Crystal Auburn Pty Ltd v I L Wollerman Pty Ltd

Nature of Order under s 87(2)(a) 2 The orders a court may make under s 87 of the Act when it finds that a party has suffered loss as a result of the conduct of another in contravention of, amongst other provisions, s 52, include (s 87(2)(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 … to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order …."

While an order under this provision has an affinity to the equitable remedy of rescission, it is a new remedy, and the principles regulating the administration of the remedy of rescission afford guidance for, but do not dictate, the exercise of the discretion conferred by s 87: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 535 per Gummow J. In Creative's Landscape Design Centre Pty Ltd v Platz (1989) ATPR 40,980 at 50,697 the Full Court said that the general law bars of affirmation, lapse of time and the impossibility of effecting restitutio in integrum were not fetters on the exercise of the powers under s 87, but were matters to be taken into account in the exercise of the court's discretion. See also Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 at 564, Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 288, Tenji v Henneberry & Associates Pty Ltd (2000) 98 FCR 324 at 330‑331 and JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378 at 380. The parties were agreed that the foregoing is a correct statement of the law.

Restitutio in integrum 3 The sale of Wobbies World was structured in a way that passed title to the plant and equipment to Bendigo Finance Pty Ltd which hired them to the first applicant. The plant and equipment consisted of the passive and mechanical attractions that formed the very essence of the theme park. They included the miniature tram ride, helicopter ride, bulldozer, farm tractor, vintage car, fire truck, Melbourne transport tram and miniature fire brigade ride. 4 At what time is the practicability of restitution to be assessed? Meagher, Gummow and Lehane, Equity: Doctrines and Remedies 3rd ed (1992) at par 2416 observe:

"In the auxiliary and exclusive jurisdictions it is not clear whether rescission was in equity effective by act of the party so that the Court confirmed something already accomplished, or whether rescission was entirely by the decree of the Court. The time at which the possibility of restitutio in integrum (if this were necessary) was to be assessed would depend upon the correct answer."

The authors then refer to some analogous situations, and continue:

"It follows that the practicability of restitution in these cases is to be decided at the time the Court makes its orders. The plaintiff in the auxiliary and exclusive jurisdictions will be seeking not a declaration that he himself has already validly rescinded but a decree of the Court taking effect from its date. This is a suit for rescission properly so called."

In Tenji v Henneberry & Associates Pty Ltd at 332‑333 French J quoted these passages with approval. His Honour regarded s 87(2)(a) as having "an operational rather than declaratory role". With this I agree. Accordingly, the practicability of restitution (as a discretionary consideration) must be considered at the time the order is made. Cf Meagher, Gummow and Lehane, op cit, par 1324.

5 The applicants cannot make substantial restitution. The features that gave the theme park its very being were never owned by them, and indeed were sold by Bendigo Finance on 8 July 1999. If, contrary to my view, the practicability of restitution is, as the applicants contend, to be assessed at the date of the 17 June 1998 letter of rescission or at the date of their Application (24 June 1998), the position is the same. Bendigo Finance owned the plant and equipment. If a third party acquires an interest in the subject matter of a contract before the contract has been avoided, a claim for rescission will not lie, provided the third party acted in good faith and gave consideration, as was the case here. See White v Garden (1851) 10 CB 919, Stevenson v Newnham (1853) 13 CB 285, Babcock v Lawson (1880) 5 QBD 284, Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 at 11‑12 and Treitel, Law of Contract 10th ed (1999) 344, 355.

Affirmation 6 By the end of January 1998 the second applicant (Mr Siberas) had formed the view that the applicants had been misled by the business attendance representations. In late March he sought his solicitors' advice and provided them with a document he had prepared showing the represented attendances from January 1994 to January 1997 compared with actual attendances for January 1998. At about the same time he asked Mr Laurie if he would take the business back. Mr Laurie refused. On 24 March Mr Siberas instructed Mr Marlow of the first respondent to place the business on the market for $650,000. On 28 April the applicants' solicitors advised that, on the basis of their instructions, the applicants had "little option but to seek to set aside the contract and the lease" on the basis that the attendance figures contained in the business profile had been fraudulently or negligently misrepresented. The solicitors advised that this would require establishing that the figures had declined well beyond what might have been expected given the ongoing decline from the 1994 financial year. They said they proposed to brief counsel to advise as to the likely prospects of success in proceedings to set aside the contract and the lease. On 17 June 1998 the applicants' solicitors purported to rescind the sale agreement and lease. The business remained on the market until 18 June 1998. 7 Thus the applicants believed by the end of January 1998 that they had been misled. They were unable to convince Mr Laurie to take the business back. They then put it on the market. By late April they knew they could take action to have the contract and the lease set aside. Putting the business on the market when the applicants were unable to persuade Mr Laurie to take it back, and leaving it on the market for some months after receiving the solicitors' advice that the contract and lease could be set aside, constitutes conduct consistent only with a decision to treat the contract and lease as remaining on foot. It was a declaration of ownership of the business and a desire to pass that ownership to a buyer. As the Full Court said in Tiplady v Gold Coast Carlton Pty Ltd (1984) 8 FCR 438 at 447, the applicants were attempting to resell the business "to which they had no claim except under the contract". In those circumstances, the applicants should be taken to have affirmed the contract. Cf Tiplady at 447, 451. 8 In what I have said in the preceding paragraph I have assumed that while an elector must know of the facts that give rise to the right to rescind, he need not know of the right of election as between two inconsistent legal rights ‑ the right to treat the contract as remaining on foot and the right to rescind. That accords with the view of the Full Court in Tiplady at 451 and of Mason J in Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658. See also Re Hoffman (1989) 85 ALR 145 at 151‑152. If the applicants did have to have that additional information, their solicitors' advice provided it.

Conclusion 9 Had I been adjudicating a case in the equitable jurisdiction, I would have declined to order rescission on the grounds that restitutio in integrum was not possible and the applicants had affirmed the contract. As appears from the cases noted in par 2, that does not mean that an order should not be made under s 87(2)(a) declaring the contract and lease to be void. However, conformably with these decisions, I am at liberty to take into account, in the exercise of my discretion, the fact that restitution is not possible and that the applicants have affirmed the contract. Having done so in the exercise of my discretion I do not propose to make an order under s 87(2)(a) avoiding the contract and lease. Because of what is said in par 4, I would in any event not have been prepared to grant the declaration sought in the Application, namely that the applicants had validly rescinded the agreement and the lease on or about 17 June 1998. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitors for the Applicants: McNab McNab & Starke

Counsel for the Respondents: M Dreyfus QC and R Heath