Brueckner v The Satellite Group

This gave a loan valuation ratio of 74%. He continued:

• "Settlement of the pre sales is to be 14 days post practical completion
• Draw down under the guarantee to be 90 days post practical completion
• Sunset clause in the sale contracts 28/2/2000 This structure will see the TAE covered 1.1* with pre sales and should ensure sufficient units have settled to repay the TAE prior to the Bank Guarantee being drawn" 34 Mr Blix went on to make a recommendation for approval, subject to (amongst other things), "pre sales of at least $16431 (46 units) ex City West Housing sales. Solicitor to confirm that each pre sale has a 10% deposit and that there are no side-agreement which may dilute the value of the pre sale contract." 35 On 15 September 1997 Richard Ellis prepared a valuation of the freehold, and of what the freehold would be worth if the development were completed. It included a schedule of the residential units, which showed in relation to each unit whether or not contracts were exchanged in relation to it. That schedule showed units 56 and 65 as not being exchanged. I infer that this is information which Richard Ellis had obtained from Mr Fisher, and that Westpac had reason to believe that it was information which Richard Ellis had obtained from Mr Fisher. 36 On 13 October 1997 Mr Fisher sent to Mr Blix, under cover of a letter which said, amongst other things, "As requested, we also enclose an updated sales list" a schedule of sales as at 12 October 1997. That schedule made provision for listing the name of a purchaser of a unit, and the amount of any deposit received. Those two items were blank in relation to units 56 and 65. 37 On 20 October 1997, after Satellite Ultimo had requested an increase and restructuring of the finance, Westpac sent another indicative letter of offer. It also included a condition precedent: "Pre sales of 46 units with a gross value of $16,431,000. This amount represents the current 31 units with exchanged contracts and the 15 currently awaiting to be exchanged. All pre sales will be subject to a 10% deposit. A copy of the exchanged contract and solicitor's certificate confirming the 10% deposit and no other side agreement to the sale contract has been signed is to be lodged with the bank." 38 On 23 December 1997, Satellite Ultimo and Westpac executed a facilities agreement. Also on 23 December 1997 Satellite Ultimo executed a mortgage in favour of Westpac over the land. However Westpac did not advance any money at that time. The mortgage was registered soon after it was executed. 39 On 24 December 1997, City West Housing Pty Ltd (which had had a mortgage over the land) executed a postponement of mortgage, so that it ranked after the mortgage granted to Westpac. 40 On 29 December 1997, Mr Blix wrote to Mr Fisher, asking for him to arrange for Holman Webb to certify the number of exchanged contracts, and the deposit held for each unit. On 7 January 1998 Holman Webb wrote a letter addressed to Westpac, and to Henry Davis York, solicitors, saying, "Holman Webb solicitors hereby certify that contracts for sale of apartments in the development known as The Powerhouse Apartments at Ultimo have been exchanged in accordance with the attached schedule." The schedule listed 45 units as having had contracts exchanged. The two units which had in fact been contracted to be sold to Mr Brueckner were not included in that certificate. 41 On 13 January 1998, Mr Blix and another Westpac officer executed a "completion certificate" relating to a portion of the facilities then proposed to be drawn down, namely, $5,260,000 for purchase of land, and an additional amount for capitalisation of interest and fees for 20 months. The certificate included statements that: "All conditions (including security) of the credit approval have been satisfied. I am unaware of any unapproved third party interest in the assets secured by the above documents and, if I become aware of any third party interests, it will be referred immediately to Legal for review." 42 On 14 January 1998, Satellite Ultimo drew down that portion of the facility. 43 On 17 June 1998, Satellite Ultimo granted another mortgage over the land, expressed to be subject to Westpac's mortgage, to Paribas Australia Pty Ltd. 44 As late as 9 September 1999 an officer of Satellite wrote to Westpac enclosing a schedule of apartments in the building which had been exchanged. That schedule did not disclose the sale of the two home units to Mr Brueckner. 45 The strata plan over the building was registered on 24 January 2000. When the certificates of title relating to the two lots which had been contracted to be sold to Mr Brueckner were issued, on 9 March 2000, they were subject to the mortgage to Westpac, and also to a mortgage to City West Housing Pty Ltd. Three postponement of mortgage documents were noted on each title, but there was no mortgage beyond those to Westpac and City West Housing Pty Ltd. 46 On 14 March 2000, Mr Pappas, acting for Mr Brueckner, served on Satellite Ultimo a notice to complete the two contracts for sale. That notice was not complied with. On 3 April 2000 Mr Brueckner lodged a caveat, claiming an interest, "as purchaser under contracts for sale of land" against the two certificates of title which related to the units which he had contracted to purchase. 47 On 10 July 2000 Westpac appointed receivers and managers of Satellite Ultimo. 48 On 30 August 2000 Westpac served on Satellite Ultimo, a notice under section 57(2)(b) of the Real Property Act 1900. 49 On 23 October 2000 Young CJ in Eq declined to extend Mr Brueckner's caveat, in consequence of which it lapsed. 50 Since then, the two units contracted to be sold to Mr Brueckner (and others the subject of Westpac's security), have been sold. The debt secured by Westpac's mortgage has been repaid from the net proceeds of sale. However, the receivership of Satellite Ultimo has not yet been concluded, so further fees and charges may need to be paid from the surplus funds presently held by the bank. Subject to those fees and charges, and any costs or liabilities arising from these present proceedings, Westpac holds a little over $348,000 from those proceeds. A Westpac officer has given evidence that Westpac proposes to hold that sum, less any further fees and charges payable to the receivers, as security for the costs of, and any judgment in, these proceedings, before providing any accounting to the first defendant regarding them. Westpac is willing to pay into court any surplus which might remain, so that Satellite Ultimo, Mr Brueckner, and the subsequent mortgagee, can argue about their respective entitlements to it. Parties Represented in the Proceedings 51 The first defendant in these proceedings is Satellite Ultimo. It has been served with a statement of claim, but not appeared. 52 The third defendant in the proceedings, Gregory Joseph Fisher, is one of the directors of Satellite Ultimo. He has been served, and has filed an appearance. On the first day of the hearing his solicitor informed the court that Mr Fisher has become bankrupt. Counsel for the plaintiff accepts that this is so, and that in consequence any proceedings against Mr Fisher are stayed. 53 Westpac, and Mr and Ms Broster, were represented at the hearing which took place before me. The Plaintiff's Claim Against Westpac 54 The Real Property Act 1900 contains the following provisions: "42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: [a list of exceptions not presently relevant]

