Amcor Limited v Peter J Ramsay & Associates Pty Ltd [2018] VSC 75

1 This is an application by summons for summary judgment under Part 4.4 of the Civil Procedure Act 2010 (Vic) (CPA) brought by the defendant.[1]

2 These proceedings (the Ramsay Proceedings) are between the first plaintiff (Amcor Ltd) and the second plaintiff (Orora Ltd, formerly Amcor Packaging (AP)) (together, Amcor Parties) and the defendant (Ramsay), an environmental consultant. The Ramsay Proceedings are related to another proceeding S ECI 2017 00145 in the Supreme Court of Victoria between Alphington Developments Pty Ltd (Glenvill) and Amcor Ltd (the Glenvill Proceeding).

3 The claim arises by reason of the retention of Ramsay as a consultant to identify and cost contamination at the 'Amcor Fairfield Mill' at 626 Heidelberg Road, Alphington, Heidelberg (the Site), which Site was then owned by AP. The Amcor Parties allege (by actions in contract, negligence, and under the Australian Consumer Law[2]) that Ramsay has been negligent in failing to identify asbestos at the Site.

4 The Site was subsequently sold by AP to Glenvill under a sale contract which made provision for AP to be liable for certain remediation work (identified by Ramsay) as well as 'unidentified contamination' (not identified by Ramsay). That sale contract has subsequently been novated, with Amcor Ltd substituted for AP.

5 In circumstances where another consultant, GHD, has identified asbestos at the Site, Glenvill now seeks various relief against Amcor Ltd in the Glenvill Proceeding. In particular, Glenvill seeks a declaration that Amcor Ltd is required to pay the costs of remediating 'unidentified contamination' under the sale contract estimated at between $11 million and $25 million.

6 The Amcor Parties allege that, if they are liable to Glenvill, the Amcor Parties lost the opportunity of eliminating or reducing their liability under the sale contract because they relied on the costings of Ramsay (which did not include the 'unidentified contamination'). AP also relies on an indemnity given to Glenvill in respect of any default of Amcor Ltd.

7 There are five bases upon which the defendant seeks relief:

3.1 Amcor Ltd (as opposed to the Second Plaintiff (AP)) was not, and never became, a party to the relevant contract pursuant to which the Defendant carried out the services that are relied upon by the Plaintiffs as giving rise to the alleged liability;

3.2 Amcor Ltd (as opposed to AP) was not a person to whom the Defendant owed a duty of care in respect of the services it supplied that are relied upon by the Plaintiffs as giving rise to the alleged liability because there was no relationship of proximity between the Defendant and Amcor Ltd;

3.3 Any misrepresentation that was allegedly made by the Defendant was made to AP (and not to Amcor Ltd), and the statutory relief for any such misrepresentation cannot be transferred to any other person;

3.4 AP has not suffered any loss as a result of the services supplied by the Defendant that are relied upon by the Plaintiffs because: (a) AP ceased to be the owner of 626 Heidelberg Road, Alphington (Property) (ie the property in relation to which the Defendant supplied its services); and/or (b) it ceased being liable under the contract of sale of the Property; and/or

3.5 On 29 June 2016 (ie a date before this proceeding was commenced), the Defendant ceased having any liability in respect of the services it provided that are relied upon by the Plaintiffs because of the operation of a contractual time limitation period.

8 In written reply submissions, a 'sixth' 'overarching' submission was also raised (the Reply submission) to the effect that the entire claim was misconceived given the contamination must have always existed such that the Amcor Parties would always have been obliged to pay for it (by taking a reduced purchase price or otherwise).

9 The issues are therefore whether the defendant can show that the plaintiff(s) have no real prospect of success by reason of any of the above six grounds.

10 Amcor Ltd is a listed public company. It appears that in the time leading up to the Ramsay engagement, it was the only listed company within the Amcor group.

11 AP was a wholly owned subsidiary of Amcor Ltd and traded under the business name of 'Amcor Australasia'. Until the sale of the Site to Glenvill, AP was also the registered proprietor of the Site.

12 The Site is a 16.5 hectare parcel of land that was previously used by the Amcor group for paper recycling operations. The Site was a key asset of the Amcor group.

13 A key person in the negotiations regarding the engagement of Ramsay was a Mr John Newton, who has sworn an affidavit of 24 November 2017.

14 Mr Newton was employed by Amcor Ltd until 30 June 2013, after which time he was employed by AP (later Orora Ltd (Orora)). In his affidavit, he claims that he used 'Amcor Ltd' and 'Amcor Australasia' alternately when signing. Typically, if he sent an email from his computer, his signature block would include the 'Amcor Australasia' business name. However, his signature block would refer to 'Amcor Ltd' if he sent an email from his Blackberry.

15 His evidence was that Amcor Ltd carried on business through 3 divisions - Flexibles, Rigid Plastics, and Australasia and Packaging Distribution. The latter was operated by AP under its business name 'Amcor Australasia'.

16 In December 2013, the Amcor group demerged its Australasian and Packaging Distribution business. AP, the company which carried on the demerged business, became known as Orora, and its shares became listed on the ASX. From 1 December 2013 to 28 July 2017, Mr Newton continued working for the demerged Orora business, and his employer became Orora.

17 Mr Newton had worked in the environmental profession his entire career and first met Mr Peter Ramsay of Ramsay when they worked together for a period of time around 30 years ago.

18 According to Mr Newton, he first spoke to Mr Ramsay about the anticipated sale of the Site in about May 2010. In his discussions with Mr Ramsay, he generally referred just to 'Amcor' and did not distinguish between Amcor Ltd and AP. He told Mr Ramsay that he needed a proposal for a report that would assist Amcor in divesting the Site.

19 On 3 June 2010, Mr Newton received a proposal from Ramsay, which was addressed to himself at 'Amcor Australasia' and included the following:

You have advised that Amcor Australia (Amcor) is proposing to divest the 14 hectare property in Alphington which is currently an operating paper mill...

Irrespective of the approach Amcor decides on, reducing the uncertainty for potential purchasers by undertaking a further assessment will assist in maximising the value of the asset for Amcor shareholders.

