191 Bells Pty Ltd v WJ & HL Crittle Pty Ltd

Exclusivity Agreement

1. On 2 March 2022, an entity in the Mayrin Group entered into the Exclusivity Agreement, which provided for a three week exclusivity period in which the first respondent agreed not to engage with any other party in relation to the sale of the Land ([43]) (i.e., two weeks after the provision of a proposed draft contract for the sale of the Land (Draft Sale Contract) which was to occur one week after the commencement of the exclusivity period (see cl 3)).
2. Clause 3 of the Exclusivity Agreement relevantly imposed the following obligations on the part of the "Vendor" (i.e., the first respondent): During the Exclusivity Period: (a) the Vendor must: … (ii) allow Mayrin and its agents and authorised representatives access to such information held by the Vendor as is necessary to complete due diligence in relation to the proposed purchase of the Property (iii) assist Mayrin and its agents and authorised representatives as far as possible in the due diligence process; (iv) ensure that the information provided to Mayrin for the purposes of completing its audits and enquiries in relation to the Property is accurate and not misleading; and (v) subject to Mayrin providing reasonable prior notice to the Vendor (being not less than one (1) days' [sic] notice), provide to Mayrin and its agents and authorised representatives (including consultants engaged by Mayrin) physical access to the Property for the purpose of carrying out on-site due diligence and investigation on the Property; and …
3. These were defined in the appellant's submissions as the "EA Warranties" but strictly speaking cl 3(a) imposes obligations on the first respondent; it does not contain warranties as such (see, for example, [13] of the appellant's submissions in chief).
4. Pursuant to cl 2(c) of the Exclusivity Agreement, the first respondent was to ensure that its employees, agents and advisors comply with the obligations and undertakings contained within the Exclusivity Agreement.
5. In or around early March 2022, JKE was engaged on behalf of the Mayrin Group to conduct a contamination and dry land salinity screening for due diligence purposes with respect to the proposed acquisition of the Land ([44]). The scope of those instructions is recorded by the primary judge at [45]-[47]. His Honour noted that the first respondent acted in accordance with its obligation under the Exclusivity Agreement and provided access to the Land so that JKE could carry out the necessary investigations ([48]).
6. On 16 March 2022, JKE sent a draft due diligence report to the Mayrin Group, stating, among other things (in the context of a statement that there were no visual or olfactory indicators of contamination observed during the site inspection), that "[a]lthough there was no evidence of widespread filling or fly-tipping on site based on a review of the historical aerial photographs and the site walkover inspection, localised impacts from these activities could exist" ([49]). (Accordingly, the Mayrin Group was on notice from this time of the possibility of localised impacts from filling or fly-tipping activities.)
7. The draft report also contained a statement under the heading "Contamination" in the Executive Summary that "[l]ocalised impacts from contamination could be present, primarily around the existing/former buildings and structures, timber power poles or from localised filling or fly-tipping etc. A Detailed Site Investigation (DSI) would be required to assess these AEC and the associated contamination risks" (see at [50]). (Again, this put the Mayrin Group on notice of the potential for localised impacts from contamination from filling or fly-tipping although the appellant emphasises that this was indicated as being primarily around the identified structures; whereas the Pits were located in general grazing land) (AT 11.27).
8. Pausing here, it appears that a subsequent fee proposal was sought from JKE for an alternative DSI scope but this was after execution of the Option Deed (see [55], referring to an email from JKE to the Mayrin Group).

Incorporation of the appellant

1. The appellant was incorporated in about March 2022, just prior to the entry by it into the Option Deed ([9]).

Option Deed

1. On 23 March 2022, the parties entered into the Option Deed and the $26.4 million Option Fee was paid ([52]). Attached to the Option Deed was a Draft Sale Contract which included, amongst other attachments, certain disclosure documents (none of which disclosed any relevant contamination of the Land ([53])). That Draft Sale Contract was what was required to be executed on exercise of the option under the Option Deed (see cl 3.3(a)(ii) of the Option Deed).
2. At [54], the primary judge extracted Special Conditions 10-17 and 20 of Draft Sale Contract, which includes an entire agreement clause (cl 10.1); limitations on claims by the purchaser in respect of any representations, inducements or warranties; and acknowledgements as to the condition of the Land, inspection by the purchaser, access to the Land by the purchaser and the like.

JKE report

1. On 20 May 2022, in connection with a fee proposal for a DSI in respect of the Land, JKE sent an email which referred to the finding of "an aerial photograph on-line that suggested there are likely to be some localised pits in the central area of the site where waste materials were likely buried". The email noted that the "date of the on-line photograph happened to fall between the dates of the aerial photos reviewed for our initial due diligence screening report" and said that it had "become clearer with this new information that there is likely to be some localised waste burial areas in the central area of the site". (From the description of the date of the relevant photograph it appears that this was part of the aerial photographs available as at the time of the earlier review and may simply have been overlooked at the time.) The primary judge noted that this was apparently the first time that Mr Wu became aware of potential contamination issues but that the March 2022 aerial photographs attached to the draft JKE report did show the existence of the Pits, "albeit covered over" ([56]).
2. JKE issued a final report dated 14 June 2022, in which the existence of two localised waste burial pits was identified in the Executive Summary in respect of "Fly-tipping/imported fill". The report stated that these were evident to the south of the buildings on the Land and that the Pits appeared to have been covered over to conceal the waste "circa 2020" ([57]). The report amended the section under the heading Contamination to include specific reference to the "waste burial pits on the 191 Bells Lane property" after the draft report's reference to the possibility of localised impacts from contamination "from localised filling or fly-tipping etc" ([58]). The report again referred to the requirement of a DSI to assess these "AEC" and the associated contamination risks. The wording of the preliminary report in this respect was largely replicated in the June report.

ENRS reports

1. ENRS was then retained and prepared two reports ([59]), one dated 19 December 2022 and one dated 11 July 2023. There was an analysis of the contents of the Pits ([60]) (see section 9 of the second ENRS report, reproduced at [61]). It was estimated that the cost of remediating the Contamination in the Pits, in a worst case scenario that all of the contaminated material must be removed off-site, was $4.2 million ([62]).
2. The appellant notes that the ENRS reports identified "significant" Contamination on the Land by reason of extensive "filling operations and waste deposition"; which included: "uncontrolled fill, with quantities of building debris, including brick, tile, roof tiles and concrete" and "tyres, car parts, fill with potential hydrocarbon staining and fragments of asbestos containing material". The Contamination so identified included "buried animal bodies and bones from cows", which is "pre-classified as General Solid Waste (putrescible)".
3. At [64], the primary judge noted that Mr Wu and his mother, Jing Wang (the sole director of the purchaser and one of two directors of the Mayrin Group), gave unchallenged evidence that they were not aware at the time of execution of the Option Deed that the Land was contaminated and that, had they been so aware, they would not have caused the appellant to enter into the Option Deed. The appellant here relies on this as unchallenged evidence of reliance (AT 36.36).

Proceedings

1. The appellant commenced proceedings in the Equity Division in September 2023, contending (at [36] of the SOC) that, by reason of it expressly making known to the first respondent the Development Purpose (defined at [22]), particularly in the context of the Rezoning (defined at [20]), the Due Diligence Enquiries (defined at [24] as representations made to it in the Exclusivity Agreement - cll 3(a)(ii) to (iv) and 3(a)(i), respectively) or Due Diligence Actions (defined at [25] as the engagement in March 2022 of JKE to conduct the contamination and dryland salinity screening for due diligence purposes), the circumstances were such that it had the reasonable expectation that the Contamination would be disclosed to it prior to it executing the Option Deed. This is defined in the pleading as the "Reasonable Expectation of Disclosure".
2. The appellant then alleged (at [37]) that "[a]s a consequence of the Reasonable Expectation of Disclosure", the respondents ought to have disclosed the nature of the Contamination before the execution of the Option Deed. I note that it was not there pleaded that the Exclusivity Agreement contained an express or implicit obligation of disclosure (as now appears to be contended), although the provisions of cl 3(a) of the Exclusivity Agreement were part of the context or circumstances pleaded at [36] in which it was alleged that the Reasonable Expectation of Disclosure arose.

