top 1 metre of fill consisting of clean fill.
·Moltoni Holdings and BLI, by Moltoni Holdings in its capacity as the manager of the Bibra Lake joint venture, allowed Happy Valley into possession of the land for the purpose of Happy Valley carrying out the landfill operations, at the expense of Happy Valley, pursuant to a lease or alternatively a licence to enter the land for that purpose.
·By letter dated 20 November 2012, a notice to vacate and other matters pleaded in the particulars of knowledge concerning “Threats” and a letter dated 13 December 2012 from Lavan Legal on behalf of Westpac and the receivers that reiterated the “Threats”, the receivers threatened to cause Moltoni Holdings to breach cl 2.6.2 of the contract by doing something which may adversely affect the value of the joint venture assets, the joint venture or the interests of the parties to it essentially by stopping Happy Valley from carrying out the landfill operations at its own expense.
·By the letter of 20 November 2012, the notice to vacate, the Threats and the letter of 13 December 2012 the receivers threatened to cause Moltoni Holdings to breach any or all of its obligations to Happy Valley pursuant to the lease or the licence by repudiating any legal entitlement Happy Valley may have to enter upon the land and carry out the landfill operations and threatening to seize any earthmoving equipment on the Bibra Lake land without any lawful entitlement to do so.
·Further, the conduct of Westpac in joining with the receivers and sending the letter of 20 November 2012 and the other matters pleaded is an act of intentional interference by Westpac with the contractual relations between Moltoni Holdings and BLI, pursuant to the Bibra Lake joint venture with the effect of inducing Moltoni Holdings to breach the terms of the contract as pleaded.
·Further, and in the alternative, the conduct of Westpac in joining with the receivers and sending the letter of 20 November 2012 and the other matters pleaded with knowledge of the lease and/or the licence is a knowing interference by Westpac with the contractual relations between Happy Valley and Moltoni Holdings pursuant to the lease or the licence.
·Unless Westpac and the receivers are restrained, the anticipated breaches of the JVA and intentional interference with contractual relations will cause BLI and Happy Valley loss and damage.
As well as these tortious interference claims against the receivers which are brought by BLI and Happy Valley, Moltoni Holdings has brought a related claim alleging that, by giving the notice to vacate and by seeking to enforce, the duties of the receivers to act in good faith and not to recklessly sacrifice the interests of Moltoni Holdings have been breached.
In Mr Levitt’s affidavit filed on behalf of the applicants dated 28 March 2013 at [8] he states that he is informed by Mr Moltoni and believes that:
(a)Moltoni Holdings in its capacity as project manager “permitted” Happy Valley to remain in occupation of the Bibra Lake land after the lease ended in December 2008;
(b)once the lease expired an agreement was entered into between Mr Moltoni, on behalf of Moltoni Holdings and the directors of BLI, “permitting” Happy Valley to continue to occupy the Bibra Lake land without the need to pay any rent or any interest on the rent; and
(c)such agreement was reached because Happy Valley’s revenue stream had diminished and the cost of conducting the landfill operations exceeded (or at best equalled) its income, which meant that Happy Valley had no funds to pay any rent.
The receivers contend that the tortious interference claims against them should be summarily terminated because:
(1)The notice to vacate was valid, as the prior alleged lease had expired and there was no binding agreement with Happy Valley which allowed it to remain in possession.
(2)In any event, Happy Valley has failed to pay any rent for a substantial period and is not entitled to remain in possession.
(3)The receivers are not third parties who have tortiously interfered in any contractual relationship between Moltoni Holdings and Happy Valley or between Moltoni Holdings and BLI, as they acted as agents of Moltoni Holdings in giving the notice to vacate.
Further, in relation to the claim by Moltoni Holdings as to the sacrifice of its interests, the receivers say this claim should be summarily terminated because:
(1)They have no duty to consider the interests of Moltoni Holdings, save not to act in bad faith in the same way a mortgagee must not recklessly sacrifice a mortgagor’s interests in bad faith.
(2)Happy Valley claims to have finished landfill works on Lot 451.
(3)Happy Valley was not and is not now entitled to actually carry out landfill works on Lot 410.
The receivers say that the only basis upon which Happy Valley claims that it was entitled to remain in possession of the Bibra Lake land is by an oral agreement, as set out in the affidavit of Mr Levitt at [8(b)] to the extent that this evidence is admissible.
The receivers say the evidence of the oral agreement is objectionable as it consists of hearsay evidence of a solicitor who was not present at the time of the alleged oral agreement. Further, it is conclusionary in so far as the words that were spoken which allegedly give rise to the agreement are not stated. Moreover, the persons who apparently acted on behalf of Happy Valley and Moltoni Holdings when making the alleged oral agreement are not even identified. They also note that Mr Levitt’s affidavit at [8(a)] to the extent that it is admissible concerns an oral agreement between Moltoni Holdings and BLI, not between Moltoni Holdings and Happy Valley.
The receivers submit the evidence is wholly incapable of supporting any arguable basis for an oral agreement permitting Happy Valley to remain in possession of the Bibra Lake land and upon a summary judgment application by BLI and Happy Valley the Court could not be persuaded that the alleged oral agreement exists on the balance of probabilities.