43 Purchaser from registered proprietor not to be affected by notice (1) Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice direct or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud. " 55 Sections 42 and 43 expressly recognise fraud as an exception to the indefeasibility of title for which the Real Property Act 1900 provides. Section 42(1) itself contains a list of exceptions to indefeasibility. As well, case law has established that a registered proprietor can hold its interest in land subject to an interest which is not registered if there is a "personal equity" or "right in personam" which binds the registered proprietor. In Frazer v Walker [1967] 1 AC 569 Lord Wilberforce, delivering the opinion of the Privy Council, said, at 585 that their Lordships accepted the general principle that registration under the Land Transfer Act 1952 (New Zealand): "…confers upon a registered proprietor a title to the interests in respect of which he is registered which is (under section 62 and 63) immune from adverse claims, other than those specifically excepted. In so doing they wish to make clear that this principle in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant. That this is so has frequently, and rightly, been recognised in the Courts of New Zealand and of Australia: see, for example, Boyd v Mayor, etc of Wellington [1924] NZLR 1174 at 1223, and Tataurangi Tairuakena v Mua Carr [1927] NZLR 688 at 702. Their Lordships refer to these cases by way of illustration only without intending to limit or define the various situations in which actions of a personal character against registered proprietors may be admitted." 56 In Breskvar v Wall (1971) 126 CLR 376 the High Court of Australia applied Frazer v Walker to the Real Property Act 1877 (Queensland). In so doing Barwick CJ (who had been a member of the Board of the Privy Council which decided Frazer v Walker) said, at 385, of the statutory exceptions to indefeasibility: "It is really no impairment to the conclusiveness of the register that the proprietor remains liable to one of the excepted actions any more than his liability for "personal equities" derogates from that conclusiveness." 57 Windeyer and Owen JJ agreed with the Chief Justice. 58 Butt, Land Law 3rd edition, 1996 says at [2081] of these "rights in personam": "Such a description aptly reflects its non-proprietary nature. Sometimes it is called the "personal equities" ( Breskvar v Wall (1971) 126 CLR 376 at 385 per Barwick CJ) exception to indefeasibility, a description which, however, tends to obscure the fact that it encompasses not only rights arising in equity but also rights arising at law (For example, an action at law for deceit: Garofano v Reliance Finance Corporation Ltd (1992) NSW Conv R 55-640 at 59,662 per Meagher JA. See generally, Robinson, Transfer of Land , Ch 3). However, to call it an "exception to indefeasibility of title" at all may be misleading, since at its basis is the enforcement of personal claims arising out of the registered proprietor's conduct. These claims may lead to an order binding the registered proprietor to give up the whole or part of a registered interest ( Breskvar v Wall (1971) 126 CLR 376 at 384-385); but until changed in accordance with such an order, the Register remains conclusive vis-à-vis third parties." 59 The plaintiff asserts that Westpac had constructive notice of the plaintiff's exchanged contracts and/or payment of the purchase price in full, in consequence of which it would be unconscionable and/or amount to fraud to take its mortgage free of the plaintiff's equitable interest. 60 No argument was put to me which placed any reliance on section 124, or section 135 Real Property Act 1900. 61 The plaintiff relied on Bogdanovic v Koteff (1988) 12 NSWLR 472 at 479-480. Mr S Koteff had agreed with Mrs Bogdanovic that if she looked after him she could stay in his house for her life. Mr S Koteff died, leaving the house to his son Mr N Koteff. Probate of the will of Mr S Koteff was granted, and a transmission application relating to the house was registered, resulting in Mr N Koteff, the son, becoming the registered proprietor. It was after Mr N Koteff had become the registered proprietor, and tried to get Mrs Bogdanovic to move out, that he found out about the arrangement which his father had made with Mrs Bogdanovic. In the Court of Appeal the argument proceeded on the basis that the arrangement which Mrs Bogdanovic had reached with Mr S Koteff, would have been enough to have given her rights against him. The question for decision was whether Mr N Koteff, being a volunteer (by reason of being a beneficiary under his father's will, who had acquired an interest in the land without providing any consideration), was able to take advantage of the indefeasibility provisions of the Real Property Act 1900. The decision of the Court was that Mr N Koteff could take advantage of those indefeasibility provisions. 62 Counsel for the plaintiff in the present case referred me to the passage where Priestley JA (with whom Hope and Samuels JJA agreed) said at 480: "In the present appeal the appellant has not been able to point to anything in the New South Wales Act preserving the rights she had in regard to the land against the registered proprietor. She could have enforced those rights against Mr S Koteff and, I would assume, against his executor. But if knowledge of the appellant's interest by Mr N Koteff before he became registered proprietor would enable her to assert her rights against him (a matter upon which it is unnecessary in this case to express any opinion) the materials earlier referred to show that there is no basis for holding Mr N Koteff knew anything which would put him on notice of those rights. Thus there was no material upon which the appellant could attempt to found an argument of any personal right against Mr N Koteff, nor was there any provision in the Real Property Act on which she could rely to prevent section 42 so operating that Mr N Koteff held his interest in the land as registered proprietor of an estate in fee simple "absolutely free" from any estate or interest in her." 63 That Priestley JA, in this passage, saw it unnecessary to express any opinion on the question of whether Mrs Bogdanovic could have succeeded if Mr N Koteff had notice of her rights before he became registered, provides no basis for reaching a positive conclusion, in the present case, that notice by Westpac of Mr Brueckner's contractual rights, before Westpac became a registered proprietor, would give rise to any right in personam on the part of Mr Brueckner. 64 The plaintiff also relied on Lyus v Prowsa Developments Ltd [1982] 2 All ER 953. In that case, a developer owned a building estate, subject to a mortgage to the National Westminster Bank. The developer entered a contract with Mr and Mrs Lyus, under which it contracted to build a house on a particular lot in the estate and, when complete, transfer that lot to Mr and Mrs Lyus. Before construction of the house began, the developer went into liquidation. National Westminster Bank sold the estate to the first defendant, on terms that the property was sold subject to, and with the benefit of, the agreement that the developer had entered with Mr and Mrs Lyus. The first defendant on-sold to the second defendant, again expressly on the basis that the sale was subject to the contract with Mr and Mrs Lyus, so far, if at all, as it may have been enforceable against the first defendant. The second defendant was, by the time of the trial, registered proprietor of the land, under the Land Registration Act 1925 (UK). Dillon J held that the second defendant was bound by a constructive trust, requiring it to give effect to the contract which Mr and Mrs Lyus had entered with the developer. 65 This decision was made in circumstances where his Lordship had decided: "The plaintiffs' contract with the [developer] had been entered into by the [developer] with the consent of the bank as mortgagee, but the bank had not had any negotiations with the plaintiffs and the bank was not a party to, or bound by, the contract. In particular, the bank was under no liability to the plaintiffs or anyone else to complete the building of the plaintiffs' house. There is no doubt at all that the bank could have sold the estate, and plot 29 in particular, free from the plaintiffs' contract. If the bank had done that, it is indisputable that the plaintiffs would have had no claim whatsoever against the purchaser." 66 Because this was so, the provision which the bank inserted in the contract for sale with the first defendant, making that sale subject to the rights of Mr and Mrs Lyus, was not a provision inserted solely for the protection of the bank. In these circumstances, his Lordship held that, if the land had been unregistered, there would have been a constructive trust obliging the second defendant to give effect to the plaintiffs' contract. His Lordship then went on to consider whether the fact that the land was registered made a difference, and said at 962: "It has been pointed out by Lord Wilberforce in Midland Bank Trust Co Ltd v Green [1981] 1 All ER 153 at 159, [1981] AC 513 at 531 that it is not fraud to rely on legal rights conferred by Act of Parliament. Under s 20, the effect of the registration of the transferee of a freehold title is to confer an absolute title subject to entries on the register and overriding interests, but "free from all other estates and interests whatsoever including estates and interests of His Majesty". In Miles v Bull (No.2) [1969] 3 All ER 1585 at 1589, Bridge J expressed the view that the words which I have quoted embraced, prima facie, not only all kinds of legal interests, but all kinds of equitable interests. He therefore held, as I read his judgment (at 1590) that actual or constructive notice on the part of a purchaser of an unregistered interest would not have the effect of imposing a constructive trust on him. The interests in Miles v Bull (No.2) was the interest in the matrimonial home of a deserted wife who had failed to protect her interests by registration under the Matrimonial Homes Act 1967. The contract for sale between the husband, who was the registered proprietor, and the purchaser provided that the house concerned was sold subject to such rights of occupation as might subsist in favour of the wife with a proviso that this was not to imply that the wife had, or would after completion have, any such rights as against the purchaser. Plainly, therefore, the clause was only included in the contract for the protection of the husband who was the vendor. The wife was to get no fresh rights and in Miles v Bull it was not a stipulation of the bargain between the vendor and the purchaser that the purchaser should give effect to the rights of the deserted wife as against the vendor. Miles v Bull is thus distinguishable from the facts of the present case as I interpret those facts. It seems to me that the fraud on the part of the defendants in the present case lies not just in relying on the legal rights conferred by an Act of Parliament, but in the first defendant reneging on a positive stipulation in favour of the plaintiffs in the bargain under which the first defendant acquired the land. That makes, as it seems to me, all the difference. 67 I will not pause to consider the differences between the system of registration of title which exists under the Land Registration Act 1925 (UK), and under the Real Property Act 1900. There is a very significant difference between the facts of the present case, and the facts in Lyus v Prowsa Developments Ltd. In the present case, there is no suggestion that Westpac made any positive stipulation in favour of Mr Brueckner in the bargain under which it acquired its interest in the land. 68 The plaintiff also relies on Bahr v Nicolay [No.2] (1987-8) 164 CLR 604. That was another case where a registered proprietor of land had expressly undertaken that he would be bound by an interest which the previous registered proprietor had conferred on the plaintiff. Mason CJ and Dawson J took the view that the plaintiff could succeed in these circumstances because the conduct of the registered proprietor amounted to fraud. Wilson and Toohey JJ held that fraud was not made out (636-637) but that the conduct of the registered proprietor gave rise to a personal equity (at 637-639). The basis on which their Honours found that personal equity arising was: "The [registered proprietors] understood through their agent Mr Callard that the [previous registered proprietor] would not sell lot 340 unless they agreed to be bound by the obligation in clause 6 which required the [previous registered proprietor] to resell to the appellants. The [registered proprietors] bought lot 340 on the understanding common to vendor and purchasers that they were so bound and clause 4 was included to give effect to that understanding…by taking a transfer of lot 340 on that basis, and the appellant's interest in clause 6 constituting an equitable interest in the land, the [registered proprietors] became subject to a constructive trust in favour of the appellants." 69 That situation is readily distinguishable from the situation in the present case. Here, no officer of Westpac, at the time Westpac actually took its interest, believed that Mr Brueckner had any interest in the land, let alone agreed to be bound to recognise any such interest of Mr Brueckner. See also per Brennan J at 653-655. 70 The most that Westpac could possibly have had, at the time it took its mortgage, is constructive notice of the existence of Mr Brueckner's rights in relation to the two apartments. That is not enough to give Mr Brueckner, against Westpac, any right in personam. In Bahr v Nicolay [No.2] (1988) 164 CLR 604, at 652 Brennan J said, of the Western Australian analogue of section 43 of the Real Property Act 1900: "These provisions are designed to achieve the main object of the Torrens system of registration of interests in land which the Privy Council in Gibbs v Messer [1891] AC 248, at 254 perceives to be: "To save persons dealing with registered proprietors from the trouble and expense from going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title." The consequence is that, whereas equity would subject the interest of a purchaser of land to an antecedent unregistered interest of which the purchaser has notice, a purchaser who takes with notice of an antecedent interest but who becomes registered under the Act without fraud takes free of that interest: Ortel v Hordern (1902) 2 SR (NSW) (Eq) 37; Munro v Stuart ; Friedman v Barrett; ex parte Friedman [1962] Qd R 498 at 511-512." 71 The plaintiff also relies on some remarks of Mahoney JA in Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722. That case concerned a bank which obtained, and registered, a mortgage over property of a company. That mortgage was, unknown to the bank, a forgery, in that the signature of one of the directors, purporting to witness the fixing of the common seal, was forged and placed on the document without the knowledge of that director. The mortgage was entered into after the introduction of section 68A-68D of the Companies (NSW) Code, which entitled to a person dealing with a company to make certain assumptions about regularity of execution of corporate documents. The trial judge found that, if the documents had been entered into prior to the introduction of section 68A and section 68D, the bank would have been put upon inquiry, that in the absence of inquiry the indoor management rule would not have assisted the plaintiff, and that the bank did not make due inquiry. In the Court of Appeal, counsel for the director whose signature had been forged (who was, in effect, presenting the case for the company) relied upon this absence of due inquiry as a ground for attacking the validity of the mortgage. Mahoney JA said, at 740-741: "This submission raises for consideration the extent to which a person taking a mortgage in present circumstances is required to inquire in relation to the matters in respect of which the Bank's inquiries were deficient and whether failure to do so will give rise to a personal equity of the relevant kind. In a general sense, the purpose of indefeasibility provisions of the Real Property Act is to enable third parties to deal with the registered proprietor without going behind the proprietor's title. But that, of course, is not inconsistent with a duty to take proper steps to ensure that the dealing tendered as executed by the registered proprietor has in fact been executed by it. Such a duty would not, as such, be inconsistent with the policy of the Act that the registered title of a proprietor need not be investigated. I would not wish to pre-empt the possibility that in a particular case failure to inquire as to the execution or purported execution of a document by the registered proprietor could give rise to a personal equity to have that document, after registration, set aside. But I do not think that the failure to check the execution as such would have that effect. Thus, I do not think it is consistent with the existing authorities to hold that it is the duty of a purchaser on completion of a purchase to require specific proof that the signature of the transfer of title is in fact the signature of the then registered proprietor. Under the general law, the position in respect of the execution of a document by a company was or may have been different." 72 That passage falls a long way short of saying that constructive notice of an interest, without more, gives rise to a personal equity. See also Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 at 151-152 per Tadgell JA for persuasive dicta that the doctrine of constructive notice has no role to play in a Torrens system of land title. 73 In Story, Gleeson CJ (with whom Cripps JA agreed) referred to the decision of Hayne J in Vassos v State Bank of South Australia [1992] V Conv R ¶ 54-443. Gleeson CJ, at 736-7, said of that case: "There the signature of a mortgagor to an instrument of mortgage had been forged and the mortgagee had accepted the mortgage without knowledge of the forgery. Hayne J said (at 65-180 to 65-181): "The bare fact that a party has not assented to the transaction recorded in an instrument registered under Torrens system legislation does not, in my opinion, give that person a right enforceable by in personam action to have the transaction reversed. For my part I consider it is clear that more than the bare fact of forgery (and thus an absence of assent) must be shown to found any in personam action of the kind spoken of in Frazer v Walker and subsequent cases … In the present case … it may well be that the bank did not act without neglect but there is in my view no material which would show that the bank acted unconscionably. There was no misrepresentation by it, no misuse of power, no improper attempt to rely upon its legal rights, no knowledge of wrongdoing by any other party. It obtained a mortgage, apparently regular on its face but which was in fact forged. Even if by making reasonable enquiries the bank could have discovered the fact of the forgery I do not consider that that fact alone renders its conduct unconscionable. I do not consider that the plaintiffs have any in personam right against the bank; all that they have shown is the mere fact of forgery of the instrument." Those words apply equally to the present case. The most that is said against the respondent Bank is that the nature of the transaction between the Bank, Mr Story, and Fleetwood Star Pty Ltd was such that the Bank was put upon inquiry as to the regularity of the internal company proceedings relating to the transaction. For reasons given above I consider that contention to be at least dubious. The Bank advanced money on the faith of the validity of the mortgage, and a substantial part of that money was applied for the benefit of the mortgagor company. The transaction was entered into at the instigation of the person who was permitted the de facto control and management of the company. It is not unconscientious of the Bank to insist upon its rights as mortgagee or to enforce its security. The relevant personal equity is said to be that of the company, not of Mrs Story. Unless a number of the leading cases concerning registration of forged mortgages were wrongly decided it cannot arise out of the bare fact of the forgery. Even if the Bank had been shown to have failed to make adequate investigation of what was going on within the company, that does not produce the result that it is against conscience for the Bank to rely upon its statutory rights."