(Emphasis added)

20 There also appears to be a reference to 'maximising the value of the asset to Amcor shareholders' in other correspondence from Ramsay around this time.[3]

21 On 20 August 2010, a consultant's brief was received by Ramsay from Charter Keck Cramer (Consultant's Brief). The report contains some generalised references to 'Amcor'. However, in section 7 of the Consultant's Brief (at page 5) there is reference to the fact that the terms of any engagement would be between the consultant and 'Amcor Australasia'.

22 On 30 August 2010, Ramsay forwarded a proposal to Charter Keck Cramer to undertake a detailed site investigation (DSI) of the land at the 'Amcor Mill' (Ramsay August 2010 letter). In the opening paragraph (at page 2), 'Amcor Australasia' is defined as 'Amcor'. However, it also includes a reference at page 2 that '[i]rrespective of the approach Amcor decides on, reducing the uncertainty for potential purchasers by undertaking a DSI will assist in maximising the value of the asset for Amcor shareholders'.

... In regards to the potential purchasers of the site, the same Terms and Conditions and Use of Report allow Amcor to make copies of the report available to these parties for their use in understanding the environmental risks and potential remediation costs associated with the site; however those third parties cannot rely on the contents of the report as such reliance outside of the client-consultant relationship is not covered by Professional Indemnity Insurance.

24 The Ramsay August 2010 letter also includes the following:

11. USE OF REPORT

.... The report will be prepared solely for the benefit of Amcor Australasia. The report will be provided on the condition that it is not made available to any other party except with the prior written consent of Peter J Ramsay & Associates Pty Ltd (which consent may or may not be given at its discretion). Peter J Ramsay & Associates Pty Ltd will consent to Amcor Australasia making the report available to other parties for the purpose of understanding the environmental risks and potential remediation costs associated with the site; however those third parties cannot rely on the contents of the report.

DISCLAIMER

The report will be provided on the condition that it contains a disclaimer in terms that Peter J Ramsay & Associates Pty Ltd disclaims all liability to any person other than Amcor Australasia in respect of the actions, errors or omissions of any such person in reliance, whether in whole or in part, upon the contents of the report.

(the Relevant Disclaimer)

25 By correspondence of 28 September 2010 from Mr Newton to Mr Ramsay, he advised that Ramsay had been selected as the successful DSI Environmental Consultant. The letter is signed by Mr Newton, who is described as 'Group Manager - Sustainability & Environment Amcor Australasia'. The letter included a request for the relevant Short Form Contract to be amended to be fully assignable to the Purchasing Entity.

26 By email sent on 15 October 2010 from Mr Mark Van Schoten of Ramsay to Mr Newton, he confirmed that he would provide a letter stating that the Purchasing Entity may rely on the data and any completed report.

27 On 4 November 2010, a short form contract was executed by Mr Ramsay and Mr Newton. The short form contract is said to be between Peter J Ramsay & Associates Pty Ltd and 'Amcor Australasia' (November 2010 Agreement) and, according to Mr Robert Finnigan (a solicitor of Wotton & Kearney for Ramsay), was derived from a common short form standard terms contract.

28 There are no clauses which set out the sort of work to be performed, or the fees to be charged. However, cl 1 of the November 2010 Agreement provided that the 'Consultant shall provide to the Client the consulting services described in the accompanying letter together with such other services as may be agreed from time to time (the "Services")'.

29 It was generally accepted that the accompanying letter was the Ramsay August 2010 letter.

30 According to Mr Newton, his recollection was that the November 2010 Agreement was the only contract that was entered into with Ramsay in relation to the Site. Although there were other contracts entered into with Ramsay in relation to separate projects, these were not in relation to the Site.

31 However, Mr Finnigan gives different evidence in his affidavit (based on information from Mr Ramsay) of 3 October 2017. Thus, he alleges that further separate contracts were entered into, as will be seen below.

32 Around the time of signing, queries were raised by Mr Ken MacKenzie (then Managing Director and CEO of the Amcor group) regarding the scope of Ramsay's proposed work. In a letter dated 25 November 2010, Mr Newton stated:

Ramsay's report and remediation estimate should deliver the level of certainty required so that a Board can make an informed decision re site cost with remediation factored in. That certainty would apply to the Amcor board deciding the sale price and the purchaser board deciding the purchase price. The thoroughness of the assessment limits greatly the likelihood of any surprises.

33 Mr Newton says that the reference to the 'Board' in this email was a reference to the Board of Amcor Ltd, which had ultimate decision-making power in relation to the sale of the Site.

34 Between January 2011 and June 2013, Ramsay provided the following information and documents:

(a) Response to Charter Keck Cramer Questions provided in about January 2011, where Ramsay provided answers to some questions of Charter Keck Cramer;

(b) Report entitled 'Amcor Australasia Detailed Site Investigation - Amcor Mill, 626 Heidelberg Road, Alphington, Victoria' dated February 2011 (Ramsay DSI Report). The Ramsay DSI Report included a finding that '[a]sbestos was not detected in the soil at the site';

(c) Cost estimate for remediation of land at the Site dated 7 February 2011, which suggested that the total cost for the remedial program was 'estimated at approximately $1.4 million (mean) to $1.7 million (95 percentile)';

(d) Cost estimate entitled 'Preliminary Remediation Cost Estimate' dated 14 March 2013; and

(e) Cost estimate entitled 'Revised Preliminary Remediation Cost Estimate' dated 26 June 2013 (Ramsay Costing) which provided that the revised preliminary cost estimate was $7.33 million.

35 The documents, listed in (b)-(e) above, also included a disclaimer which was the same or substantially similar to the form of the relevant disclaimer (save that there was also reference to the purchaser).

36 Mr Finnigan alleges that Ramsay ceased providing services under the contract on 28 June 2013. Mr Finnigan also produced a bundle of invoices which he says related to the November 2010 Agreement. Each one is addressed to 'Amcor Australasia' (with client reference numbers which cite the number '518').

37 This is disputed by Amcor, who says that it continued to consult Ramsay up to 22 July 2015. Thus Mr Newton produced a bundle of invoices for work which include dates relating to this period and which include invoices addressed to Amcor Ltd (with client reference 518). He says that each of the invoices variously describe the services being performed by Ramsay in relation to the relevant phase of the work that was conducted at the time.

