18202122
Trade Practices Act 1974 (Cth), ss 51AA51AC51A[1983] HCA 14
Hurley v McDonald's [1999] FCA 1728
Jones v Dunkel (1959) 101 CLR 298
Judgment (39 paragraphs)
[1]
Introduction
At the beginning of 2008, each of the plaintiffs was a farmer in the south-western region of New South Wales. Each of them was a member and shareholder in Murray Irrigation Limited (Murray). Murray was a not-for-profit irrigation corporation. Each of the plaintiffs held water entitlements (WEs) in Murray that entitled them to a volume of irrigation water. Each of them also held delivery entitlements (DEs) in Murray that separately entitled them to the delivery of that irrigation water. Members who held DEs were required to pay access fees in accordance with their holding.
Each of them decided to sell back to Australian State or Federal Governments (or manifestations thereof) a number of their WEs, without transferring an equivalent number of DEs. That kind of transaction was available to them in late 2007, and early 2008, in accordance with their contractual relationship with Murray.
On 7 April 2008, the directors of Murray purported, without notice to its members, to "change the rules" regarding the sale of WEs, and the effect that had on one's holding of DEs. That change was effected by changing the Transfer Rules Policy (the Transfer Rules) and the Charges Policy of Murray. By way of shorthand, I shall refer to the alteration to the Transfer Rules and the Charges Policy compendiously as "the change".
The change was announced for the first time by Murray on 8 April 2008 when it was published in an issue of Talking Water, a newsletter promulgated by Murray to its members.
The general effect of that purported change was that, thereafter, when WEs were permanently transferred without an equivalent number of DEs being transferred, the member farmer would be called upon to pay a termination fee to Murray, upon the compulsory termination of a number of DEs identical to the number of WEs transferred.
The change of 7 April 2008 was itself changed some 14 months later, with the result that compulsory terminations and termination fees regarding DEs, as described above, were abolished. In the interim, however, each of the plaintiffs sold WEs to a government body, and provided the termination fee to Murray with regard to the surrendered DEs, in accordance with the altered position.
A proportion of those termination fees has since been repaid by Murray to each of the plaintiffs, but much of them have not.
The fundamental question requiring determination by me is whether the change by Murray constituted any actionable wrong that should lead to me ordering financial compensation against Murray and in favour of one or more of the plaintiffs.
Separate proceedings were brought in this Court by Mr and Mrs Boucher (the Bouchers), Mr and Mrs Pratt (the Pratts), and Mr James Park. Although, as I shall explain in the course of this judgment, their claims are not entirely legally and factually identical, by agreement between all parties the proceedings were heard together by me, with the evidence in each admissible in all of the others.
As well as that, no differentiation was made by senior counsel for the plaintiffs with regard to the interests of the Bouchers as between themselves, or the Pratts as between themselves. Accordingly, the position of each of those married couples is analysed by me as if the two of them constituted a single claimant.
[2]
Overview of legal bases of claims
A degree of helpful refinement occurred throughout the hearing. By the stage of his final oral submissions, senior counsel for the plaintiffs made it clear that the various claims of the various plaintiffs may be summarised as follows.
First, each plaintiff relied upon breach of contract with respect to the construction of Murray's entitlement to charge termination fees, based upon the proposition that the change is contrary to the pre-existing contract between the parties, with particular emphasis upon the Water Entitlements Contract (the WEs Contract).
Secondly, the Bouchers and Mr Park also relied upon breach of contract by virtue of Murray infringing a term directly incorporated into the contract from a legislative instrument, the Schedule E Protocol to the Water Act 2000 (Cth) (the Schedule E Protocol). The Pratts did not rely upon that submission, because they settled their sale contracts (and paid their termination fees) on 30 June 2008 and 11 November 2008, before the Schedule E Protocol came into effect.
Thirdly, each plaintiff claimed that Murray had breached an implied term of the contract requiring compliance with the Schedule E Protocol.
Fourthly, the plaintiffs all relied upon the proposition that, by altering the Transfer Rules and the Charges Policy, Murray purported to "unilaterally and without restraint vary the terms of the water entitlements contracts", and that as a consequence the WEs Contracts as altered by the change were "plainly void, unenforceable and contrary to law."
Fifthly, and ancillary to his claim for breach of contract, with regard to quantum, Mr Park claimed that the wrongful acts of Murray deprived him of water efficiency dividends payable by Murray regarding his DEs, to which he would have been entitled if he had not been forced by the change to surrender those DEs.
Sixthly, each plaintiff relied upon the prohibition against unconscionability, as defined in s 51AC of the Trade Practices Act 1974 (Cth) (the TPA), now to be found in s 21 of the Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law (the ACL).
Seventhly, each plaintiff relied upon the doctrine of restitution.
Eighthly and finally, the Bouchers alone claimed that Murray engaged in misleading or deceptive conduct by making false and misleading representations as to the future, as defined in ss 51A and 52 of the TPA, now to be found in ss 4 and 18 of the ACL. The Bouchers claimed that those wrongful acts of Murray deprived them of rent to which they would otherwise have been entitled, because they terminated a lease in reliance upon those representations.
[3]
Undisputed facts
As senior counsel for Murray said in his final oral submissions, the vast bulk of the facts were not in dispute. By far the greater dispute before me was about legal characterisation of undisputed facts. I proceed to summarise the following undisputed events and circumstances in generally chronological form.
Murray had been in existence for quite some time as at early 2008. It had been subject to differing legislative regimes. The plaintiffs had been members of Murray for quite some time as at that date as well.
In 2006, the Australian Competition and Consumer Commission (the ACCC) made a number of recommendations about how corporations such as Murray should operate. Those recommendations included the unbundling of WEs and DEs from each other, the imposition of access fees to be levied on DEs whilst held by a farmer, and the abolition of exit fees levied on WEs that were sold out of an irrigation district. In summary, the ACCC recommendations envisaged altering entitlement and pricing structures relating to irrigation corporations in significant ways.
In 2007, Murray implemented a new system that was broadly consistent with those recommendations.
In late 2007, the newly elected Federal Government began to implement a policy of actively buying back WEs from farmers. As explained by me above, at that time farmers were perfectly entitled to sell their WEs, whilst retaining their DEs.
In early 2008, the south-western region of New South Wales was in drought.
In the months leading up to the change of 7 April 2008, the following instruments set out the relationship between Murray and its members, including the plaintiffs.
The Company Constitution of Murray (the Constitution) contained the following noteworthy clauses.
Its objects were as follows:
"1. OBJECTS AND INTERPRETATION
1.1 Objects
(a) The Company is a non-profit making organisation, the objects of which are to;
(i) supply water at the lowest sustainable price to its Members;
(ii) establish and maintain prudent Reserves for the ongoing viability of the business, as provided in this Constitution; and
(iii) develop and operate other businesses and undertakings to assist in funding the objectives expressed in Rules 1.1(a)(i) and 1.1(a)(ii).
(b) Ancillary to the objects as specified in Rule 1.1(a), the Company is also established for the following objects;
(i) to apply for, obtain and hold all licences, authorities and permits necessary for the Company to carry on the undertaking of an irrigation corporation within the meaning of the Water Management Act 2000 (NSW);
(ii) to carry on the undertaking and carry out the functions of an irrigation corporation in accordance with the Water Management Act 2000 (NSW); and
(iii) to provide expertise by way of consultancy services to people carrying on similar or related functions as the Company."
[4]
Disputed facts
The chief area of factual dispute between the parties was the reason why the change occurred. Mr Stewart Gordon Ellis, a former director of Murray, swore an affidavit dated 14 February 2017. He also gave oral evidence, and was cross-examined.
I shall speak further of aspects of his evidence when I summarise the submissions of the parties.
To state it very broadly at this stage, the submission of senior counsel for the plaintiffs was that, although Mr Ellis was not to be called a perjurer, there was in his evidence an undoubted aspect of reconstruction of past events, and states of mind at the time of those events, favourable to himself. It was also said that, if in truth the change occurred for the ulterior purpose of causing some members of Murray to be so disadvantaged that the Federal Government would change its policy of buying WEs, then that would be of central importance to this claim, and constitute acting in bad faith on the part of Murray.
