Harvard Nominees Pty Ltd v Tiller

5. The balance of the application is dismissed.
6. On or before 25 May 2020 the respondents must file and serve an outline of written submissions, no longer than five pages, on the costs of the proceedings, including any reserved costs.
7. On or before 8 June 2020 the applicant must file and serve an outline of written submissions, no longer than five pages, on the costs of the proceedings, including any reserved costs.
8. The submissions referred to in paragraphs 6 and 7 must include submissions on whether an assessment of costs before a Registrar is appropriate and, if not, how the amount of costs should be determined. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 Warriup Farm and Howick Farm (the Farms) are two large tracts of farming land near Esperance, Western Australia. The applicant, Harvard Nominees Pty Ltd, is the registered proprietor of Warriup Farm. John Caratti is a director of the company. He and his brother, Allen Caratti, are the registered proprietors of Howick Farm. 2 At the beginning of 2019, each of the Farms was leased to Mammoth Investments Pty Ltd, of which John Caratti is also a director. At that time the first and fifth respondents, Simon and Felicity Tiller, were sub-leasing the Farms from Mammoth. In early February 2019, Harvard and Mammoth entered into several deeds under which Harvard was to lease Warriup Farm to Mr Tiller and the second respondent, Dimension Agriculture Pty Ltd, and Harvard was to be the lessee of Howick Farm and was to sub-lease it to Mr Tiller and Dimension. As a result, Mr Tiller and Dimension became the lessees/sub-lessees of the Farms, and Harvard took Mammoth's place as lessor/sub-lessor. This took effect from 1 March 2019. I will refer to the new lease and the new sub-lease together as the New Leases. 3 This proceeding involves a claim by Harvard that it entered into the transactions of early February 2019 in reliance on misleading representations made by Mr Tiller and Dimension. The representations are said to have concealed the involvement of the third respondent, Mr Giovanni Nicoletti, in Dimension and in the Farms. Harvard claims that in making the representations, Mr Tiller and Dimension engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (ACL), as applied respectively by the Fair Trading Act 2010 (WA) (FTA) and the Competition and Consumer Act 2010 Cth) (CACA). Harvard alleges that it entered into the transactions of early February in reliance on the misleading or deceptive conduct. It claims that Mr Nicoletti and a director of Dimension, the fourth respondent Mr Damian Bryce, were involved in the misleading or deceptive conduct. 4 The proceeding also involves a claim by Harvard that, on 15 February 2019, shortly after the New Leases were signed, Mr Tiller and Dimension executed deeds (15 February Deeds) by which Mr Tiller assigned his interest in the New Leases to Dimension and relinquished any involvement in the Farms. Harvard alleges that, in the context of certain correspondence between its solicitors and the solicitors for Mr Tiller and Dimension, the omission of Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce to disclose the existence of the 15 February Deeds was also misleading or deceptive conduct. Harvard did not find out about the deeds until October 2019, as a result of discovery in this proceeding. 5 Harvard claims that each of these two instances of misleading or deceptive conduct caused it to suffer loss or damage. That is because, it says, by April 2019 it had leased the Farms to third parties, the Fowler family, at a rent significantly higher than the rent under the New Leases (the Fowler Lease). The alleged misleading representations are said to have caused Harvard to have been unable to give vacant possession under the Fowler Lease and thus earn the higher rent. It will be necessary to explain that claimed causal connection in further detail later in these reasons. 6 In relation to the alleged concealment of the 15 February Deeds, Harvard says that the entry into the deeds was a fundamental breach constituting a repudiation of the New Leases. It claims that if it had known of the 15 February Deeds by April 2019, it would have accepted the repudiation and gained vacant possession of the Farms in time for the Fowler Lease to come into effect. Harvard knew of Mr Nicoletti's involvement in the Farms by that time. 7 In relation to the alleged misrepresentations of January 2019, Harvard claims orders which would result in it obtaining vacant possession of the Farms, and damages. In relation to the cause of action concerning the alleged concealment of the 15 February Deeds, it only claims damages. In both cases, the damages are equal to the difference between the first year of rent under the Fowler Lease and the annual rent under the New Leases. 8 Harvard requested that orders confirming who was entitled to possession of the Farms be made before the commencement of the current farming season, if necessary without publishing reasons at the same time. I therefore made orders dealing with that subject on 19 March 2020. These are my reasons for making those orders and for the further orders that I make on publication of these reasons. 9 The outcome is that the application will be dismissed. Harvard's claim in respect of the first instance of misleading or deceptive conduct fails because, while it has established that it relied on misleading representations made by Mr Tiller and Dimension, it has not proved that it suffered any loss or damage because of that reliance. Also, it has not established that Mr Nicoletti or Mr Bryce had sufficient knowledge of the misleading or deceptive conduct to attract liability for the conduct under the ACL. Harvard's claim in relation to the second instance of misleading or deceptive conduct fails because, while the conduct was misleading or deceptive or likely to mislead or deceive, and while the entry into the 15 February Deeds was a breach of the New Leases, it was not a fundamental breach which would have permitted Harvard to re-enter the Farms, had it been aware of it. Also, Harvard has not established that Mr Bryce engaged in the relevant conduct. 10 Given the possibility of an appeal, it is not appropriate to confine these reasons to those matters, and I will make such findings as are necessary to determine the factual issues that arise on the pleadings, as described below. 11 It is necessary to make clear at the outset that there was no allegation that the fifth respondent, Mrs Tiller, engaged in or was involved in any misleading or deceptive conduct. She appears to have been named as a respondent because some of the orders sought potentially affected her interests as a former lessee of the Farms. I will make no adverse finding against Mrs Tiller.

The pleadings and the issues to be determined 12 I gave a broad description of the pleaded issues in Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672, but there have been substantial amendments since, then so it is convenient to give a full description here.

Background 13 John Caratti is a central figure in the relevant events. I will refer to him as 'Mr Caratti', except when it is necessary to avoid confusion between him and other members of his family. 14 According to the Further Further Amended Statement of Claim filed on 3 December 2019 (SOC), Mr Caratti and other entities in which he had an interest leased farming properties in the Esperance and Yilgarn districts to Mr Nicoletti and his wife. That included the Farms, which from about 1994 were leased to the Nicolettis via a sub-lease from Mammoth. 15 Harvard claims that various disputes arose about arrears of rent and other defaults. Harvard says that in or about November 2016, Mr Nicoletti told Mr Caratti that he and his wife wanted to cease farming in Esperance. It also alleges that Mr Tiller told Mr Caratti that Mr and Mrs Tiller wanted to take over operating the Farms. It is said that Mr Caratti told both Mr Nicoletti and Mr Tiller that he would agree to lease the Farms to Mr and Mrs Tiller if all arrears of rent were satisfied. It is also alleged that Mr Caratti told them, and it was the fact, that he did not want to deal with Mr Nicoletti again in relation to the Farms as he was dissatisfied with the manner in which Mr Nicoletti had addressed (or not) the alleged defaults. 16 Mr and Mrs Tiller became sub-lessees of the Farms from Mammoth for a five year term commencing on 1 March 2017 under an instrument I will call the Tiller Lease. On 18 January 2019, Mammoth issued a default notice to them for non-payment of rates. Harvard alleges that on or about 22 January 2019, Mr Tiller told Mr Caratti that Mrs Tiller had asked for a divorce.

The alleged conversations on 31 January 2019 17 On or about 31 January 2019 two conversations between Mr Caratti and Mr Tiller are claimed to have taken place, with the second of these being the occasion on which the first alleged instance of misleading or deceptive conduct occurred. It is pleaded that in the first conversation on that day, Mr Tiller told Mr Caratti that (SOC para 10): (a) he had formed a new company called Dimension Agriculture Pty Ltd (being the Second Respondent); (b) he wished to surrender the Tiller Lease and enter into a new lease of the Farms with himself and [Dimension] as lessee, in place of [Mrs Tiller], on the same terms; (c) the partnership between [Mr and Mrs Tiller] would need to be dissolved and all the assets in the partnership assigned to [Dimension]; (d) [Mrs Tiller] had said she would sign a surrender of the Tiller Lease as part of implementing the divorce arrangements; (e) because the latest season had seen a bumper crop and good market prices for grain, he would be able to pay off all outstanding arrears and debts owed by the Tiller partnership to [Harvard] and Mammoth in return for [Harvard] and Mammoth agreeing to surrender the Tiller Lease and entering into a new lease with [Dimension]. 18 Harvard alleges that immediately after that conversation, Mr Caratti obtained a company search of Dimension which revealed that Mr Tiller and the fourth respondent, Damian Bryce, were its directors, and that Mr Bryce held the only issued share. It is then pleaded that Mr Tiller, on his own behalf and on behalf of Dimension, orally represented to Mr Caratti on behalf of Harvard and Mammoth that (SOC para 12): (a) [Mr Bryce] had been referred to [Mr Tiller] by [Mr Nicoletti]; (b) [Mr Bryce] was a director of [Dimension] because he was to assist [Mr Tiller] by taking over all of the work previously undertaken by [Mrs Tiller] ('the First Bryce representation'); (c) the share in [Dimension] held by [Mr Bryce] was held by [Mr Bryce] beneficially for [Mr Tiller] ('the Second Bryce representation'); (d) other than referring [Mr Bryce] to [Mr Tiller], [Mr Nicoletti] had no and would not have any involvement in [Dimension] ('the First Nicoletti representation'); and (e) [Mr Nicoletti] would not be involved in [Dimension's] activities on the Farms ('the Second Nicoletti representation').

31 January representations - reliance, falsity and loss and damage 19 The SOC pleads that in reliance on the four defined representations, Harvard entered into various transactions, the effect of which was that it replaced Mammoth as the lessor or sub-lessor of the Farms, and Mr Tiller and Dimension replaced Mr and Mrs Tiller as the lessees or sub-lessees. 20 Harvard claims that the representations defined as set out in [18] above are false because at the time they were made, Mr Nicoletti had and would continue to have an involvement in Dimension, it was intended that he would be involved in Dimension's activities on the Farms, Mr Bryce was a director of Dimension not to assist Mr Tiller but to act as Mr Nicoletti's nominee, and Mr Bryce held the share in Dimension beneficially for Mr Nicoletti. 21 The falsity of the defined representations is said to have been confirmed when Mr Nicoletti admitted to John Caratti, in a conversation on 21 March 2019, that he owned Dimension, that he had been and would continue to be involved in Dimension, and that he was taking over the operations of the Farms because Mr Tiller owed him a lot of money. It is also said to have been admitted in several items of solicitors' correspondence that Mr Nicoletti had caused Mr Bryce to be described as the sole shareholder of Dimension, when at that time Mr Nicoletti was the intended and actual beneficial owner of issued shares in Dimension. 22 The SOC also pleads, as falsifying the representations, certain transactions or proposed transactions which, broadly speaking, concerned the assignment of Mr Tiller's rights in the Farms to Dimension. The first was a proposed deed of assignment of sub-lease, by which Mr and Mrs Tiller would assign the Tiller Lease to Dimension. Mammoth was to be a party to that deed. However it is pleaded that Harvard ('the Applicant') refused to execute it, and required Mr Tiller to be a named party to the New Leases. 23 The second set of transactions said to falsify the representations was a pair of deeds (one for each Farm) by which Mr Tiller assigned his interest in the New Leases to Dimension and relinquished any involvement in the Farms; that is, the 15 February Deeds. Harvard claims that they show that even as he signed the New Leases, Mr Tiller intended to cease operating the Farms, so that executing the New Leases concealed Mr Nicoletti as the controlling mind of Dimension and as solely managing the Farms. 24 These matters are said to mean that Mr Tiller and Dimension engaged in misleading or deceptive conduct in trade or commerce, in contravention of s 18 of the ACL. Harvard alleges that Mr Nicoletti and Mr Bryce were involved in the contraventions of s 18. 25 Harvard claims that on 2 April 2019, by its solicitors Hotchkin Hanly, it gave notice of rescission of the New Leases. It says that it granted the Fowler Lease on 17 April 2019, subject to a condition precedent requiring it to give vacant possession of the Farms by 1 May 2019, which was not satisfied. 26 The conduct of each of Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce is said to have caused Harvard to suffer loss and damage. By particulars, Harvard claims damages equal to the difference between the rent under the Fowler Lease and the rent under the New Leases. The claim is made only in respect of the rent for the first year of the Fowler Lease which, if the condition as to vacant possession had been satisfied, would have run from 1 May 2019 to 1 May 2020. 27 In addition to damages, Harvard seeks orders under s 237 and s 243 of the ACL declaring the New Leases to be void, alternatively requiring Mr Tiller and Dimension to execute a deed terminating the New Leases. It also seeks consequential orders for delivery up of vacant possession of the Farms, for the removal of chattels and improvements and for the removal of caveats that Mr Tiller and Dimension have lodged.

The non-disclosure case 28 Harvard also pleads that the same four respondents engaged in misleading or deceptive conduct by failing to disclose the existence of the 15 February Deeds. It alleges that entry into those deeds without Harvard's consent was a fundamental breach and a repudiation of the New Leases. 29 It will be necessary to describe the pleaded claim in more detail later on; for now, it is sufficient to say that the omission to disclose the deeds is alleged to be misleading or deceptive because the deeds falsified a letter that Mr Tiller's and Dimension's solicitors sent to Harvard's solicitors on 5 April 2019. 30 Harvard pleads that in reliance on this misleading or deceptive conduct it did not terminate the New Leases as it was then entitled to do, and was precluded from relying on its right of termination. This is said to have caused loss or damage because if the existence of the 15 February Deeds had been disclosed, Harvard would have exercised its right to terminate the New Leases before 30 April 2019, and delivered vacant possession of the Farms under the Fowler Lease by 1 May 2019. Damages are claimed in relation to the additional rent thus foregone, particularised in the same way as the damage claimed to have been caused by the alleged representations of 31 January 2019.

The Defence - the history of dealings between the respondents and Mr Caratti 31 The further amended defence dated 21 November 2019 (Defence) pleads the history of the arrangements between Mr and Mrs Nicoletti and entities associated with Mr Caratti in more detail than the SOC does. According to the Defence, there were two leases between Mr and Mrs Nicoletti and Mammoth in relation to the farms, one for a term of five years commencing on 1 March 2005, and the other for a 10 year term commencing on 1 March 2010. Six other leases of farming land in the Yilgarn and Esperance districts are also pleaded, with Mammoth as lessor and, as lessees, Mr and Mrs Nicoletti (and, in one instance, Malcolm Nicoletti) or a company controlled by Mr Nicoletti, Apache Investments Australia Pty Ltd. These cover various periods commencing in 2001 and ending in 2019. 32 The respondents deny that the Nicolettis or their associated entities were ever issued with a default notice under any of these other six leases. It is said that all the dealings Mr Nicoletti had in relation to those six leases were with John Caratti's brother, Allen. 33 In about February 2012, Mr and Mrs Nicoletti granted a sub sub-lease of the Farms to Mr and Mrs Tiller for a three year term, and this was extended for a further two years from March 2015. It is pleaded that all dealings between Mr Tiller and Mammoth were with Allen Caratti. He is said to have agreed in March 2016 that Mr and Mrs Tiller, operating as a partnership called 'SC & FH Tiller', would pay rent and other amounts due under the sub sub-lease direct to Mammoth in discharge of Mr and Mrs Nicoletti's liability under the sub-lease. From then on that is what happened, and Mammoth accepted the payments. It is pleaded that Mr Tiller only had limited dealings with John Caratti until early December 2016. It is also pleaded that, except for executing a deed of surrender for the Nicolettis' sub-lease from Mammoth, Mr Nicoletti did not have any dealings with John Caratti in relation to that sub-lease or the Farms. 34 The Defence goes on to plead that in December 2016, John Caratti raised the issue of expenses being deducted from rental payments for the Farms, and alleged that the rent was in arrears. It claims that the Tillers had paid the allegedly missing amounts to Allen Caratti on behalf of Mammoth, so there were no arrears. It is further alleged that Mr Nicoletti had no dealings with John Caratti in relation to that issue.

The conversations in late 2016 35 Harvard's allegations of conversations between Mr Caratti and each of Mr Nicoletti and Mr Tiller in late 2016 have been set out above. The respondents deny the alleged discussion with Mr Caratti in which Mr Nicoletti said he wanted to surrender the sub-lease from Mammoth because he wished to stop farming in Esperance. As for the conversation between Mr Tiller and Mr Caratti about Mr Tiller's wish to take over the Farms, it is common ground that this did take place, but the respondents plead that Mr Caratti said a new lease over the farms to Mr Tiller would be OK provided he paid the alleged arrears. Mr Tiller decided he had no choice, and he and Mr Caratti agreed to go ahead on that basis, so that the terms of the new lease of the Farms to the partnership of Mr and Mrs Tiller were agreed in December 2016. 36 It is common ground that the Tiller Lease was entered into as Harvard pleads. It is also common ground that Mammoth issued a default notice for non-payment of rates to the Tillers under that lease on 18 January 2019.

The conversation between Mr Tiller and Mr Caratti on 18 or 22 January 2019 37 I have referred to a plea by Harvard that on or about 22 January 2019, Mr Tiller told Mr Caratti that Mrs Tiller had asked for a divorce. The account of that conversation pleaded in the Defence is that Mr Caratti asked Mr Tiller after 18 January 2019 why the rates had not been paid, and Mr Tiller said that SC & FH Tiller were having some financial issues and Mr and Mrs Tiller's marriage had broken down and the partnership may have to be dissolved. The respondents also plead that Mr Tiller said he wanted to restructure the farming business and he was in discussions with two or three farmers, one of whom was Mr Nicoletti, about being a financial backer for the farming business through a corporate entity. It is alleged that Mr Caratti said that he did not care if Mr Tiller wanted to restructure and he just wanted the rates paid. 38 So, the respondents allege, Mr Caratti knew that Mr Nicoletti was potentially involved in the Farms, as a financial backer.

The alleged conversations of 31 January 2019 in the Defence 39 In relation to the key conversations between Mr Caratti and Mr Tiller that are alleged to have taken place on 31 January 2019, the respondents' pleading differs from Harvard's account in a number of material respects. The respondents do not necessarily accept that there were two key conversations on 31 January. They refer instead to a number of telephone conversations in late January 2019. They plead that when told about Dimension, Mr Caratti asked who Mr Bryce was and Mr Tiller said that he was both his (Mr Tiller's) farm consultant and Mr Nicoletti's farm consultant. It is said that Mr Caratti asked why Mr Bryce was a director of Dimension, and Mr Tiller said that Mr Bryce was assisting with the business. Mr Caratti asked where the money was coming from to finance the farming business and who was behind Dimension, and Mr Tiller said that was none of Mr Caratti's business. Mr Caratti is alleged to have said he did not care who was behind Dimension as long as the rates were paid. 40 In summary, the respondents deny each of the defined 'Bryce representations' and 'Nicoletti representations' which Harvard alleges were made in a second conversation on 31 January 2019. They allege that Mr Caratti knew that someone other than Mr Tiller was going to finance Mr Tiller's farming activities and knew that Mr Tiller would not tell him who it was, and that Mr Caratti said he did not care who it was.

Reliance, falsity, rescission, loss and damage 41 The respondents also deny that Mr Tiller said that he could pay all arrears in return for a new lease. They claim that in a conversation in early February, in return for agreeing to a new lease, Mr Caratti extracted accelerated payment of $70,000 of the $140,000 which was by then remaining from the alleged rental arrears. The respondents thus plead that Mr Caratti did not cause Harvard to enter into the New Leases in reliance on any of the alleged representations (if they are found to have been made), but that the did so in order to obtain payment of the outstanding rates and of the accelerated arrears payment. 42 The Defence goes further to allege that Mr Caratti himself engaged in misleading or deceptive conduct in saying, in effect, that he did not care who was financing, associated with or involved with Dimension or Mr Tiller. This was not raised by way of cross-claim but was said to disentitle Harvard to the relief it seeks. However at trial counsel for the respondents indicated that this aspect of the Defence was not pressed, so it is not necessary to address it further.

The defence to the non-disclosure case 43 The Defence denies Harvard's allegations that the four pleaded representations were false. Yet the respondents claim that Mr Caratti knew before he spoke to Mr Nicoletti in late March 2019 that Mr Nicoletti was involved with Dimension and the Farms. It is not clear how he is said to have become aware, since the respondents' pleas above only go so far as to say that he was told that Mr Nicoletti might become a financial backer for the farming business through a corporate entity, and that when Mr Caratti asked subsequently, Mr Tiller refused to say who was financing Mr Tiller and Dimension's activities. While the respondents accept that Mr Caratti did speak to Mr Nicoletti in late March 2019, they allege that he acknowledged Mr Nicoletti's involvement with the Farms and offered him $500,000 to cease farming the Farms because he (Mr Caratti) could get a lot more money for the Farms. Mr Nicoletti is said to have rejected that offer. 44 The respondents say that Harvard was not entitled to rescind the New Leases, as it purported to do by its solicitors' letters in early April 2019, and that the attempt to do so was a repudiation which Mr Tiller and Dimension did not accept. They deny that Mr Tiller and Dimension engaged in misleading or deceptive conduct and deny that Mr Nicoletti and Mr Bryce were involved in any such conduct. As to loss and damage, they say that even if there was misleading conduct and it was relied upon, Mr Tiller and Dimension have performed all their obligations under the New Leases. The respondents plead that if Mr Caratti, Mammoth and Harvard had not taken the actions they are alleged to have taken in reliance on the conduct, SC & FH Tiller would have remained the lessee of the Farms pursuant to the Tiller Lease with Mammoth. So, they say, Harvard has suffered no loss and damage anyway. 45 In defence of Harvard's case as to non-disclosure of the 15 February Deeds, the respondents give a number of reasons as to why the deeds were not a breach of the New Leases and did not amount to a repudiation or, if they did, why that would not have led to the termination of the Leases. First, it is said that the 15 February Deeds were never implemented or acted or relied upon. In submissions there was added to this the argument that the formal requirement of delivery of the deeds was not satisfied. Second, it is said that it was not intended that the deeds would alter the legal relationship under the New Leases between Mr Tiller and Dimension on the one part and Harvard on the other part. That was said to effect an equitable assignment only, when the prohibition on assignment in the New Leases only applied to the assignment of legal estates or interests. Third, it is said that the 15 February Deeds were in any event rescinded by a deed of rescission dated 31 July 2019 and a deed of confirmation dated 7 November 2019, so that any breach was remedied. It is alleged that relief against forfeiture would therefore have been granted. So in the end, Harvard would not have been able to rely on the 15 February Deeds in order to obtain vacant possession of the Farms anyway. 46 As far as Lawton Gillon's letter of 5 April 2015 goes, the respondents deny that there was any misleading or deceptive conduct as a result of it, and say that Mr Tiller alone instructed Lawton Gillon in respect of the letter. Reliance on the alleged conduct is denied because, it is said, the 15 February Deeds were not a repudiation of the New Leases and in any event Mr Caratti by that time believed that Mr Nicoletti was in control of farming operations on the Farms.

The key issues 47 The following issues are the main ones that arise in this proceeding. They are defined by the pleadings as I have summarised them, in light of the way the parties conducted their cases at trial. As will be seen, it has turned out not to be necessary to determine the final issue, about remedies. (1) What was said in conversations between Mr Caratti and Mr Tiller in late January 2019 about the involvement of Mr Bryce and Mr Nicoletti in Dimension Agriculture and its activities on the Farms? This breaks down into a number of sub-issues: (a) What did Mr Tiller tell Mr Caratti in late January 2019 about the issues that the Tiller partnership and his marriage were facing at that time? In particular, did he tell Mr Caratti that he was talking to Mr Nicoletti (among others) about backing his farming business? (b) Were any of the four pleaded representations made? Or did Mr Tiller tell Mr Caratti that it was none of Mr Caratti's business who was going to finance the farming business and who was behind Dimension? (2) Did Harvard enter into the instruments of early February 2019, which resulted in it leasing the Farms to Mr Tiller and Dimension, in reliance on the pleaded representations? (a) This raises the question of whether Mr Caratti considered Mr Nicoletti to be an unsatisfactory tenant. (b) It also raises the question of whether, as the respondents allege, Harvard entered into the instruments in order to bring forward receipt of the arrears payment of $70,000 and to obtain payment of the Shire rates. (3) Were the four pleaded representations false? It is common ground that Mr Nicoletti came to be the sole shareholder and a director of Dimension and came to be involved in the Farms. But the timing, nature and extent of Mr Nicoletti's interest in Dimension and his involvement in it and in the Farms is in issue. (4) Did Mr Tiller make the representations (if they were made) on behalf of Dimension? If Mr Tiller and/or Dimension did engage in misleading or deceptive conduct, were Mr Nicoletti or Mr Bryce knowingly involved? (5) Has Harvard suffered loss or damage because of the four pleaded representations (if they amounted to misleading or deceptive conduct)? (6) Was the making of the 15 February Deeds a fundamental breach or repudiation of the New Leases which would have entitled Harvard to terminate those leases? At [43] above I have set out the reasons why the respondents say that is not so. (7) Was the omission to disclose the existence of the 15 February Deeds to Harvard misleading or deceptive conduct? That needs to be assessed in the context as pleaded, in particular the correspondence between Hotchkin Hanly and Lawton Gillon between 25 March and 5 April 2019. (8) Did each of Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce engage in that second instance of alleged misleading or deceptive conduct? (9) Did Harvard, in reliance on that misleading or deceptive conduct, become precluded from terminating the New Leases for repudiation, because it did not know about the opportunity to terminate? If the 15 February Deeds had been disclosed to Harvard on 5 April 2019 or within a reasonable time thereafter, would Harvard have terminated the lease and obtained vacant possession of the Farms before 1 May 2019, so as to comply with the condition precedent of the Fowler Lease? (10) What remedies should follow if loss or damage because of misleading or deceptive conduct is established? (a) Should the New Leases be declared to be void ab initio? In written submissions Harvard indicated that it only pursues this on the basis of the representations of late January, not on the basis of the non-disclosure of the 15 February Deeds. (b) What amount of damages should be awarded, if any?

John Michael Caratti 48 John Caratti is a director of Harvard and of Mammoth. It is Mr Caratti, on behalf of Harvard, whom Harvard claims was misled by the alleged conduct of Mr Tiller, Dimension, Mr Nicoletti and Mr Bryce. Mr Caratti gave evidence of the conversations with Mr Tiller which, it is said, comprised the first instance of alleged misleading or deceptive conduct. 49 There was little evidence before the court as to Mr Caratti's background and business history. It appears that through Harvard, Mammoth and other companies, and also in his own name with his brother Allen, Mr Caratti has acted, in effect, as the landlord of large areas of farming land in (at least), the Shire of Esperance and the Shire of Yilgarn. It can be inferred that he is a very experienced businessperson and, given the substantial amount of property apparently under his control, has had considerable success. He accepted in cross-examination that he had considerable experience in the operations of companies, and that he controlled Harvard (ts 121). 50 In the witness box Mr Caratti presented as someone with a forthright way of communicating his views. It was clear from observing him under cross-examination that he was not a credulous or trusting person. It was also clear that when it came to looking after the interests of Harvard, Mammoth and himself, Mr Caratti was far from quiescent. In matters of business, at least, he was not disposed to passively accept matters put to him by others. Rather, he presented as someone who would actively interrogate any proposition or proposal put to him, and who would be reluctant to accept it unless he was confident that it preserved or enhanced his business interests. 51 For reasons I will now give, I have approached Mr Caratti's evidence with caution. 52 One reason was how Mr Caratti conducted himself in cross-examination. He did not qualify or retract any of his evidence on key points. His answers were invariably categorical and emphatic. He had no hesitation in describing the proposed evidence of others as 'totally false'. He was often combative with the cross-examiner, and he appeared to take umbrage at any challenge to his version of events, no matter how innocuous. Of course, an unyielding approach of that sort can be a mark of conviction, and therefore of the truth of the evidence. But the overall impression left by Mr Caratti's lack of hesitation or reservations was of a wish to convey complete conviction, or perhaps a habit of doing so, which are not necessarily the same as actually holding the conviction. 53 Another cause for doubt about Mr Caratti's evidence emerged when he was cross-examined on the fact that the accounts given in his witness statements of key conversations put the words used in inverted commas. That is, there was nothing to indicate that they contained Mr Caratti's recollection only of the effect or substance of what was said. This included the alleged conversation of 22 January 2019 and much of the second alleged conversation of 31 January 2019, in which the misleading representations were said to have been made. In numerous other places, a statement that he did not remember the precise words, only the substance of what was said, did appear. That suggested that where that statement was absent, Mr Caratti was giving the exact words used. I have set out an example at [191] below. 54 It would be implausible to suggest that Mr Caratti could recollect that many conversations with such precision. That his memory was not so precise was confirmed by his answers at one point when the cross-examiner invited him, in a non-leading way, to give his recollection of the first conversation he is said to have had with Mr Tiller on 31 January 2019. His account of the conversation in the witness box omitted large parts of the account given in the witness statement. Similarly, when cross-examined in a largely non-leading way about the second alleged conversation on that day, Mr Caratti omitted several details that appear in his witness statement (ts 113). That by itself does not necessarily damage the credibility of his evidence; variability in recollection is a human phenomenon. But it does confirm that Mr Caratti does not possess any unusual faculty for recalling conversations verbatim, so it casts doubt on the reliability of his witness statements, which rather suggested that he did. 55 When cross-examined about the inverted commas in his witness statement ('direct quotes' might have been a better way of describing it) Mr Caratti did not claim that he did remember the exact words. Nevertheless, his answers on the point were unsatisfactory. At one point he said he could not recall whether they were the exact words or not (ts 115). Elsewhere, he claimed not to understand the significance of inverted commas, and to say he was never very good at English (ts 103). Whether that is so, I have no doubt that he did understand the import of what the cross-examiner was asking him. But rather than frankly say that the inverted commas did not mean that he remembered every word, Mr Caratti refused to accept any general proposition on the subject, and insisted that the cross-examiner take him to every passage in his witness statements where inverted commas were used, of which there were many. In the course of this questioning he also refused to accept that he was an experienced litigant. I consider that Mr Caratti was being less than candid at these points, and it was one of the factors that caused me to approach his evidence with caution. 56 The main factor, however, which causes me to take that approach was that several times, it appeared to me that Mr Caratti's evidence exaggerated and embellished his claims in ways that did not seem plausible, judged against the inherent probabilities, or did not seem consistent with, or at least went beyond, other evidence such as his own diary notes. I will provide specific instances of this below. In general, I was not prepared to accept Mr Caratti's evidence on such issues unless it was common ground with the respondents or supported by the documentary record or by the inherent probabilities of the relevant situation. However, as will be seen, in the end, on the main aspects of the claim his evidence had that support.

Simon Clifford Tiller 57 The first respondent, Mr Tiller, is a wheat and livestock farmer and truck driver. His parents were farmers and he grew up on a farm and worked on farms as a teenager and young man. He married the fifth respondent, Felicity Tiller, in 2004. In 2008 he took over the family farming business, which by then was in the Esperance area. He sold that farm in around 2011 and in 2012 began farming at Warriup and Howick Farms, pursuant to a sub-lease which Mr and Mrs Nicoletti granted to Mr and Mrs Tiller. 58 I did not find Mr Tiller to be a credible witness. His evidence was full of inconsistencies and implausibilities. I will refer to several instances in the course of making findings of fact below. Too often, when challenged on such matters in cross-examination, Mr Tiller retreated to equivocal answers or expressions of incomprehension. This both indicated that he did not have a satisfactory explanation, and that at the same time he was unwilling to concede that he may have been mistaken, even when faced squarely with the improbability of the evidence he had given. Also, in cross-examination his evidence changed frequently. In the witness box he often appeared to be confused as to a relevant sequence of events. He would frequently not listen to questions properly. I accept that being cross-examined in court is a stressful experience, and there was no evidence to suggest that Mr Tiller had much prior experience of the court process, if any. Nevertheless, I was left with the impression that he sometimes retreated into incomprehension as an alternative to facing the improbable consequences of the evidence he was giving. 59 An example of how Mr Tiller's account of events changed is in the following excerpt from the transcript, concerning the 15 February Deeds. At paragraph 159 of his statement he said 'I did not read the document closely. I however understood from my brief read of it at the time that it just acknowledged that I had not put anything into Dimension, which was the case'. The cross-examination on that point was as follows: Now, you say at paragraph 159 of your statement that you did not read the document closely, but you: … understood that I have not put anything into Dimension. ?---That's right. Which was the case. Which bit did you read that gave you that impression? --- I --- Go to the document. Just show us what you read?---I didn't read much of it. Yes. I understand that. So, I want you to tell us what you did read?---Like I said, I didn't read very much of it. And I talked to [Mr Nicoletti] about this, and that's my understanding of the document. Did you read it at all?---Not really. Not really, or not at all?---I had a - I had a glance at it. That was it. You signed a document that you didn't read?---Yes. So why did you say that from your brief read of it that was your understanding? Are you now saying that your understanding is derived solely from what you were told by John Nicoletti?---No. I had a - I had a bit of a look at it and - - - So, what bit did you look at?---I don't remember. You don't remember? So how could you possibly testify as you did in paragraph 159?---Well, I had a brief look at it and I had a chat with John Nicoletti and - - - So, what part did you read when you briefly looked at it?---Well, let me read it again. Just give me a moment. Well, it says in - in the first couple of lines: Simon and Dimension agree and acknowledge that on and from the date of the lease agreement Simon has not provided a contribution in funds. Okay. So, you stopped then, did you?---Yes. You didn't think anything else was worth reading?---No. 60 Later in his cross-examination Mr Tiller said, 'I didn't even read the assignment and release anyway'. He was then cross-examined as follows (ts 264): You didn't read it, or you only read it briefly?---I read it briefly, like I said. Well, what's your story, Mr Tiller? Did you read it or not read it?---I read the first couple of lines, like I said to you. 61 So, Mr Tiller's evidence about how he knew what was in the 15 February Deeds was variously: that he had a 'brief read of it' (suggesting that he read the whole thing, albeit quickly); that he 'didn't read much of it' (suggesting that he read some, but not all of it); that he did not 'really' read it (which may mean he did not read it at all); that he 'had a glance at it' (which may also mean that he did not actually read it); that he 'had a bit of a look at it' (which could mean anything); that he did not 'even read the assignment and release anyway' (suggesting he did not read it at all); that he did not remember what part he looked at; that he read 'the first couple of lines' only; and that his understanding of the document came at least in part from Mr Nicoletti. Only the last of these matters was directly inconsistent with the others. But even so, the variations in Mr Tiller's account of his review of the 15 February Deeds were so numerous as to undermine confidence in the account he was giving.

