William Robert Wilson v Waigani Pty Ltd (ACN 005 481 818) and Ors (according to the attached Schedule)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0140

WILLIAM ROBERT WILSON	Applicant
v
WAIGANI PTY LTD (ACN 005 481 818) & ORS (according to the attached Schedule)	Respondents

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JUDGES:	FERGUSON CJ, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2019
DATE OF JUDGMENT:	15 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 153
JUDGMENT APPEALED FROM:	[2018] VSC 302; [2018] VSC 569 (Croft J)

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TRUSTS AND TRUSTEES – Unit trusts established for land development – Applicant and respondents unitholders – Applicant conducted businesses of trustee companies while respondents provided finance – Relationship between unitholders soured and applicant left businesses without redeeming unit holdings – Applicant sought to realise unit holding ten years later – Applicant and respondents entered into settlement agreements – Circumstances in which a settlement between trustee and beneficiary may be set aside – Trial judge found applicant had released respondents from all claims through releases – Whether applicant’s lack of full knowledge of circumstances of unit trusts rendered releases of claims unenforceable – Deed of Separation enforceable by respondents – Application for leave to appeal dismissed – Bullhead Pty Ltd v Brickmakers Place Pty Ltd (In liq) [2018] VSCA 316; Farrant v Blanchford (1863) 1 De G J & S 107; 46 ER 42 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Travis P Mitchell	Mills Oakley
For the Respondents	Mr Peter J Bick QC with Dr Charles O H Parkinson	HWL Ebsworth Lawyers

FERGUSON CJ
NIALL JA
EMERTON JA:

Overview

The facts in this application for leave to appeal stretch back decades. We will set out the facts, the issues and our consideration of them in some detail. This overview section is intended to give the reader a general understanding of what is at the heart of the proposed appeal before delving into that detail.

The applicant, Mr William Wilson (‘Wilson’), became involved in the purchase and development of land many years ago. In 1979, he was in financial difficulty and needed money. He approached David Geer (‘Geer’), a partner in the law firm Herbert Geer & Rundle (‘HGR’), which operated a mortgage lending practice through HG&R Nominees Pty Ltd (‘HGR Nominees’).

Wilson and Geer, along with two other HGR partners, Leon Gorr (‘Gorr’) and later Tom May (‘May’), formed a business relationship. The business structure predominantly involved two unit trusts (Deer Park Trust and Oupan Resources Unit Trust[1]) with corporate trustees (respectively, Waigani Pty Ltd (‘Waigani’) and Oupan Resources Pty Ltd (‘Oupan’)).
[1]Alternately referred to as the ‘Oupan Resources Trust’, we will refer to this as ‘the Oupan Trust’ and will refer to the two trusts together as ‘the Trusts’.

Wilson was responsible for managing the day to day operations of the businesses and the HGR partners and entities associated with them provided the finance. As well as the development of land, Oupan engaged in quarrying activities and tile manufacture.

After many years, the relationship between Wilson and the others soured. Wilson’s active involvement in the businesses came to an end in 1997. Ten years later, in 2007, the parties entered into a suite of documents to formally separate their interests. The terms of the 2007 settlement were initially set out in a letter dated 2 May 2007 which was drafted by Wilson’s lawyers. Among other things, the letter provided for the parties to grant full releases to each other. The set of agreements effecting the settlement of Wilson’s interests was signed by him on 13 July 2007. One of the agreements was a Deed of Separation which set out the terms on which the parties agreed to separate and release each other from any further claims. Part of the bargain was that Wilson surrendered his unit holdings in the Trusts and received properties for $1.5 million that were worth $3.9 million, and a payment of $3.375 million. This last amount was documented as a loan from Waigani to be repayable by Wilson out of future profits of the Deer Park Trust. The July agreements included a statutory declaration signed by Wilson in which he declared that Oupan was the beneficial owner of his interest in land being developed by Oupan known as ‘the Manning Land’.

In September 2012, Waigani commenced proceedings against Wilson claiming principal and interest based on the loan agreement that Wilson had executed as part of the 2007 settlement. Waigani discontinued this claim just under twelve months later. By then, however, Wilson had filed a counterclaim. His claims were predicated on the invalidity or rescission of the settlement agreements. He failed at trial.[2]
[2]Wilson v Waigani Pty Ltd & ors [2018] VSC 302, [257] (‘Reasons’).

Wilson now seeks leave to appeal. He accepts that he cannot succeed on appeal unless the settlement agreements are set aside. This application for leave to appeal essentially turns on whether the releases in those agreements prevent him from agitating alleged breaches of trust and seeking an account in respect of the Manning Land.

A trustee seeking to rely on releases given by a trust beneficiary in respect of a breach of trust must prove that the beneficiary had full knowledge of all the circumstances of the breach and their rights in respect of that breach. The degree of knowledge required is assessed by reference to the whole of the circumstances applying at the time the release was given and notions of fairness.[3]
[3]See [75]–[77] below.

Wilson alleges that he was the victim of material non-disclosures because Oupan failed to keep and provide him with accurate accounts that revealed breaches of trust. Before this Court, he principally relies on two alleged material non-disclosures. The first is in respect of a cheque for $11.3 million which was part of the proceeds of the 1993 sale of quarrying assets owned by Oupan. The amount was recorded in Oupan’s ledger for the financial year ending 30 June 1994. However, there was no evidence establishing where the funds went or how they were used. Wilson submitted (more than two decades after the event) that the money appeared to have simply ‘vanished.’

As will be seen in the more detailed sections below, we have concluded that Wilson knew what happened to the proceeds of sale, as at the time of the sale he was involved in the day to day running of Oupan’s businesses, he was a director of Oupan and responsible for the preparation of Oupan’s accounts, and he was personally interested in what was done with the proceeds from Oupan’s asset sales.

The second alleged material non-disclosure is in relation to what Wilson claims is a misstatement of the amount he owed Oupan at the time of the 2007 settlement. In short, he claims that just over $3 million (being an amount for cancellation of some of his units) should have been credited to his loan account. He says that had he been aware of all the facts relevant to his decision to settle, he may well have negotiated the 2007 settlement on an entirely different basis.

However, if anyone was in a position to know what Wilson’s loan balance was when he left the businesses in 1997, it was Wilson himself, as he was responsible for keeping the record of his drawings, as well as for keeping Oupan’s accounts more generally.

In all the circumstances, Wilson had the requisite knowledge to provide his fully informed consent to the settlement agreements. As a result, it would not be fair and equitable for him to be permitted to sue the trustees in respect of claims for breach of trust that he released when he entered into the settlement agreements.

Wilson also seeks leave to appeal against the indemnity costs order made by the judge. It was open to the judge to find that, in substance, Wilson’s case was one based on fraud for which there was no reasonable basis. It was also open to the judge to find that Wilson commenced and continued proceedings in wilful disregard of known facts and laws and without any proper basis. The judge’s discretion to award indemnity costs did not miscarry.

The application for leave to appeal must fail.

We will now turn to detail the facts and issues, and to set out our analysis.

The Trusts, the Manning Land and the Course of Events
Oupan

The Oupan Trust was established in 1980 as a trading trust. The Oupan Trust Deed conferred wide powers on the trustee to conduct business activities. Oupan bought, developed and subdivided land in and around outer western Melbourne and Bacchus Marsh, and established and operated several sand and rock quarrying plants in those areas. Oupan sold its quarrying assets in the early 1990s, culminating in a sale of assets to Queensland Cement Limited in 1993 for approximately $50 million. For a short period between 1994 and 1997, Oupan also operated a roof tile manufacturing business known as ‘Alice Roof Tiles’.

At all relevant times, Geer and Gorr were directors of Oupan. Wilson was a director of Oupan until 2001. Until he left the business in 1997, Wilson was also responsible for conducting Oupan’s day to day operations and employed several members of his family in this enterprise, including his wife, Jill, who ran the office.

Entities controlled by Geer, Gorr, May and/or Geer’s father, Charles Keith Geer (‘Geer Snr’, also referred to as ‘Keith Geer’ and ‘C Geer’) (collectively, the ‘HGR interests’) advanced funds to Oupan for the conduct and development of its businesses, while Wilson was responsible for its management. Wilson was also involved in negotiating and securing the sale of land and businesses owned and/or operated by Oupan.

The arrangement between Wilson and the HGR interests using the vehicle of the Oupan Trust was described by Geer in the following terms:

The structure of the arrangements with Mr Wilson and the commercial bargain in relation to Oupan to my observation was that the HGR interests supplied the finance (whether from HGR clients, HGR interests or commercial lenders) at market rates, Wilson used those funds in property investment, and once all loans and liabilities had been repaid, the unit holders stood to benefit from any profits to the extent of each person’s unit holding.

It was understood that the advances made by the HGR interests to Oupan would carry interest, but there was a dispute as to when, if at all, that interest would be paid or payable and what the rate of interest would be. The loans from the HGR interests sat on Oupan’s books as a non-current liability on the basis that the HGR interests would not require any interest or principal payments until Oupan was in a position to pay.

Wilson was a unitholder in the Oupan Trust together with entities controlled by Geer, Gorr and Geer Snr. Wilson initially held thirty of the ninety issued units. However, in 1982, he transferred nine units to certain trusts associated with Geer and Gorr in consideration for them guaranteeing a loan of $100,000 made to him. In 1994, Wilson redeemed a further twelve units for consideration of $3.171 million. He retained nine of seventy eight units in the Oupan Trust until 2007.

The Oupan Trust made no distributions to unitholders while Wilson was a unitholder. However, Wilson made significant drawings from the Oupan Trust on account of future profits. These drawings were recorded in Oupan’s accounts as a loan. The amount of the loan, and whether it was repayable, was in dispute at trial.

Waigani

The Deer Park Trust, of which Waigani was the trustee, owned about eighty hectares of grazing land in Deer Park (‘Deer Park land’). Wilson had acquired the Deer Park land in around April 1982 as a long-term investment on the basis that it had the potential to be subdivided for industrial use. Wilson and Geer agreed to enter into a joint venture to develop the Deer Park land. They agreed to put the land into a separate vehicle, the Deer Park Trust, because its development would be a long-term project requiring significant funds.

