Bill Acceptance Corporation Ltd v G.W.A. Ltd [1983] FCA 280

BETWEEN : BILL ACCEPTANCE CORPORATION LIMITED Applicant AND: GWA LIMITED Respondent ORDER

2. The application stand adjourned to a date to be fixed to

hear evidence and argument on the question of costs and

BETWEEN : BILL ACCEPTANCE CORPORATION LIMITED Applicant AND: GWA LIMITED Respondent

This case raises a novel question concerning the construction and ambit of s.52 of the Trade Practices Act 1974 ("the Act"). The question arises in a motion by the respondent, GWA Limited, to strike

out the statement of claim of the applicant, Bill Acceptance

Corporation Limited, as failing to disclose a cause of action.

In its statement of claim the applicant alleges that the respondent, in trade or commerce, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive and therefore contravened s. 52 of the Act. The applicant seeks damages pursuant to s. 82 and orders pursuant to s. 87 of the Act by reason of

The applicant's case rests upon the correctness of the proposition that a contravention of s.52 may occur merely if a representation by the respondent as to future conduct does not come to pass, notwithstanding that, at the time it made that representation, the respondent may have believed that it would come to pass or that it was not recklessly indifferent as to what it said. In short, if A, being a corporation, says to B, in trade or commerce, that it will pay a sum of money to him on the happening of a certain event, and the event occurs, but the money is not paid, the respondent has, without more, engaged in conduct that is misleading or deceptive or is likely to mislead or deceive. I have summarised the argument of counsel for the applicant at the outset (my rather bald statement is not intended to detract from the felicity of the argument itself) because I am about to set out the relevant allegations in the statement of claim and it is easier to understand them if I identify the destination before embarking on the rather lengthy Journey.

Tne allegations in the statement of claim, save for two

"3. On or about 25 November 1982 the respondent represented to the applicant that the respondent would welcome any assistance that the applicant might be able to provide "in further exploration of the potential" of the sale of shares in Midland Credit Limited.

4. On or about 25 November 1982 the respondent represented to the applicant that in the event that the applicant was able to facilitate disposal of certain assets of the respondent the respondent undertook "to negotiate a commercially acceptable remuneration for your efforts therein".

On or about 8 December 1982 the applicant notified the

respondent that the applicant had identified two parties who had expressed interest in acquiring Midland Credit Limited.

On or about 5 January 1983 the respondent advised the applicant that the respondent would draw up Heads of Agreement with a buyer for Midland Credit Limited and that

the respondent expected "no problems" with the Foreign Investment Review Board.

On or about 12 January 1983 the applicant advised the respondent that the applicant had identified a potential purchaser for Midland Credit Limited, namely, the applicant's

parent company, Australian Guarantee Corporation Limited ("AGC").

On or about 21 January 1983 the applicant informed the respondent that the applicant was authorised by AGC to make an offer on AGC's behalf to purchase the entire share capital of Midland Credit Limited.

On or about 21 January 1983 the applicant sought confirmation from the respondent that the applicant's fee for procuring a purchaser of Midland Credit Limited would be 1.5% of the consideration for the eventual sale.

On or about 26 January 1983 the respondent communicated with the applicant in, inter alia, the following terms:-

"Consider fee 1.5% too high for this transaction. Suggest lump sum $60,000 more appropriate".

On or about 28 January 1983 the respondent represented that it would: pay to the applicant a fee calculated on the basis

of 1% of the eventual consideration for the sale of Midiand Credit Limited to AGC.

On or about 14 February 1983 the respondent advised the applicant of the general terms on which it wished the sale of Midland Credit Limited to be negotiated.

On or about 18 February 1983 the applicant advised the respondent that the Board of Directors of AGC had approved the making of a revised offer to purchase the whole of the share capital of Midland Credit Limited and advised the respondent that such offer was to remain open for acceptance not later than 5:00 p.m. on 25 February 1983,

On or about 25 February 1983 the respondent sought an extension of time within which to reply to the said revised offer from AGC, until 5:00 p.m. on 2 March 1983.

On or about 25 February 1983 the respondent accepted AGC's offer for Midland Credit Limited.

On or about 28 February 1983 the respondent asked the applicant to arrange for draft documentation to be submitted to the respondent's solicitors as soon as possible for discussion and approval.

On or about 4 March 1983 the respondent informed the applicant that the respondent was "Discussing draft of form

of Agreement today and expect finality from our end on Monday".