Stephen James Vaughan 62 Mr Vaughan is a licensed real estate agent with over 30 years' experience in the rural industry and a long history of advising both John and Allen Caratti. He provided Mr Caratti with a market appraisal of the Farms in mid-2018 and he helped to negotiate the Fowler lease. He gave his evidence under cross-examination in a straightforward manner which was consistent with his position as a professional intermediary and adviser with no vested interest in the outcome of the litigation. I accept Mr Vaughan as a witness of truth.

Peter William May 63 Mr May has worked on farms for Mr Nicoletti over the past 10 years and also runs his own non-agricultural businesses. He was an employee of Mr Nicoletti at the beginning of that 10 year period but he gave evidence that in more recent years, including 2019, he has worked as a contractor (ts 186). He ran the Farms for Mr Nicoletti from April 2019. Mr May only gave evidence because he was subpoenaed to do so, and did not provide a witness statement. Like Mr Vaughan, he gave his evidence in a straightforward way, and there was nothing to suggest he had any interest in the outcome of the litigation. I accept that Mr May gave his evidence truthfully.

Giovanni Basilio Nicoletti 64 Mr Nicoletti is 65 years old. People refer to him as 'John' or 'Nico' and Mr Tiller calls him 'Nicko'. He is a very successful wheat and livestock farmer and businessman. He was born in Merredin, Western Australia, and grew up on the family farm in Westonia. He left school in Year 9 at the age of 14, and for the next 10 years he worked on a family farm in Verona, Italy, which is where he met his wife, Giuliana (Julie). He returned to Western Australia in 1978 and began farming for himself on leased land in Westonia in 1979. According to his evidence, which was not contested on this point, by around 2008 to 2009 he was the single biggest wheat grower in Western Australia. He conducted business through companies including Apache Investments Australia Pty Ltd. One business which he established in 2001 and which has since thrived is the agricultural machinery dealership Ag Implements, which is owned by his company Ag Implements Pty Ltd. 65 I did not find Mr Nicoletti to be a credible witness. Unlike Mr Tiller, his demeanour in the witness box was generally calm and measured. He did not appear to be perturbed by any of the questions he was asked in cross-examination. But like Mr Tiller, his evidence was often implausible and internally inconsistent, indeed contradictory. Once again, examples will appear in the findings of fact below. Also like Mr Tiller, in cross-examination Mr Nicoletti often retreated to a position of equivocation or apparent incomprehension, rather than either provide a satisfactory explanation for the inconsistency or implausibility of his evidence, or candidly admit that the evidence was mistaken. My impression was that Mr Nicoletti was more focussed on giving evidence that suited the respondents' case than on answering questions truthfully.

Damian Glen Bryce 66 Mr Bryce is an accountant specialising in agriculture. He lives in Queensland. He worked for PricewaterhouseCoopers until 2006 and then in chief financial officer roles in the rural sector until he set up his own 'agribusiness finance' company, Map19 Consulting, in 2016. 67 Mr Bryce was also calm and measured in the witness box and answered questions in a straightforward manner. The evidence he gave as to his involvement in Dimension Agriculture and the Farms was consistent with the nature of his role, which was to provide professional services to Mr Nicoletti. His evidence was not seriously shaken in cross-examination. The overall impression which I gained from Mr Bryce's evidence was that he did what Mr Nicoletti instructed him to do, and Mr Nicoletti did not, for the most part, disclose his reasons for giving him those instructions. Nothing about that impression was inherently implausible or falsified by the objective documentary record. So in general, there was no reason to disbelieve Mr Bryce's evidence, given on oath.

Felicity Helen Tiller 68 Mrs Tiller's witness statement was admitted by consent and she was not cross-examined, so she did not enter the witness box. I accept that her evidence was given truthfully.

An issue of admissibility 69 Before embarking on a narrative of the relevant events it is necessary to resolve one evidentiary objection. The objection was to hearsay evidence which Mr Caratti gave based on things he was told by Mr May. In broad terms, it was evidence to the effect that Mr Tiller had relinquished control of the farms to Mr Nicoletti, and when that is said to have occurred. It was evidence of things that Mr May said to Mr Caratti on three occasions, being 10 April 2019, 7 May 2019 and 20 June 2019. 70 The evidence was plainly hearsay. It was, to use the words of s 59(1) of the Evidence Act 1995 (Cth) '[e]vidence of a previous representation made by a person' that was relied upon 'to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation'. The facts sought to be proved were things that were not within Mr Caratti's knowledge from any direct observation. 71 Harvard submitted that the evidence was nevertheless admissible because it was comprised of admissions. Under s 81 of the Evidence Act, the exclusionary hearsay rule found in s 50(1) does not apply to evidence of an admission, or to evidence of a previous representation made at or shortly before or after the time the admission was made which is reasonably necessary to refer to in order to understand the admission. On the definition in the Dictionary to the Evidence Act, an admission is a previous representation that is made by a party to a proceeding and is adverse to the party's interest in the outcome of the proceeding. Section 87 provides: (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter; or (b) that the person was an employee of another person or had authority otherwise to act for another person; or (c) the scope of the person's employment or authority. 72 Harvard relied on s 87(1)(b), alternatively s 87(1)(c), to submit that the things that Mr May told Mr Caratti should be taken to be representations, and therefore admissions, made by Mr Nicoletti. The standard to which Harvard was required to prove the necessary elements of each of those paragraphs was that it was reasonably open to find those elements. That means it is not necessary to make a concluded finding of the relevant employment, authority or common purpose: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90 at [11]. It also means that the standard of proof on the balance of probabilities, which would otherwise apply to the relevant evidentiary question by reason of s 142 of the Evidence Act, does not apply. I do not consider it necessary to gloss the meaning of 'reasonably open' further than that: cf. Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [40]. 73 Mr May's evidence was that he had worked on and off for Mr Nicoletti for the last 10 years. He said he was employed by him in the early part of that period but in the last few years he had been 'a subcontractor' to him (ts 186). 74 There was no written contract between Mr Nicoletti and Mr May. Mr May said that, apart from working for Mr Nicoletti he had two other businesses, none of which had anything to do with Mr Nicoletti or with agriculture (ts 187). Mr May did not suggest that his recollection was precise, but he said that in late February or early March of 2019 Mr Nicoletti asked him whether he was interested in coming to manage Warriup, and that there may be an opportunity if he wanted to come and look after Warriup for him, that is, for Mr Nicoletti. 75 Mr Nicoletti did not mention that Mr May would be working for any other person or entity (such as Dimension). When asked on whose behalf he was going to manage the farm, Mr May said 'Well, John approached me', that is, Mr Nicoletti. Apache Investments paid Mr May for his work on the Farms, although Mr May readily identified that company with John Nicoletti (ts 188). Mr May rendered invoices under his Australian Business Number. He was on a day rate and Apache Investments did not deduct any tax (ts 192). 76 Mr May lived in Esperance and would sometimes, but not always, stay overnight on the Farms (ts 189). There were breaks for him to work in his tourism business. But he was at the Farms most days; on average he would be there four to five days a week, and at least eight to 10 hours per day. 77 In terms of the work he did, Mr May said that he organised the staff and managed the day to day running of the Farms (ts 187). His evidence was, 'I ask what John wants to do and I just work from day to day and run the farm' (ts 188). If Mr Nicoletti told him what to do, he would do it: 'He's the boss'. 78 Mr May did not have authority to pay creditors of the Farms (ts 188). He still manages the Farms (ts 189). 79 Mr Nicoletti gave evidence in cross-examination to the effect that he telephoned Mr May in late March 2019 - he appeared to be certain that it was March but could not be sure it was late March - and said, 'If there's a possibility I need your help, would you be there?' and Mr May said, 'If it's farming I will help you'. Although this is vague as to the nature of the relationship, Mr Nicoletti did then accept that the conversation was to appoint a farm manager 'to help me manage the farm' (ts 291). 80 Does the above evidence show that Mr May was an employee of Mr Nicoletti? There is no definition of 'employee' in the Evidence Act, so the common law meaning of the term will apply. In ACE Insurance Limited v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146, after a lengthy survey of relevant authorities, Buchanan J (Lander and Robertson JJ agreeing) observed (at [102]-[103]) that there was: no single or unifying test to determine whether an employment relationship exists. Some features of a particular relationship may tend strongly against such a conclusion. Principal amongst such features, in my view, are contractual terms which deny any requirement for personal service or represent clear indications of the pursuit of an independent business. Even where such features are absent the proper conclusion may be that a particular relationship is not one of employment, but the analysis is less straightforward. Of the indicia of employment it is clear that a right of control remains an important consideration in many cases. It may be found in a right of organisation and allocation of work, as much as in some theoretical right to say how actual work should be done. 81 However while the degree of control remains important, the modern approach is multifactorial and the totality of the relationship must therefore be considered: Putland v Royans Wagga Pty Limited [2017] FCA 910 at [30] (Bromwich J). It may be difficult to give much independent weight to such things as taxation arrangements, because they reflect a subjective view of the nature of the relationship and may therefore be considered in the same category as declarations of intent, which, while not necessarily wholly irrelevant, must be approached with caution and may not assist at all: Putland at [26]. 82 A number of factors speak against any conclusion that Mr May was an employee in relation to his work on the Farms, let alone an employee of Mr Nicoletti. These are: (1) Mr Nicoletti was not personally a sub-lessee of the Farms so on the face of things the business of the Farms was not his, personally - however this factor is of little help in resolving the present issue because if I were to give it significant weight, it would point to the conclusion that Mr May was Dimension's employee, and the representations could still be admissible on that basis because they were adverse to the interests of Dimension, as a party; (2) Mr May was paid by Apache Investments, not Mr Nicoletti personally (or Dimension); (3) Mr May was paid on the basis of a day rate on the rendering of invoices and without the deduction of tax (noting Bromwich J's observations about the limited weight that may need to be placed on such factors); (4) it appears that Mr May had no regular and set hours to work at the Farms, he was free to continue to run his businesses that were not related to the Farms, and it was expected that he would work in his tourism business when the tourist season recommenced; and (5) Mr May's own statement of the legal character of his relationship with Mr Nicoletti as being a 'subcontract', although that of course cannot be conclusive and in the circumstances, including the absence of any documents evidencing the contract, I give it little weight. 83 Factors that speak in favour of the view that Mr May was an employee of Mr Nicoletti are: (1) there is no suggestion that Mr May supplied any tools or machinery for use at the Farms and the evidence suggests that he did not, as Mr Caratti said Mr May told him 'all Nico's gear and men are on the farm' (Mr Caratti's first witness statement dated 11 November 2019 (Caratti I), para 219.3) (that hearsay is admissible under s 87(2) of the Evidence Act); (2) Mr Nicoletti asked him whether he was interested in coming to 'look after Warriup for him' and did not mention any other entity - Mr Nicoletti's own evidence was in terms that Mr May would be helping Mr Nicoletti to manage the Farms; (3) while Mr May's hours may not have been set, and were subject to breaks, it would appear from his evidence that he worked four to five days a week and eight to 20 hours a day, so that his hours were fairly regular and consumed most of Mr May's working life during the relevant period; (4) it also seems that the position is a permanent one or at least long term, as Mr May still works on the Farms; and (5) most importantly, it was clear that Mr Nicoletti had actual and, it may be inferred, legal authority to control Mr May in the way he managed the Farms - 'He's the boss'. 84 Mr Caratti's evidence was that Mr May told him that he was employed by Mr Nicoletti to manage the Farms (Caratti I, para 212.3). While this is admissible for present purposes under s 87(2), as a characterisation of the nature of the relationship by a witness of fact I would give it little weight, and in circumstances where Mr May's sworn testimony contradicted it I give it no weight. 85 These competing indicia are perhaps finely balanced, and if the question were to be determined on the balance of probabilities as an issue at the heart of the case, it may be that one would conclude that Harvard had not discharged its onus to prove an employment relationship. But that is not the question here. In my view the indicia I have described, including importantly the clear presence of control by Mr Nicoletti over Mr May's activities on the Farms, mean it is reasonably open to find that when Mr May spoke to Mr Caratti on the three occasions I have mentioned, he was an employee of Mr Nicoletti. It is not necessary to go further than that in determining the nature of the relationship. 86 As for the scope of Mr Nicoletti's employment, Mr Caratti's admissible hearsay evidence on the point was that ' He was employed by Mr Nicoletti to manage the Farms' (Caratti I, para 212.2) and he said 'I am managing the Farm for Nico like I told you before' (Caratti I, para 219.1). Mr May's own evidence, which I have described, is to the effect that he managed the day to day operations of the Farms. With limited exceptions, the representations (according to Mr Caratti's evidence) which he made to Mr Caratti were all about that subject, including the extent and timing of Mr Tiller's involvement in the running of the Farms. I am comfortably satisfied that it is reasonably open to find that those representations related to matters within the scope of Mr May's employment with Mr Nicoletti. 87 Subject to the limited exceptions I just mentioned, I rule that Mr Caratti's hearsay evidence about the content of the three conversations he had with Mr May is admissible to prove the facts which Mr May told Mr Caratti in those conversations. The exceptions are certain statements about the repossession of Mr Tiller's machinery, how much money Mr Tiller owed, and the whereabouts of Mr Tiller's parents after they left the Farms. Those matters are not within the scope of Mr May's employment. 88 Counsel for the respondents submitted that to the extent that it was a discretionary decision whether to admit the evidence, the discretion should be exercised against doing so because, he said, Mr May's evidence in the witness box differed in material respects from Mr Caratti's evidence about what he said and 'we should [not] be saddled with two sets of evidence … from the same witness' (ts 392). I take this to be a submission that the court should exercise its discretion under s 135 of the Evidence Act to refuse to admit the evidence because its probative value is substantially outweighed by the danger that it might be misleading or confusing or (perhaps) cause or result in undue waste of time. But I do not consider that the two different accounts of what Mr May said are likely to result in either of those outcomes. There will be no impediment to reconciling the two different accounts, or choosing between them, in the usual way.

A chronological account of the evidence 89 In Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592 at [102] and [109], McHugh J observed that s 52 of the Trade Practices Act 1974 (Cth) (TPA), the predecessor to s 18 of the ACL, required the court to examine the impugned conduct as a whole in the light of the relevant surrounding facts and circumstances, not in isolated parts. His Honour was in dissent but not on this principle: see also the majority (Gleeson CJ, Hayne and Heydon JJ) at [74]: 'in cases under s 52, read in the light of the particular structure and goals of the Act, everything must depend on an appropriately detailed examination of the specific circumstances of the case'. See also Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [102] (Gummow, Hayne, Heydon and Kiefel JJ). 90 It is convenient before making specific findings about the key factual issues to place the factual disputes in the context of the relevant course of events as a whole. That includes the documents which, with one exception, were admitted into evidence by consent. Where the testimony adduced by the parties on key issues is contradictory, I will describe the competing versions of events but defer findings until the subsequent sections of these reasons.

The history of lease dealings between the Nicolettis and Caratti interests 91 There is an extensive history of lease dealings between the Nicolettis and companies associated with them, and John and Allen Caratti and companies associated with them. 92 Mr Caratti's evidence was that he has known Mr Nicoletti for 30 years (ts 119). Mr Nicoletti's evidence was that he has farmed properties owned by the Caratti family since around 1999 (Mr Nicoletti first witness statement dated 11 November 2019 (Nicoletti I), para 21). That is borne out by the numerous leases and extensions of lease in evidence; and it is not necessary to go into detail about them. 93 Mr Nicoletti gave evidence that his dealings with the Caratti family have always been through Allen Caratti (Nicoletti I, para 19). That statement is too wide and unqualified to be accepted in its entirety, but John Caratti did accept in his evidence-in-chief that Allen Caratti was largely responsible for the management of the Nicolettis' leases up until about 2012 (Mr Caratti's responsive witness statement dated 27 November 2019 (Caratti II), para 40). He said that he (John Caratti) took a more proactive role after that, although in cross-examination, he said that Allen only stopped managing farms on behalf of Mammoth in 2015 or 2016 (ts 126). When asked whether he accepted that Mr Nicoletti dealt with Allen Caratti in relation to the management of the farms he was leasing, Mr Caratti said that 'Allen and Nicoletti were bonded together' (ts 128). I accept that until 2016, Mr Nicoletti had few if any direct dealings with John Caratti over the leases. As will be seen, by late 2016 John Caratti was taking steps to assert more active control over the leasing arrangements for the Farms. It is not necessary to make a finding as to precisely when in 2016 he began to have dealings with Mr Nicoletti about those matters. 94 Turning to those leasing arrangements for the Farms themselves, John Caratti gave evidence, which I accept, that by an undated deed of lease entered into in July 1994, Harvard and John and Allen Caratti leased the Farms to Mammoth (Caratti I, para 6). Mr Caratti cannot now find a copy of the deed of lease, and it was not produced in evidence. There is no evidence as to the rent paid under that lease, including whether it was more than nominal. 95 Mr Caratti said in evidence that there was a lease by which Mammoth sub-leased the farms to Mr and Mrs Nicoletti, although he could not locate a copy of it. There is, in evidence, an undated lease (or sub-lease) of the Farms from Mammoth to Mr and Mrs Nicoletti which seems to have been made some time in 2004 (without two particular lots which appear to have been added in 2009 - see TB pp 61-62). It is for a term of five years from March 2005. The annual rent was $800,000 plus GST. There is also in evidence a deed of lease by which it appears that in 2009 Mammoth sub-leased the Farms to Mr and Mrs Nicoletti for 10 years from March 2010 (TB 10). Once again, the annual rent was $800,000 plus GST. John Caratti claimed in cross-examination that he had not seen that deed until discovery in these proceedings and that the signature of his mother, Madeleine Caratti, as a director of Mammoth was forged, but there is no need to make a finding about that. 96 The basis of Harvard's claim that it relied on the misleading conduct which is said to have occurred on 31 January 2019 is essentially that Mr Caratti was content to have Mr Tiller as a tenant, but would not have accepted Mr Nicoletti's involvement with the Farms, because he did not think that he was a good tenant. Assessing that claim requires the court to have regard to the history of dealings between Mr Caratti and each of Mr Tiller and Mr Nicoletti concerning actual and alleged defaults under the various leases. 97 Mr Caratti said in his evidence that the Nicolettis were not good tenants of the Farms and the other properties. This is, he said, because they were regularly in breach of their leases for non-payment of rent (Caratti I, para 11). There is some support for this in the documents. Emails between Mammoth's financial controller and the Nicolettis from February 2017 and May 2018 list outstanding invoices, presumably for rent, in relation to farms at Marvel Loch and Bullfinch. The outstanding invoices were said to total $643,500. Some of them were nearly one year old, and in the course of the email exchange, Mrs Nicoletti accepted the correctness of the list (TB 21). Payments for 2017 rent were made in 2018, even though the rent under the Marvel Loch sub-lease was payable in advance (TB p 191). Despite Mr Nicoletti's evidence that he always dealt with Allen Caratti, it appears from these emails that the pressure to pay the outstanding rent came from John Caratti. There is another email exchange in December 2018 seeking rent for those farms, which had fallen due in March and September of that year (TB 61). Mr Nicoletti's evidence, however, was that he could not recall those emails and that he and Mrs Nicoletti did not leave Bullfinch and Marvel Loch with any money owing under the leases (Nicoletti I, para 139). 98 Mr Nicoletti provided a witness statement responding to many of the claims made in Mr Caratti's statement in some detail, but he did not deny being late with payment of rent, other than in respect of the Farms themselves. I find that from time to time, Mr Nicoletti was significantly late in paying rent on some of the properties he leased from Caratti interests and that John Caratti was aware of that. 99 Mr Caratti's evidence was that as at December 2018, Caratti entities claimed interest on rental arrears by Mr Nicoletti in relation to leases at Yilgarn (Caratti I, paras 31-41) but he refused to pay and the Caratti entities did not litigate over that. Mr Caratti said that the arrears were eventually paid when Mr Nicoletti needed his consent to the assignment of the Yilgarn leases to the Saudi Agricultural and Livestock Investment Company (SALIC). That was under a transaction settled in April 2019, by which Mr Nicoletti sold his farms to SALIC. Mr Bryce first met Mr Nicoletti when he began to work for him in preparing his farming business for sale in 2017, and Mr Bryce worked on the transaction throughout 2018 and into early 2019 (Mr Bryce's first witness statement (Bryce I), paras 12-13). He and Mr Nicoletti worked closely together and developed a friendship (Bryce I, para 14). 100 Mr Nicoletti denied that he needed Mr Caratti's 'assistance' (Mr Nicoletti's responsive witness statement dated 15 November 2019 (Nicoletti III), para 17) in relation to the SALIC transaction but he did not specifically deny that the Yilgarn leases were in arrears or that the consent of landlords to aspects of the transaction was needed, and it is inherently likely that it was required. Mr Caratti gave evidence elsewhere that he met SALIC representatives in relation to the transaction on numerous occasions in December 2018 concerning the assignment of the Yilgarn land (Caratti I, para 190) and there is no reason to doubt that he did. I prefer Mr Caratti's version of events concerning the Yilgarn arrears to that of Mr Nicoletti. 101 Mr Caratti also gave evidence that three homes in the Bullfinch township which the Nicolettis leased from Caratti interests were not maintained and were left derelict. Mr Caratti also gave evidence of an implied oral admission from Mr Nicoletti that he 'destroyed' a house on a Marvel Loch farm he leased from Mammoth, although Mr Nicoletti is supposed to have said that the destruction was the result of white ants (Caratti I, paras 43-44). Mr Nicoletti's evidence was that he spent a substantial amount of money on that house to make it habitable and he does not recall the discussion in which the implied admission is said to have been made (Nicoletti III, para 19). Only Mr Caratti was cross-examined on this issue, and then only briefly to confirm his denial of Mr Nicoletti's version of events (ts 147-148). It is not possible on the basis of the limited evidence to determine whose version of events is correct, but it is a peripheral issue on which it is not necessary to make a finding.

2012 sub-lease from the Nicolettis to the Tillers 102 Mr Tiller's evidence was that he first met Mr Nicoletti in February 2012, and it appears they soon began to talk about Mr Tiller taking a 'sub-sub-lease' of the Farms (Mr Tiller's first witness statement dated 11 November 2019 (Tiller I), paras 14-19). By an undated instrument which appears to have been made in 2012, Mr and Mrs Nicoletti sub-leased the Farms (TB p 294) to Mr and Mrs Tiller. The term of the sub-lease was three years, commencing on 1 March 2012, with an option for a further two years. At $1,260,000 per annum, the rent was significantly higher than the rent the Nicolettis were paying under the sub-lease from Mammoth. Mr and Mrs Tiller moved onto the Farms at around this time (Tiller I, paras 20-21). There was a market rent review scheduled for March 2015, being the commencement of the further term. 103 The sub-lease from the Nicolettis to the Tillers was extended by deed, for two years from 1 March 2015. The rent stayed at $1,260,000 per annum (TB 12). 104 Mr Caratti said that from about 2015, Mr and Mrs Tiller paid the rent under the lease directly to Mammoth (Caratti I, para 14). Mr Tiller gave evidence of a meeting he had with Mr Nicoletti and Allen Caratti at which they indicated they were happy for Mr Tiller to pay the rent direct to Mammoth (Tiller I, para 29). It is not clear how that arrangement worked, given the apparent significant difference between the rent payable under the Tillers' sub-lease and the rent payable under the sub-lease to the Nicolettis. 105 Mr Tiller's evidence was that from 2012 until an unspecified time he only dealt with Allen Caratti in relation to the leasing of the Farms (Tiller I, para 27). It appears however from evidence which is described below that Mr Tiller started dealing frequently with John Caratti from at least December 2016.

The alleged arrears in the rent on the Farms 106 According to Mr Caratti, on 3 August 2016 Mammoth issued a notice of default under the Nicolettis' sub-lease of the Farms to Mr and Mrs Nicoletti for $720,000 of unpaid rent (including GST) (Caratti I, para 18). However Mr Nicoletti's evidence was that the first time he saw that document was during discovery in this proceeding (Nicoletti I, para 135). As I have said, there was one exception to the admission of all the documents into evidence by consent, and it was this notice. 107 Mr Caratti was cross-examined for some time about whether the notice was ever sent. The cross-examination was inconclusive, although it did make it clear that if it was sent, John Caratti did not do so, and he was relying on what his son Michael told him. 108 There are reasons to doubt that the notice was sent. Unlike other examples of rental arrears mentioned above, there is no email correspondence with Mrs Nicoletti concerning the alleged arrears. And it is curious that there is no record of the arrears being drawn to Mr Tiller's attention as, by August 2016 he was paying the rent for the Farms direct to Mammoth. It is also noteworthy that there is no mention of the amount of the arrears or the issue of a default notice in a letter from John Caratti's solicitor to Mr and Mrs Nicoletti which I will mention shortly. As the party seeking to rely on the issue of the notice of default, Harvard had the onus of establishing that it was sent. The doubts I have just described, along with the lack of any direct as opposed to hearsay evidence that it was sent, mean that Harvard has not discharged that onus. 109 Mr Caratti's evidence was that he spoke to Mr Nicoletti about the alleged arrears some time after 3 August 2016, and Mr Nicoletti said he would not pay any arrears but that Mr Tiller would pay (Caratti I, para 19). Mr Nicoletti's witness statements do not refer specifically to this conversation, whether to deny it or otherwise, although he does deny ever receiving a demand from John Caratti or discussing with him the subject of reductions in rent for capital improvements which he, Mr Nicoletti, had made (Nicoletti III, para 5). His evidence was that the default notice was baseless, because by then he had agreed with Allen Caratti that Mr Tiller would pay the rent on the Farms (Nicoletti I, para 135). 110 On 30 November 2016, solicitors acting for Mammoth wrote a letter to Mr and Mrs Nicoletti claiming that on occasion deductions had been made from rental payments for the Farms (TB 18). The letter said that, while Allen Caratti had agreed to the deductions, he had no authority to do so on behalf of Mammoth. But the letter did not make any demand for arrears; rather, its purpose was to notify the Nicolettis that Allen Caratti did not have authority to agree to such offsets. The evidence was that John Caratti gave instructions to issue this letter. Mr Nicoletti's evidence was that he does not recall seeing the letter before these proceedings (Nicoletti I, para 138). 111 Mr Tiller's evidence about the deductions is that he had made capital improvements to the Farms since 2012 and that he and Allen Caratti would agree to deductions from the rent to reflect some of the cost of those improvements (Tiller I, paras 48-49). A copy of the letter of 30 November 2016 was sent to him. His evidence was that up until then he did not know that Allen Caratti may not have had authority to agree to the deductions on behalf of Mammoth (Tiller I, para 50). 112 On 8 December 2016 Mr Tiller emailed John Caratti asking him to call regarding the letter. He spoke to Mr Caratti shortly after sending the email. A few hours later, Mammoth's financial controller emailed statements showing the alleged $720,000 arrears to Mr Tiller. He said that 'John' had asked him to send it (TB 20). 113 I find that there was an arrears of $720,000 shown in Mammoth's financial records and that John Caratti believed that was the result of arrangements made with Allen Caratti about offsets. But the mailing of the statements shows that by December 2016, John Caratti perceived that it was Mr Tiller who was not paying. That was so even though Mr Nicoletti was ultimately liable, because he had the sub-lease direct with Mammoth.

Mr Nicoletti's late 2016 surrender of the Farms and the sub-lease to the Tillers 114 Mr Caratti's evidence was that in November or December 2016 he had several conversations with Mr Nicoletti about the latter's wish to surrender the lease of the Farms. Mr Nicoletti told him that he wanted to cease farming activities on the Farms and on other properties in the Esperance district, to sell the farming land he owned, and to get out of farming to concentrate on his farm machinery business. Mr Nicoletti said that Mr Tiller was a 'good operator' who would be well suited to take over the Farms in his own right. Mr Caratti said that Mr Nicoletti could not surrender the lease until the arrears were paid, and Mr Nicoletti said that Mr Tiller would pay them (Caratti I, paras 24-25). 115 Mr Nicoletti's evidence about how he came to surrender the lease was quite different. He said that from early 2016 he decided that there was no point in remaining in the lease structure for the Farms, as 'sitting in the middle I was essentially acting as Simon's guarantor' (Nicoletti I, para 40). He raised the possibility of exiting with Mr Tiller and with Allen Caratti. After further discussions with Mr Tiller, he did not hear anything until later in the year, when Julie Nicoletti told him that John Caratti was releasing them from the lease for Warriup. He said he did not speak to John Caratti at all during this process and had no dealings with him relating to surrender of his lease over Warriup (Nicoletti I, para 48). 116 I do not accept Mr Nicoletti's evidence about how the surrender came about. It is inherently implausible that Mr Caratti simply released the Nicolettis from the lease, out of the blue. It is much more likely that Mr Caratti used their desire to exit the leases as a way of trying to extract what he asserted was the $720,000 arrears. As the Tiller Lease shows, Mr Caratti ended up accepting that Mr Tiller would pay those alleged arrears. I accept Mr Caratti's evidence about the phone conversations with Mr Nicoletti in late 2016. 117 Mr Caratti also gave evidence of a telephone conversation with Mr Tiller in November or December of 2016 in which among other things, Mr Tiller said he would like a five year lease with a further five year option at the same rent as Mr Nicoletti was paying, $800,000 per annum. Mr Tiller also undertook to pay the arrears of $720,000 in five instalments over a two year period. According to Mr Caratti, at this time he thought Mr Tiller was honest, hardworking and a very good farmer (Caratti I, paras 27-28). 118 Mr Tiller gave evidence of what is probably the same conversation. But according to him, Mr Caratti referred to the arrears as his (Mr Tiller's), not Mr Nicoletti's (Mr Tiller's responsive witness statement dated 15 November 2019 (Tiller II), para 6). Given that the statements of arrears had been sent to Mr Tiller on the basis that he owed the money, I accept that is so. Mr Tiller replied to the effect that he had agreed offsets with Allen Caratti. 119 Mr Tiller said he negotiated the new sub-lease with John Caratti over the week following the emails of 8 December 2016 which I have described above. Mr Tiller's evidence was that while he did not consider there was any arrears in the rent, he understood that it was not negotiable for Mr Caratti that the arrears were to be paid as a condition of the new lease. Mr Tiller thought the deal was a good one and he decided he would agree to pay the arrears and 'would figure out how those rental arrears arose later' (Tiller I, para 60). It was not clear what Mr Tiller meant by that; given that he had agreed to pay the alleged arrears, it seems there would have been little point in working out how they arose. But it does not matter for the purposes of this case. All this part of the history of the dealings between the parties shows for present purposes is that Mr Caratti claimed the arrears from Mr Tiller, not Mr Nicoletti, and that Mr Tiller ended up agreeing to pay them. 120 Mr Caratti sent a draft sub-lease to Mr Tiller on 12 December 2016 (TB 20A). The sub-lease, that is the Tiller Lease, was executed by all parties and dated 16 December 2016 (TB 62). It was for five years commencing on 1 March 2017, with a five year option granted to the lessees. Mammoth was the sub-lessor. The rent was $800,000 per annum payable in two equal instalments. After the first year, the instalments were due in March and September. The lessees were also liable for rates and taxes. Mammoth had a right to retake possession on giving 14 days' written notice if there was any breach. There were special conditions by which the Tillers acknowledged that they were indebted to Mammoth for $720,000, 'which amount is the rental arrears owed to the Lessor under the previous lease'. The amount was to be paid in specified instalments, the last of which was $140,000 due on 15 November 2019. 121 There is also a deed of surrender of lease which Mr and Mrs Nicoletti appear to have signed around 19 December 2016 (TB 23; TB 24A.1). Mr Caratti's evidence was that in around November or December 2016 he told both Mr Tiller and Mr Nicoletti separately that he was glad to see Mr Nicoletti off the Farms once and for all, and that he did not want to deal with Mr Nicoletti again regarding the Farms as he was unhappy about the defaults that had occurred (Caratti I, para 30). Mr Nicoletti denies this was said (Nicoletti III, para 8). Mr Tiller's evidence was that the only reference to Mr Nicoletti in his conversations with Mr Caratti at this time was that Mr Caratti said that Mr and Mrs Nicoletti would need to sign a surrender of their lease (Tiller I, para 57).

