Sinclair, Raymond Arthur George v W.R. Carpenter Australia Pty Ltd

[1983] FCA 316

Re: RAYMOND ARTHUR GEORGE SINCLAIR AND HELEN ERICA SINCLAIR
And: W.R. CARPENTER AUSTRALIA PTY. LIMITED (1983) 76 FLR 120
QLD G71 of 1983
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

PRACTICE AND PROCEDURE - ESTOPPEL - motion for summary termination or stay of proceedings under Part V of the Trade Practices Act - prior State Supreme Court judgment for specific performance - unnecessary to consider whether relief claimed by the applicants in the Federal Court unavailable by reason of the Supreme Court's judgment and findings - reliance upon misrepresentation, unconscionable conduct and Part V of the Trade Practices Act as defences in Supreme Court proceedings for summary judgment for specific performance - provision in contract whereby the applicants acknowledge that no representation by vendor or vendor's agent was relied on except as set out in the contract - application of doctrines of estoppel - res judicata - issue estoppel.

Federal Court Rules

Practice and Procedure - Estoppel - Motion for summary termination or stay of proceedings under Pt V of the Trade Practices Act - Prior State Supreme Court judgment for specific performance - Unnecessary to consider whether relief claimed by the applicants in the Federal Court unavailable by reason of the Supreme Court's judgment and findings - Reliance upon misrepresentation, unconscionable conduct and Pt V of the Trade Practices Act as defences in Supreme Court proceedings for summary judgment for specific performance - Provision in contract whereby the applicants acknowledge that no representation by vendor or vendor's agent was relied on except as set out in the contract - Application of doctrines of estoppel, res judicata, issue estoppel - Trade Practices Act 1974, (Cth), Pts V and VI - Federal Court Rules 1979.

HEADNOTE

By a contract in writing dated 21 August 1981 the applicants agreed to purchase from the respondent a residential unit in a mixed residential and commercial development.

They knew that the development was to proceed in stages but claimed that they had been led to believe that all the facilities in the development would be completed prior to or soon after the date for completion of their contract of purchase, and that they would not have contracted to purchase the unit but for their belief concerning when the facilities were to be constructed.

On 4 February 1983 the respondent commenced proceedings for specific performance in the Supreme Court of Queensland and obtained summary judgment on 10 June 1983.

No appeal was lodged but on 7 September 1983 the applicants applied to the Federal Court for an order declaring the contract void ab initio, repayment of their deposit, an injunction to restrain the respondents from taking any steps to enforce the order of the Supreme Court among other orders.

The respondents then applied for an order that the proceedings in the Federal Court be dismissed or permanently stayed by reason of the judgment which had been given in the Supreme Court.

Held: (1) The Supreme Court had jurisdiction to decide the claim made to it by the respondents.

Stack v. Coast Securities (No. 9) Pty Ltd; Force v. Bargal Pty Ltd (1983) 57 ALJR 731; D.M.W. v. C.G.W. (1983) 57 ALJR 144, applied.

(2) Notwithstanding a Supreme Court judgment for specific performance, the Federal Court is able to continue with claims under the Trade Practices Act 1974.

Stack v. Coast Securities (No. 9) Pty Ltd; Force v. Bargal Pty Ltd (1983) 57 ALJR 731, applied.

(3) Respondent's motion dismissed.

Observations upon the applicability of the doctrines of estoppel, res judicata and issue estoppel.

(4) On an investigation into whether conduct constitutes contravention of Pt V of the Act the court is not required to confine attention only to what was said and done and to ignore what was not said and not done or other surrounding circumstances.

(5) In general at least, it should be left to the Supreme Court to control litigation commenced before it and the Federal Court should not prevent or impede the prosecution of proceedings in the Supreme Court by the grant of an injunction against one of the parties.

(6) There may be an overlap between the issues which fall for determination in respect of federal and non-federal claims.

HEARING

Brisbane, 1983, October 19; November 2. #DATE 2:11:1983

J.A. Dowsett Q.C. and A. J. H. Morris, for applicants.

