Bendigo and Adelaide Bank Limited & Anor v Adam Christopher Cairncross; Bendigo and Adelaide Bank Limited & Anor v Elite Advertising Group Pty Limited & Anor

Background 5The Cross Claimants - Mr Adam Cairncross (in the Cairncross proceedings) and Elite Advertising Group Pty Ltd ( Elite ) (in the Elite proceedings) (together the Borrowers ) - are members of a group of approximately 300 people or entities who borrowed moneys for the purpose of investing in managed investment schemes of which Great Southern Managers Australia Limited (in liquidation) ( GSMAL ) was responsible entity, and who have retained the law firm ERA Legal to act on their behalf (the Group ). 6ABL is the lender, or in the case of one loan to Elite [the third loan in the Elite proceedings] the assignee of the rights of the lender, of the moneys borrowed by the Borrowers. ABL's rights have in turn been assigned to BABL. Almost all of the Group members, including the Borrowers, have refused to repay their loans. 7By Summons and Commercial List Statement, ABL and BABL commenced the present proceedings against the Borrowers to recover the amounts owing under their respective Loan Deeds. 8The Borrowers have filed Amended Cross Claims against the Bank, seeking to set aside the Loan Deeds. In the meantime, the Borrowers and all but a few of the other members of the Group are continuing to refuse to repay their loans.

Principles governing Summary Dismissal applications 9The principles governing such applications are well known. The absence of a reasonable cause of action must be clearly demonstrated: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 135 at 129. However, as also appears from the judgment of Barwick CJ in General Steel (supra), the fact that extensive argument may be necessary to reach this conclusion will not prevent it from being attained.

The Bank's claims against Mr Cairncross 10In the Cairncross proceedings, the Bank alleges in the Amended Commercial List Statement ( Commercial List Statement or CLS ) that, inter alia: (1)on or about 5 June 2007, Mr Cairncross applied to ABL for finance to acquire interests in the Great Southern 2007 Wine Grape Income Project Managed Investment Scheme ( 2007 Wine Grape MIS ) [CLS 8-10]; (2)on or about 15 June 2007, Mr Cairncross and ABL entered into a Loan Deed pursuant to which ABL loaned Mr Cairncross $450,294 on the terms of the Loan Deed [CLS 11-15]; (3)the Loan was assigned by ABL to Adelaide Bank Limited [CLS 16-17]; (4)with effect from 1 December 2008, Adelaide Bank Limited's interest in the Loan was transferred to BABL pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) [CLS 18-19]; (5)in breach of the Loan Deed, Mr Cairncross failed from 31 July 2009 to make monthly repayments in accordance with the Loan Deed [CLS 22-26]; (6)despite demand, Mr Cairncross has refused to pay the amounts payable by him under the Loan Deed, which as at 1 September 2010 totalled $518,670.21 plus legal costs [27-33].

Mr Cairncross' Cross Claim 11In his Amended Cross Summons, Mr Cairncross seeks orders declaring that the Loan Deed he entered into with ABL is void, or ought to be set aside, and an order that Mr Cairncross is not liable for any amount under the Loan Deed. 12In his Further Amended Commercial List Cross Claim Statement ( Cross Claim Statement or CCS ), Mr Cairncross: (1)in paragraphs 11 to 24I inclusive, makes various contentions concerning alleged acts and omissions of entities in the Great Southern group of companies, including GSMAL and Great Southern Finance Pty Limited (in liquidation) ( GSF ); (2)in paragraphs 25 to 43 inclusive, makes various contentions alleging breaches by GSMAL of various obligations and duties; (3)in paragraphs 44 to 52 inclusive, makes various contentions alleging breaches by GSF of various obligations and duties; and (4)in paragraphs 53 to 62B inclusive, sets out the contentions made against ABL, upon which the claims for relief in respect of the Loan Deed are said to be founded. 13The contentions made against ABL comprise four separate causes of action. Each of the four causes of action seeks to make ABL liable for the conduct of GSMAL and/or GSF alleged in the earlier paragraphs of the contentions, such as to vitiate the Loan Deed entered into between Mr Cairncross and ABL. The Bank contends that each cause of action is untenable.