In any event, it is submitted that even if there were an oral agreement between Moltoni Holdings and Happy Valley as alleged in [8(a)] of Mr Levitt’s affidavit, that was simply an agreement which “permitted” Happy Valley to remain in possession “after the lease ended in December 2008”, as described in Mr Levitt’s affidavit at [8(b)] to the extent that this evidence is admissible. The receivers say no term for the agreement is alleged and apparently no consideration was provided as no rent was payable during the alleged extended period according to Mr Levitt’s affidavit at [8(b) and (c)].
Thus, in these circumstances the receivers submit Happy Valley has no legal right to remain in possession of the Bibra Lake land after Moltoni Holdings provided notice to vacate and there was no legal reason why Moltoni Holdings could not provide a notice to vacate.
The receivers further say there is no tortious interference as it is clearly established that an agent acting within the scope of their authority cannot be liable for the tort of inducing a breach of contract entered into by their principal. The agent’s acts are the acts of the principal. Accordingly, an officer of the company who is acting within the scope of their authority and causes the company to breach its contract cannot be held liable for inducing or procuring the company to breach the contract: O’Brien v Dawson (1942) 66 CLR 18; Rustic Haven Sdn Bhd v The Ravenswood Resort Pty Ltd [2005] WASC 88 at [25] and cases there cited; Lictor Anstalt (a company) v MIR Steel UK Limited [2011] EWHC 3310 (Ch).
The receivers say it follows that in acting on behalf of Moltoni Holdings in providing the notice to vacate they cannot be held liable for any tort of inducing Moltoni Holdings to breach any contract with Happy Valley and BLI; and they note that it is not alleged by the applicants that the receivers acted beyond the scope of their authority.
As to the allegation that the receivers sacrificed Moltoni Holdings’ interests, the receivers contend there is no basis for contending that the notice to vacate adversely affected Moltoni’s interests in the joint venture with BLI. Happy Valley was not paying any rent. Happy Valley was not entitled to carry out landfill works as it did not have a proper local council approval to do so, and the licence required to conduct landfill operations expired in March 2013. They say Happy Valley was directed not to carry on the landfill works by the local council in February 2013. In any event, the receivers say they had no duty to consider the interests of Moltoni Holdings, save not to act in bad faith, in the same way a mortgagee must not recklessly sacrifice a mortgagor’s interest in bad faith: State Bank of New South Wales v Chia [2000] NSWSC 552; (2000) 50 NSWLR 587 at 626. They note that no allegation of bad faith has been pleaded and there is no evidence to support such an assertion.
The bank also supports the receivers’ claim that there is no tortious interference, submitting that the tortious interference claim must fail as no valid or enforceable lease or licence existed.
The bank accepts that there was a joint venture agreement between Moltoni Holdings and BLI but, like the receivers, submits that the receivers appointed by Westpac were acting as agent of Moltoni Holdings and it had authority to act on its behalf pursuant to a charge. Accordingly, they were not acting as a third party and could not have tortiously interfered in the contractual relationship.
They also note that Happy Valley had not paid rent for a substantial period and had no legal right to be on the land and did not have development approval from the City of Cockburn and was conducting landfill operations unlawfully and without authority.
The applicants refer to the relevant clauses of the JVA pleaded and say that at trial Moltoni Holdings and BLI will establish that Moltoni Holdings, in its capacity as the manager of the joint venture, allowed Happy Valley into possession of the land for the purpose of Happy Valley carrying out the landfill operations, at the expense of Happy Valley pursuant to a lease or alternatively a licence to enter the land.
The applicants say the elements of the tort of intentional interference with contractual relations are:
(1)an existing contract between a plaintiff and a third party;
(2)a defendant having knowledge of the contract;
(3)the defendant intending to procure a breach of the contract by the third party;
(4)the defendant taking steps with that intention in mind so as to cause a breach of the contract by the third party; and
(5)damage.
They acknowledge that justification by reference to a superior legal right is a defence to the tort, not an element of the cause of action and needs to be pleaded and established in accordance with its terms.
In the present case, they submit the conduct of the bank and the receivers which disabled and prevented Happy Valley from carrying out landfill operations and in turn disabled and prevented Moltoni Holdings from performing its obligations under the JVA was the act of moving to dispossess Happy Valley of the site and prevent it from performing those operations by issuing a notice to vacate and making the demands and Threats pleaded, including the threat to seize the earthmoving equipment of Happy Valley on the site.
The applicants say knowledge of the Bibra Lake joint venture and the fact that Moltoni Holdings had permitted Happy Valley to have possession of the site for the purpose of doing the work in question is established by the matters pleaded in [39] of the statement of claim and that each of the pleaded documents is in evidence and speaks for itself, referring here to Mr Levitt’s affidavit sworn 28 March 2013 at [10], [11], [13] and [15].
The applicants say it is no answer that the receivers acted as agents for the mortgagor. Rather, they say, it appears from the evidence that the receivers acted as agents for the bank when issuing the notice to vacate.
They also say it is apparent from the signoff at the end of the notice to vacate dated 20 November 2012 that the notice was issued by Lavan Legal as the solicitors for both Westpac and the receivers.