To the contrary, the general position of senior counsel for Murray was that Mr Ellis, and the directors generally, acted in good faith, and were motivated by a fear that Murray was about to "go under" financially. That was at least partly because many of the members of Murray were in financial distress, and the fear of the directors was that, if members were to continue to sell their WEs whilst being able to retain their DEs, many of those members would be unable to pay the ongoing access fees on their DEs. The position of senior counsel for Murray was that the change was made in good faith, to protect the financial position of Murray and its members.
[5]
Senior counsel for the plaintiffs
Further to the position that I have outlined above, senior counsel for the plaintiffs noted that no director of Murray at the relevant time, other than Mr Ellis, gave evidence before me, and little explanation was given as to their unavailability to the legal team for Murray. Nor were any contemporaneous documents of Murray tendered by his opponent to show that work was being done in early 2008 to analyse the present and future financial position of Murray, in light of the government policy of buying up WEs. Nor was there any evidence that, after the change was abolished in mid-2009, the financial position of Murray precipitously declined.
All of that surely, it was said, permitted me to draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 against the defendant. It would also cause me, he submitted, to reject the evidence of Mr Ellis that fear of financial failure of Murray was the primary cause for the change in April 2008.
Separately it was said that, bearing in mind the chronology of the meeting with the Senator, the arranging of the meeting of directors, and the passing of the resolution by them, I would safely infer that the change was motivated by a desire to bring about alteration to a government policy. His further submission was that the approach of the directors of Murray was that, if the interests of some members of Murray were to be sacrificed to that aim, so be it.
As well as that, senior counsel for the plaintiffs emphasised that Mr Ellis accepted in the witness box that, as at the time of the change, and bearing in mind the recommendations in the report of the ACCC, there was a question in his own mind about whether the change was actually legal. To make that situation even more egregious, senior counsel submitted, there was no evidence placed before me of the directors of Murray having sought legal advice before making the change.
In short it was said that, if the change was made adversely to the interests of the members of Murray who became the plaintiffs, and that change was not motivated by a reasonable, legitimate commercial interest on the part of the directors of Murray, then the change was made in bad faith.
[6]
Senior counsel for Murray
Senior counsel for Murray submitted that Mr Ellis was a truthful witness, and doing the best he could to undertake the difficult task of reconstructing not only events of nine years ago, but also his own state of mind at that time.
Senior counsel for Murray submitted that the evidence of Mr Ellis was consistent with the contemporaneous evidence (contained in the Chairman's Report of 8 April 2008) that the directors of Murray were concerned that Government ownership of 30-50% of Murray's WEs (where ownership of the corresponding DEs remained with members of Murray), coupled with the risk of farmers defaulting on their DE access fees, would cause Murray to be incapable of managing the costs of maintaining the necessary infrastructure associated with the DEs.
It was said that I should accept that the change was made out of concern for the financial position of Murray and its members.
It was accepted that I should find that the change was "precipitated" by the meeting with the Senator, but it was said that there is nothing to be inferred adversely to Murray from that.
It was conceded that Mr Ellis was concerned about the legality of the change. But the position of senior counsel was that, in truth, the change was not illegal or unlawful in any event.
It was also accepted that the change was not explicitly foreshadowed; if it had been, that would simply have resulted in a "stampede", which would have rendered the change futile. But there was evidence before me, it was said, of contemporaneous concern and consultation about financial problems of Murray, arising from government policy in the period leading up to the change.
In summary, then, the position of senior counsel for Murray was that its directors had acted in good faith when they implemented the change.
[7]
Resolution of disputed facts
All of the following resolutions of disputed facts are made on the balance of probabilities, and bearing in mind the basal proposition that the plaintiffs bear the onus of proving their case.
First, I accept that in the witness box Mr Ellis engaged, in accordance with human nature, in a degree of reconstruction of events many years ago that favoured himself. I do not find that that was done consciously or dishonestly. Nor do I find - in accordance with the submission of the plaintiffs - that he was deliberately untruthful on oath.
Secondly, having said that, I do accept that the motivation of Mr Ellis, and the motivations of other directors expressed to him, was to protect the financial position of Murray. I say that because there was no evidence of personal animus on his part, or the part of any other director, against the plaintiffs personally, or against anybody else, or in favour of anyone else. Nor was there evidence of some alternative motivation for the change, other than a desire to protect Murray, directly or indirectly.
Furthermore, although there is no multitude of documents, there are some contemporaneous documentary suggestions of concern about the government policy of buying up WEs; to give two examples, the notes prepared for the meeting with the Senator, and the report of the Chairman of Murray thereafter.
Finally on this point, it is true, as senior counsel for the plaintiffs submitted, that Murray had some weapons in its armoury with regard to farmers who defaulted on their access fees for DEs. But I infer that those weapons, aimed as they were at the assets of farmers who were suffering drought and financially stressed, were not of the greatest efficacy. In other words, the existence of those weapons does not deflect me from my finding that the change was made to protect the financial position of Murray.
Thirdly, the chronology of the meeting with the Senator, the calling of the meeting of directors, and the making of the change, combined with the context of concern about government policy, leads me to draw comfortably the inference that the change of 7 April 2008 was made very largely as a result of the meeting with the Senator on 3 April 2008.
Fourthly, I accept the evidence of Mr Ellis that a significant motivation for the change was to cause the Federal Government to come to the negotiating table with regard to its water policy.
[8]
The first claim - breach of contract, based on entire contractual matrix
[9]
Submissions of senior counsel for the plaintiffs
The first basis upon which it was said that Murray had breached its contract with the plaintiffs was as follows. I was invited to the Constitution, the WEs Contract, and the new Transfer Rules and Charges Policy. It was said that the change simply could not sit with the pre-existing agreement between the parties.
In particular, it was said that the WEs Contract had primacy over the Transfer Rules and Charges Policy. The position was that, properly construed as a whole, there was something of a hierarchy: the Constitution with primacy; thereafter the detailed contract; and finally, the Transfer Rules and Charges Policy.
It was said that it could not have been the objective intention of the parties, properly construed, that one of them could simply change the Transfer Rules and the Charges Policy at its discretion so that they ended up being completely contrary to the detailed WEs Contract that governed the whole regime of WEs and DEs. And yet that is what the directors of Murray purported to do.
In short, applying orthodox principles of construction, it was said that the change was a breach of contract.
[10]
Determination of this claim for breach of contract
Contrary to the submission of senior counsel for the plaintiffs, I construe the contractual relationship between Murray and the plaintiffs as at 7 April 2008 as permitting the change. I say that for the following reasons.
First, the relationship between the plaintiffs and Murray (and of course between other member farmers and Murray) was not a single transaction; rather, it was an ongoing relationship that facilitated irrigation for farming, in the long term, within a region of New South Wales. That temporal aspect is suggestive of an objective intention to provide flexibility.
Secondly, similarly suggestive of flexibility is the fact that farming in particular - especially in Australia - is susceptible to variations in climate and conditions that are completely beyond human control. Sometimes an area will be in drought; sometimes in flood; sometimes conditions will be fruitful. In short, the subject matter of the contract bespeaks flexibility, not rigidity.
Thirdly, even adopting to a degree the "hierarchical" analysis of the plaintiffs, and according the Constitution primacy, one can see from the extracts from it above that it repeatedly speaks of the rules and policies, just as much as it speaks of the WEs Contract. Reading all of the instruments as a whole, the Transfer Rules and the Charges Policy are not a footnote or afterthought. The repeated reference to them in the Constitution objectively suggests that they were not relegated to some lesser level, below the WEs Contract, and with regard to which they must be read down.
Fourthly, I accept the submission of senior counsel for Murray that the policies and rules as amended on 7 April 2008 can be read harmoniously with the Constitution and, more importantly, with the WEs Contract. That is because they can be read as a "carve-out" from the WEs Contract, limited as they are to a number of delineated circumstances. The Constitution having made mention of them, and they having specific work to do, I think it would be a large step to set them at nought on the basis of the WEs Contract.
In summary then, the ongoing relationship between Murray and its members, the subject matter of that relationship, the repeated references to the Transfer Rules and the Charges Policy, and the fact that the change can be read harmoniously with the WEs Contract as a carve-out, lead me to construe the change as being within the contract as a whole, not as a breach of that contract.