M. Cooke Q.C. and T.D. Martin, for respondent.

Cur. adv. vult.

Solicitors for the applicants: Overton & McSweeney.

Solicitors for the respondent: Elliott, Stubbs & Bonutto.

M.P.S.

ORDER

The respondent's motion is dismissed with costs to be taxed.

Orders accordingly.

JUDGE1

By a contract in writing dated 21 August 1981 the applicants agreed to purchase from the respondent for $120,000 a residential unit in the respondent's "Spinnaker Sound" development at Toorbul near Brisbane. A deposit of $12,000 was paid. The due date for completion in accordance with the contract was 9 December 1982 and time was made of the essence. Clause 8(d)(i) of the contract was in the following terms:

"The Purchaser acknowledges that he has not relied on any representation by the Vendor the Vendor's agent or any other person or persons or corporation in or about entering into this Contract other than as set out herein and that the conditions and stipulations hereof constitute the only agreement between the Purchaser and the Vendor."

"Spinnaker Sound" is a mixed residential and commercial development on a 50 acre site. The respondent says that it has always intended and still intends that the development consist of 10 residential stages and 7 commercial stages and be completed over a period of 5 to 10 years from the commencement of construction which occurred in about October 1980. Stages thus far completed, at a cost to the respondent of approximately $9M, are:
(a) Spinnaker Sound Stage A, consisting of 30 residential units;

(b) Spinnaker Sound Stage B, consisting of 33 residential units;

(c) The Promenade, consisting of 10 residential units and a showroom and ships chandlery, amenities block, kiosk, shipwright services, maintenance workshop, restaurant and mini-mart;

(d) the Marina, providing for 172 moorings, slipway, travel lift bay, dry boat pickup, and floating fuel dock;

(e) public car and trailer park, four lane boat ramp, picnic and bar.b.q areas and recreational parks; and

(f) a public road, known as Spinnaker Drive, and three-quarters of the access roadway together with all water, sewerage, electrical and telephone services and stormwater drains for the complete development."
A retirement village is planned but the respondent does not intend to commence construction until it has entered into a contract for the sale of the retirement village site and for the construction of the village. A planned bowling green and clubhouse to which purchasers of residential units in the development will have access is not to be constructed until the retirement village is constructed. Tennis courts, half-size tennis courts, squash courts and a tennis clubhouse including a sauna have not yet been constructed.

Prior to entering the contract to purchase a unit in Spinnaker Sound, the purchasers were provided with a copy of the promotional brochure which was then being distributed by the respondent and shown a layout-plan of the proposed development. Presently uncontroverted evidence of the male applicant, which is at least to some extent supported by evidence of the real estate agent with whom the applicants dealt, is that, by reference to the brochure and by what they were told and shown, the applicants were led to believe that all the facilities, including the squash and tennis courts, sauna, bowling green and clubhouse, would be "proceeded with concurrently with the construction of the residential units" and would be completed "contemporaneously with" the construction of the residential units and "prior to or soon after" the due date for completion of the applicants' contract of purchase. The applicants do not dispute that they knew that the development was to proceed in stages and that, for example, the retirement village would come later but say that it was represented to them that the amenities and facilities, particularly the sporting facilities, would be constructed when the units were built. There are also sworn assertions that the absence of the facilities diminishes the value of the unit which the applicants contracted to buy and that the applicants would not have contracted to purchase the unit but for their belief concerning when the facilities were to be constructed. The respondent's position is that, with the possible exception of the squash courts and an increase in the number of tennis courts, it is still intended to complete all stages of the Spinnaker Sound development in accordance with its original proposal and to include more facilities. No indication is given when the various facilities will be built. So far as the material available to this point reveals, it may not be until 1990.

So far as is indicated by the material before me, no suggestion of any misrepresentation or breach of the Trade Practices Act 1974 ("the Act") had been made by the purchasers when, on 4 February 1983, the vendor commenced proceedings for specific performance in the Supreme Court of Queensland by writ of summons No. 481 of 1983. However on 7 March 1983, an allegation was made by the purchasers' solicitors that s.53 of the Act had been contravened.