Primary judgment

1. His Honour, having noted the urgency with which the proceedings had come before him for hearing and having given an overview of the matter and summary of the material facts (much of which were not in dispute), commenced by noting that the parties were in dispute as to the extent to which the land was contaminated ([65]). At [85], his Honour accepted the conclusion by Mr Last of ENRS that the Land was contaminated and would need to be remedied in some way; and his Honour said that the Contamination was not de minimis.
2. After addressing an issue that had arisen in relation to a without prejudice privilege claim (which it is not necessary here to recount), his Honour turned (from [113]) to consider the credit of the second respondent. The primary judge found him to be an unsatisfactory witness in a number of respects ([115]), referring to the fact that he frequently gave non-responsive answers. His Honour formed the distinct impression that on occasion the second respondent was not being completely frank in answering questions (giving examples of this at [116]).
3. Nevertheless, his Honour did accept the second respondent's evidence as to the following matters: his knowledge as to what was in the Pits either at the time that he purchased the Land or what he put into the Pits; his denial that he was aware that asbestos was contained in the Pits; and his denial that he filled in the Pits so as to cover up the contaminated material that he knew was in them so as to avoid a purchaser of the Land discovering the Contamination ([119]). His Honour accepted (albeit noting some hesitation) that the second respondent filled in the Pits out of safety concerns ([139]). His Honour elaborated on those matters from [120]-[146].
4. Relevantly, his Honour accepted the second respondent's evidence that he did not observe any asbestos in the Pits ([125]). His Honour also noted (and appears to have accepted) the second respondent's evidence as to the works which contributed to the filling of the Pits (at [127]), including: using old road base; disposing of some unusable fencing material; placing materials and (mainly organic) waste from dam cleaning and soil erosion control works in the Pits; occasionally pushing some of the walls of the Pits down as a batter to shore up the wall to limit erosion; occasional putting of rose bush cuttings and other general organic grade waste and occasional household waste in the Pits; and burial of the carcasses of twelve cows poisoned from ingestion of hay purchased during the drought (this last on instructions by a veterinarian). His Honour also noted that there were a number of tyres shown in the aerial photographs as of 2017 of the northern pit and that the second respondent used his own bulldozer to fill in the northern pit ([128]-[129]).
5. His Honour said at [140]: I accept, however, that Mr Crittle did not have any precise knowledge of what was in the Pits, save for what he says he put into them (as set out above) and save for the tyres which are clearly evident in the photos of the northern pit from 2017 and 2018. In particular, I accept Mr Crittle's evidence to the effect that he was not aware that the Pits contained asbestos. There is nothing to suggest that the asbestos was exposed at any stage and Mr Last gave evidence of a statement made by Mr Crittle at the time that Mr Last discovered the asbestos when he was carrying out excavation work to assess the contents of the Pits to the effect that he (Mr Crittle) was not aware of any asbestos. Mr Crittle also gave evidence of disposing of some material that he thought, but did not know, might have been asbestos when he demolished a structure on the Land. He took it to a waste transfer station which demonstrates a responsible and not cavalier approach to asbestos.
6. His Honour also accepted the second respondent's evidence that he did not believe that the contents of the Pits raised any substantial contamination concerns at the time he filled them in (and hence accepted his denial that he filled them in to hide their contents being contaminated waste) ([141]).
7. From [147], his Honour addressed a pleading issue as to whether the case advanced by the appellant was confined to the concept of "Contamination" as pleaded in the SOC and the failure to disclose the Contamination, as opposed to some broader case such as a failure to disclose the existence of the silage pits simpliciter. His Honour noted that Senior Counsel for the respondents had made clear during the hearing that he was conducting the case on the pleadings and not consenting to any case being conducted outside the pleadings.
8. His Honour concluded (at [162]-[163]) that the case propounded in the pleading was not as narrow as that alleged by the respondents (i.e., that the case was not confined to the chemical exceedances and the need for removal of asbestos) but also that the case was not as broad as contended by the appellant (i.e., that it was not as broad as a failure to disclose the Pits simpliciter). Rather, his Honour said that the case was "one about the contents of the Pits - containing significant contamination including asbestos".
9. His Honour also considered (as I have earlier adverted to) that the case was clearly pleaded on the basis of non-disclosure, rather than any positive misrepresentation (as had been contended for by Senior Counsel for the appellant) ([164]) but his Honour went on to say that he was not sure that much turned on this, in circumstances where essentially the same conduct was relied upon as giving rise to the alleged positive misrepresentation as the circumstance in which it was alleged that the appellant had a reasonable expectation of disclosure.
10. After setting out the relevant principles, his Honour addressed (from [180]) the claim based on misleading or deceptive conduct. His Honour considered at [181] that there was a lack of clarity as to how the appellant put its case: the pleading alleging three non-disclosures and concealment by filling in the Pits; and the submissions contending that the case was put on two bases (positive misrepresentation and non-disclosure in circumstances where there was a reasonable expectation of disclosure).
11. His Honour understood the positive misrepresentation case to be "purportedly based on a half-truth" i.e., that what was said or done in the circumstances gave the impression that there was no contamination and, in those circumstances, the failure to correct the impression and disclose the Contamination was misleading or deceptive.
12. Pausing here, this accords with the submission put by the appellant in this Court (at [21]) to the effect that the failure to bring to its notice the relevant information (i.e., the nature of the Contamination) had the capacity and tendency, in and of itself, to create or confirm the impression that as at the date of the Option Deed no "issues" existed with the Land. The appellant says that this was misleading because the respondents failed to advert to a material matter which significantly qualified what was expressly said and done in circumstances where it had an express obligation under the Exclusivity Agreement to disclose such matters. However, the appellant explains this as being that it is "what was not said and done in the context of what was said and done" (emphasis as per appellant's submissions). The appellant submits that the failure to disclose was, in the circumstances, misleading because in the surrounding circumstances that existed in between signing the Exclusivity Agreement and the Option Deed there was a "reasonable expectation" that the respondent (presumably this is meant to include both respondents) would disclose the nature of the Contamination.
13. His Honour went on (at [182]) to say that cases of half-truth "are simply a species of misleading conduct by silence by where what is said or done gives rise to a reasonable expectation that if certain facts exist, they will be disclosed". Again, that seems to me to be in accordance with the submission here put by the appellant (as noted above), albeit that the appellant's submission goes further than a reasonable expectation of disclosure case but (as his Honour clearly recognised at [164]) extended to the contention that there was a positive misrepresentation case (arising from the alleged express or implied obligation of disclosure under the Exclusivity Agreement).
14. His Honour made clear how he intended to analyse the alleged misleading or deceptive conduct, namely that he proposed to do so in light of all relevant circumstances, including acts, omissions, statements or silence ([183]). The appellant does not challenge the correctness of that approach but, rather, asserts that the primary judge did not do this, complaining that (at [212]-[216]) his Honour looked at the relevant factors in a piecemeal fashion (see AT 24.34).
15. At [190], the primary judge turned to the terms of the Exclusivity Agreement. His Honour rejected the appellant's contention that, properly construed, those terms (and principally cll 3(a)(ii)-(iv)) gave rise to an obligation of disclosure, saying that: … The terms of the Exclusivity Agreement do no more than impose obligations on the Vendor in relation to any due diligence which the Purchaser chose to carry out. They do not give rise to an obligation to disclose.
16. His Honour said that it was a matter for the appellant to determine the due diligence that it wished to carry out in relation to the purchase; and, referring to cl 3(a)(ii) that it was self-evidently for the appellant to determine what information that the respondent had which was necessary for it to complete due diligence; that it was not for the respondent to guess and disclose what it thought was relevant ([191]). The appellant here complains that this was an unduly narrow construction of the Exclusivity Agreement (see for example at AT 15.28).
17. At [195], his Honour said that "[i]f it was intended that the Vendor was required to disclose certain information to the Mayrin Group during the exclusivity period, then a clause to that effect could easily have been included in the Exclusivity Agreement". His Honour went on to say (at [196]-[198]) that: 196. The Purchaser contended the disclosure was required under the Exclusivity Agreement because it was clear - and Mr Crittle ultimately admitted as much - that the due diligence process was about assessing whether or not there is a risk of contamination, and any knowledge Mr Crittle has about that subject should be disclosed because such disclosure would assist in the due diligence process. The submission was further developed by reference to the obligation being to assist 'as far as possible' - it being contended that it was obviously possible for Mr Crittle to disclose what he knew. Disclosure of the location of the contamination would clearly assist the due diligence process as it would allow the tester to take the samples and do the tests that are considered necessary in that particular area of concern. 197. The terms of the Exclusivity Agreement, properly construed, do not work this way in imposing such an obligation. Properly construed, the obligation is to assist (including not hinder) the due diligence audits and inquiries made by the Purchaser. 198. The terms of the Exclusivity Agreement make it clear that the Purchaser was wanting to carry out its own inquiries/due diligence and was not looking to Vendor and Mr Crittle to disclose, without more, what was known about matters which either might have thought were relevant to the Purchaser.
18. The appellant here complains that his Honour impermissibly engaged in a re-writing of the contract, including insofar as he included the parenthetical words in [197] (see above). I discuss this in due course.
19. His Honour considered that his conclusion was reinforced when regard was had to what occurred after the execution of the Exclusivity Agreement (i.e., that the appellant engaged JKE to carry out work in relation to contamination and the second respondent was not asked to disclose any information) ([199]).
20. Insofar as the appellant had placed some reliance on the decision of Barker J in Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981 at [642]-[648] (Metz) (a case where there was a contractual warranty to the effect that the party was not in possession of any knowledge or information which, if unrevealed, could later prove detrimental to or adversely affect the normal trading of the business or, if revealed, could cause the other party to modify substantially the terms of, or withdraw, its offer), the primary judge did not consider that this assisted the appellant and said that it was "somewhat against" the appellant's case ([201]). His Honour noted that the appellant accepted that there was no equivalent warranty "or anything approaching it" in the present case (at [203]), going on to say that: 203. … The absence of such a clause is, in my view, important in understanding what was conveyed by the defendants or what the Purchaser could reasonably expect to be disclosed. Absent a clause requiring that the Vendor would disclose information as part of the due diligence, it is difficult to derive any reasonable expectation of disclosure, particularly against the usual backdrop of caveat emptor which is apparent from the terms of the Contract for Sale of Land and given the opposing commercial interests of the parties.
21. As to the reliance placed by the appellant on the Draft Sale Contract attached to the Option Deed (and the fact that it disclosed some matters in cl 11 but not the Contamination), his Honour said that its terms did not assist the appellant's case (and were in fact contrary to it) ([207]). In this regard reference was made to the provision that made clear that the Land was sold on an "as is" basis and the acknowledgment that the appellant had inspected the Land and was satisfied as to its condition and state of repair (his Honour referring to cl 11.1 and cl 17.1).
22. What the primary judge said (at [207], [209]-[210]) was that: 207. The terms of the contract do not assist the Purchaser's case and are in fact contrary to it. The contract makes it quite clear that the Land is being sold on an "as is" basis and the Purchaser acknowledges that it has inspected the Land and improvements being purchased and has satisfied itself as to its condition and state of repair and accepts it in its present condition and state of repair (cl 11.1). Clause 17.1 is to like effect. … 209. The disclosures that are then made in clause 11 are clearly made "without limiting the generality of special condition 11.1". The contract makes it clear that these disclosures are being made by the Vendor for the purposes of s 55 of the Conveyancing Act 1919 (NSW) and the Conveyancing (Sale of Land) Regulation 2017. None of this avails the Purchaser. 210. The terms of the contract proceed on the ordinary basis of buyer beware. The fact that the clauses would only come into effect if the option was exercised - a matter relied upon by the Purchaser - is not to the point. The contract was on the table during the exclusivity period and the parties were locked into that contract once the Option Deed was executed. Having regard to the terms of the contract, any expectation by a Purchaser that they would be told matters contrary to the terms of the contract, would not be a reasonable one.
23. Then, at [212]-[216], to which I have already referred, his Honour addressed sequentially (and expressly did so briefly) other matters relied upon by the appellant as giving rise to a reasonable expectation that the Contamination would be disclosed: the fact that the Land had been rezoned for residential purposes (and as rezoned was required to be assessed for the potential of ground contamination) ([212]); the fact that the respondents were aware that the appellant wanted to carry out due diligence ([213]); the respondents' knowledge that the appellant was carrying out due diligence including attendance by an environmental expert ([214]); the fact that access was provided for JKE to carry out testing in relation to contamination ([215]); and the fact that there were communications with regard to a certificate of non-compliance for sewerage drainage ([216]). His Honour considered (at [217]) that there was nothing in the circumstances that gave rise to any reasonable expectation that the Contamination would be disclosed; and noted that the test was objective not subjective ([218]).
24. Further, at [219] his Honour said that, even on the expanded case propounded by the appellant at the hearing (i.e., the positive misrepresentation case), there was no positive representation by the first respondent that it had disclosed in effect that there was no contamination or no contamination known to the respondents.
25. As to the concealment claim, his Honour did not understand it to involve any separate elements to the non-disclosure claim ([221]). His Honour said that, in any event, he could not see how the actions of the respondents in filling in the Pits involved any misleading or deceptive conduct (in circumstances where there was no positive misrepresentation as to no contamination, no reasonable expectation that contamination would be disclosed, and that the Land was being bought on an "as is" basis) ([221]).
26. His Honour considered that this analysis of the misleading or deceptive conduct claims sufficed for them to be dismissed; and that it was thus not strictly necessary to consider issues in relation to the second respondent's knowledge of the Contamination ultimately found on the Land. However, his Honour went on to say that, had it been necessary to consider the issue of the second respondent's knowledge of the Contamination, he would have found that there was nothing in the circumstances to require disclosure of anything other than what the second respondent knew in relation to the Contamination (i.e., as found at [140]-[141]) ([222]).
27. His Honour repeated the finding that the second respondent was not aware of the asbestos ultimately found in the Pits and his rejection of the appellant's contention that the case as pleaded was broad enough to require disclosure of the existence of the Pits simpliciter. His Honour said that those findings provided a "further reason" as to why the misleading or deceptive conduct claims failed ([222]). The appellant cavils with that last observation.
28. At [223], his Honour said that: Mr Crittle's knowledge really went no further than that the Pits had been used to deposit some rubbish which, in substance, was really no different to what JKE alerted the Mayrin Group to the possibility of in the draft JKE report dated 16 March 2022.
29. The appellant also cavils with that finding (see below) and maintains that it is inconsistent with the earlier findings of knowledge at [140]-[141]; (i.e., that the second respondent knew more than the "possibility" of the items that were found, or had been placed by him, in the Pits).
30. The primary judge addressed the claims against the second respondent personally at [224]-[226] and then (at [227]-[229]) the claim of fraudulent concealment (as to the latter, noting a concession in closing address that the fraud claim added nothing to the misleading or deceptive conduct claims and that there was no basis on which it could succeed if the misleading or deceptive conduct claims failed).
31. From [231] his Honour, in obiter, considered the issue raised by the respondents as to whether there was no power to make an order under s 243 of the ACL (even if there had been a contravention) as the appellant had not established that it suffered damage or was likely to suffer damage (i.e., the issue now raised by the Notice of Contention). The contention by the respondents was that the value of the relevant counterfactual had not been established, there being no evidence as to the value of the Land either at the time of exercise of the option or at the time of execution of the Option Deed (see [233]).
32. His Honour said that, had the issue been necessary to decide, he would not have upheld the respondents' contention ([244]); that he would have been satisfied that the appellant was likely to suffer the necessary detriment by being forced to complete on a contract that it otherwise would not have entered into, being a contract to purchase the Land which is contaminated to the extent found by the appellant's expert and which would need to be remediated.
33. His Honour dismissed the SOC and ordered that costs follow the event.