38 On 28 June 2013, a contract of sale was entered into between AP as vendor and Alpha APM No. 2 Pty Ltd and Alphington Developments Pty Ltd or their nominees (defined as 'Glenvill') as purchasers for a price of $120 million (Contract of Sale).

39 Pursuant to cl 11.3 of the Special Conditions to the Contract of Sale, AP was generally obliged to meet the costs incurred by Glenvill in procuring 'Demolition Works' and 'Remediation Works'. 'Remediation Works' referred to works necessary to remediate contamination to the level specified in the Ramsay Costing (which was annexed to the Contract of Sale as Annexure C).

40 Pursuant to special condition 11.5, the Vendor was also obliged in certain circumstances to pay for the costs of 'Unidentified Contamination' which was defined as any contamination at the Site that was not identified in the Ramsay reports. This was subject to the production of a letter prepared by the relevant 'Environmental Consultant', which was Ramsay.

In agreeing to assume the risk of liability for remediation works under the contract of sale, AP relied on the matters identified in the detailed site investigation report dated 4 February 2011 and a corresponding cost estimate issued by Ramsay & Associates that remediation of the contamination identified would cost approximately $7.33 million.

42 He also adduces correspondence which he alleges shows that by 25 June 2013, Ramsay knew that: (a) AP was selling the Site to Glenvill; (b) there were requirements for remediation under the Contract of Sale; and (c) the remediation cost estimate would be based on Ramsay's cost estimate.

43 On 15 October 2013, a novation deed (Novation Deed) was entered into between, inter alia, AP (as Retiring Party), Amcor Ltd (as Substitute Party) and the purchaser entities in the Contract of Sale.

44 Pursuant to cl 2.1, the parties agreed to novate the Agreement (defined as the Contract of Sale) to substitute the 'Substitute Party' for the 'Retiring Party'.

45 Clause 2.3 made provision for the Substitute Party to perform the obligations of the Retiring Party 'under the Agreement', while cl 2.5 made provision for the Substitute Party to be entitled to all the rights to which the Retiring Party was entitled 'in relation to the Agreement'.

46 The Novation Deed also included an indemnity at cl 2.9, which will be cited below.

47 There was little, if any, evidence adduced as to the genesis of the Novation Deed.

48 It appears that by mid-2014, another environmental consultant (GHD) had identified some additional 'unidentified contamination' and provided further reports in respect of this contamination.

49 According to Mr Finnigan, on about 4 June 2014, Ramsay was approached by Mr Newton to undertake a review of GHD's reports.

50 By correspondence of 2 July 2014 from Mr Ramsay to Amcor Australasia, the defendant submitted a proposal to provide 'environmental advice'. The letter refers to the fact that Ramsay was 'previously engaged' by Amcor to undertake a detailed site investigation at the Site. It continues:

...

You have requested that we undertake a review of the three GHD reports with respect to our previous remedial cost estimates, and provide advice to Amcor on the reasonableness of the remedial approach by GHD and their cost estimates. Our review will not comprise a detailed technical evaluation of the further assessment work undertaken to date by GHD.

51 A set of fees are included, as well as a further short form contract.

52 According to Mr Finnigan, the proposal and services to be performed were different from the November 2010 Agreement. He further says that the proposal was accepted leading to a 'second contract'. He annexes a short form contract, which he says was provided in relation to this work (described as a 'second contract'). It is said to be between Ramsay and 'Amcor Australasia Pty Ltd' (although AP had been renamed to Orora by this time). The document also appears to be signed by Mr Newton but not Mr Ramsay, and it is not dated.

53 As indicated already, however, Mr Newton says that that the November 2010 Agreement was the only one entered into with Ramsay in relation to the Site. He does not believe that he signed this further contract in relation to the Site and he does not believe that this contract related to any works performed at the Site.

54 Mr Finnigan then alleges that in about 10 April 2015, Ramsay was requested to undertake a review of further reports of GHD. He produces correspondence of 15 April 2015, which provides for a general 'scope and fee basis' to provide the advice. The letter includes details of further fees as well as a further form of the short form contract, though no signed 'third' contract was produced.

55 Mr Finnigan nevertheless alleges that the 15 April 2015 proposal involved different works and that it was accepted, leading to a 'third contract'. He also produced a bundle of invoices dated 2015 relating to 'Environmental advice...'. They are addressed to Mr Newton in various ways - in one case at 'Amcor Ltd,' and in another at 'Amcor Ltd Pty Ltd' (though they contain the same client reference of '518').

56 Mr Newton says that he was subsequently advised that significant asbestos contamination had been discovered in the soil across the Site by GHD, which had not been identified in the Ramsay DSI Report.

57 In the result, this proceeding was issued in January 2017.

58 The Glenvill Proceeding was issued subsequently in June 2017, and is currently listed for trial commencing on 8 October 2018.

59 Section 63(1) of the CPA provides that, subject to s 64, a court may give summary judgment in any civil proceeding 'if satisfied' that a claim has 'no real prospect of success'.

60 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[4] (recently applied in Feldman v Frontlink Pty Ltd[5] and Mandie v Memart Nominees Pty Ltd[6]), the Court of Appeal distilled the test to be applied when determining whether to give summary judgment pursuant to s 63. At [35], Warren CJ and Nettle JA stated as follows:

Upon the present state of authority:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

Amcor Ltd was not and never became a party to the contract

61 In paragraph 6 of the Amended Statement of Claim dated 23 February 2018 (ASOC), it was pleaded that on 28 September 2010, Amcor Ltd or AP engaged Ramsay to undertake a detailed site investigation and assessment of the Site. The contract is said to be in writing which 'includes' the November 2010 Agreement.

62 It is further (alternatively) pleaded that, by reason of the Novation Deed, AP assigned all its rights under the Ramsay engagement to Amcor Ltd, thereby giving Amcor Ltd standing to enforce AP's rights (at paragraphs 14D and 14E).

63 Two issues therefore arise, namely whether there was a real prospect of success for Amcor Ltd to claim:

(a) that it was a party to the Ramsay engagement in the first place; or

(b) that it was assigned the rights under the Ramsay engagement pursuant to the Novation Deed.

