Commissioner for Fair Trading v Jonval Builders Pty Ltd

R v Burdett (1820) 106 ER 873 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; [1982] FCA 336 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Westpac Banking Corporation v Jamieson & Ors (2016) 1 Qd R 495; [2015] QCA 50 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Texts Cited: Moore H, Australian Concise Oxford Dictionary (4th ed, 2003) The Macquarie Dictionary (3rd ed, 1997)) Wigmore J, A Treatise on the Anglo-American System of Evidence (3rd ed, 1940) vol 2, s 285, at 162 Category: Principal judgment Parties: Commissioner for Fair Trading (Plaintiff) Jonval Builders Pty Limited ACN 005177793 (First Defendant) Hacienda Caravan Park Pty Limited (Second Defendant) John Allan Willmott (Third Defendant) Representation: Counsel: R Francois / K Jones (Plaintiff) A J H Morris QC / L A Jurth (Defendants)

Solicitors: Fair Trading Legal Services (Plaintiff) Worcester & Co Solicitors (Defendants) File Number(s): 2015/291362

Judgment

1. HIS HONOUR: By Further Amended Statement of Claim, filed 19 April 2018, the Commissioner for Fair Trading (NSW) (hereinafter "the Commissioner") seeks orders against Jonval Builders Pty Limited (hereinafter "Jonval"), Hacienda Caravan Park Pty Limited (hereinafter "Hacienda") and John Allan Willmott. Essentially, the plaintiff alleges that the defendants, where relevant, have each engaged in misleading or deceptive conduct and unconscionable conduct.
2. The plaintiff seeks declarations that the defendants' conduct was unlawful and contravened the Fair Trading Act 1987 (NSW) (hereinafter "FTA") and the Australian Consumer Law (NSW) (hereinafter "ACL"). The Commissioner is also seeking restraining orders enjoining the defendants from engaging in further conduct of that kind; orders that the defendants jointly and severally compensate and/or pay damages to the relevant consumers for losses that have been suffered; and the Commissioner seeks costs.
3. In short, the Commissioner alleges that the defendants conducted a caravan park (hereinafter referred to as "Hacienda Park") and sold what were described as "permanent" holdings, containing a caravan, registrable or un-registrable mobile dwellings ("RMD" or "UMD" respectively) to the "consumers" (more accurately the purchasers/occupiers), who are identified (and will be identified later in these reasons), in circumstances where it was unlawful to provide permanent residences on those sites. The caravans or mobile dwelling sites were called, during the course of the proceedings, Marina Villa Sites and the mobile dwellings have been referred to as the Marina Villas or Villas.
4. For the provision of those permanent sites, Jonval marketed and sold the Villas and Hacienda charged the consumers a weekly park fee as well as a payment of a lump sum for the use of the site, the latter being a "key-money" premium for the Villa on the site, some more complete explanation will be provided later in these reasons.
5. The Marina Villa Sites were situated on the water's edge and, as a consequence, were marketed at a more expensive rate than a site that was not so situated. It is alleged that the defendants misled the consumers in representing to them that the sites were "permanent" and otherwise acted unconscionably in the marketing and sale of the Marina Villas and Marina Villa Sites. I will discuss the detailed allegations later in these reasons.

Legislation

1. As earlier stated, orders are sought, declaratory and otherwise, pursuant to the terms of ss 42 and 43 of the FTA. Further, orders are sought under ss 18 and 21 of the ACL. Orders are also sought under ss 65 and 72 of the FTA and ss 232, 237 and 243(d) of the ACL.
2. The multiplicity of legislative provisions arises because the FTA was amended, with effect on 1 January 2011, and the conduct in question is said to have occurred before and after 1 January 2011. The effect of the amendments was, essentially, to vary the name and number of the provisions, but the substance of the provisions remained the same, or substantially the same. Nevertheless, as a matter of abundant caution, it is appropriate to set out those provisions:

Fair Trading Act (pre-2011) "42 Misleading or deceptive conduct (1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1). 43 Unconscionable conduct (1) A supplier shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a consumer, engage in conduct that is, in all the circumstances, unconscionable. (2) Without limiting the matters to which the Supreme Court may have regard for the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services, the Court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the consumer, (b) whether, as a result of conduct engaged in by the supplier, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier, (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services, (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer (or a person acting on behalf of the consumer) by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services, and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier. (3) A supplier shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a consumer only because the supplier institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration. (4) For the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services to a consumer: (a) the Supreme Court shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention, and (b) the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this Act. (5) (Repealed) (6) A reference in this section to the supply or possible supply of goods includes a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce. … 65 Injunctions (1) Where, on the application of the Minister, the Director-General or any other person, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of a provision of Part 3, 4, 5, 5A, 5B, 5C, 5D, 5E, 5F, 5G or 8, (b) attempting to contravene such a provision, (c) aiding, abetting, counselling or procuring a person to contravene such a provision, (d) inducing, or attempting to induce, whether by threats or promises or otherwise, a person to contravene such a provision, (e) being in a way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision, or (f) conspiring with others to contravene such a provision, the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) Without prejudice to the generality of subsection (1), an injunction granted under that subsection may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business): (a) for a specified period, or (b) except on specified terms and conditions. (3) Where an application for an injunction under subsection (1) has been made, the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1). (4) Where in the opinion of the Supreme Court it is desirable to do so, the Court may grant an injunction pending determination of an application under subsection (1). (5) The Supreme Court may rescind or vary an injunction granted under subsection (1), (3) or (4). (6) The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind, (b) whether or not the person has previously engaged in conduct of that kind, and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. (7) The power of the Supreme Court to grant an injunction requiring a person to do an act or thing may be exercised: (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing, (b) whether or not the person has previously refused or failed to do that act or thing, and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. (8) Where the Minister or the Director-General makes an application to the Supreme Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertaking as to damages or costs. (9) If: (a) in a case to which subsection (8) does not apply, the Court would, but for this subsection, require a person to give an undertaking as to damages or costs, and (b) the Minister gives the undertaking, the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person. (10) If the Court grants an injunction in relation to goods the supply of which would constitute an offence under Part 3, the Court may make such order as it thinks fit with respect to disposal of the goods. … 72 Other orders (1A) A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 5 (section 43 excepted), include a reference to: (a) the death of a person, or (b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease). (1) Without limiting the generality of section 65, if, in a proceeding instituted under this Part, or for an offence against Part 3, 4, 5, 5B, 5C, 5D, 5F or 8, the Supreme Court finds that a person has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8, the Court may, whether or not it grants an injunction under section 65 or makes an order under section 67 or 68, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the first-mentioned person wholly or in part for the loss or damage or will prevent or reduce the loss or damage. (2) Without limiting the generality of section 65, the Supreme Court may, on the application of a person who has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8 or on the application of the Director-General in accordance with subsection (4) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, wholly or in part for the loss or damage or will prevent or reduce the loss or damage. (3) An application may be made under subsection (2) in relation to a contravention of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8 even if a proceeding has not been instituted under another provision of this Part in relation to the contravention. (4) Where, in a proceeding instituted for an offence against Part 3, 4, 5, 5B, 5C, 5D, 5F or 8 or instituted by the Minister or the Director-General under section 65, a person is found to have engaged in conduct in contravention of a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8, the Director-General may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but the Director-General shall not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made. (5) The orders referred to in subsections (1) and (2) are: (a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Supreme Court thinks fit, to have been void from its beginning or at all times on and after such date before the date on which the order is made as is specified in the order, (b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified, (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement, (d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage, (e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage, (f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person's own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage, (g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person's own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage, and (h) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that: (i) varies, or has the effect of varying, the first-mentioned instrument, or (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument. (6) An application under subsection (2) may be made at any time within 6 years after the date on which the cause of action that relates to the conduct accrued. (6A) Subsection (6) does not apply to a cause of action to which Division 6 of Part 2 of the Limitation Act 1969 applies. (7) For the purpose of determining whether to make an order under this section in relation to a contravention of section 43, the Court may have regard to the conduct of the parties to the proceedings since the contravention occurred. (8) The powers conferred on the Supreme Court under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement."

General principles on misleading and/or deceptive conduct

1. The provisions of s 18 of schedule 2 of the ACL are in the same terms as the provisions of the former s 52 of the Trade Practices Act 1974 (Cth) on which there is much authority and in relation to which certain general principles have been accepted. The first and possibly the most important principle is that the words of the section ought not be given a gloss but applied in their ordinary and natural meaning and wide import.
2. The provision is not based upon any previously applicable cause of action in common law or equity. Nevertheless, concepts involved in the tort of deceit and passing off may be helpful in understanding any particular conduct that may arise under the act: Brown, Lionel & Anor v Jam Factory Pty Ltd & Anor (1981) 35 ALR 79; [1981] FCA 34.
3. The provision does not, of itself, create a liability, but prohibits conduct in trade and commerce, a contravention of which will give rise to damages, pursuant to the other provisions of the statute.
4. The conduct that is proscribed by the provisions of s 18 of the ACL is conduct that is misleading or deceptive or likely to mislead or deceive. For present purposes and the purposes of these reasons for judgment, the Court will use the term "misleading or deceptive" to include the circumstance that it is "likely to mislead or deceive". Conduct, as it is described in s 18(1) of the ACL, includes the making of a representation or statement which is misleading or deceptive.
5. It is necessary for a plaintiff, or person seeking damages, to satisfy the Court that the misleading or deceptive conduct led to the making of a decision or consequential conduct by the plaintiff or person who suffered damage. In this sense, the ordinary principles relating to causation apply.
6. However, the authorities established that, because of the use of the term "likely to mislead or deceive", all that is required is for there to be a real and not remote chance or possibility. It is not necessary to show that the possibility is more probable than not.
7. The section requires an objective assessment, by the Court, of the conduct in question and is not concerned, directly, with the subjective belief induced by the conduct. Nevertheless, the effect needs to be one that will likely affect the mind of the person, who is purportedly misled or deceived, and it is that which the Court assesses.

General Principles as to Unconscionable Conduct

1. The terms of s 21 of the ACL have already been recited. To understand s 21 of the ACL, it is necessary to compare it with the provisions of s 20 of the ACL.
2. By the provisions of s 20 of the ACL, a standard of conduct is prescribed such that a person is prohibited, in trade or commerce, from engaging in conduct that is unconscionable, within the meaning of the unwritten law from time-to-time.
3. The unwritten law, to which s 20 of the ACL refers, is or includes the concept of unconscionability in equity and applies when one party to a transaction is at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affecting her or his ability to protect her or his own interest and the other party unconscientiously takes advantage of the opportunity thus placed in his/her/its hands: Blomley v Ryan (1956) 99 CLR 362 at 415; [1956] HCA 81. See also Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, per Mason J at 461 and per Deane J at 474; [1983] HCA 14.
4. The foregoing should not be taken as a codification of that which may be able to be remedied by equity under the rubric of unconscionability. But it does not include unfair practice, simpliciter.
5. The only other comment that needs to be made for present purposes is that for equity to relieve unconscionability, it is unnecessary that the party taking advantage of the special disadvantage actually caused that disadvantage. It is sufficient if the party were aware of the special disadvantage and took unfair advantage of the opportunity presented.
6. The plaintiff in these proceedings relies on s 21 of the ACL, which is a provision that is wider in effect than the provisions of s 20 of the ACL. By operation of s 21(4) the Parliament has expressly provided that the operation of s 21 is not limited by the unwritten law relating to unconscionability.
7. Further, the Parliament has prescribed criteria which a Court may take into account in determining whether a person has contravened s 21 of the ACL. Again, the Parliament has expressly provided that the criteria, prescribed by s 22 of the ACL, do not limit the matters to which a Court may have regard.
8. Those criteria include: the relative strengths of the bargaining position of the supplier and the customer; the capacity of the customer to understand any documents relating to the supply or possible supply of the goods or services; any undue influence or pressure or unfair tactics used against the customer by the supplier; comparable costs of acquisition of the goods or services from a person other than the supplier; the consistency of the supplier's conduct towards one customer as against others; industry codes; the extent to which the contract governing the supply of the goods or services was able to be negotiated; the terms and conditions of any such contract; and the extent to which the supplier and the customer acted in good faith: see s 22(1) of the ACL.