That passage, and in particular the last sentence quoted, is inconsistent with it being enough to give rise to a right in personam that a person takes title with knowledge of circumstances which, if investigated, would show that someone else had an interest in the land being acquired. 74 In Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202, at 222-223 Powell JA (with whom Meagher and Handley JJ agreed) said: "I am of the view that the expressions "personal equity" and "right in personam" encompass only known legal causes of action or equitable causes of action, albeit that the relevant conduct which may be relied upon to establish "a personal equity" or "right in personam" extends to include conduct not only of the registered proprietor but also of those for whose conduct he is responsible, which conduct might antedate or postdate the registration of the dealing which it is sought to have removed from the register." 75 I would not conclude that Westpac, at the time it acquired its interest in the mortgage, had even constructive notice of the existence of Mr Brueckner's rights under his contract. The situation is that, by the table annexed to the letter of 22 August, it had been informed, by a document it believed emanated from Satellite Ultimo, that contracts had been exchanged on those two units. Westpac did not regard that document as reliable. Prior to the mortgage being entered Westpac had been informed, by the schedule to the valuation report, which Westpac had reason to believe emanated from Satellite Ultimo, that the two units which, by the schedule to the letter of 22 August had been shown as being exchanged with Mr Brueckner, were now not exchanged. Holman Webb, the only solicitors who Westpac had any reason to believe were acting for Satellite Ultimo in connection with selling units in the building, had provided Westpac with a list of units which had been exchanged, which did not include the two units which the table annexed to the letter of 22 August showed as having been exchanged with Mr Brueckner. Holman Webb provided that list just before Westpac advanced money on the mortgage, and in a form which was no ordinary letter, but had the flavour of care and deliberation that goes with a letter which begins, "Holman Webb Solicitors hereby certify …". 76 Thus, Westpac is not bound by any personal equity which requires it to recognise Mr Brueckner's interest in the two units. It also follows that there is no tinge of dishonesty in Westpac's assertion that it holds free of Mr Brueckner's interest, and hence there is no fraud (Bahr v Nicolay [No2] (1988) 164 CLR 604 at 613-614, 630-633). 77 Another basis on which the plaintiff puts his case is that, "it would be unconscionable for Westpac, taking the benefit of the other exchanged contracts, refusing to accept the detriment of the plaintiff's contracts." 78 There are certain circumstances in which a Court of Equity has not permitted someone to take the benefit of a transaction, while refusing to submit to burdens which are part of that same transaction (ER Ives Investments Pty Ltd v High (1967) 2 QB 379; Frater v Finlay (1968) 91 WN (NSW) 730; Tito v Waddell (No.2) [1977] Ch 106, at 289-303). However, it is probably going too far to say that it is a "basic principle" of law that, always, he who takes the benefit of a transaction must also bear the burden (Government Insurance Office (NSW) v K A Reed Services Pty Ltd [1988] VR 829, at 834-841 per Brooking J). The argument in this case did not seek to explore, even briefly, the circumstances in which such a principle might, or might not, be the law. 79 I shall assume, without deciding, that there is such a principle applicable here. On that basis, Westpac is not subject to any equity in favour of Mr Brueckner. There is no way in which Westpac has taken the benefit of anything to do with Mr Brueckner's contracts. It is true that Westpac has taken a mortgage over the whole of the Ultimo site, and has done so with a positive requirement that pre sale contracts be entered into for a certain number of units in the apartment block. However, as Westpac understood it, and in reality, the plaintiff's contracts were not amongst those pre sale contracts. Further, Westpac has permitted Satellite Ultimo to settle various of those pre sale contracts, and allowed a significant part of the proceeds of sale of those contracts, to be applied in discharge of Westpac's mortgage. By doing so, it has obtained, or sought, a benefit under those particular contracts. However, Westpac has not obtained a similar (or indeed any other) benefit concerning Mr Brueckner's contracts. 80 In these circumstances, the plaintiff's claim against Westpac fails. The Plaintiff's Claim Against Satellite Ultimo 81 Mr Brueckner has a clear claim against Satellite Ultimo for a breach of contract, in failing to given him title to the two home units. If the contracts had been performed, Mr Brueckner would have obtained title to the units by the end of April 2000. 82 Phillip Rennie, valuer, has given evidence of both the market value, and the rental value of the units. It can be summarised as follows: Unit 56 Unit 65 Value as at 16 June 1997 $260,000 $250,000 Value as at 27 February 2002 $315,000 $310,000 Rental value as at 16 June 1997 $240 per week $240 per week Rental value as at 27 February 2002 $300 per week $300 per week

83 Mr Brueckner gave evidence that if he had received the two units, he would probably have let both units out for a period of time, then sold one of them. He said that he would have let both units out for "probably the first two years, depending on the return". Thus it is likely that both units would have been made available for letting for the whole of the time from the end of April 2000 to the date of this judgment. 84 In Johnson v Perez (1988) 166 CLR 351, at 355 Mason CJ said: "There is a general rule that damages for torts or breach of contract are assessed as at the date of breach or when the cause of action arises. But this rule is not universal; it must give way in particular cases to solutions best adapted to giving an injured plaintiff that amount in damages which will most fairly compensate him for the wrong he has suffered." 85 In the present case I see no reason to depart from the usual rule that damages are assessed as at the date of breach. 86 The evidence does not give a value for the units as at the end of April 2000. The evidence gives the capital value of the units at dates separated by a period of about 56 months. The end of April 2000 lies about 34 months through that period. I shall assess the value on the basis that the capital gain which occurred between June 1997 and February 2002 accrued at an even rate. On that basis, the value of unit 65, at the end of April 2000, is around $286,000. The value of unit 56 at that date, is around $293,000. 87 The rental value of which Mr Reny has given evidence, is a gross rental value. The evidence established that there would be expenses in letting the property, for agent's fees and commission, strata levies, statutory and council rates and taxes, and the like. The quantum of those expenses was not established. Counsel for the plaintiff submitted that in these circumstances I should assess the damages by treating those expenses as being of the order of 50% of the gross rents received. 88 However, there is a logically anterior problem, which needs to be addressed, of whether the plaintiff is entitled to damages at all in connection with lost rents. 89 Damages for lost rent are a species of consequential damage. Before they can be awarded, the plaintiff needs to demonstrate that they fall within one or other of the limbs of Hadley v Baxendale (1854) 9 Ex Ch 341. In Diamond v Campbell-Jones [1961] 1 Ch 22, at 36, Buckley J said: "In some cases the nature or the subject matter of a contract or of its terms may be such as to make it clear that one of the parties is entering into the contract for the purpose of a particular business, and the circumstances may be such that the court will infer that the other party must have appreciated that this was so. It seems to me, however, that this can rarely be the case where the contract is for the sale of land. The vendor of a shop equipped for use as a butcher shop would not, in my judgment, be justified by that circumstance alone in assuming, and ought not to be treated as knowing, that the purchaser was intending to use it for the business of a butcher rather than that of a baker or candlestick maker, at any rate in the absence of covenants or other forms of restriction confining its use to butcher's business. Special circumstances are necessary to justify imputing to a vendor of land a knowledge that the purchaser intends to use it in any particular manner." 90 There is no evidence to establish that Satellite Ultimo was aware of the particular manner in which Mr Brueckner proposed to use the two properties which he had contracted to purchase. In these circumstances, the measure of damages is the value of the land at the date of breach, and no damages are allowable for loss of rent. 91 There will be a judgment for the plaintiff, against Satellite Ultimo, for $579,000. In addition, the statement of claim seeks interest. Interest should be allowed, at the rate appropriate under section 94 of the Supreme Court Act 1970, on that sum from the end of April 2000 to the date when orders are made in accordance with this judgment. Defences of the Guarantors - Failure of Mr Brueckner to Protect his Security 92 The liability of Satellite Ultimo which I have just found, falls within the scope of the guarantee that Mr and Ms Broster signed. Thus, they will each have a liability, in the same amount as Satellite Ultimo, unless and to the extent that they can establish a defence. 93 Both Mr and Ms Broster rely on a defence that Mr Brueckner failed to protect a security which he had. It is a defence which is put on the basis that (as I have found) Mr Brueckner fails in his claim against Westpac and (so far as Ms Broster is concerned) that other attacks on the validity of the guarantee fail. 94 The starting point of this argument is that clause 2.8 of each of the contracts of sale which Mr Brueckner entered, conferred on Mr Brueckner a charge over the land, to secure the amount of money which Mr Brueckner paid. 95 The Brosters submit that there is a principle of law which requires a creditor to maintain any securities he has, for the benefit of a surety. While it is, and for many years has been, a common practice to include in guarantees a clause which negatives this obligation, the present guarantee contains no such clause. 96 In Williams v Frayne (1937) 58 CLR 710 at 738 Dixon J said: "If the guarantee is given upon a condition, whether express or implied from the circumstances, that a specific security shall be obtained, completed, protected, maintained or preserved, any failure in the performance of the condition operates to discharge the surety and the discharge is complete. But otherwise the surety can complain only if the creditor sacrifices or impairs a security, or by his neglect or default allows it to be lost or diminished, and in that case the surety is entitled in equity to be credited with the deficiency in reduction of his liability. The cases are collected in the ninth chapter of Sir Sidney Rowlett's book, and there is an examination of some of them in the judgment Hanna J in Northern Banking Co v Newman and Colton (1927) IR 520, at page 536-539." 97 In The Northern Banking Co Limited v Newman and Calton (1927) IR 520, at 538-539, Hanna J said: "I am of opinion that these authorities establish the following propositions of law referrable to the facts of the case: - 1. If it is an express or implied condition of, or collateral to, the arrangement for the guarantee, that an existing security, whether inchoate or complete, should be made or kept effective by the creditor for the benefit of the parties as a counter-security, failure to observe that condition discharges the surety absolutely, inasmuch as he has not got the contract he bargained for. 2. The mere circumstances that at the time that the surety becomes bound there exists to the knowledge of the surety in the possession of the creditor another security, which is available to the creditor, does not make it an implied term of the contract to maintain the same as effective, breach of which entitles the surety to absolute discharge. It must be found by the Court to be an express or implied term of the contract agreed to and understood to be so by both parties. 3. If it falls short of being a term of, or collateral to, the contract, but there is, in fact, in the possession of the creditor, either at the time of the contract or later, such a counter-security as referred to, it is the duty of the creditor, whether its existence is known to the surety or not, to exercise reasonable care in maintaining it for the benefit of the surety, so as to be available, unimpaired by reason of any negligence, on the discharge of the debt. If he fails in this duty, the surety is entitled to credit against his liability for the damages suffered by such breach of duty by the creditor."

The Brosters say that they fall within the third of these principles. 98 Brennan J in Buckeridge v Mercantile Credits Ltd (1981) 56 ALJR 28 said: "In a case where the act of a creditor does not discharge a surety, but the creditor has nonetheless sacrificed or impaired a security, or by his neglect or default allowed it to be lost or diminished, the surety is entitled in equity to be credited with the deficiency in reduction of his liability."