Defaults under the Tiller Lease 122 According to Mr Tiller's evidence, he began to experience financial problems in 2016. He had a lower than expected wheat yield in that year (Tiller I, paras 78-80). 123 Mr Caratti gave evidence that the Tillers paid the first two arrears instalments due under the Tiller lease on time (Caratti I, para 47). But the documents suggest otherwise. There are diary notes made by Mr Caratti of conversations on 13 and 20 January 2017 in which Mr Tiller promised to pay a sum of $100,000 (possibly plus GST) or $110,000 'next week' (TB 25). This was probably the first instalment of the arrears, which was due after execution of the 'Head Landlord's Consent' to the Tiller Lease. That included Allen Caratti's consent, and it is not clear when or whether that was provided. But it seems unlikely that in January 2017 John Caratti was chasing, or Mr Tiller was promising payment of, the second instalment, which was not due until 15 February 2017. Mr Tiller's evidence was that he paid the first instalment on time (Tiller I, para 60). 124 There are also emails showing that the second instalment was not paid on time (TB 26). Mr Caratti emailed Mr Tiller at 7.45 am on the morning of 16 February 2017 saying 'You made a commitment to pay yesterday it has not arrived we don't want to chase you every time a payment is due' (lack of punctuation in original). Mr Caratti demanded payment again, in peremptory terms, in an email to Mr Tiller early on the morning of 17 February 2017. There is also correspondence between Mr Tiller and the Caratti Group's property manager, Paul Testar, which indicates that Mr Tiller said he was waiting for payment from grain sales in order to pay the second instalment, which remained unpaid as late as 9 March 2017. Mr Tiller's evidence was that he paid it on or about 10 March 2017 (Tiller I, para 63). Mr Caratti's evidence that these instalments were paid on time is an example of his tendency to embellish his evidence to support his case, in this instance to depict Mr Tiller as a more desirable tenant than Mr Nicoletti. 125 On 10 April 2017 Mr Testar sent a reminder that the third instalment was due on 15 April 2017. That instalment was also not paid on time, as on 19 April 2017 Mr Testar emailed Mr Tiller in relation to it, asking him to 'advise as a matter of urgency' (TB 27). On 2 May 2017 Mr Caratti emailed Mr Tiller saying that if it was not paid by 5 May, Mammoth would issue a default notice (TB 28). 126 John Caratti's evidence was that on or about 2 May 2017, he spoke to Mr Tiller on the telephone, and that Mr Tiller told him, relevantly, that he had not paid the third arrears instalment of $220,000 because his mortgage broker had reminded him that in June 2016 he had paid 'Mr Nicoletti's arrears' to Allen Caratti. John Caratti said he replied to the effect that he did not know what Mr Tiller was talking about and that the agreed arrears were still owed under the Tiller Lease (Caratti I, paras 50-51). He asked Mr Tiller to give him details of the payments he had made to Allen Caratti. Mr Tiller did so in the conversation, saying that he had made four cheques out as instructed by Allen, one of which was made out to 'Mammoth Investments Pty Ltd' and the other to 'just Mammoth'. 127 Mr Tiller's evidence was that John Caratti said to him on more than one occasion that Allen Caratti had stolen from him (Mr Tiller) and that he should take action against Allen (Tiller I, para 67). Mr Caratti encouraged Mr Tiller to get his bank to trace the money paid under the three cheques that were made out only to 'Mammoth' (TB 33; Caratti I, para 59). He even went so far as to urge Mr Tiller to give him (John Caratti) authority to 'drive the action on your behalf' (TB 38). But Mr Tiller said he had no interest in suing Allen Caratti. 128 It is relevant at this point to interpolate some evidence that John Caratti gave in cross-examination about his relationship with his brother Allen. John would not accept that he disliked Allen intensely, but he did say he did not trust Allen, and that he had a low opinion of him in terms of 'Untrustworthiness' (ts 120). He readily accepted the proposition that Allen 'stole' the money that Mr Tiller paid to 'Mammoth' and which, apparently, did not find its way into Mammoth Investments Pty Ltd's bank account (ts 128). 129 In a similar vein, John Caratti accepted in cross-examination that he did not regard Mr Nicoletti as a friend, although he denied disliking him and said he has a 'great deal of ability'. But he emphatically described as 'a fact' the proposition that Mr Nicoletti was 'in Allen's camp' (ts 120). He described Mr Nicoletti and Allen Caratti as 'bonded together' (ts 128). 130 To return to the narrative, by 16 May 2017, Mr Tiller remained in default of payment of the $220,000 arrears instalment and was also in arrears for the first $440,000 instalment of rent (both including GST), which fell due on 15 May 2017 (TB 34). Mr Caratti's son Michael, who is a lawyer, sent a notice of default to Mr and Mrs Tiller on 17 May 2017 giving them 14 days to remedy the breaches (TB 35). Mr Caratti's evidence was that he arranged for the notice of default to be issued quickly because he wanted to communicate that late payment would not be tolerated, but he thought that Mr Tiller 'was such a hard worker and always in the paddock that he had simply fallen behind with paper work and commitments which he relied on Felicity Tiller to do' (Caratti I, para 63). 131 It is difficult to accept that Mr Caratti held that view, at least by December 2017. Michael Caratti sent another notice of default to Mr and Mrs Tiller on 16 November 2017, claiming default in payment of $440,000 rent (including GST) (TB 41). That amount had fallen due the previous day. There is email correspondence between Mr Caratti and Mr Tiller on 22 December 2017 in which Mr Caratti said (lack of punctuation in original) (TB 43): This situation is ridiculous the payment was due on the 15 november I feel like a begger [sic] asking for the rent payment you have a different excuse each time I talk to you you are pushing my patience to the limit unless you pay the full amount immediately I will have to bring the whole arrangement to a [sic] end we have been approached by others in the district I was warned that you would be a nightmare and iam [sic] starting to believe it 132 Mr Tiller replied 'Allens [sic] your nightmare not me'. Mr Caratti responded 'no more talk pay or get off the farm'. In light of these emails and Mr Tiller's history of late payment I do not accept the general impression created by Mr Caratti's evidence that he had a favourable opinion of Mr Tiller as a hard working farmer who had variously fallen behind in paperwork or fallen on hard times. That is another instance of Mr Caratti embellishing his evidence. According to him, Mr Tiller subsequently paid the rent, but he did not say when (Caratti I, para 62). 133 Mr Tiller's evidence was that he experienced a lower than expected yield again in 2017 (Tiller I, para 80). He owed his main financier, Landmark Operations Limited, $8.8 million by the end of the 2017. By March 2018 Mr Tiller was in discussions with Landmark about his debt. In that month Joe Mondi of Landmark told Mr Tiller that Landmark would continue to fund him for the 2018 to 2019 season, provided the debt was reduced by $3.5 million. There are subsequent emails between Landmark personnel, from August of 2018, showing that they were concerned about Mr Tiller's account, and wanted steps taken to reduce the indebtedness and improve Landmark's security position (TB 51-52). 134 Mr Tiller's evidence was that at around this time he told Mr Caratti about his separation from Mrs Tiller and that she was living in Albany permanently. There is some support for that in a diary note of Mr Caratti's, which says 'his wife is living in Albany' (TB 44). It was around this time, March 2018, that Mr and Mrs Tiller separated although as at November 2019 they had not filed for divorce (Tiller I, para 8). Mrs Tiller's evidence was that the separation was amicable and they remained in regular contact with each other (Mrs Tiller's witness statement dated 11 November 2019, para 5).

Appraisal of the Farms by Stephen Vaughan 135 On 19 June 2018 the real estate agent Stephen Vaughan inspected the Farms for Mr Caratti and on 26 June 2018 gave him a report as a result of his inspection (Mr Vaughan's witness statement dated 27 November 2019 (Vaughan I), para 9; TB 49). Mr Caratti had asked him to give a market appraisal for the lease, to see how the property was looking, and to talk to Mr Tiller (ts 179, 184). 136 Mr Vaughan met Mr Tiller on the farms. Mr Tiller showed him various capital improvements he had carried out. Mr Tiller's evidence was that at the end of the meeting, Mr Vaughan said he would advise Mr Caratti that Mr Tiller should be paying at least $1.3 million in rent (Tiller I, para 77). In cross-examination Mr Vaughan denied that he told Mr Tiller what the estimated rent would be, and said he would never discuss confidential information of that sort with a person who was not his client (ts 180). As I have said, I accept that Mr Vaughan gave his evidence truthfully and it is inherently unlikely that an experienced professional real estate agent would tell a tenant of his client his view of market rent. I find that he did not give Mr Tiller a figure as to the market rent. The fact that Mr Tiller testified that he did reflects poorly on Mr Tiller's credibility. 137 Mr Vaughan telephoned Mr Caratti after returning to Perth and told him that he thought the rent he was charging for the Farms was well below market value. Mr Caratti said there was nothing he could do about that because he was committed to the lease with Mr Tiller. He also said that Mr Tiller was a good farmer who would continue to make significant capital improvements to the farms (Vaughan I, paras 12-13). 138 Mr Vaughan gave Mr Caratti a written report on 26 June 2018. Mr Vaughan's report (TB 49) estimated the total annual rent at $1,570,000 plus GST. It also said there would be strong interest if the properties were to become available for sale. It expressed the opinion that, generally, Mr Tiller appeared 'to be maintaining the property well and has done a very good job with the Capital Investments and in particular the fencing and water'. Mr Vaughan also reported to Mr Caratti on rumours that Mr Tiller had had farm machinery (headers) repossessed, and had had to negotiate terms on some of his accounts for supplies such as fertiliser, seed and chemicals. Vague hearsay evidence of the sort found in Mr Vaughan's report is not, of course, a sound basis for any finding that Mr Tiller was in fact in financial difficulties, but it is relevant to determining Mr Caratti's view at the time as to Mr Tiller's position. Similarly, while Mr Vaughan was not qualified as an expert witness in a way that would permit the court to accept his opinion of the market rent as correct, his advice to that effect is relevant to Mr Caratti's state of mind. 139 I find that as at June 2018, Mr Caratti thought that he could obtain a much higher rent for the Farms than the $800,000 that Mr Tiller was paying under the Tiller Lease. 140 Mr Caratti's evidence was that he telephoned Mr Tiller on the same day as he received Mr Vaughan's report and asked him whether his headers had been repossessed. Mr Tiller said they had been, but he had negotiated for their return. According to Mr Caratti, he valued Mr Tiller's work ethic and the money he had spent improving and maintaining the Farms. He said he thought he should allow Mr Tiller time 'if he had fallen back on hard times for a while' (Caratti I, paras 76-77).

Shire rates 141 In November 2018 Mr Tiller was unable to pay Shire of Esperance rates of approximately $58,000 that had fallen due, and applied to the Shire to pay by instalments. The Shire had contacted Mr Caratti, who was in effect the ratepayer, and Mr Caratti had asked Mr Tiller to sort it out (TB 58-59). In the same month Mr Tiller also asked Mr Caratti for a two week extension on the arrears instalment that was due on 15 November 2018 (Caratti I, para 81; TB 60). Also in the same month, Mr Tiller signed a new security agreement with his main financier, Landmark, under which he agreed to pay down the amount borrowed under his crop facility by $3.5 million (Tiller I, paras 92-93). 142 Mr Tiller's evidence was that by late 2018 it was not clear to him whether he would be able to continue farming the Farms himself in 2019 without financial help of some kind (Tiller I, para 94). He was concerned about whether his grain deliveries would be sufficient to reduce the facility with Landmark to the extent that company required, although there was a possibility he would have a modest surplus. But in any event with the Shire rates overdue and the next $440,000 instalment of rent being due on 1 March 2019, he would soon need money urgently to continue working on the farms. According to Mr Tiller, the uncertainty meant he needed what he described in his evidence as a 'contingency plan' (Tiller I, paras 98-102). He also needed a new structure for the Farms because of his separation from Mrs Tiller earlier in 2018 (Tiller I, para 104). By late 2018, although Mrs Tiller was still cooperating about signing documents, she wanted her names taken off the Farms (Tiller I, paras 104-105). In late December 2018 Mr and Mrs Tiller had a discussion in which they informally agreed a division of property she would keep the family home, her car and superannuation and Mr Tiller would keep his car, his superannuation and the partnership assets, including the business of the Farms (Tiller I, para 106). Mrs Tiller's evidence was consistent with this. So, according to Mr Tiller, by late December 2018 he 'thought it would be a good time to put together a new structure for both the purpose of getting the Farms out of the Partnership and due to my uncertain finances' (Tiller I, para 107). 143 Mr Tiller's evidence was that in early January 2019 he made a few inquiries with various people in the finance business as well as a few farmers, one of whom was Mr Nicoletti. But except for Mr Nicoletti, none of the people to whom he spoke 'were interested'. It is not clear from this evidence exactly what they were or were not interested in (Tiller I, paras 107-109). 144 It appears that by 10 January 2019 Mr Tiller had defaulted on the instalment arrangement with the Shire. Mr Caratti emailed him on that day asking him to 'fix it', and again on 17 January 2019 (TB 71-72). On 18 January 2019, Michael Caratti sent Mr Tiller a notice of default in relation to the unpaid rates, which said that the lessor may terminate the lease and retake possession if the default was not remedied within 14 days, that is, by 1 February 2019 (TB 75). The total amount said to be outstanding in the notice was $136,577.77. 145 According to Mr Caratti's evidence he was very concerned about the non-payment of rates, because he had not been able to contact Mr Tiller from December 2018. He had called him over 10 times through December 2018 and January 2019, without any reply. He had also tried to speak to Mr Tiller's lawyer, Simon England from Lawton Gillon (speaking only to Mr England's secretary), and to Joe Mondi of Landmark. He spoke to another Landmark employee who gave him the numbers for Mr Tiller's parents, and on 21 January 2019 he ended up speaking to Mr Tiller's mother, who said Simon was in Esperance working on budgets. Mr Caratti asked her to get Simon to call him (Caratti I, paras 89-91).

Proposed assignment of the Tiller lease to Mr Nicoletti 146 There is no suggestion in the evidence that Mr Nicoletti had any involvement or interest in the Farms between the time of his surrender of the sub-lease from Mammoth in December 2016 and early 2019. Mr Nicoletti's evidence was that although he 'remained in the lease structure' he had no other involvement in the Farms from 2012, when Mr Tiller began to farm there. 147 Mr Caratti did give evidence, however, that he spoke to Mr Nicoletti on several occasions from December 2018 to February 2019 about the SALIC transaction, which included the Marvel Loch and Bulfinch farms that Mr Nicoletti was leasing from Caratti entities. Mr Caratti's evidence was that he told Mr Nicoletti, 'John if you pull this off you should get the Victoria Cross medal' (Caratti I, paras 39-40). Mr Nicoletti gave evidence of similar conversation with Mr Caratti in which he was very complementary of Mr Nicoletti in relation to the sale to SALIC (Nicoletti III, para 15). 148 Mr Nicoletti's evidence gave the impression that he was busy in January 2019 with the sale to SALIC. Foreign Investment Review Board approval had been delayed and he needed to get all of his farms ready for the sale, including 50,000 head of sheep. He appeared to be saying that he only had a limited number of full time staff on at that time to help with this, because January, after grain deliveries, is usually a holiday time at least for other part time, casual or temporary staff (Nicoletti I, paras 61-67). 149 Mr Tiller gave evidence of discussions with him and Mr Nicoletti about whether the latter would be interested in becoming involved in the Farms again. Mr Tiller could not remember exactly what was discussed in the first conversation on this subject. All his evidence-in-chief said was that he asked Mr Nicoletti whether he would be interested in becoming involved in the Farms again and Mr Nicoletti saying that he would be interested (Tiller I, para 111). Mr Tiller's evidence in cross-examination was that this conversation occurred before he received the rates default notice from Mammoth on 18 January 2019. He also said that they did not discuss what Mr Nicoletti's involvement in the Farms would mean (ts 226). There was no discussion of John Caratti in this conversation and according to Mr Tiller he did not know that Mr Caratti would not want Mr Nicoletti to be involved (ts 227). 150 According to Mr Tiller, he then over about a week had numerous conversations with Mr Nicoletti in which he told Mr Nicoletti that Mrs Tiller wanted out of the partnership and the Farms, about his financial issues with Landmark and that he would not know what was happening with them until February or March, that the Shire rates were overdue and that he may not have the money for the first instalment of rent. He said that his rent under the Tiller Lease was still very good (Tiller I, para 112). 151 According to Mr Tiller's evidence, Mr Nicoletti responded by saying that he was concerned about the financial situation and the impact it may have on the Farms. He said that he did not want to do anything that would hurt the sale of his Farms to the Saudis so they would need to keep any involvement of his for the time being confidential (Tiller I, para 112(g)). He did not explain how it would hurt the sale of the Farms (ts 230). According to Mr Tiller, Mr Nicoletti said that 'if we are to do something together' he wanted the structure to be set up correctly from the start, but he was too busy with the sale so his consultant Mr Bryce could do it (Tiller I, para 112). 152 Mr Tiller did not give evidence of any specific conversation with Mr Nicoletti at this time; he said their 'arrangements sort of evolved as they were discussed' (Tiller I, para 113). The substance of those arrangements, according to Mr Tiller's first witness statement, were as follows (numbering in original): (a) we would form a new company; (b) Nicko's involvement would be kept confidential; (c) I would be a director of the new company; (d) Damian would also be a director to assist me in setting things up; (e) Damian would be the shareholder until we knew who was putting what into the Farms; [according to Mr Tiller, it was Mr Nicoletti who said this] (f) I would arrange for the Tiller Lease to be assigned to the new company; and (g) once we knew how much we would each put in, we could sort out the arrangements for the farming and the share situation in more detail. 153 Mr Tiller's evidence was that they 'did not discuss in much detail how a share farming arrangement would work', but Mr Tiller said they could make management decisions together but Mr Tiller would stay in control of farming operations and Mr Nicoletti said that sounded like a good idea (Tiller I, para 116). In fact, it appears from his evidence that the idea that it would be a share farming arrangement was not discussed. That is, Mr Tiller did not give evidence about anything approaching a consensus about how the arrangement would work, even in broad terms. Whether it was to be a share farming arrangement, or whether Mr Nicoletti was to participate as an investor in the new company, or who was to run the new company, or whether Mr Nicoletti was to be a lender to Mr Tiller or the new company; according to Mr Tiller's evidence, even those basic matters were not discussed. 154 In cross-examination Mr Tiller confirmed that the intention for Mr Bryce to 'be a director to assist me in setting things up' concerned Mr Bryce setting up the company. It was not intended that Mr Bryce would take part in the operations of the Farms. Mr Tiller said he did not ask Mr Nicoletti why Mr Bryce had to be the shareholder or why Mr Tiller would not also be a shareholder (ts 231). Mr Tiller claimed in cross-examination that he did not think it necessary that he be a shareholder of the company at the outset and that he felt Mr Nicoletti did not consider it necessary either (ts 232) Yet immediately after that, he reconfirmed what is said in his main witness statement, that it was he that 'wanted to create … a company structure' (ts 233). 155 Mr Tiller's evidence was that he would need to wait to see how much grain he would deliver and how discussions were going with Landmark before deciding anything. But he did need 'something in place and ready to go because I was worried that if I received a default notice for the Rates or the rent due in March 2019 I would not be able to remedy the default and lose everything'. He 'needed to have money ready to sort these things out should it be needed and I thought that the deal I had with Nicko was the best I could do'. Yet, as I have indicated, on Mr Tiller's evidence if there was an arrangement with Mr Nicoletti that could fairly be described as a 'deal', the terms of the 'deal' were not at all clear (Tiller I, paras 117-120). 156 On Mr Nicoletti's evidence, his renewed involvement with the Farms came about this way (Nicoletti I, paras 68-94) Mr Tiller telephoned him in early January 2019 and said he might need some help that year. Mr Nicoletti then went to see him on Warriup. According to Mr Nicoletti, Mr Tiller had just finished harvest and 'looked terrible'. He said that Mr Caratti was chasing him for the rates and he was worried that if he was served with a default notice he would not be able to 'fix it up in time'. He said he could not pay the rates because he could not get any money out of Landmark and would not know until February or March whether Landmark would even support him that year. 157 Mr Tiller also said that he needed to get the farm out of the partnership anyway because Mrs Tiller had had enough. Mr Tiller was not sure if he would need Mr Nicoletti's help, but he 'needed to have something ready in case he needed to move fast and he wanted to just play it by ear' (Nicoletti I, para 73). 158 Mr Nicoletti's evidence of subsequent conversations was vague. He said to Mr Tiller that if he was to 'kick money in, it could be by way of a share in the business'. Mr Tiller did not ask to borrow any money. He did recall Mr Tiller saying at some point that the rent under the lease was 'still really good' and allowed that beyond 'simply wanting to help Simon out, this was a factor which made having an involvement with Warriup appealing' (Nicoletti I, para 74). 159 However, according to Mr Nicoletti, although he was interested in being involved, he did not at this time want his name on any new venture. His evidence was that this was because of his sale to SALIC. He told Mr Tiller that. Mr Nicoletti's explanation for this in his evidence was that he had been asked at a meeting with various representatives from SALIC in November 2018, what he was planning to do following the sale and he told them that he was planning on retiring from wheat farming and focusing mainly on his John Deere dealerships. His evidence was (Nicoletti I, para 77): Because of this I did not think it would be good being a director in a start-up farming business. I was extremely nervous about my sale to Salic and I did not want to do anything to jeopardise it or fall out with Salic. I did not want to have to go through the time, stress and uncertainty of another sale process. 160 Mr Nicoletti also gave evidence that he was at this time busy with managing the livestock on his farms so that they would be in good condition when he transferred them to SALIC, so he did not 'have the time or energy to be running around signing documents or doing other things for a venture I might not have anything to do with' (Nicoletti I, para 79). However it was clear from evidence he gave in cross-examination that he was engaged in a supervisory role only and, while his operations were no doubt extensive enough for that to have been time consuming, Mr Nicoletti accepted he did not need to be 'in the paddock' for all day of every day (ts 277). In any event, he gave evidence that he was only 'flat out' until extra staff came on in mid-January 2019 and he ended up accepting that there was no reason why he could not sign documents from mid-January (ts 281). 161 According to Mr Nicoletti, he said to Mr Tiller that he would (Nicoletti I, para 82): find someone to set up a new structure for us. I said to him that I will take care of the setup costs for him and he can take it and run with it if he gets the money or if he doesn't have the money, I can come in on it with him and we can work out our arrangements later. Mr Tiller said that sounded good. In around mid-January, Mr Nicoletti asked Mr Bryce to set up a new company to be involved in a new lease of the Farms. 162 Mr Bryce's evidence was that in mid-January Mr Nicoletti, in a telephone call, said words to the effect, 'this is very confidential, but can you please set up a new company for me which may be used to put a lease into. John also said words to the effect can you please just put the company in your name for the time being' (Bryce I, para 17). He did not recall Mr Nicoletti mentioning Mr Tiller in this conversation but he did recall Mr Nicoletti saying that the rent under the lease was quite good (Bryce I, para 19). 163 In any event, Mr Tiller's grain deliveries for the 2018 season were completed by 17 January 2019 and turned out to be $3.2 million, $800,000 less than he had estimated and $300,000 less than the minimum $3.5 million Landmark required. Mr Tiller's evidence was that he nevertheless hoped Landmark would finance him for the 2019 year. But he was under pressure from Mr Caratti for non-payment of the rates (Tiller I, paras 121-124). And on 18 January 2019 he received the default notice. 164 By then the pressure must have been intense, judging from the speed of the events that followed. Within hours of receiving the default notice, Mr Tiller emailed a copy of the Tiller Lease to Mr Nicoletti's company, Ag Implements. Ag Implements emailed it to Mr Bryce on the same day, that is 18 January 2019 (TB 77). 165 That was a Friday. Early on the morning of Monday 21 January 2019, Mr Bryce emailed Mr Nicoletti's lawyers, Nova Legal, as follows: Another unrelated but urgent piece of work. Very confidentially - John is looking at taking the attached very basic lease on as the current tenant is in default and unable to pay. He has been issued a default notice for unpaid rates on Friday and has 14 days to remedy. We are trying to novate/assign the lease in that window. Are you able to draft a novation document for this lease please? It will need to cover the following at a minimum: • Consent from the head lessor (which is a requirement of assignment). • Absolute clarity that the incoming lessee is only responsible for liabilities from the date of assignment. • Any existing default notices apply to the prior lessee and not the incoming lessee so that the assignment cannot be terminated for the prior lessees [sic] default. The lease is a backyard job but is at significantly favourable rates for a long period - which is way [sic 'why'] terminating this lease and entering a new one is not an option. 166 'John' is a reference to Mr Nicoletti. Mr Nicoletti confirmed in cross-examination that Mr Bryce had his authority to instruct Nova Legal (ts 286). Mr Bryce's evidence was that Mr Nicoletti asked him to instruct Nova Legal to prepare an assignment (ts 317). Mr Bryce agreed with the cross-examiner that the work was urgent so as to implement the assignment within the 14 day period of the default notice (ts 317). 167 But, while Mr Nicoletti acknowledged that the rent on the Tiller Lease made it a 'good deal', he denied that his intention was to take advantage of the favourable rent rates and said it was, rather, about 'setting up a mate' (ts 287). He claimed he did not give the instructions about the incoming lessee only being responsible for liabilities from the date of assignment, and existing default notices only applying to the prior lessee (ts 287). Mr Bryce's evidence was consistent with this; he said that the three bullet points in the above email to Nova Legal were his idea in order to protect Mr Nicoletti's interests (ts 317). 168 Nova Legal sent a draft deed of assignment of the Tiller lease to Mr Bryce the next day, Tuesday 22 January 2019 (TB 82). The emails that are in evidence do not have the drafts of the deed attached, but there are drafts in evidence and it is possible to match the content of each draft to the content of a specific email. The first draft referred to Mr and Mrs Tiller as the assignor and an unnamed new entity as the assignee (TB p 612). The solicitor from Nova Legal sent the draft to Mr Bryce under cover of an email saying that it was '[f]ollowing our discussion yesterday', so I infer that Mr Bryce and the solicitor had a discussion on 21 January 2019 in which Mr Bryce said the assignee was to be a company, and he would provide the details later. 169 The draft contemplated that Mammoth would sign as lessor. It provided, in effect, for the assignor (the Tillers) to be liable under the lease until a 'Date of Assignment' which was left blank in the draft, and for the assignee to be liable after that date. The assignee covenanted with the 'Lessor' (Mammoth) to be bound by the terms of the sub-lease (the Tiller Lease) from that date, so the transaction was to have characteristics of a novation rather than an assignment. The deed included a clause requiring the assignor, that is the Tillers, to pay the lessor's costs and expenses in relation to the transaction. Nova Legal asked for instructions about that clause. There was also another clause saying that the assignor and assignee would bear their own costs and expenses in relation to the transaction. 170 Mr Bryce replied with instructions on the draft later on Tuesday 22 January 2019. The instructions included the name and ACN of the new entity, which was to be Dimension Agriculture Pty Ltd (the third respondent). Mr Bryce had registered Dimension as a company on that day (TB 152). His instructions to Nova Legal also said that Mr Tiller would sign as director of Dimension and Mr Bryce would sign as secretary, and a statement that 'John will pay costs of prep'. It is not clear whether Mr Bryce had read or properly understood what Nova Legal had asked for instructions about in that regard, namely who would pay the costs of Mammoth, the lessor. But it is unlikely that Mr Bryce was instructing that Mr Nicoletti was to be named in the deed. It is likely that what Mr Bryce in fact had in mind was that the new assignee company would be named as being liable for the costs of preparation of the document. That is consistent with the identification of Mr Nicoletti as taking on the lease, which appears in Mr Bryce's initial email quoted above, and the subsequent instruction that the assignee of the lease was to be a company. It appears that Mr Bryce identified Dimension with Mr Nicoletti. 171 This rather contrasts with Mr Nicoletti's evidence; in re-examination he said 'I originally set the company up just to help Simon ... It was a driving vehicle to help Simon, because he had financial issues. He wanted out of his partnership and his wife - his wife had enough' (ts 308). 172 Mr Bryce chased the next draft of the lease early on the following day, Wednesday 23 January 2019. Nova Legal sent back another draft shortly after midday on that day, with the covering email saying 'In relation to clause 8 (costs of document) I inserted "Assignee" to pay the costs (as John is not a party to the document)'. Mr Bryce responded asking 'With clause 8 - can we just delete 8.1? Then we have parties bearing their own costs and John can ask the lessor to reimburse him for your cost but the assignment is not held up because of it?'. Nova Legal sent the third draft back within half an hour with the clause deleted, so that the deed was silent about the lessor's costs, and provided that the assignee and assignor would each bear their own costs (TB p 591). 173 In cross-examination Mr Bryce could not give a clear explanation of why he wanted the clause deleted. He just said that he thought that back and forth about the clause between the lessor and the lessee would potentially take longer for the deed to be finalised. He denied that its purpose was to remove the need for John Caratti to be involved with the documents (ts 318-319). 174 Mr Bryce emailed back within a few minutes after receiving the email with the latest draft saying that the draft 'looks good'. The next email from him to Nova Legal, on Friday 25 January 2019, said that the deed 'is completed, agreed and is being signed' (TB p 581). 175 Each of the three drafts sent by Nova Legal bore the firm's logo on every page, and its address on the cover page. 176 Mr Bryce's evidence about the proposed assignment was that in a conversation after the one mentioned at [162] above, Mr Nicoletti asked him whether he could arrange for an assignment of lease to be prepared for the Farms and to use his lawyers Nova Legal. Mr Bryce arranged for the company to be incorporated with him as the shareholder and director. His evidence (Bryce I, para 22) was that he: had assumed if the lease was assigned to the company and John put money in, then share and directorship would just be transferred over to John. I can't remember exactly what John said to me but the effect of it was that he thought he would know in about a month or two what was happening. 177 In cross-examination, Mr Bryce said Mr Nicoletti did not explain why he wanted Mr Bryce's name on it. Mr Bryce said he agreed to it because he anticipated that if the company ended up being used it would be transferred and it was easier for him to set it up with him as the director and shareholder while the company was dormant (ts 316). He assumed that the if the company was going to be used by John Nicoletti he would transfer the share to him (ts 317). 178 According to Mr Bryce's evidence, a day or two after he had arranged for the incorporation Mr Nicoletti asked him to make his friend, Simon Tiller, a director too because he was the current lessee. Mr Bryce did not ask and Mr Nicoletti did not say what involvement Mr Tiller was going to have with the new company and why he was going to be a director (Bryce I, paras 23-24). He added Mr Tiller as a director. 179 The entirety of Mr Nicoletti's evidence-in-chief about this proposed transaction was as follows (Nicoletti I, para 89): I can't remember when, but I told Damian that he should get an assignment of lease prepared for the new company. I told him to contact my lawyers Nova Legal who were acting for me on the Salic sale. Also (Nicoletti I, para 93): Apart from giving Damian details from time to time, I can't recall having anything to do with the incorporation of Dimension or the drafting of the assignment of lease document. This vagueness is difficult to reconcile with the urgency that was so clearly behind Mr Bryce's dealings with Nova Legal. 180 Mr Nicoletti also gave evidence that in late January and early February 2019 he was 'a bit in limbo at this stage as to whether I'd be involved in any way in Warriup' (Nicoletti I, para 96). However there was nothing 'in limbo' about Mr Bryce's focus on securing an assignment of the Tiller Lease to 'John'. 181 Mr Bryce's evidence was that he did not send the deed of assignment to Mr Tiller, but Allen Caratti did (ts 318).