An application by the respondent for summary judgment for specific performance came on before Carter J. in the Supreme Court on 9 June 1983. His Honour had before him an affidavit by the male applicant in generally similar terms to his affidavit in these proceedings but no evidence from the real estate agent. His Honour delivered judgment in favour of the respondent on 10 June 1983. No appeal has been lodged by the applicant.

On 5 September 1983, the solicitor for the respondent spoke to the solicitor for the applicants and informed him that, if the applicants failed to complete that day, he had instructions from the respondent to proceed in the Supreme Court of Queensland immediately "to obtain Writs of Attachment in respect of each of the purchasers". On the same day, the applicants' solicitors wrote to the solicitors for the respondent indicating their intention to commence proceedings in this Court "claiming, inter alia, an injunction to restrain your client from proceeding to enforce the Order for specific performance".

The application by which these proceedings were commenced was filed on 7 September 1983. In it, the applicants claim an order declaring the contract void ab initio. repayment of the sum of $12,000 deposit either as damages pursuant to s.82 of the Act or as money had and received or pursuant to s.87 of the Act, damages pursuant to s.82 of the Act, an injunction to restrain the respondent from taking any steps to enforce the order of Carter J., and interest either pursuant to s.82 of the Act or "pursuant to the Common Law Practice Act of Queensland".

Pleadings have been exchanged pursuant to directions which I gave when the matter was first before me on 4 October 1983. In substance, the respondent does not dispute representations which accord with the brochure and layout plan but denies that any other representations were made and asserts further that they would have been unauthorised. There is disagreement between the parties as to whether, on a fair reading, the brochure and lay-out plan indicate that the facilities described and depicted were to be completed contemporaneously with the residential units, including the unit which the applicants contracted to buy. The respondent has not suggested that the applicants were informed how long the project might or was anticipated to take or that the facilities and amenities might not be constructed for some years. In substance, its position seems to be that the applicants were told nothing concerning when it was intended to construct the facilities and, presumably, that, even in those circumstances no inference as to the timing was to be drawn from what the applicants were given and shown, quite apart from what the applicants say that they were told. There are also factual disputes concerning inducement and whether, as a result of non construction of the facilities, the value of the unit which the applicants contracted to purchase is substantially less than would be the case had the facilities been constructed. Were the matter res integra, I would not be satisfied on the material before me, which is not identical with that which was before Carter J., that the applicants have not made out a sufficiently strong prima facie case in relation to these factual issues for the purposes of an interlocutory application. On an investigation into whether conduct constitutes a contravention of Part V of the Act the Court is not required to confine attention only to what was said and done and to ignore what was not said and not done or other surrounding circumstances.

The respondent's Defence also sets up and relies upon clause 8(d)(i) of the contract which the applicants by their Reply contend affords no defence to their claim in these proceedings. Whether such a clause could have evidentiary significance, for example by way of admission, or as a basis for a plea of waiver or estoppel, in proceedings for alleged contraventions of the Act does not yet seem to have been decided and no argument was directed to this question before me on the present occasion. However it may be noticed that with such clauses, as with exclusion clauses, the courts have limited their literal operation where necessary to avoid injustice (see e.g. Halsbury's Laws of England, Vol. 26 p.870 para 1614; Cheshire and Fifoot Law of Contract, 4th Australian Edition p.269 para 1030; Spencer Bower and Turner Estoppel by Representation 3rd Edition para 158); and in proceedings such as these the further question of course arises whether the Act itself is compatible with the operation sought to be given such a clause.

Finally, paragraphs 13-16 of the respondent's Defence are in the following terms:
"13. Further and alternatively the respondent says that the same issues of fact alleged in paragraphs 3 to 14 inclusive of the Statement of Claim were raised by the applicants in defence to a summary judgment application by the respondent in Supreme Court proceedings in Queensland commenced by Writ No. 481 of 1983 whereby the respondent sought specific performance of the contract referred to in paragraph 2 of the Statement of Claim." (Paragraphs 3 to 14 of the Statement of Claim contain, in effect, the elements of the applicant's case under the Act.)

