NSWNSWSC

Charter Financial Planning Ltd v Scott North Pty Ltd

[2026] NSWSC 677

Supreme Court of NSW|2026-06-15|Before: Pike J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-06-15

Before

Pike J

Catchwords

REPRESENTATIVE PROCEEDINGS — settlement of class action — group membership — whether corporate practice was a group member — whether individual director was a group member — effect of settlement deed and s 33ZB orders CONTRACTS — whether corporate practice was party to authorised representative agreement — no signed agreement located — whether signature necessary — contract formation inferred from surrounding circumstances and subsequent conduct — where authorised representative recorded on ASIC register — effect of recitals in later buyback deed PRACTICE AND PROCEDURE — settlements and releases — scope of released claims — whether settlement deed barred later cross claim — distinction between common claims and individuals claims — representative applicant’s authority to release group member claims EQUITY — unconscionable conduct — alleged procurement of releases and restraints in buyback deed — claim for declaratory relief — individual circumstances of group member — Anshun estoppel — whether claims could or should have been raised in class action — opt-out process — no abuse of process

Catchwords

REPRESENTATIVE PROCEEDINGS — settlement of class action — group membership — whether corporate practice was a group member — whether individual director was a group member — effect of settlement deed and s 33ZB orders CONTRACTS — whether corporate practice was party to authorised representative agreement — no signed agreement located — whether signature necessary — contract formation inferred from surrounding circumstances and subsequent conduct — where authorised representative recorded on ASIC register — effect of recitals in later buyback deed PRACTICE AND PROCEDURE — settlements and releases — scope of released claims — whether settlement deed barred later cross claim — distinction between common claims and individuals claims — representative applicant’s authority to release group member claims EQUITY — unconscionable conduct — alleged procurement of releases and restraints in buyback deed — claim for declaratory relief — individual circumstances of group member — Anshun estoppel — whether claims could or should have been raised in class action — opt-out process — no abuse of process

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Charter Financial Planning Ltd v Scott North Pty Ltd [2026] NSWSC 677

Hearing dates: 9, 10 December 2025, 18 and 19 February 2026

Charter Financial Planning Ltd v Scott North Pty Ltd [2026] NSWSC 677 | Case summary | Zoe