The applicants contend that given that the receivers sought and obtained the approval of Westpac to issue the notice to vacate, it appears that the receivers were acting as agents of the bank when issuing the notice.
The applicants cite American Express International Banking Corp v Hurley [1985] 3 All ER 564 (American Express) on the question whether or not a receiver was acting as the mortgagee’s agent in realising assets, where at 571, Mann J said:
I propose to proceed on the basis that the following propositions represent the law:
• i. The mortgagee when selling mortgaged property is under a duty to a guarantor of the mortgagor’s debt to take reasonable care in all the circumstances of the case to obtain the true market value of that property.
• ii. A receiver is under a like duty.
• iii. The mortgagee is not responsible for what a receiver does whilst he is the mortgagor’s agent unless the mortgagee directs or interferes with the receiver’s activities.
• iv. The mortgagee is responsible for what a receiver does whilst he is the mortgagee’s agent and acting as such.
The applicants submit that, if it is not conceded by Westpac that it was involved in instructing Lavan Legal and directed the receivers with respect to issuing a notice to vacate, that issue should be determined at trial, not on a motion for summary dismissal.
They submit it is not to the point that the solicitors for Westpac and the receivers issued the notice to vacate, wrote the letters of demand and made the Threats upon the assumption that Happy Valley was in possession pursuant to an expired lease, under which rent had not been collected for many years, while the landfill operations were carried out. They say the question of the precise legal basis upon which Happy Valley was permitted to be on site and carry out the work is one of mixed fact and law and should not be foreclosed by a summary judgment. It is submitted that on any view, the legal relationship between Happy Valley and Moltoni Holdings was contractual and involved the carrying out of work on site and that, with or without a current lease, that is sufficient to establish a contractual relationship for the purpose of the tort of intentional interference.

The applicants further contend that nor is it to the point that their claim is for a permanent injunction to restrain interference or damages in lieu. The status quo has been preserved by an undertaking and the question of the entitlement for and form of any final order should be determined at trial. It is submitted that the bank and receivers seek to make something of the fact that council approval for the conduct of landfill operations has lapsed. It is submitted that is also a matter which bears on the question of relief which should be determined at trial. It is said that if the licence to Happy Valley is not restored by the date of the trial that may be a factor which bears on the exercise of discretion to grant injunctive relief. If the licence is restored, that date will bear on the measure of the loss. But none of those matters is apt for consideration on the summary judgment application.
In my view, generally speaking, the submissions made on behalf of the receivers should be accepted. In short, I do not consider it can reasonably be argued that Happy Valley at material times had any possessory right or interests in respects of the Bibra Lake land apart from what might be described as a tenancy terminable at will by Moltoni Holdings. It follows, in my view, that the receivers, on behalf of Moltoni Holdings, were entitled to terminate at will, as they did, and the notice to vacate was effectually. It follows they are now entitled to demand vacation of the land, removal of equipment and the like.
Further, I do not accept that the notice to vacate issued on behalf of the bank and the receivers lacks validity on that count or that the receivers, at material times, have acted on behalf of the bank and not on behalf of and as agent for Moltoni Holdings.
Nor do I consider there is any reasonable likelihood that the Moltoni Group can succeed in their claim that the receivers have breached duties owed by sacrificing their interests.
The facts are as follows. By the JVA between Moltoni Holdings and BLI, executed 20 June 2007, the joint venture partners agreed to be associated in a joint venture to effect the subdivision and development of the Bibra Lake land and release of lots (cl 1.3). Clause 2 dealt with contribution, percentage interests and guaranteed sum, with Moltoni having a 35% percentage interest and BLI having a 65% percentage interest in the venture. The acquisition cost of the land was agreed by the parties to be $6.5 million (cl 2.1).
Prior to the subdivision occurring landfill was required.
The project manager was provided for by cl 6, which by cl 7 was to be Moltoni Holdings. By cl 6.2, Moltoni Holdings as “Project Manager” was to have the “day‑to‑day conduct of and control over” the joint venture activities. By cl 6.6, the project manager was entitled to the remuneration agreed with the Project Committee.
It should also be observed that by cl 2.6.2 each of the parties to the joint venture agreed that they shall “not deal with or otherwise do or omit to do anything which may adversely affect the value of the Joint Venture Assets, the Joint Venture or their interests in the Joint Venture”. The definition of “Joint Venture Assets” provided by cl 35.1 plainly includes the Bibra Lake land.
The applicants contend that by the receivers causing Moltoni Holdings as the project manager to give a notice to vacate to Happy Valley, it has thereby caused Moltoni Holdings to breach cl 2.6.2.
The receivers submit that the obligation created by cl 2.6.2 applies to Moltoni Holdings as a party to the joint venture, not as the “Project Manager” with the day‑to‑day control of the project.
Annexure 2 (which by cl 35.2.1 forms part of the JVA) creates an express obligation on Moltoni Holdings to arrange landfill, in the manner pleaded above. By annexure 2(a)(c), Moltoni Holdings is responsible for that cost. It might be noted that the substance of annexure 2 was made the subject of the obligation of Happy Valley in the lease by Sch 1, item 9. In other words, Moltoni Holdings thereby contracted Happy Valley to do the work that enabled it to satisfy annexure 2 of the JVA.