14. On the 10th June, 1983 the Honourable Mr Justice Carter found that no representations such as alleged in paragraphs 3 and 4 of the Statement of Claim were made to the applicants.

15. His Honour decreed specific performance of the contract alleged in paragraph 2 of the Statement of Claim. The said Judgment was entered in the Supreme Court of Queensland on the 20th June, 1983 and no appeal has been lodged therefrom.

16. In the premises the applicants are estopped and precluded from maintaining their claim in this action against the respondent."
The applicants' answer to these contentions is stated in paragraphs 4-8 if their Reply as follows:
"4. The Applicants deny that the same issues of fact alleged in paragraphs 3 to 14 inclusive of the Statement of Claim were raised by the Applicants in defence to a summary judgment application by the Respondent in the Supreme Court proceedings in Queensland commenced by Writ number 481 of 1983 whereby the Respondent sought specific performance of the Contract referred to in paragraph 2 of the Statement of Claim, as alleged in paragraph 13 of the Notice of Defence.

5. The Applications deny that on the 10th day of June 1983 the Honourable Mr Justice Carter found that no representations such as alleged in paragraphs 3 and 4 of the Statement of Claim were made to the Applicants, as alleged in paragraph 14 of the Notice of Defence.

6. The Applicants admit the facts alleged in paragraph 15 of the Notice of Defence.

7. If the facts alleged in paragraphs 13 and 14 of the Notice of Defence are true, which is denied, the Applicants object in point of law to those paragraphs on the ground that the facts therein alleged do not raise a defence to the Applicants' claim in these proceedings, and the Applicants deny that they are estopped and precluded from maintaining their claim in this action against the Respondent as alleged in paragraph 16 of the Notice of Defence.

8. Further and in the alternative, if the facts alleged in paragraphs 13 and 14 of the Notice of Defence are true, which is denied, the Applicants say that the issues of the fact alleged in paragraphs 3 to 14 inclusive of the Statement of Claim insofar as they are relevant to the Applicants' claim herein were not within the jurisdiction of the Supreme Court of Queensland, and that the Honourable Mr Justice Carter had no jurusdiction to make any findings in respect thereto so as to bar or estop the Applicants from seeking relief pursuant to the Trade Practices Act."

The applicants initially applied for an interlocutory injunction to restrain the enforcement of the Supreme Court order until the determination of these proceedings of further order but that application has not been prosecuted to this point. For the moment, the applicants seem content to resist in the Supreme Court any attempt by the respondent to proceed further with the Supreme Court proceedings and with their right to apply to the Supreme Court for a stay. I have previously expressed the view, to which I adhere, that, in general at least, it should be left to the Supreme Court to control litigation commenced before it and that this Court should not prevent or impede the prosecution of proceedings in the Supreme Court by the grants of an injunction against one of the parties.

Presently before me, is an application by the respondent for an order that the proceedings before this Court should be dismissed or permanently stayed by reason of the judgment which has been given in the Supreme Court of Queensland.

It is clear from the recently delivered and as yet unreported judgments of the High Court in Stack and Ors v. Coast Securities (No. 9) Pty Limited and Force v. Bargal Pty Ltd that the Supreme Court had jurisdiction to decide the claim made to it by the respondent. If, in the course of determining the respondent's claim, it ruled on and rejected a defence based on Part V of the Act, its judgment as a judgment of a superior court of record would on any view of its jurisdiction be valid and binding until set aside or varied on appeal: see, e.g. D.M.W. v. C.G.W. (1983) 57 A.L.J.R. 144, 147, 2nd col. C-F.