See also Phillips & O'Donovan , the Modern Contract of Guarantee , 2nd edition, (1992), pages 337-338, 345-346. 99 Mr and Ms Broster submit that, by failing to lodge a caveat, Mr Brueckner has impaired the security that otherwise would have existed under clause 2.8. (See paragraph 10 above). 100 As a matter of construction of clause 2.8, "the land" over which the charge exists is the two specific home units contracted to be sold, not the entirety of the land on which the development was constructed. 101 Mr and Ms Broster also submit that, while special condition 5 of each contract (see paragraph 13 above) imposed limitations on the form of caveat which could be lodged by Mr Brueckner, it did not completely prohibit him from lodging a caveat. Special condition 5 prohibited him from lodging a caveat which prevented the recording of particular types of dealings. If Mr Brueckner had lodged a caveat which expressly permitted the lodgement of those types of dealings, or which prohibited only a transaction of a type not within the scope of the prohibitions contained in special condition 5, that caveat would have been able to remain on the title. 102 There is evidence from Mr Peter Cornelius, a solicitor well experienced in conveyancing, about what is the usual practice of a solicitor engaged in a transaction, acting in a reasonably competent and prudent manner in accordance with generally accepted standards and practices of the profession. He says that it is the usual practice of such a solicitor to cause a caveat under the Real Property Act 1900 to be lodged to protect the purchaser's interest under a contract for sale when there is a delayed settlement, release of the deposit, or a perceived unusual risk. He also says it is the usual practice of such a solicitor to lodge a caveat where a purchaser is acquiring a property, "off the plan", and for such a caveat to be lodged immediately after exchange of contracts. In accordance with Mr Cornelius' evidence, there were multiple reasons for Mr Brueckner to lodge a caveat in the present case - there was an extremely delayed settlement, the entire purchase price was paid in advance and released to the vendor, and the purchase was off the plan. The payment of the purchase price in advance, and its release to the vendor, also fell, according to Mr Cornelius' evidence, within the scope of a "perceived unusual risk". 103 No expert evidence was called to dispute the correctness of Mr Cornelius' evidence. I accept that a prudent purchaser in the position of Mr Brueckner would have lodged a caveat. 104 It was submitted, on Mr Brueckner's behalf, that the opening words of special condition 5 made it clear that it was an essential condition of the contract that no caveat, of the kind described in special condition 5, be lodged, and that if a caveat were to be lodged which breached special condition 5, this would be a repudiation of the agreement. That submission is correct, to this point. I do not, however, accept the next step, that drafting a caveat to fit within the confines of special condition 5 is so difficult an exercise that, given the serious consequences which could flow from getting it wrong, a reasonable person in Mr Brueckner's position would not even try. 105 Counsel for Mr Brueckner also submits that I should not find that Mr Brueckner had engaged in any neglect or default in failing to lodge a caveat because Mr Brueckner was, in all these matters, advised by his then solicitor, Mr Pappas. 106 While it is correct that Mr Pappas was acting as Mr Brueckner's solicitor, there was no detailed evidence of what passed between them on the topic of whether a caveat should be lodged. Mr Pappas was not called as a witness. The evidence includes a letter which Mr Pappas wrote to Mr Brueckner on 14 August 2000, where he refers to there having been "meetings with you and representatives of the vendor prior to exchange during which we discussed the risks of paying the entire purchase price for apartments in a building yet to be constructed." However, Mr Brueckner gives evidence that, at least up to the time when it became clear that settlement of the property was not possible (which I take to be early 2000) Mr Pappas did not give him any advice as to the possibility of lodging a caveat. It is not necessary for me to make a finding about what passed between Mr Brueckner and Mr Pappas on this topic. What matters for present purposes is that, whether or not it was as a consequence of advice, or lack of advice, from Mr Pappas, Mr Brueckner failed to lodge a caveat. For the purpose of deciding whether Mr Brueckner has breached any duty he owes to the Brosters not to prejudice any security, it does not matter whether Mr Brueckner was acting on legal advice. 107 Mr Blix gives evidence, which I accept, that Westpac would not have advanced money if there had been a caveat of any description on the property at the time of Westpac making its advance. However, he says that if there had once been a caveat on the title, which was removed by the time Westpac took its security, that would not have been an inhibition to Westpac advancing the money. Thus, if Mr Brueckner had lodged a caveat, Westpac would have required it to be removed before any money was advanced, but in consequence of the lodgement of a caveat Westpac would have had clear actual notice of Mr Brueckner's rights. 108 Mr and Ms Broster recognise that there is a difficulty for the Court in deciding, as a matter of fact, what is likely to have happened if Mr Brueckner had disclosed, by caveat, the existence of his contractual rights to the two apartments. However, they say that, in many situations where the Court is required to assess damages, it has no choice but to do the best it can, on such limited material as might be available. Further, the approach which equity takes to assessing the consequences of the breach of an equitable obligation looks simply at questions of causation, uncomplicated by any considerations of remoteness - Re Dawson [1966] 2 NSWR 211. Finally, Mr and Ms Broster submit that, when it is Mr Brueckner who is in breach of his equitable duty to maintain the security, the court should not engage in fact finding about the consequences of his breach with any particular tenderness towards him - cf Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 note; O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 281 per Meagher JA. Nor is that approach to finding the consequences of the wrongdoing of a wrongdoer one which is confined to equity - see Armory v Delamirie, (1721) 1 Stra. 505 [93 ER 664] 109 The Brosters submit that there are four possible scenarios of what might have happened, if Mr Brueckner had lodged a caveat. They ask that I make findings about which is more likely. The first scenario is that Westpac would provide the funds, would require the caveat to be removed before settlement, and would then rely on the Real Property Act 1900 to say that, notwithstanding that it had notice of Mr Brueckner's interest before it took a mortgage from Satellite Ultimo, it was not bound by any such interest. 110 In my view it is unlikely that Westpac would have taken that attitude. Mr Blix says that if he had known of the two contracts entered with Mr Brueckner, he would have reassessed the application for finance, and would not have ignored the existence of the contracts. 111 The second possible scenario is that Westpac would not provide funds at all. On balance I think that this is unlikely. Satellite Ultimo had taken various steps to lessen the risk associated with the development project. There was a turn-key contract with a builder, which, in his first discussion paper of 29 August 1997, Mr Blix recognised as eliminating the delivery risk. The substantial pre sales also lowered the risk. Mr Blix regarded the fact that the pre sales more than covered the total assessed exposure as an important factor. 112 I have set out at paragraph 33 above part of Mr Blix's credit risk analysis document of 8 September 1997. If, by that time, he had been aware that the two units had been sold to Mr Brueckner, and that the entire purchase price had already been paid to Satellite Ultimo, he would have reduced the value of the security which the bank had by the list price of those two units, namely $544,000. Thus the bank's security would have become $19,491,000. This would result in a loan valuation ratio of 76.4%, instead of the 74% which Mr Blix actually calculated. The pre sales known to Mr Blix would still have covered the total assessed exposure 1.1 times. 113 As well, security over the property and its proceeds were not the only securities the bank was contemplating as at 8 September 1977. As well, it was proposing to take an equitable mortgage over Satellite Ultimo itself, and directors' guarantees. Cross guarantees were not to be provided between group companies, however. 114 By the time Mr Blix had done another credit approval summary on 28 November 1997 (the document bears an incorrect typewritten date of 28 November 1998, but from internal evidence it must come from late 1997) the loan valuation ratio had risen to 76%, but the project went ahead nonetheless. It is not possible, on the evidence, to calculate what the precise loan valuation ratio would have been, as at the end of November 1997, if Westpac had known about the two units sold to Mr Brueckner, but one would expect that that fact would result in an increase in the loan valuation ratio of the order of 2.5%. Given that cross guarantees between group companies had not been offered even by the end of November 1997, and that Westpac had spent some months investigating the project by November 1997 and there is no trace of doubt or concern about the project as a lending proposition in Westpac's internal documents, it seems to me more likely that, if Westpac had known the true situation concerning Mr Brueckner's two contracts, it would not have refused to provide funds. 115 The third possible scenario is that Westpac would carve out the two units from its security, but leave other mortgagees on the property free to assert that they had priority over Mr Brueckner's interests. The other mortgagees on the title at the time were, Medi-Aid and City West. The Medi-Aid mortgage was paid out when the Westpac loan was drawn down. So long as Medi-Aid received its money, it had no reason to assert priority over Mr Brueckner's interest. The likelihood is that if Westpac was prepared to recognise Mr Brueckner's contracts, Medi-Aid would not have any independent objections of its own. On settlement of the Westpac loan, City West was prepared to adopt a priority position subsequent to Westpac. City West was not merely a mortgagee - as well it was a substantial purchaser of units in the development. It had every reason for wanting the development to go ahead. I do not think that this third scenario would be a likely outcome of Mr Brueckner having lodged a caveat. 116 The fourth scenario, the Brosters submit, is that Mr Brueckner would have had his contracts recognised by both Westpac and other mortgagees, so that the contracts could be completed, eventually, according to their terms. 117 In my view the more likely outcome, if there had been lodgement of a caveat, was that either:

(a) Mr Brueckner would have his contracts recognised by both Westpac and other mortgagees, so that those contracts could be completed, eventually, according to their terms, or

(b) a renegotiation would occur, involving Mr Brueckner, Satellite Ultimo, and all mortgagees, under which Mr Brueckner could receive the units, but on payment of a higher price, or

(c) the contracts were brought to an end, on a basis where Mr Brueckner received back some, or perhaps all, of his money. 118 While it seems to me that one or other of these three alternatives are more likely than not to be the outcome, I am not able to say which of those alternatives is the most likely one, nor that any of the alternatives is more likely than any other. 119 Even if the Brosters were right in saying their 'fourth scenario' was the most likely outcome, it does not, it seems to me, have the consequence that the guarantees are discharged entirely (as Mr and Ms Broster contend). 120 The reader will recall that the starting point of this argument was that Mr Brueckner had a charge, under clause 2.8 of the contract, for the purchase price that he had paid (totalling $275,000), and that he had, in breach of the duty he owed to Mr and Ms Broster, impaired that charge, by failing to caveat. The next step in the argument is that, in consequence of that breach of duty, Mr and Ms Broster are entitled to receive equitable damages, which they can offset against their liability under the guarantee to Mr Brueckner. The amount of damages which Mr Brueckner is entitled to receive from Satellite Ultimo, and consequently from Mr and Ms Broster if the guarantee is enforceable according to its terms, significantly exceeds the amount of the purchase price which he paid, and for which the charge exists. Nonetheless, Mr and Ms Broster submit, if the duty had been performed the likelihood is that Mr Brueckner would have received his two units, without paying any additional money. When he has breached his equitable duty, and when the consequence of his performing his equitable duty would have been that he would have received the two units without paying any additional money, the appropriate amount of set-off to allow, in calculating how much Mr and Ms Broster owe under the guarantee, is the amount which would put them into the same position they would have been in if Mr Brueckner had performed his equitable duty to them. 121 The argument of Mr and Ms Broster depends on the proposition that, where there is a breach of an equitable duty, the person who breaches that equitable duty will be liable for all consequences which flow from the act which amounts to a breach of duty. 122 However, not all breaches of an equitable duty will attract a remedy which requires all consequences of that breach of duty to be made good. Re Dawson [1966] 2 NSWR 211, the case on which the Brosters rely, was a case where a trustee had, in breach of trust, disposed of trust property. That trust property was an amount of New Zealand pounds. At the time of the wrongful payment away, a New Zealand pound was worth the same as an Australian pound. By the time of the action before Street J, the Australian currency had devalued against the New Zealand currency. Street J held that the defaulting trustee was liable to pay the number of Australian pounds necessary, at the date of judgment, to purchase the number of New Zealand pounds which had been wrongfully paid away (together with interest). It was in that context that Street J expressed the view (at 214): "The obligation of a defaulting trustee is essentially one of effecting a restitution to the estate. The obligation is of a personal character and is not to be limited by common law principles concerning remoteness of damage.

And, at 215: "The principles embodied in this approach do not appear to involve any inquiry as to whether the loss was caused by or flowed from the breach. Rather the inquiry in each instance would appear to be whether the loss would have happened if there had been no breach."