It might be observed that, in those circumstances, even if might be said that Moltoni Holdings’ obligation under cl 2.6.2 is not as “Project Manager”, the obligation created by annexure 2 in respect of landfill would appear to be an obligation directly imposed on Moltoni Holdings and not merely a part of the project management responsibilities falling under cl 6. It is plainly not a joint venture cost to be allocated between the partners under cl 9.14.
In relation to the satisfaction of the annexure 2 condition, as noted, Moltoni Holdings entered into a lease with Happy Valley which was executed as a deed on 1 November 2005. The premises of the lease are defined to be those described in Sch 1. By item 1 they comprise the Bibra Lake land. By Sch 1, item 9, Happy Valley undertook to Moltoni Holdings to do work and on conditions that replicated annexure 2 of the JVA.
The period of the lease was for a term of three years, the commencement date being a date the tenant (Happy Valley) obtained a landfill permit and the landlord (Moltoni Holdings) obtained a survey as detailed in cl 1.1 of the lease. It is apparent from the affidavit of Mr Levitt made 28 March 2013 at [7] that the commencement date is accepted all round by the parties to have been 12 December 2005.
Happy Valley’s duty to pay rent under the lease arose under cl 1.4, which was to pay rent monthly in arrears. The lease therefore ran for three years, expiring on 12 December 2008. The only provision for extension of the lease was contained in Sch 1, item 6, which simply provides:
Period of extension: 12 months.
Period of additional extension: 12 months.
There is no evidence about such extension periods having been taken up, but even if they were they would only have added 24 months to the initial expiration period, and so would have concluded no later than 12 December 2010.
The rent payable under the lease is not a particular sum, in that it is not fixed. Item 3 of Sch 1 provided that the rent payable was 25% per annum of the tipping fee, subject to a minimum of $3.12 per cubic metre of landfill delivered to the premises payable in arrears by equal monthly instalments. Provision was made for adjustment or review of rent at 12 monthly intervals thereafter.
In effect, what was contemplated by the lease was that Happy Valley would charge a tipping fee for receiving landfill on the Bibra Lake land and was obliged to compact the landfill as part of its landfill permit and in that way that enabled Moltoni Holdings to satisfy its Sch 2 obligations under the JVA.
A suggestion is made in [8] of the affidavit of Mr Levitt, however, so far as rent payment is concerned, that there was some arrangement entered into to extend the occupation of Happy Valley rent free at some point in time after the lease expired. Objection is made to the affidavit evidence of Mr Levitt in [8] of his affidavit of 28 March 2013.
The receivers contend the information given is completely objectionable on the application of the Moltoni parties for summary judgment because it cannot satisfy the requisite standard of persuasion. The receivers say it is also objectionable because of its conclusionary basis and that applies equally as an objection to the use of the evidence on the application by the receivers to summary judgment on the cross‑claim.
The evidence, in substance, as the receivers submit, is that Mr Levitt says he has been informed by Mr Moltoni and believes that Moltoni Holdings in its capacity as project manager permitted Happy Valley to remain in occupation. I accept the submission made that nothing is stated about how that permission was granted, what was said between whom in order to reach such an agreement. It is entirely conclusionary. At the very least, very little weight should be given to such evidence given the lack of cogency in circumstances where one can rightly expect the relevant parties (Moltoni Holdings and/or BLI) to put on detailed evidence to support the assertion made.
If it were strongly being asserted that Happy Valley had some clear basis to retain possession of the Bibra Lake land pursuant to some agreement with Moltoni Holdings, then more reliable evidence than this conclusory assertion should have been provided. The issue, at the time of the summary judgment applications, was an important one, yet the only evidence offered is that by the solicitor, Mr Levitt, saying what Mr Moltoni asserted, but without any detail to support it. Was it made orally or in writing? It is not said. No consideration for any subsequent agreement following the holding over of Happy Valley following the expiration of the lease is discernible. While evidence of information and belief, that is to say hearsay, may be used in an interlocutory proceeding such as this, its utility and cogency must always be measured by reference to the basis of the belief. Nothing of any substance is offered to support [8] and I disregard the broad claim that there is a reasonable basis to the claim of some right beyond a tenancy at will in Happy Valley to remain in occupation of the Bibra Lake land.
In my view, the arrangement referred to in [8] of Mr Levitt’s affidavit was terminable at will by Moltoni Holdings and no other agreement, understanding or contract is reasonably open on the evidence. There is no contest of a factual nature that reasonably arises on the evidence before the Court to suggest any other possibility is reasonably open.
As to the “agreement” referred to in (b) of [8], I accept the objections made about that evidence. As to its substance it simply appears to be a statement that Moltoni Holdings had the approval of its joint venture partner, BLI, to allowing Happy Valley to remain in occupation after the lease ended, without the payment of any rent or interest on rent, for the reason set out in (c).
The question remains as to what interference with the contractual relationships might be said to be raised on these facts.
In Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156; (2012) 207 FCR 220 at [88], the Full Court said the tort of inducing a breach of contract consists of the following elements:
(1)there must be a contract between the applicant and a third party;
(2)the respondent must know that such a contract exists;
(3)the respondent must know that if the third party does, or fails to do, a particular act, that conduct of the third party would be a breach of the contract;
(4)the respondent must intend to induce or procure the third party to breach the contract by doing or failing to do that particular act;
(5)the breach must cause loss or damage to the applicant.