In Stack, the High Court also held that, notwithstanding a Supreme Court judgment for specific performance, this Court is able to continue with claims under the Act. Two of the matters in Stack related to contracts in respect of which Coast Securities (No.9) Pty Ltd had obtained judgments for specific performance in the Supreme Court of Queensland. The Act had not been raised by way of defence in the Supreme Court proceedings and the Supreme Court judgments were under appeal. In the proceedings in this Court, orders were sought declaring the contracts void ab initio, for the refund of the deposits, for damages, and for injunctions restraining the enforcement of the Supreme Court judgments. The proceedings in this Court involved "non-federal" claims in addition to "federal" claims under the Act. The High Court remitted the proceedings in this Court to this Court for determination. However, the validity of the Supreme Court judgments was emphasised. Gibbs C.J. said that the Supreme Court judgments while they stand "render the matters which they decided res judicata". Mason, Brennan and Deane JJ. said: "The Supreme Court proceedings have resulted in judgments which, unless upset on appeal, constitute determinations of the non-federal issues which are binding on the parties". Wilson and Dawson JJ. spoke of issues which, by the Supreme Court judgments, had "been determined in a manner binding upon the parties". The context of the passages quoted was to provide guidance as to how this Court ought exercise its discretion whether or not to determine "non-federal issues" in the proceedings in this Court. The underlying assumption was that, however the discretion was to be exercised, this Court would determine the "federal claims" in respect of which it presently has exclusive jurisdiction, i.e., for present purposes, the claims to relief under Part VI of the Act in respect of alleged contraventions of Part V.

Any suggestion that it may be inconsistent with the exercise of a federal court's jurisdiction for a State court to determine issues identical to those falling for decision in the federal proceedings or to make an order which might conflict with relief claimed in the proceedings in the federal court seems implicitly rejected by the statements in Stack to which I have referred. However, the High Court, in Stack and Force, did not expressly address itself to the consequences, vis-a-vis federal claims, of any judgment or findings by a State court in respect of non-federal claims. There may be an overlap between the issues which fall for determination in respect of federal and non-federal claims; further, federal claims may conflict with orders made by a State court or may be inconsistent with determinations may be a State court in respect of "non-federal" issues. Some of the problems experienced or anticipated in the United States of America are referred to in an article entitled "The Collateral Estoppel Effect of Prior State Findings in Cases within Exclusive Federal Jurisdiction" (1978) 91 Harvard Law Review 1281, 1297ff. The most that can be said is that, in Stack and Force, no suggestion was raised by the High Court that all or some of the relief claimed in this Court might be unavailable by reason of the Supreme Court judgments for specific performance and/or any findings made as a foundation for those judgments.

In view of the conclusion at which I have otherwise arrived in the light of the way in which the matter has been pleaded and argued, it is convenient to pass over these questions without further comment and to approach the present motion as calling for no more than the application of established doctrines of estoppel, without consideration of whether any, and if so what, complications may or may not be introduced by the combination of "federal" and "non-federal" issues.

It was not argued that the applicants' present claims are res judicata; i.e. already the subject of adjudication adverse to the applicants. No claims under the Act were made as such in the Supreme Court proceedings. There is no basis for an argument that any causes of action which the applicants may have under the Act are merged in the Supreme Court judgment in favour of the respondent. I will deal further below with the applicants' reliance upon the Act as a defence.

In Port of Melbourne Authority v. Anshun Pty Ltd (1981) 55 A.L.J.R. 621, Gibbs C.J., Mason and Aickin JJ., said in a joint judgment when discussing what is known as the wider sense of estoppel for rem judicatam:
"It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In this respect, the discussion in Brewer v. Brewer (1953) 88 C.L.R. 1 is illuminating". (p.626 1st col. E)
Later, on the same page, they said at 2nd column B:
"The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By 'conflicting' judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction."