And, at 216: "The cases to which I have referred demonstrate that the obligation to make restitution, which courts of equity have from very early times imposed on defaulting trustees and other fiduciaries is of a more absolute nature than the common law obligation to pay damages for tort or breach of contract. It is on this fundamental ground that I regard the principles in Re United Railways of Havana and Regla Warehouses Ltd (Tomkinson v First Pennsylvania Banking and Trust Co) [1960] 2 All ER 332; [1961] AC 1007 as distinguishable. Moreover, the distinction between common law damages and relief against a defaulting trustee is strikingly demonstrated by reference to the actual form of relief granted in equity in respect of breaches of trust. The form of relief is couched in terms appropriate to require the defaulting trustee to restore to the estate the assets of which he deprived it. Increases in market value between the date of breach and the date of recoupment are for the trustee's account: the effect of such increases would, at common law, be excluded from the computation of damages; but in equity a defaulting trustee must make good the loss by restoring to the estate the assets of which he deprived it notwithstanding that market values may have increased in the meantime. The obligation to restore to the estate the assets of which he deprived it necessarily connotes that, where a monetary compensation is to be paid in lieu of restoring assets, that compensation is to be assessed by reference to the value of the assets at the date of restoration and not at the date of deprivation. In this sense the obligation is a continuing one and ordinarily, if the assets are for some reason not restored in specie, it will fall for quantification at the date when recoupment is to be effected, and not before." 123 It will be seen that the reasoning of Street J in this case is closely tied to the particular breach of equitable duty which his Honour was there considering. The remedy which is appropriate for breach of one type of equitable duty is not necessarily the same as the remedy which is appropriate for a different type of equitable duty. Rather, the remedy which is appropriate will depend upon the rationale for the existence for the particular equitable duty in question. In the case of a trustee's duty to preserve the trust assets, the point of the duty is that the assets ought be available for performance of the trust obligations; hence, if any of the assets are wrongly disposed of, it is the trustee's responsibility to make sure that the trust fund is put in the same situation it would have been in if the wrongful disposition had not occurred. This is a remedy which is within the scope of the purpose which the equitable obligation is aiming to achieve. That is not the situation which exists in the present case. 124 (Even in connection with the breach of a fiduciary duty, there is room for argument about whether a Court of Equity will impose liability for absolutely all losses which would not have been sustained, but for a breach of equitable duty. There still may be a need to show that, in a real sense, a loss which follows on from a breach of fiduciary duty has actually been caused by that breach of fiduciary duty (Canson Enterprises Ltd v Boughtom and Company (1991) 85 DLR (4th) 129, applied by Burchett, Gummow and O'Loughlin JJ in Bailey v Namol Pty Ltd (1994) 125 ALR 228 at 235). See also the cases and extra judicial writings collected by Spigelman CJ in O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262, at 276.)) 125 The equitable duty which a creditor owes to a guarantor is, by contrast, not a fiduciary duty. Rather, it is a duty which, like the equitable duties attaching to exercise of a mortgagee's power of sale, exists even though there is no fiduciary relationship between mortgagor and mortgagee. 126 All the cases to which I have been referred on this topic are ones where the amount by which the guarantor's liability was reduced, was ascertained by deducting from what would otherwise be the amount of the guarantor's liability, the value of the security which had been lost. Some are mentioned at paragraphs 95 to 98 above. In Capel v Butler (1825) 2 Sim. & St. 457 White had agreed to pay Butler an annuity, payment of which would be secured by, (amongst other things) an assignment of two ships belonging to White, and the proceeds and earnings of those ships. The plaintiff was a surety for payment of the annuity. Butler sued the plaintiff when the annuity fell into arrears. The plaintiff went to the Equity Court, seeking a common injunction to restrain that action. The deed which created the annuity, gave the plaintiff the right to repurchase the annuity, on payment to Butler of a particular sum of money. The plaintiff also sought from the Equity Court, a decree that he was entitled to repurchase the annuity on payment of that sum of money, minus the value of the two vessels. The two vessels had been sold by White, who applied the proceeds to his own use. White had been able to do so because certain formalities required by the Ship Register Act were not complied with when the vessels were assigned to Butler as security. Those formalities were not complied with as a result of a deliberate decision by Butler not to do so, having been advised by counsel that compliance with those formalities was unnecessary. Sir John Leach V-C held that: "…the plaintiff, as surety, was entitled to take advantage of the proviso for redemption; and that the value of the two vessels being lost to him by the neglect of the defendant Butler, he was entitled to deduct that value from the stipulated price of redemption." 127 Likewise in Strange v Fooks (1863) 4 Giff 408; 66 ER 765 Sir John Stewart V-C said [at 768 of ER], "It seems to me that this case comes within the general doctrine of the Court that a surety being entitled to the benefit of every security, where a security is lost through the negligence of the principal creditor, by his not having had it perfected in the proper way, the surety is released to that extent." 128 In Wulff & Billing v Jay (1872) LR 7 QB 756 the plaintiffs lent money to two traders, for which the defendant became surety. The traders assigned, to the plaintiffs, as security for the debt, the lease of their business premises, and plant, fixtures and stock in trade. The deed which made that assignment was not registered as a bill of sale. Though the plaintiffs had notice that the traders had failed to pay an instalment of interest, when it fell due, they did not enter into possession. Later, the plaintiffs received notice that the traders were insolvent, but they still allowed them to continue in possession. The traders subsequently became bankrupt, and the trustee of the bankruptcy seized and sold the goods and chattels which had been assigned by the deed. Cockburn CJ held that the defendants were entitled to set off, against their debt, the amount of the security which the plaintiffs, by their laches, caused to be lost. He said (at 762): "Cases have been cited and authorities have been referred to in Storey's Equity Jurisprudence, which abundantly establish that which is a common and well known proposition, that where a debt is secured by a surety, it is the business of the creditor, when he has security available for the payment and satisfaction of the debt, to do whatever is necessary to make that security properly available. He is bound, if the surety voluntarily proposes to pay the debt, to make over to the surety what securities he holds in respect of that debt, so that, being satisfied himself, he shall enable the surety to realise the securities and recoup himself the amount of the debt which he has had to pay. That is now a well known proposition. Here, by registering the bill of sale, and by afterwards availing themselves of the power which they possessed to take possession, the plaintiffs might have secured the payment of the debt to themselves, or by protecting the securities and holding them in their hands they could have made them over to the surety when the surety was willing, or was called on, to pay; but by omitting to do what was necessary to place themselves in that position, and by allowing bankruptcy to supervene so as to enable the trustee under the bankruptcy to take possession of these goods adversely, it is clear they have placed the surety in a possession very detrimental and prejudicial to the surety; and for that the surety ought to have, according to the general doctrine, a remedy. …then it is said, granted that at the end of the time when the interest had accrued the surety was liable both for principal and interest, and the principal and interest together amounted to £307.10, although the surety is entitled to say to the creditors, "I am entitled to either have such security as you have made available for this debt, or I am entitled to set off the amount against what I owe you under my agreement to indemnify you against loss in respect of this debt", yet he can only say it to the extent of the value of the security itself." 129 Hannen & Quain JJ agreed in the result, and gave reasons not inconsistent with those I have just quoted. 130 As well as there being unanimity in the remedy which decided cases have allowed, when a creditor has prejudiced a security, there are reasons of principle why the appropriate remedy for equity to offer, when a guarantor is prejudiced through loss of a security which the creditor had, is to reduce the guarantor's liability by the value of the security which has been lost. It is a fundamental principle that (absent some contractual stipulation to the contrary) a guarantee is a secondary liability. While a creditor who has the benefit of a guarantee is free, if he chooses, to sue the guarantor rather than to sue the principal debtor, if the creditor takes that choice the guarantor will be given a remedy by equity, of subrogation to the rights which the creditor had against the principal debtor. What is driving equity here is that, while the creditor is free to choose which of the means of recovering his debt he will adopt, his choice ought not determine where the loss ultimately lies, as between the guarantor and the principal debtor. It is for this reason that the surety is entitled, upon payment of the guaranteed debt, to be subrogated to any securities which the creditor had for that payment. 131 If the creditor has, through neglect, caused a security to be lost or impaired, the value of the guarantor's right of subrogation is correspondingly diminished. In other words, equity's capacity to ensure that the arbitrary choice of the creditor about from whom he seeks recovery, does not decide where the loss ultimately falls, is diminished. There then arises an equity between the creditor and the guarantor - because, as a result of the creditor's neglect, in losing or impairing a security, equity's ability to ensure that the arbitrary choice of the creditor about whom to sue does not decide where the loss ultimately falls has been diminished, equity decides that the ability of the creditor to enforce the guarantee must be correspondingly diminished. When all that is driving equity in this area is ensuring that a guarantor does not suffer in consequence of the arbitrary decision of a creditor about who to sue first, the area of equity's concern, the scope of the purpose which the equitable obligation is aiming to achieve, is fully satisfied if a remedy is provided which reduces the guarantor's liability by the value of the security which has been lost. Equity does not, in this situation, adopt an approach analogous to that of the common law of negligence, of saying, "has there been a breach of duty, and if so what (subject to questions of remoteness of damages) are its consequences?" Rather, equity gives a remedy which will fulfil the purpose for which the equitable duty was held to exist in the first place. 