Events after judgment

1. As noted above, the primary judge delivered his reasons and made orders on 22 March 2024.
2. On 25 March 2024, the appellant exercised the call option and provided a signed version of a contract for the purchase of the Land (Sale Contract). Settlement of the Sale Contract occurred on 6 May 2024. Also on 6 May 2024, the appellant gave notice terminating the post-settlement licence in favour of the first respondent that had been granted pursuant to the Sale Contract. The termination of that licence took effect from 20 May 2024.
3. The respondents point out that there was no suggestion by the appellant following the judgment that the option exercise period should be extended or that settlement under the Sale Contract should be deferred pending determination of an appeal; nor was any application for interlocutory relief made to the Court to preserve the then status quo pending the determination of this appeal.
4. The respondents (and the second respondent's family members who were living on the Land before the Sale Contract completed) vacated the Land. The respondents raise these circumstances (see Ground 2(d) of their Notice of Contention) as going to whether any discretion that falls to be exercised by this Court should be exercised so as to render void the Sale Contract in circumstances where that Sale Contract has already been carried into effect and where they contend that the steps taken under the Sale Contract cannot be undone without causing prejudice to the respondents and to the second respondent's family more generally.
5. By leave granted at the hearing of the appeal, the respondents relied upon an affidavit sworn 8 July 2024 by the second respondent as to the position of the respondents following the vacation of the Land (going to the question whether the discretion to grant the relief sought by the appellant for the re-transfer of the Land should be exercised even if it be enlivened). The application to rely upon that evidence was not opposed (AT 1).

Amended Grounds of Appeal

1. By an Amended Notice of Appeal filed on 24 June 2024, the appellant appeals on the following grounds: (1) The primary judge erred in finding that there was no misleading or deceptive conduct or conduct that was likely to mislead and deceive contrary to s 18 of the Australian Consumer Law (ACL) on the part of the Respondents, and in particular he erred: (a) In finding that the Exclusivity Agreement did not impose an obligation on the Defendants to disclose the whereabouts and/or existence of the material buried in the "Pits" (as defined in paragraph 18 of the Judgment); and (b) In finding that the failure to disclose the existence of the material buried in the Pits whether in the draft Contract of Sale or otherwise, in the context of other disclosures made in such draft Contract of Sale, did not give rise to conduct contrary to s 18 of the ACL. (2) The primary judge erred by fusing two, independent and differing approaches to the assessment of misleading conduct under s 18 of the ACL, namely, the approach of a 'positive representation giving rise to a half-truth' and the approach of a 'reasonable expectation of disclosure arising from the whole of the circumstances' and in so doing, did not apply either approach correctly. (3) The primary judge erred by failing to assess as a whole the circumstances contended as giving rise to a contravention of s. 18 of the ACL. (4) The primary judge erred in dismissing the Statement of Claim.
2. The relief sought in the Amended Notice of Appeal, relevantly, includes: 3. An order pursuant to ss 237 and 243 of the ACL that the Contract of Sale dated 25 March 2024 (Contract) between the First Respondent and the Appellant be declared void. 4. An order pursuant to ss 237 and 243 of the ACL that the money paid by the Appellant to the First Respondent pursuant to the Option Deed dated 23 March 2022 and/or the Contract be refunded and paid to the Appellant. 5. In the alternative, the proceedings be remitted to the court below for the assessment of damages.