The conversations between Mr Caratti and Mr Tiller of 22 and 23 January 2019 182 Mr Tiller telephoned Mr Caratti on 22 January 2019. Mr Caratti's evidence was that Mr Tiller told him that his marriage had broken down and that he was worried because everything was owned by the SC & FH Tiller partnership. He told Mr Caratti that the current crop was over 25,000 tonne and valued well over $8 million, and that the partnership had turned over $1.75 million in livestock sales and wool sales for the past 12 months. Mr Tiller was worried he could lose it all . Mr Tiller called Mr Caratti the following morning and asked for, and was given, a recommendation of a 'good divorce lawyer' (Caratti I, paras 92-93). There are diary notes of Mr Caratti in evidence which are consistent with his account of these conversations (TB 80). 183 Mr Tiller's evidence as to the conversations of 22 and 23 January 2019 was that he had two or three conversations with Mr Caratti around 22 January 2019. He could not remember specifically what was said in each conversation. Mr Caratti asked why the rates had not been paid. According to Mr Tiller, after placing the blame for his financial difficulties on Landmark, he said that he had spoken to a few farmers about providing financial backing through a new company. Mr Caratti asked who he had been speaking to. Mr Tiller said that one person was John Nicoletti. Mr Tiller said that the partnership needed to be dissolved anyway because of his and Mrs Tiller's separation. He said it made sense to restructure the farming business now. Mr Caratti asked whether the business was viable and Mr Tiller said he believed it was. According to Mr Tiller, Mr Caratti said words to the effect that he did not care if Mr Tiller needed to restructure, he just needed to get the rates paid. Mr Tiller recalled Mr Caratti giving him the name of a 'good divorce lawyer' (Tiller I, paras 129, 131). However he said he previously told Mr Caratti in early 2018 that he and Mrs Tiller had separated (Tiller I, para 13) and, while he does not expressly deny that he told Mr Caratti of his separation in the dramatic terms as related by Mr Caratti, his account of the conversation was that it was focussed on his financial difficulties with Landmark rather than the divorce. 184 In his evidence, Mr Caratti denied that Mr Tiller told him about difficulties with Landmark in this conversation, that Mr Tiller mentioned Mr Nicoletti, that Mr Caratti asked whether the business was viable, or that he said he did not care whether Mr Tiller needed to restructure (Caratti II, paras 9-16). In cross-examination he described Mr Tiller's evidence that he told Mr Caratti about a farmer providing financial backing, and that he had named Mr Nicoletti, as 'totally false' (ts 123).

The conversations of 31 January 2019 185 Mr Caratti gave evidence of two telephone conversations with Mr Tiller on 31 January 2019. In the second of these, the four pleaded representations which amount to the first alleged instance of misleading or deceptive conduct are said to have been made. 186 Mr Caratti's evidence as to the first conversation on that day was as follows. Mr Tiller said that he had been speaking to his 'accountant from Adelaide' (ts 112) regarding the breakdown of his marriage. The accountant had advised Mr Tiller to set up a new company, which he had done, and it was called Dimension Agriculture. He said he needed to get everything away from Mrs Tiller and into Dimension (Caratti I, para 94.3). He wanted all of the SC & FH Tiller partnership assets to be transferred out of the partnership and into Dimension. He was going to trade going forward with Dimension (ts 113). He said the crop for the year was valued at over $8 million and he had already delivered a fair amount of it into Dimension's name. 187 Mr Caratti asked Mr Tiller who stood behind Dimension and Mr Tiller said 'It's all me. I totally control and own Dimension' (Caratti I, para 96). Mr Tiller said that he wanted Dimension to take on the lease and he wanted all the lease terms to remain the same. Mr Caratti said in response that it sounded OK as long as Mr Tiller remained on the farm, ran the farm, and remained on the lease as the tenant in an individual capacity. According to Mr Caratti he said 'I am backing you here Simon' (Caratti I, para 97). 188 Mr Caratti then said that because Mr Tiller had had such a great season, he should have no trouble making advance payment of rent for the first period under the new lease and advance payment of the final arrears instalment. Mr Tiller replied that he agreed to the conditions save that payment of the rent for the first period under the new lease would be made by Dimension, because he did not want Mrs Tiller to think that partnership money was being used to pay rent on a lease to which she was not a tenant. Mr Caratti said he agreed with Mr Tiller's proposals. He asked Mr Tiller where Dimension would find the money to meet the costs given that it was a new company. Mr Tiller answered that he had delivered grain into Dimension's name and the name of his father, William Tiller and it had been a bumper crop. Mr Caratti said that Mr Tiller should sort things out with Mrs Tiller so that he could carry on farming without further worry and should give her assets that did not affect the farming business. The telephone discussion then ended. 189 There is a diary note by Mr Caratti in evidence which reads as follows (TB 85): 31/1 Tiller Dimension Agriculture new structure new leases Delivered 25000T - 13000 Sheep & 2000 Cattle wife wants divorce - need to get everything away from her -he thinks he can get her to sign a surrender current lease -everything is in the partnership -has delivered the crop into Dimension Agric about $8m -wants to divest partnership completely. 190 Immediately after that conversation Mr Caratti performed a company search of Dimension. The search, which was in evidence, is time stamped 31 January 2019 at 12.07 pm, so I accept that Mr Caratti performed it then. The search showed Mr Tiller and Mr Bryce as the directors of the company and that Mr Bryce held the only issued share (TB 86). 191 According to Mr Caratti, he telephoned Mr Tiller immediately after reading the company search. He said 'I had the search in front of me and I rang Simon back' (ts 114). The account of the conversation given at paragraph 106 of Mr Caratti's first witness statement is as follows (with sub-paragraph numbering removed): I said; 'I have just done a search on Dimension. Who is Damien Bryce?' Simon said 'He is an ag consultant'. I said 'How did you find him?' He said 'Nico referred him to me'. I said, 'Hang on a minute, is Nico getting involved in any of this? He replied; 'Absolutely not' I said 'The ASIC register shows Bryce is the only shareholder of Dimension. He is Dimension.' Simon said; 'He holds his share on trust for me, I am Dimension. I run the show, John. I need to keep my distance from Felicity. My accountant said I should set it up like this.' I said, 'That's not what the register shows, show me the trust deed'. He said, 'It was done on a handshake John, it is my company, this is the way it needs to be done.' I asked him; 'Who controls the money, who controls the cheque book and authorises payments?' Simon said 'I do. I will make all the payments. I control everything.' I asked; 'How long have you known Bryce? Can you trust him?' Simon said; 'Long enough John, and yes of course I trust him. He is a good man and a very good ag consultant. We have sat down and gone through my operation, he knows what he is doing and understands my situation with Felicity.' 192 According to Mr Caratti, Mr Tiller also said to him in substance that Mr Bryce would be doing all the work that Mrs Tiller previously did, including book keeping and accounts in addition to preparing budgets to present to Landmark and providing assistance in dealing with financiers. He had previously used Paul McKenzie from Agrarian Management and Mr Bryce was much better. The conversation ended then. I note that if this was said, it contrasts with Mr Tiller's evidence that apart from signing documents he presented to her at various times, Mrs Tiller had very little to do with the partnership's business (Tiller I, para 11). 193 When Mr Caratti was cross-examined on this conversation in a non-leading way, his account of it was largely consistent with the account given in his witness statement, as set out above. The cross-examination did, however, add one detail: that after asking 'Who the devil is Damien Bryce' and being told, Mr Caratti said 'Well, you never mentioned this fellow's name before, and he lives over in Queensland'. More detail came out which was missing from the witness statement. In the witness box Mr Caratti recalled that after Mr Tiller said he 'did it on a handshake', Mr Caratti said 'Simon, are you fair dinkum here?' and 'Are you for real?' (ts 114). Mr Caratti's evidence was then as follows: And he said, 'Yes. I've done it on a handshake. I trust the man. I've spoken to him. He knows how we operate, or how I operate, and he's going to be my consultant who will deal with the financiers and put budgets together - something that I lack.' And I interrogated him quite heavily that afternoon, about Dimension and the role of this Damian Bryce. I asked a - numerous questions. Who controlled the chequebook? Who controlled the bank? 'I do,' was the answer. Where is your bank account? I got answers to that. 194 Mr Caratti's evidence was that he accepted what Mr Tiller told him during the second conversation, including that he believed that Mr Nicoletti was not involved in Dimension or the operation of the farms. 195 Turning to Mr Tiller's evidence about the conversations said to have taken place on 31 January 2019, there is some commonality with Mr Caratti's evidence but there is also sharp divergence. Mr Tiller recalled two or three conversations which happened quickly on what he remembered to be the same day. He did not remember exactly what was said in which conversation. So his account of what was said potentially relates to both of the conversations of which Mr Caratti gave evidence. 196 Like Mr Caratti, in his first witness statement Mr Tiller gave evidence that he said, in effect, that a new company called Dimension Agriculture had been set up to get everything out of the partnership and take over the farming operations from the partnership. In a responsive witness statement, however, he said that the terminology used was 'new structure' and not 'new company' (Tiller II, para 14). He also recalled mentioning his accountant from Adelaide. He remembered Mr Caratti asking who was behind Dimension and where the money was coming from. And importantly, Mr Tiller's evidence was also that Mr Caratti asked who Damien Bryce was (Mr Tiller does not give evidence that he mentioned Mr Bryce before then, so he is probably remembering the second conversation, after Mr Caratti performed the company search), and that he responded that Mr Bryce was a farm consultant who had been referred to him by Mr Nicoletti (Tiller I, para 135). As far as discussion of Mrs Tiller goes, he recalled mentioning to Mr Caratti that they had agreed that she could keep the house and the car (Tiller II, para 15). 197 That is the commonality. The divergence comes with evidence that Mr Tiller gave, to the effect that he told Mr Caratti that it was none of his business and it did not matter who was behind Dimension, and all he (Mr Caratti) had ever cared about in the past was whether the rent was paid on time. According to Mr Tiller, Mr Caratti said words to the effect 'yeah as long as the rent and rates are paid I don't care who's behind Dimension'. But Mr Caratti then asked why Mr Bryce was a director of Dimension and Mr Tiller said that Mr Bryce was assisting with the business. There was also discussion about whether the transaction should be structured as an assignment of the lease - Mr Caratti is said to have agreed to do it that way and to have reminded Mr Tiller that Mrs Tiller would need to sign it (Tiller I, para 135). 198 Mr Tiller also gave evidence of a discussion between him and Mr Caratti at around this time in which Mr Caratti asked whether the farming business was still viable and Mr Tiller said he believed that it was (Tiller I, para 136). This may have been in the conversations to which Mr Tiller has already referred, or in a different conversation. Mr Caratti denied any such conversation (Caratti II, para 24). 199 Mr Tiller also recalls a conversation on the same day or the next day in which Mr Caratti told him that he had spoken to Michael Caratti, and there needed to be a new lease rather than an assignment. Mr Tiller asked John Caratti to send through what he was proposing as soon as possible (Tiller I, para 138). 200 Mr Caratti referred briefly in cross-examination to having asked Mr Tiller in January or February 2019 whether, because of his problems with Mrs Tiller, he wanted to relinquish 'the top half' of the Farms (ts 155). This is curious because he did not say it elsewhere in his evidence.

Mr Tiller sends Mr Caratti the draft assignment deed 201 On 1 February 2019 Mr Tiller emailed Mr Caratti, saying 'as per our many conversations over the past week' that he could get Mrs Tiller to sign whatever documentation was needed for an assignment, and asking Mr Caratti to send the documentation through at his earliest convenience (TB 87). 202 Although on 1 February 2019 Mr Tiller had asked Mr Caratti to send him assignment documentation, on the night of 3 February 2019, a Sunday, he sent Mr Caratti the assignment deed that had been prepared by Nova Legal (TB 88). Mr Tiller's evidence was that on the latter weekend, he was 'quite anxious about everything and spent the entire weekend worrying about everything. I wanted things sorted quickly due to the default notice and I was worried about the lease being terminated' (Tiller I, para 140). It is curious that Mr Tiller's evidence said nothing about how the deed came to be drafted and signed and where it came from. His witness statement simply described it as 'a deed of assignment', with no further explanation (Tiller I, para 141). There is a gap across all the evidence adduced on behalf of the respondents, concerning what happened to the draft deed of assignment between 25 January 2019, when Mr Bryce said in an email that it was 'completed, agreed and is being signed' (see [174] above) and 3 February 2019. 203 Mr Tiller sent the deed of assignment to Mr Caratti under cover of an email which said (TB 88): as per our agreement last week the rates will be paid out of dimension [sic] once this is executed. If there are any amendments needed to this assignment please be sure to highlight them and return to me asap or simply hand write and initial where needed. 204 The copy of the assignment deed that was attached to the email had been executed by Mr Tiller, Mrs Tiller and Dimension, with Mr Bryce and Mr Tiller signing as directors. Execution on behalf of Mammoth, the sub-lessor to the Tillers, was required. 205 There were two other differences between the deed that Mr Tiller sent to Mr Caratti, and the draft that Nova Legal sent to Mr Bryce on 23 January 2019. One was that the previously blank defined Date of Assignment had been filled in, as 30 January 2019 (TB p 642). Mr Tiller gave evidence that he made this change, and set the date at 30 January because it was before the expiry of the 14 days set in the notice of default for non-payment of rates (ts 242). The other difference was that Nova Legal's logo had been removed from each page (probably from the header) and the firm's name and address removed from the cover page, so that there was no reference in the deed to it having been prepared by Nova Legal. 206 Mr Tiller confirmed in cross-examination that he removed the references to Nova Legal from the document before sending it to Mr Caratti (ts 240). He said that he did so because of his previous dealings with Mr Caratti, in which he found him to be 'very intrusive' (ts 240). 'He rings everybody all the time, badgering them about my business … He rings these guys, he rings Landmark, he rings everybody. My mum and dad. Everybody'. Mr Tiller said removing Nova Legal's name from the lease would stop him from telephoning Nova Legal. 207 John Caratti's evidence was that he received Mr Tiller's email with the deed of assignment when he got in to work at 7.30 am on that Monday (Caratti I, para 111). According to him, he called Mr Tiller immediately and told him he had 'jumped the gun'.

The New Leases are negotiated and entered into 208 At approximately 9.30 am on Monday 4 February 2019, that is, two hours after the conversation between Mr Caratti and Mr Tiller on that morning (assuming it took place), Michael Caratti sent three draft deeds to Mr Tiller (TB 92). Under them, Mr and Mrs Tiller would surrender the Tiller Lease from Mammoth over the Farms, and Dimension and Mr Tiller would take two leases, one of each of the Farms, from the applicant, Harvard Nominees. The transactions were to take effect from 1 March 2019. There were 'special conditions' in the surrender, so that it was to be conditional on accelerated payment of the $140,000 final instalment of the arrears payments under the Tiller Lease, and on payment of the outstanding rates. The lease of Howick Farm was to be for a three year term and of Warriup for a one year term. The total annual rent for the Farms was to be $800,000 plus GST, that is, the same as the rent under the Tiller Lease. Michael Caratti's email asked Mr Tiller to execute the documents and return them by email. It also attached a statement of the outstanding Shire of Esperance rates. 209 On 5 February 2019, Mr Tiller returned the draft deeds with what Mr Tiller described as 'minor amendments' (TB 96). Mr Tiller said in his covering email that this was 'as discussed with John this morning'. Some of the amendments could be characterised as minor; they provided for a 14 day notice period before termination for the lessee's default. But others were not. Amendments to the draft leases proposed extension of the terms of the leases by five years in the case of Howick Farm and seven years in the case of Warriup Farm. If they had been accepted, these extensions would have taken the terms of the lease to February 2027, which is roughly when the term of the Tiller Lease would have expired if the five year option under that lease were to be exercised. Amendments to the surrender of lease fixed the time for payment of the arrears instalment at 15 November 2019 (the time originally set in the Tiller Lease) and the time for payment of the Shire rates to within seven days of signing. It appears that the change was also designed to mean that fulfilment of these obligations were not conditions precedent to the surrender. However it also seems that whoever drafted the change overlooked that elsewhere in the surrender it was expressed to be conditional on 'the prior satisfaction of the Special Conditions' (cl 2.1), and this had not been changed. 210 The evidence does not make clear what was discussed that morning, as mentioned in Mr Tiller's email. But Mr Tiller did give evidence of a telephone conversation he had with John Caratti after he received the documents on 4 February 2019. In it, he asked Mr Caratti about the acceleration of the $140,000 arrears payment. Mr Caratti said that if Mr Tiller wanted the new lease he, (Mr Caratti) wanted the payment 'now'. Mr Tiller proposed a compromise under which only $70,000 would be payable at the time of the surrender and Mr Caratti agreed (Tiller I, para 144). 211 It does not appear that Mr Tiller is recalling the sequence of events accurately, as he places this conversation before he sent the deeds back with the $140,000 restored to being due in November. But I accept the tenor of his evidence, namely that around this time he and Mr Caratti had a conversation in which they compromised so that only $70,000 of the $140,000 would be due at the time of surrender of the Tiller Lease. That is consistent with the documentary record. 212 Michael Caratti returned the drafts less than three hours later under cover of an email that said '[a]s agreed, please organise execution and return the attached' (TB 97). The term of the lease of Howick Farm had reverted to three years, and the term of the lease of Warriup Farm was also three years (and so longer than the one year originally proposed). And there was the compromise in relation to the due date for the arrears. It may be that when Michael Caratti said 'as agreed', he was referring to the discussion about these matters of which Mr Tiller gave evidence. 213 Also on 5 February 2019, Harvard and Mammoth executed two deeds. One was a surrender of Mammoth's lease over Warriup Farm, so that Harvard was able to lease that Farm directly to Mr Tiller and Dimension (TB 94). The other was an assignment to Harvard of Mammoth's lease of Howick Farm, meaning that Harvard was then in a position to sub-lease that Farm (TB 95). There is no evidence that Allen Caratti, one of the registered proprietors of Howick Farm consented to the assignment. However no party submitted that this made the assignment ineffective. Both transactions were to take effect on 1 March 2019. There is no explanation in the evidence of why Mr Caratti wanted Harvard to take Mammoth's place as the company with the lease (or sub-lease) to Dimension and Mr Tiller. 214 On 6 February 2019 Mr Bryce discussed the proposed lease or leases with Chris Zielinski of Nova Legal. He referred to the discussion in an email to Mr Zielinski the following day (TB 100) which said: Hi Chris Did you have any further thoughts on that lease issue we discussed yesterday. To provide further clarity - the proposed lease is attached - and Simon Tiller is who we want to relinquish his rights under the lease - and he is happy to do so. In cross-examination both Mr Nicoletti and Mr Bryce accepted that the reference to 'we' here was a reference to both of them (ts 290, 319). Mr Nicoletti accepted in cross-examination that he wanted Mr Tiller to relinquish his rights and that Mr Tiller was happy to do so. He also accepted that a discussion took place between at least Mr Nicoletti and Mr Tiller, in which Mr Tiller told Mr Nicoletti he was happy to relinquish his rights. He could not recall, however, when that conversation occurred (ts 290). 215 The lease that was attached to Mr Bryce's email was the draft lease of Howick Farm. It had been executed by Mr Tiller, on his own behalf and in his capacity as a director of Dimension. Mr Zielinski replied 'I will consider further in light of the lease. There may not be any "perfect" resolution, but we may be able to document some form of relinquishment'. 216 On 7 February 2019 the Shire of Esperance emailed Mr Caratti saying that it would be referring the outstanding rates to a law firm for collection. At this time they totalled over $140,000 (TB 98). Mr Caratti emailed Mr Tiller saying (punctuation as in original): You need to fix this immediately If you burn your bridge with the shire they will refuse doing payment arrangements in the future Mr Tiller replied within minutes saying 'Ok I will sort it'. 217 Later on 7 February 2019, Mr Tiller sent the new leases and the surrender of lease to Michael Caratti under cover of the following email (TB 99): Michael please find executed documents by all parties, the only alteration to the leases is keeping the lease in the company name and not mine. This is for tax and family reasons company tax being 30% and my individual tax rate now is 46 cents/dollar. This is on the advice of my accountant, the family reasons are upon the advice of both my accountant and solicitors and I am happy to discuss this with John if needed. The attached documents were executed by Dimension (Mr Tiller signing as director and Mr Bryce as 'Director/Secretary') and by Mr Tiller. As the covering email indicated, Mr Tiller's name had been removed from the two new leases by striking it through by hand, with Mr Tiller and Mr Bryce initialling this. 218 Mammoth executed the surrender of the Tiller Lease which Mr Tiller had sent to Michael Caratti on 7 February 2019 (TB 101). It seems this was done later on that day, so that by then the deed of surrender of the Tiller lease was executed by all parties. 219 Mr Caratti's evidence was that on 8 February 2019 he had a telephone conversation with Mr Tiller in which Mr Tiller said that he did not want to be on the new leases in his personal capacity because his accountant had advised him that Mrs Tiller could come back at him later and claim his income. He said in substance he wanted to get everything out of his name. According to Mr Caratti he said 'I am dealing with you and you alone' (Caratti I, paras 123-124). I doubt this was said; there is a diary note of Mr Caratti in evidence which makes no mention of that comment (TB 103) and it appears to be more embellishment on Mr Caratti's part. But I do accept Mr Caratti's evidence that it was his practice as a landlord to name individuals as tenants and it was something he always insisted upon. It is something that a prudent and experienced landlord of rural land may well insist upon. While there were examples of earlier leases of different farms being granted to Apache Investments Australia Pty Ltd instead of Mr and Mrs Nicoletti, since it appears that they were dealing with Allen Caratti at this time, those examples do not undermine Mr Caratti's evidence. 220 Mr Tiller also gave evidence of the conversation, but he said the reason why he wanted his name off the lease that he initially gave to Mr Caratti was that 'I don't want my name on the new lease to cause any confusion with the Partnership'. He also said he had had problems getting Mrs Tiller to sign documents and he was concerned about his finances and what was going to happen with Landmark. He also said his accountant had suggested that it would be best if his name was off the lease because he was worried that Mrs Tiller 'might come back at me later' (Tiller I, para 151). 221 This last reason is corroborated by Mr Caratti's evidence and his diary note as having been said in the conversation. However it is curious that it is not referred to in Mr Tiller's evidence about what his motivations actually were. It is also curious that there is no mention in that evidence of the 'tax … reasons' referred to in Mr Tiller's email to Michael Caratti. Mr Caratti denied that Mr Tiller gave him any of the other reasons put in Mr Tiller's version of the conversation (Caratti II, paras 26-29). In any event, the number of different reasons which Mr Tiller has given for wanting to take his name off the lease in his evidence, and in communications with Michael and John Caratti, undermines all of them. 222 In the end, Mr Tiller must have accepted that he needed to be named on the new leases, because on 8 February 2019 he emailed them back to Mr Caratti, with Mr Tiller's name restored as a tenant, and executed by Mr Tiller in his personal capacity and by Mr Bryce and Mr Tiller as directors of Dimension (TB 104). There was however another handwritten amendment, initialled by Mr Tiller and Mr Bryce, by which the bankruptcy or winding up of the lessee was deleted as an event of default (cl 11.1 of each lease - there is a mistake in the numbering of this clause in each of the New Leases, which assigns the numbers 10.1 and 10.2 to the two sub-clauses, but as it is the 11th clause the correct numbering should be 11.1 and 11.2, and that is the numbering I will use in these reasons). 223 According to Mr Caratti he telephoned Mr Tiller after receiving this and asked him why he had deleted the clause. Mr Tiller replied that he was going to liquidate his partnership with Mrs Tiller which meant that he may become bankrupt and he did not want that to upset the lease. Mr Caratti's evidence was that he accepted the explanation. Mr Caratti initialled the change and Michael Caratti sent the executed leases (TB 105) and executed deed of surrender of the Tiller Lease to Mr Tiller on 8 February 2019. 224 In summary, the effect of the deeds that were executed on 5, 7 and 8 February 2019 was that: (1) Mammoth surrendered its lease of Warriup Farm, so that Harvard's registered proprietorship was unencumbered by any lease. (2) Mammoth assigned its lease of Howick Farm to Harvard. (3) Mr and Mrs Tiller surrendered the Tiller Lease over the Farms. (4) Harvard entered into a lease of Warriup Farm to Mr Tiller and Dimension. (5) Harvard entered into a sub-lease of Howick Farm to Mr Tiller and Dimension. (6) Each of the New Leases was for a three year term commencing on 1 March 2019 with a further five year option granted to the lessee. (7) The total rent for the Farms was $800,000 per annum plus GST, with $350,000 being payable for Warriup Farm and $450,000 for Howick Farm. (8) Under the New Lease of Howick Farm, the Lessee agreed to pay a $70,000 arrears payment by 15 November 2019, which was when the final arrears payment of $140,000 had been due under the surrendered Tiller Lease. (9) Payment of the $70,000 balance of the arrears payment was accelerated to seven days after execution of the deed of surrender of the Tiller lease, that is 14 February 2019, and was due from the Tillers, but not Dimension. (10) The deed of surrender also obliged the Tillers (not Dimension) to pay the approximately $140,000 in outstanding Shire rates by 14 February 2019. 225 Mr Caratti's evidence was that he agreed to surrender the Tiller Lease and to enter into the New Leases because he trusted Mr Tiller and wanted to help him over his marital problems. His evidence was that in the time Mr Tiller had leased the Farms he had developed a good relationship with him. It was also important to Mr Caratti, he said, that Mr Tiller had made significant improvements on the Farms at his own cost (Caratti I, para 104). 226 Mr Tiller gave evidence of a conversation with Mr Mondi of Landmark in early February 2019, apparently after the execution of the New Leases, the effect of which was that Mr Mondi asked for the $300,000 remaining on his commitment to pay the debt down by $3.5 million, and did not commit to funding Mr Tiller for the rest of the year. This did not leave Mr Tiller optimistic about the outcome (Tiller I, paras 162-163). 227 On 8 February 2019, Mr Caratti received from an insurance broker an indicative quote summary and uncompleted application form for an insurance policy for life and total permanent disability insurance over Mr Tiller (TB 102). Mr Caratti forwarded this to Mr Tiller. He had arranged the policy because Mr Tiller told him he was learning to fly and studying for his pilot's licence and Mr Caratti felt it necessary to have key man insurance in relation to the farming operation (Caratti I, paras 78-80). According to his evidence he said 'I am backing you here Simon'.

The 15 February Deeds 228 On 12 February 2019, Mr Tiller sent an email to an administrative staff member of Mr Nicoletti's company, Ag Implements, which appears to have attached the New Leases for Mr Bryce to sign (TB 112). He asked the staff member to seek instructions from Mr Nicoletti regarding the signing of the leases. 229 Mr Bryce's evidence under cross-examination was that he had not signed the New Leases by this time (ts 319). There are also copies of the New Leases in the trial bundle which Mr Bryce appears to have sent to Mr Zielinski on 12 February 2019 and which do not bear his signature as a director of Dimension. However that is inconsistent with Mr Bryce's main witness statement, which indicates that he signed the New Leases and appears to place that before the genesis of the 15 February Deeds (Bryce I, para 29). It also seems to be incorrect, since there are two emails in evidence dated 8 February 2019 attaching copies of the New Leases executed by Mr Bryce (TB 104-105). Specifically, Mr Tiller sent the two leases, fully executed by him and by Dimension (with Mr Bryce's signature) but not executed by Harvard, to John and Michael Caratti, by email time stamped 8 February 2019 at 11.36 am. Michael Caratti sent what appears to be the same documents, but now executed by Harvard, back to Mr Tiller by email 8 February 2019 at 1.37 pm. So it is not clear why Mr Bryce's signature on the New Leases was thought to be necessary as at 12 February 2019. 230 Harvard submitted that Mr Bryce had not signed on 8 February 2019, and that he withheld his signature until 15 February 2019, when the 15 February Deeds were signed. It submitted that this was because only once those deeds were signed did Mr Nicoletti (through Dimension) have some protection against the possibility that Mr Tiller went bankrupt. It is likely that this was indeed one of the main purposes of the 15 February Deeds, the terms of which are set out below. But in light of the emails of 8 February I have just described, I do not make any finding that Mr Bryce waited until those deeds were signed before executing the New Leases for Dimension. 231 In any event, Ag Implements forwarded the New Leases to Mr Bryce on 12 February 2019 saying that Mr Nicoletti and Mr Tiller had asked that they be forwarded for signature. Mr Bryce then, also on the same day, forwarded the New Leases to Mr Zielinski at Nova Legal saying (TB 113): Please see the attached. Simon is staying as a lessee but the clause re bankruptcy has been agreed to be removed by all parties. Therefore, can you please draft the document we were discussing in relation to assigning lease rights to Dimension. 232 Mr Bryce's evidence about the origin of these instructions was that after seeing that Mr Tiller's name was still on the new documents, he advised Mr Nicoletti that this 'could cause problems down the track' if Mr Tiller were to become bankrupt, so 'we should get something drafted to deal with that problem' (Bryce I, para 33). He said that it follows from the removal of the clause making bankruptcy a default under the lease that the deed of assignment could be prepared because 'if the clause re bankruptcy had not been removed by the lease I would have recommended to John, in looking after his interests, that the lease not be entered into' (ts 320). While Mr Bryce could not remember when, he telephoned Nova Legal and 'explained the situation' to them (Bryce I, para 35). In cross-examination, he accepted the following characterisation of what motivated the deed of assignment and release: 'So, if he [Mr Nicoletti] said he [Mr Tiller] can't be removed from the lease, you thought the next-best thing would be to assign the legal rights to Dimension?---Yes' (ts 321). Mr Bryce confirmed in cross-examination that at the time he signed the 15 February Deeds, he did believe that Mr Tiller had, on and from the date of the lease agreement, no equitable, legal or financial rights or interest in Dimension, the lease agreement or the farming operations (ts 323). 233 The following day, 13 February 2019, Mr Zielinski send Mr Bryce a draft document entitled 'Deed of Assignment and Release' (TB 112). The parties to the document were Dimension and Mr Tiller. The draft pertained to Howick Farm, but Mr Zielinski said in his covering email that if Mr Bryce was satisfied with its terms another copy concerning Warriup Farm could be prepared by changing the reference to the farm name. 234 The relevant terms of the draft deed were as follows: A. Simon and Dimension are parties to a lease agreement, as co-lessees, with Harvard Nominees Pty Ltd (ACN 008 761 037), as lessor (Lessor), dated 8 February 2019 which is provided in Annexure A to this deed and referred to as the 'Howick Lease' (Lease Agreement). B. Simon and Dimension agree and acknowledge that on and from the date of the Lease Agreement, Simon has not provided any contribution (funds, services or otherwise) to Dimension or the Lessor in respect of the Lease Agreement or the farming operations being undertaken by Dimension on the property the subject of the Lease Agreement. C. Accordingly, Simon has agreed to forever assign all rights, interests and obligations under the Lease Agreement to Dimension on the terms and conditions set out in this deed. THE PARTIES AGREE in consideration of, among other things, the mutual promises contained in this deed: 1. (Assignment). With effect from the date of this deed, Simon assigns to Dimension, all of Simon's estate, rights, title and interests which he may be entitled to pursuant to the Lease Agreement or in respect of the land the subject of the Lease Agreement. Further, Simon must, when reasonably required by Dimension and at Dimension's cost and expense, execute and do all acts and things necessary to further assure Dimension's sole estate, right, title and interest in the Lease Agreement and the property the subject of the Lease Agreement. 2. (Indemnities). (a) Subject to and conditional upon Simon's strict compliance with clause 3 below, on and from the date of this deed, Dimension agrees and covenants to keep Simon indemnified against all proceedings, costs, liabilities and expenses resulting from any failure to pay the rent or to observe and perform any obligations, covenants and conditions under the Lease Agreement. In the event that Simon does not strictly comply with the terms of clause 3, Dimension will be not be liable to Simon pursuant to the indemnity contained in this clause 2. (b) Simon agrees and covenants to keep Dimension indemnified against all proceedings, costs, liabilities and expenses resulting from any failure by Simon to observe and perform any obligations, covenants and conditions under this Deed (including clause 3). 3. (No entitlement). Simon must not, whether directly, indirectly or via a third party: (a) access, or attempt to access or control, or interfere with the land (or any of the buildings, fixtures or chattels on the land) the subject of the Lease Agreement (b) interfere or affect (or attempt to interfere or affect) Dimension's activities on the land under the Lease Agreement; (c) attempt to exercise or enforce any rights under the Lease Agreement; and (d) purport to have any interest or involvement in the farming operations undertaken by Dimension on the land pursuant to the Lease Agreement. 4. (Acknowledgments). Simon confirms and acknowledges that: (a) on and from the date of the Lease Agreement, Simon has not provided any contribution (funds, services or otherwise) to Dimension or the Lessor in respect of the Lease Agreement or the farming operations being undertaken by Dimension on the property the subject of the Lease Agreement; (b) on and from the date of the Lease Agreement, Simon has no legal, equitable or financial rights or interest in Dimension, the Lease Agreement or the farming operations undertaken by Dimension on the land pursuant to the Lease Agreement; and (c) he has never been in partnership, joint venture or had any other commercial arrangement with Dimension in respect of the farming operations undertaken on the property the subject of the Lease Agreement. 235 Mr Tiller's evidence was that he received a copy of a document titled 'Deed of Assignment and Release' in early to mid-February 2019, but he could not remember exactly when, and he could not remember the circumstances in which he received the document. All he could remember is that he understood that it was Mr Bryce's idea and that this understanding came from something Mr Bryce or Mr Nicoletti said (Tiller I, para 158). But he said it was Mr Nicoletti who gave him the document to sign (ts 249). According to Mr Tiller he did not read the document closely, but he understood from his 'brief read of it at the time' that it just acknowledged that he had not put anything into Dimension, which was the case. His evidence was that he did not understand the document to change his position on the Farms including with regard to Harvard as the landlord (Tiller I, paras 158-159). I have already referred to the numerous inconsistencies in Mr Tiller's evidence about the extent to which he read the draft 15 February Deeds. 236 By 15 February 2019, a version of the document for each of Howick Farm and Warriup Farm, that is, the 15 February Deeds, had been executed by Mr Tiller on his own behalf and by Mr Tiller and Mr Bryce on behalf of Dimension (TB 118). Other than the change from 'Howick Lease' to 'Warriup Lease' on one of the documents, the executed versions were in the same terms as the draft as set out above. Mr Tiller gave evidence that he signed the document but he did not remember what he did with it afterwards (Tiller I, para 160). 237 It appears from an email which Mr Bryce sent to Nova Legal on the morning of 15 February 2019 (TB 118) that Mr Tiller had already executed the 15 February Deeds by then, and that Mr Bryce was going in to Nova Legal's offices in West Perth to add his signature to them (as a director of Dimension). Mr Bryce was in Perth on that day to work in relation to the SALIC transaction (Bryce I, para 36). A couple of hours later Mr Bryce had signed, as Nova Legal emailed scans of fully executed versions of the 15 February Deeds to him (TB 117). It seems that Mr Bryce had executed the New Leases (apparently for the second time) at the same time, as they were also attached to Nova Legal's email. Mr Bryce in his evidence-in-chief could not recall what was done with the 15 February Deeds once they were signed (Bryce I, para 36). But in cross-examination he said that he kept them (ts 324). 238 Mr Nicoletti's evidence about the 15 February Deeds was that he could not recall the document being drafted or the circumstances in which it was drafted. He thought it was something that Mr Bryce thought they should do (Nicoletti I, para 141). He did not remember retaining a copy of the 15 February Deeds. Mr Nicoletti gave evidence that he 'did not do anything in terms of or with reference to this document until it was later rescinded' and asserted that the documents did not change his relationship with Mr Tiller or activities with the Farms (Mr Nicoletti's supplementary witness statement dated 15 November 2019 (Nicoletti II), para 6). In cross-examination he confirmed that to his knowledge he had nothing to do with the document (ts 293). When asked about Mr Tiller's evidence that Mr Nicoletti gave him the document and asked him to sign it, Mr Nicoletti said he had no recollection about that discussion at all and seemed to deny that he gave it to Mr Tiller (ts 294). 239 Mr Tiller's evidence was similarly that 'Nicko and I never discussed or referred to the document and nothing changed between me and Nicko as a result of this document' (Tiller I, para 160). 240 Mr Caratti's evidence was that he was not aware of the existence of the 15 February Deeds until the respondents discovered them in this proceeding. That is common ground.