The respondent did not argue that all or any of the relief claimed by the applicants in these proceedings could not be granted because it would be inconsistent with the Supreme Court judgment for specific performance but, had it done so, I would consider that this motion for the summary termination or stay of proceedings in this Court is not an appropriate occasion for the consideration of such a question: cf Co-Ownership Land Development Pty Ltd v. Queensland Estates Pty Ltd (1973) 47 A.L.J.R. 519, 521, second column F per Walsh J., with whom Stephen J. agreed. To warrant the granting of the motion on the basis of such a conflict, I would have to be satisfied that it is very clear that the applicants have no claim which they are not precluded from pursuing. Unless so satisfied, the right course is for me to refuse the stay and to allow the question of estoppel to be resolved later in accordance with the normal course of the proceedings; ibid, p.522 first column A. The inappropriateness of ruling on any such question in these proceedings is emphasised by the wide range of possible courses which may yet be followed either in this Court or in the Supreme Court. For example, even if the Supreme Court judgment stands in the way of an order with respect to the rescission of the contract and/or the return of the deposit, it may not stand in the way of an order in favour of the applicants for damages, or prevent it being taken into account in the assessment of those damages that the applicant has been forced to complete a contract for the purchase of a unit at greater than its true value (if such be the case), or on any other basis necessary to ensure that the applicants receive a full indemnity in respect of any loss or damage suffered by conduct of the respondent. Further, it is by no means unlikely that, if the applicants continue to refuse to complete the contract, the Supreme Court itself may rescind the decree for specific performance and substitute an order for damages. In such event, any possible limitation upon this Court's power to grant relief would have to be determined by reference to that order of the Supreme Court, not the existing decree for specific performance.

In any event, in my opinion, it could not be successfully submitted in these proceedings that, whether considered as claims or defences, the applicants' claims under the Act are res judicata in the wider sense that they may not now be raised even if not disposed of in the Supreme Court proceedings.

In Port of Melbourne Authority, supra, the following passage appears in the joint judgment at p.626, 1st column C:
". . . we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject-matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject-matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings for example, expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v. County of Sac (1876) 94 US 351, at pp 356-357."
There is no possible basis which I can see upon which it could be concluded that the applicants could and clearly should have raised their allegations based on the Act in the Supreme Court proceedings and that it was unreasonable of them not to have done so. Other, perhaps more obvious, considerations aside, it is sufficient to have regard to the jurisdictional uncertainty which existed at the time when the summary judgment application was heard and determined in the Supreme Court. It may also be noted that the High Court in Stack made no mention of the possibility that the Supreme Court judgments rendered res judicata in any sense the federal claims which it remitted to this Court.

The substance of the case for the respondent on its present motion is that the judgment of Carter J. gave rise to issue estoppels. Such an estoppel may arise in respect of a decision on an issue of fact, of law, or of mixed fact and law. There is no present need to consider the competition between the views of Hutley J.A. in Ryde Municipal Council v. Lizzio (1982) 46 L.G.R.A. 431 at p.434, (reversed on another ground (1983) 57 A.L.J.R. 582) and those of Aickin J. in Queensland v. The Commonwealth (1977) 139 C.L.R. 585, 614-615 concerning whether there can be an issue estoppel in respect of a "bare" proposition of law. In the present matter, both the respondent's pleading and its argument focussed on findings of fact, or perhaps of mixed fact and law, which it was submitted were made by Carter J. in the Supreme Court. Such findings could create issue estoppels between the parties only in respect of ultimate facts, as distinct from mere evidentiary facts, which were directly, certainly and necessarily decided as the foundation of, and not merely collaterally to, his decision: see Port of Melbourne Authority, supra, and cases cited.

In his reasons for judgment in the Supreme Court, Carter J. after expressing himself as generally satisfied that the respondent had performed its part of the contract said that the defendants sought to avoid the judgment on two main grounds with which he would deal with in turn. He dealt firstly with a condition subsequent in the contract and held that a question relating to it did not raise a triable issue such that the applicants should have leave to defend on account of it. He then continued:
"Secondly the defendants by an affidavit of Raymond Arthur George Sinclair allege that there was made by or on behalf of the plaintiff a misrepresentation which induced the defendant to enter into the contract and that that representation was such that, in the circumstances, the defendants are entitled to avoid completion. It is necessary for me then to turn to the evidence to which I refer.
. . .
Given the nature of the brochure and the fact that the defendants read it, and reading together with its contents, paragraphs 5, 7 and 8 of the affidavit of the male defendant, it is not, in my view, clear that there is any sound basis for a finding that a representation was made by the plaintiff or any person on its behalf in terms which the deponents said 'were intended to be understood by me'. A comparison of what the brochure contained and of what is said to be the representation in paragraph 8 are not coextensive. In any event, the material makes it clear that the development was a very substantial one, with staged development relating to its various components. One block of units was complete and the foundation for the second had been laid at the relevant time. Many other features of the development remained to be established at the time the representation is alleged to have been made. In that context one would expect a clear and precise expression of the particular facilities which it was alleged would be completed contemporaneously with the completion date of the contract.