Notice of Contention

1. By Notice of Contention filed on 20 May 2024, the respondents contend that the decision of the primary judge should be affirmed on the grounds relied on by the primary judge or, in the alternative, on the following grounds: No loss or damage or likelihood of loss or damage demonstrated 1. The court below had no power to make the orders sought by the Plaintiff pursuant to ss 237 and 243 of the Australian Consumer Law (ACL) because the Plaintiff did not demonstrate that it was a person "who has suffered, or is likely to suffer, loss or damage" within the meaning of that phrase in s 237 of the ACL (cf judgment below (J) at [231]-[244]). Relief should (and, to some extent, must) be refused even if the primary judge erred as alleged 2. In the alternative to ground 1 of this notice, if (which is denied) the court below: (a) erred in finding that the Defendants did not engage in misleading or deceptive conduct in contravention of s 18 of the ACL as alleged by ground 1 of the Appellant's notice of appeal filed 18 April 2024 (NoA); (b) ought to have found that the Defendants or either of them engaged in misleading or deceptive conduct in contravention of s 18 of the ACL (as implicitly alleged by ground 2 of the NoA); and (c) did not err in finding that, had misleading or deceptive conduct been demonstrated, the Plaintiff was likely to suffer the necessary detriment to constitute itself a person "who has suffered, or is likely to suffer, loss or damage" within the meaning of that phrase in s 237 of the ACL (J at [244]; cf ground 1 of this notice). this Court should nevertheless (d) refuse in the exercise of its discretion to grant the relief sought by prayers 3 and 4 of the NoA (recission and repayment orders) or like relief having regard to the following matters: i. after the decision of the court below, the Appellant exercised a call option under the Option Deed that it seeks to have this Court declare to be void and thereafter exercised rights under a contract of sale that came into existence upon the exercise of that call option (including the right to require the First Respondent to transfer certain real property to the Appellant) without first seeking any agreement or undertaking from the Respondents or interlocutory relief from this Court directed to avoiding or mitigating prejudice being suffered by the parties or any of them in the event that this Court were to detect error in the decision below and to find that the discretion in s 237 of the ACL relevantly fell to be exercised; ii. the Respondents and persons associated or connected with them or either of them would suffer prejudice if the Option Deed were declared void and orders were made directed to reversing the steps taken under or consequent upon the Option Deed; iii. the Appellant has not demonstrated that it has suffered or is likely to suffer, any prejudice or disadvantage from having entered into the Option Deed (other than the bare fact of entry into the Option Deed); and (e) refuse to order that the Respondents or either of them pay damages to the Appellant in an amount to be assessed (as sought, in substance, by prayer 5 of the NoA) on the ground that the Appellant has not demonstrated that it has suffered any loss or damage of the sort that constitutes or is likely to lead to an "amount of … loss or damage" within the meaning of s 243(e) of the ACL with the result that: i. the Appellant has not demonstrated that the power conferred on this Court by s 243(e) of the ACL to award "damages" or statutory compensation in the nature of damages has relevantly been enlivened; and ii. the Court would not in the exercise of its discretion exercise any other power that it has by s 237 of the ACL to award like relief.
2. As adverted to above, the respondents press Ground 1 of the Notice of Contention as a formal submission only, conceding that this Court is bound not to accept it.

Ground 1 - construction of Exclusivity Agreement/proposed Contract of Sale

Appellant's submissions

1. The appellant submits that the primary judge erred in the construction of the Exclusivity Agreement (at [190]) (see above). The appellant advances four reasons in support of that submission (and also raises some additional issues in relation to this Ground).
2. First, the appellant contends that his Honour did not construe the Exclusivity Agreement in the context of the whole of the circumstances that objectively existed; rather, it is said that the primary judge construed it in a "fragmented" way, divorcing it from the "colour" provided to it from the surrounding circumstances. Those circumstances are identified as being that: the Land had been the subject of a significant development approval process, in an effort to increase the residential density of the Land; the Land was being bought for residential sub-development (the appellant intending to develop the Land for residential purposes and the second respondent having told the appellant's representatives that "[y]ou are going to make a lot of money"); the appellant proposed to conduct environmental and geotechnical assessments of the Land in order, among other things, to assess the existence of potential contamination; and the appellant was given a limited three-week due diligence period "to get the deal". (Pausing here, the primary judge was clearly aware of all of those issues.)
3. Second, the appellant says that, in making the findings at [195] and [203] (see above) in support of his construction of the Exclusivity Agreement (at [190]), the primary judge engaged in a reasoning process against which the authorities have cautioned (namely, in reasoning that the parties could easily have included disclosure clauses in the Exclusivity Agreement had they intended that the first respondent be required to disclose information as part of the due diligence process). The appellant complains that his Honour did not undertake the required method of construction (of looking at the agreement and asking what reasonable parties should be taken to have intended by the use of the words in the agreement) but, rather, made the finding (at [195]) by retrospective reasoning.
4. Third, the appellant refers to the reasons at [196]-[198] (set out above) and complains that, by concluding that there was no obligation on the first respondent to disclose matters that it knew would assist the appellant in its due diligence, the primary judge rendered nugatory the words "as far as possible" in cl 3 of the Exclusivity Agreement. The appellant submits that those words have a clear and important function in mandating that the first respondent assist "as far as possible" the due diligence; and that this required the first respondent (pro-actively or voluntarily) to provide information which objectively assisted the "due diligence" unless it was not "possible". The appellant here refers to the construction of the words "as far as possible", in a statutory context, as equating to a duty and correlative right, citing Hall v Fish Board [1957] St R Qd 565. The appellant refers also to Commissioner of Patents v Ono Pharmaceutical Co Ltd (2022) 291 FCR 1 at [134], where the words were held to operate as qualifying words in the sense that they recognise that a party who is obliged to provide information may not, in all cases, be able to identify in the production, with exactitude, every element it is obliged to address.
5. The appellant argues that the words used by the primary judge in construing the obligation as meaning merely to assist "including not hinder" the due diligence audits and enquiries made by the appellant imposed an impermissible limitation on an otherwise straightforward obligation. The appellant says that the Exclusivity Agreement (cf the position in Wormald v Maradaca Pty Ltd [2020] NSWCA 289) has no qualifying clauses and the appellant says that there are no circumstances qualifying reasonable expectations about the assistance to be provided.
6. The appellant argues that the primary judge impermissibly read down cl 3.1(a)(iii), emphasising that it is not the role of the court to improve the contract (citing Arnold v Britton [2016] 1 All ER 1; [2015] AC 1619 per Lord Hodge at [76]; and Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 per Basten JA at [27]-[38]); and contends that, by determining that the first respondent had no positive duty to disclose, the primary judge placed a strained and unrealistic interpretation on the words of cl 3.1(a)(iii) - in effect, rendering the words "as far as possible" to be mere surplusage. The appellant says that this wholly addresses the criticism made by the primary judge of the appellant's reliance on the decision in Metz (see [201]-[203]). The appellant contends that the contractual warranty given by cl 3(a)(iii) of the Exclusivity Agreement plainly meant that, not only would the first respondent make appropriate disclosures, but also, impliedly, that, if it did not, it had nothing material to disclose.
7. Fourth, as to the rejection of its submission based on the Draft Sale Contract attached to the Option Deed (see [203], [207]-[210]), the appellant says that the primary judge's reference to "buyer beware" (or caveat emptor) reflected a tendency to combine what the "general law" considered was required for silence to constitute misleading conduct and what the statutory provision actually requires. It is submitted that, by relying on that principle, the primary judge adopted a test for implication of a contractual term, rather than an assessment of misleading conduct by a failure to speak.
8. The appellant argues that the primary judge misconceived the nature of the Draft Sale Contract attached to the Option Deed. The appellant argues that his Honour's reliance on the disclaimers in the Draft Sale Contract, as facts to be taken into consideration, was "a premise built on shadows" because the disclaimers were nothing more than a conditional warranty that had not yet come into operation (having regard to the nature of the equitable interests that arise on entry into the Option Deed; and the fact that the creation of such equitable interests does not create a sale or disposition of the property). The appellant contends that these were not matters that could be taken into consideration as influencing any expectation of the appellant that it would be told matters contrary to the terms of the contract.
9. In contrast, the appellant submits that the "significant disclosures" (as to various structures, livestock and carrying capacity, plant and equipment and the septic tank and online management system) contained in the Draft Sale Contract could be taken into consideration as matters giving rise to a reasonable expectation that there was nothing else to disclose. In this regard the appellant emphasises the disclosure as to work to be done in relation to the septic tank and onsite management system in cl 20 as being "particularly instructive". The appellant relies on what was said by French CJ and Kiefel J in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 (Miller) (at [23]), namely: When a document contains a statement that is true, non-disclosure of an important qualifying fact will be misleading or deceptive if the recipient would be misled, absent such disclosure, into believing that the statement was complete. In some cases it might not be necessary to invoke non-disclosure at all where a statement which is literally true, but incomplete in some material respect, conveys a false representation that it is complete.
10. The two additional matters raised by the appellant in relation to the primary judge's reasoning in respect of the Exclusivity Agreement are as follows.
11. First, the appellant says that the reasoning (at [190] and [220]) by reference to the fact that the appellant asked no specific questions of the respondents as to whether there was any contamination and that it had engaged geotechnical engineers to attend the Land to investigate the existence of contamination misses the point that this is an objective enquiry. The appellant argues that the fact that it could or should have made its own enquiries which would have discovered the misleading or deceptive conduct is not an answer to misleading or deceptive conduct claims.
12. The appellant says that, because part of its case was founded on a representation allegedly implicit in the impugned conduct, the absence of an express representation or the failure to make enquiry does not mean that an erroneous impression was not conveyed by the respondents' conduct. It contends that the act of the first respondent in proceeding to execute the Option Deed without disclosing any matter related to or arising from the concealment of the Contamination had the capacity and tendency to convey the impression that there was nothing latently wrong with the Land.
13. The appellant argues that this conclusion is fortified by the second respondent's knowledge of the various matters to which it pointed in submissions before the primary judge (including those referred to at [91] above) and the substantial increase in the price at which the first respondent purchased the Land ($1.6m) and that at which the appellant was purchasing it ($88m) and emphasising that the due diligence process was about assessing whether or not there was a risk of contamination. The appellant also points to the second respondent's awareness that disclosure of any knowledge he had about the subject of contamination would assist in the due diligence process (referring to the contention made by the appellant to the primary judge and recorded by his Honour at [196] and to the cross-examination at T 168.10-36).
14. The appellant says that it defies credulity that the first respondent did not understand that the concealed Contamination was a fact that the appellant (or its related company) would have wanted to know about; and says that, in those circumstances, the failure to bring such information to its notice had the capacity and tendency to create or confirm the impression that no issues, including the concealed Contamination, existed. On that basis, the appellant says that the failure to disclose constitutes conduct for the purposes of s 18 of the ACL.
15. Second, the appellant argues that the primary judge failed to consider whether the conduct was "likely to mislead". The appellant says that it was not necessary to show that the conduct was actually misleading; and that the question whether conduct may be characterised as misleading or deceptive, or likely to mislead or deceive, is a question of fact to be determined objectively, having regard to the actual or possible consequences of the conduct (and not limited as to an enquiry as whether the claimant was actually misled). Hence, the appellant submits that the focus of the primary judge ought to have centred on how, or in what manner, the failure by the respondents to advert, at all, to "any matter arising from or connected to" the Contamination (concealed or otherwise), had the potential to mislead or deceive the appellant.