In this case, it is said by the applicants that the relevant contract is that between Moltoni Holdings and Happy Valley.
It is then said it is reasonably clear that the respondents, the bank and/or the receivers, knew that the contract existed at material times.
The question which centrally arises is whether the bank and/or the receivers knew that if the third party, Happy Valley, did or failed to do a particular act, that conduct would be a breach of a contract between it and Moltoni Holdings.
Then, it must be shown, that the bank and/or the receivers intended to induce or procure Happy Valley to breach the contract by doing or failing to do a particular act.
In my view, in circumstances where, at best, Happy Valley had a right of occupation of the Bibra Lake land which was terminable at will, in circumstances where it was open to Moltoni Holdings to terminate that right on notice, it cannot be said that the giving of notice to terminate the right of occupation constitutes the breach of any contract between Moltoni Holdings and Happy Valley. It is but the exercise of an entitlement.
Whatever understanding there may have been between the joint venture partners concerning the terms by which Moltoni Holdings might have proposed to allow Happy Valley to remain in occupation and conduct landfill, it is irrelevant to the question of breach of the “contract” between Moltoni Holdings and Happy Valley.
While actionable interference may take a variety of forms when it comes to disabling, hindering or preventing a party from performing a contract, including physically detaining a contractual party, as the applicants submit, and depriving a contractor of his essential tools or physically preventing persons from entering premises to fulfil contractual obligations may also constitute the tort, as found in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 (Dollar Sweets) at 388, I do not find the analogy of Dollar Sweets and like cases to be of any particular assistance in relation to the facts and circumstances of this case. In Dollar Sweets a picket conducted by the defendant prevented the delivery of goods by truck of a supplier to a customer. It is understandable that the Court had no difficulty in finding that there was sufficient evidence of intentional interference with contractual relations in that case.
The present is not a case where the operator has been relevantly prevented from performing its contractual obligations to another party. Rather, its entitlement to occupation for its own purposes has been terminated pursuant to a right of termination at will. No other view is reasonably open on the evidence before the Court. What has occurred is consonant with the contractual arrangement, not discordant with it.
The further argument put that, by purporting to terminate the occupation right of Happy Valley, the bank and/or receivers have interfered in the performance of the JVA, an agreement between Moltoni Holdings and BLI, is in my view without foundation on proper analysis. Moltoni Holdings assumed certain landfilling obligations with respect to the Bibra Lake land to its joint venture partner, BLI, under annexure 2. Happy Valley is not a party to the joint venture. Moltoni Holdings has simply, whether in its capacity as manager of the joint venture or, most probably, in order to fulfil its obligations as a party in respect of annexure 2, engaged Happy Valley to conduct certain landfilling work. Initially, that engagement was pursuant to a lease. At all material times, however, the arrangement was pursuant to a permissive occupancy terminable at will under the holding over arrangement. In my view, it is not open to argue that by bringing to an end the permissive occupancy of Happy Valley, Moltoni Holdings by the receivers thereby interfered with the contractual relationship between the joint venture partners. It was at all times open to Moltoni Holdings to satisfy the annexure 2 obligation as it considered most appropriate. The termination of Happy Valley’s occupation does not interfere with the performance of Moltoni Holdings’ obligations under annexure 2, given the right of Moltoni Holdings to terminate that occupancy at will.
Finally, I consider that there can be little doubt that the receivers at material times acted as the agent of Moltoni Holdings in issuing the notice of vacation, thereby bringing to an end the permissive occupancy of Happy Valley.
While the applicants submit that at material times the receivers were in fact acting as agents for the bank, the receivers contest this view, having regard to the factual background. First, the applicants draw attention to what Mr Cane said in his affidavit dated 8 March 2013 at [63], namely that he was informed by the receivers and believes that Happy Valley has occupied the Bibra Lake land for the duration of the receivers’ appointment to date. Then, at [64], he states that in or around November 2012 “the Receivers sought Westpac’s approval to instruct Lavan Legal to issue a notice to Happy Valley requiring them to vacate the Bibra Lake properties. Westpac provided approval to the Receivers around 20 November 2012”. The applicants draw attention to the pleading, at [18(i)], which alleges that the notice to vacate was served by Lavan Legal on behalf of Westpac and the receivers.
Senior counsel for the applicants contests the correct legal analysis to be made of a situation in which a mortgagee and receivers act where the receivers seek approval to instruct a firm of solicitors to issue a notice and the mortgagee approves of that course and then the notice is issued; and the notice issued by the solicitors asserts that they act for both the mortgagee and the receivers.
In this regard, the applicants rely on American Express, as noted above, at [60]. In particular, attention is drawn to what was there said to the effect that the mortgagee is not responsible for what a receiver does while he is the mortgagor’s agent unless the mortgagee directs or interferes with the receivers’ activities.
Senior counsel for the applicants submits that the request for and giving of the approval and the issuing of the notice signed by the solicitors on behalf of each party means there is an arguable case that the mortgagee has directed or interfered with the receivers’ activities and the receivers thereby did not act as the agent of Moltoni Holdings.