The materials mobilised by ABL 14ABL produced a core folder of Court documents, which was conveniently marked MFI P1. The folder included all the up-to-date pleadings by both parties. 15ABL also read an affidavit of their instructing solicitor David Harris and the affidavit of their opponent's solicitor Darren Anderson. 16Mr Harris' affidavit simply set out the relevant product disclosure statements, which were essential to the establishment of the scope of the Bank's involvement. 17In general terms, Mr Anderson's affidavit treated with what had occurred in proceedings in the Supreme Court of Victoria. The affidavit set out details of the decision of Croft J of the Supreme Court of Victoria in Clarke v Great Southern Finance Pty Ltd (2010) 80 ACSR 219. The judgment involved, inter alia, orders striking out the amended statement of claim of the plaintiffs in those proceedings.

The stance taken by the defendants in the current proceedings 18The defendant's elected not to rely upon evidence.

Some general observations 19During argument at the bar table both sides from time to time made concessions. The plaintiff conceded that: (1)If it was unsuccessful on other parts of its application, the contracts review act claim would stand; and (2)Their submission concerning the need for notice on behalf of the plaintiff of impropriety of others to engage the CRA was incorrect, no notice is necessary; 20The defendants conceded: (1)The general law unconscionable conduct claim is hopeless; (2)Prescriptive fiduciary duties are unknown to Australian law; and (3)The factual allegation concerning the need to borrow money only from GSF or the plaintiff was wrong; and (4)The defendants did not plead anywhere that the plaintiff "knew or ought to have known" about misleading representations, this was a defect in their pleadings 21However it is important to note that senior counsel appearing for the defendants in addition to seeking to withdraw the general law unconscionability claim, also sought: (1)To re plead the fiduciary duty claim in respect of an alleged conflict; (2)For the first time to plead that the plaintiff new or ought to have known of certain misleading statements.

Case management 22In these circumstances the Court was placed in an intolerable position. For this reason, the Court required the defendants to formulate the precise terms of their new amendments and to furnish them to the plaintiff and the Court by 11 a.m. on Thursday 16 June 2011. The Court then determined to relist the matter on Friday 17 June for the purpose of the Court hearing further submissions in relation to the proposed amendments. The Court made clear that following the hearing on those further submissions, the Court would determine whether or not to accede to the defendant's application. Following this hearing, the cross claimants were given a further opportunity to clarify one more area in relation to their vicarious liability claim. 23Before travelling further it is appropriate to indicate that almost all of the submissions put by either party centred on Mr Cairncross' amended commercial list cross-claim statement filed on 11 March 2011. Elite's pleadings mirrored this statement, except in a few areas. Whilst it becomes necessary to set out certain parts of Mr Cairncross' cross-claim statement, it is not necessary to be set out in full.

A timely reminder 24As Lord Oliver of Aylmerton, speaking for the Privy Council in Wharf Properties Pty Ltd v Eric Cumine Associates (1991) 52 BLR 8 observed : It is for the plaintiff in an action to formulate his claim in an intelligent form and it does not lie in his mouth to assert that it is impossible for him to formulate it and that it should, therefore, be allowed to continue unspecified in the hope that, when it comes to trial, he may be able to reconstitute his case and make good what he then feels able to plead and substantiate [cf: Gunns Ltd & Alexander Marr and others [2005] VSC 251 at 57 to 89]

Returning to what is the nature of fiduciary obligations 25The law in this country governing the nature of fiduciary obligations is well chronicled. Importantly the High Court [McHugh, Gummow, Hayne and Callinan JJ] in Pilmer v Duke Group (2001) 207 CLR 165 [dealing with the manner in which equity imposes on the fiduciary prospective obligations observed [at 72] The trial judge was correct in principle in taking this approach. In Breen v Williams , the point was made, by way of contrast to what is said in some of the Canadian judgments, that fiduciary obligations are proscriptive rather than prescriptive in nature; there is not imposed upon fiduciaries a quasi-tortious duty to act solely in the best interests of their principals. In Breen v Williams , Gaudron and McHugh JJ said [111]: "In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations - not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed."

The defendants ultimate attempts at putting forward its contention that ABL was a promoter and breached fiduciary duties 26Following the defendants application to further amend its pleadings a number of altered parameters were sought to be pleaded. It is appropriate to treat with these proposed pleadings seriatim.