132 The equitable duty comes to be enforced at the time that the guarantee is sued on. It is at that time that the equity court enquires whether the creditor once had a security from which it could have satisfied the debtor's obligation (in whole or part) and whether that security has been lost through the negligence of the creditor. If that situation exists, that is enough to give rise to the equitable defence. 133 It may be that, once it is shown that a security has been lost through the creditor's negligence, the creditor is able to show that this loss of security has not prejudiced the guarantor. This would be the case if the creditor showed that, notwithstanding the loss of one security, there remained ample security, that the guarantor could be subrogated to, which would discharge the entire debt, or if the creditor showed that the debtor had ample means to meet a judgment on the implied right of indemnity which the debtor owes to the guarantor, and that no practical obstacle lay in the path of enforcing that right of indemnity. In that situation the loss of the security does not call for a reduction in the liability of the guarantor. However, in the present case, Mr Brueckner has not undertaken the task of showing that the Brosters have not been prejudiced by the loss of the security. 134 Applying those principles in the present case, Mr and Ms Broster are entitled to have their liability under the guarantee reduced by $275,000. 135 As this is Mr Broster's only defence, it follows that judgment will be entered against Mr Broster for the amount of damages I have found appropriate to Satellite Ultimo ($579,000), minus $275,000. Thus there will be a judgment against Mr Broster in the sum of $304,000. Section 94 interest will also be allowed on that judgment from the end of April 2000 to the date of making orders pursuant to this judgment. 136 Ms Broster has additional defences, and to these I now turn. Ms Broster's Defences - Failure to Disclose Unusual Features of Transaction 137 This is a transaction which was unusual in several important ways. The full purchase price was paid as a deposit, not the usual 10% of the purchase price. That deposit was released to the vendor, not held by a stakeholder and invested. Mr Brueckner understood that Satellite Ultimo was free to use the money "for whatever purpose". He was told that it was to be used for marketing the units, but did not make any enquiries as to how it was to be used in that way, and did not have the benefit of any legal obligation that it would be used in that way. The time between exchange and completion was likely to be a very long one - see paragraph 12 above. The restriction on the right to caveat contained in special condition 5, while it might not have been unusual for units being purchased off the plan, was unusual for property sales generally. The list price of the two units was, in total, $544,000, yet Mr Brueckner was being sold the units for $275,000 - that is, the units were being sold to him for, in round terms, half the listed price. This was done at a time when contracts were being exchanged for other units in the development at prices equal to, or close to, the list price. 138 The guarantee came to be included in the contract because Mr Brueckner insisted on having a guarantee from the directors and from Mr Broster. On 23 July 1997, Mr Dockrill sent to Mr Pappas a draft of a guarantee agreement. That guarantee was in the form of the guarantee agreement ultimately signed, save only that it made provision for being executed by Mr Fisher and Ms Broster alone. Mr Fisher and Ms Broster were the only directors of Satellite Ultimo. 139 On 24 July 1997 Mr Brueckner instructed Mr Pappas that he also required a guarantee from Mr Broster (who was the company secretary, and actively involved in the development). This was so notwithstanding that on 15 July Mr Brueckner had told Mr Pappas that Mr Broster, "owns nothing". 140 On 25 July 1997, Mr Dockrill sent to Mr Pappas a fax which enclosed a copy of a signed guarantee agreement. That signed guarantee agreement was executed by Mr Fisher and Mr Broster. The provision, in the draft guarantee, for Ms Broster to sign had been crossed out, and Mr Broster's name had been inserted in handwriting. A fax transmission header shows that copy of the signed guarantee agreement to have been sent at 3.15pm. However, I am not prepared to place any reliance on this timing. Exhibit 4D5 is a fax sent by Day Dockrill on 23 July, the fax transmission heading of which shows it as being sent at 3.49pm, while a "facsimile sent" stamp, which has been completed in handwriting, shows it as having been sent at 10.30. If the timer on Day Dockrill's fax was inaccurately set on 23 July, it might have been inaccurately set on 25 July also. 141 On 25 July 1997 Mr Brueckner sent a fax to Mr Pappas saying: "Talked with J Broster this morning and he agreed to add his guarantee to the existing two in order to go ahead with the deal. Please release my cheque to the Satellite Group, once you have J Broster's original personal (or directors) guarantee on hand." 142 Ms Broster's signature on the original of the guarantee appears to be witnessed by Martin Keene. 143 The original of the two guarantees which Ms Broster signed, was in evidence before me. At least three different pens were used in the execution of that document. The signatures of Mr Fisher and Mr Broster appear to be in one pen. An attestation clause reading, "signed by Suzanna Mary Broster in the presence of" appears to be in a darkish blue pen. The signature of Mr Keene, the words "Martin Keene witness", underneath Mr Keene's signature, and the words "Suzanna Mary Broster" underneath Ms Broster's signature appear to be in a lighter blue pen. Ms Broster's signature is in a black pen which (judging just by visual observation) might possibly be the same pen as Mr Fisher and Mr Broster used. However, from the fact that at some stage on 25 July 1997 Mr Dockrill had sent to Mr Pappas a copy of the guarantee executed only by Mr Fisher and Mr Broster, it is clear that the signature of Ms Broster was placed on the document at a different time to that when Mr Fisher and Mr Broster signed. 144 Ms Broster has not only placed her signature on each guarantee, she has also initialled it in three different places, where there had been crossing out of some of the typewritten text, and handwritten insertions into the text. 145 Mr Keene is a man who had introduced Mr Brueckner to the property, and was entitled to a commission on a successful sale of the units which Mr Brueckner purchased. Mr Brueckner gave this evidence about Mr Keene: "Q. Is this the only property with which you have dealt with Martin Keen? A. No, we have afterwards become - I can't say friends, but definitely met on a regular - fairly regular basis, perhaps once a month, every two months where we discuss various other opportunities, business opportunities. Q. And you continue to have those dealings with him, do you? A. Not anymore, no. Q. But so far as you know, he is alive and well? A. Yes, definitely. Q. Living in Sydney? A. Yes." 146 Ms Broster gives evidence: "I cannot recall having executed the Guarantees, nor do I recall having done so in the presence of a person called Martin Keene. I do not recall ever having met a Martin Keene. I do not recall being given an explanation about the nature of the transaction that was being guaranteed. Nor do I recall being given a copy of the Guarantees after signing them." 147 I accept that evidence. 148 Mr Broster gives evidence that on 25 July he and Mr Fisher went to the office of Mr Dockrill. Mr Dockrill told him that the purchaser wanted his wife's signature as well, and handed him the contract. Mr Broster gives evidence that Ms Broster had no involvement with the company, or with the Ultimo project. He knew that a special discount offer had been made to Mr Brueckner in relation to the two units, but so far as he was aware Ms Broster had not been consulted about it. 149 Mr Broster calls his wife "Soo". He gives evidence: "I then telephoned my wife on the walk back to our offices, using my mobile telephone and we had a conversation to the following effect: I said: "I have a sales contract for you to sign - it's for our Ultimo development. We have one buyer who wants to buy two units". I remember her sounding very busy and agitated on the telephone. Soo said: "I'm stressed and I'm busy, I'm late in picking up the children from day care - can't you sign it for me or bring it home for me to sign tonight". I said: "No I can not - they want your signature as well as mine - can't you not help, we need the pre-sale, you know that. The buyer is going overseas tonight and wants to exchange before going away. I'm getting hassled by Greg for not getting enough pre-sales and we need a certain amount sold before construction can start. What if I jump in a car right now". Soo said: "But I'm already late for the children". I said: "Look, there aren't that many purchasers out there who are willing to buy two units, my job is hard enough as it is in marketing these units - can you just wait ten minutes please". Soo said: "I will wait ten minutes only, then I'm going to collect the children and not a second longer". I got into a car and took the page she just had to sign and rushed from North Sydney to Beauty Point where we lived. I cannot remember if Martin Keene came with me and cannot remember if I brought the rest of the contract with me. I believe that the page, which Soo signed, was at the time not affixed to the bulk of the contract. I remember meeting Soo just as she was getting ready to leave the house with her car keys in her hand. She seemed impatient and angry. We had a conversation to the following effect: Soo said: "You're lucky to catch me because I was just about to leave to collect the children, can't this wait? I just do not have time for this now, Jonathan." I said: "No, we need to pre-sell as many units as we can in Ultimo and we have a purchaser who is buying two apartments - so please don't be difficult, just sign and I will get out of your hair". Soo said: "Fine - now I'm going to be late for the kids, I just hope it was worth it. Next time give me some more warning". I said: "I'll try but these things are never up to me". Soo said: "Well that's your problem, don't make it mine". Soo then signed at the places I pointed out to her and she then jumped into her car and drove off to collect the children from day care in Mosman. I remember that she did not read the document she signed and I do not believe I showed her the remaining bulk of the contract. I do not remember if Martin Keene was with me when Soo signed the piece of paper. He may have been in the car with me when I drove to the house. I then got back into the car and returned to the office. I have not seen or spoken to Martin Keene for several years. I do not remember having any further discussions with Soo about the guarantee prior to the service of a demand in relation to that guarantee in about October 2001. I do not recall having a discussion at any time with Soo about the commercial viability of this project or any of the commercial matters concerning this project at any time." 150 I accept that Ms Broster did not have any of the unusual features of the contract, which I have earlier listed in paragraph 137 above, explained to her before she signed. Nor did she know about any of those unusual features through some means other than being provided with an explanation. 151 In Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668 Clarke JA (with whom Handley JA agreed) said, at 688: "…a duty to disclose would arise only where there existed facts the non disclosure of which would effectively misrepresent material aspects of the transaction which the guarantor was undertaking to guarantee. Thus, in Goodwin , Barwick CJ spoke of the duty to disclose anything which has taken place between the creditor and the debtor "which was not naturally to be expected in the transaction". The failure to disclose circumstances which would not naturally be expected in the transaction would represent to the guarantor that no such circumstances existed."

