CIT CREDIT PTY LTD v Blayn Norman KEABLE

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 90; Gzell J at 91

DECISION: 1 Appeal allowed; 2 The Respondent's cross claim of 31 May 2004 is dismissed; 3 Judgment for the Appellant in the sum of $424,498.41; 4 The Respondent to pay the Appellant's costs of the trial and of the appeal; 5 The Respondent to have a certificate under the Suitors' Fund Act if otherwise entitled.

CATCHWORDS: TRADE PRACTICES - Unconscionable conduct - Whether Appellant "delegated" responsibility for execution of guarantee - Absence of disadvantage or special disability on the part of a prospective guarantor - Trade Practices Act 1975, s51AC. - CONTRACTS - Unjust contracts - Weight accorded to failure to implement scheme for certification that potential guarantors obtain legal advice - Relevant time for assessment of "unjustness" - Contracts Review Act 1980, s7. - CONTRACTS - Unjust contracts - Whether "unfair tactics" used - Where guarantor failed to read guarantee - Absence of disadvantage or disability on the part of a prospective guarantor - Contracts Review Act 1980, s9(2)(j).

LEGISLATION CITED: Trade Practices Act 1974 (Cth): s51AC, s84(2), s87 Contracts Review Act 1980 (NSW): s7, s9(2)(j)

ACCC v 4WD Systems Pty Ltd (2003) 200 ALR 491 Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 Barclay's Bank v O'Brien [1994] 1 AC 180 Burt v Australian and New Zealand Banking Group Ltd (1994) ATPR (Digest) 46-123 Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 CASES CITED: HG & R Nominees Pty Ltd v Fava [1997] 2 VR 368 Lisciandro v Official Trustee in Bankruptcy [1995] ATPR 41-436 Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 NMFM Property Pty Ltd v CitiBank Ltd (2000) 107 FCR 270 Perpetual Trustee Company Pty Ltd v Khoshaba [2006] NSWCA 41 Toll (FGCT) Pty Ltd v Alpha Pharm Pty Ltd (2004) 79 ALJR 129 Wilton v Farnworth (1948) 76 CLR 646

PARTIES: CIT Credit Pty Ltd (Appellant) Blayn Norman Keable (Respondent)

COUNSEL: P. Dowdy (Appellant) R.A. Parsons (Respondent)

SOLICITORS: John Bartrop - Abbott Tout Lawyers (Appellant) James Antonenas (Respondent)

• 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40992/04

SPIGELMAN CJ GILES JA GZELL J

Thursday 25 May 2006 CIT CREDIT PTY LTD v Blayn Norman KEABLE

The Respondent was an employee, and subsequently a director, of Parry's Motorcycles Pty Ltd. Parry's entered into a floor plan agreement with the Appellant, in the form of a Bailment Agreement, to finance its stock of Yamaha motorcycles. Under a related agreement of Guarantee and Indemnity, the Respondent guaranteed the obligations of Parry's under the Bailment Agreement.

The Guarantee was delivered to Parry's by the General Manager of YMAF (as the Appellant was originally known), but the Respondent did not execute the document in his presence. Instead, the documents were left with another director, Mr Peter Zellner. The Respondent signed the Guarantee without reading the document after being asked to execute it by Mr Zellner. The trial judge found that Mr Zellner made a number of false representations to the Respondent, including that the Guarantee would be operative only whilst the Respondent was a director of the company.

The Respondent subsequently ceased to be a director of the company. A voluntary administrator was appointed to the business six months later and it was discovered that some of the stock over which the Guarantee operated was missing.

The trial judge found the Guarantee to be void for two principal reasons:

· Mr Zellner's conduct was unconscionable under the Trade Practices Act 1974; and

· the circumstances of execution rendered the contract unjust under the Contracts Review Act 1980. HELD A. Challenges to trial judge's findings on appeal

1 There was no evidentiary support for the trial judge's finding that the Respondent was pressured into signing the Guarantee without reading it, due to Mr Zellner's conduct. [34]-[35]

2 The trial judge erred in characterising the Guarantee as "onerous" and "complex". [38], [40], [43]

3 The trial judge erred in holding that Mr Zellner was acting "on behalf of" the Appellant when explaining the document to the Respondent. [53], [56], [59]

4 It was open to the trial judge to characterise the provisions in the Guarantee concerning an acknowledgment by the guarantor of having obtained independent legal advice as a 'scheme" to ensure that legal advice was obtained by potential guarantors. [62] B. Unjustness and Unconscionability

1 In a claim under s7 Contracts Review Act 1980 the relevant time for the assessment of "unjustness" is at the time the contract was made, rather then the subsequent breach which triggered the guarantee. In a claim under s51AC Trade Practices Act the reference to "the circumstances" is directed to the time at which the relevant "conduct" occurs and the relevant "connection" with the "supply of services" exists. Subsequent events may be relevant to the exercise of discretion to make remedial orders. [65]-[66]

2 The trial judge erred in finding that Mr Zellner's false or misleading conduct constituted unconscionable conduct under s51AC of the Trade Practices Act or an unfair tactic under s9(2)(j) Contracts Review Act. [70], [77], [79], [80]

3 The failure to implement the scheme for certification, that legal advice had been obtained by a guarantor, even if characterised as primarily for the protection of the Appellant, constitutes an element entitled to weight in the analysis of unjustness under s7 Contracts Review Act 1980 and unconscionability under s51AC Trade Practices Act 1975. However, this element was not entitled to determinative weight in this case, given the clarity of the Guarantee and the absence of a relevant disability on the part of the Respondent. [81]-[82] Orders

2 The Respondent's cross claim of 31 May 2004 is dismissed.

3 Judgment for the Appellant in the sum of $424,498.41.

4 The Respondent to pay the Appellant's costs of the trial and of the appeal.

5 The Respondent to have a certificate under the Suitors' Fund Act if otherwise entitled. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40992/04

SPIGELMAN CJ GILES JA GZELL J

Thursday 25 May 2006 CIT CREDIT PTY LTD v Blayn Norman KEABLE Judgment

1 SPIGELMAN CJ: Parry's Motorcycles Pty Limited ("Parry's") carried on the business of selling motorcycles. The Respondent was for some time an employee and, subsequently, a director, of Parry's.