On or about 23 March 1983 the applicant received a telex from the respondent stating that the respondent had withdrawn its offer to sell the shares in Midland Credit Limited to AGC and that the respondent's brief to the applicant to act on the respondent's behalf in connection with the disposal of the said shares had also been withdrawn.

On or about 31 March 1983 the respondent advised the applicant that settlement of the sale of the shares in Midland Credit Limited to AGC would take place on 6 April 1983 and indicated, anter alia, that the applicant had "well and truly earned its money".

On or about 6 April 1983 the sale of shares in Midland Credit Limited to AGC was completed for a consideration of $12,400,000.

On or about 11 April 1983 the applicant forwarded to the

respondent a memorandum of fees calculated at 1% of the said consideration of $12,400,000.

On or about 29 April 1983 and subsequent to that date the respondent refused and has continually thereafter refused to pay any thoneys to the applicant.

Each of the statements, advices and representations of the respondent ("the representations") referred to 1n paragraphs

3 to 19 were untrue, and/or misleading or deceptive and/or likely to mislead or deceive.

By reason of the matters pleaded in paragraphs 3 to 23 inclusive the respondent has contravened Section 52 of the Trade Practices Act, 1974 ("the Act") by, in trade or commerce, engaging in conduct that was misleading or deceptive or likely to mislead or deceive.

The respondent owed to the applicant a duty to take reasonable care in the making of the representations referred to in paragraphs 3 to 19 inclusive.

In breach of the duty referred to in paragraph 25, the respondent was quilty of negligence in making the representations referred to in paragraphs 3 to 19 inclusive.

27. The applicant reasonably relied upon the representations referred to in paragraphs 3 to 19 and expended moneys and

provided services to the respondent in reasonable reliance thereon.

28. By reason of the matters pleaded in paragraphs 3 to 23 the applicant says that it had a contract with the respondent in or to the effect that upon the applicant facilitating or procuring the disposition of the shares of Midland Credit Limited to a purchaser acceptable to the respondent the applicant would be entitled to a fee of 1% of the eventual consideration for such transaction.

29. In breach of the said contract the respondent has failed and refused to pay the applicant the said sum of $124,000 which

sum represents 1% of the eventual consideration for the said transaction, namely, $12,400,000.

30, By reason of the conduct of the respondent referred to in the

foregoing paragraphs the applicant has suffered damage and continues to suffer damage.

31. The applicant claims the relief set out in the Application and, in particular, claims damages against the respondent:-

{a) By reason of the matters pleaded in paragraphs 3 to 24 and 27, pursuant to Section 82 of the Act;

{c):> By reason of the matters pleaded in paragraphs 3 to 23 and 25 to 27, for negligence.

(ad) By reason of the matters pleaded in paragraphs

3 to 23 and 27 to 29, for breach of contract." Counsel for the applicant summarised the applicant's case as pleaded in its statement of claim as a series of representations or statements, which were not misleading or deceptive to the knowledge of the respondent at the time they were made but which, when taken together and viewed in the light of two subsequent events, were misleading or deceptive. The two events were first, that the

applicant facilitated or procured the disposition of the respondent's

shares in Midland Credit Limited to a purchaser acceptable to the respondent and second, that the respondent did not pay the agreed

procuration fee of $124,000 to the applicant. Counsel for the applicant argued that this chain of events, without more, could

Before considering the correctness of this argument it is helpful to examine the role played by s. 52 in the Act. The section is a general prohibition against a corporation in the course of trade or commerce engaging in conduct which is an unfair trade practice. It is designed to protect consumers by eliminating unfair trade practices: R. v. The Credit Tribunal; Ex Parte General Motors

Acceptance Corporation, Australia (1976-1977) 137 C.L.R. 545 per Mason

dg. (at p. 561). It finds its place in Part V of the Act concerning consumer protection. Although the section may be enforced by a trade competitor who is not a consumer it is essentially for the protection of consumers. The section is not concerned as such with any

unfairness of competition in trade as between two traders: Hornsby

Building Information Centre Pty. Ltd v. Sydnev_ Building Information

Centre Ltd (1978) 140 C.L.R. 216 (at p. 226). It does not give

statutory recognition to passing off or protection of trade names. It

extends to any conduct that is misleading or deceptive or is likely to

mislead or deceive members of the public in their capacity as

consumers: see Hornsby Building Case. Section 52 should be

generously construed and should not be read down to conform with

requirements of the common law or equity: see World Series Cricket

Pty. Ltd v. Parish (1977) 16 A.L.R. 181 (at pp.198-9).