The material lacks both clarity and precision."
His Honour then set out clause 8(d)(i) of the contract and went on:
"That clause is really conclusive of the point relied on, in the absence of fraud. In this respect I am assisted by the judgment of Connolly J. in an unreported decision, Brisbane Unit Development Corporation Pty Ltd v. Robertson and Cates given on 19 May 1983."
After referring to a concession that there was no allegation of fraud, his Honour continued:
. . . In my view, the material relied on falls far short of asserting matters which could raise a triable issue that the contract was induced by the fraud of the plaintiff.

In any event, he submits that such matters should be said to raise an issue of unconscionable conduct on the part of the plaintiff such as might as a matter of discretion deny the plaintiff equitable relief. In my view, the material relied on does not suffice to deny the plaintiff's summary judgment on that account. Finally, it was said that the affidavit material and the brochure provided material which constitute a breach of Section 53A of the Trade Practices Act in that it contains false and misleading statements of matters such as are contained in Section 53A(1)(b). No serious attempt was made to develop this argument either with reference to the substance or with reference to the constitutional question to which it might give rise. I am not persuaded that the point is of substance sufficient to deny the plaintiff the judgment he seeks. With reference to the last matter I make two points. It was argued that the provisions of Section 53A of the Trade Practices Act should, with reference to a clause such as clause 8(d)(i) of the contract be treated and applied in the same way as the exception for fraud referred to in the judgment of Connolly J. I do not accept that, nor is there any authority to support it. Secondly, and, in any event, the mere raising of what might on its face appear to be a substantial question of law does not preclude a plaintiff from having judgment in a summary way. . . ."

Carter J. was critical of the applicants' material in support of its allegations against the respondent of misrepresentation and unconscionable conduct. Notwithstanding the nature of the proceedings in the Supreme Court, there might well be issue estoppels in relation to the factual ingredients of these defences were it possible to discern in his Honour's reasons as a separate basis for his decision that he rejected the applicant's evidence: cf. O'Mara v. Litfin; ex parte O'Mara (1972) Q.W.N. 32. However, having regard to the nature of the proceedings before Carter J., the fact that the evidence of the male applicant was uncontroverted, and, so far as appears, was untested by cross-examination, it cannot safely be concluded for present purposes that the evidence for the applicant was disbelieved or for some other reason rejected by his Honour or that there were findings of fact made adversely to the applicants. Consistently with the opinions which he otherwise held, it was perfectly appropriate for his Honour to accept for the purposes of the proceedings before him the factual assertions made by the applicants although I do not know that he went so far. As his Honour quite obviously recognized, at the point at which the applicants' assertions arose for consideration it was for the applicants, as defendants in the Supreme Court, to establish that there was an issue or question in dispute which ought to be tried or that there ought for some other reason be a trial of the action (R.S.C. Order 18A rule 3), and it was for the applicants to do so by affidavit or otherwise to his satisfaction (R.S.C. Order 18A rule 4(1)). His Honour seems to have considered that the factual assertions, even if established, did not support the defences of misrepresentation and unconscionable conduct and, particularly in relation to the former, he relied upon clause 8(d)(i) of the contract. He referred to the judgment of Connolly J. in Brisbane Unit Development Corporation Pty Ltd v. Robertson and Cates, unreported. The other members of the Full Court in that case, Douglas and Sheehan JJ., had agreed with the judgment of Connolly J., which was accordingly binding on his Honour.