2 Parry's acquired the right to sell Yamaha motorcycles and entered into a floor plan agreement, in the form of a Bailment Agreement to finance its stock. Under a related agreement of Guarantee and Indemnity, the Respondent guaranteed the obligations of Parry's under the Bailment Agreement.

3 Parry's failed to meet its obligations under the Bailment Agreement. The Appellant, originally known as YMAF Pty Limited, called on the Guarantee. There was no issue in the proceedings that the amounts were due and payable by Parry's and that circumstances had arisen which triggered the Guarantee. The issue in the proceedings was whether the Respondent should be excused from liability under the Guarantee under either of the proscriptions of unconscionable conduct by s51AC of the Trade Practices Act 1974 (Cth) or pursuant to s7 of the Contracts Review Act 1980 (NSW). Her Honour Judge H G Murrell SC found that the Respondent succeeded on each basis.

4 Nothing turns for present purposes on the terms of the Bailment Agreement. The Guarantee and Indemnity contained the following two paragraphs on its front page: "As the name indicates, the Guarantee and Indemnity agreement once executed by the parties, will guarantee to YMAF the payment of the Guaranteed Moneys (as the term is described within the agreement). It is important that you read and fully understand all the terms and conditions of the above noted agreement prior to signing. Please indicate the date the Bailment Agreement was signed in the appropriate space on the schedule."

5 The following definition appeared in the Guarantee: "Guaranteed Moneys" means all debts and monetary liabilities of the Dealer to YMAF on any account and in any capacity irrespective of whether debts or liabilities: (1) are present or future; (2) are actual, prospective, contingent or otherwise; (3) are at any time ascertained or unascertained; (4) are owed or incurred by or on account of the Dealer alone, or severally or jointly with any other person; (5) are owed or incurred to or for the amount of YMAF alone, or severally or jointly with any other person; (6) are owed or incurred as principal, interest, fees, charges, taxes, damages (whether for breach of contract or tort or incurred on any other ground), losses, costs or expenses, or on any other account; (7) are owed or incurred to or for the account of any successor or assignee of YMAF; or (8) comprise any combination of the above."

6 The Guarantee also contained the following clauses: "2. Joint and several, unconditional and irrevocable obligations Each obligation of the Guarantors under this agreement is unconditional and irrevocable and binds them jointly and each severally. 3. Guarantee (a) The Guarantors guarantee to YMAF the payment of the Guaranteed Moneys. (b) If the Guaranteed Moneys are not paid by the Dealer when due and payable a Guarantor must immediately, on demand by YMAF in writing specifying the amount of the Guaranteed Moneys due and payable, pay to YMAF or as it directs the full amount the Guaranteed Moneys. 4. Indemnity If any of the Guaranteed Moneys are not recovered from the Dealer or are not recovered from any Guarantor on the footing of a guarantee, the Guarantor's indemnify YMAF against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered, paid or incurred by YMAF in relation to the non-payment or non-recovery of the Guaranteed Moneys. … 7. Continuing obligation The guarantee and the indemnity contained in this agreement are continuing obligations of each Guarantor, despite any settlement of account or the occurrence of any other thing and remain in full force and effect until: (a) termination of the Transaction Documents; or (b) all Guaranteed Moneys and all other moneys owing to YMAF under this agreement, contingently or otherwise, have been paid in full. Whichever is the later."

7 Furthermore cl 12 and cl 13 provided: "12. Independent legal advice Each Guarantor acknowledges that before executing this agreement the Guarantor: (a) was advised by YMAF to consult and receive advice as to the purport, effect and consequences of and obligations created by the Transaction Documents from a solicitor or barrister independent of YMAF and the Dealer. (b) Consulted and received advice as to the purport, effect and consequences of and obligations created by the Transaction Documents from a solicitor or barrister independent of YMAF and the Dealer, as evidenced by the certificate in the form approved by YMAF, signed by the Guarantor's independent legal adviser and provided to YMAF on or about the date of this agreement; and (c) Was aware of and fully understood the purport, effect and consequences of, and the obligations created by, the Transaction Documents. 13. Acknowledgement (a) Each Guarantor acknowledges that YMAF has entered into this agreement in reliance on the acknowledgements contained in clause 12 and this clause 13. (b) Each Guarantor acknowledges that it has not entered into this agreement or any other Transaction Document in reliance on any representation, warranty, promise or statement of YMAF or of any person on behalf of YMAF. (c) Each Guarantor acknowledges that it has received a copy of each proposed Contract to be entered into by YMAF and the Dealer before signing this agreement."

8 Finally, cl 15 provided for security: "15. Security of the Guarantors' Obligations In order to better secure the Guarantors' obligations under this agreement: (a) each Guarantor hereby charges in favour of YMAF by way of fixed charge any real property now or hereafter owned by the Guarantor and the Guarantor acknowledges that such fixed charge constitutes an equitable interest in the Guarantor's real property and that as a consequence YMAF has the right to lodge a caveat at the appropriate land titles office in respect of the Guarantor's real property; and (b) each Guarantor must, at the request of YMAF, execute a registrable mortgage of any real property owned by the Guarantor in the form reasonably required by YMAF." The Trial Judge's Findings

9 Of central significance in the case were her Honour's findings of fact with respect to a conversation which occurred between the Respondent and Mr Peter Zellner. The relevant passage is as follows: "[38] It was the defendant's evidence that he signed the bailment agreement and guarantee when they were produced to him by Mr Zellner. That occurred at a time when the business was busy, possibly in the early afternoon. In relation to the guarantee, there was a conversation to the following effect. Zellner: 'It is a director's guarantee for YMAF'. Defendant: 'What is a director's guarantee?' Zellner: 'It's a guarantee that exists only while you're a director of the company. If you resign then all your liability ends'. Defendant: 'What's it for?' Zellner: 'If this isn't signed there will be no franchise with Yamaha to sell their motor cycles.' The defendant then signed the bailment agreement and guarantee. He felt a sense of urgency and that he should sign the documents immediately. It was his uncontested evidence that Mr Zellner was a very emotional person who reacted poorly if obstructed. The defendant did not read the documents before signing them. Although his signature on the guarantee appears to have been witnessed by a Paul S. Harris, he did not sign the document in the presence of that person. It was his evidence that he was unaware that, among other things, by executing the documents, he gave a charge in favour of YMAF over real property which he owned. He said that, had that fact been known to him, he would not have signed the documents."