The Meaning of 'Unconscionability'

1. It is important to understand that notwithstanding the fact that s 21 is of broader reach than the unwritten law relating to unconscionability, the term "unconscionable" does not equate with "unfair". The conduct must still be unconscionable, albeit that unconscionability is not confined to a situation where the purchaser, relevantly, is under a special disadvantage known to the vendor. It does require that the conduct show "no regard for conscience"; be inconsistent with that which is right or reasonable; importing a pejorative moral judgment: Hurley v McDonald's Australia Ltd [1999] FCA 1728, per Heerey, Drummond and Emmett JJ.
2. Ordinarily, unconscionability requires moral fault or responsibility rather than mere negligence and, in that regard, involves an intentional act. The limits of the meaning of "unconscionable" have not been adumbrated. Nor should they be. Nevertheless, it, at least, includes the dictionary definition, which are actions showing no regard for conscience or that are irreconcilable with what is right or reasonable: Qantas Airways Ltd v Cameron (1996) 66 FCR 246; [1996] FCA 1483 and involve a pejorative moral judgment.
3. In Australian Securities and Investments Commission v Kobelt (2019) 93 ALJR 743; [2019] HCA 18, the High Court recently considered the issue of unconscionability. In the joint judgment of Kiefel CJ and Bell J, their Honours said: "[57] ASIC refers to Australian Competition and Consumer Commission v Lux Distributors Pty Ltd as illustrative of the correct approach. The Full Court of the Federal Court of Australia found that Lux Distributors Pty Ltd ('Lux') engaged in conduct in connection with promotion and supply of vacuum cleaners to three elderly customers that was, in all the circumstances, unconscionable contrary to s 51AB of the Trade Practices Act 1974 (Cth) and s 21 of the Australian Consumer Law. This was so notwithstanding the customers' voluntary entry into the sale contracts. The normative standard applied in Lux was that of 'honest and fair conduct free of deception'[51]. Notably, Lux's sales strategy employed a deceptive ruse to gain access to the customer's home and, once entry was gained, a selling technique that was designed to create a sense of obligation to purchase. [58] Recognition that the supplier of a financial service may engage in conduct that is unconscionable, notwithstanding the recipient's voluntary entry into the contract for the supply of the service, does not make the absence of the exertion of undue influence an irrelevant consideration. Section 12CC(1)(d) invites the court to consider 'whether any undue influence or pressure was exerted on, or any unfair tactics were used against' the recipient of the financial service (emphasis added) as one of the factors to be weighed in determining whether, in all the circumstances, the supplier's conduct is unconscionable. The absence of the exertion of undue influence, pressure or unfair tactics bears on the assessment of whether the commercial advantage obtained by the supplier in connection with the supply of the financial service is an unconscientious advantage. [59] For the same reasons, ASIC's challenge in its second ground to the weight given by the Full Court to the finding that Mr Kobelt did not act dishonestly must be rejected. ASIC argues that, to the extent that notions of moral tainting or obloquy 'suggest[s] a need for dishonesty or something more than the taking advantage of the special disadvantage' of the recipient, they are unhelpful in applying the statutory standard of unconscionability in the ASIC Act and cognate legislation. The submission does not go anywhere. It may be accepted that conduct in the supply of a financial service may be unconscionable in circumstances in which the supplier's conduct does not involve dishonesty. This is not to say that the absence of dishonesty, or other moral taint, is not a material consideration in determining whether, objectively, the supplier's conduct involves such a departure from accepted community standards in the supply of the financial service as to warrant the characterisation that it is unconscionable. [60] The Full Court made clear that it approached the determination upon a view that consideration of moral obloquy had a role to play but was not a substitute for the statutory words. Their Honours correctly took into account the findings that Mr Kobelt acted with a degree of good faith and not dishonestly as among the circumstances to which it was necessary to have regard in determining whether his conduct fell below the statutory norm of conscience." (Citations omitted.)

Barbara Timms

1. Ms Timms' Affidavit of 3 August 2016 refers to her as the owner of Marina Villa 8 at Hacienda Holiday Park and attests to the fact that she "currently permanently reside[s] at Villa 8". The Villa is, in a somewhat irrelevant aspect of confusion in the proceedings, sometimes referred to a Site 66.
2. Ms Timms had been searching for a place to live, within her price range, after the death of her husband, which required her to sell the house in which they were living. She was referred by her sister-in-law to a website, www.tweedrelocatablehomes.com, to which she gained access.
3. There were three different price ranges, $69,000, $89,000 and $189,900, the latter being on the Tweed River. She was particularly interested in the more expensive Tweed River sites.
4. Ms Timms followed up the website and rang the contact number provided and spoke to a person by the name of Kirsty (Kirsty Simons). The conversation with Kirsty, or words to that effect, is set out at paragraph 7 of the Affidavit of Ms Timms.
5. Kirsty represented to her that the premises had been lived in previously and she made a time and date on which she could see the villas.
6. On the date arranged in April 2010, Ms Timms met Kirsty at the Hacienda Caravan Park. Ms Timms was accompanied by her daughter-in-law, Sue Hayter and her husband, Ian Hayter.
7. A person who identified herself as Kirsty met them at the entrance to the Homestead Park (an adjacent caravan/movable dwelling Park). Apparently, there is some degree of cooperation (and possibly some common Directors) as between Hacienda and Homestead Park. Kirsty showed Ms Timms (and the others) various homes within both Homestead and Hacienda Parks for comparison purposes.
8. The last homes, inspected by Ms Timms, were the Marina Villas. She looked at both Villas 8 and 9 and stood on the verandas of Villas 5, 6 and 7. Ms Timms had a conversation with Kirsty that included the following: "My husband has passed away and I am selling our home. I will be looking to make this my new home."
9. The conversation also included issues about site fees. Kirsty informed Ms Timms that the sites for use were from $139 per week … "the new rent will be $175 a week, it goes up each April, based on CPI. Water and gas is included and electricity is about $40 per month."