The respondents' alleged decision of mid-February 2019 241 Mr Tiller gave evidence of a conversation with Mr Nicoletti in mid-February 2019 in which he said that things were not looking good with Landmark and he did not think they were going to finance him that year. Mr Nicoletti asked him 'what do you need?' and Mr Tiller said that Mr Nicoletti was 'at least going to have to kick in the money for the rent and the rates', to which Mr Nicoletti agreed (Tiller I, para 164). Mr Nicoletti gave similar evidence (Nicoletti I, para 98). 242 This evidence of Mr Tiller and Mr Nicoletti is curiously disconnected from the evidence about the 15 February Deeds that were executed at around the same time. It is also implausible that it was only by mid-February that Mr Tiller and Mr Nicoletti realised that the latter would have to pay the rent and rates. Mr Tiller had received a notice of default putting him at jeopardy of losing the Farm, and by this time, some two weeks after the time set in that notice of default had expired, Mr Tiller had still not paid the rates. 243 Mr Bryce's evidence was that in mid to late February 2019 Mr Nicoletti said it looked like he would be putting money into Dimension and asked 'could you get the company transferred over to me'. He also asked Mr Bryce to open a bank account for the company (Bryce I, para 38). Mr Bryce did so. His evidence was that he could not remember the exact reason why he arranged for the documents effecting the 'transfer' to be post-dated to 28 February 2019, but to the best of his recollection he 'wanted the transfer of the company to line up with the payment of the rent by Dimension which I knew was due on 1 March 2019'. 244 On 20 February 2019, it appears, Mr Tiller circulated a letter to creditors saying that the Tiller partnership had not received any income from grain that year 'due to an overly aggressive repayment program forced upon us by one of our creditors' (TB 121). That was a reference to Landmark. The letter also referred to Mr and Mrs Tiller's divorce and said that it would not 'impact the business financially'. The letter indicated that the partnership would be able to 'access funds to pay creditors' after a process involving the presentation of the partnership's financial statements to 'main financiers'. It said that after that the partnership would 'move forward with the seasons [sic] work schedule'. The process was estimated to take three weeks. After once again blaming 'a large corporate financier crippling a small business', the letter said, 'I do have some great people around me helping me and I am confident that I will bounce back from this situation. Every invoice and cost will be included in the review and funds will be expected to be released by March 31st 2019'. The letter made no reference to Dimension, the New Leases or the 15 February Deeds and no express reference to Mr Nicoletti. 245 Mr Tiller gave evidence of a conversation with Mr Nicoletti after the letter to creditors was sent in which Mr Nicoletti said words to the effect: 'realistically Simon you're not going to be able to fund the crop this year, we better get the company transferred over to me' (Tiller I, para 168). According to Mr Tiller he said he thought there was still a chance Landmark was going to fund him, but he understood, and Mr Nicoletti said if he sorted something out with Landmark they could work something out later (TB 168). Mr Nicoletti gave similar evidence (Nicoletti I, para 106). He said he then asked Mr Bryce to arrange the 'transfer' as well as a bank account for the company. Mr Nicoletti's evidence was that once the bank account was set up, he asked somebody, he could not remember whom, to 'transfer whatever we needed into the Dimension account for the rates and rent from my company Apache and to pay the rates and rent' (Nicoletti I, para 110). 246 On 21 February 2019 Mr Caratti emailed Mr Tiller saying he had just received a text message from the Shire's lawyers threatening immediate legal action if the rates were not paid immediately and asking Mr Tiller what he was going to do to 'fix this' (TB 120). 247 On 22 February 2019 Mr Tiller sent an email to Mr Caratti, with the subject heading 'SICK LEAVE', saying ' Please correspond via email as my phone will be unattended today thankyou [sic]'. Mr Caratti replied an hour later in the following terms (punctuation and errors as in original) (TB 122): Let there be no misunderstanding the surrender of the lease with sc and fh tiller does not come into affect until special condition 7a iand ii are paid If you have forgotten this is payment of the rates and $70000 within 7 days of the 7 feb 2019 I also remind you of the default notice issued on the 18 january 2019 It is obvious you are in perth so you can correct all of this immediately if not then you leave me with no alternative but to terminate 248 It seems that by this time a bank account for Dimension had not yet been set up. On the same day, 22 February 2019, Mr Bryce sent Ag Implements a number of documents asking that Mr Tiller execute and return them (TB 123). The documents included an account authority for a business cheque account in Dimension's name with National Australia Bank. Mr Tiller needed to sign the form as a director of Dimension, but it only authorised Mr Bryce as the sole signatory on the account. The other documents which Mr Bryce asked Mr Tiller to sign were Mr Tiller's letter of resignation as a director of Dimension, and a corresponding ASIC form. The ASIC form had 28 February 2019 typed in as the date of delivery of the letter of resignation and the date of signature of the form. 249 In cross-examination Mr Tiller was asked why he was not a signatory on the account. He said he did not need to be, but he conceded that before that he had arranged the payment of bills for the Farms, so that this was a change (ts 254). Mr Tiller's evidence at this point in his cross-examination indicated that by this time, he was not paying any of the expenses of the Farms. He said, 'I couldn't pay the bills'. 250 Ag Implements forwarded the documents to Mr Tiller asking him to act on Mr Bryce's instructions 'as soon as possible'. Mr Tiller did so, signing the ASIC form and the letter and emailing them back to Ag Implements within an hour. Ag Implements emailed them to Mr Bryce on the same day. The letter of resignation attached is also post-dated to 28 February 2019, although it looks like the date was changed by hand, so it is not clear whether Mr Tiller put that date on it. His evidence was that he could not remember why the ASIC form was to be dated 28 February 2019 (Tiller I, para 170). 251 Also on 22 February 2019, Mr Bryce emailed the National Australia Bank asking that an account be opened saying, relevantly (TB 125): I am the sole direct shareholder - this will transfer to John Nicoletti next week. I am director and company secretary and there is one other director who will be removed next week. We need the account open to make a lease and rates payment urgently. In a subsequent email on Sunday of that week he asked the bank whether it would be 'ok to transfer funds on Monday'. 252 The following day, a Saturday, Mr Tiller emailed Mr Caratti saying that the rates would all be cleared on Tuesday 'this week', that is 26 February 2019. 253 On 27 February 2019 Mammoth received payment of $70,000, being the accelerated instalment of the final $140,000 arrears payment, from Dimension (Caratti I, para 138; TB 149). The arrears of Shire rates were also paid on 27 February 2019. In two payments, one on 1 March 2019 and one on 4 March 2019, Harvard also received from Dimension the $440,000 payment of half of the annual rent under the New Leases, which was due on 1 March 2019. All these payments were made out of Dimension's new bank account with National Australia Bank (based in Moree, New South Wales). The source of the funds appears to have been two deposits totalling $640,000 which Dimension received from Apache Investments on 25 and 26 February 2019. 254 According to ASIC's records, Mr Nicoletti was appointed a director of Dimension on 28 February 2019 with Mr Tiller ceasing to be a director on the same day (TB 156). It appears from the evidence that Mr Caratti did not discover this until he performed a company search a month later on 29 March 2019 (TB 151). By that time, Mr Nicoletti had also replaced Mr Bryce as the sole registered shareholder. Mr Caratti's evidence was that he was furious when he found that Mr Nicoletti had been appointed a director and the sole shareholder (Caratti I, para 188). 255 There are internal Landmark emails in evidence showing that at least by 22 February 2019, Landmark had increasing concerns about Mr Tiller's capacity to continue to farm. 256 Mr Tiller gave evidence of a conversation with Mr Caratti in mid to late February 2019 in which Mr Caratti asked whether Mr Nicoletti was his financial backer and Mr Tiller said he was (Tiller I, para 175). Mr Caratti's evidence was that this evidence was 'totally false' and the conversation never happened (Caratti II, para 32). 257 According to Mr May's evidence, Mr Nicoletti called him at around this time, that is late February or early March, to ask whether he could come to manage the Farms for Mr Nicoletti (ts 187). Mr Nicoletti himself placed the conversation in late March but he said he could not be certain. I prefer Mr May's evidence because he is more likely to have had a clear memory of the conversation, since it concerned what was in effect full time work for him (at least during the farming season) and, as I have said, I accept Mr May as a witness of truth. The timing of late February is also consistent with the evidence about when Mr Nicoletti caused Apache Investments to provide the funds to Dimension for payment of the rates and rent, and when the transfer of the share in Dimension to Mr Nicoletti occurred. It stands to reason that at around the same time as these things were happening, Mr Nicoletti was looking for someone to manage the Farms for him. I find that he asked Mr May to do so in late February 2019.

Mr Tiller's financial position becomes desperate 258 Mr Tiller gave evidence of a meeting with Mr Mondi of Landmark on 7 March 2019 which did not go well, and he was told that Landmark would not provide further finance (Tiller I, para 180). Mr Mondi sent a detailed account of the meeting to other Landmark staff the next day (TB 130). After discussing Mr Tiller's position in some detail, Mr Mondi recorded that: I have suggested to Simon that given timing of the season his inability to raise funding to put crop in the ground, creditors demanding payment and pending divorce, this will severely limit his ability to farm in 2019 and future. Simon agreed that it is not looking promising at the moment and as a consequence he has spoken with his Landlord and a potential investor (John Nicoletti). Simon's discussions with his Landlord have been to reassign the lease to a different entity and that entity purchase the stock to payout his landmark [sic] debt. 259 Mr Caratti gave evidence that in mid-March, on the basis of rumours concerning Mr Tiller, he spoke to certain contacts. Mr Caratti did not give evidence as to the content of the rumours but Mr Vaughan's evidence, to which there was no objection, was that at this time he told Mr Caratti of rumours that Mr Tiller was in financial trouble (Vaughan I, paras 14-15). Mr Vaughan said that Mr Caratti should look for potential tenants for the Farms. Mr Caratti instructed him to do so, although according to Mr Caratti his instructions were to look only, but not to commit until Mr Tiller's position on the Farms became known (Caratti I, para 140; ts 153) There is a diary note of Mr Caratti's in evidence (TB 132) which indicates that Mr Vaughan's advice was stronger than Mr Caratti's evidence-in-chief suggested, as the note records Mr Vaughan as saying (on 14 March 2019) 'everyone after arable cropping land' and notes a number of prices at which the land on various farms could be expected to sell (see ts 154), including Howick and Warriup. 260 On 15 March 2019, Mr Tiller lodged a complaint about Landmark with the Australian Financial Complaints Authority (Tiller I, para 182). When Mr Mondi sent the complaint around internally at Landmark the following day, he said he saw no option other than to appoint an insolvency specialist. 261 On 19 March 2019 Mr Caratti emailed Mr Tiller saying (TB 136): Iam [sic] told you have declared war on Landmark This is serious how will you fund the current crop What is going to happen with the livestock Call

Conversations in late March 2019 262 The parties adduced considerable evidence about conversations between Mr Caratti and Mr Tiller and, separately, Mr Caratti and Mr Nicoletti, which took place following the email of 19 March 2019. It will be necessary to make some findings below about a few issues that arise from that evidence, but for now it is only necessary to sketch the evidence in outline. 263 Mr Caratti's evidence was that he had a conversation with Mr Tiller on 19 March and another on 20 March 2019 (ts 96-98). He claimed that it was only in these that he learned of the extent of Mr Tiller's financial trouble. He also claimed that in these conversations Mr Tiller mentioned another farmer who was prepared to help him. There are diary notes of these conversations (TB 137-138). 264 Those conversations, Mr Caratti said, led him to surmise that the farmer might be Mr Nicoletti. That led him to telephone Mr Nicoletti on 21 March 2019. During that conversation, according to Mr Caratti, Mr Nicoletti said that he was taking over the Farms and was sending down two of his best men and equipment (ts 98). 265 Mr Caratti said he then rang Mr Tiller twice and spoke to him, and that he spoke once more to Mr Nicoletti. The tenor of those conversations was that Mr Caratti said he had been 'conned' (ts 98-99). 266 Mr Tiller and Mr Nicoletti did not deny having these conversations. Their respective accounts of the conversations (Nicoletti I, paras 114-122; Tiller I, paras 186-190) differed from Mr Caratti's account, including in the following potentially material respects: (1) Mr Tiller's evidence was that Mr Caratti already knew of Mr Nicoletti's involvement by this time. (2) Mr Tiller said Mr Caratti asked him to hand back the Farms. (3) Mr Nicoletti's evidence was that Mr Caratti offered him $500,000 to get out of the Farms.

Solicitors' correspondence with allegations and counter allegations, and the Fowler Lease 267 On 25 March 2019 Hotchkin Hanly, acting for Harvard, wrote to the directors of Dimension and to Mr Tiller (separately addressed) alleging as follows (TB 144): (1) Mr Tiller told Mr Caratti 'on behalf of our client' (i.e. Harvard) in January 2019 that his marriage with Mrs Tiller had broken down and the business partnership he had with her needed to be dissolved but he wished to enter into new leasing arrangements with Dimension, effectively taking over Mrs Tiller's interest in the partnership. (2) When the new lease documents were drawn up to reflect the new arrangements, Dimension was named as a lessee with Mr Tiller, reflecting Harvard's understanding that the partnership would continue, but with Dimension as partner instead of Mrs Tiller. (3) On 19 March 2019 Mr Tiller told Mr Caratti that Landmark had seized the partnership assets and he could not continue to farm without the assistance of another farmer, whom he would not name, to help 'take the operation on'. (4) Mr Caratti subsequently discovered that the farmer in question was Mr Nicoletti, a former tenant of the same farms 'who had not been an acceptable tenant in terms of prompt payments of rent'. Mr Nicoletti told Mr Caratti that Mr Tiller owed him about $900,000 and that he was going to take over the operation of the Farms. Mr Tiller subsequently told Mr Caratti that Mr Nicoletti had acquired 80% of the issued shares in Dimension. (5) The letter went on: We are instructed that our client does not consent to any agreement or arrangement by which control of the farming operations is now in the hands of Mr Nicoletti. Our client is particularly concerned that it has been misled, either by the representation that Simon would continue to operate the farm himself, with the new company simply replacing Felicity in order to ensure a smooth transition from the dissolution of their marriage to his continued conduct of the farming operations, or his subsequent advice that he is suddenly in such financial trouble that his previous promise to that effect could not be kept. In effect, instead of Simon continuing to run the farming operations under his control, as he had represented he would, the operations are proposed to be conducted under the control of Mr Nicoletti, either because our client had not been informed at the time it decided to enter into the new arrangements with Simon that in fact there was a significant risk he could not continue to operate the farm himself, or because he now wants to relinquish control of the operations for reasons associated with his purported (undisclosed) financial problems and/or the dissolution of his marriage partnership. 268 Hotchkin Hanly demanded a detailed explanation of all relevant facts over the previous three months setting out correspondence between Mr Tiller, Dimension, Landmark and Mr Nicoletti concerning Mr Tiller's capacity to continue to control the operations and whether he could no longer do so. They also demanded an undertaking that Mr Tiller would not permit Mr Nicoletti to take control of the farming operations or do anything in relation to them without Harvard's prior written consent. Hotchkin Hanly threatened an injunction to restrain any attempt by Mr Nicoletti to be involved in the farming operations if those things were not forthcoming. 269 There is no reference in the letter to any alleged representations made in January 2019 about Mr Bryce's role. Mr Bryce is not mentioned in the letter at all. Nor does it allege any express representation by Mr Tiller that Mr Nicoletti had no and would not have any involvement in Dimension, and would not be involved in Dimension's activities on the Farms. Relevantly, the representation alleged was that Mr Tiller would continue to operate the farm himself, with Dimension simply replacing Mrs Tiller. There is no express representation alleged as to who owned or otherwise backed Dimension, save the reference to Mr Tiller telling Mr Caratti on 22 March 2019 that Mr Nicoletti had acquired 80% of the issued shares. 270 On the same day Hotchkin Hanly sent a copy of this letter to Mr Nicoletti, under cover of a letter that put Mr Nicoletti on notice that Harvard did not consent to his becoming involved in the operations of the Farms (TB 144A.1). The letter sought an explanation regarding any discussions with Dimension, Mr Tiller or Landmark regarding farming operations at the Farms over the previous three months and an undertaking not to be involved in the operations at the Farms without Harvard's prior written consent. Hotchkin Hanly said that if they did not receive a satisfactory response they had instructions to apply for such relief as was necessary to protect Harvard's legal interests. 271 Four days after these letters were sent, Lawton Gillon, acting on behalf of Dimension and Mr Tiller, lodged two caveats claiming a leasehold interest in the Farms under the New Leases. 272 There is email correspondence internal to Landmark in evidence from which it appears that Mr Nicoletti told Landmark on 22 March 2019 that 'he and his workmen are on farm and are part of the new lease' (TB 145). It appears that Mr Nicoletti asserted the ability to grant or withhold permission to enter the Farms because the Landmark email said 'we can be on farm early next week by contacting John' (that is, John Nicoletti). 273 There are also notes of meetings that Sam Elamirdarche of Landmark appears to have conducted with Mr Caratti and, separately, Mr Nicoletti on 25 or 26 March 2019 (TB 145). From those notes it appears that Mr Caratti was under the impression that Mr Tiller had registered Dimension as a company but had resigned as a director and Mr Nicoletti had been appointed. The notes also say that Mr Nicoletti said 'Dimension Ag of which Nicoletti is a director holds the current lease' and 'Nicoletti claims Tiller is part of Dimension Ag (ASIC documents show otherwise)'. Mr Nicoletti was to be on the Farms on 27 March to show Landmark personnel in for an inspection. 274 On 27 March 2019 Mr Caratti provided written authorisation to Mr Vaughan to seek to lease the Farms for annual rent of $1.3 million to $1.65 million, 'subject to the current lease with Simon Tiller and associated companies being made null and void' (TB 146 - Mr Vaughan's witness statement put the date of this as 21 March but the email in the trial bundle clearly dates it as 27 March). The next day, Mr Vaughan received a non-binding proposal from Andrew Fowler for rent of $2,000,000 per year for a five year term, $2,250,000 per year for a second five year term, and $2,500,000 per year for a third five year term. The second and third terms were to be at the tenant's option. It was a condition of the proposal that the 'existing lease contract needs to be legally revoked' and that the existing tenant vacated the property by 20 April 2019. Mr Vaughan's evidence was that he had told Mr Fowler that there was a lease in place that would need to be 'revoked' (ts 176). 275 On 29 March 2019 Mr Caratti performed another company search of Dimension, which, he said, revealed that Mr Bryce and Mr Nicoletti were the directors and Mr Nicoletti the sole shareholder (TB 151). But as I have said, it seems he knew of the change in directors by 26 March. Mr Caratti said he had done some research which revealed that Mr Bryce was Mr Nicoletti's representative or agent and that he, not the accountant in Adelaide, had set up the company. According to Mr Caratti, in a conversation with Mr Tiller that day he said, 'Simon there's that many lies here that I just don't trust you. I don't trust Nicoletti. Get off the farm' (ts 100). 276 It seems that by this time Mr Nicoletti was directing operations on the Farms. In re-examination his evidence was that by 28 March 2019, 'we were feeding the cattle. We were doing some waterworks, because the water was very low'. The waterworks were enlarging catchments and laying pipes so that water could be pumped 'from one dam further, because we run [sic] out of water'. The water was for the stock (ts 310). Mr Tiller's evidence was that he thought Mr May started work on the Farms towards the end of March (ts 258). 277 On 2 April 2019 Hotchkin Hanly wrote a letter to Lawton Gillon, apparently on the basis that the latter firm was acting for Mr Tiller. The letter described 'further evidence that has come to light which justifies the inference that my client was not only misled, it was deliberately misled' (TB 159). That evidence included Mr Bryce's association with Mr Nicoletti and an (incorrect) claim that Dimension was incorporated with Mr Bryce as sole director, and the information that Mr Nicoletti replaced Mr Bryce as director and shareholder of Dimension on 28 February 2019. The letter alleged: Given the ongoing association of Mr Nicoletti with your client's farming operation and the use of a consultant with whom he had worked closely over the last 18 months with the sale of his own farms, and given the short period which elapsed between the appointment of your client as director and his replacement by Mr Nicoletti, it is clear that when your client explained to Mr Caratti in January this year the need to replace his wife with a company to conduct the farming operations, the fact that it was intended to be a vehicle for Mr Nicoletti to take over the farming operations from him as soon as arrangements were in place was deliberately withheld from our client. If he had disclosed that the real reason for the company taking over from Mrs Tiller was to facilitate Mr Nicoletti taking over the farming operations from your client, my client would not have agreed to the fresh leases to the company. 278 The letter alleged misleading or deceptive conduct and fraudulent misrepresentation. It said that Harvard elected to rescind the New Leases. Once again, there is no allegation in this letter of an express representation by Mr Tiller as to Mr Nicoletti's lack of involvement with Dimension or its operations on the Farms. It is, rather, framed as an allegation of non-disclosure. 279 Hotchkin Hanly also sent a copy of this letter to Nova Legal on behalf of Mr Nicoletti and Dimension, putting them on notice that mesne profits would be asserted against them on the basis that they would be trespassing on the Farms (TB 159). 280 On 3 April 2019 Landmark issued a default notice to Mr and Mrs Tiller (as the partnership) demanding approximately $3.9 million under certain facilities (TB 162). On the same day, it accepted an offer by Mr Nicoletti to buy all the sheep on the Farms for $550,000 plus GST (TB 161). Landmark had security over the livestock. Another financier, CNH Industrial Capital Australia Pty Ltd, issued a default notice (for a smaller amount) the following day (TB 166). In cross-examination Mr Nicoletti accepted that Apache Investments was invoiced for the sheep but could not explain why Dimension Agriculture did not buy them if it was going to be doing the farming (ts 295). He also did not explain why he did not tell Mr Tiller he was buying the sheep if his motivation was 'helping a mate' (ts 296). When asked whether at that time Apache Investments was doing the farming on the Farms, or it was Dimension Agriculture, Mr Nicoletti's answer was 'Well, Apache is me … and I was there farming it'. 281 The sale of Mr Nicoletti's farms to SALIC settled on 4 April 2019. According to a news report, the substantial accuracy of which Mr Nicoletti confirmed in evidence, Mr Nicoletti sold 200,000 hectares of land to SALIC for $60 million. 282 On 5 April 2019 Lawton Gillon replied to Hotchkin Hanly's letters of 25 March and 2 April (TB 167). They said they did so on behalf of Mr Tiller and Dimension. 283 Lawton Gillon's letter confirmed that Mr and Mrs Tiller's marriage had broken down and the SC & FH Tiller partnership 'is to be dissolved in due course'. It said that this, and issues with Landmark, 'necessitated a re-structure of the farming operations for the Howick and Warriup Farms ("Farms") and a change in the financial backing of the Farms'. It also said, '[n]otwithstanding that change in structure and financial backing, Simon Tiller is to remain in control of the farming operations'. 284 The letter denied that Mr Tiller represented to Mr Caratti that Dimension was incorporated solely to replace Mrs Tiller's interest in the Leases, or that he could not continue to manage the Farms without the assistance of another farmer, or that Landmark had seized the partnership assets of SC & FH Tiller (this at a time when Landmark had already agreed to sell the sheep to Mr Nicoletti). It said that Dimension was always intended to be the financial backer for Mr Tiller's continued farming of the Farms and that Mr Tiller always intended to remain in control of farming operations 'with simply a change in the financial backing from Landmark to Dimension Agriculture'. It gave an account of the conversations between Mr Tiller and Mr Caratti in late January in which Mr Caratti said that he was 'happy to proceed without knowing who was "behind" Dimension Agriculture as long as moneys were paid when they were due and that Simon Tiller remained in charge of the farming operations'. It said that Mr Tiller surrendered the existing leases in reliance on that statement; this is a version of the claim that Mr Caratti himself engaged in misleading or deceptive conduct which, as I have said, was not pressed at trial. 285 Lawton Gillon's letter expressed surprise at the suggestion that Mr Caratti considered Mr Nicoletti to be an unsuitable tenant, and said that in any event Mr Nicoletti was not a party to the Leases and the farming operations would remain under Mr Tiller's control, with Mr Nicoletti's role being as shareholder and director of Dimension, the company providing financial backing to Simon Tiller. It sought to give the following explanation as to Mr Nicoletti's involvement in Dimension (paragraph numbers removed): John Nicoletti was not an original shareholder or director of Dimension Agriculture. As acknowledged in your letter of 2 April 2019, John Nicoletti has been tied up in relation to the proposed sale of a significant portion of his farming interests to a Saudi based entity. Accordingly, and for purely convenience reasons, John Nicoletti asked Damian Bryce to arrange the incorporation of Dimension Agriculture and facilitate the signing of the Leases while he was busy dealing with his other business ventures. Only once John Nicoletti was less busy with the sale of his farming interests did he turn his mind properly to matters concerning Dimension Agriculture and arranged for the shareholding and directorship to change to properly reflect the original purpose behind its incorporation. 286 The letter denied that Dimension was a means by which Mr Nicoletti would obtain exclusive control of the farming operations in order to retire Mr Tiller's alleged debts to Mr Nicoletti. It also denied that Mr Nicoletti had told Mr Caratti that Mr Tiller owed him $900,000, although it went on to say that 'the Lessee', that is, Dimension and Mr Tiller, had incurred approximately $900,000 in costs since the New Leases were signed. This was made up of about $650,000 paid by the Lessee under the New Leases and a further $250,000 which 'the Lessee' had paid for fertiliser and seeds. 287 The letter went on: 'Simon Tiller has always intended, and his intentions remain, to be a long term tenant of the Farms', citing as evidence improvements which Mr Tiller had undertaken and the payment of $720,000 for the alleged rental arrears. It is notable that this was said within a couple of days after Mr Tiller received notices of default from two financiers, and Mr Nicoletti had bought all his sheep from one of those financiers. The letter finished by saying that the rescission was invalid, and that Mr Tiller and Dimension were 'treating the [New] Leases as on-foot, will remain in possession of the Farms and will continue with their farming operations' (TB p 1177). 288 While I will make findings about this letter below, to the extent that it is necessary to resolve pleaded issues, I cannot pass from the subject without saying that several things said in the letter were glaringly inconsistent with the evidence I have outlined so far. So much so, that it is necessary for me to say that there was no suggestion in the evidence that, at the time of sending the letter, Lawton Gillon were aware of the matters revealed in that evidence. Mr Tiller's evidence was that he had not given Lawton Gillon a copy of the 15 February Deeds (ts 259). It seems that they did not receive them until the discovery process in this proceeding (ts 327). My findings, set out below, are that Mr Tiller and Mr Nicoletti gave Lawton Gillon the instructions in the letter. That reflects poorly on their credit. 289 In cross-examination, Mr Tiller sought to defend the veracity of the letter by saying that he considered himself to be in control of the Farms jointly with Mr May until he left the Farms. He said that this happened in late April (ts 259), although he had earlier said he left the Farms when Landmark appointed receivers, which was on 10 April 2019 (see below). He maintained that it was true to say that there had been a change in the financial backing from Landmark to Dimension Agriculture, even though he accepted there were never any discussions with Landmark about Dimension or anyone else refinancing his debts to Landmark (ts 259). 290 Mr Caratti's evidence was that he did not accept the assurances in Lawton Gillon's letter and wanted to retake possession of the Farms, but he accepted legal advice that it would be too risky to do so and that he should issue proceedings to obtain a court order. According to Mr Caratti, if he had known about the 15 February Deeds at the time of taking this advice, he would have taken the risk and retaken possession because he would have known that Lawton Gillon's letter was not true (Caratti I, para 202).