10 Her Honour also set out the evidence in cross-examination: "[39] The plaintiff cross-examined the defendant in an endeavour to establish that the defendant would have executed the guarantee regardless of its breadth and of any misrepresentation made by Mr Zellner. In cross-examination, the defendant agreed that he knew that the guarantee meant that he could be called upon to pay business debts while he was a director. He agreed that he was so enthusiastic about the business that he would have signed whatever was put in front of him "within reason", but he said that he would not have signed the guarantee without knowing more about the business."

11 The background of the Respondent's participation in the company is of some significance. The Respondent was originally employed by Telstra. He was, however, a motorcycle enthusiast. He had worked at Parry's on a voluntary basis in his spare time for some years. In or about May/June 2000 there was a conversation between the Respondent and Mr Zellner in which he was induced to come and work at Parry's, with a view to acquiring an equity interest.

12 Her Honour found: "[22] The defendant understood that, ultimately, he would receive one-third of the business, i.e. one-third of profits and one-third of the shares. The issue of who would manage the business was never discussed. Initially, it was agreed that the defendant would pay $235,000 for a one-third share in the business. That figure was based on the value of stock and the defendant thought that it was a reasonable figure based on stock on hand. At that stage, the defendant erroneously believed that the company owned 'quite a fair bit of stock'. [23] At that time, the defendant had an accountant, who assisted him with his tax returns. The defendant and his wife owned their home and each had an investment property. The defendant was given a 1998 profit and loss statement for the company and asked his accountant, Mr Cachia, to explain it. At one point, he asked to see the company's books but Mr Zellner was not enthusiastic about passing them over, asserting that he had just come into the business and the books were not a true reflection of the worth of the business. The defendant did not ask his accountant to further investigate the value of the business as he trusted Mr Zellner and Mr Furlong as to the value. He had a solicitor (who had acted for him on a conveyance and on a divorce) but did not consult his solicitor in relation to the transaction. [24] Prior to commencing work in the business, the defendant understood that he would work as a salesman for $10,000 pm selling motor cycles. Mr Zellner told him: 'Eventually (over a period of 12 months or more) you will get shares from the money you put in.' [25] On 30 June 2000, the defendant ceased his employment as a supervisor with Telstra. On 1 July 2000, he commenced working for the company as a salesman. He was paid only $5,000 per month and was asked to sell jet skis rather than motor bikes. He was disappointed, but decided to stay on as he did not want to give up and still thought that he had a future with the business. [26] Between 11 September 2000 and 2 February 2001, the defendant paid Mr Zellner $57,000 ($70,000?) for the acquisition of shares, although he did not receive any shares. He did not sign any documents in relation to acquiring an interest in the company or in relation to becoming a director. In February 2001, the defendant ceased paying money because he had not been given any shares, although Mr Zellner had said that he would 'get around to it'. [27] The arrangement had been that the defendant would become a director only after he had paid the full purchase price for his shares in the company. However, in approximately November 2000 he received a business card asserting that he was a director, which he used thereafter. A company search records that on 3 October 2000 the defendant became a director of the company."

13 Also of significance are her Honour's findings concerning the execution of the Bailment Agreement and Guarantee. The relevant documents were brought to the location of Parry's business by Mr McDonald, the General Manager of YMAF on 20 October 2000. He met Mr Zellner and, briefly, two other directors including the Respondent. Mr Zellner executed the Guarantee in Mr McDonald's presence but the Respondent did not do so. On her Honour's findings the Respondent was only present briefly and nothing of significance was said in his presence.

14 Her Honour found: "[34] … Mr McDonald left the incomplete documents with Mr Zellner. Mr Zellner undertook to obtain the business's financial records and, by inference, to arrange for the completion and return of the other documents."

Her Honour also found: '[37] … It is obvious that [the Respondent] must have left before Mr Zellner executed any document. Had that not been the case, the defendant would undoubtedly have been asked to execute documents himself."

15 Her Honour referred to Mr McDonald's evidence that it was company policy to require director's guarantees, regardless of a financial position of a business. Furthermore she noted, with respect to cl 12 of the Guarantee: '[43] Mr McDonald said that YMAF rarely obtained a certificate of independent legal advice from a dealer and that no draft certificate was furnished by him in respect of the business's dealership application."

16 Her Honour finally concluded: "[44] I accept the defendant's evidence that he did not read the guarantee before signing it and did not know that it gave a charge over his real property. He accepted Mr Zellner's explanation of the guarantee. When he executed the guarantee, he believed that the guarantee was co-extensive with his directorship and that, upon resigning his directorship, his liability would cease. In no practical sense was the defendant an equal partner in the business with Mr Zellner. Prior to October 2000, Mr Zellner had extracted the defendant's agreement to part with a large sum of money to obtain shares, which were not forthcoming, and had secured the defendant's services on the promise of a healthy salary, which was not paid. It is obvious that, up to early 2001, the defendant was readily pressured and easily comforted by Mr Zellner, who was an intense man whom the defendant found difficult to confront."

17 Her Honour referred to a subsequent occasion in February/March 2001 when Mr Zellner asked the defendant to sign another Guarantee which, after reading the document and discussing the matter with his wife, the Respondent refused to do. Her Honour said: "[46] The defendant's decision to refuse to execute the guarantee submitted to him in February - March 2001 supports his assertion that, had he understood the legal and practical consequences of the guarantee which he executed in October 2000, he would not have signed the document. The defendant's refusal to sign the new guarantee and the cessation of payments for shares show that, by February - March 2001, the defendant was no longer uncritically accepting Mr Zellner's reassurances. In my view, the defendant's assertions that he relied upon Mr Zellner's misrepresentation that his liability was coextensive with his directorship when he entered into the guarantee and that he would not knowingly have provided his house as security were not simply a view of events which he developed with the benefit of hindsight."

18 On 29 March 2002 the defendant ceased to be a Director of the company but stayed on as a salesman. Her Honour found that the Appellant was unaware of the defendant's resignation as a Director prior to October 2002.