Respondents' submissions (and appellant's reply thereto)

1. First, as to the Exclusivity Agreement, the respondents maintain that the primary judge's construction is correct; and that the terms of the Exclusivity Agreement relied upon by the appellant (extracted at [43] of the primary judge's reasons) unambiguously only imposed obligations on the first respondent in relation to any due diligence which the purchaser chose to carry out; and did not require the first respondent to "guess" what a member of an international property group (Mayrin) might be interested in and to disclose that. (In reply submissions, the appellant says that the respondents were not required to "guess" as to what information the appellant was seeking through its due diligence. The appellant reiterates that the second respondent knew that the appellant wished to assess the risk of contamination on the Land (referring to the evidence of the second respondent in cross-examination at T 168.10-36).)
2. The respondents argue that (in the absence of ambiguity) there was no occasion for the primary judge to resort to the "colour" of the surrounding circumstances in construing the Exclusivity Agreement; rather, the process of construction was possible by reference to the written contract alone; but that, in any event, none of the surrounding circumstances now relied upon by the appellant supports reading the Exclusivity Agreement otherwise than in accordance with the plain meaning of its text; and hence no relevant "constructional choice" arises whether or not regard is had to surrounding circumstances. (In reply submissions, the appellant says that the existence of the Exclusivity Agreement was, of itself, a matter to be taken into account and that, in considering the effect of the document, it had to be examined in the context of the evidence as a whole. The appellant further submits that it is well accepted that reference to surrounding circumstances is required in construing a commercial contract; and that reference to the "true rule" from Codelfa v State Rail Authority (1982) 149 CLR 337; [1982] HCA 24, does not deny the relevance of surrounding circumstances.)
3. As to the appellant's criticism of the primary judge's observation at [195] (that "[i]f it was intended that [the first respondent] was required to disclose certain information to the Mayrin Group during the exclusivity period, then a clause to this effect could easily have been included in the Exclusivity Agreement"), the respondents say that this is misplaced; that, although caution is urged in taking into account the absence of text when interpreting the text that is there, there is no prohibition on so doing. The respondents argue that the correct approach is that explained by Lopes LJ in Colquhoun v Brooks (1888) 21 QBD 52 at 65 (there in the context of discussing the expressio unius maxim) namely that "[i]t is often a valuable servant, but a dangerous master to follow". The respondents argue that, in any event, the primary judge did not err as the appellant has suggested (i.e., that his Honour did not hold in effect that where the parties contemplated only one event and not another that their agreement must be taken to apply only in that first event and not in the other). (In reply submissions, the appellant says that the expressio unius principle cannot apply to the construction of relevant clauses of the Exclusivity Agreement because there are no expressed elements within such clauses, (beyond the obligation to provide assistance) that could warrant the exclusion of a particular form of assistance from its scope.)
4. The respondents further argue that even if there were some error in the comment made at [195] this would not undermine his Honour's ultimate conclusion as to the construction of the Exclusivity Agreement.
5. As to the appellant's contention that the primary judge erred by rejecting the appellant's submission based on the words "as far as possible", the respondents say that the phrase "as far as possible" is a phrase of limitation and does not change the subject-matter of the underlying obligation. The respondents maintain that his Honour correctly found that the underlying obligation under the Exclusivity Agreement was an obligation "to assist (including not hinder) the due diligence audits and inquiries made by the purchaser"; not to "guess" what the purchaser might be interested in; and that the limiting words "as far as possible" do not tend against that construction. (In reply submissions, the appellant reiterates its complaint that the primary judge effectively re-wrote the clause by the insertion of words of limitation ("audits and inquiries made by the purchaser") and by the removal of other words "as far as possible".)
6. Second, as to the proposed Draft Sale Contract, the respondents say that the primary judge did not overlook the fact that Draft Sale Contract attached to the Option Deed was a draft, noting that his Honour acknowledged as much at [210]. The respondents submit that the gravamen of the primary judge's reasoning on this issue (which they maintain was correct) was to say that the Draft Sale Contract did not advance (and was contrary to) the appellant's case in circumstances where the Option Deed was drafted and ultimately executed on the basis that, if the option were exercised, a contract would come into existence under which the appellant would purchase the Land on an "as is" basis and without the first respondent being required to give any warranties or disclosures regarding the land other than those required by s 55 of the Conveyancing Act 1919 (NSW) and the Conveyancing (Sale of Land) Regulation 2017 (NSW).
7. The respondents say that nothing in the Draft Sale Contract supported the proposition that, by or in connection with the Option Deed, the first respondent implicitly represented that it knew nothing about the Land that might be of interest to the appellant; nor was there any reason to conclude that the Draft Sale Contract contained representations that, while literally true, were misleading or deceptive.
8. In reply submissions, as to the disclosures contained in the Draft Sale Contract, the appellant draws a distinction between the provision of such a document by the respondents as part of the negotiation for the sale of the Land, the entry into the Option Deed and the exercise of either the put or call option that then creates the Sale Contract. The appellant argues that the provision of the Draft Sale Contract disclosed particular matters pertaining to the Land and that those disclosures constituted representations to it by the respondents about the Land in respect of it entering into the Option Deed. The appellant accepts that the remaining provisions of the Draft Sale Contract, being representations or warranties of limitation accepted by the appellant, only have effect when and if the Sale Contract is entered into but the appellant says that the material disclosures provided with the Draft Sale Contract are nevertheless disclosed by the respondents; and that such disclosures were made in the context of the Exclusivity Agreement and the expected development of the Land for residential sub-division. The appellant maintains that the disclosures contained within the Draft Sale Contract should, in the context of all the circumstances, have caused the primary judge to conclude that what was represented constituted a "half-truth" in respect of the Land.
9. As to the additional issues raised by the appellant in relation to Ground 1, the respondent says that the primary judge did not proceed on the basis that a finding that conduct is misleading or deceptive could be "avoided merely because a plaintiff could by proper inquiries have discovered the misleading or deceptive conduct"; or that misleading or deceptive conduct cannot be engaged in by an implied misrepresentation; or that s 18 of the ACL is only contravened if there is proof that someone is actually mislead (as the appellant suggests).
10. Rather, the respondents say that in the passages of the primary judge's reasons challenged by Ground 1, the primary judge was responding to the appellant's arguments to the effect that the Exclusivity Agreement and Draft Sale Contract advanced the appellant's case; and that, in considering those arguments, his Honour construed the Exclusivity Agreement and Draft Sale Contract (and found that neither in fact advanced the appellant's case). (In reply submissions, the appellant says that it is apparent from the primary judgment (for example at [220]) that the primary judge put weight on it not having asked relevant questions as a basis for finding that no misleading conduct occurred and reiterates its position that, in the context of misleading conduct by silence, there is no obligation on a party to make enquiries in order to justify a finding of misleading conduct.)