Subsequent events in April 2019 291 It appears from Mr May's evidence that he started working on the Farms in early April 2019. Mr Tiller placed that time as towards the end of March 2019, although he was not on the Farms on the day Mr May started working on them (ts 258). 292 Mr May's evidence was that '[o]nce it was early April or something, we … had to start looking after the stock. It was an animal health sort of issue that we had to feed the stock to keep them alive and shift them around in the paddocks to where they should be and just the ongoing running of the farm' (ts 188). 293 Mr Tiller's evidence in cross-examination was that he stopped living on the Farms in about April of 2019 (ts 252). He said he was going to and from Perth a lot between January and April, but he did not leave until then. Between March and April, according to his evidence, he was there a couple of days a week (ts 253). In cross-examination, the explanation he gave for why the condition of the stock had deteriorated was that he could not afford to feed them properly (ts 265, 267). 294 10 April 2019 was an eventful day. Mr Caratti gave evidence that on that day, he telephoned Mr May (Caratti I, para 212). According to Mr Caratti, Mr May told him that Mr Tiller had abandoned the Farms and had not been there for a month. He said that Mr Tiller's parents were moving out. He said that he, Mr May, was looking after the Farms for Mr Nicoletti and that '3 of John's people' were working on the farm. Mr May said that Mr Nicoletti had 'taken over the Farms'. There is a diary note of Mr Caratti in evidence that is consistent with this (TB 169). I have already ruled that this evidence is admissible. 295 Mr May agreed in his evidence that he had a conversation with Mr Caratti at this time but his evidence about the content of the conversation was understandably vague (ts 191). Mr May receives 40 to 50 phone calls a day and he cannot be expected to remember his conversations with Mr Caratti with any clarity. Of this first conversation, he recalled Mr Caratti asking who was on the farm or managing it, and he told Mr Caratti that he was managing it for Mr Nicoletti. Mr May might have said he did not know where Mr Tiller was, but his recollection was far from certain. It is notable, however, that Mr May did not suggest in his evidence that Mr Tiller had any role in managing the Farms. 296 Under cross-examination from the respondents' counsel Mr May said, 'The cows were calving and there was … dead cattle around the place, and we had to - otherwise it would have been an animal - or RSPCA issue … So we had to do what we had to do' (ts 193). He said that some cattle were in a poor way. He summarised the condition of the stock generally as 'store cattle', which he explained to mean 'not skinny', but not sufficiently well fed to be ready for slaughter. It appears that he was speaking of the period in early April when he began to manage the Farms (ts 194). Despite Mr Tiller's evidence that he did not leave the Farms until April, when he was told about the above evidence from Mr May, Mr Tiller conceded that he was not around a lot. He agreed emphatically that the livestock were run down (ts 253). 297 Also on 10 April 2019, Mr Vaughan sent an email to Mr Caratti saying (square brackets in original) (TB 170): Had a call from John Nicoletti on Monday evening. He made it quite clear that he was in charge of the Lease over the Warriups/Howick [in fact he was leasing these properties] and not to get involved in sourcing other tenants. Please let me know of further instructions. This email was part of the trial bundle admitted by consent and no objection was taken to it on the basis of hearsay. It is consistent with a diary note Mr Caratti took of a conversation with Mr Vaughan on 9 April 2019 and with Mr Vaughan's evidence of the conversation, albeit Mr Vaughan dated it as having occurred on 10 April 2019 (TB 169; Caratti I, para 203). 298 Also on 10 April 2019, Landmark's solicitors gave notice to Mr Tiller that receivers had been appointed over the assets of the SC & FH Tiller partnership over which Landmark held security (TB 171; see also TB 196). 299 Also on 10 April 2019, Mr Nicoletti offered Landmark's receivers $950,000 plus GST for all cattle on the Farms (TB 172). 300 And, again on 10 April 2019, Scott Archbold, one of Landmark's receivers, emailed Landmark saying, relevantly (TB 173): - I visited the farm to view the stock and met with the farm manager Peter May. - Peter confirmed that he is happy to continue managing the farm and taking care of the stock. 301 Finally for 10 April 2019, Lawton Gillon sent a letter to Mr Vaughan saying that they acted for Mr Tiller and Dimension and demanding that he cease marketing the farms as available for lease (TB 174). The letter threatened to report Mr Vaughan to the 'office of Consumer Protection' if he did not immediately cease marketing the farms. 302 On 11 April 2019 a portfolio manager at CNH had a conversation with Mr Tiller and made a file note. The note says, relevantly (TB 176): Simon confirmed that he has no money to meet his financial obligations, the Farm Caretaker 'Frank' has now left the Operation and his dad Bill is packing to relocate as he is unable to pay his salary. Family home has been sold however Felicity Tiller is still living at the property. … Simon Tiller currently, in Perth (living with girlfriend) and has been for several weeks. While this evidence was hearsay, no objection was taken and given CNH's position as a disinterested third party there is no reason to doubt its accuracy. 303 On 12 April 2019 Mr Tiller sent an email to the receivers saying 'On the advice of my solicitor, I am locking the gates to the farm known as warriup and I am putting you on notice of a pre-existing dispute between [sic] SC And FH Tiller that is pending legal action' (TB 185). This is the day on which, according to his evidence, he received notice of the appointment of the receivers (Tiller I, para 198). 304 It does not appear, however, that Mr Nicoletti had any doubt about the receivers' powers. On 16 April 2019 he emailed them an offer to purchase 2,000 head of cattle on the Farms for $1,050,000 (TB 186). The offeror was Apache Investments. However on the same day Landmark found that the gates were locked and Mr Tiller's father would not allow access to the property. Mr Nicoletti told Landmark he could not assist them (TB 187). 305 It appears that Apache Investments had paid Landmark for the sheep by the following day, 17 April 2019 (TB 191). It also appears that by then the receivers had obtained access to the Farms to inspect livestock (presumably the cattle) with a potential buyer (TB 192). 306 Also on 17 April 2019, Harvard executed a lease of the Farms to companies associated with the Fowler family, that is, the Fowler Lease (TB 189). It was to commence on 1 May 2019 and run for a term of four years and 10 months. An annual rental of $1,950,000 plus GST for the first 10 months was to change to $2,000,000 for the remaining four years. There were to be two further terms of five years each, which would automatically extend the Fowler Lease unless the tenants gave notice at least 12 months prior to expiry of the term that they did not wish to renew. The annual rent during any second five year term was to be $2,250,000 plus GST and in a third term was to be $2,500,000 plus GST. The lease was subject to and conditional on the valid extinguishment of all prior leasehold interests in the Farms by 30 April 2019 and the tenants being granted vacant possession on the commencement date. 307 On 20 April 2019 Mr Tiller sent Mr Caratti an email saying (errors in original) (TB 193): Happy Easter John, I'm at warriup over Easter spending =ime with my staff going over the cropping program, we had 3mm of rain =ast night which was great Enjoy the break 308 Like Lawton Gillon's letter of 5 April 2019, the impression this conveys is glaringly inconsistent with the true state of affairs. It is also curious, given the history, that Mr Tiller sent it to Mr Caratti, apparently unprompted by anything. It appears to have been designed to create a false impression that Mr Tiller was still operating the Farms. Once again, it reflects poorly on his credit. Although a diary note of Mr Caratti from this time (TB p 1192) suggests that Mr Tiller was on the Farms on Easter, he had no staff there. It is clear that by then, Mr May was running the Farms for Mr Nicoletti.

Events in May 2019 309 Harvard commenced these proceedings on 2 May 2019. 310 Mr Tiller's evidence appears to be that it was not until early May 2019 that it became obvious to him that he would not have any financial input into the 2019 seeding program, but he was still hopeful of having input into the 2019 harvesting program (Tiller I, para 199). 311 Mr Tiller claims in his evidence that he regularly consults with Mr Nicoletti and his management regarding the Farms. In support of that he said that '[t]hroughout March and April 2019 I visited the Farms on a number of occasions' (Tiller I, para 201). That appears to be an implicit acknowledgement that by March 2019 he was not living on the Farms. Yet, there is no mention in his evidence-in-chief of when he moved away from the Farms. In re-examination he said it was late April 2019 (ts 268). Mr Tiller's evidence was that he still visits the farm about once a month (ts 268). He claims he is still hopeful of farming the Farms long term once he is able to raise some money to do so. 312 Similarly, Mr Nicoletti's evidence, while saying that Mr Tiller kept a couple of workers employed on Warriup until late April 2019 and that Mr Tiller's parents were there until that time, does not say anything about Mr Tiller moving off the Farms (Nicoletti I, para 127). 313 Mr Nicoletti's evidence about Mr Tiller's involvement in the Farms after March 2019 is that Mr Tiller was on the Farms at least five or six times during the seeding program (which started in early May) and several times after that to check on the season and generally discuss things relating to the farming operations with Mr Nicoletti (Nicoletti I, para 129). 314 Mr May's evidence was that for the period from March 2019 to the time of trial he had seen Mr Tiller on the Farm four or five times (ts 190). He said that ' after all the repossession agents and whatever coming through the farm, I said … I don't know where Mr Tiller was' (ts 190). 315 Mr Caratti gave evidence of a telephone conversation with Mr May on 7 May 2019 in which he asked Mr May what was happening on the Farms and Mr May replied that he was managing the Farms for Mr Nicoletti, they had had 20 mm of rain and were 'flat out seeding'. According to Mr Caratti, Mr May said 'Nico is completely in control, all Nico's gear and men are on the farm'. He said they had a 6,000 ha cropping program and that the rest of the farm will be left for livestock because 'Nico says there is more money in livestock than cropping' (Caratti I, paras 219-220). According to Mr Caratti he asked Mr May where Mr Tiller was, to which Mr May replied, 'Simon is not on the farm, he has no role here whatsoever, he got a job in Perth with a repossession company'. Mr May said they were not using any of Mr Tiller's machinery (Caratti I, para 220). There is a diary note of Mr Caratti in evidence which is consistent with this evidence (TB 200). 316 Mr May's account of the same conversation also mentions discussion of seeding and rain. Apart from that, all he could recall was that he told Mr Caratti that Mr Tiller was not there - that he had not 'physically seen him' - but that he knew that he had been around because staff had seen him (ts 191). No objection was taken to that last statement on the basis that it was hearsay, so I will take it into account. It indicates that Mr Tiller did visit the Farms from time to time, but tells the court nothing more than that. 317 Mr Caratti gave evidence of another telephone conversation with Mr May on 20 June 2019 in which Mr May in substance said that he had finished cropping on the Farms, Mr Tiller had not been on the Farms since Mr Nicoletti took over, and played no role in the Farms' operation. I have ruled that other things asserted to have been said in the conversation are not admissible. 318 Harvard devoted some time, during evidence, to establishing when Mr Tiller relinquished control of the Farms. But the findings I make below on the key issues do not depend on establishing precisely when that happened. Nevertheless, I will make a finding on that now in case it should turn out subsequently to be important. 319 In my view, based on the evidence I have recounted, Mr Nicoletti moved to take control of the Farms soon after he provided the initial funds on 25 February 2019. He asked Mr May in late February to run the Farms for him. Mr Tiller had probably ceased living on the Farms soon after that - his own evidence was that he only visited the Farms in March and April. According to the CNH file note he was living in Perth from at least the beginning of March. I do not accept his different evidence that he moved off the Farms in late April. 320 By late March, Mr Nicoletti was saying to Landmark that his workmen were on the Farms, and was asserting the ability to permit Landmark to enter (although he did not intervene when later, no doubt motivated by a subjective view that the Farms were still his, Mr Tiller briefly denied entry to the receivers). Mr Nicoletti's people were feeding the cattle. Mr May was working there from at least early April. Mr Nicoletti had agreed to buy the sheep. Mr Tiller's parents moved out in mid-April. 321 I find that from at least the beginning of April, Mr Nicoletti had control of the Farms and Mr Tiller did not. While Mr Tiller was still on the Farms from time to time, that is likely to have been for the purposes of giving Mr Nicoletti and Mr May the benefit of his knowledge of the Farms, and winding up his remaining connections to them. It may be that for most of March no one was actively managing the Farms, but it is not possible to make a definitive finding about that.

The deed of rescission 322 On 31 July 2019 Dimension and Mr Tiller entered into a deed styled 'Deed of Rescission' (TB 202). Mr Nicoletti executed it on Dimension's behalf as its 'sole director'. The recitals referred to 'a document titled deed of assignment and release dated 15 February 2019', that is to the 15 February Deeds (albeit in the singular). The latter deed (singular) was said in the recital to be annexed, but it is not annexed to the copy of the 31 July deed that is in evidence. It was defined as the 'Deed of Assignment'. 323 The recitals also said that the parties 'have by mutual consent agreed to rescind the Deed of Assignment ab initio'. Clause 1 in the operative part also provided that the deed of assignment was 'hereby' rescinded ab initio. There was also an acknowledgment that the deed of assignment was not binding and was of no force and effect and the parties' rights and obligations were the same as if the deed of assignment was never executed. 324 The respondents as witnesses gave no evidence about the circumstances in which the deed of rescission came about, other than to seek to explain in a supplementary statement some confusion in their evidence about whether it applied to both Farms. From the supplementary statements and the deed of confirmation I describe below, it would seem that it did not and that, by some oversight, the deed of rescission of 31 July 2019 that was in evidence only concerned Warriup Farm. In cross-examination, Mr Nicoletti could not explain how the deed came to be drawn on 31 July 2019 (ts 298). He was not sure who gave instructions to prepare it, although he said 'It probably was me, I just can't recall. I can't definitely say, "Yes, I said it"' (ts 301). Mr Bryce's evidence was that while the deed of rescission was mentioned to him at some point, he could not recall when and he was not involved in it (ts 324).

The second lease to the Fowlers 325 Harvard was not able to give vacant possession to the Fowler tenants by 1 May 2019, so the Fowler Lease did not come into effect. On 1 October 2019 Harvard entered into a second lease of the Farms with Fowler entities (TB 203). This lease was due to commence on 1 March 2020, with up to three five year terms on the same basis as I have described in relation to the Fowler Lease. The annual rent during the first term was to be $2,000,000 plus GST, during the second $2,250,000 plus GST, and during the third $2,500,000 plus GST. The lease was subject to and conditional upon the valid extinguishment of all prior leasehold interests in the Premises on or before 1 March 2019 and the grant of vacant possession on that date.

The deed of confirmation 326 On 7 November 2019 Mr Tiller and Dimension executed a document styled 'Deed of Confirmation' (TB 204). Mr Nicoletti executed it on behalf of Dimension. By the deed, the parties 'confirm that it was intended that the terms of the Deed of Rescission would apply to both Deeds of Assignment and would effect a rescission of both Deeds of Assignment'. In other words, it seems that someone realised that the deed of rescission had only applied to one of the 15 February Deeds, and hence one of the New Leases (it is not clear which). The intent of the 'Deed of Confirmation' was to ensure 'rescission ab initio' of both of the 15 February Deeds. 327 As with the deed of rescission, the respondents as witnesses gave little evidence about the circumstances in which the deed of confirmation came about. Mr Nicoletti said that Lawton Gillon gave it to him to sign, and that it was necessary because there were two Farms, but he could not explain why it was thought necessary to rescind anything. He said he could not recall telling Mr Tiller to sign it, even though it was dated less than a month before the cross-examination (ts 302). 328 Mr Nicoletti's evidence was that he has spent close to $3 million on the Farms in 2019 (Nicoletti I, para 131). There was an objection to this evidence on the basis that it was unsupported by any calculation. The objection was resolved by consent and the evidence admitted on the basis that the figure did not purport to be precise and the lack of the calculation would affect the weight which could be assigned to it. I use it as the basis for a finding that Mr Nicoletti, no doubt through Apache Investments or perhaps another one of his companies, has spent a substantial amount of money on the Farms in 2019, in the order of millions of dollars. There is no need to be more precise than that. The evidence does not, however, permit any finding as to whether Dimension spent that money; for example, no financial statements of Dimension or Apache Investments were in evidence and there was no other evidence as to whether Apache Investments advanced the money to Dimension. 329 Mr Nicoletti also gave uncontradicted evidence that he has net assets of about $60 million (Nicoletti I, para 132).

Resolution of the key issues - the alleged representations of 31 January 2019 330 I will turn below to a consideration of each of the key pleaded issues which I identified at the outset. However there is an area of dispute that needs to be addressed first, namely the nature of the arrangements that Mr Nicoletti, Mr Tiller and Mr Bryce had made by 31 January 2019, the date of the alleged conversations in which the four pleaded misleading representations were made. It needs to be addressed first because it is important background to the alleged conversations of 22 and 31 January 2019. It affects the probability that Mr Tiller did or did not say the things he is alleged to have said, and it is also relevant to the question of whether the things he is alleged to have said were false. So it is chronologically and logically prior to the other issues and does not fit neatly into any one of them.

The arrangements between Mr Nicoletti, Mr Tiller and Mr Bryce by 31 January 2019 331 First, some context. Mr Nicoletti and Mr Tiller had known each other since 2012. Mr Nicoletti had sub-let the Farms to Mr Tiller from that time [102] (here and in what follows, the square bracketed references are to paragraphs of this judgment). Mr Caratti gave evidence of an arrangement between Mr Tiller and Mr Nicoletti during the period of the sub-lease whereby one looked after the crop and the other the stock (ts 132). But there is no suggestion of this in the evidence of the other witnesses, and I do not put much weight on it. So I do not find that Mr Tiller and Mr Nicoletti cooperated in relation to the Farms between 2016, when Mr Nicoletti ceased sub-leasing it to Mr and Mrs Tiller, and 2019. Mr Nicoletti's evidence was that he had nothing to do with the Farms between 2012 and 2019, and I accept that this was so, at least from the time of his surrender of the sub-lease in 2016. From 2015 Mr Tiller was paying the rent to Mammoth direct [104]. 332 Nevertheless, there is nothing to suggest that Mr Nicoletti and Mr Tiller were on other than good terms when Mr Nicoletti surrendered his lease of the Farms. Mr Nicoletti's evidence repeatedly referred to Mr Tiller as a 'mate': [167], [280] and see [358] below. In these proceedings they were represented by the same law firm and no distinction between their respective interests emerged. I find that at the beginning of 2019, Mr Nicoletti and Mr Tiller were on friendly terms. 333 It can also be inferred from Mr Nicoletti's account of his business history, the existence of his farm machinery business, and the publicity that followed the completion of the SALIC sale later in 2019, that it was well known in farming circles that Mr Nicoletti was a wealthy farmer and a successful business person. Both Mr Tiller and Mr Caratti must have been aware of that. 334 Also, everyone involved believed that the rent that Mr Tiller was paying under the Tiller Lease was low compared to market rates. I was not presented with any opinion evidence by anyone suitably qualified as an expert which permits me to make a finding about what the market rent was. But the way the case developed, that was not necessary; it is the state of mind of each of the key individuals that matters. Mr Caratti had been advised by Mr Vaughan that he could get a higher rent for the Farms [138], and I have already found that Mr Caratti accepted that advice [140]. Mr Tiller told Mr Nicoletti the rent was very good [150]. Mr Nicoletti thought it was too, which made the idea of involvement with the Farms appealing to him [158]. And in his email to Nova Legal on 21 January 2019, Mr Bryce described the lease as being at 'at significantly favourable rates' [165]. 335 Nevertheless, by early 2019 Mr Tiller was in serious financial trouble. His own evidence was that he had been experiencing financial problems since 2016 [122], and he had held discussions with his main financier, Landmark, in 2018, which resulted in Landmark requiring him to reduce his debt to them by $3.5 million [133]. He had been unable to pay Shire rates since November 2018 [141]. His evidence was that by late 2018 it was not clear to him whether he would be able to continue farming on the Farms without financial help of some kind. So he needed a 'contingency plan' to deal with his 'uncertain finances' and that, along with the need to get Mrs Tiller's name off the lease due to their separation, led him to decide that he needed 'a new structure' for the Farms: see above at [142]. 336 In my view, Mr Tiller's evidence understates the severity of the financial difficulties in which he found himself at the beginning of 2019. He had found it necessary in 2018 to sell machinery to supplement his cash flow (TB p 436). He had committed to pay the Landmark debt down by $3.5 million. As at 31 December 2018, his two bank accounts had a total of approximately $14,000 in credit (TB p 447, 469). By the end of January 2019, that had deteriorated into a net balance of approximately $1,500 (TB pp 450, 474). As at 17 January 2019, Landmark had received $3,207,095.03 of the $3.5 million which Mr Tiller needed to pay down on his debt to them (TB p 627). At around that time Landmark had made it clear that it still required the remaining $300,000, and it was not committing to fund him for the 2019 season: see above at [226]. Mr Tiller had not paid Shire rates in the sum of approximately $135,000 (TB p 554), and a rent payment of $440,000 would be due on 1 March 2019 (TB p 559). In that situation, Mr Tiller needed more than a 'contingency plan'. He needed an immediate source of funds. And from early January he had been speaking about that to a person who was capable of providing those funds: Mr Nicoletti. 337 I will now consider certain explanations advanced in the respondents' evidence as to why Dimension was incorporated, and why it had the shareholder and directors that it had on incorporation. After indicating why I do not accept those explanations, I will then make findings as to the true purpose for which Dimension was incorporated. Those findings will indicate the nature of the arrangements between Mr Tiller, Mr Nicoletti and Mr Bryce as at 31 January 2019.

Was Dimension a 'structure' for Mr Tiller's assets; why did he want his name off the lease? 338 Mr Tiller's evidence was that he decided to set up a 'new structure', that is, Dimension, for himself, in order to restructure his finances and so as to be the repository for his assets. In my view, that is not why Dimension was formed. When Mr Tiller was asked in cross-examination to explain why he needed a company in order to get the Farms out of the partnership with Mrs Tiller and to deal with his financial situation, the following exchange with counsel ensued (ts 225-226): Can you explain to us why you need a company for that and how that would be achieved?---Company gives a different structure to a partnership. It - it's better for tax purposes, yes, and - yes. By that stage I - I wanted a new structure. Right. I'm asking how was that going to resolve your uncertain finances. It was your idea, so you had obviously worked out how the formation of a company would fix your uncertain finances. How was that going to happen?---I - I - I don't know. Whose idea was it? Was it yours?---Yes. It was my idea. So why can't you explain your thinking?---Well, that - at that stage I didn't really know where I was at, financially, because of - I hadn't delivered all the harvest and - but I wanted to put everything into a company. Yes, but why?---Tax purposes, and also my wife wanted me to wind up the partnership, because she didn't want to be involved in the farms either. Right. So, can I put it to you in these terms. It wasn't going to fix your problem with uncertain finances, was it?---Well, at that stage I didn't know where I would end up, financially. No. So, if it wasn't going to fix your financial difficulty, what was it going to do?---It would - it would create a new structure that just involved me and not my wife. Well, you don't need a company for that?---Well, you don't. The new structure can just be you?---You don't need a company but, generally, a lot of people do with a - with a farm. And how was the company going to resolve your uncertain finances? Do we understand from your explanation that it wasn't going to? You didn't know why?---I knew why I was doing a new structure in a company, but my finances were uncertain. Did anyone tell you that if you had put your assets into a company it would be harder for anyone to get at them?---No. No. So that wasn't a solution for your uncertain finances?---No. 339 This passage shows that in truth Mr Tiller did not know why it was necessary or advisable to incorporate Dimension. He was not able to give any clear answer to that question and he disavowed one plausible answer, which is that it would have made it harder for creditors to gain access to his assets. Objectively, it was not necessary to incorporate Dimension, either to achieve a dissolution of the SC & FH Tiller partnership or to resolve Mr Tiller's precarious financial position. 340 Mr Tiller's evidence also tried to explain why he did not want his name on the lease. That was the outcome which would, in effect, have been achieved if the proposed deed of assignment that he sent to Mr Caratti on 3 February 2019 had been fully executed. It is also the outcome he tried to achieve when he sent the new leases to Michael Caratti on 7 February 2019 with his name crossed out. Mr Tiller gave evidence that around that time, Mrs Tiller indicated that she did not wish to sign any more documents for the Farms and asked him to sort the Farms out himself. For his part, Mr Tiller did not want any requirement for Mrs Tiller to sign documents to hold up finance or other dealings on the Farms (Tiller I, paras 146-150). 341 So much may be accepted. What is less easy to accept is what followed from this, according to Mr Tiller's evidence, namely 'I did not want my name on the leases to cause confusion with the Partnership and risk the need of getting Felicity to sign something'. The idea that Mr Tiller's name on the lease would somehow cause confusion with Mrs Tiller and possibly require her to sign something does not make sense. And in the following passage from his cross-examination, Mr Tiller was unable to explain it (ts 243): I can understand why Felicity's name on the lease would cause confusion and difficulty, but how would your name on the lease require her to sign something?---I'm not sure what you mean. So - - - Well, what does she - if your name is on it, your name is on the lease. So, what's she to sign? It's only you on the lease, not Felicity?---Yes? So how is your name on the lease going to cause confusion? Who's going to be confused by this and why?---Well, there's the old partnership, which is me and Felicity and then there's the company. But who's going to be confused?---I - I - I don't know what you mean. It's - it's - - - I'm just asking because it's in your statement. You say: I did not want my name on the leases to cause confusion. So, I infer from that that you had thought about it?---Yes. And you had worked out that someone would be confused?---Yes. Who and why?---Banks, financiers, that - that type of thing. But why would they be confused about your name being on the lease?---Well, the partnership is made up of two individuals. You don't think they could cope with your name on the lease when they're dealing with their own interests; is that your point?---Yes. 342 Mr Tiller's incomprehension of the point of the questions he was being asked provides no reason not to make the inference that follows naturally from Mr Bryce's email to Nova Legal on 6 February 2019 saying 'we' wanted Mr Tiller to relinquish his rights, and from Mr Nicoletti's evidence about the contents of that email: that Mr Nicoletti asked Mr Tiller to be removed from the lease so that Mr Nicoletti, through Dimension, would be in sole control of the Farms. 343 Mr Tiller also gave evidence that on 6 February 2019, he received advice from both his accountant in Adelaide, Bruce McCarthy, and Simon England of Lawton Gillon, to remove his name, as his email to Michael Caratti of 7 February says 'for tax and family reasons' (ts 244). But that apparent advice from the accountant is only mentioned indirectly in his witness statement, and the advice from the lawyer is not mentioned at all. And it is inconsistent with the plain implication of Mr Bryce's email of 6 February 2019, namely that it was he and Mr Nicoletti who wanted Mr Tiller's name off the lease. When cross-examined about that implication, Mr Tiller ended up giving the following evidence (ts 247): Right. So, what I want to put to you is that the conversation that they must have had with you was 6 February. And it was that conversation, not the advice of your accountant or your solicitors, that prompted you to delete your name from the lease?---No, that's not right. It's not right?---No. Do you accept that you had that conversation?---With who, Damian? Damian Bryce?---No. John Nicoletti?---No. I have had regular conversations with John Nicoletti, and we were worried that there could be, like, a winding up or something on the partnership, like a bankruptcy. With the problems I was having financially. That's not what this email says. This email says you are happy to relinquish your rights. Did you have that conversation with him?---I had - I had a conversation with John Nicoletti about this. Right. And did you tell him you were happy to relinquish your rights under the lease?---Not as such, but he may have communicated that to Damian. I don't know. When you say, 'not as such', what did you communicate to him?---I expressed that I was worried about Landmark bankrupting me. Is that all you said?---Yes. So, they've somehow construed that as your happiness to relinquish your rights?---Well, I didn't really have a lot of choice. 344 Mr Tiller's answers here were unconvincing and, once again, furnish no reason to discount the apparent meaning of Mr Bryce's email of 6 February 2019 on its face. Mr Bryce's acceptance in cross-examination that the 15 February Deeds were 'the next best thing' to removing Mr Tiller from the lease entirely confirms that the object of doing so was not to achieve any protection for Mr Tiller, but to achieve it for Mr Nicoletti [232].

Why wasn't Mr Tiller a shareholder of Dimension? 345 If Dimension truly was incorporated, at Mr Tiller's behest, to be the vehicle for restructuring his finances, and the repository for his assets, that makes it odd that only Mr Bryce, and not Mr Tiller, was the sole registered shareholder on incorporation. The explanation for this which emerged from the evidence adduced on behalf of the respondents was that the uncertainty about whether Mr Nicoletti's help would be needed meant that it was unknown who the shareholders would have to be. 346 I do not accept that explanation. As I have said, I do not accept that there was any real uncertainty that Mr Nicoletti was going to have to help. Mr Tiller was in financial trouble and plainly needed help if he was to pay the rent and the rates and obtain Landmark's support to farm in the 2019 season. Also, even if there was uncertainty about that, it would not explain why Mr Bryce was the shareholder once the company was incorporated. Even if it was true that Mr Nicoletti was possibly going to acquire an interest in Dimension later when the nature and extent of his involvement became clear, that could easily have been arranged by the issue of further shares. There would have been no need to have Mr Bryce, and not Mr Tiller, as the shareholder from the start, especially if the purpose of incorporating Dimension was not to make it harder for creditors to recover funds from Mr Tiller. 347 The following (regrettably lengthy) excerpt from Mr Tiller's cross-examination on this point demonstrates the implausibility of the suggestion that Mr Tiller did not see a need to be a shareholder, even though supposedly he was to have an interest in the company (ts 231-233): Okay. Now, you say that you and Mr Nicoletti - this is in (e) now?---(e) Can you see (e)?---Yes. Continuing: Damian would be the shareholder until we knew who was putting what into the farms. Did he tell you that, that he wanted Damian to be the shareholder?---Yes. Did you ask him, 'Why Damian'?---No. 'Why not me'?---No. I didn't ask him that. Why didn't you ask him that?---I didn't - I just didn't. But it's your company, so why is he the shareholder of your company?---John Nicoletti wanted it set up that way. But you've got to ask him, don't you, if it's in your interests? It's your company. Why is Damian the shareholder of your company?---Well, it wasn't - it wasn't that it was specifically mine. We hadn't worked that out yet. Okay. So why weren't you also a shareholder?---Well, we could have - we could have - - - Why did you not say - sorry?---We could have issued more shares later to me, but we weren't sure what was going to - - - I know what you might have done, but what did you agree to? Why didn't you say that you wanted to be a shareholder along with Damian?---We - well, I just didn't. We - we didn't feel that it was necessary at the time. So, when you say, 'We didn't feel it was necessary', you and Mr Nicoletti?---Yes. So, you did discuss it?---We didn't discuss an arrangement. So how can you say, 'We felt it was unnecessary'?---Well, I felt it was unnecessary, and he felt it - I - I think he felt it was unnecessary. Why did you feel it was unnecessary to be a shareholder in your own company?---Because you can just issue shares whenever you like. It's - - - Well, you can't?---He can. Yes?---Yes. But you control nothing if you're not the shareholder of the company, can you?---Well, at the time I guess I still held the lease, so I controlled it through S.C & F.H Tiller. But you knew nothing about what was going to happen in the future here, did you?---I - I didn't know where my finances would lay in the future. No. You knew nothing. So, wouldn't the best thing to do, if you knew nothing, was to protect your interests by making sure you controlled the company?---Well, the company wasn't - didn't have a lease yet. That's fine, but it was intended that it would be the lessee?---Yes. So why didn't you control it?---I didn't need to at that time. Why didn't you need to?---Because I still had a lease. And when you say, 'at any time I didn't need to' - 'at the time', I mean. What do you mean by 'at the time'? Was there a point in time which you thought you would need to?---I don't understand that question. All right. You do understand that companies are owned by the holders of the shares in the company?---Yes. You understand that. And you understood it at the time?---Yes. And did you understand by this arrangement that allowing Damian to be the shareholder, that was for Mr Nicoletti's interests, wasn't it?---I wasn't - I - I - it was for both of our interests. I - I - I didn't purely think it was for Mr Nicoletti's interests. Really?---Yes. What made you think that?---Well, I wanted to - I've said in this witness statement I wanted to create - create a company structure. Right. But if you're going to do something together, which I think is what you said at paragraph 112 in subparagraph (h), if you're going to do something together, you're both in it together; you share the risk together; your name would be in the company as a shareholder, wouldn't it?---It - it - it didn't need to be. But - - -?---At that time. Why do you say, 'It didn't need to be'? I don't understand that. Can you explain to the court why your name did not need to be in the company register as a holder of a share?---It didn't need to be at the time. But why?---I had a lease. I've told you three times. But this was a company that was intended to take over the lease?---Yes. Well, at that time I didn't need to be there. So, if the company took over the lease and you're not in it, you're in trouble, aren't you, because there's nothing you can do to control that company anymore?---I don't - I don't see it that way. Why do you not see it that way?---I can still be involved if I'm not a shareholder. How do you see that?---It's - that's the way I see it. Yes. And I'm asking why do you see it that way?---Well, I - I don't know if I can explain it any - any better. So, can I take it you can't explain it?---I don't know what you're asking me. 348 So Mr Tiller could not give any plausible explanation for why he would want to set up a company structure to be the repository of his own interests in the Farms (along with an unspecified and unquantified interest of Mr Nicoletti) but would have no concern about not being a shareholder of the company. He asserted that his interests were protected by the fact that his name was on the lease but at the same time conceded that the company was to take an assignment of the lease. Then when confronted with the reality that the lease was to be transferred to a company of which he was not a shareholder, he said he did not need to be a shareholder (ts 232-233). I do not accept this evidence. It is implausible and makes no sense. 349 What does ring true from the above passage, however, is Mr Tiller's statement that 'John Nicoletti wanted it set up that way'. Also, his concession that the company was not 'specifically mine' is inconsistent with the idea that Dimension had been set up in order to restructure his assets. 350 Nor could Mr Nicoletti explain in cross-examination why, if his intention in setting up Dimension was to protect Mr Tiller's interests, he did not make Mr Tiller a shareholder of the company. He accepted that it would be consistent with that apparent wish to give Mr Tiller a share and when asked why he did not he said, 'I can't answer that question' (ts 286). 351 As for Mr Bryce, it will be recalled that his evidence was that Mr Nicoletti instructed him to 'put the company in your name for the time being' [162]. Mr Bryce assumed that if the Tiller Lease was assigned to the company and Mr Nicoletti put money in, then the share and directorship would be transferred over to Mr Nicoletti. He agreed to being the shareholder and director because he anticipated that if the company ended up being used it would be transferred and it was easier for him to set it up with him as the director and shareholder while the company was dormant. He assumed that if the company was going to be used by John Nicoletti he would transfer the share to him. 352 I accept this evidence to the extent that it indicates that Mr Bryce and Mr Nicoletti intended that Mr Bryce was merely holding the share, to be transferred to Mr Nicoletti when he was instructed to do so. It may even be that if for some reason Dimension had not taken a lease of the Farms, and Mr Nicoletti had not provided any funds, the company would have remained dormant and the share never transferred to Mr Nicoletti. But by 31 January 2019, Mr Bryce had obtained a deed of assignment of the Tiller Lease which, some time between 25 January and 3 February 2019, Mr Tiller and Dimension had executed, so the respondents were working to achieve that outcome. And it is significant that there is no mention in Mr Bryce's evidence of the possibility that the share would be transferred to Mr Tiller or that further shares would be issued to Mr Tiller. In cross-examination, Mr Bryce gave the following evidence (ts 317): So, you understood that when you received that instruction your share was held on behalf of John Nicoletti?---I assumed if the company was used by John that that share would go to John Nicoletti. And you would just distribute the share as and when he told you to and to whom he told you to?---If the company became operational I would have transferred the share to John. 353 In short, the respondents gave no acceptable explanation for why, if Dimension was set up for Mr Tiller's purposes to restructure his finances, Mr Bryce and not Mr Tiller was its first shareholder. The true explanation appeared in Mr Bryce's evidence: it was because, if Dimension became lessee of the Farms or Mr Nicoletti contributed money to it, the share would be transferred to Mr Nicoletti. I find that as at 31 January 2019 and thereafter, none of the respondents had any intention to transfer the share to Mr Tiller, or confer any interest in the share on him, or to issue any further shares to him.