19 A voluntary administrator was appointed to the business in October 2002. At that stage there were discussions underway with a view to a third party taking over the business.

20 Her Honour found that within two hours of the Appellant being notified of the appointment of the administrator, an officer of the Appellant attended the premises to secure its stock. Thereafter that stock was repossessed.

21 Her Honour found: "[54] The whole of the plaintiff's claim relates to motor bikes which were missing from the business at the time of repossession."

22 The evidence before her Honour indicated that it was the Appellant's practice to conduct physical stocktakes of Parry's on a monthly basis. On this basis the inference was that the motorcycles must have gone missing within a month or two before October, i.e. after the Respondent ceased being a director.

23 Her Honour inferred that the business relationship between Parry's and the Appellant was in order for the period that the defendant was a Director of the business and that the business did not default on payments until the second half of 2002. There is no challenge to her Honour's findings in this respect. The Trial Judge's Reasons

24 With respect to the claim under s51AC of the Trade Practices Act her Honour said that "unconscionable conduct" within the section covers a wider field than the concept of unconscionable conduct at law. She applied a test, to which no objection was taken on appeal, that: "[60] … unconscionable conduct … imports a pejorative judgment and refers to serious misconduct or something clearly unfair or unreasonable, to actions showing no regard to conscience, or that are irreconcilable with what is right or reasonable."

25 Her Honour held: "[61] There is no doubt that Mr Zellner's conduct in misrepresenting the effect of the guarantee and, in effect, pressuring the defendant to sign the document without reading it, constituted unconscionable conduct by him. In my view, it was Mr Zellner's misrepresentation and pressure (rather than the defendant's enthusiasm for the project) which caused the defendant to execute the guarantee and to do so without reading or understanding it. Had the defendant read the document or had it been explained to him, he would not have executed it and put his home at risk or, at the very least, would not have done so without first investigating the worth of the business. The issue is whether YMAF should be held responsible for Mr Zellner's conduct."

26 Her Honour had said at [59]: "YMAF does not dispute that Mr Zellner's conduct was unconscionable". Mr R H Parsons, who appeared for the Respondent at the trial and on appeal, accepted that there was no concession of this character at trial. He did not object to the Appellant putting in issue, on the appeal, whether Mr Zellner's conduct was "unconscionable".

27 Her Honour's reasons continued: "[63] The defendant does not submit that he was in a position of special disability or disadvantage. YMAF contends that, while there is no need to establish 'special disability' and notice for s51AC purposes, the lack of special disability and notice is an important factor to be considered when determining whether there has been a breach of s51AC. I accept that submission. [64] The defendant contends that Mr Zellner's conduct is to be attributed to YMAF because he was YMAF's agent for the purpose of securing execution of the guarantee. The defendant also relies upon s84(2) of the Act, contending that YMAF is deemed to have engaged in Mr Zellner's conduct because his conduct was 'engaged in on behalf of a body corporate … at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate …'."

28 The Appellant relied on the decision in Lisciandro v Official Trustee in Bankruptcy [1995] ATPR 41-436 for the proposition that a supplier, who asked for directors' guarantees to support the supply of products on terms, was not responsible for the conduct of a director who procured the signature of a co-director.

29 Her Honour distinguished this case as follows: "[66] There is a significant distinction between the facts in Lisciandro and those in the present case. In Lisciandro , the supplier provided the relevant documents to the company rather than to an individual. In the present case, Mr McDonald apparently intended to explain the general nature of the documents and, if it was convenient, to secure execution of the documents himself. However, the defendant left after being introduced to Mr McDonald and Mr McDonald, in effect, delegated the task of obtaining execution of the documents to Mr Zellner. It is my view that, in those circumstances, when he procured the defendant's signature to the guarantee, not only was Mr Zellner acting with the consent of Mr McDonald, but he was also acting 'on behalf of' YMAF in that he was acting in Mr McDonald's stead. [67] Further, I note that Lisciandro was not a case concerning s51AC of the Act. Regardless of whether YMAF is bound by Mr Zellner's misconduct because of the operation of s84(2) of the Act, when examining YMAF's conduct under s51AC, Mr Zellner's misconduct can be taken into account as a circumstance in determining whether YMAF's conduct was 'in all the circumstances, unconscionable.' [68] In my view, YMAF's conduct did contravene s51AC of the Act. YMAF utilised a form of guarantee which was not readily comprehensible to a lay person. The obligations which it imposed were onerous. YMAF had recognised that fact and incorporated into the guarantee a scheme designed to ensure that prospective guarantors obtained independent legal advice and fully understood the guarantee. Nevertheless, YMAF did not seek compliance with the scheme and rarely obtained the contemplated certificate of independent legal advice. In the circumstances that Mr McDonald effectively delegated to Mr Zellner the task of obtaining execution of the bailment and guarantee documents and Mr Zellner seriously misrepresented the effect of the guarantee, YMAF's conduct of employing a complex and onerous form of guarantee and failing to adhere to the scheme requiring evidence of independent legal advice was unconscionable."

30 It is pertinent to note that her Honour decided the s51AC case on two grounds which operated cumulatively or, if necessary, alternatively. Accordingly, even if the Respondent cannot rely on s84(2), the conduct relied upon by her Honour in par [68] must still be assessed.

31 With respect to the Contracts Review Act 1980 her Honour made the following findings: "[73] Although onerous, the terms of the guarantee are not unreasonable or unjust per se. Any injustice arises because of the method used to secure the defendant's execution of an onerous guarantee. [74] Mr Zellner's misrepresentation constituted an unfair tactic. The defendant executed the guarantee because he was both persuaded by Mr Zellner's representation and pressured by him to sign in circumstances where he did not read, let alone comprehend, the substance of the document which he signed. [75] Obviously, YMAF had no knowledge of Mr Zellner's misrepresentation or the pressure exerted by him. However, for the reasons stated in paragraph [66] above, in my view Mr Zellner was 'acting … on behalf of' YMAF within the meaning of s9(2)(j) of the Act. [76] Regardless of whether Mr Zellner was 'acting … on behalf of YMAF', in my view YMAF's conduct did deprive the defendant of an informed choice about entering into the guarantee because YMAF utilised a complex and onerous form of guarantee which it foresaw required independent legal advice, but YMAF systematically failed to adhere to the scheme which it had devised to ensure that independent legal advice was obtained. It was reasonably foreseeable that the defendant would be called upon under the guarantee. [77] As the business did not become relevantly indebted to YMAF until well after the plaintiff resigned his directorship in March 2002 and as the relevant debt relates to motor bikes which were missing from the business at the time of repossession in October 2002, it is my view unjust consequences to both parties would be avoided if I declare the guarantee to be void pursuant to s7(1)(b) of the Act."

