Issue 2
125At the trial, it appears to have been the contention of the Appellants that the whole of the Deed should be set aside. The contention on the appeal was more limited, namely that the Deed should be set aside insofar as it contained a release of claims against ANZ or freed it from deleterious consequences arising from having made the Disclosure. Relief that achieved that objective would probably need to delete all the provisions I have set out at [23], [24] and [25] above.
126Even if such an order were to be made, it would not avail Mr and Mrs Brighton in the present litigation, for the reasons that I have given in connection with Ground 1. Notwithstanding that, it is appropriate to consider the arguments put concerning statutory unconscionability and injustice.
127In considering this issue it is the form of the legislation as at the date the Deed was entered, 19 October 2006, that should be applied.
128Section 51AC TPA as at 26 October 2006 provided, so far as relevant:
"(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
(k) the extent to which the supplier and the business consumer acted in good faith."
129Section 12CC ASIC Act as at 26 October 2006 was in closely similar terms to s 51AC TPA , save that it was expressed to apply to "a person" not merely to "a corporation" , and that it was concerned with the supply of financial services, rather than goods and services, and with the supply of those services to any other person (called a "service recipient" ) rather than with the supply or possible supply of goods or services to a person or corporation, referred to as "the business consumer" . As the Full Federal Court (Tamberlin, Finn and Conti JJ) said in Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 at [30], s 12CC "was intended to act as a 'mirror' provision to s 51AC of the Trade Practices Act ..." .
130No attention was paid in the submissions to whether the loan of $50,000 that ANZ made to SSMA on the terms of the Deed was a "financial product" . Rather, the matter proceeded on the basis that one or other of s 51AC and s 12CC provided the norm of conduct against which ANZ's conduct in making the loan on the terms of the Deed should be measured, and there was no relevant difference between those norms of conduct.
Failure to Consider Overall Effect of Circumstances?
131The judge's discussion about the enforceability of the Deed was structured by reference to s 12CC. He considered seriatim , the application of s 12CC(2)(a), (b), (c), (d), (e) and (j). The Appellants submit that, by doing so, the judge "inappropriately restricted his consideration to the taxonomy of the various matters contained in section 12CC(2)."
132The Appellants submit, correctly, that the matters listed in s 12CC(2) do not exhaustively prescribe a catalogue of factors that are relevant to whether statutory unconscionability is established: ASIC v National Exchange at [40]; Canon Australia Pty Ltd v Patton [2007] NSWCA 246; (2007) 244 ALR 759 at [45]-[46]. However, the judge considered those individual factors under a heading "Considering the various factors contained in s 12CC(2) in order to determine whether ANZ's conduct was unconscionable" (following [134]). After considering the various factors to which I have earlier referred, his Honour, following [157], reached his conclusion under a heading "Overall Conclusion required: was ANZ's conduct unconscionable under s 12CC/s 51AC?" He concluded that it was not unconscionable.
133I am not persuaded that the judge has failed to address the correct question, or adopted an inappropriately restricted method in his consideration of that question. In listing, and considering seriatim , various of the factors under s 12CC(2) his Honour was following the structure of the submissions that the Appellants had made to him. No submission was made to the judge that the claim of unconscionability depended upon anything other than the particular factors that his Honour considered. It was not suggested to us that there was any matter relevant to whether the conduct of ANZ was unconscionable, within the meaning of those statutory provisions, that his Honour had overlooked. His Honour explicitly considered the collective effect of those factors. In my view, the judgment is not erroneous in this respect.
Was the Finding of No Unconscionability Correct?
134At [123] the judge accepted Mrs Brighton's evidence in the following respects:
"i. Mr Harkin had made it plain to Mrs Brighton that without that $50,000 being placed into its trust account Colin Biggers & Paisley would not act.
ii. Mrs Brighton was cross-examined in detail about the advice of Mr Harkin regarding her options when deciding whether or not to enter the deed. Mrs Brighton repeatedly could not recall matters which the cross-examiner suggested had been canvassed in Mr Harkin's advice. She emphasised that it was a frantic time, because of the 2 o'clock court appearance on 18 October 2006. However, ultimately Mrs Brighton agreed that she was aware that she could have reserved her rights and not accepted ANZ's offer of funding. However, she did not chose [sic] this course because she felt she had no alternative but to fight the litigation [the implicit reason for this was because of the consequences facing the SSMG group]. [emphasis in original]
iii. At one point Mr Harkin had called Mrs Brighton and told her that she would have to speak to Mr Brighton because he was not prepared to sign the deed, and it needed to be signed for the money to be released by ANZ. Mrs Brighton had made a telephone call to her husband in which she sought to convince him to sign the deed."