I accept, however, the submissions made on behalf of the receivers, that plainly the bank as appointor has a role to play in relation to the conduct of the receivership. The deed of fixed and floating charge between Moltoni Holdings as chargor and the bank by cl 8.5 expressly provides that the receiver shall be the agent of the chargor and the chargor shall be solely responsible for the receiver’s acts and defaults and the remuneration of the receiver, except to the extent that:
(1)this is not lawfully possible subsequent to the commencement of the winding up of the chargor; or
(2)the bank at any time so determines including, without limitation, upon appointment of the receiver, in which case, and to such extent only, the receiver shall be the agent of the bank.
There is no evidence of any such determination having been made.
The conventional position is that the receiver is the agent of the chargor or mortgagor, as American Express states at 568. It then refers to what the situation is if the mortgagor is put into liquidation and the agency terminates, namely, that if the receiver continues to act he does not automatically become the agent of the mortgagee, but he may become so if the mortgagee treats him as such.
In American Express, on the facts, the Court found that there was a liquidation on 18 February 1982. Thus, the discussion to which the applicants draw attention was about the circumstances in a post‑liquidation circumstance where the bank constituted the receiver its agent. About that, as the report goes on to show, there was no factual dispute.
In the present circumstances, however, as senior counsel for the receivers put it, we are not in a liquidation scenario and the involvement of the bank as appointor in relation to decisions taken by the receiver does not alter the legal character of the agency of the receiver, as provided for in cl 8.5 of the charge. I accept that is so. There is, in my view, no realistic prospect of any other view being adopted at a trial. No further evidence is likely to bear on the issue; certainly no facts are in contest to suggest there is a reasonable prospect of the applicants’ case succeeding on this point.
So far as the breach of duty claim is concerned, the applicants rely first on the pleading at [46] of the statement of claim that, in relation to the Bibra Lake land, a breach of duty is to be found in the receivers joining with Westpac in sending the letter of 20 November 2012, serving the notice to vacate, making the Threats and the other pleaded conduct “in order to terminate the lease and/or licence and cause Moltoni Holdings no longer to receive the benefit of Happy Valley carrying out the landfill operations at its own expense, with reckless disregard to the obligations of Moltoni Holdings under the contract, and so as to sacrifice the interests of Moltoni Holdings in the Bibra Lake Joint Venture recklessly”.

While the receivers submit there is no pleaded allegation of bad faith, senior counsel for the applicants reasonably observes that a pleading of “reckless disregard” fits into that category.
As to the receivers’ submission that, in any event, there can be no relevant loss of a benefit as the development application had lapsed and the extraction licence was about to lapse, the applicants submit those matters are distractions as there is still a lost opportunity to complete the development which, when looked at with all of its possibilities and probabilities, includes a prospect of the development approval being renewed and the licence being renewed.
It is submitted they are matters including as to damages that should go to trial for determination.
In my view, the allegation of bad faith or reckless disregard in [46], having regard to the finding above that the receivers as the agents of Moltoni Holdings were entitled to terminate at will the possession of Happy Valley in respect of the Bibra Lake lands, significantly answers the reckless disregard question. This is particularly so in light of the fact that there is no doubt that the relevant development approval had lapsed and the extraction licence was about to lapse. It is not to the point, in those circumstances, that such approval and licence may have been renewed. The question is whether, in those circumstances, it could possibly be argued that the decision to terminate the occupation of Happy Valley was either reckless or made in bad faith. In my view, there is no reasonable prospect in these factual circumstances of such a case being made out.
In respect of the Fyansford Green Development, the Moltoni Group draw attention to the Sale Agreement in respect of the Fyansford properties, effected by the receivers, and in particular cl 16.1, which is in the following terms:
16.1If the Vendor is, or is deemed to be, prevented from complying with any of the provisions of this Agreement, whether express or implied, on or before Completion for any reason, including:
16.1.1As a consequence of any proceedings issued, the terms of any judgment given, or order made, against the Vendor or the Receivers in or by any court on or before Completion; or
16.1.2As a consequence of the act or omission of any person having or claiming to have any right, title or interest to or in the Land (including the lodging by or on behalf of that person of a caveat, warrant or memorial against the title to the Land),
The vendor may (at its sole discretion) and without in any way being obliged to compensate the Purchaser:
16.1.3Delay completion for any period not exceeding 90 days by notice in writing to the Purchaser, in which event the Completion Date shall be a last day of the period specified in such notice; or
16.1.4Exercise and enforce the rights and powers referred to in clause 16.3.
The applicants contend the clause does not meet and satisfy the pleaded representation in [53] of the statement of claim, to the effect that neither Westpac nor the receivers would cause any contract to be entered into for the sale of the securities at Fyansford Green without the contract containing provisions that protect and preserve the equitable rights of redemption, including the right of Moltoni Corporation to terminate any such contract with no damages in the event of refinance.
Senior counsel for the applicants submits that the clause in question just does not do that. It does not provide a right to terminate with no damage in the event of refinance. It gives some powers to the receivers but nothing more and they are wholly dependent upon the vendor being prevented from, or deemed to be prevented.