32 In the same way as I have indicated in [30] above, with respect to the Trade Practices Act case, her Honour's reasons in [76] represent an alternative basis for her conclusion, with respect to the Contracts Review Act case, her Honour held the contract to be unjust even if the misrepresentation was not made on behalf of the Appellant. Challenge to Findings on Appeal

33 The Appellant challenges a number of her Honour's findings, being findings based on inference rather than findings of primary fact. In my opinion, this challenge succeeds.

34 The Appellant first challenges her Honour's finding at par [61] of her judgment, set out above, to the effect that Mr Zellner's conduct in effect was "pressurising the defendant to sign the document without reading it". It is submitted that there was no evidentiary support for such an inference. I agree.

35 The evidence in this respect was in a narrow compass, as Mr Zellner was not called as a witness. Her Honour accepted Mr Keable's version of the event. I have set it out in [9] above. There was no reference of any express character to the question of whether Mr Keable should or should not read the document. The most that could be said is that Mr Zellner indicated that there was some degree of urgency about execution by indicating that, if the documents were not signed, the Yamaha franchise would not be available to the company. Nothing in the comments made, or in the surrounding circumstances as described in the evidence, suggest that the degree of urgency was of a character which would militate against the Respondent reading the document. In my opinion, in this respect the Appellant's contentions are made out. There was no evidence of pressure to sign without reading.

36 The second matter to which the Appellant drew attention was her Honour's reference, on a number of occasions, to the Guarantee as being "onerous" and "complex". Her Honour applied the word "onerous" in each of pars [68], [73] and [76] of her judgment which I have set out above. (Note the reference in both the second and the last sentences of par [68].) On occasions the reference to the "onerous" nature of the Guarantee was combined with a reference to its alleged 'complexity' (see par [68] last sentence and par [76]).

37 The Appellant submits that the Respondent's pleadings did not make any allegation that the Guarantee was either onerous or complex. Nor did he give any evidence that, even with hindsight and having read it, he found it to be either. In any event, the Appellant contends that the Guarantee is not complex. Furthermore, it submits that it was not onerous, save in so far as any guarantee was capable, in circumstances in which the party's expectations are not realised, of giving rise to significant obligations.

38 In my opinion the Appellant is correct. There is nothing particularly complex about the Guarantee. The document is set out in reasonably straightforward language. Its effect and purpose is clear. It contains a large number of sub-clauses designed to extend the scope of the Guarantee. However, neither its terminology nor length are such as a person of normal literacy would be unable to comprehend.

39 It may be that a lay person would not necessarily understand that the guarantee did not automatically terminate when the guarantor ceased to be a director. By the conversation he had with Mr Zellner, the Respondent was apprised of the relevance of that consideration. However, neither at that time nor subsequently, when he ceased to be a director, did he taken any steps to confirm the lay opinion he had received from Mr Zellner.

40 Nor, in my opinion, is there anything particularly onerous about the terms and conditions of the Guarantee so as to justify the description of "onerous", save insofar as any guarantee is capable of giving rise to significant obligations if the person primarily liable defaults.

41 Mr Parsons submitted that her Honour only used the term "onerous" by way of emphasis of the weighty nature of the obligations. I do not believe that that fully explains her Honour's use of the term. She referred to the "onerous form of guarantee" (at [68] and [76] [emphasis added]). This suggests that her Honour was referring to the contents of the Guarantee, as distinct from the general nature of guarantees.

42 The obtaining of guarantees from directors is a common transaction in Australian commercial practice. It is a product of the combined effect of limited liability and of tax incentives to incorporate small businesses or to operate through family trusts with corporate trustees. The general nature of what a guarantee entails is part of the usual knowledge of the overwhelming majority of persons who become company directors, particularly since the removal of the requirement that all companies must have two directors. In the present case, this knowledge is reinforced by the plain English statement on the front page of the Guarantee, identifying the nature of the obligations assumed and the importance of reading and understanding the terms and conditions.

43 Her Honour found expressly, and in my view correctly, that none of the terms and conditions of the Guarantee were either unreasonable or unjust. In my opinion, the Appellant's submission, that her Honour's reference to the complexity or onerous nature of the Guarantee was not an inference open to be drawn, should be upheld.

44 The Appellant also contended that her Honour's conclusion that in some manner Mr McDonald had "delegated" the execution of the Guarantee on behalf of the Appellant to Mr Zellner was in error. The word "delegated" appears in [66] of her judgment as set out above. It was on the basis of this finding, together with the underlying primary findings of fact, that her Honour concluded that Mr Zellner was acting "on behalf of" the Appellant for purposes of s84(2) of the Trade Practices Act (see at [66]) and also, for purposes of s9(2)(j) of the Contracts Review Act (see at [75]).

45 The reference to s9(2)(j) is a reference to a provision with respect to a person acting on behalf of another who has employed, relevantly, "unfair tactics". Her Honour earlier found at [74], also as quoted above, that "Mr Zellner's misrepresentation constituted an unfair tactic".

46 I should note that her Honour's reference to "unfair tactic" in par [74] was made in the context of the Contracts Review Act claim. Her Honour made no reference to the identical provision in s51AC(3)(d). Indeed, her Honour did not refer to any of the matters set out in s51AC(3).

47 At no stage during the course of her Honour's reasons on the 'delegation' issue, does her Honour draw attention to a significant factor with respect to the execution of documents. Mr Keable did not only execute the Guarantee. He also signed, as one of three Directors, the execution of the Bailment Agreement by the company under its common seal. Nothing in the evidence suggests any differentiation in the circumstances when he executed the Bailment Agreement, on the one hand, and the annexed Guarantee and Indemnity, on the other hand.