Misleading or deceptive conduct may be constituted by the making of statements. They may be statements as to existing or past facts, statements as to the current holding of a belief or intention or promises as to future conduct. The distinction between promises of future conduct on the one hand and statements as to existing or past facts on the other is well recognised in cases of fraud or deceit. It may be necessary for the purposes of s. 52, in the case of statements or representations as to future conduct, to distinguish between promises on the one hand and predictions on the other, the former being within the scope of s. 52 and the latter perhaps not: see

Thompson v. Mastertouch T.V. Service Pty. Ltd (1977) ATPR 40-027, per

Franki J. (at p. 17,364); R. v. Sunair Holidays Ltd £19733 1 W.L.R. 1105 and Beckett v. Cohen £19723 1 W.L.R. 1593. This question does not

arise for consideration in the present case because it was not

suggested before me that the alleged misleading or deceptive

statements or representations were predictions as to the future.

I should say at this stage, however, that I have great difficulty in understanding how many of the allegations described in the statement of claim as statements, representations or "advices" truly answer any of those descriptions. Some of the allegations are merely of facts which could not conceivably be misleading or deceptive: see, for example, paras. 9, 10, 12, 14, 15, 16 and 17. Doing the best I can with the statement of claim and, even viewing it in its most favourable light to the applicant, the relevant

allegations are that the respondent made certain promises as to its

future conduct, that the applicant acted on the face of them and that

The applicant's first proposition is that s. 52 may be contravened notwithstanding the absence of an intent to mislead or

deceive on the part of the contravenor, irrespective of the type of

It has been held that s. 52 15 not confined to conduct that

is intended to mislead or deceive (see The Hornsby Case) or conduct

engaged inas aresult of a failure to take reasonable care (see

Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd. (1982) 42

A.L.R. 1 per Gibbs C.J. (at p.5)) or that the liability imposed by the

"a corporation which has acted honestly and reasonably may therefore nevertheless be rendered liable to be restrained by injunction, and to pay damages, if its conduct has in fact misled or deceived or is likely to mislead'or deceive."

The application of these principles is clear in the case of statements as to past or present facts, but their application is productive of considerable difficulty in cases of representations as

to future events or conduct where issues as to the respondent's state

This difficulty was recognised by Fitzgerald J. in Stack v.

Coast Securities No. 9 Pty. Ltd. (1983) ATPR 40.342 where his Honour

"It would be appropriate at this interlocutory stage, and not inconsistent with any submission made before me on behalf of either applicants or respondent for me to act upon a view which has been consistently adopted by anumber of judges of this Court that irrespective of whether representations as to the future events or conduct constitute promises or predictions, they involve contraventions of the presently relevant provisions of the Act only if it is established that the belief of the respondent was at the time different from what was stated, or that the respondent did not believe what was stated, or was recklessly indifferent as to what was stated. Accordingly, an issue as to the respondent's state of mind at the relevant time is, in fact, central to these proceedings as it was to the proceedings in the Supreme Court."

See also Fitzgerald J.'s judgment in Lyons v. Kern. Konstructions

(Townsville) Pty. Ltd. (1983) ATPR 40-343 (at p. 44,153).

Counsel for the applicant recognised that these observations of Fitzgerald J. stood in the path of his argument and criticised them on various grounds. First, it was argued that his Honour was in error in stating that his view is one "Which has been consistently adopted by a number of Judges of this Court." Second, it was said that his Honour's view was inconsistent with two decisions of this Court

namely, the decision of Fox J. in Brown v. Jam Factory Pty. Ltd.

(1981) 35 A.L.R. 79 and the decision of Northrop J. in Mister Figgins

Pty. Ltd. v. Centrepoint Freeholds Pty. Ltd. (1981) 36 A.L.R. 23.