At all relevant times, Wilson held one-quarter of the issued units in the Deer Park Trust, the other unitholders being trusts associated with Geer, Gorr, May and Geer Snr. Geer and Gorr were at all relevant times the directors of Waigani and May became a director in 2007. Wilson was never a director of Waigani, but Oupan provided land development services to Waigani, which involved Wilson in its day to day operations until 1997.

Waigani borrowed from the HGR interests in order to develop the Deer Park land. The lending arrangement between the HGR interests and Waigani was that the rate of interest was to be fixed at the time of repayment at a commercial rate reflecting Waigani’s circumstances. Interest was ultimately charged at 18.75%. The amount of interest paid by Waigani to the HGR interests was in dispute at trial.

Waigani had no staff of its own. In addition to services provided by external contractors, Oupan provided services to Waigani for its land development and was paid management fees for those services. The amount paid by Waigani to Oupan for the management services was also in dispute at trial.

The Deer Park Trust made no distributions to unitholders while Wilson was a unitholder.

Manning Land

Apart from his interests in the Trusts, Wilson had, and continues to have, an interest in land held jointly with HGR Nominees known as the ‘Manning Land’. At trial, Wilson claimed to have retained a beneficial interest in the Manning Land, which was disputed by the HGR interests.

Wilson acquired the Manning Land in 1971 using funds borrowed from Boston Financial Limited (‘Boston’) as mortgagee. In December 1979, when he initially approached HGR for financial assistance, Wilson needed to raise $65,000 as a result of defaulting on the Boston loan. In March 1980, having raised the necessary funds from the HGR interests and with the consent of his trustee in bankruptcy, Wilson transferred half of his interest in the Manning Land to HGR Nominees.

In 1985, the Manning Land was converted to Torrens title land. However, by August of that year, the mortgage was once again in default. Boston wrote to Wilson and HGR Nominees demanding repayment of the principal sum of $293,186 and $615,393 in interest. There were discussions between Wilson and Geer that resulted in HGR Nominees acquiring the mortgage from Boston for $700,000, which was significantly more than the Manning Land was worth at the time. At the same time, and as part of the arrangements whereby HGR Nominees agreed to acquire Boston’s mortgage, HGR Nominees, Wilson and Oupan entered into an agreement titled ‘Joint Venture Agreement’ for the development of the Manning Land and the distribution of the profits, which, so the HGR interests contend, provided for the profits from the development of the Manning Land to be held entirely for the benefit of Oupan.

Thereafter, the Manning Land was treated as an asset of Oupan in Oupan’s accounts.

In 1992, Sandhurst Trustees granted Oupan a loan facility in the amount of $1,683,550 secured by a mortgage over part of the Manning Land. Later the same year, the facility was increased to $2,347,250. The mortgage over the Manning Land was assigned to HG&R Management Pty Ltd (‘HGR Management’) in 2000.

In around 2001, after Wilson had ceased to have an active role in the affairs of Oupan or Waigani, HGR Management served notices to pay on Wilson and HGR Nominees demanding immediate payment of all monies owing under the mortgage. Wilson ignored the demand. HGR Management took possession of the Manning Land and began selling off blocks of land as mortgagee in possession. The balance of the loan to Oupan was repaid by 26 February 2004, but the mortgage was not discharged.

Geer gave evidence that the mortgage was kept in place in case it was thought desirable to use the security to raise further funds.

Wilson leaves the businesses

Wilson ceased to have any active involvement in the Trusts and their businesses in 1997. Receivers were appointed to Alice Roof Tiles in December 1996 and the business was sold by the receiver in February 1997. In about September 1997, Wilson attended a meeting with Geer and Gorr, in the course of which, according to Wilson, ‘they made it clear that [he] was no longer required’. Following that meeting, Wilson did not take any steps to contact Geer or Gorr for several years, and ignored letters from HGR in 2001 which demanded repayment of the HGR Management loan secured by the Manning Land.

However, Wilson continued to hold nine units in the Oupan Trust and 25 units in the Deer Park Trust and to be a joint registered proprietor of the Manning Land. During the period that he remained a unitholder of the Trusts after leaving the businesses, Wilson was not provided with the accounts or any other information relevant to the affairs of the Trusts.

2007 separation and settlement

In 2007, Wilson was again in financial difficulty and sought to realise his interests in the Trusts and the Manning Land. He met at various times in late 2006 and in March and April 2007 with Geer, Gorr and others to discuss the value of his interests. In the course of negotiations, he was provided with draft management accounts for each of the Trusts for the financial year ending 30 June 2006 (‘2006 accounts’), along with some limited documentation, largely concerning the land holdings of Oupan and Waigani.

On 2 May 2007, Wilson’s lawyers drafted a letter setting out terms of settlement, which was signed by Wilson, Oupan, Waigani and the relevant HGR interests (the ‘May agreement’).

On 13 July 2007, Wilson signed a set of agreements effecting the final settlement of his interests, all of which were drafted by HGR’s lawyers and negotiated with Wilson and his lawyers. The settlement agreements comprised:

(a) a deed of separation and release, between Oupan, Waigani, Wilson, Applecross, Daydeb, HGR Custodian, Purus, Bradbelle, TS&G, Gorr, Geer, Geer Snr and May (‘Deed of Separation’);[4]
[4]Applecross, Daydeb, Purus, Bradbelle and TS&G are companies associated with Geer, Geer Snr, Gorr and May.

(b) a sale of units agreement between Wilson, Bradbelle and Waigani;

(c) a sale of units and share agreement between Wilson, Bradbelle and Oupan;

(d) an irrevocable power of attorney in favour of Bradbelle;

(e) an irrevocable direction to Waigani;

(f) a deed of indemnity between Wilson and Oupan;

(g) a deed of covenant and indemnity between Wilson, Waigani and Bradbelle;

(h) an option deed between Wilson, Bradbelle, Gorr and Geer;

(i) a loan agreement between Waigani, Wilson and Bradbelle; and

(j) three contracts for the purchase of land from Oupan,

(the ‘July agreements’).

Of the July agreements, the most important for present purposes is the Deed of Separation, which sets out the terms on which the parties agreed to separate and release each other from any further claims.

For ease of reference, and depending on context, we will refer to the May agreement and the July agreements as the ‘settlement agreements’, and the settlement effected by the settlement agreements as the ‘2007 settlement’.

As discussed, by the settlement agreements, Wilson surrendered his unit holdings in the Oupan Trust and the Deer Park Trust in consideration for which Oupan sold him properties for $1.5 million that were worth $3.9 million, and he received a payment of $3.375 million. This last amount was documented as a loan from Waigani to Wilson to be repayable by him out of future profits of the Deer Park Trust. The July agreements included a statutory declaration signed by Wilson in which he declared that Oupan was the beneficial owner of his interest in the Manning Land.

Post-settlement events

Between 2010 and 2015, Oupan distributed around $30 million to the remaining unitholders, being the HGR interests, in lieu of the loan principal and interest owing to them. Oupan continued to develop and sell land on behalf of the Oupan Trust, including parts of the Manning Land, which was treated as part of Oupan’s land bank. The development of the Deer Park land ceased after 2007 and the unsold balance of the land (approximately 20 hectares) was held for future development.

There was little, if any, contact between Wilson and the HGR interests until 2012.

On 19 September 2012, Waigani commenced proceedings against Wilson claiming principal and interest based on the loan agreement that Wilson had executed as part of the 2007 settlement. Waigani discontinued this claim just under twelve months later, on 26 August 2013. However, by then Wilson had filed a counterclaim seeking rectification of the loan agreement or, alternatively, rescission of the loan agreement, together with interest and costs.

Wilson’s claims

Wilson prepared and filed a number of amended counterclaims and joined further respondents through to 17 November 2017, which was the date of the Fourth Further Amended Counterclaim (‘FFACC’). Among other things, in the FFACC Wilson alleged breaches of trust by Waigani and Oupan arising from the payment of interest to the HGR interests and the payment of management fees by Waigani to Oupan, as well as by the act of entering into the 2007 settlement itself. In substance, Wilson sought orders removing Oupan and Waigani as trustees of the Trusts and for an account of the dealings of the Trusts, along with an account in respect of the Manning Land and an order restoring to him parts of the Manning Land that had not been sold.

Because the alleged breaches of trust were resolved by the releases in the settlement agreements, Wilson’s claims depended on the rescission or invalidity of the settlement agreements. He sought a declaration that the settlement agreements were void and an order that they be set aside pursuant to the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic) on the basis of allegedly false ‘trustee warranties’ in the Deed of Separation, upon which he claimed to have relied. He also asserted an entitlement to rescind the settlement agreements on the basis that he, as a beneficiary of the Trusts, was not fully informed by the trustees of all of the circumstances of the conduct of the Oupan Trust and the Deer Park Trust or in relation to the Manning Land. He claimed to have elected to rescind the settlement agreements.

Grounds of appeal

Wilson has raised the following proposed grounds of appeal:
1.… the primary judge misapplied the governing principles on which a beneficiary of a trust may set aside a settlement agreement with his trustee, and thereby erred in concluding Mr Wilson was not entitled to set aside the May and July agreements (the Settlement Agreements).
…
2.The primary judge erred in holding… that Mr Wilson was estopped by his conduct from rescinding the May and July agreements.
…
3.The primary judge erred in finding… that Mr Wilson’s inability to give restitutio in integrum precluded the rescission of the agreements.
…
4.The trial judge erred in concluding that Oupan did not act in breach of trust by:
(a)placing itself in a position of conflict, from which it preferred the interests of the respondents to the interests of Mr Wilson; and
(b)misstating the true position in respect of the $11.3m cheque and Mr Wilson’s loan account;
(c)failing to keep and render any, or any accurate books and records of the trust;
…
(d)erroneously concluding…that the breaches were caused by Mr Wilson and thus holding that Mr Wilson ‘cannot take advantage of his own wrong’.
5.The learned trial judge erred in concluding that Waigani did not act in breach of trust by:
(a)placing itself in a position of conflict, from which it preferred the interests of the respondents to the interests of Mr Wilson;
(b) making the Waigani Interest Payments;
(c)paying the Management Fees to Oupan; and
(d)failing to keep and render any, or any accurate books and records of the trust.
…
6. The primary judge erred in concluding…that Mr Wilson’s claims were barred by the Limitation of Actions Act 1958, laches and acquiescence.
…
7. The learned trial judge erred in denying Mr Wilson an account in respect of the Manning Land, despite it being uncontroversial that:
(a)Mr Wilson was at all times a registered proprietor;
(b)the document found to constitute the declaration of trust by Mr Wilson was not pleaded by the respondents, and in any event did not evidence the creation of a trust;
(c)the mortgagee in possession had sold sufficient land to discharge the secured debt, and then wrongly continued to sell land as mortgagee in possession; and
(d)the secured debt was primarily owed by Oupan, and the mortgage was a third party security.
8. The primary judge erred in rejecting the evidence of Denis Murphy.
…
9.The primary judge’s discretion miscarried in making an indemnity costs order against Mr Wilson in the circumstances of the case.
Wilson concedes that unless the settlement agreements are set aside, his claims against Waigani and Oupan cannot succeed. This means that he must first succeed on ground 1 if he is to pursue the remaining grounds arising from his claims for breach of trust against Waigani and Oupan.