48 It is quite clear that Mr McDonald left both agreements, effectively constituting one document, with Mr Zellner for execution by the other directors.

49 It was the company, Parry's, in which Mr Keable had a financial interest, that wished to enter into the Bailment Agreement, a condition of which was that directors execute a Guarantee, as is common in Australian commercial practice. I do not see how it can be inferred that the execution of either document was in any way "on behalf of" the Appellant. In each case, the purpose of the signatures, as with Mr Zellner's statements with respect to the Guarantee, were actions made on behalf of Parry's, being the company which wished to enter into the commercial relationship with Yamaha which would be financed under the Appellant's floor plan.

50 The Respondent submitted that in the present case the circumstances were such that a conclusion that the task had been "delegated" was open to her Honour and ought to be drawn. Mr Parsons drew attention to Mr McDonald's evidence that he had only called on the Parry's place of business to obtain execution of the documents because it happened to be on his way home. This was not a task he would normally carry out. Mr McDonald gave the following evidence at Black AB12 E-I: "Q And on occasions, that part of the job could entail explaining what the documentation was that was being presented … just what it was? A The - basically, this is - yeah the document itself, but not the contents. Q But what it was and how it worked? A Yes."

51 Mr Parsons submitted that this indicated an understanding on the part of Mr McDonald that part of his function was to explain the document in a manner which Mr Zellner eventually took upon himself to do, i.e. to the effect that liability ceased upon resignation as a director.

52 In my opinion, this evidence contradicts any such suggestion. Mr McDonald expressly said that it was not part of any function he was to perform to explain "the contents of the document". The reference, to which he acceded, that it was part of his function to explain "how it worked" was, in the context, no more than an acknowledgement that he might explain the general nature of the document. This concession did not extend to explaining the legal effect of the document.

53 In my opinion, there is no basis for drawing the inference that, in some manner, Mr McDonald had delegated any part of a process of explanation to Mr Zellner. Accordingly, it is not appropriate to draw the conclusion, for purposes of s82(4) of the Trade Practices Act or s9(2)(j) of the Contracts Review Act, that the misrepresentation was made "on behalf of" the Appellant.

54 It was in this respect that her Honour considered the reasoning of the Federal Court in Lisciandro v Official Trustee in Bankruptcy (1995) ATPR s41-436; and on appeal Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180. That case involved a similar situation to the present. A company had faxed a document, including a director's guarantee, to a particular director of the company who obtained the execution of the document by other directors, including by a director who was not literate in the English language and suffered from a range of disabilities, which the Respondent did not have.

55 Even in such circumstances, Kiefel J concluded, at 40,904 in a passage approved in the Full Court at 189 and 197, and bearing in mind that the company in that case Alminco was in the same position as the Appellant, TAG was in the same position as Parry's and Mr Radford was in the same position as Mr Zellner: "In the present case Alminco was dealing with Mr Radford as it would with any potential purchaser. It was not asking him or directing him to pursue its own activities in the supply of equipment. Rather, as a potential purchaser on credit, it required him to fulfil certain conditions. From that point it was up to him to fulfil them or not, if he wished his company to transact business on that basis with Alminco. In reality he was acting for them in the course of TAG's business or his own affairs and activities in obtaining the guarantee. To hold otherwise, it seems to me, would render responsible every company who required potential customers to satisfy particular conditions."

56 In my opinion, the same inference should be drawn in the present case. Mr Zellner was acting on behalf of Parry's when he asked Mr Keable to execute the Bailment Agreement and also when he asked him to execute the Guarantee. They were interrelated transactions and there was no differentiation in his role.

57 Her Honour sought to distinguish Lisciandro on the basis that the person in the position of the Appellant supplied the documents to the company, rather than to an individual. Her Honour found that, to repeat the passage from [66]: "In the present case, Mr McDonald apparently intended to explain the general nature of the documents and, if it was convenient, to secure execution of the document itself."

58 Whether or not Mr McDonald had any such intention does not appear from the evidence. The only evidence in support of this conclusion is that quoted above. The most that the evidence suggests is that an explanation of "the general nature of the documents" may be given on an occasion of execution. It was never suggested by Mr McDonald that his intention was in fact to offer any such explanation on this occasion. In any event, a reference to the general nature of the documents is not capable of extending to an explanation of the particular legal effect, of the character that was in fact given by Mr Zellner. Indeed, Mr McDonald's evidence, in the very passage which her Honour otherwise accepted, was to the contrary. He expressly said that he would not explain the contents.

59 In my opinion, Lisciandro is indistinguishable. It is supported by other authority. (Barclay's Bank v O'Brien [1994] 1 AC 180 at 193-194; HG & R Nominees Pty Ltd v Fava [1997] 2 VR 368; Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 at 105-106; NMFM Property Pty Ltd v CitiBank Ltd (2000) 107 FCR 270 at [1240]-[1246].) Plainly with respect to the application of s82(4) of the Trade Practices Act this Court would follow the Full Federal Court, unless convinced that it was wrong. On this occasion I am satisfied that the Federal Court is correct. Furthermore I am satisfied that the same reasoning applies to s9(2)(j) of the Contracts Review Act.

60 The Appellant's final challenge to her Honour's findings was with respect to her Honour's characterisation of cl 12 of the Guarantee and Indemnity concerning an acknowledgment on the part of the guarantor of having sought legal advice with respect to the Guarantee. Her Honour characterised cl 12 as a "scheme designed to ensure that prospective guarantors obtained independent legal advice and fully understood the guarantee" [68]. Her Honour also found that the Appellant "systematically failed to adhere to the scheme which it had devised to ensure that independent legal advice was obtained" [76]. The Appellant contends that this was a mischaracterisation of the effect of cl 12 and in particular objected to the use of the word "scheme".

61 Clause 12 speaks for itself. I have set it out above. It envisages an acknowledgment on the part of the guarantor that he or she had been advised to obtain advice, and had consulted and received advice, as evidenced by a certificate. It further acknowledged that he or she fully understood the obligations created by the guarantee. On the evidence of Mr McDonald it does appear that the company did not, as a matter of practice, implement at least that part of cl 12 which called for obtaining a certificate.