Sandra Sorenson

1. Ms Sandra Sorenson swore Affidavits of 1 August 2016 and 25 May 2017. In the Affidavit of 1 August 2016, she attests to the fact that she and her late husband desired to retire and were keen to retire to a place that was close to the water, so that her husband and she could engage in boating and kayaking activities. They had experience of camping and enjoyed that experience.
2. In early October 2010, she was advised of the villa units for sale by a friend and she and her husband decided to camp, casually, at Hacienda Park. That stay made a very good impression and Ms Sorenson said that the park seemed to "tick all the boxes for what we had in mind to buy to retire in".
3. After a conversation between Ms Sorenson and her late husband, they approached the office and a representative of Hacienda, by the name of Peter (Peter Simons), drove them to look at the available locations. They informed Peter that they were looking for a place to live in their retirement.
4. Peter showed them a villa, being a Marina Villa and informed them that it was the last villa left in this size. There was a discussion about the possibility of building a carport and a further mention of their desire to live in the location in their retirement.
5. During the terms of that conversation, or one of the conversations that occurred, an enquiry was made by Ms Sorenson's late husband, as to the capacity to purchase the Villa conditional upon the selling of their current house, which they were in the process of selling. Peter, the representative of Hacienda, as already stated, informed them that this was not possible.
6. They were handed a brochure and shown the inside of the Villa, which they inspected at their leisure.
7. Ms Sorenson attests to the fact that she and her husband inspected under the Villa and noticed that it was sitting on concrete foundations and the power was hard-wired, with an electricity meter that was located at the front of the Villa. This was noticed, particularly, because Ms Sorenson's mother lived in a similar situation in Queensland and her home still had the wheels attached, and was perched on pillars, with extension leads from the power box to the home.
8. On returning home, and after discussion between them, Ms Sorenson's husband rang the number on the advertisement/brochure and said to the person who answered, words to the effect that they wanted to go ahead with the purchase and that their solicitor would be in touch to sort out the sale.

Percy and Gail Hannah

1. Ms Gail Hannah affirmed an Affidavit of 4 August 2016. She is the owner, with her husband Percy, of Marina Villa 7. Percival (Percy) Hannah affirmed an Affidavit of 4 August 2016.
2. Mr and Mrs Hannah had lived in a caravan park during the 1970s and early 1980s, before moving to bigger premises. In October 2010, they decided that they would like to move back to living in a caravan park, as they enjoyed the relaxed lifestyle. They sold the house and decided to examine that which was available.
3. In about late October 2010, Mr and Mrs Hannah went to the Hacienda Park, being the park adjacent to the Homestead Caravan Park, where they had previously resided. They went to the office and were greeted by Peter Simons. Mr Hannah had a conversation that included words with the following effect: Percy Hannah: "We have just exchanged contracts on our home and we are looking for a new permanent home to live in and eventually retire into." Peter Simons: "That's fine there are various sized new homes for sale in the Homestead Park."
4. Mr and Mrs Hannah walked around Hacienda Park and Homestead Park and wanted to inspect the inside of some of the homes. Peter Simons supplied the keys and accompanied them to look at three or four homes of varying sizes. During the course of that inspection, Percy Hannah had a conversation with Peter Simons to the following effect: Percy Hannah: "We would prefer the two-bedroom homes as we have grandchildren that would come and stay from time to time." Peter Simons: "You can have your grandchildren come and sleep over at any time."
5. After inspecting the two parks, Mr and Mrs Hannah decided that they might be interested in a site at Homestead Park, with a carport and enquired whether they could build another carport on the opposite side of the home. The response was that the owner would have to be asked and Peter Simons would let them know.
6. Whilst they were returning to the office, Mr and Mrs Hannah walked through the gate that divides the two parks and noticed the villas on the waterfront. A conversation occurred in the following terms: Peter Simons: "There are two Villas on the waterfront for sale as well. Do you want to have a look at them?" Percy Hannah: "Yes".
7. The Hannah's looked through Marina Villas 6 and 7 and decided that the view from Marina Villa 7 was better. Mr Hannah noticed (as did Mrs Hannah) that the Marina Villa 7 was fixed to the ground. Steel posts set into concrete were supporting the Villa and, after inspecting the outside of Marina Villa 7, a conversation occurred in the following terms or to the following effect: Percy Hannah: "Are these ones also permanent?" Peter Simons: "Yes, they are and you can have your grandchildren sleepover at any time." Percy Hannah: "How much is this one?" Peter Simons: "This one is 189,900." Percy Hannah: "Would you let it go any cheaper?" Peter Simons: "No, they are firm on the price because the other villas would go on the market at a higher price." Percy Hannah: "Oh that would be good" Peter Simons: "Yeah, so if you ever went away at any time, and would like to have the family or friends stay, it would be okay as well and there are no extra fees. Also if you wanted to rent the villa out at any time, it would be okay, as you bought it, it would be yours to do with what you wished."