Grounds 1, 2 and 3: Was Wilson entitled to rescind the settlement agreements?
The circumstances of the 2007 settlement

After Wilson was asked to quit his management role with Oupan and Waigani in 1997, he had little, if any, direct contact with Geer, Gorr or any of the other HGR interests until late 2006, when he found himself in financial difficulties. By early 2007, Wilson’s position was critical and the family home was about to be repossessed. On 22 March 2007, he and his lawyer, Steven Foale of Maurice Blackburn Cashman, went to meet with Geer and Gorr. Wilson told Geer and Gorr that he needed $50,000 the following day because he had some pressing payments to make. Geer promised to give him a cheque the next day. Wilson says that Geer and Gorr also agreed to put together all the information Wilson needed in order to calculate his interest in the Trusts.

The information requested by Wilson and provided by HGR was limited in scope: it included the 2006 accounts, the trust deeds for the two Trusts, the unit register for the Deer Park Trust and land tax assessments for 2007 for the Oupan Trust and the Manning Land. It was provided to Wilson under a covering letter dated 19 April 2007 from HGR which stated that the 2006 accounts were ‘draft management accounts only’, but that HGR was fairly confident they reflected the income derived and the expenditure incurred for the periods covered. However, the asset values in the balance sheets were overstated, as there was doubt about the recoverability of ‘large amounts owing from Alice Roof Tiles, investments in Alice Roof Tiles (Unit Holding), the value and existence of plant and equipment in both Waigani and Oupan Resources’. The letter warned that the accounts reflected ‘the historical cost carrying for these items’ and that they had to ‘be recast to reflect their true value today’.

Additionally, the 19 April covering letter confirmed that Wilson’s loan balance of $5,979,778 (recorded in the 2006 accounts) was derived from records kept by Wilson’s wife, Jill, with the help of Oupan’s internal accountant Mr Fred Michalski and that the work papers were included in the documents provided. Finally, the letter cautioned that not all interest due on loan accounts had been fully brought to account.

Wilson stated that he did the following with the information that was provided:

After I received the documents, I started to put together a proposal about what I might be willing to accept. At the time I was short of money, and had a number of creditors chasing me. I accepted the accounts given to me and what Geer and Gorr told me on 18 or 19 April as being truthful.

At a further meeting on 1 May 2007, Wilson told Geer and Gorr that he wanted his share of the Deer Park land development and that he wanted to buy two or three of the properties owned by Oupan. He identified three properties for which he said he would pay $1.5 million. As to the value of Wilson’s units in the Deer Park Trust, Geer told him that Waigani held 50 acres of land valued at eight to nine million dollars and offered to pay Wilson $3.375 million. Geer gave evidence that the focus of negotiations was the value of Waigani’s landholding, with Wilson arguing for a value of $100 per square metre and Geer contending for a value of half that amount.

On Wilson’s own account, he negotiated a settlement based on the value of land held by Waigani and, implicitly, the value of the properties owned by Oupan that Wilson had identified for transfer to him. Wilson stated that he believed he was getting his fair share of the remaining assets based on his unit holdings.

The terms of the settlement agreements

The May agreement is in the form of a letter drafted by Wilson’s lawyer, Mr Foale, the purpose of which was to set out ‘in broad terms’ the terms on which the parties had agreed to settle the outstanding issues between them. It was the parties’ intention that the terms of the May agreement be immediately binding but that they would be set out more fully in documentation to be completed (as it transpired, in the July agreements).

The May agreement set out the payments and other transactions to be made or entered into by each of Oupan and Waigani in favour of Wilson and by Wilson in favour of nominated parties. It stated that the precise form and structure of these transactions was to be determined once the parties had obtained legal, taxation and accounting advice. The May agreement continued:

The above terms are intended by the parties to be in full and final settlement of all of:
a.Bill Wilson’s interests and entitlements and those of any related party of Bill Wilson including without limitation the Wilson Family Trust in Waigani, Oupan, the Deer Park Trust, the Oupan Resources Trust and the Manning Trust, and the respective assets and income thereof; and
b.all rights and liabilities arising out of, or in any way related to, the past business dealings or other transactions between all or any of Waigani, Oupan, the Deer Park Trust, the Oupan Resources Trust, the Manning Trust, David Geer, Keith Geer, Anthony May, Leon Gorr and Bill Wilson, and any related party of any of the above named persons, including without limitation any trusts of which any of the above named persons is a trustee, director of a trustee company or a beneficiary;

and the parties will grant to each other full releases (including a release in respect of the loan alleged to be owing by Bill Wilson to Oupan).

As is apparent from the text, it was plainly the intention of the parties to the May agreement that the releases cover all rights and liabilities arising from their previous business association involving Waigani, Oupan, the Deer Park Trust, the Oupan Trust and the Manning Land and, in particular, that Wilson would not be entitled to make any further claims on any of the other parties to the May agreement in respect of his interests in either of the Trusts or the Manning Land. The payments and transfers from the Trusts and the HGR interests to Wilson specified in the May agreement would be the sum total of his entitlement to receive compensation for his interests.

The releases were confirmed and the form of the relevant payments and transactions was refined in the July agreements.

The Recitals to the Deed of Separation record, relevantly, the following:

A.For some time past the parties to this Deed have been involved in different capacities (whether as trustee, director, shareholder, or unitholder) in the conduct of the enterprises and affairs of the two unit trusts the Oupan Resources Trust (‘Oupan Resources Trust’) and the Deer Park Trust (‘Deer Park Trust’) (collectively called ‘the Unit Trusts’) and the companies that act as their trustee, Oupan (which company acts as trustee of the Oupan Resources Trust) and Waigani (which company acts as trustee of the Deer Park Trust) (collectively ‘the Unit Trust Trustees’).

…
C.A number of issues arose between the parties touching and concerning the affairs of the Unit Trusts and the parties agreed to resolve the issues by the separation of their interests in the manner generally described in a letter dated 2 May 2007 (‘Letter of Agreement’) a copy of which is annexed hereto and marked ‘A’ the terms of which were expanded, clarified and replaced with, the provisions of this Deed and by the Transaction Documents.
D.The parties are satisfied that this Deed and the Transaction Documents reflect the terms of their agreements and, subject to excluding such releases and obligations which the parties have under or in connection with this Deed and the Transaction Documents, the parties wish to otherwise release each other from further liability or claims in the manner set out in this Deed.[5]

[5]Emphasis omitted.

The ‘Transaction Documents’ are the legal documents effecting or recording the transfers, payments and declarations comprising the 2007 settlement.

In his statement of evidence filed in the proceeding, Geer described the substance of the arrangements in the Transaction Documents as follows:

(k) Waigani agreed to lend Wilson $3.375 million to be repaid from his future distributions from the Deer Park Trust;

(l) Wilson granted an option to Bradbelle (an entity controlled by Geer) to acquire his units in the Deer Park Trust for $30, which will be deemed to have been exercised on 30 June 2027 if not exercised earlier;

(m) Wilson mortgaged his units in the Deer Park Trust to Bradbelle and assigned all voting rights to Bradbelle;

(n) Oupan agreed to sell to Wilson four properties identified by Wilson with delayed settlement dates;

(o) Wilson agreed to sell his units in the Oupan Trust and his shares in Oupan to Bradbelle for a nominal amount;

(p) Wilson declared that he had held and would continue to hold specified properties (the Manning Land) on trust for Oupan and would transfer them to Oupan when requested to do so; and

(q) the parties granted mutual releases, and Wilson was released from repaying the debt owed to Oupan.

Although this merely reflects Geer’s understanding of the settlement agreements, it provides a useful summary of their effect, given that there is no controversy about the existence of the elements of the settlement referred to.

Clause 2 of the Deed of Separation contains an acknowledgement by the parties that the Deed of Separation and the Transaction Documents taken together replace the May agreement and that they set out the entire agreement and understanding between the parties as to the subject matter of the Deed of Separation and the separation of the interests of the parties.

Clause 4.2 contains an acknowledgement by the parties that the Deed of Separation and each of the transactions recorded in the Transaction Documents must be regarded as part of that overall agreement, that they are interrelated and none of them would have been executed and entered into individually but for the agreement to execute and enter into and complete each of them.

Clause 5.1 contains a release from Wilson in the following terms:

5.1      As from the Release Date Wilson:
(a)hereby absolutely and irrevocably releases and discharges each and all of:
(i)        Oupan;
(ii)       Waigani;
(iii)      Gorr;
(iv)     D. Geer;
(v)      C. Geer;
(vi)     May; and
(vii)     each of the Geer, Gorr and May Entities,
from each and every Claim howsoever arising which Wilson in any capacity whether in his own right or as trustee for the Wilson Family Trust:
(viii)    now has; or
(ix)      but for the execution of this Deed may have had,
arising from, or connected, or related to, any event or events that occurred prior to the Release Date and irrespective of when that Claim may arise (whether before, on or after the Release Date) save and except a Claim which is an Excluded Claim; and
(b)agrees not to bring or commence to seek or enforce any Claim described in paragraph (a) in any court, tribunal or body against any of the persons or entities referred to in sub-paragraphs (a)(i) to (vii) inclusive save and except a Claim which is an Excluded Claim;[6] and
[6]A ‘Claim’ is defined as ‘all claims, debts, allegations, suits, actions, demands, causes of action, claims for account and proceedings of whatsoever kind or nature and howsoever and whensoever arising and whether or not in respect of damages, expenses or losses or in respect of a breach of trust or of a fiduciary or other duty or obligation, whether or not arising under any statute and whether or not actual or contingent and whether or not of a direct or indirect or derivative nature’.
An ‘Excluded Claim’ is defined as any claim arising under the Deed and/or any of the Transaction Documents.
(c)indemnifies and agrees to keep indemnified each of the persons and entities referred to in sub-paragraphs (a)(i) to (vii) inclusive from and against:
(i)any and all Claims made by any Associate of Wilson arising from, or connected, or related to, any event or events that occurred prior to the Release Date and irrespective of when that Claim may arise (whether before, on or after the Release Date);
(ii)any Loss incurred by any of such persons or entities in any manner related to any such Claim;
(iii)any Loss incurred by any such persons as a result of or in any way connected with Wilson:
(A)not having full power and authority to enter into and perform any or all of the Transaction Documents; or
(B)not being capable of doing any or all of the things required to be done by him under any or all of the Transaction Documents; or
(C)not performing and observing any or all of his obligations under the Transaction Documents in the manner and to the extent contemplated by any or all of the Transaction Documents.