64 Counsel for the defendant accepted that there was ambiguity in the November 2010 Agreement as to who 'Amcor Australasia' was (given it was not an entity in its own right).[7]

65 However, it was submitted that a number of matters supported a finding that the contracting entity was Amcor Ltd, including that:

• the business name 'Amcor Australasia' was never owned by Amcor Ltd, but rather was owned by AP;
• the Site itself was owned by AP; and
• at no time is Amcor Ltd identified anywhere in documentation.

66 The plaintiffs highlighted that there was ambiguity in the documentation in terms of which entity was the contracting party - for example, the addressees of the invoices; the references to 'Amcor' in the responses to questions above; and the evidence of Mr Newton that he and Mr Ramsay generally used the term 'Amcor'.

67 It was also submitted that the following matters pointed more directly to Amcor Ltd:

• that it was significant that Mr Newton was actually employed by Amcor Ltd. Further, given the men's friendship, it was very likely that Mr Ramsay knew Mr Newton was an employee of Amcor Ltd;
• that the reference in the correspondence to 'Amcor shareholders' could only be a reference to Amcor Ltd, given that it was the only public company; and
• that although AP owned the Site, it was effectively owned by Amcor Ltd through a subsidiary and it was quite possible that what was in contemplation was an arrangement whereby Amcor Ltd would be the company that ultimately sold the Site.

68 In Lederberger v Mediterranean Olives Financial Pty Ltd,[8] the Victorian Court of Appeal (per Nettle and Redlich JJA and Beach AJA) identified the relevant principles to apply where there is a question as to the identity of the parties to a contract:

Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had. The process of construction requires consideration not only of the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This in turn presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating.[9]

69 I was less than convinced by a number of the plaintiffs' submissions, which appeared to be highly speculative.

70 The factors highlighted by the defendant constitute strong grounds to suggest that the true contracting entity was AP.

71 Nevertheless, consistent with Lederberger, it will be necessary to consider the genesis of the transaction, the background, and the context in which the parties are operating in order to identify the true contracting party.

72 This is particularly so in this case, where Counsel for the defendant fairly conceded that a question of ambiguity arises. In such circumstances, recourse to events, circumstances and things external to the contract may be necessary.[10] Indeed in this case, both Counsel sought to make reference to evidence external to the November 2010 Agreement.

73 It is not appropriate for a court to resolve a question of construction in these circumstances without hearing appropriate evidence at trial. To make orders for summary dismissal in such circumstances gives rise to a risk of a serious risk of injustice to the plaintiffs.[11]

74 I am therefore unable to be satisfied that the plaintiffs have no real prospect of success in identifying Amcor Ltd as the contracting party without a hearing on the merits.

75 As indicated above, the plaintiffs plead that AP assigned its rights under the Ramsay engagement to Amcor Ltd by reason of the Novation Deed. They cited cl 2.5 which materially provides:

Amcor Ltd is entitled to all of the rights to which AP was entitled in relation to the sale agreement... including those which arise or relate to events occurring before the Novation Date.

76 Counsel for the defendant accepted that it was arguable that the rights under the November 2010 Agreement were assignable by AP to Amcor Ltd for present purposes.[12]

77 However, it submitted that there was no real prospect of alleging that the rights were actually assigned by reason of cl 2.5 of the Novation Deed. In particular, the defendant submitted that the subject matter of cl 2.5 was the rights in relation to the Contract of Sale and not the separate November 2010 Agreement. It highlighted that the relevant rights which needed to be assigned was the right to unliquidated damages for breach of contract in circumstances where the Contract of Sale does not even refer to the Ramsay engagement.

78 In oral submissions, it was submitted that the words 'in relation to' still required reference to rights that were specified in the Contract of Sale. Further, that the words 'those which arise or relate to events occurring before the Novation Date' included events between the sale and the novation. Counsel also suggested that the case was analogous to the position in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (Boston).[13]

79 The plaintiffs submitted that the contractual rights that AP acquired under the Ramsay engagement were rights to which AP was entitled 'in relation to' the Contract of Sale. This was because the Ramsay engagement was entered into for the purposes of enabling the Amcor Parties to negotiate, draft and make a decision to enter into such a contract.

80 In oral submissions, the plaintiffs highlighted that the rights under the November 2010 Agreement were rights 'in relation to' the Contract of Sale, in circumstances where the Contract of Sale made extensive reference to the Ramsay DSI Report which was 'deeply embedded ' in the Contract of Sale.

81 There is no specific form necessary to effect an assignment in equity. All that is required is a clear manifestation of an intention to assign in a manner binding upon the assignor.[14] Further, in contrast to the position at law,[15] express notice is not required to be given by the assignor to the remaining party to effect an equitable assignment.[16]

82 Clause 2.5 provides for the Substitute Party to be entitled to all of the rights to which AP was entitled 'in relation to the sale agreement'. This is broad language and appears to extend beyond the rights 'under the sale agreement' as provided for in cl 2.3 (in relation to obligations). The Contract of Sale also makes extensive reference to the Ramsay costings provided pursuant to the Ramsay engagement and provides for Ramsay to have an ongoing role as an environmental consultant.

83 In considering whether cl 2.5 extends to the rights alleged it will be necessary to properly construe both the Novation Deed and the sale agreement, being the Contract of Sale. In so doing, it will be necessary to ask what a reasonable businessperson would have understood those terms to mean by reference to the language used, the circumstances addressed by the contracts, and the commercial objects or purposes to be secured by each contract.[17]

84 Clause 2.2 of the Novation Deed makes explicit provision for an assignment of guarantees. In such a context, the plaintiffs appear likely to face considerable challenges in suggesting that cl 2.5 effects an assignment of the rights under the Ramsay engagement.

85 Nevertheless, I am not satisfied that the court ought to engage in the process of construction on a summary basis, particularly where there is insufficient evidence as to the purpose and context of each agreement.

86 The case of Boston[18] also does not assist the defendant. The case was concerned with whether a clause in a sale of business agreement between 'old Boston' and 'new Boston' operated as an assignment. The clause was in a very different form to cl 2.5 and merely provided that old Boston promised to deliver to new Boston a notice of assignment, i.e. it contemplated that old Boston needed to 'do something' before an assignment could take place. In the absence of any such delivery, there was clearly no assignment.