135The judge also appears to have accepted, at [124], Mrs Brighton's evidence to the effect that the Deed was received an hour or so before she was due in court, and that she had some discussion with Mr Harkin concerning it. The judge set out, and apparently accepted, the following evidence:
"Q. You decided to sign it because you were of the very firm view that there was a necessity to obtain the funds to assist the defence of the winding up proceedings, correct?
A. There was no reasonable alternative.
...
Q. Now at the time that you actually put pen to paper and executed the deed did you in truth propose to reserve your rights at some later stage to sue the ANZ in relation to the disclosure?
A. If I'm understanding that question correctly it was never my intention to sue the ANZ.
Q. Yes. And you had no intention of suing the ANZ at the time that you executed the deed because you knew that by executing the deed you were giving up your rights to sue the ANZ, correct?
A. I executed the deed so I could save my group.
Q. Yes. And you had no intention of suing the ANZ at the time you executed the deed because you knew, from what Mr Harkin had told you, that by taking that step and executing the deed you were giving up your rights against the ANZ, correct?
A. I don't recollect Mr Harkin telling me that but I was aware that that was what the deed was for."
136Section 12CC(5) ASIC Act and s 51AC(5) TPA each provided that, in deciding whether a contravention of s 12CC(1) or s 51AC(1) has occurred "the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention ..." . Clearly with those provisions in mind, Mrs Brighton's cross-examination included:
"Q. I see. Well, would this be a fair characterisation of your evidence, that at the time that you signed the deed you couldn't reasonably foresee the consequences that would be flowing from the disclosure, correct?
A. That is correct.
Q. Didn't realise that it would lead to a catastrophe, correct?
A. Correct.
Q. But what you say to his Honour is even if in truth you had have realised that, you still would have signed? That's what you tell his Honour?
A. Yes."
137In cross-examination Mrs Brighton accepted that "I understood the deed" . Her cross-examination further included:
"Q. I see, so whatever Mr Harkin did do in relation to the deed was sufficient to apprise you of an understanding of the ramifications of the provisions of the deed, correct?
A. I made up my own choice of signing the deed, Mr Lee. What Mr Harkin - Mr Harkin gave me a couple of options, but what I saw as my options and what Mr Harkin saw as my options were miles apart.
Q. I see, so Mr Harkin gave you advice and you chose -
A. No, Mr Lee.
Q. You considered that advice and then you made a decision on the basis of that advice.
A. Yes."
138The judge found at [129]:
"i. Mrs Brighton accepted that it was open to her to reject ANZ's offer of funding and reserve her rights against ANZ, however she felt this option was in commercial reality not open to her because of the consequences she perceived would result for the SSMG group if she did not gain representation in the winding up proceedings.
ii. The deed was prepared in a time-pressured environment. On Mrs Brighton's evidence she had some time to review the deed but not a lengthy opportunity. However, Mrs Brighton admitted she understood that the effect of the deed would be to extinguish her rights against ANZ."
139Mr Brighton gave evidence, in the course of which he acknowledged that he had been "talking to Mr Harkin over some conversations" , and that after Mrs Brighton had phoned him begging him to sign the Deed, he told Mr Harkin "that I had a fundamental understanding of it" . The judge accepted Mr Brighton's evidence "that Mr Harkin had clearly harassed him into signing the deed but that he had so signed because he knew that by signing the deed he was assisting his wife who was actually begging him to do that" . Apart from that, the judge found that "his recollections were so bad that the Court could not accept his evidence save where it was corroborated by contemporaneous written material or by the evidence of others whose recollections could be accepted as correct." It was not suggested that the Bank was aware, or even had reason to suspect, that Mr Brighton had been "harassed" into signing the Deed.