Clause 5.2 contains releases from each of Oupan, Waigani, Gorr, Geer, Geer Snr, May and each of the Geer, Gorr and May Entities[7] in the following terms. Each of them:

(a)hereby absolutely and irrevocably releases and discharges Wilson from each and every Claim howsoever arising which they or any of them (whether jointly or severally howsoever):
(i) now have; or
(ii) but for the execution of this Deed may have had,
arising from, or connected, or related to, any event or events that occurred prior to the Release Date and irrespective of when that Claim may arise (whether before, on or after the Release Date) save and except a Claim which is an Excluded Claim; and
(b)agrees not to bring or commence to seek or enforce any Claim described in paragraph (a) in any court, tribunal or body against Wilson save and except a Claim which is an Excluded Claim.
[7]Geer, Gorr and May Entities are defined to mean Applecross, Daydeb, HG & R Custodian, Purus, Bradbelle and TS & G Nominees.

Ground 1

The judge held that Wilson did not validly rescind the settlement agreements or otherwise succeed in having them set aside, and that they remained binding on him.

By Ground 1, Wilson alleges that the judge misapplied the governing principles on which a beneficiary of a trust may set aside a settlement agreement with his trustee. Wilson says that he was entitled to and did rescind the settlement agreements because the HGR interests did not inform him, before he entered into them, of relevant information about the affairs of the Trusts. He says that any release given by him is therefore ineffective.

Ground 1 is therefore based on an alleged failure by the HGR interests to make full disclosure of all relevant matters in order to obtain Wilson’s informed consent to the terms of the 2007 settlement, including the releases in the May agreement and the Deed of Separation. Wilson contends that the judge’s findings that he was not misled because of his previous involvement with the Trusts and that he could have requested further information are irrelevant, given the nature of the duty. He submits that the trustee’s onus is to establish that the beneficiary was fully informed of his or her rights and claims and he was not so informed.

The judge found that the evidence did not establish that anything material was withheld from Wilson in 2007. The judge said:

More particularly, in relation to the material circumstances, Wilson was not misled in that:
(a)Prior to 1997, Wilson had complete knowledge of the affairs of Oupan and Waigani, given his day to day control.
(b)Thereafter, Wilson could see what Oupan and Waigani were doing with their landholdings.
(c)In negotiating and concluding the May agreement and July agreements, Wilson had professional advisers and was given any information he sought about the trusts.
(d)During the negotiations, Wilson was told, correctly, that his units in Oupan were still worthless. It was only his units in the Deer Park Trust that had any value.
(e)Wilson was aware, by reason of (a) above and the provision of Oupan’s and Waigani’s draft financial accounts for the year ended 30 June 2006, of the non-payment of distributions, the payment of interest and management fees, the loans made to and used by the trusts, the identity of the lenders, and the financial position of each trust.
(f)He negotiated the settlement terms not by reference to the 2006 accounts or anything he was told, but by reference to a view that Oupan had missing money and to the value of Waigani’s land.
(g)Wilson threatened to litigate if a settlement could not be reached.
(h)Wilson settled on the basis that he released any claims against the trustees.
(i)On any view, Wilson reached a settlement worth far in excess of the value of his units in the Deer Park Trust. He suffered no loss.

Additionally, Wilson’s own evidence confirms that he was told the circumstances material to his decision to settle in 2007. Thus he said:
I would not have agreed to those terms of settlement if I had understood what the value of the remaining land was, and understood Oupan and Waigani’s true financial position. As I understood the deal, I was getting about my fair share of the remaining assets, based on my unit holding.

Wilson was told what his units in Oupan were worth, and about the land held by Waigani. He was then paid far more than his units were actually worth, as indicated in the preceding reasons. Moreover, even if the Court’s jurisdiction with respect to rescission is enlivened, I am of the view that the Court should not exercise its discretion in favour of rescission because none of the parties can be returned to their position as at May 2007…[8]

[8]Reasons [197]–[198] (citations omitted).

In response to this, the particulars of Ground 1 are as follows:

(a) The primary judge:
(i)asked whether Mr Wilson had been misled by representations; but
(ii)should have considered whether Mr Wilson had been fully informed about all relevant matters before giving his consent.

(b) The primary judge:
(i)asked whether Mr Wilson had been given all information that he sought; but
(ii)should have considered whether the trustee respondents had made transparent and full disclosure of all relevant matters.

(c)The primary judge should have found the following to be material non-disclosures vitiating the agreements:
(i)Oupan’s inability or refusal to account for a cheque for $11.3m made out to Herbert Geer & Rundle, which funds were never received by Oupan;
(ii)the consequent undisclosed diminution in the value of Mr Wilson’s interest in the Oupan trust caused by the $11.3m not being applied to discharge outstanding interest liabilities of Oupan; and
(iii)the undisclosed accrual of over $30m in interest on the sum of $11.3m, for 14 years compounding quarterly at interest rates exceeding 10% per annum;
(iv)the respondents’ non-disclosure of the facts that Mr Wilson’s loan account from Oupan:
(I)was overstated by $3,171,000, as conceded by Mr Geer at T912/23-26; and
(II)was not payable at all until Oupan distributed profits.

(e)The primary judge erred by finding Mr Wilson’s state of knowledge was sufficient to constitute fully informed consent for the purpose of negotiations conducted in 2007 because Wilson had ‘complete knowledge of the affairs of Oupan and Waigani, given his day to day control’ prior to 1997.
(f)The primary judge should have found that Mr Wilson had little knowledge of the affairs of Waigani and Oupan by 2007 because:
(i)Wilson had not prepared financial accounts for Waigani and Oupan;

(ii) Wilson was not a director of Waigani;
Waigani had no bank account, and its affairs were all conducted through the Herbert Geer & Rundle trust account to which Mr Wilson had no access;
(iii)Waigani’s financial accounts were not prepared between 1987 and 2005; and
(iv)Oupan’s financial accounts were not prepared between 1996 and 2005.

Wilson submits that the judge’s conclusion that he had complete knowledge of the affairs of Oupan and Waigani was not open on the evidence. Although Oupan had internal accountants, its tax returns were prepared by external accountants, Davidsons, and Waigani’s financial statements were the responsibility of HGR. He was not familiar with those statements. In addition, there was a ten year period between 1997 and 2007 when he was not involved at all with Oupan or Waigani and was, in effect, a passive unitholder in the Trusts. In these circumstances, so Wilson submits, it was beholden on the trustees, Oupan and Waigani, to fully inform him of all relevant circumstances of the conduct of the Oupan Trust and the Deer Park Trust. They could not stay silent about their breaches and defend a wrongly procured release on the basis that he did not ask the right questions.

Wilson’s contention that a trustee who seeks to rely on releases given by a beneficiary in respect of breaches of trust must establish that the beneficiary of the trust had full knowledge of all the circumstances is well supported by authority. In Farrant v Blanchford,[9] Lord Westbury described the onus borne by a defaulting trustee who wishes to rely upon a release of the breach of trust as follows:

The duty of proving an effectual discharge lies on the trustee. Where a breach of trust has been committed, from which a trustee alleges that he has been released, it is incumbent on him to shew that such release was given by the cestui que trust deliberately and advisedly, with full knowledge of all the circumstances, and of his own rights and claims against the trustee; for it is impossible to allow a trustee who has incurred personal liability to deal with the cestui que trust for his own discharge upon any other ground than the obligation of giving the fullest information, and of shewing that the cestui que trust was well acquainted with his own legal rights and claims, and gave the release freely and without pressure or undue influence of any description.[10]

[9](1863) 1 De G J & S 107; 46 ER 42.

[10]Ibid 119–120.

More recently, in Bullhead Pty Ltd v Brickmakers Place Pty Ltd,[11] this Court approved the principle in Farrant in the following terms:

In summary, a defaulting trustee cannot rely on a release unless the trustee proves that, when the beneficiary gave the release, the beneficiary had full knowledge of the circumstances constituting the breach of trust and of the consequent rights and claims which the beneficiary has against the trustee arising from that breach. In our opinion, that onus applies with equal force to a fiduciary such as a partner, joint venturer or, as here, co-unitholder in a unit trust; and also applies to those who knowingly assist the relevant breach of trust or fiduciary duty, such as the directors of the unitholder respondents in this case.[12]

[11][2018] VSCA 316.

[12]Ibid [96] (Kyrou, McLeish and Hargrave JJA).

However, the Court cautioned that the degree of knowledge that a defaulting trustee or fiduciary must prove is to be assessed by reference to the whole of the circumstances applying at the time the release was given, and notions of fairness.[13] Thus, in Re Paulings Settlement Trust,[14] Wilberforce J said:

the court has to consider all the circumstances in which the concurrence of the cestui que trust was given with a view to seeing whether it is fair and equitable that, having given his concurrence, he should afterwards turn round and sue the trustees: that, subject to this, it is not necessary that he should know that what he is concurring in is a breach of trust, provided that he fully understands what he is concurring in, and that it is not necessary that he should himself have directly benefited from the breach of trust.[15]

[13]Ibid [97].

[14][1961] 3 All ER 713.

[15]Ibid 730.

The circumstances in which Wilson came to give the releases in the Deed of Separation is therefore relevant to the duty owed by the trustees. It is necessary to consider whether it is fair and equitable that, having entered into a comprehensive settlement in 2007, Wilson should now be able to ‘turn around and sue the trustees’.