Breach of fiduciary duty as promoter 27The fiduciary duty claim is now pleaded in paragraphs 52A to 56 of the Cairncross Cross Claim. 28The factual matters said to constitute ABL as a promoter of the scheme are set out in Cross Claim sub-paragraphs 53(a) to 53(d). 29Those matters, whether looked at individually or taken together, do not constitute an arguable fiduciary relationship. 30As Mason J said in Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 (at 96), the critical feature of the accepted fiduciary relationships is that " the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position." 31I accept that factual matters relied upon the by the Cross Claimants in paragraphs 53(a) to 53(d), insofar as they plead facts concerning the relationship between ABL and the investors, go nowhere near pleading facts that might constitute a fiduciary relationship. 32The relationship pleaded does not have the critical feature identified by Mason J in Hospital Products . Nor does it have any of the essential features of the relationship present in Catt v Marac Australia (1986) 9 NSWLR 639 . The relationship pleaded rises no higher than alleging that ABL was the promoter's preferred financier and was willing to consider applications for finance on the terms of the disclosed Loan Deed and that GSMAL encouraged investors to apply for such a loan by statements in the PDS. The pleaded facts no longer plead that investors were required to obtain loans from ABL. 33On the facts as pleaded, no allegation can be maintained that ABL's role was essential for the achievement of GSMAL's purpose (that being an essential feature of the relationship as found in Catt v Marac ), and that the investors were vulnerable to ABL's exercise of a power or discretion which ABL undertook to exercise in the interests of investors. 34Further, even if it is assumed for the sake of argument that ABL owed a fiduciary duty, the claim that ABL breached that cannot be supported. 35The claim of breach is now contained in paragraph 55-56.

The first claim of breach 36The first claim of breach is that ABL failed to disclose it had a conflict of interest in that it knew that GSMAL and GSF wished to obtain profits from the promotion of the schemes and therefore GSMAL and GSF had interests which conflicted or might conflict with the interests of the investors (paragraph 55(a)). 37No allegation is made that GSMAL or GSF wished to obtain or did obtain profits which were not disclosed in the PDS . The mere fact that a promoter wishes to obtain profits does not place the promoter in breach of fiduciary duty. Otherwise, only a not for profit body could ever promote a venture without breaching its fiduciary duties. The fiduciary duty is not to obtain unauthorised profits. 38As the plaintiffs have contended that claim cannot be supported. 39No allegation is made that GSMAL or GSF intended to obtain (or in fact obtained) profits that were not disclosed to the investors in the Product Disclosure Statements . In fact, the PDS contains many pages disclosing the fees and costs payable and the terms of all material agreements relating to the establishment of the Schemes (see for example pages 25 to 28 and 63 to 76 of the High Value Timber PDS).

The second alleged breach of duty 40The second alleged breach of duty is that ABL failed to avoid or disclose a conflict of interest in that it knew that GSMAL and GSF issued a PDS which would induce potential investors to invest and potentially borrow funds from ABL in circumstances where ABL knew or ought to have known that the PDS contained representations that were misleading or deceptive (paragraphs 55(b) and (c)). 41The Bank contends that leave should not be granted to the Cross Claimants to now plead that ABL knew or ought to have known that the PDS contained representations that were misleading or deceptive. That pleading is sought to be made in paragraphs 55(c), 53(d)(iv), 57(c)(iii) and 61(da)) of the proposed Amendment in the Cairncross matter. 42Leaving aside that the pleading does not identify what the relevant representations were, and does not identify in what respects those representations were misleading and deceptive, no material facts are alleged from which the conclusion that ABL knew or ought to have known that the representations were misleading and deceptive are alleged in the document. 43The Cross Claimants, through their senior counsel, have frankly conceded that they do not know what the Bank knew [transcript 36.45-37.05; see also transcript 30.25]. It is evident that the claim that the Bank knew or ought to have known that representations contained in the PDS were misleading is pure speculation. 44Notably, the Bank submits it is ill-founded speculation. If the Great Southern Group had information showing that the representations in the PDS were misleading, it flies in the face of common sense to think that Great Southern would share that information with a prospective arms length financier such as ABL. And it flies even further in the face of common sense to suppose that ABL would have proceeded to make the loans that it did make, being loans that were secured only by interests in the schemes, if it had such information. The loans made were long term loans with usual commercial interest rates and terms. The speculation that ABL knew the representations in the PDS were misleading makes no sense. 45In the circumstances it is inappropriate for leave to be granted for such a claim to be made. If the Cross Claimants had a proper basis for contending that they had reason to believe that they might have a cause of action against ABL, the appropriate process is an application for pre-trial discovery. 46Once the allegation that ABL knew or ought to have known that the PDS contained misleading or deceptive representations is removed, the claim that ABL breached a fiduciary duty as set out in paragraphs 54 to 56 falls away.