Determination

1. The applicable principles when construing a commercial contract were set out by the primary judge and need not here be repeated. I do not accept that his Honour erred in the application of those principles to the construction of the Exclusivity Agreement as the appellant here contends.
2. Addressing the particular complaints made in this context, I do not accept that his Honour construed the Exclusivity Agreement in a fragmented way, nor that his Honour ought to have concluded that his interpretation was contrary to the surrounding circumstances leading up to the Exclusivity Agreement. His Honour had earlier in his judgment noted the various matters which the appellant here emphasises as matters to which his Honour should have had regard in this context.
3. The circumstances identified by the appellant may well have made the imposition of a disclosure obligation in its interests but they do not in my view point to an interpretation of cll 3(a)(i)-(iv) as imposing such a disclosure obligation. So, for example, his Honour clearly had regard to the limited time allowed for the due diligence period and that this had significantly curtailed the work that could be done by JKE to investigate the issue of contamination (see [188]-[189]). His Honour had earlier noted the factual background including the rezoning of the area of which the Land formed part and the appellant's intention to develop the Land into a residential sub-division; and was clearly conscious at [196] of the purpose of the due diligence process.
4. In then turning to the terms of the Exclusivity Agreement, from [190], his Honour understandably focused on the terms of the relevant clauses on which the appellant relied but his Honour was not there failing to take into account "the very existence" of the Exclusivity Agreement itself (and, indeed, the existence of an exclusivity period without more could hardly inform the question whether there was a pro-active or voluntary obligation of disclosure in the absence of an express term to that effect).
5. I do not accept the appellant's submission that "allow" in cl 3(a)(ii) (in the context of allowing access to information) means "provide" (even if, in some circumstances, allowing access - say to documents in a due diligence room - might encompass allowing copies to be made of those documents). Allowing access to books in a library, for example, is very different to providing those books (or permitting them to be borrowed). The natural meaning of those words does not in my opinion support the appellant's construction.
6. The real nub of the appellant's complaint as to his Honour's construction of the Exclusivity Agreement (at [190]) is that his Honour impermissibly re-wrote the relevant clause (cl 3(a)(iii)). In that regard the complaint encompasses the fact that his Honour added the parenthetical reference to the meaning of assist (i.e., as including not to hinder); and that his Honour referred to assistance being to "due diligence audits and inquiries made by the Purchaser" (which words the appellant notes appear in (ii) and (iv) but not (iii)). The appellants in oral submissions also say that the error was that the requirement for the appellant to make some positive request for information was in essence a re-writing of the contract (see AT 4.32).
7. His Honour's parenthetical reference at [197] is not an impermissible re-writing of the contract. Rather, it is an explanation of what is encompassed by the verb "assist"; i.e., that the obligation could extend beyond a positive obligation of assistance to a negative obligation not to hinder. The use of parentheses makes this clear. No error is there revealed.
8. I also do not accept the criticism made of his Honour's reference to what the parties could have included in the contract had they wished to do so (see [195]). This was not engaging in some form of impermissible reasoning; it was a simple observation reinforcing the conclusion already drawn from the language of the clause considered in the context.
9. As to the complaint that his Honour engaged in some form of impermissible retrospective reasoning by reference to what occurred after the Exclusivity Agreement (see [199]), again this was no more than an observation that reinforced the conclusion that his Honour had already reached as to the construction of the Exclusivity Agreement.
10. Nor do I accept that his Honour unduly limited or narrowed the operation or construction of the Exclusivity Agreement, as contended. In my opinion, the reference to audits and enquiries made by the appellant was simply a description of what would ordinarily be understood to form part of a "due diligence process"; not an undue narrowing of the obligation in cl 3(a)(iii); and I do not accept that his Honour's construction imposed a requirement on the appellant to make enquiries. Rather, the focus was on what was required by way of assistance in the due diligence process and I do not see that as imposing a positive obligation of disclosure (in the absence of something that would otherwise call for disclosure - whether by way of direct enquiry or otherwise).
11. His Honour's construction of cl 3(a)(iii) does not render nugatory or mere surplusage (or impermissibly narrow the operation of) the words "as far as possible". Whether those words be properly read as words of limitation (as the respondents contend) or expansion (as the appellant contends), they relate to the extent of the assistance to be provided. They do not in my opinion impose an obligation of voluntary disclosure of anything that might be relevant to (or even of anything that might be understood to be of interest in relation to) the due diligence process. In other words I consider that the words "as far as possible" qualify the extent of the assistance to be provided. I do not accept that "assistance" in the due diligence process imposes a positive obligation of disclosure which extends to a pro-active obligation to disclose matters to the appellant's attention whether or not an enquiry had been made as to those matters and whether or not the failure to disclose them would in the circumstances be misleading.
12. As to the submission that the respondents were not required to "guess" what the appellant would be interested in knowing because the second respondent knew that a due diligence process was being undertaken in relation to "contamination" or ground contamination, knowledge that the appellant was undertaking due diligence in relation to contamination (or would be interested in knowing about potential contamination), this rather begs the question as to whether there was a contractual obligation of disclosure. In my opinion the circumstances to which the appellant has referred do not elevate an obligation of assistance to a positive obligation of disclosure. (Moreover, the suggestion that because of his knowledge that due diligence of that kind was being carried out, the second respondent knew that the contents of the Pits was a matter which would be of interest to the appellant overlooks the evidence of the second respondent that he did not believe the material in the Pits to amount to contamination (or substantial contamination).)
13. His Honour's construction of cl 3(a)(iii) was in my opinion correct.
14. As to the import of the Draft Sale Contract (which is the focus of Ground 1(b)), in my opinion his Honour did not err in concluding that the disclosures contained in cl 11 of the Draft Sale Contract did not create a reasonable expectation of disclosure (nor did they amount to a half-truth). They were disclosures directed to matters other than contamination per se; and they were disclosures for the purposes contemplated by the relevant conveyancing legislation and regulations. They dealt with a different subject matter (as the appellant appears to concede - see AT 23-24). They did not convey an implicit representation that there was nothing else about the Land that the purchaser might wish to know or which might be material to the purchaser.
15. Finally, as to the additional issues raised by the appellant in relation to Ground 1, his Honour was clearly conscious that the test for misleading or deceptive conduct was an objective one. The observation that no questions were raised (see at [220]) was in response to the expanded case that his Honour found was not pleaded and his Honour was doing no more than to make the point that there was no positive misrepresentation (in response to an enquiry by the purchaser) or disclosure by the respondents in circumstances which conveyed that there was no contamination.
16. As to the complaint that his Honour failed to consider whether this conduct was "likely to mislead", what his Honour was addressing (in the finding here challenged at [190]) was whether there was misleading or deceptive conduct arising out of a failure to disclose in circumstances where there was either a positive disclosure obligation or a reasonable expectation of disclosure. The conclusion that there was no positive obligation to disclose and that the circumstances did not give rise to a reasonable expectation of disclosure meant that there was no conduct of the kind that the appellant alleged was misleading or deceptive or likely to mislead or deceive. The fact that his Honour did not use the whole of the statutory formula (i.e., misleading or deceptive or likely to mislead or deceive) does not bespeak error in the conclusion that, in the absence of a positive obligation to disclose or reasonable expectation of disclosure, the conduct relied upon as misleading or deceptive or likely to mislead or deceive simply had not been proved.
17. Ground 1 is therefore not made good.
18. In those circumstances, it is conceded that the challenges in the remaining grounds of appeal do not arise. However, for completeness, I address them briefly below.