Before this Court, in asserting that Oupan and Waigani had failed to make full disclosure of all relevant matters prior to settlement, Wilson relied on the alleged inaccuracy of the accounts generally and on two ‘material non-disclosures’:

(r) Oupan’s inability to account for a cheque for $11.3 million made out to HGR, apparently referrable to one of the quarry asset sales in 1993; and

(s) the alleged overstatement of Wilson’s loan account balance in the Oupan accounts by $3,171,000 and the fact that the loan was not repayable at all until Oupan distributed profits.

Alleged failure to keep accurate accounts

Wilson alleges generally that he was the victim of material non-disclosures because Oupan and Waigani failed to keep and provide him with accurate accounts. Wilson submits that the judge should have found that:

(a) he was given no account of the finances of the Trusts from 1997 to 2006;

(b) Oupan’s accounts from 1988 to 2004 were withheld from him until Oupan was compelled to produce them in 2014;

(c) before entering the settlement agreements, he was only given draft accounts that were incomplete or inaccurate (they recorded neither the non-receipt of the $11.3 million cheque or the correct loan account balance);

(d) the Trusts’ new accountants, McLean Delmo, had everything that they needed from Oupan by August 1998 and had no difficulty obtaining information to prepare Waigani’s accounts; and

(e) nonetheless, Oupan’s 1997 to 2004 accounts and Waigani’s 1988 to 2004 accounts were not finalised until June 2005.

It is true that Wilson was only provided with draft accounts for the 2006 financial year. The 2006 accounts included details for the 2005 financial year for comparative purposes. They formed part of the package of information requested by Wilson in late April 2007 during the process of negotiating the 2007 settlement. It is also the case that Wilson, although he remained a unitholder in both the Oupan Trust and the Deer Park Trust, was not given accounts for those entities after he left the businesses in 1997 and that accounts for the 1997 financial year through to the 2004 financial year were not finalised until 2005.

The judge found that much of the difficulty experienced in explaining the various aspects of the accounts was due to failures on the part of Wilson in proper financial record keeping while he was responsible for the management of the businesses.[16] This finding is well supported by the evidence.
[16]Reasons [201].

Wilson submits that the delays in finalising the accounts were attributable to the HGR interests, not to him. However, on the evidence, it was well open to find that delays in producing Oupan’s accounts were a product of Oupan’s record keeping during the period that Wilson was responsible for Oupan’s financial records and when he himself was a director of Oupan.

While it is less clear who was responsible for the delays in the preparation of Waigani’s accounts, the delays were of no moment in the 2007 settlement and they are not alleged to have given rise to any material non-disclosures. Furthermore, none of the pleaded particulars of inaccuracy in the Waigani accounts are relied on as giving rise to a material non-disclosure in the 2007 settlement.

The only pleaded particular of inaccurate or deficient account keeping by Oupan alleged to have given rise to a material non-disclosure in the 2007 settlement relates to the recording of ‘the sale of the quarries to Queensland Cement Ltd in 1993 for approximately $50,000,000’, which (apparently) includes the cheque for $11.3 million. In addition, Wilson relies on the alleged misstatement of his liability to repay his loan from Oupan, which was based on the recording of his loan balance in the 2006 accounts.[17]
[17]This second ‘material non-disclosure’ is not pleaded as a particular of Oupan’s inaccurate financial record keeping or as a reason for Wilson entering into the settlement agreements without being fully informed.

It is to those two matters that we now turn.

The $11.3 million cheque

Oupan and the HGR interests are unable to account for a cheque for $11.3 million made out to HGR in 1993, apparently for purchase by Queensland Cement Ltd (‘QCL’) of a number of Oupan’s quarries. This deficiency emerged in the course of the trial, as the result of discovery given for the purposes of the proceeding. It was not expressly pleaded. However, Wilson had kept a photocopy of the cheque, which prompted him to look through the financial records to trace its trajectory.

HGR’s Administration Manager, Ms Angela Palermo, gave evidence about what happened to the proceeds from the sales of the quarries. Her witness statement contained a table setting out the allocation of sale proceeds in HGR’s ledgers. The table deals with payments of $1.7 million, $13.6 million and the payment for $11.3 million that is now in issue. In relation to this last amount, Ms Palermo stated:

I have not identified any entries in HGR’s ledgers relating to the cheque recorded on the settlement statement to HGR in the amount of $11,305,648.79. However, this amount is recorded in Oupan’s general ledger for the financial year ending 30 June 1994 (see account 2922 ‘QCL Sale Clearing’…).

It was put to Geer that no deposits were recorded in the HGR trust account for any of the cheques, including the one for $11.3 million. He responded that in those days, to avoid Financial Institutions Duty, payments were not always put through HGR’s trust accounts. He accepted that if Ms Palermo said that she had not identified any entries in HGR’s ledgers for the $11.3 million cheque, then that would be the case (that is, there would be no such entries).

In cross-examination, Ms Palermo agreed that the Oupan ledger maintained by HGR was available for the relevant period and it contained no item for the $11.3 million cheque. Likewise, the HGR bank statement was available and it contained no item reflecting an $11.3 million payment. Ms Palermo agreed that if the cheque had been endorsed to a third party (or third parties) there would have been a documentary trail and that no documents showing any such endorsement had been produced.

Wilson submitted that all the places where it might be expected that the $11.3 million cheque would be recorded were in evidence (the bank statements and the ledger for the HGR trust account). If a payment was not made into an account, trust account regulations required the payment be recorded as a transit entry, but there was no such entry. He submitted that if the $11.3 million cheque was paid to HGR, it was either going to be used to discharge a liability, in which case it would be recorded in the loan books that were maintained by HGR, or it might go into a bank account and sit there as cash. Neither of those things had occurred and there was no record of the $11.3 million being allocated in any way. At the end of the 1994 financial year, there was a cash balance of $4.3 million in the Oupan accounts, but that did not go anywhere near capturing the $11.3 million, which appears simply to have ‘vanished’. According to Wilson, a record in a ledger (for example, “account 2922 ‘QCL Sale Clearing’” as described at paragraph 88 above) is very different from funds at call in a bank account or the application of the funds in a particular way. There is no evidence that the money was ever applied for Oupan’s benefit or that it was ever received by Oupan.

The judge took the view that whatever happened to the $11.3 million, Wilson knew about it. The judge said:

At the time of the asset sales, Wilson was a director of Oupan with day to day management of its businesses and control of its financial accounts (and the same applies with respect to Waigani insofar as relevant to these and analogous allegations by Wilson). Oupan’s internal and external accountants retained and instructed by Wilson and staff under his control reviewed the accounts, and signed off on them. Wilson was closely involved in this process and necessarily knew, and still knows, where those proceeds went. Indeed, the records show where those proceeds went.[18]

[18]Reasons [203] (citations omitted).

Wilson submits that the finding that he knew and still knows where the proceeds of the asset sales went is unsatisfactory, not least because no evidence was led by any party at trial as to where the money went. The HGR interests were the only people who could give evidence to show where the money went after HGR received it, but they gave no such evidence.

As to the proposition that he was in control of and had the day to day management of Oupan, Wilson submits that there was a difference between the effective day to day management and control of Oupan and its banking. The banking was entirely controlled by the HGR interests who maintained all of the records of the funds going in. It was Wilson’s evidence that following the sale of the quarries in 1993, he did not know where the money went once the cheques were given to HGR.

Wilson does not challenge the finding that Oupan’s internal and external accountants, who were retained and instructed by Wilson and staff under his control, reviewed the accounts for the financial year ending 30 June 2014 and signed off on them. Wilson also concedes that he signed Oupan’s tax returns for most years he was there. However, he submits that while it may have been open to the judge to say that, as at 2007 when the settlement agreements were entered into, the accountants under Wilson’s supervision knew what happened to the cheque for $11.3 million, this was insufficient to found that knowledge in Wilson’s own mind.

Wilson submits that the Court must resolve doubts against a trustee who fails to maintain proper records.[19] Oupan could not explain what happened to the $11.3 million after it was paid to HGR. At settlement in 2007, nobody explained to Wilson that the $11.3 million, which could have been applied in 1993 to reduce Oupan’s interest liability to the HGR lenders, had not been applied in that way. If this had happened, Oupan’s interest liability, calculated by Ms Palermo at almost $58 million by 30 June 2007, would have been reduced by approximately $40 million, drastically increasing the value of Wilson’s interest in the Oupan Trust. Oupan would have ceased to be in debt and would have been almost $30 million in credit.
[19]Byrnes v Kendle (2001) 243 CLR 253, 270 [42]; [2011] HCA 26 (Gummow and Hayne JJ).

The respondents submit that the factual premise of the alleged non-disclosure, that the $11.3 million from the quarry sale in 1993 was unaccounted for and misappropriated, was both ‘un-pleaded’ and unsupported by any evidence. The only relevant pleaded allegation alleges that the proceeds of the sale of quarries by Oupan to QCL in 1993 for approximately $50 million were not recorded in the ledgers or financial statements of Oupan. The respondents submit that Wilson’s own expert accountant, Mr Hockley, disavowed that there were any ‘unaccounted for’ or missing proceeds. Moreover, the fact that the $11.3 million was recorded in Oupan’s ledger with the descriptor ‘QCL sale clearing’ was a complete answer to the pleaded allegation. What could not be traced through HGR’s general ledger, twenty-five years later, was to whom that cheque was ultimately paid.

In any event, so the respondents contend, the judge’s finding that Wilson knew where the proceeds from Oupan’s asset sales went was open on the evidence. Wilson was a director of Oupan with day to day management of its businesses and control of its financial accounts. He negotiated the sales of Oupan’s assets and was sent copies of documents setting out the quantum of the proceeds from the quarry assets, including copies of the cheques, which he kept and discovered in the proceeding. To Wilson’s knowledge, an accountant engaged by him on behalf of Oupan, Mr Redden, looked into where the sale proceeds of the quarry went. Mr Redden’s invoices refer to the provision of services that include ‘preparation of accounts for year ended 30 June 1994, including visits to the office of [HGR] to reconcile sale of quarries to QCL’ and ‘review sale of quarry and calculation of profits on assets’. In his evidence, Wilson accepted that the accounts for the financial year ending 30 June 1994 were reviewed by an internal Oupan accountant and other external accountants. He accepted that the accounts for the financial year ending 30 June 1994 were accurate, that the tax returns for the 1993 and 1994 financial years dealt with the profits from the quarry sales and that he discussed the accounts and the profits and losses on the disposal of the assets with the accountants. He signed Oupan’s tax returns and confirmed that to the best of his knowledge they were correct. Mr Michalski, Oupan’s internal accountant from 1992 to 1997, also gave evidence that the sale to QCL was correctly and properly accounted for and reconciled to the payments received and made at settlement.