[11]
The second claim - breach of contract, term directly incorporated from the Schedule E Protocol
[12]
Submissions of senior counsel for the plaintiffs
The second claim for breach of contract was said to arise by way of a term of the Schedule E Protocol being directly incorporated into the contract. As I said, it was made clear by senior counsel for the plaintiffs that the Pratts did not rely upon this part of the claim.
It was said that cl 2A.1 of the Charges Policy, as it stood on 6 April 2008, meant that Murray had contracted that it would not alter the Transfer Rules or the Charges Policy in a way that was contrary to the Schedule E Protocol. And yet, it was said, the change in dispute was contrary to it in a number of ways: in a nutshell, the change imposed an exit fee on DEs, and severely restricted the right of a member to sell WEs without surrendering DEs. That was quite contrary, it was said, to the Schedule E Protocol. And yet Murray had bound itself by the clause relied upon not to do that very thing.
It was said that, to the extent that the Schedule E Protocol repeatedly uses the word "should", that word should be interpreted by me as actually meaning "must". Reliance was placed upon the decision of the High Court of Australia in PM v The Queen (2007) 232 CLR 370; [2007] HCA 49 construing a criminal statute in that way.
Finally, detailed submissions were made about the coming into legislative force of the Schedule E Protocol, at a time when Murray was asserting that the termination fees continued to be payable.
[13]
Submissions of senior counsel for Murray
The first basis of resistance to this claim was that cl 2A.1 of the Charges Policy, and the subsequently inserted clauses said to be contrary to it, should be read, as before, as a general prohibition with certain subsequent carve-outs.
But, with respect, that submission is not attractive: if by way of cl 2A.1 of the Charges Policy, Murray contracted not to act in a certain way generally, it is hardly an answer, with regard to the validity of subsequent steps taken by Murray, to say that it did act in that way, but only in particular ways.
In other words, speaking generally, in my opinion analysis based on a purported carve-out does not avail a contracting party who has breached a general prohibition.
The second basis of resistance was that the Schedule E Protocol bound only the parties to the Murray Darling Basin Agreement, and that all of those parties were governments, not irrigation corporations in general or Murray in particular.
But that submission is not attractive either: if Murray contracted by way of the clause in question not to contravene some other agreement, to my mind it matters not whether Murray was an original party to that agreement. Rather, what is important is that the contract between Murray and the plaintiffs included a term that Murray would not change the Transfer Rules or the Charges Policy in a way inconsistent with the other agreement.
The third basis of resistance is that, with regard to cl 8 of the Schedule E Protocol, the transactions undertaken by the plaintiffs did not meet the definition of an exit fee unless the transfers were out of the network or district of Murray.
My response to that is that so much may be accepted, pursuant to the prohibition in cl 8 of the Schedule E Protocol, and the definition of an exit fee to be found in cl 3 of it. But I do not believe that the evidence before me was clear as to whether or not the transfers that found the claims of the plaintiffs were or were not of that nature, and I do not decide this claim on that basis.
[14]
Determination of the second claim
To my mind, it is the fourth basis of resistance that is persuasive: the Schedule E Protocol speaks repeatedly of what the parties to it should do. It contains no sanction for breach of any part of it. It was entered into by a number of governments, suggestive of a political process of formulation of policy. It states as its first purpose the specification of principles about certain topics, not rules attaching to them. The document could readily have been expressed in mandatory terms, but no part of it is in that form.
I have no difficulty in accepting that, read according to its context and purpose, a text containing the word "may" can sometimes mean "must". And I am also prepared to accept that the same may be said of the word "should". But I do not accept the submission of senior counsel for the plaintiffs that, properly construed, the Schedule E Protocol is a mandatory document; rather, I interpret it as a statement of principle that is aspirational and exhortative.
Because of my interpretation of the true nature of the Schedule E Protocol, and even accepting that it was explicitly incorporated into the pre-existing contractual relationship between Murray and the plaintiffs by way of cl 2A.1 of the Charges Policy as it then was, I do not accept that "contravention" of it renders the change a breach of contract. That is because I do not accept that it is a document that can truly be contravened.
[15]
The third claim - breach of contract, implied term regarding the Schedule E Protocol
[16]
Submissions of senior counsel for the plaintiffs, and aspects of response of senior counsel for Murray
As I have indicated above, the third claim also related to the Schedule E Protocol, but was formulated slightly differently.
It was submitted that it was an implied term that Murray would not alter the Transfer Rules and the Charges Policy in such a way as to place them in breach of the Schedule E Protocol. That was founded on the deeper proposition that one can readily imply a term into the contractual relationship, to the effect that Murray would not alter the Transfer Rules and the Charges Policy so that they were contrary to law. That in turn led to a detailed analysis - disputed by senior counsel for Murray - as to whether and when the Schedule E Protocol achieved the force of a legislative instrument, or something analogous to that force.
In response, senior counsel for Murray also submitted that the test for implication of a term into a contract, to be found in BP Refinery (Westernport) Pty Ltd v shire of Hastings (1977) 180 CLR 266 at 282-283 had simply not been met; for example, one could never be satisfied that the term identified by senior counsel for the plaintiffs was "necessary to give business efficacy" to the contractual relationship between Murray and the plaintiffs.
[17]
Determination
To my mind, resolution of this dispute between the parties, involving an intricate analysis of Commonwealth statutes, does not need to be undertaken by me to resolve this question.
It is one thing to say that one might readily imply generally into a commercial contract a term not to exercise a power or function conferred by that contract in a way that is unlawful. And for the sake of argument only, I accept that the Schedule E Protocol had some form of binding force upon Murray, in terms of its status.
But I return to the analysis that I have provided above: I do not construe the Schedule E Protocol as a document that tells corporations such as Murray what they must or must not do; rather, I construe it as a document that suggests to them what they should or should not do.
For that reason, even accepting (for the sake of argument only) that one should imply into the contract a term that Murray was to abide by the Schedule E Protocol, I do not believe that Murray has breached it. And that is because I do not consider that the Schedule E Protocol prohibited Murray from making the change, on the basis that, in repeatedly using the words "should" and "should not", the Schedule E Protocol was not prohibiting anything.
[18]
The fourth claim - contract void, unenforceable, and contrary to law
[19]
Submissions of senior counsel for the plaintiffs
The fourth claim, although an impugning of the change based upon contractual principles, was formulated differently again.
In support of this claim, senior counsel for the plaintiffs relied upon the decision of the High Court of Australia in Thorby v Goldberg (1964) 112 CLR 597 at 605, and the single judgment of Brereton J in Perpetual Nominees Ltd v Parist Holdings Pty Ltd [2005] NSWSC 1345 at [30]-[35].
In exchange between Bench and Bar table, senior counsel for the plaintiffs was content for me to understand this claim as the contractual invalidity of a "general term, unrestrained by external references to objective considerations identified in the document".
The point was made in discussion that a familiar commercial contract that permits one of the parties to alter an interest rate on a loan at its discretion could hardly mean that that party could "unilaterally" increase the interest rate from 10% per annum to 10,000% per annum.
It was said that, if the true construction of the contractual relationship is indeed that Murray was entitled to change its Transfer Rules and Charges Policy "willy-nilly", then that portion of the contractual relationship suffers from the same vice: it is contrary to law and void.
In resistance to this claim, senior counsel for Murray submitted that such clauses are not intrinsically void; rather, their status is a matter of construction. As well as that, he submitted that in the "10,000% interest" example, unconscionability and related concepts would undoubtedly have a role to play.
Finally, he submitted that "carve-out analysis" has a role to play here as well, in that, in his submission, this was not a matter of "willy-nilly" alteration; rather, the change only affected a limited class of transactions, and the general terms of the overarching contract were unaffected.
[20]
Determination of the fourth claim
I am prepared to accept the general thesis of senior counsel for the plaintiffs that, as a matter of theory, contracts that remit a discretion to one of the parties cannot permit that discretion to be exercised without some sort of fetter.
But Thorby v Goldberg was relied upon by Brereton J for the uncontroversial proposition that a contract that gives one a choice whether or not to perform it is really no contract at all; that is not what is in question here. And the analysis that his Honour came to (in the context of a dispute about a rate of interest claimed by a lender in the context of proceedings for possession) was as follows at [32]:
"...[W]hile determination of a price or payment under a contract may be left to the party entitled to receive the price or payment, that will be so only where there are criteria - either express, or such implied criteria as 'fair and reasonable' - by which the party's decision can be tested, and that where an express formula is provided, there is no room to imply criteria such as 'fair and reasonable'…"
But to my mind this is not a case about Murray possessing, pursuant to a contract, a right to determine the quantum of "a price or payment" that was inherently void, or exercising that right in such an unreasonable way that the exercise was void. Rather, it is a case about whether Murray was disentitled, on any one of a large number of bases, from changing its Transfer Rules and Charges Policy as it did.