Brian and Annette Hamilton

1. Annette Hamilton swore Affidavits of 9 August 2016 and 23 May 2017, each of which was read in the proceedings and forms part of Exhibit C2. Brian Hamilton swore an Affidavit of 9 August 2016, which also forms part of Exhibit C2.
2. The terms of the manner in which Brian and Annette Hamilton purchased their Marina Villa are in like circumstances to the circumstances of the purchasers that have already been mentioned. They own Marina Villa 5. They had moved from their initial residence in Cairns to Rainbow Beach and sought to retire to a location closer to the airport and other facilities.
3. Brian Hamilton saw an advertisement, visited the Hacienda website, as well as looking at the location using Google. In April 2010, Mr Hamilton had a conversation with Kirsty Simons on a mobile number obtained from the website, which number is repeated in the Affidavit, which includes the statement from Mr Hamilton that he was "looking for a property to live in permanently with my wife". There was discussion in relation to the Marina Villas.
4. On or around 16 April 2010, Mr and Mrs Hamilton took their caravan to Tallebudgera and Kirsty Simons met them there and drove them to Hacienda Park to view the properties. In the course of the inspection of the properties a conversation occurred, with Kirsty Simons, that included the statement by Brian Hamilton, heard by Annette Hamilton, that they "will be living in the Villa permanently", and would need a carport. To that comment Kirsty agreed a carport would be fine, as long as it wasn't a full garage and consultation with the other villa owners may be necessary and the approval of the park owner would be required. Further, in the course of that conversation, the following words were uttered: Brian Hamilton: "If we buy permanently and the ownership park changes, how will that affect us?" Kirsty Simons: "The Park has been here for 25 years, you won't have to leave."
5. In early May 2010, Annette and Brian Hamilton stayed at Hacienda Park in one of the rented villas near the Marina Villa which they ultimately purchased. During that stage, a further conversation was had between Brian Hamilton and Kirsty Simons, in the hearing of Annette Hamilton, to the following effect: Brian Hamilton: "Look, we love the Villa we want to go ahead with buying it". Kirsty Simons: "You will have to fill in an Occupancy Agreement today and you need to pay your site rent via direct deposit". Brian Hamilton: "So with any changes to the Villa, we can make them at our discretion?" Kirsty Simons: "As long as you stay within the footprint of the Villa, you can make any changes, John in Marina Villa 10 has already made changes to his Villa".

Bruce Denley

1. Bruce Denley owns Marina Villa 2 in the Hacienda Park and affirmed an Affidavit of 3 August 2016 and an Affidavit of 25 May 2017. Mr Denley is 73 years of age and sought to retire to the Marina Villa.
2. He had seen an advertisement and contacted the number there advertised as "Affordable Living on the Tweed River", which was said, in the advertisement, to be the number of Kirsty. The advertisement is before the Court.
3. Sometime in early July 2012, Mr Denley telephoned Kirsty and engaged in a conversation during which Kirsty organised an overnight stay in Hacienda Park for a cost of $140 and arranged to meet him and show the homes in the park on the next day. In the course of the aforesaid conversation, Mr Henley said words to the effect of: Bruce Denley: "I'm looking for long-term retirement accommodation to live in there permanently." Kirsty Simons: "This will fit into exactly what you want."
4. On 17 July 2012, Mr Denley received a letter from Kirsty Simons setting out the cost of a one-bedroom home for $69,900 and a two-bedroom home for $92,900. The letter is before the Court.
5. On Thursday, 19 July 2012, Mr Denley attended Hacienda Park and stayed in accommodation provided at $140 per night. Mr Denley met with Kirsty Simons on Saturday 21 July during which a conversation to the following effect occurred: Bruce Denley: "I'm interested in possibly a two-bedroom home so my daughter and grandchildren can visit." Kirsty Simons: "I'll show you a couple of homes." Bruce Denley: "What inclusions are there?" Kirsty Simons: "The furnishings can be purchased also at an extra price." Kirsty Simons: "The site fees for Hacienda are $158 and for Homestead they are $176."
6. A number of homes in Hacienda and in Homestead were examined and Mr Henley indicated that he would think about it and contact her. During the course of that conversation Mr Henley asked whether the owner was likely to sell the park and what would happen if he did, to which Kirsty Simons replied: "No, he wouldn't be building new homes if he was planning on selling the park." [The reference to "he" is an obvious reference to Mr Willmott.]
7. On 30 July 2012, there was a further conversation in which Mr Denley expressed interest in sight 169 on the Homestead Holiday Park site and indicated he would like to have another look around.

John and Diana Hodson

1. Diana Hodson affirmed Affidavits of 2 August 2016 and 22 May 2017. Her husband, John Hodson, affirmed Affidavits of 2 August 2016 and 22 May 2017 also.
2. The Hodsons holidayed with friends at a caravan park in New South Wales and considered that the lifestyle would appeal to them. They made enquiries about whether one could live permanently in a caravan park and were informed that Queensland law did not allow permanent living in caravan parks.
3. Enquiries were made of councils on the North Coast of New South Wales and the Hodsons were informed that they could live permanently in parks in New South Wales. Further enquiries were made as to an appropriate residence.
4. The Hodsons spoke to persons who recommended Hacienda Park. Mrs Hodson searched on Google, with her husband, and found a website advertisement for Hacienda Park on which they followed through.
5. On 7 October 2009, John and Diana Hodson met with Ms Kirsty Simons in the visitor's car park at the front of Homestead Holiday Park, following an appointment having been made. They examined UMDs on both Hacienda Park and the Homestead Holiday Park and Ms Simons showed them a number of different styles of homes with different configurations.
6. During the course of the examination on 7 October 2009, Ms Simons showed the Hodsons the Marina Villas in the Hacienda Park, which the Hodsons thought were more to their liking. There was a conversation between John Hodson and Kirsty Simons during which the following exchange occurred or words to the following effect: John Hodson: "We are buying this home with the intention of living in it at some stage in the future. I have spoken to other parks tell me there may be some restriction on permanent living on some sites." Kirsty Simons: "Not on these sites; you can stay here as long as you like; these are permanent sites. If you are thinking of living here, I think Villa 10 would be the best one for you, because it has a bigger site and if you buy early you will get a second parking space. It's for sale for $189,900."
7. Both Diana and John Hodson recall the three key issues associated with the site from Ms Simons in answer to the question as to the possible restriction on permanent living. Each of them attests to the fact that they would not have bought the Villa if they thought they could not live in it permanently.