This recitation of the evidence concerning Oupan’s management of its financial records in 1993 and 1994, which included accounting for the proceeds of the sale of the quarries to QCL, is both accurate and powerful. The accounts for the financial year ending 30 June 1994 were prepared by Oupan, reviewed internally and externally, and signed off on by Wilson. There is no evidence that any person, least of all Wilson, had any concerns about the whereabouts of the sale proceeds. Oupan’s internal accountant, who reported to Wilson, gave evidence that he believed that the proceeds from the QCL sale were properly accounted for.

Furthermore, Geer gave evidence that it was necessary for HGR to report to Oupan on the receipt and distribution of the sale proceeds so that Oupan’s accountants could record the transactions in Oupan’s accounts, and that some of these reports went directly to Wilson as the person ultimately responsible for keeping Oupan’s financial records and for the preparation of its accounts. Geer also gave evidence that Oupan no longer has copies of its financial statements for the years in which the Oupan asset sales took place, as Oupan’s accountants at that time — Davidsons — have not provided Oupan’s financial statements for the years prior to 1997, when they were replaced as Oupan’s accountants.

We accept the submission that there was a solid factual basis for the judge’s finding that Wilson knew what happened to the proceeds of the sale to QCL. Apart from his day to day involvement in running Oupan’s businesses, he was a director of Oupan and had a duty of care commensurate with this status. Furthermore, Wilson was not only responsible for the preparation of Oupan’s accounts for the relevant financial year, he was far from indifferent to what was done with the proceeds from Oupan’s asset sales, as he had his own plans for unitholder distributions and for further investments by Oupan, using the proceeds from the sales.

Geer gave evidence that the proceeds from Oupan’s asset sales between 1988 and 1993 were used in two ways:

(a) discharging liabilities incurred by Oupan to finance the purchase and operation of the quarries and other business assets that were sold; and

(b) reinvesting surplus proceeds to finance the purchase of further assets and further land for development.

In cross-examination, Wilson agreed that Oupan’s accounts for the financial year ending 30 June 1994 showed creditors and borrowings to have been reduced from $20 million to $5 million. However, as Geer said in his evidence, some of the sale proceeds were also reinvested in land or assets in priority to paying off the HGR loans. Alice Roof Tiles was one such acquisition. Another investment involved a joint venture entered into in September 1993 with Closter Developments Pty Ltd for the acquisition and development of broad acre land in Exford.

According to Geer, following Oupan’s sale of its quarries to QCL, Wilson visited him in his office and said that he wanted a cash distribution from Oupan in recognition of the sale and Oupan’s changed financial position. Wilson said that Geer and Gorr had received money by way of loan repayments and that he wanted something for his investment. Wilson presented Geer with a copy of Oupan’s balance sheet that he had marked up in red pen with adjustments to the carrying value of each of Oupan’s remaining land assets to reflect what Wilson considered to be their present day values. Wilson and Geer discussed a proposal based on these values to allow Wilson to be paid $5 million by way of redemption of units and an advance of funds as a loan.

As a result, on 10 March 1994, Wilson redeemed 12 of his 21 units in the Oupan Trust for $3.171 million. On the same day, Oupan offered Wilson a loan of $1.829 million, which represented the balance of the $5 million to which Wilson asserted an entitlement. It is unclear whether the redemption of units involved a payment to Wilson or whether it was a book entry, reducing the balance in his loan account by the amount agreed. Nor is it clear whether the loan offer of $1.829 million was taken up. Nonetheless, this course of events shows Wilson to have had a keen interest in the proceeds of the sale to QCL, making it unlikely that he stood passively by while almost a quarter of those proceeds simply ‘vanished’.

Furthermore, Wilson was vitally interested in the fate of Alice Roof Tiles, which was acquired using proceeds from the asset sales. Alice Roof Tiles was a business opportunity identified by Wilson and run by him. In addition to receiving funds from Oupan and the HGR interests, Alice Roof Tiles borrowed from ANZ. These borrowings were supported by guarantees from Oupan and Waigani as well as personal guarantees from Geer, Gorr and Wilson himself. According to Geer, Alice Roof Tiles was never profitable. By August 1996, it had a monthly cash deficit as high as $180,000. PWC was engaged to prepare a debt reduction plan to enable Oupan to repay the ANZ commitment of $8.45 million.

It was about this time, according to Geer, that he became aware of accounts that had been prepared for Oupan revaluing its assets and showing large sums owing to unitholders, including Wilson. These accounts were annexed to PWC’s debt clearance plan. Geer rejected them as ‘hopelessly wrong’ and informed PWC that they had never been approved by the HGR directors. Geer described them as ‘a Wilson invention to Davidsons’ and considered the entries to be fraudulent. He immediately sought a full review of the Oupan accounts and froze all unitholder drawings. Geer says that he became aware during this process that Wilson had not been keeping proper financial accounts for either Oupan or Waigani.

On 20 December 1996, ANZ called in its loan and appointed a receiver and manager to Alice. In early 1997, Oupan repaid Alice’s debts to ANZ and, soon after, appointed its own receiver to Alice. At this point, Alice owed Oupan $5,359,600 as a result of advances or payments made by Oupan to third parties on its behalf. Oupan ultimately paid out Alice’s unsecured creditors at the rate of 10 cents on the dollar.[20]
[20]On 24 September 1997, Oupan’s board of directors met and agreed that Wilson and his family members would stop claiming wages and expenses, staff numbers would be reduced, and Wilson would identify how he proposed to repay his loan. HGR interests would continue to make loan funds available to Oupan to meet interest payments.

Having regard to this chronology, Wilson must be taken to have been very much interested in the detail of Oupan’s financial affairs following the sale of the quarry assets. If there was any indication that large sums of money from the asset sales orchestrated by Wilson had simply disappeared, it would not have escaped Wilson’s attention. He was a director of Oupan at the relevant time and he had big plans for its profits. It is disingenuous of Wilson to assert, almost 30 years later, that he was kept in the dark about the sale proceeds, and unfair for him to now require his fellow directors to account to him for the whereabouts of individual parts of the sale proceeds, especially given the disarray in the accounts for which he was responsible.

It is also disingenuous for Wilson to now assert that the $11.3 million should have been applied in 1993 to reduce Oupan’s interest liability to the HGR lenders on the basis that this would have reduced Oupan’s interest liability in 2007 by approximately $40 million, thus ‘drastically’ increasing the value of his interest as at that date. Wilson agreed in cross-examination that the investment in Alice Roof Tiles was made at his instigation. In his oral evidence, Wilson expressed the view that Geer and Gorr should have saved Alice, presumably with a further big injection of funds. As the judge found, Wilson was the beneficiary of an arrangement with the HGR interests whereby he stood to gain much by way of income and capital in circumstances where he contributed all but an insignificant sum of money in the scheme of things and where the HGR interests supplied the capital as required by Wilson and undertook significant commercial risk. Many, if not most, of the advances to Oupan were made at Wilson’s request.

Finally, mention must be made of the fact that Wilson opened his case by asserting that at least $26 million was missing from the sale of Oupan’s quarrying assets, an assertion that proved to be wrong, and carried with it the implication that the HGR parties had misappropriated the funds. In his second and third reports, Mr Hockley had concluded that the information available was insufficient to reconcile the relevant transactions. In response, Ms Palermo put on an amended witness statement that explained where the proceeds went and identified all available records. Mr Hockley then prepared a fourth report, which he adopted as his evidence, despite it having been pointed out to him how it was in error: he had failed to look at the settlement statements for each transaction that were referred to by Ms Palermo. In cross-examination, Mr Hockley conceded that he had not looked at the settlement statements and that there were consequentially deficiencies in his fourth report. He agreed that the sale proceeds were not ‘unaccounted for’, and that he was not suggesting that ‘a dollar has gone missing’. The submission that at least $26 million had gone missing was baseless. Nonetheless, Wilson sought to revive the allegation in part based on Geer’s inability to say to whom the $11.3 million cheque was ultimately paid.

As the respondents submitted, the evidence that the cheque was recorded in Oupan’s ledger with the descriptor ‘QCL sale clearing’ was a complete answer to the allegation as pleaded, which was that ‘[p]roceeds of the sale of significant assets sold by Oupan were not recorded in the ledgers or financial statements of Oupan’.

Wilson’s loan account

Wilson alleged that in 2007, Geer and Gorr ‘demanded repayment of $5.9 [million] said to be the outstanding balance of [Wilson’s] loan account with Oupan’.[21] According to Wilson:

They did this with full knowledge that the loan was only ever to be repaid out of profits, which on the state of the accounts presented by them, had not been realised. Gorr felt it was up to Wilson to raise a defence to the position wrongly stated, rather than disclosing the true position. Geer adopted the same stance.
Geer now accepts that the figure of $5.9 million was grossly inflated. His evidence was that in 2007 he wasn’t alert to the fact that there should have been a $3.171m reduction from the total amount of the loan account Oupan claimed. That does not deny the fact that the amount the HGR interests said was payable, and which formed the basis for negotiations about an exit price, was wrong by over $3m.[22]

[21]William Robert Wilson, ‘Outline of Closing Submissions of the Plaintiff by Counterclaim’, Submission in Wilson v Waigani Pty Ltd & ors, S CI 2012 05378, 26 April 2018, [48].

[22]Ibid [48]–[49] (citations omitted).

Wilson says that had he been aware of all the facts and circumstances relevant to his decision to settle, he may well have negotiated the 2007 settlement on an entirely different basis. Given that he was ultimately paid just over $3 million plus the profits on three properties, the loan account discrepancy represents a very significant proportion of the amount that he was paid in the 2007 settlement.

There is confusion about Wilson’s loan account, both as to the amount owing at the time of settlement and as to when — and if — it was repayable.