And in any event, I accept the submission of senior counsel for Murray that, in truth, this analysis falls under the rubric of general construction of the contract, which I have called the first claim, and possibly unconscionability, which I have called the sixth claim.
I do not uphold this basis of impugning the contract.
[21]
The fifth claim - damages for breach of contract, and other ancillary analyses
It can be seen from my determination of the first four bases of the claim - construction of the contractual relationship; direct incorporation of the Schedule E Protocol; an implied term about the Schedule E Protocol; and the assertion that part of the contract was void - that I do not uphold any claim of any plaintiff based upon breach of contract.
Nevertheless, for completeness, as against the possibility that I am wrong in that analysis, I should say something briefly about the measure of loss (resulting from any such breach) that I would find if there were, in truth, a breach of contract committed by Murray.
The submission of senior counsel for Murray was that one can readily see from a combination of the terms of the contracts for sale entered into by the Bouchers and Mr Park and their purchasers, and the repayments of termination fees made by Murray to the Bouchers and Mr Park, the following. Far from being "out of pocket", the Bouchers and Mr Park have experienced a windfall.
Senior counsel for Murray accepted that the Pratts, in contrast, are "out of pocket" in a sum of over $100,000.
In short, the position of senior counsel for Murray was that, in truth, even if there was a breach of contract on the part of Murray, by imposing and enforcing the termination fees on the DEs when the WEs were sold, neither the Bouchers nor Mr Park have experienced any compensable loss as a result of that breach.
In response, senior counsel for the plaintiffs submitted that actions taken to mitigate one's loss - as against the contingency of it occurring in the future -cannot be taken into account in determining the loss occasioned by a breach of contract.
In other words, in his submission, the chronology of when one might take a step designed to mitigate loss arising from breach of contract is centrally important. On his thesis, if one mitigated one's loss after the breach occurred, that would operate to reduce the level of compensation. But if one had wisely predicted that the breach of contract may indeed occur, and took steps before the breach to minimise the loss that arose from it subsequent to those steps, those steps could not be taken into account.
I shall not analyse all of that in great detail, because, as I have said, this is a contingent topic only within my judgment.
[22]
Submissions of senior counsel for the plaintiffs
Senior counsel for the plaintiffs submitted that, even on the assumption that the change was not a breach of contract, a number of features of the contractual relationship between Murray and the plaintiffs - most importantly, the imposition of compulsory termination fees, and the exercise of power of Murray to vary the terms of the WEs Contracts at will - amounted to unconscionable conduct in contravention of s 51AC of the TPA, the legislation in force at the time of the change (and as is now contained in s 21 of the ACL).
Section 51AC of the TPA was relevantly as follows:
"(1) A corporation must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a corporation (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from a corporation (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(3) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a corporation or a person (the supplier) has contravened subsection (1) or (2) in connection with the supply or possible supply of goods or services to a person or a corporation (the business consumer), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b) whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f) the extent to which the supplier's conduct towards the business consumer was consistent with the supplier's conduct in similar transactions between the supplier and other like business consumers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the business consumer:
(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the business consumer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and
(ja) whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the business consumer for the supply of the goods or services; and
(k) the extent to which the supplier and the business consumer acted in good faith."
…
[23]
Determination of the unconscionability claim
In determining this claim, I accept that the concept of unconscionability contained in s 51AC of the TPA (now s 21 of the ACL) is broader than the equitable doctrine pursuant to the "unwritten law". I say that because, in this broader context, it is not a matter of the plaintiffs needing to establish the taking advantage by Murray of some special disability of the plaintiffs; a broader concept must be applied: see ACCC v C G Berbatis Holdings Pty Ltd (2000) 96 FCR 491 at [20]-[21].
Separately I propose to adhere to the words of the statute, and give them their ordinary and natural meaning: see ASIC v National Exchange Pty Ltd [2005] FCAFC 226 at [33].
I also accept that the factors spoken of in s 51AC(3) of the TPA are relevant to my assessment of whether the plaintiffs have established unconscionable conduct.
I accept that unconscionability for the purposes of s 51AC of the TPA may often be co-extensive with a high level of "moral obloquy.": see Hurley v McDonald's [1999] FCA 1728 at [22].
Having said that, I also recognise that the exercise is not limited to "finding moral obloquy", and that the non-exhaustive factors raised by senior counsel for the plaintiffs are to be considered in light of all of the surrounding circumstances, and not in a vacuum: see Paciocco v ANZ (2015) 236 FCR 199 at [305].
To summarise the foregoing: I have simply asked myself whether the plaintiffs have established that, in all of the circumstances, Murray acted towards them in a way that was against conscience.
I am not satisfied of that proposition. That is so for the following reasons.
First, as I have indicated above, I have found as a fact that the change was implemented out of sincere concern for the financial position of Murray.
Secondly, as senior counsel for Murray submitted, none of the plaintiffs were forced to sell their WEs after the change, or made the subject of some form of mandatory or automatic special levy. After the change, each of them made the decision to sell, in the context of the change.
Thirdly, as I have shown above, two of the three plaintiffs were in a position to renegotiate their contract for sale of their WEs, in order to accommodate the termination fees that would need to be paid on their DEs.
[24]
Submissions of senior counsel for the plaintiffs
This claim was propounded by senior counsel for the plaintiffs as an alternative to breach of contract, but I think it is discussed more readily at this part of my judgment.
It was said, that if on some basis I were not satisfied that a breach of contract occurred, or that no loss had been occasioned as a result of that breach, then the plaintiffs should be recompensed in any event by Murray, based upon the unjust enrichment of the latter.
It was said that the termination fees pursuant to the change were paid by the plaintiffs to Murray by mistake; that is, pursuant to the mistaken belief that the termination fees were indeed lawfully owing by them.
It was also submitted that they were paid under duress, in that Murray was adopting the firm position that each of the plaintiffs owed it those fees, on the transfer of their WEs.
It was said that, for all of the reasons given above with regard to other bases of claim, it was unjust for Murray to receive the termination fees from the plaintiffs.
Finally it was said that, for the purposes of restitution, whether or not a plaintiff is "out of pocket" is not to the point: the focus of the doctrine is upon the funds placed "into the pocket" of the undeserving defendant, not their source. In other words, even if I accepted that a plaintiff had not actually suffered a loss as a result of the payment of the termination fees when seen in the broader context, that would not stand in the way of compensation pursuant to this claim.
[25]
Determination of the claim for restitution
As for the submission about payments having been made pursuant to mistake or duress, for the sake of argument only I am prepared to accept that those concepts extend in this context as far as senior counsel for the plaintiffs contended.
And as for the submission of senior counsel for the plaintiffs summarised by me above regarding compensation by way of restitution to a person who is not out of pocket, it is noteworthy that senior counsel for Murray explicitly conceded its correctness; to adopt his words, he submitted that "there is no defence of passing on" with regard to a claim of restitution.
Even accepting all of that, however, I do not accept that the concept of unjust enrichment can avail any one of the plaintiffs. That is because I have already found that, as a matter of contract, Murray was entitled to impose and receive the termination fees. I have also found that it was not unconscionable, in the broader sense to be found in the TPA and the ACL, for Murray to make the change that it did.
Leaving aside breach of contract and "statutory unconscionability", there is no other basis upon which I would find that Murray was unjustly enriched. For that reason, even respectfully accepting the (perhaps counterintuitive) joint proposition that, in the context of restitution, a plaintiff who is not out of pocket can nevertheless be awarded damages, I do not consider that there is any basis for me to do so with regard to any plaintiff.
In short, I accept the basal submission of senior counsel for Murray that, unless I were satisfied that there were some "unjustness" that had enriched Murray, restitution simply does not arise. I am not so satisfied.
Accordingly, I do not uphold the claim in restitution.
[26]
The eighth claim - misleading or deceptive conduct
As I have indicated, the final claim was made by the Bouchers only. The background to it is as follows.