Badges of Unconscionability
140The Appellants pointed to several matters that, in their submission, were indications that the conduct of ANZ was unconscionable. I will deal with them seriatim , even though the reasons that I give concerning one individual item are to some extent repetitive of the reasons that I give concerning another item. That some of the reasons are repetitive is not surprising, when the items are all ones that the Appellants point to as justifying a single characterisation (unconscionable) of a single piece of conduct (ANZ making the Disclosure and then advancing the $50,000 on the terms of the Deed). A common factor to all of them is that, though the Disclosure was a breach of an obligation of confidentiality, it is not shown (or submitted) to be anything other than carelessness or inadvertence on Mr Hancock's behalf.
Opportunity to Negotiate?
141The Appellants submit that there was no substantial opportunity to negotiate or to reject any of the provisions of the Deed.
142The evidence showed that there was a draft deed that differed from the Deed that was ultimately executed. The first draft made provision for Mrs Aldrick, Ms Bowen and AFC to be parties to the Deed, but they were removed as parties following a request that Mr Harkin made on Mrs Brighton's behalf. Further, the Bank agreed (contrary to the provisions of the first draft) that its own legal costs would not be deducted from the $50,000 that was to be provided pursuant to the Deed. Mr Harkin's contemporaneous file note dated 18 October 2006 includes: "I attempted to negotiate with the Bank to convince the Bank that it should give up its rights to the $450,000 odd but the Bank ultimately indicated through Michael Joseph at about 1pm today that it was not prepared to give up those rights." (The "$450,000 odd" was the amount expected to be payable to SSMA following the Brisbane litigation to which Mr Robinson had referred in his affidavit.) Thus, there was not only an opportunity to negotiate, there was actual negotiation, some of which resulted in changes.
Independent Legal Advice?
143The Appellants also contend that, while Mr Harkin gave legal advice about the Deed, it was not proper independent advice.
144Mr Harkin was not called to give evidence, nor was his absence from the witness box explained. The judge took this into account, making reference to Jones v Dunkel (1959) 101 CLR 298, in reaching a positive conclusion that ANZ had "succeeded in establishing that Mr and Mrs Brighton were competently advised" . I doubt that the judge was right in placing reliance on Jones v Dunkel for this purpose. That is because, if the objective of Mr and Mrs Brighton was to prove the inadequacy of the advice they had received from Mr Harkin, he could hardly be said to be a witness who was in their camp, so far as the contents of that advice was concerned. However, that error is of small significance in the overall scheme of the allegation of unconscionability.
145In deciding whether the conduct of ANZ was unconscionable, it is particularly important how things would have appeared to ANZ, so far as the provision of legal advice to Mr and Mrs Brighton is concerned. The solicitors for ANZ were aware that Mr and Mrs Brighton had sought advice from Mr Harkin, and that Mr Harkin was putting to Mr Michael Joseph, the solicitor for ANZ, proposals that were objectively of a type calculated to advance the interests of the guarantors. It is not suggested that ANZ had any reason to doubt Mr Harkin's ability to give advice concerning a deed of the type being negotiated, or concerning the adequacy of the advice that he actually gave on this particular occasion. Further, the commercial essence of the transaction embodied in the Deed was really quite simple - ANZ would advance $50,000 on the basis that it was acknowledged that the Disclosure did not affect the enforceability of its existing securities, any signatory to the Deed who might have had cause of action against ANZ arising from the making of that Disclosure gave up that cause of action, and the $50,000 was paid into the trust account of Colin Biggers & Paisley rather than to SSMA itself. It may well have been a difficult exercise in practical business judgment whether to accept an offer on those terms (though in fact Mrs Brighton did not find it so), but it was hardly a transaction that called for legal advice of any complexity.
146If it matters, the evidence included a contemporaneous file note by Mr Harkin, that confirms that he outlined to Mrs Brighton alternative courses of action that were open to her.
147The Appellants submit that quite apart from the adequacy of Mr Harkin's advice, the independence of the advice is impugned because (as the Bank knew) the $50,000 was being sought to fund legal action in which Mr Harkin's firm would act in the winding up proceedings. The Appellants submit that the possibility of the advice being affected by self-interest, in obtaining fees for the work in defending the First Winding Up Action, prevented the advice from being truly independent.