Geer gave evidence that it was agreed between the HGR interests and Wilson that Wilson could make drawings from Oupan funds for his living expenses. The drawings would be recorded as a loan that Wilson would repay from the profits he made from his interest in Oupan. The loan account was maintained in Oupan’s books at Oupan’s office by Oupan’s staff. Geer gave evidence that Wilson told him that his drawings were being religiously recorded. Geer did not supervise Wilson’s drawings, nor check the loan account entries, as he trusted Wilson.

The loan balance of $5.9 million appears in the 2006 accounts. The figure in the 2006 accounts was derived from the draft accounts prepared by Oupan’s external accountants, Davidsons, for the year ended 30 June 1996. Those accounts were based on Oupan’s financial records, which were kept by Mr Michalski and Mrs Wilson.

The information about the loan balance provided to Wilson during the settlement negotiations under HGR’s covering letter of 19 April 2007 includes an annotated transaction ledger report dated 1 February 1997 for ‘Loan – W.R. Wilson’, showing a closing balance of $5,979,778. It will be recalled that the 19 April covering letter contained the following disclaimer:

In support of the loan balance of $5,979,778 owed by the Wilson Interests we note that this amount is derived from records kept by Jill Wilson with the help of Fred Michaleski [sic] an employee accountant in the business at the time. We have included copies of these work papers.

Wilson agreed that he read the material accompanying the 19 April 2007 letter, that is, the accounts and the working papers, which related specifically to his loan account. He was asked whether he raised any issue about his loan account balance during settlement discussions and he said that he did. He said his position was that he did not owe any money to Oupan.

At trial and before this Court, Wilson referred to a different ledger headed ‘Oupan Resources Pty Ltd, WR Wilson unsecured loan account’ that recorded movements in Wilson’s loan account balance between 1990 and 1994. This document contains an entry recording a debit of $3.171 million attributed to the ‘cancellation of units’ and records the loan balance as $4,434,000 as at 30 June 1994.

In his evidence, Geer acknowledged that the entry for the cancellation of units appeared to reflect the arrangement with Wilson in 1994 to cancel some of his units in the Oupan Trust (referred to above). Following the sale of the quarries, it was agreed that Wilson would redeem twelve of his units in Oupan for $3.171 million and the rest of his debt would continue as debt. Geer agreed that $3.171 million should have been credited to Wilson’s loan account in exchange for the redemption of his units.

Although Geer agreed with the proposition that the cancellation of Wilson’s units should be reflected in his loan account balance, it does not sit comfortably with the evidence that Wilson wanted access to funds following the successful sale of the quarry business to QCL. Simply repaying some of his debt, which on his analysis was not due and payable at that time, would not have fulfilled that purpose. It was common ground that Oupan made no distributions to unitholders until after 2007.

In any event, it is tolerably clear that Wilson’s loan account balance exceeded the amount of $5.9 million less $3.171 million by the time he left Oupan in 1997. Wilson was taken in cross-examination to a document recording his loan account balance as at 30 June 1995 as $5.66 million. Wilson agreed that this was his loan account as at that date. It was open to find that at least that amount was owing as at 30 June 1996.

Having regard to the evidence concerning the keeping of the loan account, it was well open for the judge to find that whatever the position was in relation to the balance of this loan, Wilson would have known about it. Wilson was responsible for recording his drawings. He drew down on his loan account while responsible for Oupan’s management, including for keeping its accounts. He controlled the preparation of and signed off on Oupan’s accounts throughout the period that his loan account was active. He was in the best position to know about it, and in a far better position than Geer, who had to rely on the information in the 1996 accounts and such working papers as could be located after Wilson left Oupan.

Wilson’s submission that if ‘proper records had been kept by the trustee, such an error [that is, the alleged error of failing to deduct the $3.171 unit redemption amount from the loan balance] could never have been made’ is audacious. He was a director of Oupan with the day to day responsibility for keeping the relevant records.

The proposition that Wilson was entitled to rescind the settlement agreements because of uncertainty about the loan balance based on a failure by the HGR interests to give full disclosure of the affairs of Oupan is misconceived. The HGR interests made disclosure of what they reasonably believed to be the loan balance, based on records that Wilson was responsible for preparing.

As to the allegation that the loan account was not due and payable until Oupan made distributions and that Geer and Gorr therefore negotiated with Wilson on a false premise and failed to disclose the true position, Wilson claims to know better than Geer or Gorr if and when the loan was repayable. He claims, and claimed in 2007, that it was not repayable. Moreover, the proposition that there was to be no account at all for the amount owing on the loan account upon a buy-out of Wilson’s units is contestable. It flies in the face of Wilson’s own case that the $3.171 million unit redemption sum was deducted from his loan account balance (apparently with his agreement at the time). It cannot be said that Geer and Gorr misrepresented the existence of the loan: it was recorded as a non-current asset in the 2006 accounts (as it needed to be).

Conclusions on material non-disclosure

Wilson has asserted his entitlement to rescind the settlement agreements on the basis of an absence of ‘fully informed consent’ and the existence of ‘material non-disclosure’. According to Wilson:

There can be no question of fully informed consent in this case. Whatever view is taken of [him] it cannot be said that he was fully informed about the true state of the trusts. The accounts provided to him were unreliable in key respects: they concealed the true profitability of the trusts and the Oupan accounts materially misstated [his] indebtedness to the trust.[23]

[23]Ibid [93].

The obligation of the trustee to obtain the fully informed consent of the beneficiary to terms of settlement does not exist in a vacuum. In determining whether it is fair and equitable that the settlement agreements be set aside, it is relevant to consider what Wilson must be taken to have known, having regard to his role in the affairs of the Trusts, what disclosure Geer, Gorr and May were in a position to make at the time of the 2007 settlement and what they are now asked to explain many, many years later.

Messrs Geer, Gorr and May denied knowledge of any breach of trust by Oupan or Waigani at the time of settlement and no breaches were alleged at that time. While Wilson apparently told his lawyers he thought that there were ‘some problems with what they have done with money’ and that ‘properties appeared to have disappeared’, no such complaints were ventilated. The trial judge held that the alleged breaches of trust were not made out. The finalisation of the accounts of the Trusts was significantly delayed, and Wilson was not provided with accounts in the period 1997 to 2005, but that was a function, in large part, of the manner in which the financial records were kept under Wilson’s own management.

Nonetheless, Wilson submits that Waigani and Oupan (through their directors, Messrs Geer, Gorr and May), in satisfying their obligation as trustees to fully inform Wilson of ‘all relevant circumstances of the conduct of the Oupan Trust and the Deer Park Trust’, were obliged to make wide-ranging disclosure to Wilson of any and all circumstances relating to their affairs from the time they became trustees of the Trusts (in 1980 and 1982 respectively) to the date of settlement, in case there was something that might pique Wilson’s interest and later be raised by him as a material non-disclosure.

Taking into account his involvement in the businesses conducted by the Trusts and his resultant knowledge, we consider that it would not be fair and equitable for Wilson to be permitted to rescind the settlement agreements because Messrs Geer and Gorr:

(a) did not tell him of breaches of trust of which they were unaware or that they did not consider qualified as breaches; or

(b) could not give him a ‘chapter and verse’ explanation as to why this entry or that payment was made,

in circumstances where the alleged breach, the entry or the payment occurred or was made years before the 2007 settlement, and was not raised at the time of settlement but only some 10 years later, after Wilson had had his lawyers and/or forensic accountant scour financial and other records (many of which Wilson himself was responsible for preparing) in search of deficiencies.

As to the material non-disclosures specifically raised in this appeal, we have concluded that Wilson had the requisite knowledge to provide his fully informed consent to the settlement agreements and that it would not be fair and equitable for him to be permitted to sue in respect of claims for breach of trust that he released when he entered into the settlement agreements.

The judge was correct to hold that Wilson was not entitled to rescind the May and July agreements.

Insofar as the judge focussed his attention on whether Wilson was misled or ‘materially misled’ by the respondents rather than upon the alleged non-disclosures, it is relevant that this aspect of the trial was conducted as a misrepresentation case, while the trustees’ failure to fully inform was a secondary consideration. In the opening paragraph of Wilson’s final submissions at trial, his argument was encapsulated as follows:

The plaintiff by counterclaim (Wilson) seeks to set aside the 2007 settlement agreements by which he surrendered his unit holding in the Oupan Resources Trust and the Deer Park Trust. He is entitled to rescind those agreements ab initio because he was materially misled when entering them and because they were made by Waigani and Oupan in breach of fiduciary duty, in breach of trust or otherwise unconscionably. Specifically, the accounts provided to Wilson masked the true position of the trusts, the trustees falsely warranted there had been no breaches of trust and Wilson was not properly compensated for the value of his interest in the trusts and the Manning land.[24]

[24]Ibid [1] (emphasis added).

Wilson also submitted that there was ‘one glaring and important respect in which the Oupan accounts were misleading’,[25] namely the loan account item. The submission concluded:

It is therefore clear beyond any sensible argument that Waigani and Oupan (acting through Messrs Geer and Gorr) materially misstated the true position of the trusts in settlement negotiations.[26]

[25]Ibid [52].

[26]Ibid [53] (emphasis added).

For the reasons given, the judge was correct to conclude that Wilson was not ‘materially misled’ by the HGR interests or any of the information that was provided to him.

It follows that the releases given by Wilson in the May agreement and the Deed of Separation remained in force and prevented Wilson from bringing any of the claims against Oupan, Waigani or any of the other HGR interests.

Ground 1 is not made out.

Grounds 2 and 3

It is, strictly speaking, unnecessary to consider Grounds 2 and 3, which challenged the judge’s holding that Wilson was estopped from rescinding the settlement agreements by reason of his own conduct and as a result of his failure to establish that he could account for the fruits of the 2007 settlement, were it to be undone.

In our view, having regard to the Reasons as a whole, the judge accepted the disentitling conduct relied upon by the respondents to found the estoppel and made findings to that effect.[27] Furthermore, the judge found that the affairs of Oupan, Waigani and their unitholders had been organised over a period of 10 years on the basis that Wilson was no longer a unitholder and that they would suffer detriment if those affairs were to be undone. The judge was correct to hold that this is the kind of detriment against which will equity protect.
[27]Reasons [24]–[26], [66], [70], [73]–[74], [80], [83], [94]-[95], [99], [101]–[104], [108], [120]–[121], [139], [146]–[147], [151]–[155], [182], [197]–[198], [201]–[203], [208], [216], [220], [223]–[226], [229]–[233].