87 The question which arises here is instead whether the giving of rights 'in relation to' the Contract of Sale included relevant rights associated with the Ramsay engagement. I am unable to be satisfied that the plaintiffs have no real prospect of success with such a claim, absent a proper evaluation at trial.

• a claim in general negligence in performing services under the Ramsay engagement (at paragraph 34); and
• a claim in negligent misstatement for statements made in the Ramsay reports, in particular that the soil at the Site was not contaminated with asbestos (at paragraph 35).

89 It also appears to be alleged that, even if a duty of care was not owed to Amcor Ltd, that the rights to sue in negligence were assigned to Amcor Ltd by reason of the Novation Deed (at paragraphs 14B(a) and 14E(a)).

90 The duty of care is said to arise from a number of factors.[19] In particular, it is said that:

• Ramsay knew, or ought to reasonably to have known, that the Amcor Parties would rely on, and further intended that the Amcor Parties would rely on, the Ramsay DSI Report and Ramsay Costings (paragraphs 29 and 30);
• the Amcor Parties relied on the Ramsay DSI Report and the Ramsay Costing in entering the Contract of Sale (paragraph 31); and
• there was vulnerability on the part of the Amcor Parties (paragraph 32A).

91 The High Court has rejected any previously expressed 'test' of when a duty of care will arise - including the old requirement of 'proximity'. As French CJ noted in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (Brookfield Multiplex), the High Court has 'eschewed any attempt at formulating a general test for determining the existence or non-existence of a duty of care for the purposes of the law of negligence'.[20]

92 As noted recently in the case of Perpetual v McGoldrick (No 3) by Vickery J_:_

This area of law in Australia is developing, and is not yet constrained by firm principles, but rather is to be determined by judicial evaluation of a variety of factors found to be relevant to the particular case at hand.[21]

93 Thus, in novel circumstances (outside established categories), the Court must determine whether a duty of care arises by considering any 'salient features' of the relationship such as foreseeability of harm, control, vulnerability, assumption of responsibility, and nearness or proximity.[22]

94 In Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[23] the High Court noted that the exception to the general rule for negligent misstatement recognised in earlier cases depends on proof of an assumption of responsibility by the defendant and known reliance on the defendant by the plaintiff.

95 However, some caution might be appropriate in considering negligent misstatement cases as a distinct category. As French CJ stated in Brookfield Multiplex:

The special cases would commonly, but not necessarily, involve an identified element of known reliance or dependence on the part of the plaintiff, or the assumption of responsibility by the defendant, or a combination of the two ... Those considerations may be seen as elements of the notion of "vulnerability", which has become an important consideration in determining the existence of a duty of care for pure economic loss. In this context, it refers to the plaintiff's incapacity or limited capacity to take steps to protect itself from economic loss arising out of the defendant's conduct. [24]

96 In written submissions, the defendant emphasised the disclaimers in each of the Ramsay reports cited above. It thereby submitted that there was no valid basis to suggest there was an assumption of responsibility to Amcor Ltd, nor was there reasonable reliance.

97 In oral submissions, Counsel highlighted that reasonable foreseeability was insufficient for economic loss, yet this was the basis for the plaintiffs' submission. The defendant also highlighted the reference to professional liability insurance and that the extension of liability to purchasers was itself the subject of specific negotiation.

98 In written submissions, the plaintiffs claimed that Ramsay's work was clearly connected to the forthcoming sale of the Site. It owed a duty to 'anyone who might suffer loss if it did not take due care in performing its work'.

99 In relation to the disclaimers, it submitted that Ramsay showed no interest in the identity of the particular entity with which it was contracting (given the generalised references to 'Amcor'). Further, that the reports were addressed to Mr Newton who was employed by Amcor Ltd, not AP.

100 In oral submissions, Counsel highlighted that the entry into the subsequent Novation Deed showed reliance by Amcor Ltd. Counsel again submitted that Mr Newton was employed by the parent company (Amcor Ltd), suggesting that Mr Newton was likely to give evidence on seeing the disclaimer that 'that's ok, the disclaimer doesn't operate in relation to us'. Hence, the disclaimer ought only operate in relation to parties outside the Amcor group.

101 Counsel highlighted that it would be inappropriate to strike out a claim without hearing evidence relevant to the ultimate question of duty in circumstances where the law is developing.

102 It is true that reasonable foreseeability of itself is insufficient.[25] However, the pleadings took the matter beyond this.

103 In terms of the effect of disclaimers, in Mutual Life and Citizens Assurance Co Ltd v Evatt, Barwick CJ said that a disclaimer:

... particularly if acknowledged by the recipient, will in many instances be one of the circumstances to be taken into consideration in deciding whether or not a duty of care has arisen, and it may be sufficiently potent in some cases to prevent the creation of the necessary [special] relationship. Whether it is so or not must, in my opinion, depend upon all the circumstances of and surrounding the giving of the information or advice.[26]

104 The decision of the High Court (by majority) was reversed by the Privy Council (by majority). However, as highlighted more recently in the Victorian Court of Appeal in Derring Lane Pty Ltd v Fitzgibbon,[27] the accuracy of the observation of Barwick CJ was not thereby undermined.

105 The potency of the disclaimers in relation to Amcor Ltd will also be affected by any finding as to the true contracting party. However, even if Amcor Ltd is not the contracting party, the question of the disclaimers will need to be considered as part of all the salient features of the case. Such features include the reference to shareholders of Amcor (which could only be a reference to the parent, Amcor Ltd); the fact that the reports were addressed to an employee of Amcor Ltd; the extent to which Mr Newton relied on the reports (considering himself to be not a 'third party' like a purchaser); the extent to which the general indifference of Ramsay to the relevant Amcor entity meant it took on responsibility to the Amcor group generally; and the extent of reliance of Amcor Ltd generally, including in arranging for its subsidiary to enter the Contract of Sale, and in entering the Novation Deed.

106 In circumstances where the law is developing and the Court must examine all the circumstances, summary dismissal is not appropriate. More particularly, I am unable to be satisfied that there is no real prospect of success in the claim that a duty of care was owed to Amcor Ltd.