Vicarious liability 47Paragraphs 57 to 60 plead a claim that ABL is deemed by section 12GH of the ASIC Act to be vicariously liable, under section 12DA of the ASIC Act for misleading or deceptive representations contained in the PDS. New claims are made in paragraphs 57 that the representations in the PDS were made "in the course of ABL's business" or "as part of ABL's business". Those new claims have been added to seek to engage to the pre-condition in section 12GH that the conduct be engaged in "on behalf of" ABL. 48In my view there is no substance in the proposed pleading, which requires it to be struck out for the following reasons : (1)There are no material facts contained anywhere in the pleading which could arguably justify the conclusion that the PDS was issued in the course of ABL's business. (2)The contents of the PDS make it plain that it was issued by GSMAL in order to meet the disclosure requirements imposed by the Corporations Act on responsible entities of managed investment schemes. (3)Each PDS explicitly states that GSMAL is the issuer of the PDS and except for preparation of those parts of the PDS in which its professional advisers were also involved, is wholly responsible for its contents (see Table of Contents and page 79 of High Value Timber PDS). (4)The subject matter of the PDS is information about the managed investment scheme and its responsible entity. (5)The schemes are not described as ABL schemes and are not in substance ABL schemes. (6)ABL is not the manager or operator of the schemes. (7)ABL's involvement is not integral to the schemes. (8)No requirement is contained in the PDS that investors borrow at all, much less borrow from ABL. (9)ABL is not mentioned in the PDS at all. 49In these circumstances I accept that the allegation that the PDS is a document issued on behalf of ABL or in the course of or as part of ABL's business in untenable. Once that allegation is removed, the claim based on s 12GH falls away. 50There is a further fatal problem with the vicarious liability claim. 51Even if it is assumed for the sake of argument that s.12GH of the ASIC Act is triggered such that the conduct of GSMAL in issuing the PDS is taken to have been engaged in also by ABL (for the purposes of the ASIC Act ), the relevant conduct - misleading or deceptive representations in a PDS - is excluded from the operation of s.12DA of the ASIC Act by s.12DA(1A). 52That section provides that conduct in relation to a disclosure document within the meaning of s.1022A of the Corporations Act does not contravene the misleading or deceptive conduct provision in s.12DA(1) of the ASIC Act . The Cross Claimants plead (and the Bank accepts) that the PDS was a disclosure document or statement within the meaning of s 1022A of the Corporations Act - see paragraph 17 of the Cross Claim. Therefore, the claim pleaded is untenable. 53Nor do the provisions of the repealed s 52 of the Trade Practices Act or Australian Consumer Law apply to misleading representations in product disclosure statements. To the extent that the Australian Consumer Law is part of the law of the Commonwealth, it does not apply to conduct in relation to financial services or financial products (see s.131 and 131A of the Competition and Consumer Act 2010). To the extent that the Australian Consumer Law is part of the law of the States, by the Fair Trading Acts , it does not apply to conduct in relation to product disclosure statements by virtue of s.1041K and 1041H(3) of the Corporations Act . 54The effect of all of those provisions is that misleading or deceptive representations in a disclosure document or statement within the meaning of s 1022A of the Corporations Act are regulated exclusively by Part 7.9 of the Corporations Act , in particular section 1022B and 1022C. Those sections limit the orders that can be made to orders against a "liable person" as defined in s.1022B(3). 55For present purposes it is sufficient for the Court to find that the two provisions relied upon by the Cross Claimants in paragraph 59 of the Cross Claim are not available, with the result that the claim in paragraphs 57 to 60 is untenable. 56Secondly, Mr Cairncross (but not Elite) sought to make further proposed amendments, which sought to extend the claim such that the misleading or deceptive conduct is not limited to representations contained in the PDS, but extends to alleged misleading statements contained in associated promotional material. 57I accept the Bank's submissions that: (1)Elite does not make amendments to that effect. That being so, there is no basis for allowing the relevant claim (in paragraphs 54 to 58 of the Elite Cross Claim) to remain; (2)As to Mr Cairncross, the amendment does not assist Mr Cairncross' position, because the making of representations in the associated promotional material must necessarily be "conduct in relation to" the PDS. An essential element of Mr Cairncross' cause of action, as pleaded in paragraph 22B of the Cross Claim, is that he was induced by the alleged misrepresentations to sign the Application for Investment. The Application for Investment formed part of the PDS. It follows that the promotional material which is alleged to have caused Mr Cairncross to sign the Application for Investment in the PDS must be "conduct in relation" to the PDS. It is not possible for conduct X to induce conduct Y if conduct X does not relate to conduct Y. Accordingly, paragraphs 57 to 60 of the Cairncross Cross Claim are untenable, notwithstanding that they extend to promotional material separate from the PDS. (3)In any event, Mr Cairncross' claim continues to rely on the issuance of the PDS itself, which on any view is "conduct in relation to" the PDS. 58For these reasons, the vicarious liability claim must fail.