Third, it was said to be wrong in any event. Finally, it was said to be obiter dicta and therefore, 1n all the circumstances, need not and

Whether the view of Fitzgerald J. has been consistently adopted by a number of Judges of this Court is perhaps open to some question, but I do not find it necessary to enter this area of discourse. It is true that his Honour's statements were obiter dicta. I do not, however, accept the correctness of the proposition that his Honour's remarks were contrary to the decisions of Fox J. and Northrop J. in the two cases to which I have referred. It is necessary to

In the Jam Factory Case the applicants sought damages under s. 82 of the Act in respect of alleged breaches of ss. 52 and 53A. For a period between October 1979 and May 1980 they carried on in partnership a business of selling ladies' garments in premises leased for a term of three years from the first respondent, Jam Factory Pty. Limited. Their shop was part of a large shopping complex developed by the first respondent in South Yarra and opened in October 1979. The second respondent, L.J. Hooker (Vic.) Limited, was agent for the owners and was responsible for negotiating leases of the various shops in the centre, although it did not have authority to conclude leases. The central issue in the case was whether an officer of the second respondent had in the course of explaining matters to the applicants,

(a) that at that time ali the shops in the centre except two had been let,

(b) that when the centre opened to the public all the shops would be let and opened for business and

(c) that the lessor was obtaining permission from the relevant Government authority which would enable the applicants as lessees to trade seven days a week.

His Honour held that the first two statements were made and that such conduct fell within s. 52, the applicants having been induced by those statements to take a lease and commence business. His Honour doubted whether those two statements fell within para. 53A(1)(b) and was not satisfied that the evidence relating to the third statement established a breach of either section. It is true that the Jam Factory Case is an instance of a Judge of this Court holding that s.52 had been contravened (at least as to the second statement) in circumstances concerning a future event. It was not a case where it was proved that any of the statements, to the extent that they constituted promises as to future conduct, were based on beliefs not in fact held by the respondents or were made with reckless indifference to their accuracy. At first sight the case seems to give some support to the proposition advanced by counsel for the applicant, but on closer analysis it does not because Fox J. said (at p. 80):-

"Argument was not developed on either side concerning

the construction or application of s. 52 and 953A, it being assumed, I imagine, that if the making of the statements was proved, liability would follow, from at least one of the sections."

This passage 1s important because it indicates to my mind that the question which has arisen in the present case was not the subject of argument and was not an issue before Fox J. in the Jam

Factory Case. My impression is confirmed when his Honour's reasons for

Turning to the case of Mister Figgins v. Centrepoint

Freeholds, the applicant there entered into leases for three years in an uncompleted shopping mall with the respondents and, after completion of the project, sought damages under s. 82 and orders under s. 87, alleging contraventions of s. 52. Northrop J. found in favour of the applicants and made orders varying the relevant leases. His Honour set out (at p. 33) the representations as pleaded by the applicant in its statement of claim, most of which were representations as to the future. For example, a representation that the mall would be open for trading by mid-March 1979 and that there would be at least two restaurants in the centre. His Honour said that he was satisfied that the applicant had made out a case under s. 52 based upon six of the eighteen paragraphs in the statement of clain.

There were many issues inthe case of Mister Figgins v.

Centrepoint Freeholds, in particular issues as to whether the relevant

statements, said to constitute contraventions of s. 52, were in fact made, whether the applicant had relied on those statements, the construction and operation of s.87 and the principles to be applied in assessing damages under s. 82 when based on a contravention of s. 52.

Like the Jam Factory Case none of the issues which are central to the

present application were raised before Northrop J. and therefore not

I regard neither of these cases as bearing directly on the

So far as I am able to characterise the allegations in the

statement of claim as representations or statements as to future conduct of the respondent they involve no element of absence of belief by the respondent in the truth of the statements and no element of reckless indifference to their accuracy. They are simply promises by the respondent that 1t will pay a certain sum of money on a particular

event. That event occurred, but the money was not paid.

The second proposition relied upon by the applicant was that the legal character of the representation could be determined ata time later than that at which it was made. The argument runs that the

respondent engaged in conduct which was not intentionally misleading or deceptive but which induced the applicant to alter its position and which, in the light of the failure of the respondent to pay the agreed procuration fee, was, without more, misleading or deceptive conduct. In support of this proposition, counsel for the applicant sought

comfort from an analogy in the criminal law. He submitted:-

"In the absence of fraud, which we are not presently alleging, the time of the misleading was the time when the statements were made, but the fact that the statements were misleading does not become apparent until some further time has passed. If I hit someone

on the head today and he dies next week, all or most

all of my contribution to the act of murder occurred when I hit him on the head; that I am a murderer did

not become revealed until he died. The precise legal character of my conduct 1s obscure for some time." There is, I think, an inherent fallacy in this argument as it applies to this case. If A hits B_ on the head today, his conduct is

unlawful today and remains unlawful whether B dies or not. If he

dies, then A's conduct may become murder, otherwise it may remain assault. Any event that occurs subsequent to A's striking B will only reveal the degree of the unlawfulness of A's conduct not whether it was unlawful or not. Whether A's striking B on the head is unlawful or not must be ascertained at the time of striking. So also with statements or representations as to future conduct under s. 52. Whether statements or representations of this type are misleading or deceptive must be determined at the time they were made, although this may be determined by reference to later events. For example, what a person does tomorrow may have a real bearing on whether he held a