107 The defendant did not pursue a submission that the negligence action was not arguably assignable.[28] Rather, it submitted that cl 2.5 should only be read to encompass contractual rights and not actions in negligence.

108 Despite the considerable force of this submission, for reasons given already, the question of construction of cl 2.5 is an issue appropriate for trial. It is therefore appropriate that all issues surrounding its construction be considered at that time.

109 It was pleaded in the ASOC that Ramsay made representations to either or both of the Amcor Parties, which were relied upon by those parties and which were misleading and deceptive in contravention of ACL s 18 (see paragraphs 21, 22, 23A(a), 31 and 37).

110 It was conceded that there was no assignment being alleged in relation to the ACL claim.[29]

111 Ramsay again relied upon the disclaimers and submitted that it was disingenuous for Amcor to assert that it relied on any of the alleged representations.

112 However, in oral submissions, it was accepted that a disclaimer was not necessarily fatal as the question was one of fact.[30] Nevertheless, that the disclaimers were clear in this case (though Counsel could 'take it no further' than that).[31]

113 The plaintiffs submitted that representations were made to both entities because even if the contracting party was AP, the Ramsay reports and the dealings were all with Mr Newton of Amcor Ltd. It was also significant again that Ramsay was indifferent to the precise identity of the Amcor contracting party.

114 The questions of whether the representations were made to both Amcor entities, as well as the question of reliance under the ACL are factual matters for trial.

115 As indicated already, there is some ambiguity in the material adduced to date as to the identity of the contracting entity. However, even if AP is the true contracting entity, a question will remain as to whether the representations were more generally addressed to both Amcor entities. In particular, whether this is the case in light of all the evidence, including the references to shareholders of Amcor Ltd.

116 In terms of reliance, as correctly conceded by Counsel for the defendant, disclaimers are not necessarily fatal for a claim under the ACL, but rather will be a matter taken into account on the question of causation.[32] Again, however, this raises factual issues for trial.

117 Absent an evaluation at trial, I am unable to be satisfied that a claim under the ACL against Amcor Ltd has no real prospect of success.

118 AP has ceased to be the owner of the Site. Further, it is Amcor Ltd - rather than AP - who is liable to Glenvill under the Contract of Sale (by reason of the Novation Deed).

119 Nevertheless, at paragraph 38 of the ASOC, AP claims that it remains liable to Glenvill by reason of the indemnity in cl 2.9 of the Novation Deed.

120 In the result, Counsel for the plaintiffs relied upon cl 2.9(a), which materially provides that:

AP indemnifies and keeps indemnified the Glenvill parties against all loss incurred by the Glenvill parties arising out of, or in connection with, any default of Amcor Ltd under the sale agreement.

121 The defendant submitted that cl 2.9(a) did not impose liability by reference to the defendant's conduct; rather it imposed liability by reference to a default made by Amcor Ltd under the Contract of Sale.

• that Glenvill is only suing Amcor Ltd in the Glenvill Proceeding (i.e. the indemnity has not been called upon), and given the financial position of Amcor Ltd, the prospect that AP would suffer a loss is implausible;
• that the November 2010 Agreement provided that, to the maximum extent permitted by law, Ramsay was not liable in respect of any 'indirect, consequential or special losses' (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement) (cl 8(b)); and
• that even if, for some reason, Glenvill does pursue the indemnity, under the legal principles governing suretyship, AP would be entitled to recover from Amcor Ltd.

123 In written submissions, the plaintiffs submitted that if the trial judge hearing the Glenvill Proceeding finds that Amcor Ltd is liable to pay Glenvill the costs of unidentified contamination, then AP may be found liable under the indemnity.

124 In oral submissions, Counsel suggested that the whole reason Amcor Ltd would be 'in default' in relation to the purchaser was because of the negligent actions of Ramsay. Further, that Glenvill might still pursue the indemnity, e.g. if Amcor Ltd is in default but not liable for some reason.

125 In the Glenvill Proceeding, the plaintiff seeks a declaration that Amcor Ltd is required to pay the costs of remediation of certain unidentified contamination. It is alleged that, absent an order, Amcor Ltd will continue to 'refuse to pay' these costs.[33]

126 It thereby appears to be alleged that Amcor Ltd is in 'default' of the Contract of Sale.

127 Under a contract of indemnity, the time at which the cause of action arises is dependent on the terms of the indemnity.[34] Further, as a general rule, an indemnifier will not be entitled to require a demand unless the contract so provides.[35]

128 Clause 2.9(a) makes provision for AP to give an indemnity for Glenvill's loss arising out of 'any default' of Amcor Ltd. Given a default is allegedly in existence, it follows that a cause of action has arguably arisen against AP. AP also carries a primary liability which is not dependent on any demand being made.[36]

129 It is true that Glenvill has not sought to include AP as a defendant. If this remains the case, AP may be unable to substantiate its loss at trial. In the meantime, it appears to remain (arguably) liable under the indemnity where both proceedings are as yet unresolved (and in circumstances where a point is already being taken about a limitation clause). To strike out AP's claim at this stage is premature and also raises a risk of fragmentation and of inconsistent findings which would be contrary to the overarching purpose contained in the CPA.

130 The reference to cl 8(b) of the November 2010 Agreement raises yet another construction issue. In particular, an issue arises as to whether a primary liability under the indemnity ought to constitute 'indirect, consequential or special losses' for the purposes of the Ramsay engagement. Even if this is so, further issues would also arise in relation to the claim for negligence, since the intention to exclude liability for negligence should usually be clearly expressed (in circumstances where there is explicit reference to 'tort' in cl 8(c)).[37] As already highlighted, a disclaimer or exclusion clause will also not automatically operate in relation to a claim under the ACL.[38]

131 Finally, the fact that AP might be able to subsequently take action to recover any loss against Amcor Ltd under principles of surety is irrelevant to whether AP has a real prospect of demonstrating loss as against Ramsay in the first place.

132 Overall, then, I am unable to form a view at this stage that AP has no real prospects of success in demonstrating the loss it alleges.