John Pestridge

1. Mr Pestridge affirmed an Affidavit of 3 August 2016 and another Affidavit of 26 May 2017 and is the owner of a dwelling on Marina Villa 9 at Hacienda Park.
2. Mr Pestridge sold his house in Brisbane in August 2010 and, enjoying the lifestyle in the Coolangatta area, was looking for a place to buy. He saw an advertisement for living on the Tweed River with prices from $69,900.
3. On or about 5 October 2010, he made contact by telephone with the number provided in the aforesaid advertisement and spoke to Kirsty Simons. She was, apparently, in Melbourne at the time and put him in touch with Peter Simons and gave him directions to travel from his then current location to Hacienda Park.
4. On the same date, namely, 5 October 2010, Mr Pestridge met with Peter Simons at Homestead Park, who showed him three homes in the price range advertised. Mr Simons then showed Mr Pestridge three other homes that were a little bigger, in the price range of $89,900. Mr Pestridge asked if there were any bigger still, to which Mr Simons replied that there are, at $125,000 and showed him a home at that price.
5. On 6 October 2010, at approximately 10.00am, Mr Pestridge met with Peter and Kirsty Simons at the Homestead Park and Peter Simons informed him that there would be enough room to put a veranda on the home, in answer to an enquiry that had been made the day before.
6. At one stage during the course of the exchange, Kirsty Simons informed Mr Pestridge that there were other homes in our other park, namely, Hacienda Park, which were much more expensive but had bigger verandas and Mr Pestridge could move in straight away.
7. Mr Pestridge then followed Kirsty Simons to Marina Villa 9. From that Villa, on entering, there was a view of the water, Mount Warning and the surrounding area. Mr Pestridge observed that the Villa had concrete footings, was hard-wired and had full sewerage and plumbing fittings. It also had a permanent walkway and deck.
8. During the course of the exchange with Kirsty Simons as to the price, which was quoted at $189,900, and the site fees, which were quoted at $175 per week, rising, each year, by the CPI, the following exchange occurred: John Pestridge: "That's alright; CPI is only a few dollars a week. I am looking at retiring here and living on a permanent basis. I've got one problem, the sign at the gate says only one vehicle per house. I have two vehicles?" Kirsty Simons: "That's OK, you can put one in the driveway next to the house, and seeing as this is a dead-end street, I'll approve you to park another car out the front, as close to the house as possible, so emergency vehicles can get past." John Pestridge: "That sounds good." Kirsty Simons: "Also there is Council approval for this Villa to have its own private boat pontoon included down the track if you wanted one."

Helen Holt

1. Ms Holt worked for Hacienda at Hacienda Park from 2000 until 2013. She worked with her husband, Gary, who has since passed away and worked differing hours.
2. On commencement at Hacienda in about February 2000, Ms Holt was the Assistant Park Manager, together with her husband. In around December 2000, Ms Holt was promoted to the position of Park Manager. She remained in that position until 2006.
3. In 2006, Tanya Hickling commenced work for the Park. Ms Hickling is the daughter of Mr Willmott (the named defendant).
4. The formal relationship between Ms Holt and her husband and Hacienda was organised through Mr Willmott and in discussions with him. It seems from some of the material that, at least for tax purposes, a contract arrangement was in place. GST was levied; a handwritten invoice was provided by Ms Holt and her husband each month; the amount invoiced was the same each month.
5. After Ms Holt's husband, Gary, passed away, GST was not paid as a result of Ms Holt learning that the earnings were insufficient to warrant the imposition of GST and discussing that matter with Mr Willmott. She did enjoy paid sick leave and holidays.
6. Ms Holt described the arrangements with residents at Hacienda Park in her Affidavit sworn 24 May 2017. During the period 2000 to 2003, there were only approximately 10 long-term casuals or "weekender" residents, being residents who used their site genuinely as a holiday place.
7. The rest of the tenants were Permanent Residents. Permanent Residents were issued letter boxes for the reception of mail by Australia Post and for any correspondence from the Park.
8. There were three different types of guests at Hacienda Park: Short-Term Casuals, being guests and/or holidaymakers that stayed on a one-off basis; Long-Term Casuals, being guests who rented a site in the Park and may have had a caravan or structure on the site; and Permanent Residents, who would live at the Park.
9. Short-Term Casuals would pull in to the premises at Hacienda Park, and sometimes book ahead, and paid a fee for the nights that they stayed. They would not apply to be an occupant of the Park.
10. Long-term casuals were required to apply to be an occupant of the Park and paid a weekly fee, which, at least initially, was significantly less than the fee paid by a permanent resident, because the Long-Term Casual would only be there for some of the time during a year. For these Long-Term Casuals there were restrictions on how many days they could stay consecutively and a restriction on how many days in any one year. During the time that Ms Holt worked at the Park, she can recall about 10 Long-Term Casual sites.