Why wasn't Mr Nicoletti a shareholder or director on incorporation? 354 As for why Mr Bryce needed to be a director, Mr Tiller's evidence was that it was so that Mr Bryce could help set up the company [154]. That explanation makes no sense. There was no need for Mr Bryce to be a director in order to take the administrative step of incorporating Dimension. 355 Another question that arises is why Mr Nicoletti's name did not appear as a shareholder or director of Dimension when the company was incorporated, but he became director and shareholder subsequently, in late February 2019. The impression sought to be created by the respondents' evidence was that he was just too busy to sign forms. I do not accept that. No doubt he was very busy with the SALIC transaction at the time, but it is hard to see how he could not have signed one or two forms, which plainly Mr Bryce would have prepared and presented to him. He had enough time to hold what, on Mr Tiller's evidence, was a number of conversations with him at this time. And in any event, Mr Nicoletti ended up accepting in cross-examination that by mid-January he had time to sign forms [160]. 356 I also do not accept that uncertainty about Mr Nicoletti's involvement is a suitable explanation. As I have said, it was clear from at least mid-January, before Dimension was incorporated, that Mr Tiller would need his financial help. If there was no intention to withhold knowledge of Mr Nicoletti's involvement, one would expect him to have been a director and shareholder of the company into which he was putting money, from the start. No reason was advanced in the respondents' evidence as to why, instead, he instructed Mr Bryce to put the company in his name. I do not accept that only in late February was it clear that Mr Nicoletti would be contributing all the money so that the share should be transferred to him. It was clear from January that Mr Tiller would not be contributing anything and Mr Bryce's evidence, his emails of late January to Nova Legal, and Lawton Gillon's letter of 5 April 2019, all make it clear that Dimension was only ever going to be Mr Nicoletti's company. 357 In truth there was an intention not to reveal Mr Nicoletti's involvement. Mr Nicoletti and Mr Tiller said as much in their evidence, although, once again, their attempts at explaining why were unsatisfactory. They both said that Mr Nicoletti wished to keep his involvement with the Farms confidential. Mr Bryce's evidence confirms this [162]. So there appears to have been a consensus between the respondents that, in the words of Mr Tiller's witness statement, 'Nicko's involvement would be kept confidential' [152]. 358 Why Mr Nicoletti had that wish, and whom he wanted his involvement kept confidential from, was the subject of much dispute. I have set the evidence out above. In summary, according to Mr Tiller, Mr Nicoletti told him he did not want to do anything that would hurt the sale of his farms to the Saudis [151]. But in cross-examination Mr Nicoletti confirmed that what he said to SALIC was that he would prefer not to go back in to wheat farming. He said he did not make any promise to that effect, and there was no contractual prohibition on him going back in to farming (ts 277). He also accepted that the possibility of competition was not a matter of concern to the Saudis. Nevertheless he maintained that the possibility of him going back in to farming could jeopardise the sale 'after I told them I was only going to concentrate on my dealerships'. Yet immediately after this, Mr Nicoletti did not accept that if he told them the truth, they might not want to go ahead with the transaction (ts 278). Then Mr Nicoletti's evidence changed again, to be that he had told them he would not go back into wheat farming; that is, he spoke more categorically than just expressing a preference (ts 278). But he confirmed he was 'under no restrictions. That's all I said to them' (ts 279). Later, when asked why he did not tell the Saudis that he was proposing to go back into farming to help Mr Tiller, he said 'it didn't matter to them' (ts 280). Also, Mr Nicoletti was unable to explain in cross-examination why being a director of Dimension on 22 January 2019 would have been a problem, when he became a director on 28 February 2019 and even then the FIRB approval necessary for the SALIC sale to settle had not occurred. He was asked the question three times, twice without answering it and the third time saying 'I can't answer that question' (ts 282-283). This evidence was internally inconsistent, the inconsistencies arising in the space of a few minutes of testimony, and plainly unsatisfactory. 359 Then, when cross-examined about the setting up of Dimension, Mr Nicoletti's evidence was as follows (ts 283-284): In paragraph 85, you had said - this is when you start the ball rolling with Damian Bryce?---Correct. And you say you want a new company?---Correct. And you say that, 'It was confidential'?---Correct. What is 'it' in that context?---Yes. What is 'it'?---That the company I was setting up was confidential. Just setting up the company?---Yes. Or your involvement with the company?---No. Just setting up the company. Why was setting up the company confidential?---I don't think it was anyone's business but mine and Damian's. So, it was your involvement in the company that was confidential?---Exactly. Right. So was your involvement in the company confidential to the world or was there someone you wanted to keep it confidential from?---It was not confidential to the world. It was just a company I was setting up, helping a mate. So, who did you want to keep it from? Did you want to keep it from Landmark?---Definitely not. Did you want to keep it from the Saudis?---Definitely not. Before, you told us that you did?---I just wanted to keep that company confidential and I didn't want anybody to know, really. But you told us before that you wanted to keep it confidential from the Saudis?---I saw that jeopardising my sale. Yes?---That's all. So, I'm asking does that mean that this was to be confidential from the Saudis?---No. Definitely not. So, you were happy for them to find out?---It wouldn't have bothered me if the Saudis had have known. Well, okay. So, your evidence before about being concerned about the jeopardising the sale with the Saudis was just plainly false? It was just wrong evidence, was it?---No. Nothing was false. I just said that's how it was. That's how I saw it. All right. So, you didn't mind the Saudis finding out about this and your involvement in a potential farming company?---Well, it wasn't something that I wanted advertised, but it wouldn't have bothered me if they had have found out. Okay. So, it wasn't confidential to them?---No. 360 And this went on in a similar vein. Mr Nicoletti denied wanting to keep his involvement in the Farms confidential from anyone in particular, including Mr Caratti. He said he just wanted to keep his involvement with helping out Mr Tiller confidential generally. But as can be seen from this passage and the summary I have given of earlier passages, his evidence on the point was riddled with contradictions. Mr Nicoletti could give no intelligible reason as to why he thought confidentiality was necessary (ts 284-285). 361 On one view, the reason why Mr Nicoletti wanted his involvement in Dimension kept confidential does not matter. Intent is not an element of a contravention of s 18 of the ACL. But if I do find that he wanted his involvement kept confidential from Mr Caratti, that will affect the inherent probability that the conduct of Mr Tiller at the end of January 2019 was misleading or deceptive. Under s 140(2)(c) of the Evidence Act, it is necessary for me to take account of the gravity of that finding before deciding whether to make it. 362 With that in mind, my finding is that Mr Nicoletti and Mr Tiller did want the involvement of the former kept from Mr Caratti. I make that finding for several reasons. The first is that the explanation given for Mr Nicoletti's absence from Dimension's registers on its incorporation, that Mr Nicoletti wanted his involvement kept confidential from the Saudis, collapsed in cross-examination. Second, another explanation which implicitly arose on the evidence, that Mr Nicoletti was too busy to sign forms, also quickly collapsed. 363 Third, the collapse of those two explanations suggests that there was another explanation, which was not disclosed on the respondents' evidence, and a desire on the part of Mr Nicoletti and Mr Tiller that Mr Caratti not know of Mr Nicoletti's involvement is the obvious explanation. It is obvious because there were strong reasons for them wanting Mr Caratti not to know about Mr Nicoletti's involvement. John Caratti, to Mr Tiller's knowledge, held a great deal of animosity towards his brother, Allen. John Caratti had, after all, gone to the extent of trying to persuade Mr Tiller to let him sue Allen on Mr Tiller's behalf. And John Caratti perceived Mr Nicoletti and Allen Caratti as 'bonded'. It is likely that Mr Nicoletti knew of that perception and of the animosity. 364 Also, there was a strong commercial reason to keep Mr Nicoletti's involvement confidential from John Caratti. It was the common belief of all the parties both that the rent payable under the Farms was low and that Mr Nicoletti was well able to pay a higher rent. That meant that giving a lease of the Farms to a company in which Mr Nicoletti had an interest was a very different proposition to allowing Mr Tiller to continue with the lease under a different structure. While Mr Nicoletti had paid rent of $800,000 plus GST on the Farms himself until 2015, it is not clear that it was perceived by anyone to be below market up until that time. In any event, paying it under an arrangement which appears to have been in place since at least 2004 was one thing and paying it under a new arrangement in 2019 quite another. While I do not accept the characterisation of Mr Caratti's motives put in Harvard's opening submissions as his being 'prepared to support Mr Tiller as a struggling farmer', it may readily be accepted that Mr Nicoletti's involvement would have put a very different complexion on a proposed lease for what was believed to be below market rent. 365 Fourth, the emphasis on confidentiality in Mr Bryce's email of 21 January 2019 to Nova Legal with instructions to prepare a deed of assignment tends to confirm that Mr Nicoletti did not want Mr Caratti to know of his involvement. The email said 'Very confidentially - John is looking at taking the attached very basic lease on as the current tenant is in default and unable to pay'. So it was the plan for Mr Nicoletti to effectively replace Mr Tiller as tenant that was to be kept very confidential. It is clear from the evidence summarised above that the fact of that replacement would have been of no interest to the Saudis, and there was no real risk that anyone other than Mr Caratti would find out about it. And the explanation to Nova Legal that the desire was to take advantage of rent 'at significantly favourable rates for a long period' supports the inference that the confidentiality was designed to help achieve that outcome. It is also notable that Mr Nicoletti decided to incorporate a new company to take the lease, without his name appearing on its register, when in the past he had leased farming land from Caratti interests in his and Mrs Nicoletti's names or in the name of his established company, Apache Investments [31]. 366 I have set out the evidence about the evolution of the deed of assignment in some detail above. That is partly because it is an important indicator of Mr Nicoletti's true intentions in late January 2019, but also because counsel for Harvard spent considerable time on it in his opening. That appeared to be in order to persuade the court that Mr Nicoletti was out to protect his own interests from the start, and also to persuade the court that Mr Bryce wanted the clause about payment of the costs of the assignment removed so as to conceal Mr Nicoletti's involvement. 367 In relation to the first of these points, I am persuaded that throughout, Mr Nicoletti acted to preserve and protect his own interests and Mr Bryce acted as his adviser to achieve that end. The three bullet points in the email of 21 January 2019 probably were Mr Bryce's idea, acting in that role, and matters of detail with which Mr Nicoletti was probably unconcerned. Of course, there is nothing inherently wrong with any of that. But, it does suggest that from the outset, Mr Nicoletti's intentions were not consistent with a vague intention about 'setting up a mate'. 368 In relation to the second of these points, I am not persuaded that Mr Bryce's ultimate instructions on cl 8 of the draft deed reflect a desire to remove a reference to Mr Nicoletti's involvement. The deed would not have revealed that in any event. It is more likely that Mr Bryce just wanted to remove the issue from the deed so as to not delay a transaction which, at that time, he thought needed to be implemented urgently. 369 Finally, there is Mr Tiller's deliberate removal of the Nova Legal logo from the deed of assignment before he sent it to Mr Caratti [206]. To go through the document and remove the Nova Legal name and logo from the cover page, and the header appearing on every following page, shows that Mr Tiller was intent that Mr Caratti not know that Nova Legal had acted on the assignment. He did this when he sent the deed to Mr Caratti for Mammoth's signature, at a time after the conversations of 31 January but before Mammoth (or Harvard, or any Caratti company) had executed any document varying the arrangements that applied under the Tiller Lease. 370 Mr Tiller's explanation for this was that he was sick of Mr Caratti's intrusiveness, and removing the logo would stop Mr Caratti from telephoning Nova Legal. I do not accept that explanation. It is not difficult to believe that Mr Tiller found Mr Caratti's inquiries to be intrusive. But concealing the identity of the law firm who prepared the deed of assignment was hardly likely to limit those inquiries. And Nova Legal was Mr Nicoletti's law firm, not Mr Tiller's. If Mr Caratti had contacted Nova Legal, they would have been quite capable of dealing with the inquiries in the appropriate way. It was unlikely that it would make any difference to Mr Tiller. 371 So that unconvincing rationale does not displace the inference that arises from Mr Tiller's deliberate removal of any reference to Nova Legal - that he wished to conceal Mr Nicoletti's involvement in the transaction from Mr Caratti. At one point in cross-examination Mr Tiller appeared to concede that this would be the effect of removing the name, while denying that was his intent (ts 241): So, Mr Tiller, you deny that you removed that brand because it would have disclosed to Mr Caratti that Mr Nicoletti's lawyers had drafted this assignment?---Look, you may very well be right. But I did it for my reasons. I would be right because that's the reason you did it, or - - -?---No. - - - or that that's the impression that would - - -?---Absolutely not. 372 There is no evidence independent of this which establishes that in early February 2019, Mr Tiller knew that Mr Caratti knew that Nova Legal acted for Mr Nicoletti. But in light of Mr Tiller's concession here, equivocal as it was, it is open to infer that he did know. 373 In truth, an intention to take the lease away from Mr Tiller had been formed, probably by 21 January 2019, when the instructions on the proposed assignment were given, and certainly by 6 February 2019, when Mr Bryce told Nova Legal that Mr Tiller was going to relinquish his rights under the lease. As Mr Tiller said in cross-examination, by that point he 'didn't really have a lot of choice'. That intention was carried through to the 15 February Deeds. 374 A finding that Mr Tiller and Mr Nicoletti wanted to withhold from Mr Caratti any knowledge of Mr Nicoletti's involvement in Dimension and the Farms until the New Leases were in place and binding is the only way to make sense of all of the matters I have just set out. That is the finding I make. 375 There is one matter which might, perhaps be thought to be inconsistent with that finding, namely that the evidence of both Mr Caratti and Mr Tiller was that in the conversations of 31 January 2019, Mr Tiller told Mr Caratti that Mr Bryce had been referred to him by Mr Nicoletti. It might be asked why Mr Tiller would even mention Mr Nicoletti, if he wanted to conceal his involvement. But one explanation may be that Mr Tiller thought that Mr Caratti already knew or would find out that Mr Bryce had worked for Mr Nicoletti. After all, Mr Bryce is likely to have been exposed to a large number of people in the Western Australia farming industry though his work on the SALIC deal. In fact, Mr Caratti's evidence was that he did discover the connection in late March by telephoning a contact in Queensland (ts 99-100). Be that as it may, this detail does not override the inference which arises, strongly in my view, from the matters I have set out above.

The purpose of Dimension's incorporation 376 So, the respondents have proffered no satisfactory explanation for why Dimension was incorporated and why, on its incorporation, Mr Tiller was not a shareholder and Mr Bryce and not Mr Nicoletti was a shareholder and director. And I have found that Mr Tiller and Mr Nicoletti did not want Mr Caratti to know about Mr Nicoletti's involvement. In that context, I take Mr Bryce's correspondence with Nova Legal of 21 to 25 January 2019 at its face value, as providing the true explanation for the incorporation of Dimension. He was, after all, communicating confidentially with Mr Nicoletti's lawyers on an occasion of privilege, so there was no reason for him to have been anything less than frank with them. 377 I have described that correspondence above. It indicated that a notice of default had been served under the Tiller Lease. 'John' - Mr Nicoletti - wanted to take an assignment of that lease to take advantage of the 'significantly favourable rates for a long period'. He needed to do that within 14 days, so that the lease was not terminated and the favourable rates lost. Dimension was then incorporated the day after that correspondence started, and Nova Legal was instructed that Dimension should take the assignment of the lease. 378 I find that Dimension was incorporated as Mr Nicoletti's vehicle for that transaction. I do not accept Mr Tiller's evidence that incorporating Dimension was his idea, or that it was formed for the purpose of restructuring his finances. The specificity of the purpose for which Dimension was formed, as revealed in Mr Bryce's first email to Nova Legal, also belies the evidence from Mr Nicoletti and Mr Tiller that the structure was set up at a time when the extent and nature of Mr Nicoletti's involvement in the Farms was uncertain. It is implausible, in any event, that they would set up a corporate structure for their joint use at a time when, according to their evidence, they had not reached a consensus in even the broadest terms about what the arrangement would be; not even whether Mr Nicoletti would be a lender, or a shareholder, or would somehow have an interest in the lease. I do not accept that they set it up, with Mr Bryce as shareholder, just in case it was needed and just in case Mr Nicoletti needed to get involved. Even though Mr Nicoletti's evidence of their initial discussions was that he and Mr Tiller would 'work out our arrangements later', shortly after that, and with no explanation in the evidence, he was telling Mr Bryce that he was looking at getting involved in a new lease [161] and Dimension was incorporated to be his vehicle for that. 379 Mr Tiller's attempts to get his name off the lease, and the preparation and execution of the 15 February Deeds, provide further confirmation of this intention. The deeds effected a comprehensive renunciation by Mr Tiller of his interests in the Farm. In providing that Mr Tiller must not interfere with or affect Dimension's activities on the land under the New Leases, the deeds effectively prohibited Mr Tiller from having any control over or input into the operations of the Farms. I will make findings below about the respondents' argument that the 15 February Deeds had no legal effect. But regardless of that issue, there was no suggestion that they were shams and no evidence that they were inconsistent with the parties' actual intentions at the time they were executed. 380 The 15 February Deeds were executed just over two weeks after 31 January 2019, so it can be inferred that they gave effect to an intention that existed at the time of the crucial conversation between Mr Tiller and Mr Caratti. And Mr Bryce's email of 6 February 2019, in which he instructed Nova Legal that he and Mr Nicoletti wanted Mr Tiller to relinquish his rights under the lease and that Mr Tiller was happy to do so, shows that the intention had in fact been formed earlier than the time of execution of the 15 February Deeds. I have noted how there was curious disconnect between the deeds and the evidence given by Mr Tiller and Mr Nicoletti; certainly their evidence contains nothing to suggest that there was some change of circumstance or change of heart between 31 January and 6 February or 15 February. 381 Mr Tiller was cross-examined on his understanding of the purpose of the 15 February Deeds as follows (ts 250-251): It says that: With effect from the date of this deed, Simon assigns Dimension all of Simon's estate rights/title interests which he may be entitled to pursuant to the lease agreement or in respect of the land the subject of the lease agreement. Effective from the date of the assignment; was that true?---I didn't read it. Is that what you were intending to do?---I - I told you, I didn't read that bit. I know, but I'm asking is that what you intended?---I intended to try and protect myself from, you know - and protect the company. And how were you going to do that by this document?---I don't - I don't know what - what to say to that. I - I - this - this document was signed by me to protect Dimension Agriculture from - if - in case I went bankrupt. Yes, and if that's the purpose someone would have explained to you how that purpose would be given effect. Someone would have said, 'Well, look, this is how it works, Simon.' No one did that?---No. And yet you signed it anyway?---Yes. I signed it. I signed a lot of things. Okay. Did you sign it because at the top it says Deed of Assignment and Release? You were happy to relinquish your interest. That's what you tried to do. John Caratti pushed back on that, but this was a way to get the outcome?---I - I don't know. I don't think so. Sort of looks like Mr Nicoletti arranged for this so that he could protect his interests?---That might be so. And so, he was saying, 'Well, I'm now Dimension Agriculture. You're out.' That's really what he's doing here, isn't it?---There was a - there was a high likelihood that I would be wound up bankrupt. Yes, but that's certainly the picture - the impression you wanted to convey to a bank like Landmark, wasn't it?---I - I don't know what you mean. I was still hopeful that Landmark would fund me. But this document, if it had a purpose, was to give someone an impression, wasn't it?---I - I don't think so. I don't - I wasn't - what - what - - - So, what's its purpose? Why would anyone go to the trouble of drafting this up - saying all these things? Someone must have been instructed about it. These words are deliberately chosen. What's the point of all of that if it means nothing?---I don't know. 382 Once again, Mr Tiller had no satisfactory answer to the questions he was asked. His suggestion that the purpose of the document was to protect himself and protect Dimension Agriculture from his bankruptcy did not survive scrutiny and he ended up saying he did not know what its purpose was. None of this evidence is capable of derogating from the conclusion that the purpose of the document, that is, the subjective purpose for which Dimension, as represented by Mr Bryce and Mr Tiller, and Mr Tiller himself entered into the 15 February Deeds, was to ensure that Mr Nicoletti, through Dimension, had sole control of the Farms. That purpose is evident on the face of the documents. It had not been possible to achieve it by assigning the Tiller Lease to Dimension or by taking Mr Tiller's name off the New Leases. So, four days after the execution of the New Leases, Mr Bryce gave instructions for the preparation of what were to become the 15 February Deeds, and three days after that they were entered into in order to achieve the same result: Mr Nicoletti was to control the Farms and Mr Tiller was not. 383 While Mr Tiller's circular letter to creditors of 20 February 2019 sought to create the impression that he was optimistic about trading his way out of his difficulties, he had an incentive to say that so that no creditor would take precipitous action against him, and the reality was very different. Similarly, he also appears to have tried to create that impression in his meeting of 7 March 2019 with Landmark (see [255] above). But in the same meeting, he referred to Mr Nicoletti only as a potential investor; this at a time when Mr Nicoletti had already contributed at least $640,000 to the liabilities of the Farms. 384 The consistency of purpose, if not of methods, displayed by the respondents between 21 January 2019 (Mr Bryce's first instructions to Nova Legal) and 15 February 2019 further supports the inference, which I make, that as at 31 January 2019, Mr Nicoletti and Mr Tiller had reached an understanding that the Tiller Lease would be assigned to Mr Nicoletti by way of a company, Dimension, which had been incorporated as the vehicle to take that assignment. It can be inferred that this was in return for Mr Nicoletti discharging Mr Tiller's debts in relation to the Farms, thus giving him a chance of avoiding bankruptcy. There was nothing in the understanding which gave, or would give, Mr Tiller any interest in the sole issued share. Mr Nicoletti's and Mr Tiller's intention was at all times from at least 21 January 2019 that Mr Nicoletti would own and control Dimension and have control of the farming operations conducted pursuant to the Tiller Lease or, as it turned out, the New Leases. 385 It is not necessary to make a finding as to precisely how that would be achieved or structured. It may well be that the passing of control was conditional on Mr Nicoletti providing the funds to help get Mr Tiller out of his financial straits. But it was certain that it would need to happen, and that after that, farming on the Farms would be Mr Nicoletti's to control.

Issue (1): what was said in the conversations of late January 2019? 386 The first alleged instance of misleading conduct is comprised of express representations made in what is said to be the second conversation between Mr Tiller and Mr Caratti on 31 January 2019. The immediate context for that conversation includes the first alleged conversation on that day, and the conversations said to have taken place on 22 January 2019. 387 In making findings about those conversations, I have kept in mind the well-known caution which McLelland J expressed in Watson v Foxman (1995) 49 NSWLR 315 at 318, that in misleading conduct cases based on spoken words, it is necessary that 'the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances'. I have also kept in mind that while I may need to choose which of the two accounts of the conversations I prefer - Mr Caratti's or Mr Tiller's - that is not the test. The test is whether I feel an actual persuasion that the representations alleged in the SOC to have been made were, in fact, made: see Watson v Foxman at 319. 388 I have made a number of findings in the previous section about the context in which the conversations of 22 January and 31 January 2019 took place. Mr Tiller was experiencing serious financial difficulties. He had separated from Mrs Tiller in March 2018, but the split was amicable and they had not divorced [134]. Everyone concerned thought that the rent under the Tiller Lease was very favourable. By 22 January 2019, Mr Nicoletti, through Mr Bryce, had initiated a process intended to result in Dimension becoming the lessee of the Farms as a corporate vehicle for Mr Nicoletti. Mr Nicoletti and Mr Tiller did not want Mr Caratti to know about Mr Nicoletti's involvement. 389 Further, although Mr Caratti had been advised that the rent under the Tiller Lease was low, he had also been advised that Mr Tiller was maintaining the Farms well and had made improvements on them [138]. And according to Mr Vaughan's evidence, which I have accepted as truthful, Mr Caratti told him at the time of his appraisal visit in June 2018 that there was nothing he could do about the fact that he was receiving under-market rent, because he was committed to the lease with Mr Tiller [137]. 390 Apart from knowing about the history of late payment under the Tiller Lease, Mr Caratti had been informed of rumours about repossession of Mr Tiller's machinery (albeit Mr Tiller told him it would be returned), and the negotiation of terms on goods supplied on account [138], [140]. Most acutely, Mr Caratti knew that Mr Tiller was having difficulties in paying Shire rates on the Farms and that he had defaulted on an instalment arrangement with the Shire. The default notice under the Tiller Lease had been served. 391 In that context, Mr Caratti was having trouble making contact with Mr Tiller. I accept his evidence that he had called Mr Tiller multiple times without speaking to him, and only ended up getting a message through after tracking Mr Tiller's mother down, via Landmark [145]. Mr Caratti said he was concerned about non-payment of rates and I also accept that. If the rates were not paid, he would need to decide whether to take the drastic step of evicting Mr and Mrs Tiller from the land. Even if it is assumed that Mr Caratti only had his own interests in mind, he must have realised that whether he took that step or not, there was a serious risk that Mammoth or the registered proprietors of the Farms would have to pay the rates to the Shire themselves and would be pursuing the Tillers for that and for unpaid rent.

Findings on the alleged conversation of 22 January 2019 392 I accept Mr Caratti's evidence that he had a conversation with Mr Tiller on 22 January 2019, during which Mr Tiller gave figures as to his crop harvest and livestock and wool sales, and said that his marriage had broken down and that he was worried because the partnership with Mrs Tiller owned everything. That is mainly because his evidence is consistent with the diary note he kept, and that diary note is comprised of brief snatches of things said, and so appears to be the very sort of note that one would take during the course of such a conversation. There is nothing in Mr Caratti's account of the conversation which is self-serving or suggests embellishment. 393 Also, it is common ground that Mr Caratti gave Mr Tiller a recommendation for a divorce lawyer in or soon after the conversation, which indicates that the subject of the marriage breakdown was indeed discussed. In his evidence-in-chief Mr Tiller said that he had told Mr Caratti about his separation in March 2018. That is probably correct; Mr Caratti's diary note from that time saying that Mrs Tiller was living permanently in Albany is mentioned above. But his diary note of 22 January 2019 says 'Ex Mrs trouble - wants a divorce' (TB 80). So it is likely that even if Mr Caratti was already aware of the separation, what Mr Tiller told him on 22 January was that Mrs Tiller wanted a divorce, and that this was causing him concern about the ownership of his farming assets. 394 Mr Caratti described as 'totally false' Mr Tiller's evidence that he had told Mr Caratti that he had been speaking to farmers about financial backing, one of whom was Mr Nicoletti. I find that Mr Tiller did not say that or otherwise mention Mr Nicoletti in this conversation. For reasons I have given, I consider that Mr Tiller did not wish to disclose Mr Nicoletti's involvement to Mr Caratti. Even if he had been prepared to disclose that he had been talking to farmers about financial backing, it is unlikely that he would have chosen to name the one farmer whose involvement he had been asked to keep confidential. It is also unlikely he would have wanted to give Mr Caratti any detail about his financial difficulties at this time, or about what he was doing to try to fix them. That could very well have prompted Mr Caratti to terminate the lease pursuant to the default notice. And given the context I have set out, if Mr Tiller had mentioned Mr Nicoletti, that would have been likely to have been mentioned in Mr Caratti's diary note, and Mr Caratti would not have passed over it in silence, as Mr Tiller's evidence suggested he did. 395 So Mr Tiller's account of the conversation was inherently improbable. Mr Caratti's was not, and is supported by a diary note and the limited common ground between the two witnesses. I do not accept Mr Tiller's evidence about the conversation of 22 January 2019, save where it is consistent with Mr Caratti's, and I do accept Mr Caratti's evidence about the conversation.