148If that were right, the only circumstance in which a lawyer could give truly independent advice about whether litigation should be launched or defended, or a commercial transaction embarked on or continued with, would be if the lawyer involved in giving that advice was not to be involved in the subsequent litigation, or commercial transaction. That would be a highly surprising conclusion.
149It suffices for present purposes to note that "independent advice" is not in itself an item that appears in the list of factors to which the court may (not must) have regard in s 51AC(3) TPA and s 12CC ASIC Act . Whether there is independent legal advice is a matter that might enter into some of those factors (such as the relative strengths of the bargaining positions of the parties, and whether the plaintiff was able to understand any documents relating to the transaction), but "independent advice" has no specific role to play in either of the statutes.
150There is no skerrick of evidence that Mr Harkin was actually influenced, in any of the advice he gave to Mr and Mrs Brighton, by the prospect of receiving fees if the advance were made. Nor is there any evidence to suggest that ANZ had reason to suspect that Mr Harkin was actually so influenced. What the Appellants are asking the Court to accept is that in deciding whether the Bank's conduct was unconscionable, weight should be placed on the possibility that the solicitor advising Mr and Mrs Brighton might have given advice, in the adequacy or correctness of which he did not have a bona fide belief, because of a motive of private gain. A solicitor who behaved in that way would be guilty of professional misconduct. The amount of money involved is comparatively small, in the context of a solicitor's reputation and professional future. It is not even as though the whole $50,000 would ultimately be gross receipts (not net profits) of Mr Harkin's firm - it was specifically proposed (as actually later happened) that a barrister would be briefed to defend the action. ANZ was in a situation of having knowledge that Mr Harkin was giving advice about a transaction from which his firm was likely to gain, but not to gain much, where there was no reason to believe the advice was not competent and bona fide, and where the failure of the solicitor to give bona fide advice would be a gross departure from proper professional standards. I do not accept that ANZ having that type of knowledge warrants being given any significant weight in deciding whether ANZ's action was unconscionable.
151I should in fairness record that the judge rejected a submission that the advice of Mr Harkin could be impugned for want of independence because he was improperly motivated by the incentive of the $50,000 to be advanced ([137]). The judge was right to do so.
Pressure Through Urgency?
152Another matter contributing to the unconscionability, according to the Appellants, is that the Bank knew that the $50,000 was urgently required or the Appellants would be left without legal representation.
153It is correct that there was great urgency, but the urgency was not of the Bank's making. The First Winding Up Proceedings had been on foot since 28 September 2006, and followed the service of a statutory demand on 12 September 2006, but it was only on 17 October 2006 that Mrs Brighton first sought legal assistance from Colin Biggers & Paisley, concerning a legal hearing that was to take place the next day. A file note of Mr Joseph shows that Mr Harkin first contacted Mr Joseph concerning this matter on 17 October 2006, and on that day they discussed a proposal for ANZ to advance $50,000 for legal costs and get a release "from any Privacy Act issues" and that ANZ would send a letter to the company "saying it will appoint VA/Receivers if prov liq appointed" . (I take it that 'VA' stands for 'voluntary administrator'.) That letter was clearly intended (as ultimately happened) to be one that could be placed before the judge, to show him the reality of a risk that appointment of a provisional liquidator might be of little or no help to the unsecured creditors.
154Another contributor to the urgency was the desperate financial situation of the companies in SSMG, but again that was not of the Bank's making.
155Further, even though the transaction was entered urgently, it is not as though that urgency had the consequence that the parties to the Deed did not understand the transaction.
156Of course, it can sometimes be unconscionable for a person to take advantage of another's pressing need, even if the person who takes advantage has not brought about that pressing need. The judge recognised that possibility ([155]). However the notion of " taking advantage of " necessity suggests that there is something in the transaction entered into that is advantageous to the person who " takes advantage" and would not have been in the transaction if the necessity had not existed. The only elements that were advantageous to ANZ in entering this particular transaction were obtaining the release and confirmation of enforceability of its securities. Thus the significance, if any, for deciding whether ANZ's conduct was unconscionable by reason of the transaction being entered in pressing urgency depends on a matter that the Appellants had identified as a separate contributor to unconscionability. That separate fact is that the advance was made conditional on executing the Deed.