As I have said, this claim was based on evidence of phone conversations between Mrs Boucher, and Ms Kelly, an employee of Murray, as described by Mrs Boucher in her affidavit of 22 April 2016.
The affidavit deposes that, in three separate phone calls on 14 March 2008, 4 April 2008, and 7 April 2008, Ms Kelly stated that it was open to the Bouchers (and in her opinion a better course of action) to keep their DEs when they sold their WEs, as they would only have to pay an access fee as opposed to a termination fee.
The affidavit also deposes that on 16 April 2008, Ms Kelly informed Mrs Boucher in a phone call that the rules regarding DEs had changed, and that it was now compulsory to pay a termination fee when WEs were sold without DEs.
On the same day, Mrs Boucher spoke to Mr Elsbury, the secretary of Murray, who confirmed that the compulsory termination fee applied to the sale of WEs without DEs after 7 April 2008.
Mrs Boucher was cross-examined on this claim generally at the hearing before me. She confirmed that the notice to terminate the lease was given at the beginning of March 2008 and that the expected annual income from the lease was $25,000. She was not cross-examined about, and gave no oral evidence about, the nature or content of her phone conversations with Ms Kelly, beyond what is contained in her affidavit of 22 April 2016.
Ms Kelly was not called to give evidence in the case for Murray, and evidence was tendered by Murray to show that she had not been prepared to assist the legal team of Murray (contained in the affidavit of Ms Lydia Isobel O'Keefe of 17 February 2017).
[27]
Submissions of senior counsel for the plaintiffs
Senior counsel for the plaintiffs submitted that the repeated representations made by Ms Kelly, a representative of Murray, constituted a representation as to a future matter, in contravention of s 51A of the TPA (now s 4 of the ACL) and the prohibition against misleading or deceptive conduct in s 52 of the TPA (now s 18 of the ACL). As with the unconscionability claims of the plaintiffs, the misleading or deceptive conduct claim comes within the ambit of the TPA, as the impugned conduct took place before the commencement of the ACL on 1 January 2011.
The relevant provisions of the TPA were as follows:
[28]
(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
[29]
(2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
[30]
(3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
[31]
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
[32]
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).
[33]
…
The case for the Bouchers was as follows. As I have indicated, it was essentially that Mrs Boucher was repeatedly told by Ms Kelly, in three separate phone calls, including up to 7 April 2008, that the Bouchers could sell their WEs without needing to surrender their DEs, and without paying any termination fees.
The submission of senior counsel for the plaintiffs was that a representation was made that there would be no termination fees; and that that representation was about a future matter.
Senior counsel for the plaintiffs also submitted that, pursuant to s 51A(1) of the TPA, Murray bore the evidentiary onus of proving that it had reasonable grounds for making such a representation.
As no such evidence was adduced by Murray, the representation was deemed to be misleading, in accordance with s 51A(2) of the TPA.
Finally, it was submitted that, as a result of the alleged misleading or deceptive conduct of Ms Kelly, the Bouchers prematurely terminated the lease over their property on 20 March 2008, and thereby lost 12 months of rent, until they were able to sell the property in April 2009. In terms of compensation, the Bouchers sought the $25,000 annual rent that they lost due to the termination of their existing lease, prior to the sale that ended up being delayed by the change.
[34]
Submissions of senior counsel for Murray
In resistance to this claim, senior counsel for Murray contended that the statement of Ms Kelly was a representation about the position of the Bouchers as it was at the time of the conversation, rather than a representation about the position that would pertain in the future.
It was submitted that, as the impugned representation pertained to a present matter, the plaintiffs bore the onus of proving that the representation was misleading as at the date it was made: see Watson v Foxman (1995) 49 NSWLR 315 at 318-319.
Furthermore, senior counsel for Murray also relied upon Watson v Foxman as authority for the proposition the onus on the plaintiffs is that "the Court must feel an actual persuasion" that the representation was a representation about a future matter, rather than a present matter.
He submitted that, in such circumstances, a common sense requirement of discharging this onus would be some reliable contemporaneous record, or other satisfactory corroboration.
[35]
Determination of the misleading or deceptive conduct claim
I consider that, as a matter of evidence, this claim fails at the outset. That is so for the following reasons.
First, it can be seen that the three phone calls preceding the change are described in the affidavit of Mrs Boucher of 22 April 2015. The first, of 14 March 2008, is to be found at [31]. The second, of 4 April 2008, is to be found at [33]. And the third, of 7 April 2008, is to be found at [36].
I shall not quote from those portions of the affidavit; suffice to say the recounting of the conversation with Ms Kelly by Mrs Boucher has no element of "futurity" to it, in terms of the words actually used by Ms Kelly.
Secondly, if I be mistaken in that analysis, it is to be noted that the affidavit of Mrs Boucher was sworn almost exactly seven years after the conversations in question. If it be the case that Mrs Boucher is seeking to convey that Ms Kelly was indeed speaking of the future, the sheer effluxion of time must call the accuracy of that assertion into question (in saying that, of course I am not making any adverse finding about the honesty of the witness).
Thirdly, no contemporaneous note of Mrs Boucher with regard to any conversation, and in particular its asserted "futurity", was placed into evidence. That surely plays a further role in whether I should be satisfied that Ms Kelly was indeed making a representation about the future regime.
For all of those reasons, I do not experience a state of affirmative satisfaction that Ms Kelly was indeed speaking about the future regime pertaining to WEs and DEs. To the contrary, I think it perfectly possible that she was speaking of the regime as it then was, and as she (correctly) understood it to be.
As a result, the misleading or deceptive conduct claim of the Bouchers fails at the threshold.
[36]
Conclusion
As the above analysis shows, I do not uphold any aspect of the claim of any plaintiff against Murray.
For that reason, the entirety of the originating processes of the Amended Statement of Claim of the Bouchers filed on 28 January 2015; the Further Amended Statement of Claim of the Pratts filed on 10 November 2015; and the Amended Statement of Claim of Mr Park filed on 10 November 2015 must be dismissed.
[37]
Costs
Little was said by either counsel at the hearing about costs. In those circumstances, although I am tempted simply to make an order in accordance with the usual approach of costs following the event, I think that they should be reserved for abundant caution.
Within two weeks of today, I would be obliged if the parties could indicate in writing to my associate whether there is an agreed order as to costs; if not, whether they are content for me to determine that matter on written submissions in Chambers; if not, their available dates for a short hearing in that regard before the end of the year. As for the latter, I shall do my best to accommodate them as necessary; it may be impossible for me to accommodate entirely two busy senior counsel.
[38]
Orders
I make the following orders:
(1) The claims of the plaintiffs are dismissed.
(2) Costs are reserved.
[39]
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: 21 September 2017
"Charge" was defined as follows within cl 1.2:
""Charge" means the monetary payment, including any Termination fee, required by the Company to be paid by Landholders and Water Entitlements Holders in respect of Water Entitlements and Delivery Entitlements pursuant to the Charges Policy."
The latter was defined as follows:
""Charges Policy" means the Company's policy on Charges and fees relating to Water and Delivery Entitlements."
DEs were defined as follows:
""Delivery Entitlement" is the right of a Member to the delivery to the Member's Landholding of the Member's allocation attaching to one Water Entitlement at the Standard Water Usage Charge."
The policies of the Company were defined as follows:
""Permanent Transfer" in relation to a Water Entitlement, means the absolute legal assignment of the Water Entitlement and of all of the rights which attach to the Water Entitlement, and "to Permanently Transfer" has a corresponding meaning."
""Policies of the Company" means the policies entitled and within the Distribution Rules, the Total Farm Water Balance Policy, the Ricegrowing Policy, the Stormwater Disposal Policy, the LWMP Incentive Payment Policy, the Charges Policy and includes the Water Entitlements Contract and any other policy adopted by the Board from time to time and notified to the Member and where appropriate, to Water Entitlements Holder, by publication on the Company's Website, and which the Board determines to be appropriate for the Company in carrying on its business and to comply with any conditions of the Licences, including without limitation conditions relating to compliance by the Company with salinity and drainage strategies, environmental management protocol documents and LWMP's."
Termination fee was defined as follows:
""Termination fee" means the fee, determined by the Board, payable to MIL to terminate a Delivery Entitlement."