A somewhat similar approach seems to have been adopted in relation to any possible defence based upon a contravention of Part V of the Act. Again, I am not satisfied that Carter J. made findings of fact adverse to the applicants. On the contrary, his Honour seems to have treated any question relating to the Act in the proceedings before him as a question of law. He was not persuaded that the point was "of substance sufficient to deny the plaintiff the judgment he seeks. . . . . the mere raising of what might on its face appear to be a substantial question of law does not preclude a plaintiff from having judgment in a summary way." The question or questions of law to which it is possible that his Honour was referring included "the substance", i.e., at least on one view, whether or not the applicants' allegations of fact, if accepted, amounted to a contravention of Part V, "constitutional questions" no doubt related to the extent of the Supreme Court's jurisdiction, and whether, in the absence of fraud, clause 8(d)(i) of the contract provided an answer where what was relied upon was not common law misrepresentation but a breach of the Act. Reading his Honour's reasons as a whole in the context of the nature of the proceedings which were before him, the substance of his decision seems to have been that, in the absence of a "serious attempt . . . to develop this argument" with respect to an alleged breach of the Act, the applicants as defendants had not satisfied the requirements of R.S.C. Order 18A, rule 3, irrespective of whether their evidence was accepted. His Honour was fully entitled to take the view that he required more than a passing reference to the Act before he was persuaded that it was both open for his consideration and afforded a defence on the merits.

The need for a real identicality of the issues in the different proceedings if issue estoppels are to be established was pointed to by the High Court in Co-ownership Land Development Pty Ltd, supra; see also Gipps v. Gipps (1974) 1 N.S.W.L.R. 259, 267 per Hutley J.A. In the former case, the High Court also emphasised the clarity with which it must appear that the precise issues have been necessarily and directly decided in prior litigation if proceedings are to be dismissed or stayed on the basis of issue estoppel. Consistently with those principles, I am not persuaded that there has been a determination of the Supreme Court of Queensland in relation to either a federal or a non-federal issue which gives rise to an issue estoppel against the applicants in these proceedings which justifies intervention at this point.

It does not follow, however, that the respondent's plea will necessarily fail at the trial. If, as I have assumed, the Supreme Court's judgment can give rise to estoppels in respect of the applicants' federal claims, the applicants may well face significant difficulties in the present proceedings. The respondent does not seem to dispute that its intention at the material time did not accord with the statements which, according to the applicants, were made. If the statements were made, it is not easy to see why the respondent's conduct was not unconscionable, although it may be a further question whether that would suffice to disentitle it to specific performance. Further, Carter J. in the Supreme Court, found that the respondent was not guilty of fraud. Such a finding creates an estoppel, even if based upon a concession: Kahn v. Golechha International Ltd (1980) 1 W.L.R. 1482. Given the respondent's acknowledged intention, it is not easy to comprehend why the statements were not fraudulent if made. In the context, it may prove difficult to distinguish between the essential ingredients of deceit at common law and a contravention under the Act: cf. Bill Acceptance Corporation Limited v. G.W.A. Limited, unreported decision of Lockhart J. delivered on 21 October 1983. However, there was no argument directed to these particular questions and, for the reason which I have given, it does not seem appropriate in the circumstances to express a concluded opinion upon them at this point of the proceedings.

Three further matters may be mentioned briefly. Firstly, I was informed that notices have been given under s.78B of the Judiciary Act 1903 but, in any event, I am satisfied that the present application did not necessitate the giving of such notices, whatever the position may be in respect of the proceedings overall. Secondly, no application was made to strike out the paragraphs in the respondent's defence which rely upon the Supreme Court judgment and I am satisfied that such a course is inappropriate. Other considerations aside, the issues thus raised will not involve any significant expansion of either the preparation for trial or the trial of these proceedings. Thirdly, it seems to me that it should be possible to prepare these proceedings for trial quickly and expeditiously in view of the steps which have already been taken and the limited nature of the issues. Discovery of documents will be of limited scope and there is unlikely to be any need for extensive interrogatories, if there is any need for interrogatories at all. Much evidence is already on affidavit. I will hear the parties on what directions are appropriate and with respect to suitable dates for trial.

The respondent's motion is dismissed with costs to be taxed.