Ground 2

1. First, the appellant cavils with the primary judge's observation (at [164]) that the claim was one "clearly pleaded on the basis of non-disclosure, rather than any positive misrepresentation", saying that the parties proceeded (and the primary judge determined the claim) on the basis that the appellant's claim included a claim for a positive representation, in addition to its claim for non-disclosure.
2. I do not accept that there was any error by his Honour as to the scope of the pleaded claim in this respect. I have set out above the relevant part of the pleading, which clearly premises the misleading or deceptive conduct (in terms of the failure to disclose) on the reasonable expectation of disclosure arising out of the matters identified at [36] of the pleading (see [36]-[37] of the pleading).
3. Nor do I accept that the case was conducted on the basis that the claim included a claim of positive misrepresentation. That ignores the very clear position of the respondents that they did not consent to a departure from the pleaded case.
4. The appellant says that the positive representation arose by reason of the provision of the Draft Sale Contract and the Exclusivity Agreement, together with the failure to make any disclosures in respect of the Contamination and in the context of each of the other matters identified in the appellant's submissions at [118]. The appellant says that this was the subject of the appellant's opening written submissions before the primary judge (referring to [42]-[44]; [74]-[90]). That was precisely what was understood by the primary judge, as being a case based on a positive misrepresentation arising out of a half-truth. At [219], the conclusion reached that there was no positive representation was addressing the positive misrepresentation case arising out of any "half-truth". No other positive misrepresentation case was pleaded.
5. What his Honour said about the "expanded" positive misrepresentation case was thus obiter, his Honour making the point that essentially the same conduct was relied upon as giving rise to the alleged positive misrepresentation as was relied upon as the circumstances in which it was alleged that the appellant had a reasonable expectation of disclosure.
6. Second, the appellant complains that his Honour elided two approaches to the characterisation of the respondents' conduct (i.e., silence or a failure to disclose) as misleading (one being to consider whether, in the circumstances, the conduct conveyed a positive misrepresentation; the other being to enquire whether the circumstances were such as to give rise to a reasonable expectation that, if some relevant fact existed, it would be disclosed - i.e., a negative case). In that context, the appellant refers as it did before the primary judge to what was said by the High Court in Miller (at [5], [19], [23] and [91]) and what was said in this Court in Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186 (Allianz) (at [42]).
7. The appellant submits that the elision of the two approaches by his Honour is evident from [181]-[183] of the judgment; and that his Honour failed to consider the statements in Miller and Allianz (in particular the statement in Miller at [23]); and did not properly deal with its alleged "positive representation" case, instead examining it as a species of misleading conduct by silence (using only the reasonable expectation analysis). The appellant emphasises the observations in Miller by French CJ and Kiefel J, as her Honour then was, that "[r]easonable expectation analysis is unnecessary in the case of a false representation where the undisclosed fact is the falsity of the representation" but that "[i]n some cases, it might not be necessary to invoke non-disclosure at all where a statement which is literally true, but incomplete in some material respect, conveys a false representation that it is complete" (see Miller at [23]).
8. The appellant says that, for the purposes of the "positive" aspect of the claim, the relevant non-disclosures were correctly described as positive representations in circumstances where the making of such representations impliedly represented that an incompatible state of affairs did not exist. It is submitted that execution of the Exclusivity Agreement (where the "EA Warranties" in cl 3 were made) and the issuing of the Draft Sale Contract without any disclosure of any matter arising from or connected to the Contamination "went to the very heart of the Option [Deed]". The appellant says that that omission was incompatible with the positive representations made (particularly in light of those contained in the contract for sale).
9. The appellant contends that the positive representations should have been construed through the circumstances at the time of the Option Deed (particularly the second respondent's knowledge and the access granted to the Land for inspections). The appellant argues that the primary judge was required to assess whether the positive acts constituted an implied representation that "any matters arising from and connected to" the Contamination did not exist or, conveyed something more, so as to lead the appellant into error or likely error; and that the focus ought to have been on what was not said, in the context of what was said, and whether that conduct was misleading or likely to mislead because it failed to advert to a material matter which significantly qualified what was expressly said and done.
10. Complaint is made in this context that, at [188]-[220], the primary judge assessed individually each substratum of fact by seeking to determine whether that did, or did not give rise, to a "reasonable expectation" (the appellant suggesting that, in approaching the "reasonable expectation" analysis, the primary judge assessed the material facts as if they were implied positive representations).
11. In reply submissions the appellant maintains its contention that there was no independent consideration made "or at least explicitly made" by the primary judge of whether a positive representation occurred, noting that the primary judge at [182] said that the "half-truth" type cases were a species of cases in which a "reasonable expectation" exists. The appellant appears to place weight on the absence of an acknowledgment that there was no requirement for a reasonable expectation of disclosure in a positive misrepresentation case. In other words the complaint is that his Honour wrongly proceeded to evaluate whether a positive representation was made by considering whether the requirement of a "reasonable expectation" was demonstrated.
12. The respondent contends that there was no error in the fact-finding process as here contended.

Determination

1. His Honour considered the relevant principles and authorities concerning misleading or deceptive conduct (at [165]-[179]) and (correctly in my opinion) recorded that the appellant's case was put on two bases: positive misrepresentations purportedly based on a "half-truth" and non-disclosure in circumstances where there was a reasonable expectation of disclosure (at [181]).
2. His Honour's understanding of the appellant's "positive misrepresentation" case as being based on a "half-truth" accords with the submissions made in this Court by the appellant, i.e., that there was an implicit (positive) representation that there was no contamination in the circumstances identified by the appellant including the disclosures that were made in the Draft Sale Contract; and in these circumstances the observation that this positive misrepresentation case eventually traversed the same circumstances as the claim based on reasonable expectation of disclosure is understandable. His Honour considered the scope of the pleading and rejected the appellant's "positive misrepresentation" case first on the basis that such a case was not pleaded (and there was no consent to an expansion of the pleading - see [147]); and, second, because no positive representation was relevantly made (see [219]).
3. There is no complaint as to the approach his Honour indicated (at [183]) he proposed to adopt and in my opinion, there was no error in his Honour's application of that approach.
4. I accept the respondents' submission that the primary judge's rejection of the unpleaded "positive misrepresentation" case was not based on consideration of whether there was a reasonable expectation that the falsity of a misrepresentation would be disclosed; rather, it was rejected because there was no positive misrepresentation in the first place. I read what was said at [164] and [219] as reflecting the primary judge's understanding that the appellant's positive misrepresentation case was distinct from its case based on reasonable expectation of disclosure.
5. I do not accept that the appellants' criticism of the process by which his Honour reached the conclusion that there was no positive misrepresentation. The primary judge was clearly proceeding (as he stated at [183]) to consider all relevant circumstances. At [184], his Honour noted that the starting point was a consideration of the parties; and his Honour then went on to note that the parties were dealing with each other on an arm's length commercial basis, had opposing interests, and had utilised their own lawyers ([185]-[187]). The discussion at [188] was a logical introduction to the consideration of the Exclusivity Agreement itself (and was relevant to consider having regard to the submissions made by the appellant as to the limited period available to it for due diligence).
6. As to the complaint in relation to the italicised words emphasised by the appellant (see above), the statement by his Honour that the negotiation of the Exclusivity Agreement appeared to have occurred over a short period is factually correct. The statement that the exclusivity period was "perhaps" shorter than Mr Wu and the Mayrin Group wanted is to some extent inconsistent with the evidence of Mr Wu at [39] but nothing turns on the use of that qualifier. (Indeed, the significance of the short period for due diligence (that the appellant also emphasised in submissions in this Court) is moot in my opinion. The fact is that the appellant accepted the timeframe imposed by the respondents.)
7. As to the complaint that this was considered in isolation in relation to whether it gave rise to an expectation of disclosure, it is difficult to see the relevance of the short time frame unless it were being relied on (considered in the context of all the relevant circumstances) as going to that issue, since it would not seem apt to give rise to an implied positive representation of the kind that the appellant maintains was being raised as an alternative to the negative case.
8. I consider that the construction placed by the appellant on the last sentence of [188] is itself artificial. His Honour seems to me simply to have been considering circumstances in which a short due diligence or exclusivity period might give rise to a reasonable expectation of disclosure.
9. Ground 2 is not made good.