Transfer Rules were defined as follows:
""Transfer Rules" means the rules adopted by the Board from time to time governing the transfer of;
(a) Shares, Water Entitlements and Delivery Entitlements between Members; and
(b) Water Entitlements between non-Members and between Members and non-Members."
A WE is defined as follows:
""Water Entitlement" means the contractual and other rights evidenced by a Certificate and by an entry in the Water Entitlements Register to supply in a Year of a nominal quantity of one Megalitre of water as though measured at a Diversion Point and inclusive of a component for Transmission Losses."
The WEs Contract is defined as follows:
""Water Entitlements Contract" means the contract made between the Company and the Member and/or Water Entitlements Holder, approved by the Board from time to time, and containing the terms and conditions pursuant to which a Water Entitlements Holder holds and may deal with Water Entitlements and the terms and conditions attaching to Delivery Entitlements and includes any such contract entitled a "Water Supply Contract"."
Clause 2.11 of the Constitution was as follows:
"2.11 Terms on which Water and Delivery Entitlements are held
Water and Delivery Entitlements may only be held subject to the terms and conditions of a Water Entitlements Contract between the Holder and the Company. The Holder shall be responsible for such charges and fees in relation to the Water and Delivery Entitlements as are determined by the Board from time to time pursuant to the terms of that Water Entitlements Contract."
Clause 3.1 appears under the heading "3 TRANSFERS, DEALINGS WITH AND TRANSMISSION OF SHARES, WATER AND DELIVERY ENTITLEMENTS".
It is in its entirety as follows:
"3.1 Transfers
(a) Shares;
(i) a Member may not transfer the Member's Shares in the Company unless approved by the Board.
(ii) each Share other than those held by the Company's Nominee is attached to and held in respect of that Landholding specified in the Share Register of the Company and may not be transferred otherwise than pursuant to a Permanent Transfer to a Member or with a transfer of the Landholding or to the Company's Nominee.
(b) Water Entitlements;
(i) any person, whether a Member or not, may be the holder of Water Entitlements.
(ii) water Entitlements are held subject to the terms and conditions of a Water Entitlements Contract between the Water Entitlements Holder and the Company.
(c) Delivery Entitlements;
(i) delivery Entitlements may only be held by a Member.
(ii) the terms and conditions applicable to Delivery Entitlements shall be as determined by the Board from time to time.
(d) Transfers;
(i) transfers of Water Entitlements and Delivery Entitlements shall be regulated by the terms of the Water Entitlements Contract and the Policies of the Company."
Clause 3.7 in its entirety was as follows:
"3.7 Dealings with Water Entitlements and Delivery Entitlements
(a) (Dealings): Dealings with Water Entitlements and Delivery Entitlements shall be in accordance with the Policies of the Company and pursuant to the terms of the Water Entitlements Contract.
(b) (NWI Agreement): The Board in approving or refusing to approve any dealing with Water Entitlements or Delivery Entitlements must have due and proper regard to the provisions of the Act and the principles of the NWI Agreement then in force, subject to any contrary applicable law."
Clauses 5.3 and 5.4 in their entirety are as follows:
"5.3 Eligibility to Hold Water Entitlements Independently of Shares
A person holding Water Entitlement (independently of Shares in the Company);
(a) may or may not be a Landholder; and
(b) must be a party to a Water Entitlement Contract.
5.4 Eligibility to Hold Delivery Entitlements
(a) only a Member may hold Delivery Entitlements.
(b) delivery Entitlements are attached to the Member's Landholding."
Heading 6 of the Constitution was "WATER ENTITLEMENT CONTRACTS". The following appears thereunder:
"(a) (Terms and conditions): The terms and conditions of each Water Entitlements Contract will bind the Company and the Member or the Water Entitlements Holder, notwithstanding the absence of a separate Water Entitlement Contract being signed by the Company and each Member or Water Entitlements Holder.
(b) (Variation to terms and conditions): The Board may vary from time to time the terms and conditions of the Water Entitlements Contract and shall publish the varied Water Entitlement Contract on the Company's Website. The varied Water Entitlements Contract shall be deemed to bind;
(i) the Company; and
(ii) each Member or Water Entitlements Holder from the date of such publication,
and the fact of the Member or Water Entitlements Holder drawing receiving or otherwise dealing with water notwithstanding the absence of the signature of the Company and of either the Member or the Water Entitlements Holder to the varied Water Entitlement Contract shall be conclusive evidence of the acceptance by the Member or Water Entitlements Holder of the terms of the varied Water Entitlements Contract."
Turning to the WEs Contract as it existed as at April 2008, the following aspects are noteworthy:
Part B is entitled "WATER AND DELIVERY ENTITLEMENTS: GENERAL AND DEALINGS".
Below that appears that heading "2 WATER ENTITLEMENTS: GENERAL". Then appears cl 2.1:
"2.1 Water Entitlements Contract Binding
2.1.1 Each Water Entitlements Holder shall be bound by the terms of the Water Entitlements Contract whether a Member or Non Member and whether an actual signatory to the Contract or a party to a Deemed Contract by virtue of Rule 6 of the Constitution."
Under the heading "2.2 Water entitlements certificates", appears cl 2.2.8:
"2.2.8 Terms on which Water Entitlements are held
Water Entitlements are held by the Water Entitlements Holder subject to the terms and conditions of this Contract. The Water Entitlements Holder shall be responsible for such Charges in relation to the Water Entitlements as are determined by the Board from time to time pursuant to the terms of the Charges Policy."
Under the heading "2.3 Dealings with Water Entitlements", the following clauses appear:
"2.3.1 Transfers
A Water Entitlement Holder may not transfer a Water Entitlement or any interest in any Water Entitlement unless approved by the Board.
2.3.2 Notification of Refusal to Register
The Board may only decline to register any transfer or dealing in respect of Water Entitlements for a good reason including without limitation where the transferor or transferee owes the Company any Charge where the Company refuses to register a transfer or a dealing, for any reason, the Company must, within 21 days from the date of lodgement of the transfer or dealing, send to the transferor and transferee written notice of refusal."
Under the heading "3 WATER ENTITLEMENTS: DEALINGS", the following appears:
"3.1 The Water Entitlement Holder may not sell, transfer, or otherwise deal with the Water Entitlements or the Annual Allocation (in whole or in part) except in accordance with the requirements and procedures of the Transfer Rules Policy.
3.2 No Transfer will be approved which reduces the number of Water Entitlements held in connection with a Landholding:
(a) to less than 5; or
(b) where the Shares and Water Entitlements being transferred are the subject of a Joint Water Supply Scheme, to less than 5 for each parcel of land in the Joint Water Supply Scheme."
Under the heading "3A DELIVERY ENTITLEMENTS: GENERAL": the following appears:
"3A.1 Water Entitlements Contract Binding
3A.1.1 Each Delivery Entitlements Holder shall be bound by the terms of the Water Entitlements Contract whether an actual signatory to the Contract or a party to a Deemed Contract by virtue of Rule 6 of the Constitution."
Clause 3A.4.1 appears under the heading "3A.4 Termination of Delivery Entitlement". It is as follows:
"3A.4.1 The Holder of a Delivery Entitlement may:
(a) Surrender the Delivery Entitlement at any time and pay the Termination Fee to the Company; or
(b) Continue to hold the Delivery Entitlement and pay the annual Access Fee levied on the entitlement from time to time."
Clause 3A.5 permits Murray to take security in certain circumstances from members who apply to Murray to sell WEs permanently.
Clause 3A.7 provides Murray with a caveatable interest in certain circumstances over the landholding of a member.
Within "PART F: CHARGES, THE CHARGES POLICY AND LWMPS" appears the heading: "10 CHARGES AND THE CHARGES POLICY". Under that heading the following appears:
"10.1 The Water Entitlement Holder agrees to pay to the Company as and when required all bulk water Charges payable by the Company in respect of the Water Entitlements in accordance with the Charges Policy."
Pursuant to the clauses under the heading "PART G: DEFAULT", Murray is given a large number of powers if a member is in default. That concept is defined very broadly pursuant to cl 11.1 (due to its length, I shall not set it out).
The following clause appears under the heading "20 AMENDMENT OF THIS CONTRACT":
"20.1 The Holder acknowledges that the Board may vary the terms of this Contract, or amend it, from time to time. The Holder agrees to be bound by the terms as varied, or amended, upon receipt of notice of the varied terms or amended contract."