Between 1985 and 2021, the first defendant, Scott North Pty Ltd (SNPL) and its sole director the second defendant, Arthur Thomas Scott North (Mr North) operated an independent financial advisory practice as agents or representatives of the second plaintiff, AMP Financial Planning Pty Ltd (AMPFP). Under this arrangement, SNPL were authorised to provide financial services to clients and receive fees and commissions, while AMPFP retained institutional ownership over the clients.
A central feature of this framework was AMPFP’s “Buyer of Last Resort Policy” (BOLR Policy). The BOLR Policy provided a mechanism by which an authorised representative wishing to exit the AMPFP network could require AMPFP to acquire its client register or register rights, subject to the satisfaction of specified conditions. Before August 2019, the BOLR valuation methodology generally provided for the register rights to be valued by applying a 4x multiplier to the relevant ongoing revenue.
To be eligible for this policy, the authorised representative must have a practice which is closing down, the principal must undertake not to compete, and the practice must have, despite reasonable endeavours, been unable to transfer its register rights to another AMP Group practice.
On 30 April 2019, Mr North expressing an intention to retire, caused SNPL to submit a BOLR application to AMPFP. At that time, the parties’ relationship was governed, or at least asserted by AMPFP to be governed, by an Authorised Representative Agreement (ARA), associated Master Terms, and the BOLR Policy.
On 8 August 2019, AMPFP amended the valuation methodology under the BOLR Policy. The amendment reduced the multiplier from 4x to 2.5x in respect of outgoing revenue (the August 2019 changes). The validity and effect of those changes became the subject of substantial litigation, including the Federal Court Class Action referred to below.
On 26 October 2021, SNPL, Mr North and AMPFP entered into a Buyback and Settlement Deed (B****uyback Deed) by which SNPL agreed to surrender rights to its client register to AMPFP in consideration for payment by AMPFP to SNPL of in excess of $1 million. The Buyback Deed also included a number of restraints which prevented Mr North and SNPL from engaging in certain financial activity, soliciting or approaching clients, or sharing client information. AMPFP has paid to SNPL and Mr North a large part, but not all, of the consideration under the Buyback Deed, namely $840,108.
When AMPFP acquired a client register under the BOLR policy, it endeavoured to simultaneously on-sell it to another practice or otherwise allocate it internally to employed advisers. Accordingly, on 5 November 2021, the same day as the completion of the Buyback Deed, AMPFP on-sold the client register to the first plaintiff, Charter Financial Planning Ptd Ltd (Charter). Charter paid a substantial sum to AMPFP for those rights. Charter in turn sold those rights to Partners Wealth Group who has not paid Charter.
However, by 8 November 2021, Mr North had become an authorised representative of Radford Allen Financial Services Pty Ltd, through which he accepted former clients under this new practice. Consequently, Charter and AMPFP (together the p****laintiffs) commenced these proceedings in 2023 against Mr North and SNPL (together the defendants) in respect of breaches of the Buyback Deed. Charter seeks damages for misleading or deceptive conduct and AMPFP seeks to enforce the restraints in the Buyback Deed.
SNPL and Mr North do not dispute the contentions that the restraints in cl 13 of the Buyback Deed have been breached. Rather, by cross summons filed on 22 October 2024, the defendants allege, among other things, that AMPFP procured the releases and restraints in the Buyback Deed by unconscionable conduct.
The defendants’ cross-claim seeks declaratory relief, including declarations that AMPFP engaged in unconscionable conduct and that the releases and restraints are void. Damages are also sought. The damages claim is presently particularised by reference to the difference between the 4x multiplier and the 2.5x multiplier applied following the August 2019 changes.
In answer to the contention that the provisions of the Buyback Deed are void for unconscionable conduct, AMPFP contends that SNPL and Mr North are precluded from raising those points by reason of the provisions of a Settlement Deed approved by the Federal Court in representative proceedings brought by financial advisers against AMPFP (the Class Action): Equity Financial Planners Pty Ltd v AMP Financial Planning Pty Ltd VID 498 of 2020.
The parties are at odds as to whether SNPL and Mr North are group members in those representative proceedings and, if they are, whether the provisions of the Settlement Deed, properly construed, preclude SNPL and Mr North from running the unconscionable conduct claims they seek to run.
Against this background, the Court ordered on 24 October 2025 pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that the following separate questions be answered:

The definition in the statement of claim is relevant to the first question I have to consider, and I set it out in more detail later in these reasons.
An initial trial in the Class Action was heard by Moshinsky J over a number of days in late 2022. The initial trial concerned the claim brought by Equity, as well as the claim of a sample group member, Wealthstone Pty Ltd (Wealthstone). Wealthstone was in a broadly similar position to SNPL and Mr North in that, unlike Equity, Wealthstone did enter into a buy-back agreement with AMPFP. That agreement contained a release in favour of AMPFP, which AMPFP contended defeated Wealthstone’s claim against it. In response, Wealthstone raised a number of matters including that AMPFP’s conduct, in procuring the release was, in all the circumstances, unconscionable.
On 5 July 2023, Moshinsky J delivered judgment in the Class Action: see Equity Financial Planners Pty Ltd v AMP Financial Planning Pty Ltd [2023] FCA 741. His Honour found that the August 2019 changes were ineffective and that AMPFP’s conduct in procuring a release from WealthStone, was unconscionable. On 29 August 2023, His Honour made orders including answering the common questions raised in the Class Action. His Honour gave brief reasons at the time: Equity Financial Planners Pty Ltd v AMP Financial Planning Pty Ltd (No 2) [2023] FCA 1033 (Equity No 2).
An appeal and a cross appeal were lodged from the decision of Moshinsky J. Subsequently, and prior to the hearing of the appeal and the cross appeal, the Class Action was settled.
AMPFP and Equity entered into a Settlement Deed on 20 March 2024 (Settlement Deed). The “Resolution Sum” as defined in the Settlement Deed was $100,000,000. The Settlement Deed required Equity to prepare a Settlement Distribution Scheme detailing the scheme for the distribution of the Resolution Sum to group members. A Settlement Distribution Scheme was subsequently prepared.
On 6 September 2024, McElwaine J made, relevantly, the following orders approving the settlement of the Class Action:

The separate questions raise two issues.
First, whether SNPL and Mr North were group members in the Class Action.
Secondly, if so, whether cll 2.5(a), 2.6 and 2.7 of the Settlement Deed bar the defendants from bringing their cross-claim, either in whole or in part.
On the first question, the plaintiffs submit that SNPL was a group member because, as at 8 August 2019, it was party to an ARA with AMPFP and had not received a confirmed BOLR exercise date of 8 August 2019 or earlier. Although no signed ARA has been located, the plaintiffs rely on the surrounding evidence to submit that SNPL must have entered into an ARA in or around 2004, and that the ARA, Master Terms and BOLR Policy thereafter governed the parties’ relationship. It is also contended that it is not necessary for an ARA to have been signed. Rather, the question is whether the parties were party to an ARA as at 8 August 2019.
The defendants submit that the plaintiffs have not proved that SNPL was a party to an ARA. They say the absence of a signed ARA is significant, and that the Court should not infer the existence of such an agreement merely from the parties’ course of dealing. They also contend that the earlier Agency Agreement of June or July 2002 (defined below), rather than any later ARA, was the foundational agreement between the parties.
On the second question, the plaintiffs submit that, if SNPL was a group member, the Settlement Deed bars the cross-claim. They say the cross-claim concerns the same subject matter as the Class Action: the 8 August 2019 changes, the reduced 2.5x multiplier, and AMPFP’s procurement of releases and restraints in the buyback agreements.
The defendants accept that the damages claim, insofar as it is calculated by reference to the difference between the 4x and 2.5x multipliers, overlaps with the Class Action and cannot be maintained. However, they submit that the claim for declarations that the releases and restraints in the Buyback Deed are void depends on their individual circumstances and, as such, was not caught by the releases in the Class Action.
The defendants rely on the limited authority of a representative applicant in a class action to bind group members. They submit that the applicant’s authority to bind group members did not extend to individual claims which were not, and could not properly have been, common questions in the proceedings.

The relevant evidence may be summarised as follows.
Prior to 2001, Mr North was a “Proper Authority Holder” of AMPFP pursuant to an undated document, described as “AMP Financial Planning Pty Ltd – Representatives Agreement”, signed by Mr North as the Representative & Holder, and for SNPL as the Principal (Representatives Agreement). The defendants place no reliance on this document as governing the relationship between the parties for the purposes of these proceedings.
In or about June or July 2002, AMP Life Limited (AMP Life), SNPL and Mr North entered into a document entitled Agency Agreement (Agency Agreement). Pursuant to that agreement, AMP Life appointed SNPL as its agent to sell Products. The agreement also incorporated what was described as the “Master Insurance Agency Terms”.
Between 2001 and 2004, the form of agreement applicable to representatives of AMPFP was negotiated by The Advisers Association (as it is now known, previously the ampfpa), the industry body representing AMPFP advisers. Those terms were known as “Agents Remuneration Terms and Benefits”.
In 2003, The Advisers Association negotiated with AMPFP the first form of “Master Terms”. The Master terms came into effect from 1 January 2004 and were incorporated into an “Authorised Representative Agreement” designed to replace the then existing Agents Remuneration Terms and Benefits for all member advisers.
The changes to AMPFP’s contractual arrangements with its advisers were consequent upon the amendments to the Corporations Act 2001 (Cth) enacted by the Financial Services Reform Act 2001 (Cth) (FSR Act). The FSR Act commenced on 11 March 2002 but had a two-year transition period in respect of, among other amendments, the authorisation of financial advisers. The transition period ended on 10 March 2004.
The most relevant aspects of the FSR Act for the present proceeding are in Part 7.6 of the Corporations Act, which deals with “licensing of providers of financial services”. A “representative” for the purpose of Part 7.6 is defined in s 910A as, among other things, “an authorised representative of the licensee”.
Division 2 of Part 7.6 relates to the “Requirement to be licensed or authorised”. That division relevantly provides:

Mr North’s evidence was that he could not recall signing an ARA in or around 2004.
Version 1.1 of the ARA stated in clause 3 that the Master Terms “form part of this Agreement”. Version 1.1 of the Master Terms, in turn, defined “Authorised Representative Agreement” to mean “an authorised representative deed of agreement with AMPFP which has been signed by the Representative.” It is this last aspect of the definition on which the defendants rely in support of their position.
Pursuant to cl 2.1 of the ARA, AMPFP agreed to give the Corporate the Authorisation, meaning the authorisation for the purposes of Ch 7 of the Corporations Act, to provide the specified financial services, on behalf of AMPFP. Clause 2.2 provides that the Corporate must not provide any Financial Services until it had been given the Authorisation by AMPFP. The term Financial Services is not defined in the ARA but it is defined in the Master Terms.
The Master Terms are detailed and were clearly drafted on the basis that a Representative who had received an Authorisation, acted as an Authorised Representative of AMPFP under the Corporations Act. The Master Terms also incorporated other documents, including the “Practice Documents” which included the “Buyer of Last Resort (BOLR) Terms”.
It was not in dispute that, from 2004 until the end of the parties’ relationship in 2021, the defendants were authorised representatives of AMPFP – paragraph 7 of the Commercial List Statement is admitted and a positive allegation to this effect is made in the Cross Claim List Statement. The battle ground – to the extent it may be so described – appeared to be under what terms.
The documentary evidence indicates that Mr North was repeatedly provided with, or referred to, versions of the ARA and Master Terms.
On 26 August 2011, Neil Whelan, the then CEO of The Advisers Association, sent Mr North copies of version 1.2 of the ARA and version 1.2 of the Master Terms, stating “[h]ere are the two current agreements as discussed”. Mr North accepted that he must have received the email and the attachments, but had no recollection of doing so or any discussion referred to in the email. That evidence tends to show that Mr North was aware of, and had discussed, the ARA and Master Terms as documents governing the relationship. Nothing was said or done by Mr North at the time to suggest that those documents did not govern the relationship of SNPL, Mr North and AMPFP.
In 2012 SNPL applied for, and received, a partial BOLR benefit. The BOLR Policy then in force at its commencement under the heading “Policy summary” stated:

Between 1 and 2 May 2018, Mr North signed a document titled “Authorised Representative Agreement – Representative working for a Corporate Practice” which was version 1.4 of the ARA. The Representative was named as Mr Swane and the Practice as SNPL.
The recitals to the agreement included that SNPL “has entered into an Authorised Representative Agreement with AMP Financial Planning”, that the “Representative is working for the Practice” and, that the “Practice has nominated the Representative to be given an Authorisation by AMP Financial Planning on the basis that the Representative is Working for the Practice”.
Consequently, Mr North signed a document confirming that SNPL had “entered into an AR Agreement” with AMPFP.
In 2019, SNPL applied again under the then current BOLR Policy, which led ultimately to the Buyback Deed. AMPFP submits that these transactions involved benefits available only to authorised representatives under the ARA, Master Terms and BOLR Policy. The defendants argue that the BOLR arrangements were also capable of operating under the earlier Agency Agreement and did not require the existence of a signed ARA. The defendants also contend, as I understand their position, that AMPFP is estopped, by virtue of the recitals to the Buyback Deed from contending that a signed ARA exists. I deal with those contentions later in these reasons.
In 2019 and 2021, apparently in connection with his 2019 BOLR application, Mr North sought copies of the representative agreements and Master Terms. In particular, on 26 November 2019, he asked for a copy of the representative agreement. The evidence does not disclose any response to that request.
The Class Action was commenced on 28 July 2020.
In September 2020, Mr North appointed Mitch Karafilli (Mr Karafilli) to correspond with AMPFP on his behalf. On 16 September 2020, AMPFP wrote to Mr North noting that he had authorised Mr Karafilli to represent him in his negotiations with AMPFP and asking Mr North to confirm that he had copies of the BOLR Policy effective 8 August 2019 and “AMP Financial Planning Pty Limited – Authorised Representative Deed of Agreement Master Terms (version 1.3 published June 2015).
Later that day Mr Karafilli responded stating:

On 5 November 2021, AMPFP paid Mr North/SNPL $840,108 under the Buyback Deed.
In the preceding years to 2021, SNPL was paid commission on a monthly basis which was calculated in accordance with the terms which AMPFP contend governed the relationship.
In or around November 2021, Mr North and SNPL received notice of the right to opt out of the Class Action, but did not opt out. The approved opt out notice referred, in customary general terms as to what the Class Action was about, including the effectiveness of purported releases in the buyback agreements entered into.
On 18 April 2024, Equity filed the settlement approval application.
On 30 April 2024, McElwaine J made orders, including pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) (FCAA) that Group Members be given notice of the proposed settlement and their right to oppose it, and pursuant to s 33Y(2) of the FCAA approving the form of Settlement Notices to be sent to Group Members. The Settlement Notice refers to the releases contained in the Settlement Deed.
Moshinsky J handed down his substantive judgment after the initial trial on 5 July 2023. Final orders, including the answers to the common questions, were made on 29 August 2023.
The present proceedings were commenced on 22 September 2023.
The Settlement Deed was executed on 20 March 2024.
On 1 August 2024, Mr North made an affidavit in these proceedings in which he deposed to having made enquiries through his lawyers and to being informed, and believing, that he remained a group member of the Class Action.
The position changed shortly thereafter.
Leading up to the hearing of the settlement approval application in the Class Action, the defendants were given notice of the settlement and the application for its approval. The solicitor for the defendants then engaged in correspondence with the solicitors for the lead applicant. By letter dated 22 August 2024, the defendants contended that they were not group members and, accordingly, would not be bound by the settlement of the Class Action if it was approved.
The letter requested that this correspondence be placed before the Court on the settlement hearing.
The settlement was approved by orders made on 6 September 2024. The trading name of SNPL/Mr North, being Rathdowne Financial Management was named as a Group Member in the Settlement Deed.

It is against the factual background set out above that I determine question (a).
The starting point is the definition of “Group Member” in the Settlement Deed which in turn picks up the definition used in the Class Action pleadings. I have set those definitions out above.
I do not accept the defendants’ contention that in order for SNPL to be a Group Member I must be satisfied that SNPL signed an ARA. The question is whether SNPL was party to an ARA as at 8 August 2019. Whilst signing an ARA is obviously one way in which SNPL could have become a party to an ARA, and is indeed the way in which AMPFP contends such agreements were ordinarily entered into, it is not the only way. The fact that the Master Terms, which form part of the ARA, define an ARA as one that has been signed relevantly by the “Corporate”, does not alter that conclusion.
I have set out above the definition of “Group Member” from the 2FAOA and 3FASOC. The essence of the first part of the definition is two-fold – first, that the person was “a party to an Authorised Representative Agreement” as at 8 August 2019. Second, that the person was named as the Practice in that ARA.
What is an Authorised Representative Agreement? Paragraph 2 of the 3FASOC directs attention to paragraph 6, which simply asserts that, between January 2004 and 8 August 2019, AMPFP entered into agreements with persons wishing to carry on business as financial planners as authorised representatives of AMPFP. The particulars to that allegation refer to the different forms of ARA for corporate entities and sole traders. The various versions are then set out.
None of this material alleges, and thus it cannot be said to confine, the manner in which a person, being a financial planner, entered into an agreement with AMPFP – being the ARA – and thus became a party to an ARA. The relevant fact to be demonstrated is that they were a party to an ARA as at 8 August 2019.
This construction of the relevant part of the group member requirement is readily understandable when one considers the central complaint in the Class Action – the legality of the changes to the BOLR Policy effective 8 August 2019. The BOLR Policy is given contractual effect by the ARA.
Reference to a person signing an ARA only emerged in AMPFP’s evidence as to the practice that was followed by AMPFP with financial planners.
I do not regard this evidence as commanding a conclusion that, either generally or in the circumstances of this case, the only method by which a person could became a party to an ARA was by signing the relevant document.
In determining whether an agreement has been formed (and thus whether the parties are “party” to that agreement), all of the circumstances must be considered. The question is what would a reasonable person in the position of the parties think as to whether there was a concluded bargain: see for example Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [71]-[81] per Heydon JA; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 50 at [224]-[233] per Finn J. Subsequent conduct is admissible on this question.
Putting to one side for present purposes, whether I would infer that SNPL signed version 1.1 of the ARA, I am comfortably satisfied on the evidence that SNPL was party to an ARA with AMPFP as at 8 August 2019. All of the conduct of the parties points in that one direction in this respect. All that could potentially stand against this conclusion is that Mr North cannot recall signing an ARA. This does not provide any evidence against the conclusion.
The starting point is the legislative change necessitating new agreements designed to replace the then existing contractual agreements. Those changes required advisers to be authorised representatives. More importantly, there is the unchallenged evidence of Mr MacDonald that all the agents at the principal level in the AMPFP network were provided with the ARA for signature.
The terms of version 1.1 of the ARA clearly stated that the “Corporate” must not provide any Financial Services until it has been given the Authorisation by AMPFP. That Authorisation was given by the ARA. Absent an ARA coming into effect, the Corporate had no authority to continue to operate.
Thereafter, SNPL conducted itself as an Authorised Representative. Both AMPFP and SNPL conducted themselves on the basis that they were parties to an ARA. SNPL was paid commission on a monthly basis, calculated in accordance with the contractual arrangements stemming from the ARA and its respective versions from time to time. SNPL made a partial BOLR application in 2012. The BOLR Policy in force at that time, as noted above, stated that the policy formed part of the ARAs between “your practice” and AMPFP. The document executed by Mr North at that time, setting out the terms and conditions, stated that failing to comply with those terms and conditions could result in “your Authorised Representative (AR) Agreement being terminated”.
The year prior, Mr North was provided with version 1.2 of the ARA and version 1.2 of the Master Terms.
In 2015, Mr North was sent an email notifying him of updates to the Master Terms and ARAs. SNPL continued to act as an Authorised Representative.
In 2018, Mr North signed a document titled “Authorised Representation Agreement – Representative working for a Corporate Practice” in connection with Mr Swane. The recitals to the agreement included that SNPL had entered into an ARA with AMP Financial Planning. That is a clear admission that an ARA had been entered into previously.
The only other argument seriously put by the defendants against the contention that SNPL and AMPFP were party to an ARA was that there was no need for an ARA because the Agency Agreement entered into in June or July 2002 picked up, inter alia, the BOLR Policy. I do not accept this argument. The Agency Agreement was with AMP Life. AMPFP was not a party to it. The defendants had no answer to this basic problem with the argument.
I am satisfied that, as at 8 August 2019, SNPL was party to an ARA.
In any event, I am comfortably satisfied that I should infer that SNPL signed version 1.1 of the ARA in or about 2004 and returned the executed agreement to AMPFP.
As Street CJ stated in Gurnett v Macquarie Stevedoring Co (1954) 55 SR (NSW) 243; (1954) 72 WN (NSW) 261:

The relevant proved facts include that there was a legislative change and new agreements (ARAs), were introduced by AMPFP to give effect to that legislative change. AMPFP’s practice was to send two copies of the ARA to advisers for execution and return, so as to become Authorised Representatives. AMPFP would then notify ASIC of the new Authorised Representatives.
SNPL was an authorised representative of AMPFP from 2004 onwards and was recorded on ASIC’s database as such. These undisputed objective facts suggest that the precondition to SNPL becoming an authorised representative – namely execution of an ARA – had occurred.
These facts provide a firm basis to conclude that SNPL signed an ARA and returned it to AMPFP. There is no probative evidence against the drawing of the inference. Mr North’s lack of recollection of signing an ARA is not contrary evidence.
Given the effluxion of time – over 20 years – it is perhaps unsurprising that a signed agreement can no longer be produced. Added to this is the fact that the practice thereafter was not to require advisers to execute new agreements when the terms were updated. Rather, advisers were given the option to indicate non-acceptance. Absent this, the amended terms came into effect.
The fact that, in the Class Action, signed ARA’s appear to have been admitted into evidence from both Equity and Wealthstone (see [320] and [390] of the judgment of Moshinsky J) does not tell strongly against the conclusion I have reached. Equity entered into its agreement in 2011 and Wealthstone in 2010. The uncontradicted evidence of Mr MacDonald speaks of a uniform practice of requiring a signed ARA in 2004 at the time the changes were introduced.
I am thus satisfied that SNPL was party to an ARA as it relevantly signed an ARA. Separately, even if SNPL did not sign an ARA, I am comfortably satisfied that it was party to an ARA. This conclusion arises in all the circumstances, particularly the conduct of the parties.
I do not regard anything in the recitals to the Buyback Deed as telling against either of these conclusions or indeed, as I understood some of the submissions advanced by the defendants, as somehow precluding AMPFP contending that SNPL was party to an ARA and thus seeking to adduce evidence to that effect.
I have extracted the detailed recitals to the Buyback Deed above. Taken at their highest for the defendants, the recitals record that AMPFP had not provided any signed agreements to SNPL, and there was a dispute between the parties as to the agreement or agreements that regulated the relationship between them.
As the learned authors - Hon Steven Rares KC and Quintin Rares state in The Law of Estoppel in Australia - – Principles, Case Notes and Precedents (Thomson Reuters, 2026) at [5.30]:

Having set out what was alleged in the Class Action, the common questions answered by Moshinsky J, and then matters alleged in the cross-claim, I turn now to consider whether the releases, properly construed in the context of the authority of Equity to bind group members, prevent the cross-claim being advanced.
It is accepted by the defendants that the claim for damages set out in the cross-claim is no longer maintainable and so can be put to one side.
What is left is the claim of unconscionable conduct in procuring the inclusion of the releases and restraints in the Buyback Deed, grounding declaratory relief that the releases and the restraints set out in the Buyback Deed are void.
I have set out above the matters alleged by the defendants in the cross-claim as being against good conscience. They are matters that include dealings between representatives of AMPFP and Mr North on behalf of SNPL. They also include the personal circumstances of Mr North and SNPL: a 73 year old individual and a small business comprising no more than 3 people.
It is those matters, including the individual dealings between AMPFP and Mr North and the relevant personal circumstances, that are said to amount to unconscionable conduct by AMPFP in procuring the releases and restraints at the time of entering into the Buyback Deed. SNPL and Mr North contend that the appropriate relief for that unconscionable conduct is a declaration that the releases and the restraints void.
Those matters alleged in the cross-claim are individual to the defendants. They did not form part of the common claims in the Class Action.
The fact that the matters have at least some aspects in common with Wealthstone is not to the point. Wealthstone was simply another group member, appointed as a sample group member, whose claims were determined in the initial trial. The determination of Wealthstone’s claim did not involve the Court determining any common questions, or indeed any issues of commonality, that would bind the defendants so as to prevent them from making the allegations that they now make in the cross-claim.
Further, the fact that general allegations were made in the 3FASOC as to unconscionable conduct allegedly engaged in by AMFP, including in relation to buy back deeds and/or termination letters, and that SNPL would likely fall within the class of group members covered by those general allegations, does not make those allegations common in the relevant sense. Nor does it give the representative applicant the authority to settle those claims on behalf of group members.
As Lee J observed in Dillon at [60], in the passage I have quoted above, a representative applicant may know nothing about the precise details of individual claims of group members, and those individual claims are not required to be pleaded in a particular way. It is sufficient that there be specification of “the nature of the claims made on behalf of the group members and the relief claimed”. As I understand it, that is all that the additional unconscionable conduct claims pleaded in the 3FASOC seek to do.
I am thus not satisfied that the claims made in the cross-claim to the effect that AMPFP engaged in unconscionable conduct in procuring the inclusion of the release and the restraint in the Buy-back Deed such that the release and the restraint should be declared void, are common claims that were brought in the Class Action.
I turn now to consider whether those claims “could have been” brought in the Class Action.
It is not entirely clear to me what precisely is meant by “could have been” in this context. As set out above, the phrase appears to have come from what was said by the High Court in Mobil Oil in the passage I have extracted above.
It seems to me that the short answer is that the relevant claims raised in cross-claim are not common claims. Rather, they are individual or idiosyncratic claims of SNPL and Mr North. As such, they fall outside the agreed concession as to what claims the releases extend to.
Insofar as the phrase is intended to pick up an estoppel based on the principles in Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45 (Anshun estoppel), or insofar as AMPFP separately relies on Anshun estoppel, I am not satisfied that Anshun estoppel precludes the matters being alleged in the present case.
As French CJ, Kiefel, Keane and Nettle JJ stated in Timbercorp at [27], Anshun estoppel:

Charter Financial Planning Ltd v Scott North Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

JUDGMENT

Introduction

The Class Action

The Issues and an overview of the respective positions

Question (a): Whether the defendants are group members of the Class Action

The facts relevant to question (a)

Determination of question (a)

Question (b): Whether clause 2.5(a), 2.6 and 2.7 of the Settlement Deed bars the Defendants

Relevant terms of the Settlement Deed

Overview of the parties’ contentions

Relevant legal principles

Determination of question (b)

Application to reopen

Conclusion and orders

Amendments

15 June 2026

16 June 2026

Parties

Legislation Cited (5)

Cases Cited (25)