Finally, in seeking to rescind the settlement agreements, Wilson asked to be restored as a unitholder in Oupan and Waigani. He was compensated by the HGR interests for relinquishing his units in 2007 by the transfer of properties, the payment of $3.375 million and forgiveness of his loan from Oupan. In the circumstances, the judge did not err in holding that rescission would involve, at the very least, the taking of accounts between the parties which would, on the evidence, require Wilson to bring to account the fruits of the settlement that he sought to set aside. Wilson’s stated position that he had no intention of repaying the settlement payment was not consistent with this requirement.[28]
[28]Ibid [192].

Grounds 2 and 3 are not made out.

Grounds 4, 5 and 8: Claims for breach of trust

The May agreement was expressed to be in full and final settlement of all of Wilson’s interests and entitlements arising out of, or in any way related to, the past business dealings or other transactions between all or any of Waigani, Oupan, the Deer Park Trust, the Oupan Trust, the ‘Manning Trust’ and the HGR interests.

The Deed of Separation, which was part of the July agreements, contained a further release whereby Wilson released Oupan and Waigani (and each of the HGR interests) ‘from each and every Claim howsoever arising which Wilson in any capacity’ had or may have had ‘arising from, or connected, or related to, any event or events that occurred prior to the Release Date and irrespective of when that Claim may arise (whether before, on or after the Release Date)’. Wilson agreed not to bring or commence or seek to enforce any such claim in any court, tribunal or body against any of the named entities or persons, including Oupan and Waigani.

The releases defeated Wilson’s claims for breach of trust in the FFACC, including his claims arising from such matters as the interest payments made to the HGR interests and the payment of management fees by Waigani to Oupan.

Grounds 4 and 5 do not arise.

Ground 8 concerned the non-admission of the evidence relevant to the management fees. This ground also falls away as a result of Wilson’s failure to set aside the settlement agreements.

Ground 6

This ground challenged the judge’s conclusion that Wilson’s claims were barred by the Limitation of Actions Act 1958 and laches and acquiescence. It is unnecessary to consider this ground in light of Wilson’s failure to set aside the settlement agreements.

Ground 7: Was Wilson entitled to an account for the Manning Land?

By Ground 7, Wilson contends that the judge erred in denying him an account in respect of the Manning Land in circumstances where he was a registered proprietor; the mortgagee in possession had sold sufficient land to discharge the secured debt, but then continued to sell land as mortgagee in possession; the secured debt was primarily owed by Oupan; and the mortgage was a third party security. In addition, Wilson contends that the judge was wrong to hold that Wilson held his interest on trust for Oupan. The document that the judge found created a trust did not do so and, in any event, it was not pleaded.

Whether Wilson holds his legal interest in the Manning Land on trust for Oupan is resolved, in our view, by the declaration signed by Wilson as part of the 2007 settlement in which he declared that he held and would continue to hold the Manning Land on trust for Oupan. As Wilson has not succeeded in setting aside the 2007 settlement, that is the end of the matter.

Even if Wilson had been successful in setting aside the 2007 settlement, there is ample evidence supporting a finding that he held his interest in the Manning Land on trust for Oupan. In 1991, Wilson signed a document addressed to Sandhurst Trustees confirming that he held the benefit of the Manning Land for Oupan. During the period that he was a director of Oupan and responsible for its accounts, the Manning Land was recorded in Oupan’s assets. Further, were it necessary to decide, we would hold that the document that the judge held created a resulting trust in favour of Oupan in fact did so.

The history of the Manning Land is set out in paragraphs 29 to 35 above. The document upon which the judge concluded that Wilson held his interest in the Manning Land on trust for Oupan is the joint venture agreement entered into in 1985 following HGR Nominee’s payout of the Boston mortgage. The agreement recites that the amount secured by the Boston mortgage was substantially in excess of the value of the security as undeveloped land and that HGR Nominees had agreed to hold its interest as mortgagee and in the benefit of the joint venture as trustee for Oupan.

The joint venture agreement is a strange construct: it was entered into by Wilson and HGR Nominees as the registered proprietors of the Manning Land on the one part, HGR Nominees (again, this time as financier) on the second part and Oupan on the third part (as the beneficiary of a bare trust) to create a joint venture for the purpose of subdividing the Manning Land and selling the lots. By the agreement, HGR Nominees agreed to procure the finance and the registered proprietors agreed to enter into any transactions authorised by HGR Nominees to effect the objects of the joint venture. The profits from the land sales were to be applied by the registered proprietors to pay the mortgage (held by HGR Nominees) and HGR Nominees was entitled to the balance of any profits once the indebtedness under the mortgage was satisfied. In other words, all amounts derived from the sale of lots on the Manning Land were to be paid to HGR Nominees on behalf of Oupan. There was nothing in the arrangement for Wilson other than as a unitholder of Oupan. Oupan was to be the only beneficiary of the arrangement.

It may be that the point is now moot, as Wilson does not challenge the decision below denying him possession of the Manning Land. He simply seeks an account. However, the fact that Wilson has no beneficial interest in the Manning Land and holds his interest on behalf of Oupan is relevant to the discretion to order an account, especially in circumstances where Oupan is a respondent to the proceeding and disputes Wilson’s entitlement to an account.

Wilson submits that the judge erred in denying him an account as a registered proprietor of a half interest in the Manning Land in circumstances where the mortgagee in possession had sold enough land by 2004 to discharge the secured debt. According to Wilson, this is enough to justify an order for an account.

It is plain that Wilson seeks an account for his own purposes and not on behalf of Oupan. In the circumstances, it was well open to the judge to refuse to order an account.

Ground 7 is not made out.

Ground 9: Special costs order

On 9 November 2018, the judge ordered Wilson to pay the respondents’ costs of the counterclaim (including reserved costs) on an indemnity basis. He provided detailed reasons for that decision.[29]
[29]Wilson v Waigani Ltd & Ors [No 2] [2018] VSC 569 (‘Costs Reasons’).

Wilson submits that the judge’s discretion to order costs miscarried when he made an indemnity costs order. He contends that the trial did not raise allegations of fraud, and the judge should not have treated it as a fraud case. Furthermore, the conclusion that there was no proper basis to bring the claims was erroneous, as the witness statements filed by Wilson established a prima facie case.

The judge gave very considered reasons for making the indemnity costs order. He correctly observed that, having regard to the fact that the usual order as to costs is an award of costs to the successful party on a standard basis,[30] it was incumbent upon the respondents to demonstrate a basis for the exercise of the Court’s discretion to make a special costs order. In respect of what may enliven the exercise of the discretion to make a special costs order, the judge referred to the principles articulated in the judgments of Sheppard J in Colgate Palmolive Company v Cussons Pty Ltd[31] and Harper J in Ugly Tribe Co Pty Ltd v Sicola.[32]
[30]Supreme Court (General Civil Procedure) Rules 2015, r 63.31.
[31](1993) 46 FCR 255; [1993] FCA 536.
[32][2001] VSC 189.

The judge found that Wilson’s case was, in essence, that the respondents had cheated him out of many millions of dollars, had induced him to accept an unfavourable settlement of his interest in the Trusts and had manipulated the affairs of the Trusts to their personal benefit and to his detriment. The judge was firm in his view that Wilson was, in substance, making a case of fraud and misappropriation of property, which he labelled largely as ‘misrepresentation’. Wilson persisted with this case, despite numerous admissions which undermined it and supported the position of the respondents.[33] The judge found, further, that there was no proper or reasonable basis for Wilson’s claims and that, in any event, they were statute barred and barred by his own laches and acquiescence in most cases.[34] Having regard to the nature of the claims and the manner in which Wilson put his position, his case was, in substance, one based on fraud for which there was no reasonable basis.[35]
[33]Costs Reasons [11].
[34]Ibid [13].
[35]Ibid.

The judge found, in addition, that Wilson commenced and continued the proceedings in willful disregard of known facts, most of which he admitted under cross-examination.[36] In his Honour’s view, Wilson failed to properly or adequately evaluate the evidence available to him and proceeded in willful disregard of known facts and laws and without any proper basis.[37]
[36]Ibid.
[37]Ibid [14].

In our view, it was well open for the judge to so find. Accordingly, we would not disturb any of these findings on appeal. They are sufficient to support the exercise of the discretion to award costs on an indemnity basis. The judge’s discretion to award costs on an indemnity basis did not miscarry.

Ground 9 is not made out.

Disposition

Wilson’s proposed grounds of appeal are either not made out or do not arise having regard to his failure to set aside the settlement agreements.

Leave to appeal is refused.

SCHEDULE OF RESPONDENTS

WAIGANI PTY LTD (ACN 005 481 818)	First Respondent
APPLECROSS SECRETARIAL SERVICES PTY LTD (ACN 005 127 524)	Second Respondent
DAYDEB NOMINESS PTY LTD (ACN 005 181 242)	Third Respondent
H. G & R. CUSTODIAN PTY LTD (ACN 004 996 712)	Fourth Respondent
T.S. & G. NOMINEES PTY LTD (ACN 004 964 514)	Fifth Respondent
H.G. & R. MANAGEMENT PTY LTD (ACN 005 327 346)	Sixth Respondent
SECOND MESIAL PTY LTD (ACN 006 199 579)	Seventh Respondent
SECOND PERA TOKA PTY LTD (ACN 005 751 333)	Eighth Respondent
PURUS NOMINEES PTY LTD (ACN 005 364 063)	Ninth Respondent
BRADBELLE PTY LTD (ACN 126 282 353)	Tenth Respondent
OUPAN RESOURCES PTY LTD (ACN 005 600 895)	Eleventh Respondent
DAVID MORTON GEER (IN HIS OWN RIGHT AND AS EXECUTOR OF THE WILL AND ESTATE OF CHARLES KEITH GEER)	Twelfth Respondent
LEON GORR	Thirteenth Respondent
ANTHONY HENRY MAY	Fourteenth Respondent
DEBORAH MARGARET KENNEDY (AS EXECUTRIX OF THE WILL AND ESTATE OF CHARLES KEITH GEER)	Fifteenth Respondent
H. G. & R. NOMINEES PTY LTD (ACN 004 462 659)	Sixteenth Respondent

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[2020] VSCA 153

15 June 2020