Turning to the Schedule E Protocol as it existed as at April 2008, the following clauses are noteworthy.
The purposes of the Schedule E Protocol are stated to be as follows:
"(a) to specify principles about access, exit and termination fees relating to infrastructure that delivers water to land in an irrigation district: and
(b) to adopt certain recommendations set out in the Australian Competition and Consumer Commission's Report entitled A regime for the calculation and implementation of exit, access and termination fees charged by irrigation water delivery businesses in the Southern Murray-Darling Basin; and
(c) to adopt certain parts of agreements made by New South Wales and South Australia on 28 December 2006 and New South Wales and Victoria on 29 December 2006."
Within the definitions, an exit fee is defined as "a fee levied by an infrastructure operator on the transfer of a water entitlement out of the infrastructure operator's network or irrigation district (excluding any fee associated with the costs of processing that transfer)."
Clause 8 is as follows:
"EXIT FEES
No exit fees should be levied."
Clause 11 of the Schedule E Protocol is entitled "CALCULATING TERMINATION FEES". Under that heading, the following appears:
"(3) The holder of a delivery entitlement should be able to choose whether:
(a) to surrender the delivery entitlement and pay the relevant termination fee; or
(b) to continue to hold the delivery entitlement and to pay the annual access fee, actually levied from time to time."
Finally, the Transfer Rules as it existed after the change was also placed before me. New cl 3.11, which implemented the change, was as follows:
"3.11 Where Water Entitlements are permanently transferred without an equal number of Delivery Entitlements accompanying the Transfer, then the Transferor shall pay a termination fee to terminate that number of Delivery Entitlements corresponding to the number of Water Entitlements to be transferred. Delivery Entitlements may not be permanently traded unless accompanied by a permanent transfer of an equal number of Water Entitlements. This requirement shall apply in respect of all applications received by MIL on and from 8th April 2008 except for applications for permanent transfer of:
(a) Water Entitlements held in existing separate allocation accounts or where the Water Entitlements remaining on the landholding after transfer approval would be equal to or greater than the number of Delivery Entitlements applicable thereto; or
(b) Delivery Entitlements where held without corresponding Water Entitlements."
The Charges Policy as it existed after the change was placed before me as well.
Under the heading "2A CHARGES ATTACHING TO DELIVERY ENTITLEMENTS, WATER IN ENTITLEMENTS AND LANDHOLDINGS", the following clauses appear:
"2A.1 Charges shall variously attach to and be levied upon the Water Entitlement, the Delivery Entitlement and the Landholding as is determined by the Board from time to time but not so as to contravene the provision of any statute or the MDBC Agreement.
2A.2 The bulk water charge shall attach to and be levied upon the Water Entitlements.
2A.3 The access fee shall attach to and be levied upon the Delivery Entitlements and shall include such fees and charges as the Board reasonably considers are necessary to recover the Company's fixed costs of providing continuing core irrigation water delivery services through the Company's network.
2A.4 The drainage fixed charge and the drainage usage charge and such other fees and charges as shall be determined by the Board from time to time shall be attached to and levied upon each Delivery Entitlement where appropriate.
2A.5 The Board may determine such other charges and fees whether relating to current or future capital expenditure or otherwise to be imposed on and payable by each landholding on such terms and conditions as it deems appropriate."
Finally, new cl 6, entitled "DELIVERY ENTITLEMENTS: TERMINATION", implemented the change as follows:
"6.1 Where Water Entitlements are permanently transferred without an equal number of Delivery Entitlements accompanying the Transfer, then the Transferor shall pay a termination fee to terminate that number of Delivery Entitlements corresponding to the number of Water Entitlements to be transferred. Delivery Entitlements may not be permanently traded unless accompanied by a permanent transfer of an equal number of Water Entitlements. This requirement shall apply in respect of all applications received by MIL on and from 8th April 2008 except for applications for permanent transfer:
(a) of Water Entitlements held in existing separate allocation accounts as at 8th April 2008, or
(b) of Water Entitlements where the Water Entitlements which would remain on the Landholding after transfer would be equal to or greater than the number of Delivery Entitlements remaining on the Landholding; or
(c) of Delivery Entitlements where held without corresponding Water Entitlements."
Turning now from the state of the instruments to another undisputed factual aspect (relevant to the eighth claim), the following is derived from the affidavits sworn by Mrs Boucher and read before me. Although she was cross-examined about the quantum of the eighth claim, she was not cross-examined about the following.
From June 2007, Mrs Boucher had a number of telephone conversations and email exchanges with Ms Hayley Kelly, a representative of Murray, about the procedure for selling the WEs and the farm property of the Bouchers.
Ms Kelly said (in three separate phone calls, namely on the 14 March 2008, 4 April 2008 and 7 April 2008) that it was open to the Bouchers (and, in her opinion, the better course of action) to keep their DEs when they sold their WEs, as they would only have to pay an access fee on the retained DEs. That position was in contrast, of course, to the subsequent requirement to surrender DEs and pay a termination fee when selling Wes, implemented by the change.
On 16 April 2008 (that is, about a week after the change), Ms Kelly informed Mrs Boucher in a phone call that the rules regarding DEs had changed, and that it was now compulsory to pay a termination fee where WEs were sold without DEs. On the same day, Mrs Boucher spoke to Mr Warren Elsbury, the secretary of Murray, who confirmed that the compulsory termination fee applied to the sale of WEs without DEs after 7 April 2008.
Returning now to the general chronology, on 3 April 2008 a meeting took place between some of the directors of Murray and Senator, the Honourable Penny Wong (the Senator). At the time, the Senator was the Minister for Climate Change and Water. At the meeting, the Senator made it clear that the government policy of buying back WEs would continue.
On 4 April 2008, a meeting of the directors of Murray (scheduled for 7 April 2008) was called by way of an email sent to all of the directors from the secretary of Murray.
On 7 April 2008, the directors of Murray passed a resolution at that meeting that implemented the change that is the nub of this litigation.
Prior to the change occurring, no notice had been given by the directors of Murray to the members of Murray that it was imminent, or even under consideration.
After the change, the Bouchers sold 670 WEs to a government entity known as the Department of Environment and Climate Change (the DECC). The original price subject to negotiation was $950 per WE. Once it became highly likely that the Bouchers would be called upon to surrender their DEs and pay a termination fee on the latter, the purchase price was increased to $1225 per WE. The date of the transfer of the WEs was 20 February 2009.
The Pratts sold 245 WEs to the Commonwealth of Australia and 225 WEs to the Water Administration Ministerial Corporation. The original prices subject to negotiation were both $1000 per WE. The dates of the transfer of the WEs under these two contracts were respectively 30 June 2008 and 11 November 2008. Again, that was after the change. On the settlement of each contract, Murray imposed and was paid termination fees, totalling $180,121.50 for the 470 WEs.
Mr Park sold 2800 WEs to the DECC (in three tranches of 533, 1608 and 659 WEs). The original price subject to negotiation was $1250 per WE. The date of the transfer of the WEs was recorded by Murray as 14 January 2009. The contracts acknowledged that a termination fee of $382 per WE was payable. On the settlement of these contracts, Murray imposed and was paid termination fees, totalling $941,140.
Subsequently, some termination fees were repaid by Murray to the various plaintiffs. Those payments were $75,502.50 to the Bouchers, $75,185.08 to the Pratts and $318,208.10 to Mr Park.
Separately, one can see, from a number of documents published by Murray throughout 2008, the water efficiency dividends that were being paid by Murray at various times with regard to DEs. They formed the basis of the claim for Mr Park alone described above.
Fifthly and relatedly, I am not satisfied that the intention of the directors in implementing the change was to behave so intolerably as to cause the protests of some of the members of Murray to be so loud as to force the Government to change its policy. I do accept, however, that their intention was to let the Government see, in a stark way, the assertion of Murray about the drawbacks of government policy, by way of the adverse consequences of the change upon a number of members of Murray.
Having summarised the undisputed facts, and having determined the disputed facts, I turn now to an analysis of each of the causes of action relied upon by senior counsel for the plaintiffs.
In short, I do not accept the submission that the promulgation and implementation of the change constituted a breach of contract on the basis that it was inconsistent with the contractual relationship that existed between the plaintiffs and Murray as at 7 April 2008.