Senior counsel submits that if there are shades of meaning and shades of discretion which may or may not be exercised, leaving the decision entirely with the receivers, then one has got a breach and says that, without determining that question, the primary question is ripe for determination and that this is a case where there are complex facts, which in turn have disputed questions of fact, where the final determination will turn on subtleties such as who is to be believed, the Court’s assessment of reliance, opportunities and the like.
I accept the submission made by senior counsel for the receivers, however, that the Sale Agreement is not a contract to which the receivers are a party. The contracting party is Moltoni Holdings. The right achieved is that of the company to be exercised by whomsoever is in control of its affairs. In that regard, cl 15.2.1 contains an acknowledgement by the purchaser that the “Purchaser is not contracting with the Receivers personally but rather with the Vendor”.
I also accept the point made by senior counsel for the receivers that the other party to the contract has not been joined in the proceeding and there is no evidence to suggest that any contrary construction is advanced to the one put on behalf of the receivers.
I also accept that the evidentiary basis for the representation pleaded at [53] is to be found in the letter from Lavan Legal to Levitt Robinson Solicitors dated 23 October 2012 (exhibit 2) at [16], where it is stated in respect of the topic “No sale of Fyansford”:
While the Receivers do not agree to ‘not enter into any binding agreement’, the Receivers will ensure that any agreement that they enter into will contain (amongst other things) provisions that protect and preserve your clients’ equitable right of redemption, such that if your clients were successful in obtaining refinance, that contract could be terminated with no damages payable by our clients or Moltoni Corporation.
I accept, as submitted on behalf of the receivers, that the representation only has meaning in the event the Moltoni Group were “successful in obtaining refinance”. There is no pleading that they even attempted to obtain finance. There is simply no possible question of breach. In any event, I accept the submission made on behalf of the receivers that the Sale Agreement protected or provided for that refinance circumstance in any event.
But it must also be noted that by cll 16.3, 16.4 and 16.5 of the Sale Agreement, headed “Vendor may terminate”, the following was agreed:
16.3If clause 16.1 or 16.2 applies the Vendor may terminate this Agreement by notice in writing to the Purchaser, in which event this Agreement shall be terminated upon the giving of such notice to the Purchaser.
16.4 Each of the following applies from the date of giving the notice in cl 16.3:
16.4.1Subject to clause 16.5, each party is relieved of any further obligation under this Agreement other than under clause 26, which will survive termination; and
16.4.2All money received by or on behalf of a party before that time must be refunded in full.
16.5The termination under clause 16.3 does not affect accrued rights arising from any breach of this Agreement occurring before the termination.
In my view, there can be no reasonable dispute with the construction of these clauses that is contended for on behalf of the receivers, namely, that if the Moltoni Group sought to refinance, then at the sole discretion of the vendor (because by cl 16.1 “If the Vendor is, or is deemed to be, prevented from complying with any of the provisions of this Agreement … on or before Completion for any reason …”) termination could occur. The receivers submit, that if there had been a claim made for the Moltoni parties to refinance, Moltoni Holdings controlled by the receivers could cancel the contract.
I accept the further submission that the other party to the Sale Agreement is not a party to this proceeding and there is no reason to consider that any different construction should be put on these provisions within cl 16 of the Sale Agreement.
Because of the breadth of the termination power on its face in cl 16 of the Sale Agreement and the fact that no refinancing request is shown ever to have been at any material time in order to make the representation pleaded in [53] at all relevant in this proceeding, I am satisfied there is no reasonable prospect of an argument succeeding that the receivers by completing the Sale Agreement in respect of the Fyansford Green land breached their duty to the mortgagor parties or recklessly sacrificed their interests in relation to that land.
In my view, while points may be, and have been raised, on behalf of the applicants as to why this is a matter that should go to trial because of alleged complex issues of fact and law, I am simply not satisfied, as stated above, that the issues of law and fact are, on closer analysis, either complex or reasonably in dispute.
This is a case where, when one regards a narrative of the undisputed events that occurred and actions taken and also has regard to what the parties now say, there is no reasonable prospect of the applicants resisting the actions of the bank and the receivers and it is appropriate that summary judgment should be entered in their favour; and that the application of BLI and Happy Valley for summary judgment, on their interlocutory application, should be dismissed.
CONCLUSION AND ORDERS
For the reasons given above, the bank and the receivers are entitled to summary judgment in the terms applied for. Additionally, the bank is entitled, in my view, to have the benefit of summary judgment on the receivers’ application in respect of what have been described as the pre‑contract claims. In that regard, there is no prejudice to the applicants because they were matters that were raised by the receivers’ application in any event: see Arcadia Holdings Pty Ltd v Brown (1997) 18 WAR 350 at 366.