Advance Made Conditional on Executing Deed?
157The Appellants also submit that a contributor to the unconscionability was that provision of the $50,000 advance was conditional upon executing the Deed and thereby releasing ANZ from the consequences of its own wrongdoing. It is true that the advance was conditional upon executing the Deed. However, that fact needs to be seen in the context of the Bank having already formed the view that it wished to disengage itself from SSMG, and that defaults by borrowers connected with SSMG had been unremedied for several months. There was significant commercial risk for ANZ in advancing any further money to any of the companies in SSMG, on any terms at all. The significance of the Deed needs to be seen in light of Mrs Brighton not intending in any event to sue ANZ concerning the disclosure, and not being in a position reasonably to foresee the consequences that would flow from the Disclosure. It as not as though, by entering into the Deed, she was reluctantly giving up something that she prized. My conclusion concerning Issue 1 shows that she was not, inadvertently or through inadequate advice, giving up something that she should have regarded as valuable. She was aware that she was free to decline the terms of ANZ's offer, even though she regarded not defending the litigation as an impractical alternative.
Extracting an Excessive Price for the Deed
158The Appellants also submit that ANZ knew Mr and Mrs Brighton's right to sue it for damages for the breach was worth far in excess of $50,000, and that extracting an excessive price from a person in a situation of urgent necessity was indicative of unconscionability.
159The judge rejected this contention. He accepted, on the basis of evidence of Mr and Mrs Brighton, that the value of that right was not reasonably foreseeable at the time of the alleged contravention, and recognised that s 12CC(5)(a) of the ASIC Act and s 51AC(6)(a) of the TPA forbad him to take into account considerations that were not reasonably foreseeable at the time of the alleged contravention.
160The Appellants submit that Mrs Brighton's concession to that effect is merely her subjective view, and was not decisive of what was reasonably foreseeable at the time of the alleged contravention. While that is correct, it was still open to the judge to accept Mrs Brighton's concession. The Appellants do not point to any item of evidence from which it could be inferred that the Bank had any views at all about the quantum of damage (if any) that SSMG, or the Appellants, might sustain in consequence of the Disclosure. The conclusion to which I have come concerning Issue 1 shows that, insofar as the Deed contained confirmation of the enforceability of the various securities of ANZ notwithstanding the Disclosure, the Deed gave ANZ no additional rights to enforce its securities. Of course, those guarantors who were owed an obligation of confidentiality by ANZ gave up their right to sue for damages for any breach of that obligation involved in the Disclosure. However, the judge's finding that the demise of the SSMG was not caused by the Disclosure shows that those guarantors were giving up no right of substance. Further, when Mrs Brighton was not at the time intending to sue ANZ by reason of the Disclosure, it is not even as though in her own mind the Deed required her to give up something she valued highly.
Conclusion Re Statutory Unconscionability
161In these circumstances, I am not persuaded that his Honour was wrong in declining to hold that the Deed was unconscionable under either s 51AC TPA or s 12CC(1) ASIC Act .
Contracts Review Act
162Section 7 Contracts Review Act so far as presently relevant provides:
"(1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:
(a) it may decide to refuse to enforce any or all of the provisions of the contract,
(b) it may make an order declaring the contract void, in whole or in part,
(c) it may make an order varying, in whole or in part, any provision of the contract ..."
163The Contracts Review Act does not contain an exhaustive definition of "unjust" , but s 4(1) provides:
" unjust includes unconscionable, harsh or oppressive ..."
164There are two distinct steps involved in considering a claim under the Contracts Review Act . The first is a finding that the contract was unjust, and the second is a decision as to what, if any, relief should be granted: Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; (2005) 14 BPR 26,639 at [34]-[36], [109]; Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; (2008) 252 ALR 55 at [87]; Adamson v Ede [2009] NSWCA 403 at [48].