Ground 3

1. Ground 3 again does not arise in light of the conclusion as to Ground 1 but it is briefly addressed below.

Appellant's submissions

1. The complaint raised by Ground 3 is that the primary judge failed to examine the impugned conduct as a whole (as required by Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60 at [109] per McHugh J (a passage approved in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [102])) in light of the relevant surrounding facts and circumstances. Rather, it is said that the primary judge individually focused on particular matters in isolation, fragmenting the relevant steps in the transaction without considering the entire course of the relevant conduct.
2. The appellant submits that the following matters were inseverable parts of the transaction that, as a whole, constituted the misleading or deceptive conduct: the "truncated" due diligence period; the due diligence enquiries; the development purpose; the quantum of the sale price; the Exclusivity Agreement; the first site meeting in March 2022; the March investigations (by JKE); and the Option Deed attaching the contract for sale of land (and its disclosures). The appellant maintains that what follows logically from the singular facts is not the sole measure of the conduct capable of being conveyed.
3. In particular, complaint is made that the primary judge individually focused on the following matters.
4. First, at [188], that it was of no moment that the negotiation of the terms of the Exclusivity Agreement appeared to have "occurred over a short period of time or that the exclusivity period was perhaps shorter than what Mr Wu and the Mayrin Group wanted" (emphasis as per the appellant's submissions). Complaint is made that those italicised statements were inconsistent with what his Honour had said elsewhere. The appellant refers in this regard to [39] (where his Honour referred to Mr Wu's evidence that he had a conversation with Savills where he had been told that two-months was "not ok" with "the vendor" and that he would have to shorten the period to three weeks in order to get the deal); and to [46] (where his Honour noted that the JKE proposal was qualified by virtue of the short due diligence "timeframe and a thorough investigation was not achievable…and a detailed investigation involving hundreds of boreholes which [was] not achievable in the two-week timeframe"). As I understand it, this is a complaint at the reference to the exclusivity period being "perhaps shorter" than the appellant wanted, whereas the evidence was that Mr Wu and Mayrin did want a longer period. In my opinion, nothing turns on that. The fact is that the short time period was agreed.
5. The appellant says that his Honour's statement at [188] that: There is nothing in the circumstances of this case to suggest that the position adopted by the defendants on this timing somehow gave rise to some reasonable expectation on the part of the Purchaser that the defendants would disclose all that they knew in relation to the Land so that the Purchaser could be comfortable in accepting a shorter due diligence period than they otherwise would have wanted. Put another way, there was no quid pro quo for the shorter due diligence period of the defendants disclosing certain matters such as any knowledge of contamination. is indicative of the erroneous approach of the primary judge in considering the facts that it contended gave rise to a reasonable expectation that the respondents would disclose any matters arising from, or connected to, the buried Contamination.
6. The appellant says that the short time frame for the Exclusivity Agreement was never contended to be, by and of itself, the conduct that gave rise to the reasonable expectation of disclosure.
7. The appellant appears to accept that the reference to a short time frame accords with its pleaded case (referring to [34] of the SOC) and the way that the case was presented at hearing (referring to its submissions at [67], [91(c)] and [123]). (I note in particular the submission at [91(c)] as to the limited time before the Option Deed had to be exercised to conduct such due diligence). However, the appellant says that this material fact (the short time frame) was isolated from other material facts.
8. The appellant also raises another issue in relation to what was said at [188], namely the reference by the primary judge to there being no quid pro quo for the shorter due diligence period of the respondents disclosing knowledge of certain matters, such as any knowledge of the Contamination. The appellant argues that his Honour's reference to a "quid pro quo" suggests that such facts could only be relevant if there was some form of agreement between the parties to amount to a "quid pro quo". The appellant says that this approach wrongly (and artificially) places a qualification on s 18 of the ACL by requiring a binding agreement between the parties for disclosure to be a positive obligation.
9. Second, reference is made to the primary judge's consideration of the Exclusivity Agreement (at [190]-[204]). In addition to the issues as to construction raised by Ground 1, the appellant here complains that nowhere did the primary judge consider that the very existence of the Exclusivity Agreement should have been considered as part of the factual matrix to find that the appellant would have reasonably expected to have been told "any matters arising from, or connected" to the buried Contamination.
10. The appellant complains that the primary judge proceeded only to assess the Exclusivity Agreement by the normal process of contractual construction; and did not consider that the giving of the "EA Warranties" (i.e., the "promises and representations" in cll 2 and 3) and allowing the inspection of the Land for possible contamination were facts that strengthened the reasonable expectation that information about buried waste would have been disclosed.
11. The appellant points to [196] of the judgment where his Honour repeats the contention the appellant made that disclosure was required under the Exclusivity Agreement and pointed to the second respondent having "ultimately admitted" that the due diligence process was about assessing whether or not there was a risk of contamination, and that any knowledge he had about that subject should be disclosed because such disclosure would assist in the due diligence process.
12. Third, the appellant makes the same complaint as to the analysis by the primary judge at [205]-[211] of the Option Deed (i.e., that his Honour assessed it only by the process of contractual construction).
13. Fourth, as to [212]-[216] (where the primary judge briefly dealt with other matters that he understood had been relied upon by the appellant as giving rise to a reasonable expectation that the Contamination would be disclosed), the complaint is that his Honour dealt with these matters "piecemeal". The approach is criticised as artificial and amounting merely to an assessment of the respondents' conduct by reference to "singular facts" (the appellant drawing support for this submission from the statement at [212] that awareness of the intention to develop the Land for residential purposes "does not, in and of itself, give rise to any reasonable expectation") (AT 24).
14. The complaint is made that the primary judge did not consider, as a whole, the facts giving rise to the Rezoning, the Development Purpose and the Due Diligence Enquiries but, rather, divorced them from one another and from the whole of the circumstances. The appellant says that reviewing singular facts in a vacuum was an error.
15. The appellant submits that the facts needed to be considered with other parts of the overall context, namely: (at [32]) that in early-2002, the Mayrin Group was looking to buy a large parcel of land suitable for residential development within 2.5 hours of Sydney; at [33], that the second respondent was interested in the Mayrin Group acquiring the Land to develop it for residential housing and that the Mayrin Group would need to build trust and then give an offer before the Mayrin Group would be permitted to look at the Land in person; at [35], that the appellant received a draft development control plan, a draft subdivision layout and a slide presentation from the Shoalhaven City Council with respect to the Moss Vale Road North Urban Release Area layout (a process in which the first respondent was involved) and a slide presentation to the Shoalhaven City Council; and at [41] that the first time the appellant inspected the Land was 1 March 2022 (the appellant again emphasising in this context that the second respondent said to the representatives of the appellant "[y]ou are going to make a lot of money").
16. The appellant thus complains that the primary judge erred by narrowly examining each part of the relevant circumstances and the documents in isolation, without considering the entire course of relevant conduct between the parties commencing in or about early-2020 when Savills approached the second respondent.
17. In reply submissions, the appellant says that the reasonable expectation to be informed of the Contamination located within the Pits arises from a consideration of all the matters (cumulatively and holistically), in particular the Exclusivity Agreement and the obligation to assist, in the context of all the circumstances identified. The appellant notes that this was the subject of the appellant's opening written submissions before the primary judge (referring to [45]-[46]; [66]-[68]).

Respondents' and reply submissions

1. As to Ground 3, the respondents contend that there was no failure by the primary judge to assess as a whole the circumstances contended as giving rise to a contravention of s 18 of the ACL, submitting that his Honour followed the approach set out at [183]. The respondents say that it is a gross mischaracterisation of the primary judge's reasons to say that the primary judge reviewed facts "in a vacuum" or "fragmented" the relevant steps. (I agree.)
2. The respondents say that the primary judge's reasons bespeak a careful consideration of the facts (including the making of some findings, including as to credit, adverse to the respondents) and of conclusions having been reached having regard to all of the relevant circumstances. In that regard, the respondents identify the critical conclusions (relevant to this Ground of appeal) as being those at [217], that there was nothing in the circumstances that gave rise to any reasonable expectation that the Contamination would be disclosed; and [219], that even on the expanded (i.e., positive misrepresentation) case propounded by the appellant, there was no positive representation by the first respondent (i.e., no disclosure, in effect, that there was no contamination, or no contamination known to the respondents).
3. In reply submissions, the appellant takes issue with the parenthetical suggestion by the respondents that his Honour's reference to "in the circumstances" in [217] meant "in all of the relevant circumstances considered as a whole".

Determination

1. I do not accept that his Honour erred in approaching the fact-finding process in a singular or fragmented fashion (or in a vacuum). His Honour at [212]-[216] was addressing and expressing only (briefly) the various matters that the appellant had itself raised as relevant to its claim.
2. It is unfair to the primary judge to parse his Honour's reasons, prepared on an urgent basis to meet the parties' needs, as if they were a statute. His Honour said he was proposing to analyse the evidence in a particular way (at [183]) and I accept that he did so.
3. The conclusion at [217] necessarily takes into account all the foregoing material. His Honour was well cognisant of the background and of the submissions the appellant had made (as to the short time period for due diligence and the like).
4. No error has been demonstrated as contended by Ground 3.

Ground 4

1. As noted earlier, no separate submissions were made by the appellant in chief in relation to Ground 4. In any event, it does not fall to be determined in light of the conclusion as to Ground 1.

Notice of contention

1. As set out earlier, the respondents raise two grounds of contention in the event that one or more of the errors alleged by Grounds 1 to 3 is established and the Court were to be in a position to conclude that the respondents or either of them had engaged in misleading or deceptive conduct.
2. First, and this is put only as a formal submission, that the primary judge's ultimate substantive order (dismissal of the appellant's SOC with costs) was correct because the appellant did not demonstrate that it was a person "who has suffered, or is likely to suffer, loss or damage" within the meaning of that phrase in s 237 of the ACL (notice of contention Ground 1).
3. Second, that this Court would not, in the exercise of any discretion that falls to be exercised, grant the relief sought by the appellant on appeal in light of events that have occurred subsequent to the primary judgment and in light of the appellant's failure to demonstrate that it has suffered any loss or damage of the sort that constitutes or is likely to lead to an "amount of ... loss or damage" within the meaning of s 243(e) of the ACL (Notice of Contention Ground 2).
4. It is not necessary to consider these issues given the conclusion I have reached as to the appeal itself. As the respondents concede, in relation to Ground 1 of the Notice of Contention, this Court would be bound to follow Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; and as to Ground 2 of the Notice of Contention, this raises the difficulty of having (for understandable reasons and not at the instigation of the primary judge) a bifurcation of the hearing at first instance so as not to include the question of damages. I simply note that, had the exercise of the discretion to grant relief been necessary to determine, the prejudice to which the second respondent points of a re-transfer of the Land w ould have force.

Conclusion

1. For the above reasons I would dismiss the appeal with costs.
2. PAYNE JA: I agree with Ward P.
3. STERN JA: I agree with Ward P.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2024