And at 689: "…the rule concerning contracts of guarantee…requires disclosure of facts only if concealment of those facts would otherwise misrepresent the transaction which the guarantor is undertaking to guarantee. In general, it would only be the non-disclosure of those circumstances which were not naturally to be expected which would misrepresent the material features of that transaction… The importance of explaining the principle governing disclosure in contracts of guarantee in terms of misrepresentation is that it directs attention to the misleading effect of the creditor's concealment of the relevant facts. No matter how material particular facts may be, as a general rule, there will be no obligation to disclose them unless silence on the part of the creditor implies that those facts do not exist. That poses a relatively straightforward objective test which is, in my opinion, to be preferred to a subjective test which simply enquires whether there are some unusual features in the particular case. Additionally it focuses attention on the important consideration that the actual remedy for the "non disclosure" is rescission of the guarantee. Thus it makes plain that near non-disclosure in breach of the special rule will not of itself be sufficient to avoid the guarantee, rather, general equitable principles governing rescission will apply once the representation is found to have been made." 152 Thus, if Ms Broster is to succeed on this ground, she must establish not only that there were unusual features of the present transaction, but also that Mr Brueckner's silence amounted to a representation to her that those unusual features did not exist. 153 Mr Brueckner had never met Ms Broster before she signed the guarantees. He had met Mr Broster once or twice, concerning this transaction. While Mr Brueckner could not remember what had been said in his meeting or meetings with Mr Broster, Mr Brueckner at least realised that Mr Broster was an officer of Satellite Group, and therefore able to speak to him more authoritatively than Mr Keene could. 154 After the conversation in which Mr Brueckner told Mr Pappas that Mr Broster "owns nothing", Mr Pappas caused a search to be made, that revealed that Ms Broster had assets. Mr Brueckner left to Mr Pappas the obtaining of a guarantee from Ms Broster. Mr Pappas in turn left it to Mr Dockrill, who in turn left it to Mr Broster. Mr Brueckner was aware that Mr Broster was not a director of Satellite Ultimo. He was not aware of any involvement, on Ms Broster's part, in the affairs of the Satellite Group. He gave evidence: "Q. So far as you are aware Mrs Broster could have had no involvement in the day-to-day running of the business and affairs of the Satellite Group, is that correct? A. It could have been the case. Q. And you were quite indifferent to what role she played in relation to this company, do you agree with that? A. I don't know what her involvement in the company was or was not. I knew she was a Director. Q. So far as you were concerned if you had her signature on a guarantee that was all that mattered to you, correct? A. No, not correct. Q. But you made no effort to find out what, if any, role she played in the running of the business and affairs of this company, did you? A. I made no effort except I knew she had a Director position as such of the organisation. Q. And as far as you were concerned that was all you needed to know, correct? A. About Mrs Fisher? Q. About Mrs Broster. A. Sorry, Mrs Broster, yes, that I deemed such information at the time, correct." 155 Mr Brueckner also gave the following evidence: "Q. Did you ever make any inquiries to find out as to the time at which each of the guarantors executed the guarantee? A. I don't think so. Q. Did you make any inquiries as to the circumstances in which any of the guarantors executed the guarantee? A. Sir what do you mean by "circumstances"? Q. Well, the physical place where they executed the guarantee, did you make any inquiries about that? A. No, definitely not. Q. Did you make any inquiries as to who was present when any of the three - Mr Fisher, Mr Broster or Mrs Broster - executed the guarantees? A. No, I did not. Q. Did you make any inquiries as to what was told to any of those three people at the time they executed the guarantees? A. No, I did not. Q. Did you make any inquiries to find out whether Mrs Broster in particular knew about the unusual nature of this transaction? A. No, I did not. Q. Did you make any inquiries to find out whether she was aware 100 percent of the purchase moneys were being released to you at the time of the exchange? A. No. Q. Did you make any inquiries to find out whether she knew you were getting two units for the price of one? A. Of course not, I never met her. Q. And you made no inquiries to find out what she was told or might have known about the transaction. A. No, I'm not aware of that. Q. And you were completely indifferent, I suggest to you, as to what Mrs Broster's state of knowledge was at the time she executed her guarantee, what do you say about that? A. Your question is if I knew that she did not know or what is your question, sir? Q. You were completely indifferent, you didn't care what Mrs Broster knew or didn't know about this transaction in respect of which she was giving a guarantee, what do you say about that? A. I didn't pay attention to that, no. I don't know, I wouldn't say that I didn't care about it. Q. But you didn't pay sufficient attention to determine what it was she knew or didn't know? A. That is correct." 156 In all these circumstances, in my view the silence of Mr Brueckner amounted to a representation to Ms Broster that the unusual features of this transaction did not exist. 157 Ms Broster gave evidence: "If I had been made fully aware of the consequences of signing a guarantee by someone other than Jonathan, and how it meant I could lose my house and be made bankrupt then I would not have signed any guarantees." 158 I accept that evidence. It does not, of itself, lead to a conclusion that, if Mr Brueckner had taken steps to ensure that she had the unusual features of the transaction explained to her, she would have refused to sign the guarantees. Indeed, her case is inconsistent with any such proposition. She gives evidence that in 1997: "…I felt totally dependent upon Jonathan financially and emotionally. If I had been asked in 1997 to sign the Guarantees by him, I would have done so without questioning his judgment because my health my marriage and my children were vulnerable if any conflict were to arise between us." 159 As I understand Ms Broster's evidence, even if the unusual features of this transaction had been explained to her by Mr Brueckner, or by someone on Mr Brueckner's behalf, she would still have signed the guarantee if Mr Broster had asked her to do so. While she says that she would not have signed the guarantee if she had been made aware of the consequences of signing the guarantee by someone other than Mr Broster, that evidence does not address the question of what she would have done if she had merely been told facts about the transaction of sale between Satellite Ultimo and Mr Brueckner. 160 The result is that, while, on balance, I have come to the view that there was a misrepresentation about unusual features of the transaction by Mr Brueckner, it was not such as to justify Ms Broster in rescinding the guarantee. Hence, this defence of Ms Broster fails. Ms Broster's Defence - Garcia v National Australia Bank 161 Mr Broster had become bankrupt on 27 March 1996. He was discharged from bankruptcy on 28 March 1999. 162 In about February 1997 he became involved in selling of the apartments proposed to be built by Satellite Ultimo. He told Ms Broster that he and Mr Fisher were going to set up a company for that development, that there was a problem in their doing so because he was a bankrupt and could not hold a position of director, and that she would have to be the director. Ms Broster told him that she did not know anything about being a director. He told her she did not need to, that he would be doing all of the work, and she would be a director on paper only. 163 Ms Broster felt at the time that she had no choice. As she understood it, Mr Broster's bankruptcy meant that he could not be employed by other people, the Ultimo project was one which Mr Broster really wanted to be involved in, and if she did not agree then Mr Broster would miss the opportunity to move forward. 164 Ms Broster gives evidence that she recalls a number of conversations with Mr Broster during the time he was involved with Satellite, which usually occurred when she was asked to sign documents. She says they were to the following effect: "Although I wanted to be a supportive wife, I do not like taking risks and am not a risk taker by nature. I recall a number of conversations with Jonathan during the period in which he was involved with Satellite, about his dealings with Fisher, which usually occurred when I was asked to sign documents. These conversations included words being said to the following effect: He said: "I need you to sign these documents" I said: "Why me" He said: "You're the legal owner of the house" I said: "I don't want to lose the house." He said: "Don't worry about that, there is no risk that you'll lose the house"" 165 By July 2000 the Satellite Companies had collapsed. Ms Broster was provided soon after, by ASIC, with a copy of a "personal name extract" search which showed that she was the director of 21 companies in total. Notwithstanding that Mr Broster came out of bankruptcy in March 1999, she had taken no steps to have herself removed as a director of these companies. To my mind that is a significant indicator of her commercial naivety. 166 Notwithstanding that she was, according to the company records, a director, Ms Broster never attended the offices from where any of the Satellite Group companies conducted their business, except on a few occasions when she would take the children in to see Mr Broster. She never received notices of meetings of the Board, or of general meetings, or of any of the Satellite Group of companies of which she was a director. She was never a signatory on the cheque accounts of any of the Satellite Group of companies, and was never consulted by anyone about any business matters relating to the Satellite Group of companies. 167 Ms Broster was born in England in September 1965. Hence, at the time she signed the guarantees on which she is sued, she was 31 years old. 168 Ms Broster was educated in England. At school she concentrated on science subjects. After leaving school, she did an intensive course in touch typing, then spent a year doing a variety of different types of work, none of which seem likely to have provided her with significant experience about financial matters. In July 1987 she graduated from Reading University with an honours degree in science. She obtained various jobs after leaving university, again none of which were likely to provide her with financial experience. 169 She had met Mr Broster at university. In July 1989 she moved to Sydney, because Mr Broster had come here. Once in Sydney, she did a course in computer programming. She also did a course in Unit Trust Administration Management, at the Securities Institute of Australia. This latter course was one which she did at the request of her employer, because she was then doing computer programming work connected with unit trusts. 170 She married Mr Broster in June 1991. After the marriage, she continued working as a computer programmer. Around March 1993 she was interviewed for a contract position as an analyst programmer at TAFE, St Leonards. She was offered the position, and was told that, because it was a contract position, she would need to either go through an agency or have her own company. She purchased a shelf company after seeking advice from her husband about which of the two alternatives which TAFE gave her, she should adopt. She was the sole director of that company. The company carried out no activities other than being the means by which she could carry out computer programming work for TAFE. Her accountant prepared an annual return for her each year, which she signed. 171 When Mr and Ms Broster first came to Sydney, they rented accommodation. In January 1991 they purchased a house in Murdoch Street Neutral Bay. Mr Broster negotiated the purchase, and organised finance. In May 1994, Mr and Ms Broster had their first child, Tamsin. Following the birth, Ms Broster stopped work for about nine months. 172 Around July 1994, Mr and Ms Broster sold their house in Murdoch Street Neutral Bay, and purchased a house at Pearl Bay Avenue, Beauty Point. This house was purchased in the name of Ms Broster alone. This course was adopted because "Jonathan said that's how it had to be done." Mr Broster made all of the arrangements concerning that purchase. 173 About nine months after Tamsin was born, Ms Broster was able to resume work, by working from home on a part-time basis. 174 The Broster's second child, Ben, was born in March 1996. 175 The ASIC records show that it was in December 1996 that Ms Broster became a director of Satellite Ultimo. This followed the conversation which I have earlier recounted. At that time extensive renovations were being done to the house at Pearl Bay Avenue. Ms Broster was heavily involved in the supervision of the renovations. Ben was around nine months old, and was waking frequently at night. Tamsin was around 2 ½ years old. Ms Broster's summary of that time in her life was, "I ran the house; Jonathan was the breadwinner. My concerns were not Jonathan's business ones." 176 The guarantees which are sued on in the present litigation are not the only guarantees which Ms Broster has executed. She now understands that she has executed guarantees for about $25m or more since about 1997. She also says: "It is also now my understanding that I am apparently said to have executed personal guarantees for other companies and individuals also totalling further tens of millions of dollars, possibly close to or exceeding $100 million in all." 177 She gives evidence as follows: "I was never told to seek independent legal advice. I was not aware it was something I should have done. On some occasions when I was signing documents a solicitor was present but I never once organised one of them. There was always urgency in my singing and Jonathan had always told me that if I didn't sign the "deal would not go through". Under my husband's insistence I had no choice but to sign whatever was put in front of me. On each of the occasions that I attended solicitors' offices it was at Jonathan's insistence. He would never explain the reason why I was required to attend and would typically say words to the effect: "You have to go to (name of solicitors) to sign some documents." I was, I think without one exception, given only a few hours notice; no regard was given to the fact I had two young children or the fact that I didn't live or work in the City. I was never asked what times would be suitable or convenient for me. I was simply told when and where. I was never given the documents that I was required to sign beforehand. They were either in the office or with the solicitor that I went to see. They would then remain in the hands of that solicitor. There was often more than one document that I was required to sign. Some times the pile of documents that I was required to sign was substantial. I do recall seeing the word "guarantee" on some of the documents. The solicitors that I went to see were not solicitors appointed by me. I do not know whose solicitors they were - whether they were the Bank's solicitors or the solicitors for the Satellite Group. I did not have any precise understanding of what a guarantee was then, nor did I have any understanding that I should satisfy myself about the business risks involved in giving guarantees beyond the statements made to me by Jonathan to which I have referred above. I had been told by Jonathan that unless I signed on each occasion it would not be possible for a deal to go through and if it didn't we would lose the house. I did not know why or how I could lose the house but I could see no alternative to doing what Jonathan requested me to do. If I had been made fully aware of the consequences of signing a guarantee by someone other than Jonathan, and how it meant I could lose my house and be made bankrupt then I would not have signed any guarantees. After the birth of my second child in March 1996, and Jonathan's bankruptcy, our marriage changed and became more stressful. This stress was accentuated by moving into Pearl Bay Avenue and the disruption caused by the building works at that house. In July 1996 I took the children over to England to be with my family for an extended 2-3 month holiday. Jonathan did not come with us. Upon my return to Australia, the stressful factors remained present. I had no income and did not want to place my children into childcare which precluded me from gaining any meaningful employment at that time. It was not practical either for me to take on work at home with two young children and the house renovations to contend with. In September 1996, I had a recurrence of a back problem which meant that I had to stay flat on my back with a suspected disc problem that caused further disruption in trying to look after the house and care for my children. In these circumstances, I felt totally dependent upon Jonathan financially and emotionally. If I had been asked in 1997 to sign the Guarantees by him, I would have done so without questioning his judgment because my health, my marriage and my children were vulnerable if any conflict were to arise between us." 178 Ms Broster was asked (concerning the time when she did the course in unit trust administration management) "Q. The time you did this course did you know what a guarantee was? A. I don't believe so. Q. You ever heard the expression 'guarantee'? A. I have used it, used as a common English word. Q. Guarantee this or that, in that sense? A. Yes. Q. Did you know that people in commerce from time to time signed guarantees. That's a document which is a guarantee? A. At that point in time I don't think I did, no."