Contracts Review Act 59In paragraphs 61 to 62 of the Cross Claim Statement, Mr Cairncross contends that the Loan Deed was unjust within the meaning of s.9 of the Contracts Review Act 1980 ( CRA ) and seeks relief pursuant to s.7 of the CRA, including an order declaring the Loan Deed void, or an order that ABL and BABL not be permitted to enforce the Loan Deed. This claim was not open to Elite because they are a corporation and are excluded from the operation of the Act. 60Firstly, I accept that it is open to the Court to deal summarily with claims based on the provisions of the Contracts Review Act 1980: Hogan v Howard Finance Limited (1987) ASC 55-594 per Hope JA (with whom Street CJ agreed) where the facts allow. 61Turning to the substance of Mr Cairncross' Contracts Review Act claim, it is based on two main allegations: (1)First, that GSMAL and GSF engaged in misleading or deceptive conduct by making misleading statements in the PDS and other promotional material and ABL knew or ought to have known; (2)ABL was a promoter of the scheme and this gave rise to a conflict 62As to the first claim, for the same reasons outlined above, the claim must fail. The allegations are purely speculative and without sufficient particulars. 63The second claim also fails for there is no conflict beyond that of earning a commercial profit able to be made out.

The s1022C Claim 64The third matter raised by the Cross Claimants is the proposal to add a claim against ABL under s.1022C of the Corporations Act . The proposed new claim is contained in paragraph 60A of the Cairncross Cross Claim and in the addition of a reference to section 1022A in paragraph 59 of the Cairncross Cross Claim 65That claim is untenable. Section 1022C grants powers to " The court dealing with an action under section 1022B(2) ". Section 1022B(2) entitles certain persons to recover certain loss or damage " by action against, the, or a, liable person ". Subsection 1022B(3) sets out detailed provisions as to who is a "liable person" for the purpose of s.1022B(2). Thus, the power of the Court to make orders under s.1022C is only available to a Court dealing with an action to recover loss or damage against a "liable person" 66The Cairncross Cross Claim alleges in paragraph 51A that GSF was a liable person within the meaning of s.1022B(3). But GSF (which is in liquidation) is not a cross-defendant to the Cross Claim. So, the Cross Claim is not an action against the alleged liable person - GSF. It follows that the Cross Claim is not an "action under section 1022B(2)" of the Corporations Act, and the Court has no power to make any orders under s.1022C. The proposed new claim for relief under section 1022C is untenable. 67In its submissions, the Cross Claimants referred to the decision of Croft J in Clarke v Great Southern Finance Pty Ltd (2010) 80 ACSR 219. However, as the title of that case indicates, GSF was a party to that action. The proceedings before Croft J were an action to recover loss and damage from GSF under s.1022B(2). The Cairncross Cross Claim is not such an action. 68Accordingly, the claims pleaded in paragraphs 57 to 60A of the Cross Claim are not saved by the proposed further amendments and remain untenable.

Unconscionable conduct 69The Cross Claimants have removed the claim for general law unconscionability from the Cairncross Cross Claim and conceded that the failure to remove the claim in Elite's statement was a mistake. 70Having already dealt with the previous claims, the unconscionable claim is untenable.

Leave to amend refused 71For the above reasons, the defendant's ambulatory applications for leave to further amend their pleadings are appropriately refused.

Short minutes of order 72The parties are to bring in short minutes of order on which occasion costs may be argued.

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: 22 June 2011