165Whether a contract is "unjust" within the meaning of s 7 Contracts Review Act involves a different standard of evaluation to that invoked in deciding whether someone's conduct concerning entering into a contract is unconscionable within the meaning of s 51AC TPA or s 12CC ASIC Act . Mr Menzies put on appeal an argument that he accepted had not been put below. He submits that it can be relevant to whether a transaction is unjust, within the meaning of the Contracts Review Act , that it is entered after a party has received inadequate legal advice, even if the other party to the transaction does not know of or suspect the inadequacy of the advice that has been received. He submits that the advice of Mr Harkin was inadequate not only because of its lack of independence, but also because its substance was inadequate. He submits that Mr Harkin's advice was inadequate because he should have advised Mrs Brighton that the rights against ANZ that the non-ANZ parties to the Deed were contemplating giving up were potentially very valuable, and that Mrs Brighton should seek to raise the money to fund the defence of the winding up proceedings from a source other than ANZ, rather than raise the money from ANZ on the terms of the Deed.
166I do not propose to go into whether it is open to Mr Menzies to put this argument on appeal when it was not put below, because in any event the argument fails. The reason why Mr Menzies submits that the rights that were given up by the Deed were very valuable is that, in his submission, the breach of confidentiality by ANZ entitles the Appellants to avoid their respective guarantees. I have already rejected the argument that ANZ's breach of confidentiality has that effect.
167Further, I am not persuaded that there was a realistic prospect of any of the non-ANZ parties to the Deed obtaining alternative funding for the defence of the winding up proceedings in sufficient time from any source other than ANZ. Mr Harkin's advice was given on 18 October 2006, after the draft deed had been received from ANZ's solicitors. The advice was given in a context where the winding up proceedings had been stood over to 2 pm on 18 October 2006, and the funding was needed (or at any rate the basis on which the funding was to be provided needed to be agreed at least in principle) before that time. SSMG was in a dire financial predicament, and had been for months. In practical reality, SSMG would not appear to any lender to be an attractive borrower even if the time had not been so short, and when the time in which the money needed to be raised was, at most, literally a matter of hours, then in practical reality there was no alternative possible source of funds than ANZ. A solicitor has no obligation to give advice concerning courses of action that lack practical reality.
168When the Appellants have failed to discharge their onus of establishing the inadequacy of the advice, the factual basis of the argument is not made out. It is unnecessary to examine the legal propositions that are involved in the argument.
169I have said earlier that the standard of evaluation required to attract s 7 Contract Review Act is different to that involved in establishing unconscionability within the meaning of s 51AC TPA or s 12CC ASIC Act . On appeal, Mr Menzies submitted that the Contracts Review Act has a lower threshold for operation than does either s 51AC TPA or s 12CC ASIC Act . However, the argument of the Appellants at first instance did not seek to suggest that there might be circumstances in which the various provisions of the Deed relating to release of rights could be modified under the Contracts Review Act , if those provisions could not be modified under s 51AC TPA or s 12CC ASIC Act . The written submissions of the Appellants at first instance said at [132] that "The operative structure of the three Acts is similar", and did not seek to argue that the standard for intervention would be attracted under one of the Acts if it was not attracted under the others. Even on appeal, Mr Menzies does not point to any factor, beyond the one I have just rejected, which would be relevant to the operation of the Contracts Review Act but not relevant to the operation of the other two Acts. Further, Mr Menzies does not elaborate on how any lower standard there might be for attraction of the Contracts Review Act would actually apply in the facts of the present case.
170By reason of the Appellants failing on the first issue that they raise in this appeal, no practical consequence for the outcome of this litigation will flow from whether the Deed is modified under the Contracts Review Act . It is therefore unnecessary to give any separate consideration to the various factors that the Appellants rely on as establishing that the Deed is unjust. It suffices to say that, by reason of the same factors that led me to conclude that statutory unconscionability had not been made out, I am not persuaded that the contract is an unjust one within the meaning of the Contracts Review Act .
171In any event, there would be some significant obstacles in the way of granting relief under any of the Acts upon which the Appellants rely. The judge's finding that the Disclosure was not the cause of the ultimate financial collapse and winding up of SSMA suggests that no practical purpose would be served, outside the confines of the present litigation, by excising from the Deed the release and the confirmation of enforceability of securities from the Deed. And as I have said, my decision concerning Issue 1 shows that the excision of the release and the confirmation have no practical purpose within the confines of the present litigation. A court does not make orders that serve no practical purpose.
172For these reasons, I hold that the Appellants do not succeed by reason of Issue 2.