133 In paragraph 39 of its defence, Ramsay alleged that the Amcor Parties' claims were outside the contractual limitation period. In particular, they cited cl 8(c) of the November 2010 Agreement, which materially provides that to the maximum extent permitted by law:

the Consultant shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the period specified in the accompanying letter, or if no date is specified, on the expiration of 3 years from the completion of the Services;

[The parties agreed that no alternative limitation period was specified in any letter for the purposes of this sub-clause.]

134 The defendant relied on the affidavit of Mr Finnigan (at paragraph 4.7), wherein he alleged that Ramsay ceased providing services on 28 June 2013. As a result, from 28 June 2016, the defendant ceased having any liability in respect of the services it provided. Given the proceeding was not commenced until 31 January 2017, the three-year limitation period had expired.

135 The defendant further maintained that services pursuant to other engagements (as alleged by Mr Finnigan) could not qualify as 'Services' under the November 2010 Agreement. In particular, the defendant highlighted that the original topic being dealt with was 'detailed site investigation and cost estimate', whereas later it was a review of GHD's reports: an entirely different matter.

136 It also submitted that AP was required to commence court proceedings within the time period (and not just issue a warning as the plaintiffs submitted). That is what was required to satisfy the time period imposed by s 5 of the Limitations of Actions Act 1958 (Vic).

137 Consequently, the defendant is not liable in respect of all the claims made except for those under the ACL.[39]

138 In oral submissions, it was emphasised that there were separate proposals and different work undertaken in 2014 and 2015 associated with two further contracts. It was suggested that there was no reason to have a fresh agreement and fresh fee proposal, unless there was an intention to have a fresh agreement.

139 The plaintiffs submitted that the limitation period did not begin to run until at least 22 July 2015, given this was the date Ramsay completed the consulting services that it agreed to 'from time to time' pursuant to the definition of 'Services' in cl 1 of the November 2010 Agreement. In particular, it highlighted that Ramsay issued invoices to the Amcor Parties during 2015.

140 The plaintiffs also submitted that the preferable interpretation of the clause was not that a proceeding needed to issue, but that the 'putting on notice of a potential claim' was sufficient.

141 In oral submissions, it was submitted that it made no difference whether there was or was not a further short term contract, given that there was the original November 2010 Agreement with services provided 'as agreed from time to time'. In any event, that the nature of the services was always concerned with identifying the extent of contamination on the Site.

142 Second, it was highlighted that there was conflicting evidence as to whether further short form contracts were in existence. Counsel also highlighted that Mr Ramsay himself had given no direct evidence on this issue.

143 A crucial issue in relation to cl 8(c) is whether the only contract ever entered into with Ramsay in relation to the Site was that evidenced by the November 2010 Agreement. If this is the case, then the services provided in 2014 and 2015 may be referrable to this contract, such that the limitations period would not have expired (prior to January 2017). If it is not the case, those subsequent services may be referrable instead to fresh replacement contracts (such that the services under the Ramsay engagement were completed in June 2013, as the defendant alleges).

144 In considering this question, the Court will need to consider whether subsequent short form contracts were executed in relation to the Site. As indicated above, there is conflict in the evidence about this. Consideration may also be given to evidence as to the nature of the works to be performed pursuant to the further proposals. However, given the width of the definition of 'Services' in cl 1, the provision of works of a different scope may not be fatal. This is because the standardised 'short form contract' contemplates the provision of 'other services as may be agreed from time to time'. In so doing, it arguably contemplates the provision of further proposals (with different fees) as occurred in 2014 and 2015.

145 The material raises a real question as to whether the November 2010 Agreement was the only contract entered into between the parties in relation to the Site. In such circumstances, I am unable to be satisfied that there is no real prospect of success in maintaining the claim by reason of the contractual limitation point.

146 It is unnecessary in such circumstances to consider the other submission of the plaintiffs (that it was unnecessary to issue a proceeding in any event).

147 At paragraph 38 of the ASOC, Amcor Ltd alleges that it has suffered loss and damage as follows:

If and to the extent that they are liable to Glenvill (which is denied), the Amcor Parties lost the opportunity of eliminating or reducing their liability and/or could have taken a different approach to the First Deed of Variation. They did not eliminate or reduce it because they relied on the Ramsay Report and the Ramsay Costing. The Amcor Parties could have taken different steps in relation to the Site rather than selling the Site to the Purchasers under the Contract of Sale. For example, Amcor Packaging could have remediated the Site and then sold, or could have structured a sale differently, or could have sold under different terms to those in the Contract of Sale. Ramsay's acts or omissions caused loss to Amcor because under the Novation Deed Amcor assumed the liability of Amcor Packaging to Glenvill.

Further particulars will be provided after discovery and the filing of evidence.

148 In reply submissions, the defendant alleged that the claim was misconceived. Thus, it highlighted that the claim turned on loss for a failure to identify contamination. However, that contamination existed prior to the defendant's activities on the Site. Consequently, any purchaser would factor this into the purchase price (as Glenvill did) and the defendant could not be liable for these costs (which would always be incurred in any event).

149 In oral submissions, it was highlighted that, given the contamination always existed, unless Amcor 'hoodwinked' a purchaser, the costs of the contamination would always have to be taken into account by Amcor, by either a reduction in the purchase price or an express clause requiring AP to clean the contamination itself or pay someone else to do so.

150 The plaintiffs submitted that it was impossible to know in advance what the loss will be, which would depend on the outcome in the Glenvill Proceeding. They further cited evidence of Mr Newton (at paragraph 57 of his affidavit) that the Amcor Parties could have taken a different approach had it known of the true extent of contamination.

151 At paragraph 57 of Mr Newton's affidavit, he says:

I relied on Ramsay & Associates, as experienced environmental consultants, to identify asbestos contamination at the site. In their reports Ramsay & Associates did not identify any asbestos contamination in the soil of the site. Had I known of the asbestos contamination in the soil of the site, or had I been warned by Ramsay & Associates that there was a significant risk of unidentified asbestos contamination in the soil, I would have recommended to the Board that the Amcor group should adopt a different divestment approach in relation to the sale of the site. I would additionally have recommended to the Board that a cap should be placed on any liability for remediation works borne by the Amcor group in the sale, so that the liability for contamination should be borne, or at least borne substantially, by the purchaser. In the circumstances, I expect that the Board would have adopted these recommendations.