The mere fact that representations as to future conduct or events do not come to pass does not make them misleading or deceptive notwithstanding that the applicant has relied on them and has altered his position on the faith of them. In this case, the lone fact that the agreed procuration fee was not paid did not transmute the conduct of the respondent from conduct that was not, to conduct that was, misleading or deceptive. That conduct, namely the relevant representations or statements retained the same character throughout. The only variable was that the agreed fee was not paid. That was the cause of the applicant's loss or damage, if any. If the respondent had made representations or statements with knowledge of their falsity or with reckless indifference to their accuracy the applicant's case may then fall within what I believe to be the present law on this subject as expressed by Fitzgerald J. in Stack's Case to which I have

already referred. However the applicant has not pleaded any intent on

the part of the respondent to mislead or deceive, nor has it pleaded

any reckless indifference as to the accuracy of the statements made.

This is not a final hearing of the issues of fact and of law in this matter. It is a motion to summarily terminate the applicant's action by striking out its statement of claim. The principles governing such applications appear from many cases. It is sufficient

if I refer to a few of them. In Dey v. Victorian Railway

Commissioners (1949) 78 C.L.R. 62, Dixon J. said (at p. 91):-

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent

for the court to dismiss the action as frivolous and vexatious and an abuse of process."

In General Steel Industries Inc. v. Commissioner for Railwavs

(N.S.W.) (1964) 112 C.L.R. 125, Barwick C.J. said (at p. 129):-

"It ais sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his

lack of a cause of action - if that be the ground on which the court is invited, as inthis case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been

variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'sa manifestly faulty that it does not admit of argument'; 'disclose a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in elther type of case may be different the need for exceptional caution in exercising the power whether 1t be anherent or under statutory rules is the same."

At p. 130, Barwick C.J. posed the relevant test as being

'...is so clearly untenable that it cannot possibly succeed".

I applied these principles in Hanimex Pty. Ltd. v. Kodak

(Australasia) Pty. Limited (1982) A.T.P.R. 40.287 and dismissed an

application by the respondent to stay or dismiss the proceedings and

to strike out the statement of claim on the ground that it disclosed no reasonable cause of action and that the Court did not have jurisdiction to entertain some of the claims. The application was made there, as it is in the present case, under Order 20 Rule 2 of the

"I am not satisfied that this claim of Hanimex is so clearly untenable that it cannot possibly succeed.

I am not, of course, determining in this application

the ultimate strength or weakness of Hanimex's case. All I am deciding is whether this Court's summary

jurisdiction to stay or dismiss the proceeding should be invoked. Iam not satisfied that its exercise is warranted. The proceedings should be allowed to continue leaving Kodak to raise its points in opposition to Hanimex's claim in the appropriate way.

There 1s another reason why I do not propose to exercise the Court's summary jurisdiction. Some of the grounds relied on by Kodak to support its application are interwoven and require determination of questions of law going to the foundation of this Court's jurisdiction and to the proper construction of sections of the Act. Much of this territory is still unexplored. This is hardly surprising when it is remembered that the Act is of comparatively recent origin and this Court was only established a short time ago. Generally, 1t is inappropriate for questions of this nature to be determined on applications to invoke the Court's summary jurisdiction to stay or dismiss proceedings."

See also Universal Telecasters (Queensland) Ltd. v. Ainsworth

Consolidated Industries Ltd. (1983) A.T.P.R. 40,384 (at pp. 44,525-6).

Counsel for the applicant submitted that this Court should not exercise its summary power to strike out the statement of clain, but should allow the case to proceed toa final hearing when the questions debated before me can be considered in the light of the

I hesitate to invoke the Court's summary jurisdiction to strike out a statement of claim and would do so only ina very clear

case. In my view this is sucha _ case. Iam satisfied that the

applicant's case, as presently pleaded, is so clearly untenable that it cannot possibly succeed. The applicant's claim for relief for an alleged breach of s. 52 of the Act 1s without foundation. On no analysis of the statement of claim can a breach of s. 52 be said to

Court orders:- That the statement of claim be struck

That the application stand adjourned fixed to hear evidence and argument

preceding pages are a true copy of the Reasons for Judgment herein of his Honour