62 I do not find her Honour's characterisation of the provisions as a "scheme" to ensure that legal advice has in fact been obtained to be inappropriate. If there were only a general acknowledgement about advice and understanding, being pars (a) and (c) of cl 12, the position may have been otherwise. However, in my opinion, cl 12(b), requiring a system of certification, is open to the characterisation which her Honour adopted. Unjustness and Unconscionability

63 There is considerable overlap in the issues that arise under the two statutory regimes upon which the Respondent successfully relied in the present case. Nevertheless, they are distinct in a number of respects. Her Honour formally made the orders pursuant to the cause of action under the Contracts Review Act. By way of Notice of Contention, the Respondent has submitted that the same orders would be made on the basis of the unconscionability case.

64 Mr Parsons placed considerable reliance on the proposition that the actual default occurred by reason of matters arising subsequent to the resignation of Mr Keable as a director of Parry's. As I have indicated above, it is not contested that the motorcycles found to be missing had in fact been present in the stock of Parry's at the time that Mr Keable was a director. Further, Mr Parsons drew on an analogy with cases on equitable estoppel, to submit that the relevant unjustness, or unconscionable conduct, can arise when the Appellant asserts its legal rights, in the light of all the events that have occurred.

65 In my opinion, these matters are not pertinent to the claim under the Contracts Review Act. Section 7(1) creates a jurisdiction to make the appropriate orders when the court determines that the contract was "unjust in the circumstances relating to the contract at the time it was made". It is permissible, indeed required by s9(1), to have regard to the consequences or result arising from compliance or non-compliance with the contract. However, it is not, in my opinion, permissible to rely on the fact that the breach of the primary obligation which actually triggered the guarantee arose only after the Respondent ceased to be a director, as constituting the time when the issue of "unjustness" should be determined. However, this consideration is pertinent to the exercise of the discretion to grant relief which is to be directed, in accordance with the express terms of s7(1) of the Act, to "the purpose of avoiding as far as practicable an unjust consequence or result".

66 Similarly, in the case of the Trade Practices Act claim, an issue identifying the timing of the conduct arises from the terms of, relevantly, s51AC(2) that a person must not in trade or commerce engage in conduct that is "in all the circumstances unconscionable", in connection with the supply of services to a corporation. The reference to "the circumstances" is directed to the time at which the relevant "conduct" occurs and the relevant "connection" with the "supply of services" exists. The identification of certain matters, in a non-exhaustive manner, with respect to the supply of goods or services in s51AC(3), also identifies, insofar as there is any specification, the time of the relevant conduct as the time at which the 'unconscionability' must be determined. Furthermore, s51AC(6) expressly states that, with respect to determining unconscionability, the court is not to have regard to circumstances not reasonably foreseeable at the time of the alleged contravention. Mr Parsons did not suggest that the matters he referred to were reasonably foreseeable. Nevertheless, subsequent events may be of significance with respect to the exercise of discretion to make remedial orders under, relevantly, s87.

67 With respect to each of the Trade Practices Act claim and the Contracts Review Act claim, the Respondent relied on the conduct of Mr Zellner in giving an explanation of the effect of the contract. Mr Parsons accepted that the Respondent did not suffer from any special disadvantage and that the case stands or falls on the conduct of Mr Zellner. He accepted that, without Mr Zellner's representations, there could be no case on either basis.

68 For the reasons I have set out above, it cannot be said that Mr Zellner's representations were made on behalf of the Appellant. Nevertheless, that is not a complete answer to the issue of "unjustness" or of "unconscionability". Her Honour found each to exist even on the assumption that Mr Zellner was not acting on behalf of the Appellant. The fact that the representation was made remains a relevant consideration in each case, albeit not as conduct attributable to the Appellant.

69 Although the fact that the Appellant did not know the misrepresentation had been made does not make it irrelevant to the formulation of each statutory judgement, it does diminish the weight which the misrepresentation would receive under each statutory regime, if there was such knowledge, whether actual, imputed or constructive. In each case, in my opinion, Mr Zellner's conduct is not, in the circumstances, entitled to significant weight.

70 Mr Zellner's characterisation of the contract was in error. However, to say that a misrepresentation has been made and, therefore, that there was false or misleading conduct in trade or commerce, is a long way from a conclusion of unconscionability, (see ACCC v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [184]-[185]) or of unjustness. In my opinion, her Honour erred in inferring that the false or misleading conduct on the part of Mr Zellner could be said to have constituted unconscionable conduct, of itself.

71 Mr Keable fully understood the significance of the act of signature. The Appellant made that fact abundantly clear in the plain English instruction on the front page of the document set out at [4] above. The Appellant bears no responsibility for the Respondent's failure to read the document.

72 As Latham CJ said in Wilton v Farnworth (1948) 76 CLR 646 at 649: "In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."

73 A recent joint judgment of the High Court, after quoting this passage, added: "[45] It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it."

(Toll (FGCT) Pty Ltd v Alpha Pharm Pty Ltd [2004] HCA 52; 79 ALJR 129 at [45].)

74 In the present case there was also such a "perfectly legible written request". (See par [4] above.) Although these cases were not concerned with the two statutory provisions presently under consideration, the reasoning is pertinent to a finding of "unjustness" or "unconscionability". As Gleeson CJ said in a Contracts Review Act case, in terms readily adaptable to the issue of statutory unconscionability, "… the general policy of the law is that people should honour their contracts. That policy forms part of our idea of what is just". (Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 at 98).

75 Furthermore, as Bryson J said in Burt v Australian and New Zealand Banking Group Ltd (1994) ATPR (Digest) 46-123 at 53,597-53,598: "The ordinary means of establishing in honesty and fair dealing that a person with whom one is dealing knows the nature and terms of a document which one proposes should be signed is to put the document before that person for signature. The opportunity to find out what is in the document is there, available to that person, who can use the opportunity in whatever manner is thought right. Unless the person with whom one is dealing is known to be at some special disadvantage, this is as much as conscience requires. There is no reason why it is unconscionable per se for a bank to deal with and take a guarantee from a person who is closely related to or otherwise well disposed towards a customer; indeed that is the ordinary case in which a guarantee is available. Unconscionability is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person's legal rights."