Suffice to say I respectfully do not accept the emphasis on chronology for which senior counsel for the plaintiffs contended. Returning to first principles, if for whatever reason the loss that one actually suffers as a result of breach of contract is small or indeed non-existent, I do not accept that the determinative question is whether that is because of events that occurred before or after the breach.
In other words, even if I be wrong in my finding that the Bouchers and Mr Park do not have a claim against Murray for breach of contract, in light of the evidence that neither of them is actually "out of pocket" as a result of the change, I would not order Murray to pay them compensation in the form of damages. The same contingent finding is not, of course, made against the Pratts, because the concession of Murray is that they are indeed out of pocket.
My final contingent analysis should be even briefer.
As I have said, part of the claim of Mr Park was for lost dividends as a result of his forced surrender of DEs. If I be wrong in my analysis that Mr Park has suffered no breach of contract by Murray, and if I also be wrong in my approach to loss detailed immediately above, I would have found in favour of Mr Park with regard to his lost dividends.
As for the de facto set off (spoken of by senior counsel for Murray) of the access fees that Mr Park would have needed to have paid if he had retained his DEs, I would not have permitted reliance upon it, because I would have accepted the proposition of senior counsel for the plaintiffs that there had not been sufficient compliance with the rule in Browne v Dunn (1893) 6 R 67 with regard to that asserted set off.
Essentially, it was said by senior counsel for the plaintiffs that the conduct of Murray in implementing the change was unconscionable, beyond the meaning of that concept pursuant to the unwritten law, and accordingly the plaintiffs were entitled to claim damages in the same measure as those for breach of contract.
In formulating that submission, senior counsel for the plaintiffs explicitly asserted that the claim advanced was broader than the equitable principles defining unconscionability, whereby a party makes unconscientious use of its superior position to the detriment of a party who suffers from a special disability (see Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14 and Blomley v Ryan (1956) 99 CLR 362), and which are also adopted in s 51AA of the TPA (now s 20 of the ACL).
Senior counsel for the plaintiffs emphasised a number of relevant factors indicative of unconscionability, in accordance with s 51AC(3) of the TPA (now s 22 of the ACL). Those factors may be summarised as follows.
First, the inequality of bargaining power between Murray as a major irrigation corporation and the plaintiffs as small farmers and shareholders.
Secondly, the inability of the plaintiffs to engage in negotiations with Murray, in particular with regard to the change that was adverse to their interests, and with regard to which they had no notice whatsoever.
Thirdly, he submitted that the purported fear that farmers would have no incentive to continue paying for DEs as the rationale for the change served no legitimate commercial purpose, and reflected an absence of good faith on the part of Murray and its directors.
Fourthly, the imposition of termination fees contravened the Schedule E Protocol, which was, at the least, an industry protocol.
Fifthly, the change acted as a significant "fetter and clog" upon the plaintiffs' abilities to alienate their WEs.
Sixthly, the change violated the basal nature of the DEs as rights separate and "unbundled" from WEs, a relationship that had been in accordance with the ACCC's recommendations.
Seventhly, there was a lack of consultation before the change, notification of the impending change, or at the least a transitional period after the change that could be utilised by the members of Murray.
Eighthly and more generally, senior counsel for the plaintiffs submitted that the change constituted a fundamental breach of the assurances in the contractual relationship between Murray and its shareholders.
As I have recounted above, the position of senior counsel for the plaintiffs with regard to the evidence of Mr Ellis generally was as follows. He questioned the validity of the proposition that the change was implemented out of fear of a drastic decline in the financial fortunes of Murray, and pointed to the lack of corroborative documentary evidence in that regard. Rather, senior counsel for the plaintiffs submitted that Murray was motivated by the ulterior purpose of engineering change to government policy by implementing a change that "would exact potentially millions of dollars from the members of [Murray] and compel them to complain to the Government."
In short, the proposition of senior counsel for the plaintiffs was that, for an ulterior purpose, a small number of members of a corporation were financially disadvantaged. The change that led to that disadvantage was unheralded and unnecessary, in that the corporation could protect itself financially in other ways. The change was a drastic over-reaction. In all the circumstances, he submitted that I would be satisfied that, in demanding the termination fees from the plaintiffs, Murray had behaved unconscionably.
Fourthly, it is true that a small class of members were adversely affected by the change - that is, those members who sold WEs after the change was implemented in April 2008, and before its abolition 14 months later. But I accept that the question of water policy at the time was in a state of flux, and Murray was, to a large degree, responding to that flux.
Fifthly, I accept the submission of senior counsel for Murray that, whenever a corporation changes its policies, some of its members may be financially advantaged, some of them may experience no effect, and some of them may be disadvantaged.
Sixthly, there is nothing to suggest that Murray "targeted" personally the particular individuals who are the plaintiffs.
Seventhly, I proceed on the basis that the plaintiffs were under financial and personal pressure as a result of the drought, and perhaps the change in government policy. But the same may be said of the members of Murray as a whole. And I have already found that, speaking generally, the change was implemented in an effort to protect the financial position of the corporation of which all of those persons were members.
Eighthly, I also proceed on the basis that the persons adversely affected by the change were farmers, not sophisticated business people. But to be weighed against that, I think, is that one can infer that nor were the directors of Murray, or the majority of its members; without being personally pejorative, Mr Ellis did not strike me as being a highly sophisticated business person.
Ninthly, it is not unimportant that Mr Ellis believed that the change may be unlawful. That view of his about his own conduct is significant, but not determinative. And in any event, in the earlier part of this judgment I have found that the change did not constitute a breach of the contract between Murray and the plaintiffs on any basis.
Tenthly, it is true that, unquestionably, the change was inconsistent with the industry protocol. But I have accepted that the fear that compliance with the Schedule E Protocol would financially damage Murray was a valid one, on the basis that financially stressed farmers who had sold their WEs would not be able to pay the access fees on their remaining DEs, to the severe detriment of the ability of Murray to remain a going concern, in particular with regard to its own infrastructure expenditures. And I have also accepted that the weapons available to Murray to protect itself, with regard to farmers who defaulted on their DE access fees, were not particularly effective ones.
Eleventhly, it is true that the change was not the subject of specific consultation with members. Nor was there notice that it was to be made, nor a transitional period. But the latter of those two factors would have rendered it largely futile, thereby failing to address the problem that was concerning the directors of Murray. As for the first of those factors, whilst the change was not the subject of specific consultation, I do accept that, in a general way, there were discussions and consultations between members and directors of Murray about what to do to protect its financial position.
Twelfthly, I have already accepted that the change was made, at least in part, to cause the Federal Government to reflect on its water policy, and with the hope that it would lead the Government to the negotiating table, with an eye to having the Government change its policy. And I accept that the passage of a mere 72 hours or so between the meeting with the Senator and the making of the change is not coincidental.
That finding of fact has given me significant pause for thought in the context of assessing asserted unconscionability. Ultimately, however, I do not believe that the conduct of Murray in making the change was intended to treat some of its members so harshly or unfairly as to cause the Government to rethink its policy, as a reaction to any such blatant unfairness. Rather, I think that Murray was seeking to show the Government that it could not comply with the recommendations of the ACCC, and that Murray urgently needed to adopt a different structural relationship with its members.
In other words, I consider that the ulterior purpose of causing the Government to change its water policy was not unconscionable, either by its nature (that is, in the ultimate, an attempt to protect the financial position of Murray and its members), or because of the way it was implemented.
Thirteenthly and finally, the jurisprudence regarding the evaluative judgment of whether conduct is or is not "statutory unconscionability" has inevitably developed, at least to a degree, by way of the process of accretion by example. In that context, I think it noteworthy that senior counsel for the plaintiffs did not place before me any particular case, from the facts of which he sought to argue by analogy.
In conclusion, I accept unreservedly that the plaintiffs feel aggrieved by the fact that they were affected by a change in the policies and rules of Murray that existed for a mere 14 months. But a sense of grievance on the part of a disappointed member of a corporation is not to be equated with unconscionable conduct on the part of that corporation.
For the reasons that I have set out above, and seeking to consider all relevant circumstances, both by way of their individual force, and their combined force, I am not satisfied that the plaintiffs have established that Murray engaged in unconscionable conduct against them.
For that reason, I do not propose to uphold the claim of the plaintiffs on this basis.