The Court orders:
1.On the cross-claimants’ interlocutory application filed 8 March 2013:
a.Leave be granted pursuant to R 1.32 of the Federal Court Rules 2011 (Cth) to join the first cross-claimant as a claimant to the cross-claim.
b.Summary judgment be entered for the cross-claimants.
c.It be declared that the first and second cross-respondents have no legal entitlement to prevent the second and third cross-claimants exercising their powers as receivers and managers of the property of the first cross-claimant to cause the first cross-claimant to give or act upon a Notice to Vacate dated 20 November 2012, in respect of the following properties (Properties):
i.73 Miguel Road, Bibra Lake, Western Australia (certificate of title volume 1947 folio 919); and
ii.Lot 451 Railway Parade, Bibra Lake, Western Australia (certificate of title volume 1895 folio 282).
d.It be declared that the Notice to Vacate, given by the second and third cross-claimants (as agents for the first cross-claimant) to the first cross-respondent is legally valid and effective.
e.It be declared that the first cross-claimant is immediately entitled to vacant possession of the Properties.
f.It be ordered that the first cross-respondent immediately give the first cross-claimant vacant possession of the Properties.
g.The first and second cross-respondents pay the costs of this application and the costs of the cross-claim, to be taxed if not agreed.
2.On the fourth and fifth respondents’ interlocutory application filed 8 March 2013:
a.Summary judgment be given in favour of the fourth and fifth respondents dismissing the claims of the applicants contained in the following parts of the further amended originating application:
i.The claims in [7], [8] and [13];
ii.The claims in [9], in so far as these claims are based upon the allegations contained in [45]-[47] of the further amended statement of claim.
b.The first and second cross-respondents pay the costs of this application and the costs of the claims which are dismissed, to be taxed if not agreed.
3.On the sixth and seventh applicants’ interlocutory application filed 3 May 2013:
a.The application be dismissed.
b.The sixth and seventh applicants pay the first, fourth and fifth respondents’ costs of the application, to be taxed if not agreed.
4.On the first and second respondents’ interlocutory application filed 6 May 2013:
a.Summary judgment be given in favour of the first and second respondents on the following parts of the further amended statement of claim:
i.The claims in [11]-[20];
ii.The claims in [36]-[39] and [42]-[44];
iii.The claims in [48]-[52].
b.The applicants pay the first and second respondents’ costs of the application, to be taxed if not agreed.

I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.
Associate:
Dated: 20 December 2013

Citation:	Moltoni Corporation Pty Ltd v Westpac Banking Corporation [2013] FCA 1424
Parties:	MOLTONI CORPORATION PTY LTD ACN 009 018 571 (RECEIVERS & MANAGERS APPOINTED), MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED), MOLTONI NO 1 PTY LTD ACN 079 113 698 (RECEIVERS & MANAGERS APPOINTED), ROBERT CHARLES MOLTONI, BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405 and HAPPY VALLEY RESOURCES PTY LTD v WESTPAC BANKING CORPORATION ACN 007 457 141, ST GEORGE FINANCE LTD ACN 001 094 471, ERNST & YOUNG TRANSACTION ADVISORY SERVICES LTD ABN 87 007 599 844, VINCENT ANTHONY SMITH and ADAM PAUL NIKITINS; MOLTONI HOLDINGS PTY LTD ACN 050 983 657 (RECEIVERS & MANAGERS APPOINTED), VINCENT ANTHONY SMITH and ADAM PAUL NIKITINS; HAPPY VALLEY RESOURCES PTY LTD ACN 110 865 408 and BIBRA LAKE INVESTMENTS PTY LTD ACN 126 077 405
File number:	NSD 1976 of 2012
Judge:	BARKER J
Date of judgment:	20 December 2013
Catchwords:	PRACTICE AND PROCEDURE – applications for summary judgment – whether misleading and deceptive conduct claim has reasonable prospect of success – whether intentional interference with contractual relations claim has reasonable prospect of success – whether breach of duty by receivers claim has reasonable prospect of success – whether issues of fact and law that should be determined at trial
Legislation:	Corporations Act 2001 (Cth) s 127 Federal Court of Australia Act 1976 (Cth) s 31A Trade Practices Act 1987 (Cth) s 52 Federal Court Rules 2011 (Cth) R 26.01
Cases cited:	American Express International Banking Corp v Hurley [1985] 3 All ER 564 Arcadia Holdings Pty Ltd v Brown (1997) 18 WAR 350 Cutler v McPhail [1962] 2 QB 292 Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156; (2012) 207 FCR 220 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 Lictor Anstalt (a company) v MIR Steel UK Limited [2011] EWHC 3310 (Ch) Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310 O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 O’Brien v Dawson (1942) 66 CLR 18 Owston Nominees (No 2) Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 Rustic Haven Sdn Bhd v The Ravenswood Resort Pty Ltd [2005] WASC 88 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 State Bank of New South Wales v Chia [2000] NSWSC 552; (2000) 50 NSWLR 587 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Date of hearing:	7 May 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	217
Counsel for the Applicants:	Mr J Kelly SC, Mr S Wells and Mr N Furlan
Solicitor for the Applicants:	Levitt Robinson Solicitors
Counsel for the First and Second Respondents:	Mr S Dharmananda SC and Ms C Garde
Solicitor for the First and Second Respondents:	Lavan Legal
Counsel for the Fourth and Fifth Respondents:	Mr J Thomson SC and Mr M del Gallego
Solicitor for the Fourth and Fifth Respondents:	King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1976 of 2012

JUDGE:	BARKER J
DATE OF ORDER:	20 DECEMBER 2013
WHERE MADE:	PERTH

JUDGE:	BARKER J
DATE:	20 DECEMBER 2013
PLACE:	PERTH