152 This evidence remains to be tested. There has also not yet been particularisation of loss in circumstances where discovery is not complete and loss is not particularised pending the trial in the Glenvill Proceeding.

153 In such circumstances, the submissions of the defendant are premature and I am unable to be satisfied that there is no real prospect of success in demonstrating loss as alleged.

154 In Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd,[40] the Victorian Court of Appeal highlighted the importance of considering s 64 as well as s 63 of the CPA in relation to an application for summary judgment.

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

156 In Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd, Dixon J stated the following about s 64:

The section affirms the court's broad discretion, exercised judicially, whether to summarily dismiss a proceeding or a claim, which was the basis upon which the previous test was applied. The circumstances in which the court might consider the dispute to be of such a nature that only a full hearing on the merits is appropriate is equally wide in its compass and plainly to be considered in the circumstances of each case.[41]

157 If, contrary to the above, I was satisfied that any of the claims had no real prospect of success, it would be appropriate to exercise the discretion in s 64 in this case.

158 First, the current case raises complex questions of fact and law which are suitable for resolution at trial, rather than by summary dismissal.

159 Second, even if one or more claims had no real prospect of success, it would be inappropriate to dispose of the proceeding summarily where the matter was to proceed to trial in any event. A number of the defendant's challenges turn on findings of fact and law which may intersect. For example, the construction of three agreements (the November 2010 Agreement; the Contract of Sale; and the Novation Deed) is important to several. It is undesirable that there be a fragmentation of the case in such circumstances, such that parts of the case are determined on a summary basis and others at trial.

160 Third, I consider that there is a serious risk to the plaintiffs in summarily dismissing in circumstances where I am unable to be satisfied that I have all the relevant evidence on the matters raised.

161 Finally, a number of the complaints were premature. This is particularly so in relation to the complaints as to damages in circumstances where the Glenvill Proceeding has not yet been determined.

162 Overall then, if I had been of the view that the s 63 test was met in relation to one or more of the claims, I would exercise my discretion under s 64, as I consider that it is not in the interests of justice to determine this proceeding summarily. Moreover, that, having regard to the above matters, that the dispute is of such a nature that only a full hearing on the merits is appropriate.

[1] The summons also sought relief in the alternative under Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). However, the defendant's complaints in submission were directed solely to the validity of the claims rather than the sufficiency of the pleadings.

[2] Schedule 2 to the Competition and Consumer Act 2010 (Cth).

[3] For example, the email from Mr Ramsay to Mr Newton dated 23 June 2010 (CB 364).

[4] [2013] VSCA 158; (2013) 42 VR 27.

[5] [2014] VSCA 27, [24].

[6] [2016] VSCA 4, [45].

[7] Transcript of Proceedings (22 February 2018) 22.

[8] [2012] VSCA 262; (2012) 38 VR 509.

[10] See Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 117 [49] (French CJ, Nettle and Gordon JJ) (Mount Bruce Mining).

[11] See APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd [2011] VSC 555, [11] (Bell J).

[12] Transcript of Proceedings (22 February 2018) 27, 37, 39.

[13] [2006] FCA 1352; (2006) 236 ALR 720.

[14] Shepherd v Federal Commissioner of Taxation [1965] HCA 70; (1965) 113 CLR 385, 397.

[15] Property Law Act 1958 (Vic) s 134.

[16] Thomas v National Australia Bank Ltd [1999] QCA 525; (2000) 2 Qd R 448, 453-6; Alma Hill Constructions Pty Ltd v Onal [2007] VSC 86; (2007) 16 VR 190, 201-2 [37]-[38].

[17] Mount Bruce Mining [2015] HCA 37; (2015) 256 CLR 104, 116 [47] (French CJ, Nettle and Gordon JJ).

[18] [2006] FCA 1352; (2006) 236 ALR 720.

[19] See references in the ASOC at paragraph 33 to paragraphs 1-2B, 6-11B, 13A and 28-32A.

[20] [2014] HCA 36; (2014) 254 CLR 185, 201 [24] (French CJ).

[21] (2017) 317 FLR 227, 240 [86].

[22] Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, 675 [100], 676 [102]-[103] (Allsop P).

[23] [2004] HCA 16; (2004) 216 CLR 515, 531 [24] (Gleeson CJ, Gummow, Hayne and Heydon JJ); cited in Brookfield Multiplex [2014] HCA 36; (2014) 254 CLR 185, 228 [128] (Crennan, Bell and Keane JJ).

[24] Ibid 200-201 [22] (emphasis added).

[25] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, 529-30 [21] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 547-8 [76] (McHugh J), 572 [158] (Kirby J), 592 [223] (Callinan J).

[26] [1968] HCA 74; (1968) 122 CLR 556, 570 (emphasis added).

[27] [2007] VSCA 79; (2007) 16 VR 563, 570 (per Ashley JA, Buchanan JA and Kellam AJA in agreement).

[28] Transcript of Proceedings (22 February 2018) 54; and note that although the assignment of a 'bare' right of action in tort is generally incapable of assignment, as recognised by the High Court in Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498, an exception exists where the assignee has an interest in the suit: at 532-3 [79].

[29] Transcript of Proceedings (22 February 2018) 111.

[32] Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, 321 [31] (French CJ).

[33] Amended Statement of Claim dated 1 December 2017 in Glenvill Proceeding, [71].

[34] James O'Donovan and John Phillips, The Modern Contract of Guarantee (LBC Information Services, 3rd ed, 1996) 502.

[36] Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, 254.

[37] J W Carter, LexisNexis, Carter on Contract (as at 9 March 2018) [15-150].

[38] See R V Miller, Miller's Australian Competition and Consumer Law Annotated (Lawbook Co, 38th ed, 2016) 1533 [1.S2.18.95].

[39] As it was accepted, the legislation arguably rendered ineffective any exclusions to the operation of these provisions: Defendant's Outline of Submissions on Summary Judgment and/or Strikeout of Statement of Claim, dated 30 January 2018, 10 fn 22.

[40] [2011] VSCA 444; (2011) 35 VR 98, 106.

[41] [2011] VSC 222; (2011) 35 VR 1, 6 [12]. This approach was also endorsed by Judd J in Perpetual Nominees Ltd v McGoldrick [2014] VSC 152, [40].