The issues in the appeal and its disposition
20 In our opinion, and notwithstanding the many grounds of appeal raised by the appellant and the length of the written submissions he made and supplemented orally, no doubt has been cast on the manner in which the primary judge disposed of each of the causes of action which was pleaded. Subject to the remarks which follow, we proceed on the basis that his Honour's reasons adequately explain why the application was dismissed. Many of the issues raised by the appellant in this appeal concern the question of whether the conduct of Financial Services leading to the amendments to the Deed in 1992 was misleading or deceptive conduct. However, irrespective of how the evidence is to be evaluated, the conclusion of the trial judge concerning causation appears to us to be correct. That is, the appellant, astute to what he believed was the erroneous and flawed approach of Financial Services, was not misled or deceived by the impugned conduct (even assuming it was misleading or deceptive). In addition, nothing has been put to us that suggests the trial judge erred when he indicated, in substance, that the material before him did not establish that unit holders would have voted differently or that the resolution to make the amendments would not have passed. Further, many of the submissions made by the appellant ignore or discount the constraining effect of Division 5A on the redemption or buying back of units in a trust such as the Growth Trust. We refer to this matter in a little more detail shortly.
21 In our opinion, two matters raised during the hearing of the appeal warrant specific attention. The first is the construction and operation of clause 55(1) of the Deed in its amended form and second is the scope of the power to amend the Deed (deriving from the Deed) prior to its amendment in March 1992.
22 It is to be recalled that Division 5A contained several provisions which, in early 1992, limited the effect of provisions in a trust deed of the type in question which may otherwise have authorised or required the redemption or purchase back of units in the trust. Section 1076K of the Law declared that a trust deed (of a trust of the type the Growth Trust was) was to be taken to include provisions dealing with the buy back and redemption of units. Under those entrenched provisions and with certain exceptions which are presently not relevant, the management company or trustee could not, until 12 months after the request had been received, act on a request to buy back or redeem units. Section 1076L contemplated the amendment of an entrenched provision by a special variation proposal: see also ss 1076U and1076T. If such a proposal was passed and also approved by the then Australian Securities Commission, the entrenched provision was taken to have been amended.
23 In the present case the Deed contained in clause 51 (and ignoring for the moment the entrenched provisions deriving from Division 5A) before the amendments made in March 1992, a covenant requiring Financial Services to arrange for the redemption by the trustee of units or their repurchase in response to a written request of a unit holder. One clause introduced by the amendment in March 1992, clause 56, deemed all unit holders to have requested the redemption of the units in accordance with clause 51. Another amendment was made adding a new clause 55. In the opening provisions of that clause the parties agreed to comply with the covenants which s 1069(1) of the Law required to be contained in a deed. That section directed that a deed contain, inter alia, a buy-back covenant. At the conclusion of the new clause 55(1) there was a provision that:
Nothing in this Deed shall derogate from or affect the operation of or limit the interpretation of this covenant.
24 As the trial judge pointed out there was an apparent tension between the opening and concluding words of the new clause 55 (1) and certain of the provisions in the new clause 56. However, we agree with the analysis of the trial judge leading to the conclusion that the new clause 55 was not intended to derogate from the mechanism for the compulsory acquisition of units arising from the amendments embodied in clause 56 and, in particular, clause 55 did not revive the entitlement for the redemption or buying back of units arising under clause 51 (apart from the operation of Division 5A) of the Deed in its unamended form.
25 The second matter we wish to refer to in a little detail concerns that part of the judgment below under the heading "The Scope of the Amendment Power" (pars 67 to 76). Financial Services submitted in this appeal, that his Honour's analysis of the question went far beyond the case articulated by the appellant below. Having examined the pleadings and the written submissions below, we agree. Indeed, it appears that the point was one raised by the judge. There may be a question as to the extent to which cl 38 and cl 43 of the Deed authorised the amendments made in March 1992. However, even if it is open to the appellant to pursue the point, and even if it is good, it does not lead to the monetary relief claimed against the respondent in these proceedings. To lead to either damages or equitable compensation, it would have been necessary to plead a common law duty of care, a relevant breach of it in this respect and damage ensuing, or the participation by the manager in a breach of trust. The only claim for breach of duty of care was held by his Honour to relate to a duty not to engage in misleading and deceptive conduct (par 40 of the judgment) and there is no ground of appeal directed to that aspect of the judgment of the primary judge. As his Honour pointed out in par 18, there is no claim against the trustee or the majority unit holders, and no claim that the redemption of the units was invalid or that the merger was in some way ineffective. The trial judge, having rejected the point on the merits, did not need to examine what the consequences would have been if it had been made good. In our opinion, it is clear that in this case it could not have led to the relief claimed. That being so, there is no need for us to consider the correctness or otherwise of the merits of the point.
26 Furthermore, the point is one which should not have been dealt with in an informal way. If it was to be entertained, it should have been properly raised and the pleadings amended accordingly. Whilst this is generally true, it has special point in this case. If good, the argument would involve effectively finding a breach of trust in relation to a transaction long past which affected the interests of many members of the public and the trustee. If the only relief was money relief against the manager then possibly there would not have been a strict deficiency of parties (as to which we need not come to a final view), but the absence of those parties would point to the necessity of ensuring that the point was properly available to be taken. If raised properly, it would no doubt have raised issues as to possible cross-claims, applications to excuse any breaches of trust, the leading of evidence and so on.
27 We venture to suggest that what happened in relation to this point illustrates one of the difficulties of litigants appearing in person to which we adverted earlier. A judge may feel compelled to ensure that all available points in favour of the litigant in person are taken, even those not taken by the litigant in person, without due regard for the interests of the other party to the litigation and to others who may have interests impinged upon by the litigation. Whilst the problem is masked here because the judge rejected the point on the merits, it does not detract from the unfortunate consequences which would have ensued if he had come to the contrary opinion, and which might have ensued if we had dealt with the merits of the point.
28 We dismiss the appeal and order that the appellant pay the costs of Financial Services.