Council Officers

1. The plaintiff called three witnesses who are or were officers of Tweed Shire Council, being Peter Ainsworth, a Senior Environmental Health Officer, Seth Philbrook, Town Planner and Alain Le Grande, a Compliance Officer.
2. Mr Le Grande featured in the evidence given by occupants of the Marina Villas and, essentially, corroborated the evidence they gave in that respect. Otherwise, the Council witnesses were taken through a number of documents, otherwise in evidence, and provided context for those documents as well as evidence as to the workings of Council, in relation to caravan and holiday parks such as Hacienda Park.
3. To the extent that the Council witnesses "explained" documents produced by the Council in answer to subpoenas, as distinct from providing the factual context in which the letter was written, I do not consider their evidence of particular assistance. The documentation speaks for itself.
4. The documents are business records of Council, produced, as earlier stated, in answer to subpoena, and admissible as business records. The documents, as stated, speak for themselves. The evidence of the Council witnesses as to the operation of the legislation and regulations, while of assistance in understanding how Council viewed their responsibility and operated under the legislation, is a matter for the Court and not the offices of Council.
5. Nevertheless, I will briefly summarise the evidence provided by them and, in so doing, discuss the documents to which they were taken. Those documents are an important aspect of the issues between the parties.
6. Mr Ainsworth, the Environmental Health Officer, has responsibilities which include the administration of legislation on behalf of the Council; food inspection; and common health inspection duties. There are some 18 caravan or holiday parks for the administration of which Council is responsible. Mr Ainsworth described those responsibilities as difficult at times and quite challenging because of the operation of the legislation and the requirement to deal with both the park owner and resident.
7. Mr Ainsworth was taken to Exhibit A, p 1 which is the Development Application lodged by Hacienda to relocate 10 sites within the Park. While Mr Ainsworth had seen the document before, he did not recall when he first saw it. On its face, the document is signed by Mr Willmott and lodged by Hacienda Caravan Park Pty Ltd (in these reasons call Hacienda).

The Drawing of Inferences

1. Generally, in civil proceedings, it is for the plaintiff to prove on the balance of probabilities those facts that are necessary to establish the cause of action and the damages suffered. The means by which a plaintiff proves particular facts is by adducing evidence that directly proves that the existence of the fact is more probable than not. This can be done by the adducing of a single piece of evidence to that effect or a combination of evidence the effect of which is that the fact, being a fact in issue in the proceedings, is more probable than not. Ultimately, the Court must be satisfied, on the balance of probabilities, of the existence of the fact upon which the plaintiff relies.
2. Apart from the adducing of direct evidence, a party is entitled to rely upon inferences that may be drawn from evidence. There is nothing peculiar or esoteric about the drawing of inferences. It is a process that is performed by everyone in everyday life. It is not a process peculiar to legal reasoning. In the words of Windeyer J in Jones v Dunkel it is "plain commonsense". In the words of Mahoney JA in Fabre v Arenales (1992) 27 NSWLR 437 at 445: "A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, 'human experience would be contradicted if' Z did not exist: see the cases referred to in Jones v Sutherland Shire Council (at 222 et seq). It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn."
3. The judgment of the High Court in Jones v Dunkel was concerned with the drawing of an inference in an action for negligence as to whether the defendant driver had been travelling on the wrong side of the road at the time of the accident. The defendant had sought a verdict by direction, which was refused.
4. The jury returned a verdict in favour of the defendant and the plaintiff appealed to the Court of Appeal seeking a re-trial based upon the inference that ought to have been drawn from the failure of the defendant to give evidence during the trial and the statement by the defendant, made some days after the accident, in which no mention of the side of the road on which the defendant had been travelling was made.
5. Essentially, the appeal turned on the direction given by the trial judge to the jury. The appeal was dismissed by the Court of Appeal and the High Court reversed that judgment and ordered a new trial. In the course of the reasons for judgment of the High Court, Windeyer J said: "It is, I realise, always possible to confuse mere conjecture with reasoned conclusion, and to regard the mere fact that circumstances are consistent with a conjecture as corroboration of it. Nevertheless, I think that a jury properly directed might - not necessarily should - reasonably infer that immediately before the vehicles collided that driven by Hegedus was on the wrong side of the road. A jury could, in my view, properly think it more probable that this was so than that it was not. The cause of the collision can be only a matter of conjecture; but on which side of the road it occurred is, I think, susceptible of rational inference. (Citations omitted.) (Jones v Dunkel, at 319-320.)

The Conclusions of Fact on Liability

1. It is necessary, before setting out the conclusions of fact, to comment on the demeanour and attitude of the witnesses called by the plaintiff. Before doing so there were formal admissions that it is necessary to recite. There are two such admissions. First, the first defendant, Jonval Builders, was not at any material time a Licensed Credit Provider within the meaning of the National Consumer Credit Protection Act 2009 (Cth) as pleaded in [55A] and [143A] of the Further Amended Statement of Claim.
2. Secondly, Tweed Shire Council has not consented to or approved any community map to replace or supersede that which is dated 17 January 2011, being community map reference CP00031/11, a number of copies of which are in evidence and, for convenience, identified as the map at p 376 of Exhibit A. That map (Exhibit A, p 376) has been the subject of comment earlier in these reasons for judgment.
3. Further, each of the witnesses, called by the Commissioner, was believable, reliable and honest. In most instances, the evidence of the purchaser/occupier of the Marina Villas did not, in any respect, seek to exaggerate that which occurred or to elaborate in a manner that may have assisted the Commissioner's case on their behalf.
4. None of the purchaser/occupier witnesses sought to dissemble and each of them honestly admitted when their memories were not precise or perfect. Nevertheless, the representations made to each of the purchasers/occupiers were, with only slight variations that may be attributable to the manner in which the witness may have recalled the conversations, almost identical.
5. Given the evidence of Ms Holt that each of the staff at Hacienda were coached in what to say, the similarity between the representations made to each of the purchasers/occupiers is unsurprising. Moreover, even though each of them gave evidence of precise conversations (or conversations to the effect of fairly precise representations), largely, it was not suggested that the recollection of the conversation was inaccurate. Nor was it suggested that the conversations as attested had not occurred.
6. While it was put to each of the purchasers/occupiers (and Ms Holt) that the staff at Hacienda represented that the 180 day and 28 day limits were not policed, it was not, generally, suggested that the other representations and other conversations did not occur.