179 Ms Broster was asked: "Q. Whether you [were] advised about the obligations you had under the guarantee? A. I don't recall really ever being advised about anything that I signed, so the answer to that would be no. Q. Never? A. No. Q. Not ever by a bank officer? A. Not that I recall. Q. Or a solicitor? A. No." 180 Counsel for Mr Brueckner put to Ms Broster the substance of the evidence which Mr Broster gave about the circumstances of Mr Broster executing the guarantees which are sued on (see paragraph 149 above). The gist of her evidence on that topic was that she did not remember what had happened, she was confident she would not have asked Mr Broster to sign the form for her, but that otherwise the account given by Mr Broster may have happened. 181 Mr Broster gives evidence that Ms Broster had signed four guarantees in the presence of a solicitor perhaps six months before the guarantees now sued on. Those were guarantees relating to the purchase arrangements for the purchase of the Ultimo property. That solicitor, however, was acting for the Satellite Group at the time. Mr Broster does not recollect if he was with her at the time she signed those guarantees, or whether he was in another room with the children. He says that he does not recall the solicitor explaining to her the meaning of the guarantee, or her obligations under it. Mr Broster did not himself ever explain to Ms Broster what was involved in a guarantee. 182 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 concerned a case where there was no actual undue influence by a husband over his wife leading to the execution of a guarantee. Justices Gaudron, McHugh, Gummow and Hayne explained (at 406-7) that in Yerkey v Jones (1939) 63 CLR 649 Dixon J: "…was dealing with two kinds of case. In the former, the case of actual undue influence…explaining the effect of the document to the surety will not protect the creditor and "[n]othing but independent advice or relief from the ascendancy of her husband over her judgment and will would suffice". In the latter "[i]f the creditor takes adequate steps to inform [the wife] and reasonably supposes that she has an adequate comprehension of the obligation she has undertaking and an understanding of the effect of the transaction, the fact that she has failed to grasp some material part of the document, or indeed, the significance of what she is doing" cannot give her an equity to set the instrument aside." 183 Their Honours continued, at 408-409: "The principles applied in Yerkey v Jones do not depend on the creditor having, at the time the guarantee is given, notice of some unconscionable dealing between the husband as borrower and the wife as surety. Yerkey v Jones begins with the recognition that the surety is a volunteer: a person who obtains no financial benefit from the transaction, performance of the obligations of which she agreed to guarantee. It holds, in what we have called the first kind of case, that to enforce that voluntary transaction against her when in fact she did not bring a free will to its execution would be unconscionable. It holds further, in the second kind of case, that to enforce it against her if it later emerges that she did not understand the purport and effect of transaction of suretyship would be unconscionable (even though she is a willing party to it) if the lender took no steps itself to explain its purport and effect to her or did not reasonably believe that its purport and effect had been explained to her by a competent, independent and disinterested stranger. And what makes it unconscionable to enforce it in the second kind of case is the combination of circumstances that: (a) in fact the surety did not understand the purport and effect of the transaction; (b) the transaction was voluntary (in the sense that the surety obtained no gain from the contract the performance of which was guaranteed); (c) the lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore to have understood that the husband may not fully and accurately explain the purport and effect of the transaction to his wife; and yet (d) the lender did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her." 184 I will consider the four factors listed in Garcia seriatim. 185 The first requirement is that Ms Broster did not understand the purport and effect of the transaction. That she had the limited understanding of what a "guarantee" is which she admitted in cross-examination does not mean that she understood the particular transactions that she entered into, by executing these particular guarantees. In State Bank of New South Wales v Chia (2000) 50 NSWLR 587, at 600 Einstein J said: "An understanding of the "purport and effect" of the transaction includes, at least, an understanding of the fact of liability, the general extent of liability, and the possible consequences of default: Yerkey v Jones (at 689). However it is not productive of an equity that the wife misunderstood or failed to appreciate the degree of risk associated in the transaction, or the improvidence or unwisdom of the uses to which the money so secured will be put: Yerkey v Jones (at 686). Further the wife's misapprehension must be of a material matter: Bank of Victoria Ltd v Mueller (at 648); that is, material to the liability the creditor wishes to impose upon the wife." 186 Ms Broster did not understand the purport and effect of guaranteeing Mr Brueckner's two contracts of purchase. She knew nothing about the financial arrangements under which the building was to be erected. Indeed, at the time the contracts were entered into, Satellite Ultimo had not obtained finance for the building project. She knew nothing about the circumstances in which Mr Brueckner would be able to sue Satellite Ultimo, or the types of damage he might be able to recover from Satellite Ultimo. She did not understand that signing this guarantee could have the consequence that she could lose her house and be made bankrupt. 187 The account which Mr Broster gives of the circumstances in which she executed the guarantee, the broad outlines of which I accept, were not such as to inform her that the document that she was signing was a guarantee at all. Rather, Mr Broster told her that he had a sales contract for her to sign relating to two units. I accept Mr Broster's evidence that she did not read the document she signed. Ms Broster was not cross-examined to suggest to her that she must have seen the heading "Guarantee Agreement" on the page she signed. The alleged witness to her signature, Mr Keene, was not called as a witness. 188 In all these circumstances I am satisfied that Ms Broster did not understand the purport and effect of the transaction. 189 This transaction was a voluntary one, so far as Ms Broster is concerned. It is true that she was a director of Satellite Ultimo, but she was a director in name only. The shareholding in Satellite Ultimo was held, as to 50%, by a company called Sojo (NSW) Pty Ltd. That company is a company whose name is derived from the respective first names Ms and Mr Broster, and is one of the 21 companies of which Ms Broster is shown in the ASIC records as having been a director. However, the evidence does not establish how the shares in Sojo (NSW) Pty Ltd are held. 190 In State Bank of NSW v Chia, at 601, Einstein J said: "The second requirement is that the wife is a volunteer. It is not sufficient that the wife has received consideration as would be recognised in the law of contract: Bank of Victoria Ltd v Mueller (at 649). The consideration for the guarantee must be of "real benefit" to the wife: Garcia (at 412). Incidental benefit which accrues generally to the family of which the wife is a member is not sufficient benefit to render a transaction which does not otherwise contain a "real benefit", non-voluntary: Armstrong v Commonwealth Bank of Australia (1999) 9 BPR 17,035; [2000] ANZ ConvR 470; Cranfield Pty Ltd v Commonwealth Bank of Australia (Supreme Court of Victoria, Mandie J, 20 November 1998, unreported). Where the wife expects to reap direct profit from the transaction, the transaction cannot be said to be voluntary: State Bank of New South Wales Ltd v Vecchio (Kirby J, 10 November 1998, unreported). Neither can it be said to be voluntary where the monies secured by the guarantee are used to purchase an asset in which the wife is equally interested with her husband: Commonwealth Bank of Australia v Khouri (Supreme Court of Victoria, Harper J, 4 November 1998, unreported). However, where the interest of the wife is a shareholding in the company through which her husband conducted his business and in which she has no real involvement, then a guarantee given by the wife over that company's debts will be voluntary: Commonwealth Bank of Australia v Khouri (supra) But where the wife has an active and substantial interest in the conduct of, and the fortunes of, the business run by her husband, she will not be a volunteer in relation to any guarantee over the debts of that business: Radin v Commonwealth Bank of Australia (Federal Court of Australia, Lindgren J, 23 October 1998, unreported). Where the transaction is not ex facie for the benefit of the wife, then the onus will lie on the party seeking to enforce the security to show that the wife was not, relevantly, a volunteer: Warburton v Whiteley [1989] NSW ConvR ¶55-453 at 58,288; (1989) 5 BPR 11,628 at 11,634, per McHugh JA." 191 Since the decision in State Bank of NSW v Chia was delivered, the Victorian Court of Appeal has affirmed the decision of Harper J in Commonwealth Bank of Australia v Khouri. The Victorian Court of Appeal's decision is Commonwealth Bank of Australia v Horkings [2000] VSCA 244. In that case, Winneke P (with whom Phillips and Buchanan JJA agreed) said, at [55]: "…his Honour found that the respondent was, relatively, a "volunteer" to the transaction because, although she was a director of the company, it was a business run by and under the control of her husband and in which she took no active interest. She was, as his Honour said, "preoccupied with raising her three children" and that "any benefit [she] gained from MBG came to [her] not as of right, but as the result of discretion by Mr Khouri." Each of these findings was open to his Honour on the evidence. I agree with the submission made by counsel for the respondent that his Honour was entitled to find, and was correct in finding that, in relation to the MBG transaction, the respondent was a volunteer, and that the facts, as his Honour found them to be were - to all intents and purposes - indistinguishable from the facts found in Garcia's case." 192 Save for the names of the parties, and the fact that the Brosters had two children, rather than three, the factual finding of the trial judge in that case is equally applicable in the present case. Likewise is the conclusion that, in consequence, the wife was not a volunteer in relation to the guarantee transaction. 193 Mr Brueckner understood that Ms Broster was the wife of Mr Broster. That is all that is needed to make out the third element in Garcia. 194 It is clear beyond argument that Mr Brueckner did not take steps to explain the transaction to Ms Broster, or find out that a stranger had explained it to her. Thus, the fourth element in Garcia is also established. 195 In these circumstances, Ms Broster has succeeded in making out the Garcia defence. That defence relieves her from all liability under the guarantee. Ms Broster's Defences - Undue Influence 196 There is no presumption of undue influence between husband and wife - see the authorities collected in Meagher, Gummow & Lehane, Equity Doctrines and Remedies, 3rd ed., para [1517]. 197 The guarantees sued on in this case were procured by the undue influence of Mr Broster over his wife. From her qualifications, and also from the way in which she presented in the witness box, she is clearly a woman of above average intelligence. However, her experience of business matters is limited. The business transactions that she would have needed to engage in to carry out her work as a computer programmer were comparatively simple. So far as the acquisition of the two homes she has owed are concerned, she relied on her husband to deal with all financial matters. The circumstances in which she agreed to become a director of Satellite Ultimo are ones where she had no real choice about becoming a director, and no real understanding of the significance of the role she was undertaking. 198 The circumstances in which she executed the guarantees - where she had two young children, had no income, could obtain income only on conditions which she regarded as unacceptable (namely, placing her children into childcare), was contending with two young children and house renovations, and experiencing some stress in her marriage - were ones which led to her executing the guarantees under his influence. 199 In Yerkey v Jones (1939) 63 CLR 649 at 584, Dixon J, in a passage quoted with approval by Gaudron, McHugh, Gummow and Hayne JJ in Garcia at 405, said: "…it is clearly necessary to distinguish between, on the one hand, cases in which a wife, alive to the nature and effect of the obligation she is undertaking, is procured to become her husband's surety by the exertion by him upon her of undue influence, affirmatively established, and on the other hand, cases where she does not understand the effect of the document or the nature of transaction of suretyship. In the former case the fact that the creditor, on the occasion, for example, on the actual execution of the instrument, deals directly with the wife and explains the effect of the document to her will not protect him. Nothing but independent advice or relief from the ascendency of her husband over her judgment and will would suffice. If the creditor has left it to the husband to obtain his wife's consent to become surety and no more is done independently of the husband than to ascertain that she understands what she is doing, then, if it turns out she is in fact acting under the undue influence of her husband, it seems that the transaction will be voidable at her instance as against the creditor." 200 Dixon J is not here saying that the only circumstance in which a transaction will be voidable because of undue influence is when the wife is alive to the nature and effect of the obligation she is undertaking. There is nothing to stop a transaction being entered into under undue influence where the wife also does not understand the nature and effect of the obligation she is undertaking. That is, in my view, the situation which exists here. 201 The present case is also one where the effect of that undue influence between Mr and Ms Broster can be brought home to Mr Brueckner. Yerkey v Jones was concerned with a wife who guaranteed her husband's debt, and it was in that context that Dixon J made the remark I have just quoted about what happens "if the creditor has left it to the husband to obtain his wife's content to become surety…". Here, Mr Brueckner left it to (at best) Mr Dockrill, the solicitor for Satellite Ultimo, to obtain Ms Broster's consent. 202 In Barclays Bank Plc v O'Brien [1994] 1 AC 180 the House of Lords dealt with a situation where a wife had executed a guarantee because of a misrepresentation by her husband. The wife had, at trial, also opposed the bank's enforcement of the guarantee on the ground of her husband's undue influence, but that ground was not made out at the trial, and was not pursued in the House of Lords (page 187). Lord Browne-Wilkinson (with whom all other of their Lordships who sat in the House of Lords on that case agreed) nonetheless deliberately expressed his judgment in broad terms. At 195, he rejected the notion that wives had any "special equity" in relation to surety transactions. He continued: "A wife who has been induced to stand as a surety for her husband's debts by his undue influence, misrepresentation or some other legal wrong has an equity as against him to set aside that transaction. Under the ordinary principles of equity, her right to set aside that transaction will be enforceable against third parties (eg against a creditor) if either the husband was acting as the third party's agent or the third party had actual or constructive notice of the facts giving rise to her equity. Although there may be cases where, without artificiality, it can properly be held that the husband was acting as the agent of the creditor in procuring the wife to stand as surety, such cases will be of very rare occurrence. The key to the problem is to identify the circumstances in which the creditor will be taken to have had notice of the wife's equity to set aside the transaction." 203 In Garcia, at [39] Gaudron, McHugh, Gummow and Hayne JJ said: "…we prefer not to adopt the analysis made by Lord Browne-Wilkinson in Barclays Bank Plc v O'Brien which proceeded from identifying "the circumstances in which the creditor will be taken to have had notice of the wife's equity to set aside the transaction". Sir Anthony Mason has pointed out that "constructive notice in O'Brien is used in order to ascertain whether a transaction about to be entered into is impeachable, not so as to fix a person who acquires an interest in the property with knowledge for an antecedent interest in property, that being the traditional function of constructive notice". Such an analysis may be required in ordering the priority of competing interest in property but in the present context it may well distract attention from the underlying principle: that the enforcement of the legal rights of the creditor would, in all the circumstances, be unconscionable. We consider that the only question of notice that arises is whether the creditor knew at the time of taking of the guarantee that the surety was then married to the creditor. Other questions of notice do not intrude." (Citations omitted) (I suspect that the word "creditor" where last appearing in this quotation is a typographical error for "debtor" .) 204 While the remarks I have just quoted from the decision in Garcia were directed to the "second kind of case" referred to in Yerkey v Jones (an unconscionable transaction, not involving undue influence), the reason which Sir Anthony Mason has given for why constructive notice is not an appropriate analytical tool to use in this context is equally applicable to the context of undue influence. 205 I propose to decide the question of whether the undue influence of Mr Broster over Ms Broster, concerning the guarantee sued on in this case, can be brought home to Mr Brueckner, by reference to the principle which I have earlier quoted from the judgment of Dixon J in Yerkey v Jones. Applying that principle, the guarantees sued on are voidable at the instance of Ms Broster. That provides a second, independent, ground on which Ms Broster is relieved from liability under the guarantee. Conclusion 206 For reasons I have already given, there will be a judgment against Satellite for $579,000, plus interest from the end of October 2000. There will be a judgment against Mr Broster for $304,000, plus interest from the end of April 2000. The claims against Westpac, and Ms Broster, will be dismissed. Some steps will need to be taken to give effect to Westpac's intention to pay into court any surplus proceeds from the sale of the units. 207 While the total loss of Mr Brueckner is $579,000, it is appropriate for judgment to be entered against Satellite Ultimo for the amount indicated in the previous paragraph, and also against Mr Broster for the amount indicated as appropriate to the judgment against him. Notwithstanding that the total of the judgments so entered is more than the amount of Mr Brueckner's loss, the principles concerning double satisfaction should ensure that he does not actually receive more than the amount of his loss, plus interest (Registrar General v Behn (1981) 148 CLR 563 at 569; Midland Montague Australia Ltd v Harkness (1994) 35 NSWLR 150 at 159; Tang Man Sit v Capacious Investments Ltd [1996] AC 514 at 522; Baxter v Obacelo Pty Ltd (2001) 76 CLJR 114; [2001] HCA 66 at [46]-[47], [56]-[62], [89]). 208 I direct the parties to bring in short minutes of order to give effect to these reasons for judgment. **********

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