76 This reasoning is applicable, with terminological change, to the process of determining 'unjustness' and 'unconscionability' under each legislative regime in issue in the present case. The decision not to read the Guarantee was that of Mr Keable alone.

77 Insofar as her Honour suggested that there was some kind of "pressure" exerted by Mr Zellner in favour of execution, the only evidentiary basis for this is Mr Zellner's suggestion that the execution of the Guarantee was essential for Parry's to obtain the Yamaha franchise. I do not see this as constituting, in the circumstances, pressure of any character, let alone unfair pressure, let alone, as her Honour found, an "unfair tactic". It was not a "tactic" attributable to the Appellant in any way. Furthermore, it was an accurate statement. Nothing in the surrounding circumstances suggested any significant urgency; or that the Respondent's will was in any sense being overborne; or that he was being pressurised into refraining from taking proper steps to understand the implications of what he was being asked to do, or to otherwise make proper inquiries, or to protect his own interests, or to read the document, or to take advice.

78 It was clear, on the evidence, that Mr Keable was often prepared to act on the faith of what Mr Zellner told him, notably with respect to the vagueness about his own equity participation in the company, where he had paid $70,000 without documentation and without any clarity about what he actually received. That Mr Zellner apparently displayed some characteristics which indicated that he did not respond well to his will being thwarted is not of any great significance in the case against the Appellant.

79 There was nothing in Mr Keable's personal situation which suggested that there was any element of unfairness in his acceding to these personal characteristics of Mr Zellner. In particular, there was nothing which suggested that he was not able to read the document for himself or, if necessary, call on advice from his solicitor when entering a commitment of this character. He used solicitors who acted for him on the purchase of real property, for a divorce and to set up a family trust, of which he was a director, to hold his interest in Parry's. He had an accountant. He owned investment properties. The Respondent agreed that he had ready access to legal and accounting advice if he had thought it appropriate to seek such advice. (See T71-72.) Instead, he trusted Mr Zellner.

80 I have indicated above that, in my opinion, the Guarantee cannot be described as "onerous". Nor can it be described as "complex". As her Honour found, none of the terms and conditions were unreasonable or unjust.

81 I have, however, also indicated that her Honour was entitled to find that cl 12 of the Agreement contemplated the giving of advice about the need to obtain legal advice together with a scheme for certification to indicate that such advice had been obtained. No doubt this was primarily for the protection of the Appellant. However, that form of characterisation does not prevent the failure to implement the scheme constituting an element entitled to weight in the decision as to whether or not the contract was unjust for purposes of s7 of the Contracts Review Act and, for much the same reasons, that entry into the contract was at the time unconscionable for purposes of s51AC of the Trade Practices Act. (See with respect to the former provision Perpetual Trustee Company Pty Ltd v Khoshaba [2006] NSWCA 41 esp at [79]-[81].)

82 The failure to pursue the legal advice and certification mechanism was not of the same character as the failure to follow the guidelines in Khoshaba see supra at [82]-[85]. Given the terms and clarity of the Guarantee, the understanding on the part of Mr Keable of its essential quality, and the absence of any form of relevant disability in either himself understanding, or obtaining advice with respect to, the Guarantee, in my opinion the failure to follow the scheme in cl 12 is not entitled to determinative weight, whether for the determination of unjustness or unconscionability.

83 The Appellant also relied on evidence given by the Respondent with respect to a matter about which her Honour made no findings of primary fact. The Respondent filled out a document being a "personal financial statement" addressed to YMAF Pty Ltd, the Appellant. It constitutes a statement of the assets of the Respondent. In the course of cross-examination (see T77-79 and second day 1-3) Mr Keable asserted that this document was signed at some stage after he signed the Guarantee. He did not expressly acknowledge an understanding that the purpose of providing such information was to support the application to the Appellant to enter the Bailment Agreement, supported by the guarantees. Her Honour did not make any factual finding in this regard but, the probability must be that the Respondent understood that the document was required for purposes of these arrangements.

84 In this personal financial statement the Respondent asserted that he had assets of $1,555,000 and liabilities of $375,000. Included in the assets was an amount of $500,000 as an estimate of his interest in Parry's, being the value suggested by Mr Zellner. Also included was an amount of $780,000 as the value of real estate, about which he was cross-examined without making any clear concession. However, with respect to his estimate of the value for his motor cars he owned, he accepted in cross-examination that the estimate of $102,000 was a "gross exaggeration" (T77 line 33).

85 Irrespective of the particular timing of the filling out of this document, it is clearly a document entered into in support of the Guarantee and its content. The exaggeration of one asset and an apparent indifference to the value of another asset, namely the interest in Parry's, revealed in cross-examination, is pertinent to the determination of unjustness in the present case.

86 The Appellant relied, in the Contracts Review Act case, on s9(2)(l) which identifies the commercial purpose and effect of the contract as a matter to which the Court should have regard. I agree that this matter is entitled to weight. The Guarantee was provided as a requirement of a financing plan for the acquisition of a franchise in a business in which the Respondent had a financial interest. He understood that that was what it was for.

87 I do not find it necessary to consider each of the subparagraphs of s9 of the Contracts Review Act or of s51AC(3) of the Trade Practices Act. I have identified those which were relied upon by the parties, and in her Honour's judgment, as pertinent to the present proceedings.

88 In my opinion the contract of Guarantee was not "unjust" within the meaning of s7 of the former Act. Nor was any conduct involved in the entry into the Guarantee "unconscionable" within the meaning of s51AC.

89 In my opinion, the appeal should be allowed with costs. The orders I propose are: 1 Appeal allowed.

2 The Respondent's cross claim of 31 May 2004 is dismissed.

3 Judgment for the Appellant in the sum of $424,498.41.

4 The Respondent to pay the Appellant's costs of the trial and of the appeal. 5 Respondent to have a certificate under the Suitors' Fund Act if otherwise entitled.

90 GILES JA: I agree with the orders proposed by Spigelman CJ, and with one qualification with his Honour's reasons. I have some difficulty in seeing any misconduct by the respondent in filling out the personal financial statement, see paras [83]-[84], as pertinent to the determination of unjustness, see par [85]. Even putting that aside, I do not think that there was unjustness or unconscionability.

91 GZELL J: I agree with Spigelman CJ.

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