The Pleaded Case and Response

1. The plaintiff seeks declarations of contraventions of the ACL (or its predecessors); injunctions restraining the defendants from engaging in contraventions of the ACL, including orders to cease so engaging; and compensation for the purchasers/occupiers.
2. It is unnecessary to recite the pleadings or summarise them in detail. Nevertheless, because of the manner in which the defendant has presented its case, some overall summary of the pleading is necessary.
3. The plaintiff pleads that the defendants knew that a caravan park must obtain development consent from the relevant local Council (in this case, Tweed Shire Council ("the Council"). That development consent, the plaintiff pleads, requires approval for the location of long and short-term sites, before such sites can be operated by one or other of the defendants.
4. Further, the defendants or one of them was required to obtain a Caravan Park Approval to Operate pursuant to the terms of s 68 of the Local Government Act. Approval must include a community map which defines the park layout and the location of approved long-term and short-term sites and amenities. Further, the approval to locate a structure on a particular site, involved approval of the particular structure by approval of its size and plan.
5. Hacienda Park, according to the pleadings, was situated on land that had been zoned and notified as a "flood prone land". A caravan park must obtain approval of the Council for the placement of a relocatable home, rigid annexes or associated structures on a site notified as flood prone.
6. Further, the pleadings allege that that Hacienda was issued with an Approval to Operate Hacienda Park by the Council, which allowed for 97 long-term sites and 99 short-term sites. In the case of a short-term site, it must not be occupied by a person for a single period of more than 150 days in a 12-month period, unless it is a holiday van, which must be owned and rented out by Hacienda.
7. Application for Approval must be made by Hacienda prior to the installation of rigid annexes and Unregistrable Movable Dwellings (UMD) on a site. Alterations to the allocation of short-term and long-term sites can only be made by a variation to the Development Application Approval and involved Hacienda submitting a Development Application and the Council approving it. Where approval has not been granted (either initially or by variation) by the Council, the site and any dwelling upon it may not be occupied.

The Case for the Defendants and Conclusions

1. In answer to the foregoing pleaded case and the submissions made in support thereof, based on the plaintiff's view of the evidence, the defendant's assert a number of matters. Some of the matters asserted are, at best, "debating points". There is a reference to the use of the term "consumers", by the plaintiff, but, however inaccurate it is said that proposition may be in relation to some at least of the occupiers, it makes little or no difference to the pleaded case or the evidence in support of it.
2. After dealing with the onus and standard of proof, which material is somewhat trite, the defendants deal with the Jones v Dunkel inferences upon which the plaintiff seeks to rely. In answer to the utilisation of inferences based upon the proposition of the High Court in Jones v Dunkel, the defendants first refer to an Affidavit of Ken Lee filed 20 January 2017. That affidavit was not read or relied on in the proceedings and the material, to which they refer, in relying on that affidavit, cannot affect the outcome of this judgment or the drawing of any inference.
3. Similarly, reference is made to some communication between the defendants' current solicitor and Ms Kirsty Simons, but, again, that is not the subject of evidence before the Court. Notwithstanding that it is not the subject of evidence, some significant submission was based upon the communication, which alleges that the plaintiff (or a representative thereof) contacted one or other of the witnesses hitherto notified as persons on behalf of whom an affidavit or draft affidavit had been served by the defendants.
4. First, there is no property in a witness. Any party is entitled to contact any witness, other than another party, without notification of other solicitors in the proceedings. Secondly, if, as suggested, the evidence of Mr Peter Simons and Ms Kirsty Simons was no longer of assistance to the defendants' case, all that such a proposition involves is to confirm that which arises from the inference available under the principles espoused in Jones v Dunkel.
5. Lastly, none of the alleged communication involves Mr Willmott, who, as earlier stated, is the central management and control of the corporations that are the other defendants and is "involved in" the contraventions. Nor does it relate to or involve Ms Hickling.

Orders

1. The plaintiff seeks multiple orders. The plaintiff seeks declarations; injunctive relief; and damages or compensation payable to each of the occupiers of the Marina Villas to which reference has been made. The submissions of the defendants raise issues of principle and of fact, relating to those orders.
2. First, it is said there is no evidence upon which the Court could be satisfied that there is a danger of further conduct that is misleading or deceptive or unconscionable. To the extent that the proceedings have related only to the question of the Marina Villas and the Marina Villa sites, the defendants' submission is partly accurate, to the extent that there are no more Marina Villas and no more Marina Villa sites available for sale or occupation. However, advertising continues. If, as the plaintiff requests, the Sale and Occupation Agreements are rescinded and orders are made for the return of the purchase prices, those Marina Villas and Marina Villa sites would again be available for "sale".
3. There is no suggestion that the conduct in which the defendants have engaged and which is outlined in these reasons for judgment would not occur again. On the contrary, the attitude of the defendants in these proceedings is that there is no reason why the defendant ought not engage in that conduct and nothing impermissible in the conduct itself (or, presumably, its repetition).
4. Against that, the defendants are now aware of the view of the Court of their conduct. It may well be that, now that the defendants are aware of the unlawfulness and illegality of their conduct, they would not engage in it.
5. On the basis of the evidence before the Court, I am inclined to the view that there is a real threat that the conduct would continue. Nevertheless, I am also mindful of the fact that the plaintiff is a regulator, which is capable of seeking injunctions if the conduct should be repeated or, in the case of advertising, continues. In the circumstances, no injunctive relief will issue at this point in time, but the Court will grant leave to the plaintiff to approach the Court for injunctive relief, if there were to exist an indication of a threat of further conduct of the kind in which the defendants have already engaged.
6. Declarations will be made in accordance with the orders sought by the plaintiff. As to the orders for compensation and/or damage, there are a number of issues that arise. First, I am satisfied that, but for the misrepresentations and or unconscionable conduct, none of the occupiers would have purchased the Marina Villas and none of them would have entered into the Occupation Agreement relating to each of them.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 December 2019