Findings about the conversations of 31 January 2019 396 I also accept that Mr Caratti had two telephone conversations with Mr Tiller on 31 January 2019. There is a diary note of the first conversation which I have set out above at [189]. Once again, it appears to have been jotted down during the course of the conversation, and does not contain anything that is self-serving or implausible. And there is a company search bearing that date, which is the very sort of thing that one would expect Mr Caratti to perform once he had been told about Dimension. While there was no diary note of the second conversation in evidence, it is inherently likely that Mr Caratti called Mr Tiller back after seeing the name of Damian Bryce on the search, which was unknown to him. Mr Tiller's recollection of these conversations was too imprecise to gainsay that basic sequence of events, and nor did he seek to. 397 Based on the commonality between the evidence of these two witnesses which I have described, on the diary note, and on the performing of the subsequent company search, I find that in the first conversation Mr Tiller referred to his accountant in Adelaide, and he said that Dimension Agriculture had been set up as an entity that would be the basis of a new structure for the Farms, which would require new leases and would be the repository for the assets of the farming business in place of the SC & FH Tiller partnership, and that this was made necessary by the impending divorce and the need to 'get everything away' from Mrs Tiller. Mr Tiller also told Mr Caratti that he had already delivered crop into Dimension Agriculture's name, and that the crop for the year was valued at about $8 million. That is all consistent with the diary note. In the context I have described, it is likely that all these things implicitly conveyed to Mr Caratti that Mr Tiller had set up Dimension to be his company and to be the new structure within which his farming assets would be held. 398 It is also common ground, as noted earlier, that Mr Caratti asked Mr Tiller who stood behind Dimension. How Mr Tiller responded to that question is central to this case. Mr Caratti's evidence was that he said 'It's all me. I totally own and control Dimension'. I do not accept that Mr Tiller answered in such emphatic terms. It is not recorded in the diary note and does not ring true. If Mr Tiller did say that, he was rather protesting too much, given that there is no suggestion in the evidence of either witness that anyone else had been mentioned in the conversation. He had already implicitly conveyed to Mr Caratti that it was his company. This is an instance of Mr Caratti embellishing his evidence. 399 Mr Tiller's evidence as to his response was that he said it was none of Mr Caratti's business and it did not matter who was behind Dimension and that all he had ever cared about in the past was whether the rent was paid on time [197]. While that is not inherently implausible, I do not accept that it happened. Mr Tiller was cross-examined on the apparent inconsistency between that reaction on 31 January, and his evidence that on 22 January 2019 he told Mr Caratti that Mr Nicoletti was one of the farmers to whom he was speaking. Mr Tiller sought to explain this by saying that he was 'sick and tired of John Caratti' by 31 January: 'He was asking me a lot of personal questions and during the course of that week, he had rang a number of my financiers, badgering them, and I was just absolutely fed up with him, actually' (ts 238). But he could not explain why, if he wanted to end Mr Caratti's questioning, he did not just remind him that he had already told him that it was John Nicoletti who was going to provide financial backing. He just said, 'I was pretty agitated in the conversation and it was a long one' (ts 238). But the question of who was behind Dimension was hardly a minor point he could hope to gloss over. 400 Most importantly, Mr Tiller's evidence about what Mr Caratti said after he was told it was none of his business who was behind Dimension is implausible. Mr Caratti is supposed to have said words to the effect 'yeah as long as the rent and rates are paid I don't care who's behind Dimension'. That is an unlikely thing for any prudent landlord in Mr Caratti's position to say, and on the basis of all the evidence about Mr Caratti's conduct, and my observation of him in the witness box, it would be most uncharacteristic of him. Plainly he did care, because he performed a company search immediately after this conversation and, it is common ground, asked Mr Tiller about what the results revealed. And Mr Tiller's evidence that he was sick and tired of Mr Caratti for badgering his financiers and others during the preceding week only adds to the implausibility of the idea that Mr Caratti would say he did not care who was behind Dimension. 401 The cross-examination of Mr Tiller included this exchange (ts 238-239): And you say that he said, 'I don't care who's behind Dimension'?---Yes. And you were proposing Dimension would take over completely from the partnership and the farming operations, which is what you've said in (a)?---That's what I was wanting to do. Yes. And you say that he doesn't care who's going to do that?---He just wanted his money. Well, how does he even know he's going to get the money if he doesn't know who's behind you?---I had already told him. Who did you tell him?---Sorry? Who did you say?---I told him on the 22nd it was Nico. Okay. So why, if you said that - again, I will ask why, if you said that, wouldn't you just be open with him if he said it again?---I don't know. It's the honest thing to say, isn't it?---He already knew. So, if you already knew, it doesn't make much sense then, for him to say, 'I don't care who is behind Dimension.' That makes no sense at all, does it?---I don't know, I don't know - I can't see what the problem is. Well, what I'm trying to put to you, Mr Tiller, is that your recollection makes no sense at all?---Why doesn't it make sense? You're unable to explain why you weren't just open with Mr Caratti when he asked you again, and your explanation is inconsistent with a statement that you say he said, 'I don't care who's behind Dimension.' Well, if he knows it's Mr Nicoletti, why would he say, 'I don't care who's behind Dimension.'?---I don't know even why he asked me. 402 The impression I formed was that Mr Tiller was feigning incomprehension of the point of the questions in an attempt to evade the obviously unsatisfactory nature of the answers he was giving. I agree with cross-examining counsel that Mr Tiller's recollection of the conversation made no sense. 403 I find that when Mr Caratti asked Mr Tiller who was behind Dimension, Mr Tiller said, in substance, that Dimension was his company. That is consistent with the lack of mention of anyone else in Mr Caratti's diary note and with what I have already found was implicitly conveyed by Mr Tiller saying that Dimension had been set up on the advice of his accountant to be the repository of the partnership assets. It is the only answer which, plausibly, could have caused Mr Caratti to continue the conversation without protesting that he needed to know who was behind it, and it is common ground that he did not protest in this way. It is also consistent with Mr Tiller's wish not to disclose Mr Nicoletti's involvement. 404 Mr Tiller also gave evidence of Mr Caratti asking about Mr Bryce but, as I have said, Mr Tiller's evidence did not distinguish between the two conversations of 31 January 2019. In my view Mr Bryce is likely to have been mentioned in the second conversation, after the company search with his name on it, so I will deal with that below. It is possible that Mr Tiller's evidence that he told Mr Caratti that it was none of his business who was behind Dimension was intended to be a response to the question about Mr Bryce, but it is more clearly responsive to the question about who was behind Dimension. In any event, I have found that this response was not given. 405 Staying with the first conversation of 31 January 2019, Mr Caratti's evidence was that the conversation continued with Mr Tiller saying that he wanted Dimension to take on the lease and he wanted all the lease terms to remain the same. I accept that; it is consistent with the diary note and with Mr Tiller's intentions at the time. Mr Caratti's evidence was also that he said it would be OK provided Mr Tiller remained on the Farms and ran the Farms and remained on the lease as the tenant in an individual capacity and he said 'I am backing you here, Simon'. While I accept that Mr Caratti indicated general assent to the 'restructure', I am not persuaded he said those other things. They are not mentioned in the diary note, and Mr Tiller's subsequent attempt to pass off the removal of his name from the lease as a 'minor' amendment suggests that the message had not been communicated to him at that point. It is likely that this part of the evidence is also embellishment on Mr Caratti's part. 406 I am also not persuaded that the rest of the conversation proceeded in the way that Mr Caratti's evidence said it did: see [188] above. None of that detail appears in the diary note. Nor did Mr Caratti remember it when he was cross-examined in a non-leading way on the conversation (ts 113). It would appear that Mr Tiller did not agree to accelerated payment of the final arrears instalment of $140,000 because when that was proposed in the first draft of the surrender of the Tiller Lease, a counter offer was made for only half of that amount to be paid, which was accepted without apparent demur [210]. Also, Mr Caratti's supposed question as to where Dimension would find the money to meet costs is inconsistent with his other evidence that Mr Tiller had said Dimension was his company, and that he had had a very good year. This is another instance of embellishment on Mr Caratti's part. 407 The first conversation ended and Mr Caratti performed a company search of Dimension. It showed Mr Tiller and Mr Bryce as directors and Mr Bryce as sole shareholder. Mr Caratti called Mr Tiller back. 408 I have set out Mr Caratti's account of the second conversation at [191] above. There is no diary note of the conversation. I do not accept that Mr Caratti remembered it word for word, despite the indication from the use of direct quotes in his witness statement that he did. But no doubt he did say, in substance, that he had performed a company search of Dimension, and asked who Damian Bryce was. And Mr Tiller replied saying that Mr Bryce was an agricultural consultant. Mr Caratti's evidence was that he then asked Mr Tiller how he found Mr Bryce, and Mr Tiller said that Mr Nicoletti referred him. All of this is, in effect, common ground between the witnesses because Mr Tiller's evidence was, similarly, that Mr Caratti asked who Mr Bryce was and he (Mr Tiller) said he was a farm consultant who had been referred to him by Mr Nicoletti. 409 Mr Tiller's evidence suggests that Mr Caratti responded to the mention of Mr Nicoletti by asking why Mr Bryce was a director of Dimension. That is unlikely. It is much more likely that Mr Caratti asked whether Mr Nicoletti was involved. That is so because of John Caratti's perception of Mr Nicoletti as being bonded to Allen Caratti, and given that John Caratti would not have been content to see Mr Nicoletti benefit from the low rent under the Tiller Lease. In short, the reasons I have identified above for Mr Tiller and Mr Nicoletti not wanting Mr Caratti to know about Mr Nicoletti's involvement are the same reasons why Mr Caratti would not have let any mention of Mr Nicoletti pass without further questioning or comment. 410 So Mr Caratti did ask about Mr Nicoletti's involvement. But involvement in what? Mr Caratti's evidence was that he asked 'is Nico getting involved in any of this'? While I do not accept that Mr Caratti remembered the precise words used, I do accept that this was the substance of his question. It would have been an unnaturally specific way of putting the question if he had asked, for example, whether Mr Nicoletti was getting involved in Dimension, or the Farms, or the New Leases. It is more likely, and I find, that Mr Caratti posed the question in that general way. 411 It is inherently probable that Mr Tiller answered in the negative. That is the only answer which is consistent with the fact that on neither witness's version of events did Mr Caratti protest or question Mr Tiller about the precise nature of Mr Nicoletti's involvement. In all the context I have outlined, that could only be because he was told that Mr Nicoletti had no involvement. 412 In cross-examination Mr Caratti's account of this key part of the conversation was different from his witness statement. According to the witness statement, he asked 'is Nico getting involved in any of this?' and Mr Tiller replied 'Absolutely not'. According to the cross-examination Mr Caratti asked, 'Well, what has Nico got to do with this?' and Mr Tiller replied 'Absolutely nothing' (ts 114). In response to a specific question Mr Caratti emphatically confirmed that those were the exact words that were used. He is recorded in the transcript as saying 'That's one that is very concise in my head' (in fact he must have said 'precise'). 413 Now, that was incorrect. The words were not precise in Mr Caratti's head, because his witness statement gave different words. This is an example of why, despite the categorical nature of Mr Caratti's answers in cross-examination, I have approached his evidence with caution. There is no basis on which I can choose between his two different accounts of the conversation, and find that one but not the other (or some third combination of words) is correct. 414 But in this case I do not need to. That is because, even having regard to the caution in Watson v Foxman, the differences of detail do not lead to any difference of substance. That case does not stand for any principle that an applicant relying on oral statements must fail unless the precise words used are proven on the balance of probabilities. McLelland J's observations were framed to take account of the fallibility and imprecision of human memory. At 318-319 his Honour said (emphasis added): it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. 415 Section 18 of the ACL is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested. The test is objective and the court must determine the question for itself: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 87. It is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. So what was conveyed by Mr Tiller's answer to Mr Caratti's question is to be assessed objectively in light of all the context, by reference to what a person in Mr Caratti's position is likely to have understood it to mean. 416 Here questions of subtle nuances or qualifying words do not arise. Whether Mr Tiller's answer conveyed that Mr Nicoletti was not 'getting involved in any of this', or whether his answer conveyed that Mr Nicoletti had nothing to do with 'this', the effect is the same. In the context I have described, 'this' must have referred to the putative transaction that was under discussion, whereby, in order to deal with the consequences of the breakdown of Mr Tiller's marriage, the assets of the partnership, including the leasehold interest in the Farms and the farming business run on the Farms, would be transferred to Dimension. (I have not found that Mr Caratti had said that Mr Tiller's name must remain on the lease and he would need to keep working the Farms.) So, saying that Mr Nicoletti was not getting involved in that proposed transaction, or saying that he had nothing to do with that proposed transaction, meant the same thing. It meant that Mr Nicoletti had no involvement with Dimension and if the transaction proceeded in accordance with the proposal as it stood at the time of the conversation, he would have no involvement with the lease or Dimension or its activities on the Farms. 417 For the reasons I have given, it is inherently probable that an exchange to that effect took place. That must, of course, be understood subject to the fact (as was common ground) that Mr Tiller had said Mr Nicoletti had referred Mr Bryce to him. 418 Counsel for the respondents submitted that I should take account of what he said was the omission by counsel for Harvard to put to Mr Tiller Mr Caratti's version of the conversation. Counsel for the respondents acknowledged, properly, that he was not in a position to submit, on the basis of the rule in Browne v Dunn (1893) 6 R 67, that it was not open to make findings adverse to his clients. That was because the respondents' witnesses were all respondents in their personal capacity. They were aware of the allegations Harvard was making and took the opportunity to provide witness statements responding to Mr Caratti's main statement. But in any event I am satisfied that cross-examining counsel questioned Mr Tiller in sufficient detail on his evidence about the key points concerning the conversations of 31 January 2019 - his evidence that Mr Caratti already knew that Mr Nicoletti was involved and said he did not care who was behind Dimension - that there was no need for counsel to systematically put Mr Caratti's version of the conversation to him. 419 Nevertheless, the respondents advanced two reasons for doubt about whether Mr Tiller did deny that Mr Nicoletti had or would have any involvement with Dimension, the lease or the Farms. One was that, in contrast to the telephone conversation of 22 January 2019, and the first conversation of 31 January 2019, Harvard produced no diary note of the second conversation of 31 January. When cross-examined about that, Mr Caratti just said that he did not put every conversation in his diary. He gave no more specific explanation, such as that he didn't have his diary with him at the time of the conversation, and given that he had the company search in front of him when he telephoned Mr Tiller back it is unlikely that any such explanation is available (ts 114). Harvard submitted that the very absence of a diary note points to the veracity of Mr Caratti's evidence, as it means that there was no attempt to prepare a self-serving note late on. That may be, but there are numerous diary notes of Mr Caratti in evidence which suggests that he was an assiduous note taker, and the absence of one for this most important conversation, when he was probably in a position to make one, is curious. 420 The other reason for doubt about Mr Caratti's evidence is that Hotchkin Hanly's letters of 25 March 2019 and 2 April 2019 to the respondents and their solicitors did not mention this key exchange. I have set out the relevant parts of the letters above (see [266], [276]). In the first, the claim was that Harvard was misled by a representation that Mr Tiller would continue to operate the farm himself, with the new company simply replacing Mrs Tiller, or by a subsequent statement that he was in such financial trouble that this earlier 'promise' could not be kept. The letter said that either Harvard had not been informed at the time it decided to enter into the new arrangements with Mr Tiller that there was a significant risk he could not continue to operate the Farms himself, or that Mr Tiller now (i.e. as at 25 March 2019) wanted to relinquish control. There is no claim of any express representation that Mr Nicoletti would have no involvement in anything. 421 In the second letter, Hotchkin Hanly presented the results of further investigations which drew the link between Mr Nicoletti and Mr Bryce and alleged, in effect, that Dimension had been incorporated with Mr Bryce as shareholder and a director, as a vehicle for Mr Nicoletti's involvement and so as to conceal that involvement from Mr Caratti. But even then, there was no mention of an express representation about Mr Nicoletti. Rather, it was put that Mr Tiller explained to Mr Caratti that he needed to replace his wife with a company to conduct the farming operations, but 'deliberately withheld' the fact that it was intended to be a vehicle for Mr Nicoletti to take over those operations. And yet, by the time of trial Mr Caratti said he had a 'precise' recollection of Mr Tiller having made an express representation that Mr Nicoletti was not involved, in emphatic terms. If so, it is strange that these letters did not mention that express representation but rather put a case of non-disclosure. 422 The lack of a diary note may be explicable on the simple basis that people do not always behave consistently. That was the essence of the explanation Mr Caratti gave in cross-examination. The absence of any mention in Hotchkin Hanly's letters of the express representation that Mr Nicoletti was not involved is harder to explain. Mr Caratti could not give any coherent explanation in cross-examination. 423 But at least in a civil case, the trier of fact is not required to make findings only when they are consistent with every aspect of the evidence. While the lack of mention of the express representation in the letters is troubling, I am still persuaded on the balance of probabilities that Mr Tiller did answer a question as to whether Mr Nicoletti was involved in 'this' in the negative. That is inherently likely, because it is common ground that Mr Tiller said that Mr Nicoletti referred Mr Bryce to him, because Mr Caratti is bound to have asked whether Mr Nicoletti was involved, because I have found that Mr Tiller did not want to disclose that he was involved, and because no protest or further questioning from Mr Caratti about Mr Nicoletti ensued. 424 A recurring theme of the respondents' case was that Mr Caratti's claim about these representations was a fabrication which Mr Caratti constructed so that he could obtain vacant possession of the Farms and obtain higher rent from the Fowlers. Certainly that would be the effect of the orders Harvard seeks, and no doubt Mr Caratti wants to achieve that result. 425 Nevertheless, the respondents' theory faces the problem that Mr Caratti believed from at least the time of Mr Vaughan's appraisal in June of 2018 that the $800,000 per year plus GST that the Tillers were paying was significantly below market. And Mr Caratti had an opportunity to terminate the lease at least from the expiry of the period for remedy under the default notice concerning the rates, that is 1 February 2019, and he did not take that opportunity. 426 It is not necessary for me to find that Mr Caratti was motivated by altruism or benevolence in order to explain that. It is relevant to note that Mr Tiller was maintaining the Farms well, which was no doubt important to Mr Caratti. It is also relevant to note that Mr Caratti appeared to consider himself bound to the lease, because he said so to Mr Vaughan. But in my view the main explanation for Mr Caratti's tolerance of Mr Tiller's defaults is that a prudent landlord of farming land would behave that way. Mr Caratti said that while Mr Tiller was late, he always paid (ts 125). He gave evidence that he had granted payment extensions to farming tenants numerous times, and 'What it always boils down to is that a wool cheque hasn't come in, or a wheat payment hasn't come in, or the crop hasn't been good. There's different circumstances' (ts 128) ([124] above is an example of this). Mr Nicoletti's evidence echoed Mr Caratti's in this regard, when he said that he had from time to time asked Allen Caratti if rent could be paid a little later, for example after harvest, if cash flow was tight. He said that from his knowledge and experience in the farming industry, that was very common, 'especially with wheat farms where the main income for the farm occurs once a year during/after harvest. If landlords wish to keep tenants, they must be flexible' (Nicoletti III, para 30). In my view, Mr Caratti was simply exhibiting that necessary flexibility. 427 The respondents submitted that Mr Caratti did not know about the extent of interest in the Farms until 14 March 2019, when he received advice from Mr Vaughan. But he had received clear advice from Mr Vaughan in June 2018, and it is likely that as a landlord with extensive rural holdings Mr Caratti was well aware of the extent of interest in his properties. In fact, as early as 2017 he said in an email that he had been approached by others in the district to, in effect, replace Mr and Mrs Tiller as tenants [131]. I do not accept that Mr Vaughan's advice of 14 March 2019 that everyone was after arable cropping land was news to Mr Caratti at that time. 428 The respondents also submitted that Mr Caratti's fear of being left out of pocket for rates, the remaining arrears instalments and, potentially, rent for the entire 2019 season explains why he did not act on the 18 January default notice. No doubt that is one important explanation. But it does not follow that the evidence about the conversations of 31 January is a fabrication. That Mr Caratti had these concerns is at least equally consistent with the view that, out of pure pragmatism (not out of benevolence towards or a preference for Mr Tiller), Mr Caratti permitted the restructure of the Tiller Lease and did not consider removing Mr Tiller and Dimension as a tenant until Mr Vaughan recommended that he look for potential tenants, as a result of concerns about Mr Tiller's financial position. 429 The respondents also submitted that Mr Caratti knew about Mr Nicoletti's involvement at least from mid to late February 2019, when Mr Tiller told him about it in a telephone conversation. But that conversation only appeared in Mr Tiller's evidence-in-chief, it is not corroborated or supported by any other evidence or surrounding circumstances, and Mr Caratti denied it took place. Given my concerns about Mr Tiller's credibility, I am not persuaded that it did take place. 430 It is true that Mr Vaughan spoke to Andrew Fowler before the formal authority to lease was provided on 27 March 2019, but it is not clear from his evidence how long before, and nor does he say he told Mr Caratti. So I do not find that this prompted the allegations of misleading conduct that were first made in Hotchkin Hanly's letter of 25 March 2019 All in all, these circumstantial matters concerning Mr Caratti's motivations on which the respondents relied are insufficiently compelling to negative the findings I have made. 431 The respondents attacked Mr Caratti's evidence that Mr Tiller mentioned another farmer in the conversations of 19 and 20 March 2019, in order to submit that Mr Caratti already knew about Mr Nicoletti's involvement. They said that there is no mention of another farmer in Mr Caratti's diary notes of the conversations with Mr Tiller (TB 137-138). However, there is mention of Mr Tiller's intention to 'sell livestock to a friend' in the second diary note (TB 138), and Mr Caratti's evidence was that this was the farmer whom Mr Tiller mentioned. Also, that Mr Caratti only found out about Mr Nicoletti's involvement at this time is consistent with the timing of the first letter from Hotchkin Hanly on 25 March 2019 (TB 144). Also, the reference in Mr Caratti's evidence of the conversation with Mr Nicoletti on 21 March 2019 to Mr Nicoletti sending men and equipment down is consistent with Mr Tiller's, Mr Nicoletti's and Mr May's evidence about when Mr May started working on the Farms (ts 188, 258, 291) (evidence to which Mr Caratti did not have prior access). Given my concerns about the credibility of Mr Tiller's and Mr Nicoletti's evidence, and given that it is inherently improbable that Mr Caratti knew about Mr Nicoletti's involvement before 21 March 2019 without saying anything about it, I find that he was not aware of that involvement before 19 March 2019, and it was not confirmed to him before 21 March 2019. 432 Mr Tiller and Mr Nicoletti both gave evidence that in their conversations with Mr Caratti in late March 2019, Mr Caratti asked them, in effect, to relinquish the Farms to him, in Mr Nicoletti's case in return for $500,000. Given my concerns about the credibility of each of these witnesses, I am not persuaded that Mr Caratti did make those requests or offers. It is quite plausible that he did, but mere plausibility is not enough. And even if he did, and even if that shows that, as the respondents submitted, he was motivated by money, that does not alter my view that in late January and early February, also essentially motivated by money, he chose not to seek to evict Mr Tiller, but to permit him to restructure, essentially on the terms of the Tiller Lease. 433 In those circumstances, it would be far-fetched to suggest that Mr Caratti, aware all along of Mr Nicoletti's involvement, chose to keep silent about it until late March 2019, when he had only a short period of time to obtain vacant possession before the start of the 2019 season. If he had truly been motivated by a desire to secure higher rent in early February 2019, his most direct course would have been to terminate the Tiller Lease then for default, giving him maximum time to re-let the Farms before the start of the season. It is true that he would have been unlikely to recover the circa $135,000 in rates and the remaining 'arrears' payment of $140,000, but given that he believed he could obtain approximately $700,000 extra rent for the first year (given Mr Vaughan's appraisal of 26 June 2018), that would have been a risk worth taking. I do not find that Mr Caratti was motivated by any desire to obtain vacant possession of the Farms before Mr Vaughan (whose evidence I accept as truthful) advised him in mid-March 2019 to gauge interest in the Farms [259]. 434 As for the rest of the second conversation of 31 January, Mr Caratti's evidence was in substance that he 'interrogated' (his word) Mr Tiller about why Mr Bryce was a shareholder of Dimension and was told that he held the share on trust for Mr Tiller, in order to keep his assets out of reach of Mrs Tiller, and that he (Mr Tiller) controlled Dimension. I accept this evidence, because it is inherently probable that Mr Caratti did ask about the results of the company search and it is likely that he focussed on the apparent incongruity between what, I have found, is the impression conveyed that Dimension was Mr Tiller's company, and the fact that Mr Bryce and not Mr Tiller was the shareholder. The explanation which on Mr Caratti's evidence was given, that Mr Bryce held the share on trust, is the only one that is likely to have satisfied Mr Caratti, and it is also consistent with the impression Mr Tiller gave in previous conversations that the object of the transaction was to remove assets from Mrs Tiller's reach. It is at least common ground between the two witnesses that there was some discussion about Mr Bryce's role, and that discussion must have satisfied Mr Caratti, as clearly he did not press it further until after the events of late March. 435 Given my concern that Mr Caratti was not above embellishing his evidence to suit Harvard's case, I do not find that other things appearing in his evidence were in fact said. Statements (purportedly rendered word for word) such as 'I am Dimension. I run the show, John' are likely to be embellishment. There is nothing in the context or the objective evidence which makes it inherently likely that Mr Tiller said that Mr Bryce would be doing all the work that Mrs Tiller previously did and I am not persuaded that this was said. 436 By the same token I do not accept Mr Tiller's account of what was said. His evidence was that Mr Caratti asked why Mr Bryce was a director, and he was satisfied by a vague answer that he was 'assisting with the business'. Given my doubts about Mr Tiller's credibility, I do not find that this was said either. Mr Tiller was cross-examined about that as follows (ts 239): You said - your evidence is, 'I said words to the effect Damian is assisting with the business.' You understand the impression that that gives someone, doesn't it?---I'm not sure what you're asking me. All right. You said previously that he was appointed a director just to set up the company, correct?---Yes. Yes. You told the court that?---Yes. Now you're saying Damian is assisting with the business?---Isn't that the same? I asked you specifically whether he was in to assist with the operation of the business and you said, no he wasn't. You said he's just there for setting up the company. And I said to you, why would you appoint a director just to set up a company. Couldn't answer that question. What I'm putting to you is, this is completely untrue. Makes no sense at all. Almost none of this conversation makes any sense, does it?---Why doesn't - I don't know what you're talking about. 437 I agree with cross-examining counsel that very little about Mr Tiller's version of the conversations of 31 January 2019 makes sense. It does not necessarily follow from this that Mr Caratti's version of events should be accepted, but for the reasons I have given on the key points it is consistent with the inherent probabilities of the situation and the common ground between the witnesses and for that reason I accept it to the extent that I have indicated.

The pleaded representations 438 It remains to be considered whether what was said in the second conversation of 31 January 2019, in the context of the other findings, conveyed any of the four pleaded representations that are alleged to have comprised the first instance of misleading or deceptive conduct. 439 It will be recalled that, using the definitions in the SOC, the pleaded representations were: (1) First Bryce representation - that Mr Bryce was a director of Dimension because he was to assist Mr Tiller by taking over all of the work previously undertaken by Mrs Tiller; (2) Second Bryce representation - that the share in Dimension held by Mr Bryce was held by Mr Bryce beneficially for Mr Tiller; (3) First Nicoletti representation - that other than referring Mr Bryce to Mr Tiller, Mr Nicoletti had no and would not have any involvement in Dimension; and (4) Second Nicoletti representation - that Mr Nicoletti would not be involved in Dimension's activities on the Farms. 440 The SOC does not purport to set out the representations word for word. It is necessary to determine whether what was said conveyed these representations in substance. 441 Harvard has not persuaded me that Mr Tiller said that Mr Bryce was taking over the work that Mrs Tiller previously did. So Harvard has not established that the First Bryce Representation was made. 442 Harvard has persuaded me that Mr Tiller told Mr Caratti that Mr Bryce held the share in Dimension on trust for Mr Tiller, in order to keep his assets out of reach of Mrs Tiller. That conveyed, in substance, the Second Bryce representation. 443 As for the other two pleaded representations, I have found that Mr Tiller conveyed to Mr Caratti that if the transaction proceeded in accordance with the proposal as it stood at the time of the second conversation on 31 January 2019, Mr Nicoletti would have no involvement with the lease or Dimension or its activities on the Farms. In substance that conveyed that Mr Nicoletti had no and would not have any involvement in Dimension, and that Mr Nicoletti would not be involved in Dimension's activities on the Farms. The qualification in the First Nicoletti Representation follows from the fact that Mr Tiller did say that Mr Nicoletti had referred Mr Bryce to him. Harvard has established that the First Nicoletti Representation and the Second Nicoletti Representation were both made.

Issue (2): Reliance on the representations of 31 January 2019 444 Harvard alleges that it entered into each of the five instruments of early February in reliance on each of the four pleaded representations. In Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413 at [19], Gaudron J said (citations removed): One of the problems most frequently encountered in the area of causation is imprecision of language. When a person claims to have taken, or refrained from taking, a particular course of action in reliance upon another's representation, the critical question, assuming the representation is one that might reasonably be relied upon, is whether, but for that representation, he or she would have taken that action. In that context, 'but for' does not signify a sine qua non or causative factor which, although necessary, is not sufficient to produce the result in question. Rather, it signifies the decisive consideration or one of the decisive considerations for taking the course of action in question. It was in the former sense that the 'but for' test was rejected as the exclusive test of causation in March v Stramare. In the sense of asking whether a representation is a decisive consideration, 'but for' is always the test of reliance. 445 Mr Caratti's direct evidence of reliance on the representations as to Mr Nicoletti's lack of involvement was limited to saying that he accepted Mr Tiller's explanation of the things discussed during the second telephone discussion of 31 January 2019, and he trusted him and believed him when he said that Mr Nicoletti was not involved in Dimension or the operation of the Farms (Caratti I, para 108). Mr Caratti gave no direct evidence at all about reliance on the representation that Mr Bryce held the share in Dimension beneficially for Mr Tiller. His evidence contained no statement that he would not have caused Harvard to execute the various instruments had any of the pleaded representations not been made, or if he had known they were untrue. 446 Nevertheless, the absence of such direct evidence is not necessarily fatal to a finding of reliance. Evidence about what a claimant would have done if a representation had not been made (or, in a non-disclosure case, if the relevant matter had been disclosed) is necessarily hypothetical and may carry little weight as being essentially self-serving: Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 at 483. The court tends to attach more weight to evidence of surrounding matters when making the assessment of the causal effect of the non-disclosure: see Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76; (2017) 348 ALR 1 at [499]-[502]. These were observations about non-disclosure cases, but similar considerations apply to a matter involving an express representation that something is not the case. 447 As the above account of the evidence shows, Harvard spent a great deal of time in this case trying to establish that Mr Caratti did not think that Mr Nicoletti was a satisfactory tenant, and that he thought that Mr Tiller was. It is necessary to assess the evidence on those and related subjects to determine whether the inference should be reached that any one or more of the three representations that have been established was a decisive consideration to Harvard's entry into the instruments of early February, in the sense that Gaudron J explained in Kenny & Good. 448 A summary of and findings on the evidence that is relevant to that question now follow. Mr and Mrs Nicoletti or Apache Investments leased numerous tracts of land from companies associated with John and Allen Caratti. That took place over a course of some 20 years, at least up to the conclusion of the SALIC transaction in 2019. From about 2004 until 2016, it included leases or sub-leases of the Farms. 449 Until about 2016, most if not all of Mr Nicoletti's dealings were with Allen Caratti. John Caratti perceived Mr Nicoletti and Allen Caratti to be 'bonded together' and that Mr Nicoletti was 'in Allen's camp'. At some point in 2016, John began managing the leases to the exclusion of Allen. I infer that by that time, or at least by May 2017, John had developed a significant degree of animosity towards Allen. I mention the latter date because that is when John Caratti sought from Mr Tiller authority to drive legal action against Allen on his behalf (TB p 389). It is not necessary to determine whether John's perceptions or animosity were well founded; what is relevant is that he subjectively held them. 450 In 2017 and 2018 the Nicolettis were in arrears for rent in relation to farms at Marvel Loch and Bullfinch. The amounts involved were significant - at one point over $600,000 - and there had been outstanding invoices that were nearly a year old. John Caratti was aware of this history. These arrears were cleared so that the SALIC sale could go through in April 2019. 451 Mr and Mrs Tiller began to sub-lease the Farms from Mr and Mrs Nicoletti from 2012. From about 2015 the Tillers paid the rent directly to Mammoth. In late 2016, John Caratti asserted to Mr Nicoletti and Mr Tiller that Allen Caratti had purported to agree on behalf of Mammoth to deductions from rent on the Farms, when he had no authority to do so. Mr Tiller's view was that the deductions had been agreed with Allen. By December 2016, John Caratti was asserting that the rental arrears on the Farms totalled $720,000. But he was pursuing Mr Tiller for that, not Mr Nicoletti. It is likely that John thought that the person who was actually to blame for the arrears was Allen. 452 The evidence does not enable the court to make a firm finding as to whether the views which, John asserted or held about the arrears in 2016 were correct. That would have required a trial within a trial, and was not necessary. But it is possible to place some weight on the undoubted fact that Mr Tiller agreed to pay the arrears. It is unlikely that Mr Tiller would have agreed to pay those amounts if the alleged arrears was nothing more than a fanciful construct on Mr Caratti's part. I find that John Caratti believed that he had at least an arguable claim that there were arrears, but that he was content to place the responsibility for paying the arrears on Mr Tiller, not Mr Nicoletti. 453 There is a conflict in the evidence about whether, in late 2016, Mr Caratti told each of Mr Nicoletti and Mr Tiller that he was glad to see Mr Nicoletti off the Farms and he did not want to deal with him again regarding the Farms, as he was unhappy about the defaults. Both Mr Nicoletti and Mr Tiller denied any conversation to that effect with Mr Caratti. In cross-examination on these alleged conversations Mr Caratti's evidence was uncharacteristically hazy (ts 149). And the idea that Mr Caratti was relieved to see Mr Nicoletti off the Farms, and said so, is inconsistent with the friendly praise which Mr Caratti gave Mr Nicoletti a couple of years afterward when they discussed the SALIC deal; both Mr Caratti and Mr Nicoletti gave evidence about that (see [147] above). It is also inconsistent with the fact that Mr Caratti ended up pursuing Mr Tiller for the arrears, not Mr Nicoletti. Given those matters and the caution with which I have generally approached Mr Caratti's evidence, I am not persuaded that he did tell Mr Nicoletti or Mr Tiller that he was glad to see Mr Nicoletti off the Farms and did not want to deal with him in relation to the Farms again. 454 I also do not accept that Mr Caratti considered that Mr Tiller was a more desirable tenant than Mr Nicoletti. The history of constant default on Mr Tiller's part that is recounted above suggests otherwise, and Mr Caratti's peremptory and aggressive emails to Mr Tiller about his defaults speak for themselves. He accused Mr Tiller of being a 'nightmare'. As I have found, Mr Caratti was ultimately prepared to be flexible about delays in payment because a prudent farming landlord needed to be. But I do not accept that he had any preference for dealing with Mr Tiller over Mr Nicoletti. I accept that Mr Caratti regarded Mr Tiller as competent as far as farming operations went, and it would have been important to Mr Caratti that the Farms were well maintained. But Mr Caratti made unconvincing attempts in cross-examination to qualify his evidence-in-chief to the effect that Mr Nicoletti was a good farmer. I also do not accept his evidence that he thought that Mr Tiller had just fallen behind in paperwork. I do not infer from the fact that Mr Caratti arranged for key man insurance on Mr Tiller [227] that Mr Caratti had any special attachment to the idea of Mr Tiller as operating the farms; obtaining that insurance was simply a prudent step to guard against the risk that the farmer of the Farms might be unable to farm them, and thus default on the lease. 455 Nor do I accept Mr Caratti's evidence that it was only in two conversations with Mr Tiller on 19 and 20 March 2019 that he learned, for the first time, that Mr Tiller was in serious financial trouble (ts 96-98). Mr Caratti had heard rumours, including through Mr Vaughan, and knew Mr Tiller had had trouble paying the rates. It cannot have been a surprise to him to have Mr Tiller's financial trouble confirmed. However nothing follows from that, other than that it reinforces my view that Mr Caratti's evidence should not be accepted unless it had independent support from other evidence or inherent probabilities. 456 I therefore do not accept the reasons advanced as part of Harvard's case as to why Mr Caratti relied on the representation that Mr Nicoletti had no and would not have any involvement in Dimension, and would not be involved in Dimension's activities on the Farms. The true reasons are the ones I have already given for why Mr Tiller and Mr Nicoletti did not want John Caratti to know about the latter's involvement with Dimension: John Caratti's animosity towards Allen Caratti and his perception that Mr Nicoletti was in Allen's camp; and his likely unwillingness in any event to allow Mr Nicoletti to take advantage of the low rent under the Tiller Lease by becoming a tenant of the Farms anew in 2019. That is why Mr Caratti asked about Mr Nicoletti's involvement, why he would not have proceeded with the early February transactions had he known of that involvement, and why the First Nicoletti Representation and the Second Nicoletti Representation were decisive considerations leading to those transactions. 457 Where does that leave Harvard's pleaded case as to reliance? As I have indicated, the SOC does plead that disputes between Caratti interests and Mr Nicoletti about various leasing matters arose, and that Mr Caratti told Mr Tiller and Mr Nicoletti that he did not want to deal with Mr Nicoletti again in relation to the Farms. But that is pleaded by way of background. The plea as to reliance on the alleged misrepresentations is not expressly based on that background. It just pleads the material fact of reliance, without any particulars. The evidence on which I have relied to make the findings about Mr Caratti's reasons was adduced without any objection as to its relevance to the pleaded case. Some of it was adduced by questions which the respondents' counsel asked John Caratti, which appeared designed to draw out evidence of his animosity towards Allen and his perception that Mr Nicoletti was 'in Allen's camp' (counsel's words) (ts 120). In all those circumstances, I do not consider that there is any unfairness to the respondents if I base my findings as to reliance on those matters. 458 Four matters need to be addressed before I state those findings. The first is that the respondents plead that Mr Caratti did not cause Harvard to enter into the relevant transactions in reliance on the alleged representations, but to obtain payment of the Rates and payment of the $70,000 that was half of the remaining arrears instalment. I have no doubt that those things were reasons why Harvard entered into the transactions. Mr Caratti negotiated to obtain some benefit from agreeing to the restructure. But unless I also find (as the respondents plead) that Harvard did not rely on the representations, the existence of those other reasons does not matter. As the passage from Kenny & Good quoted above shows, it is enough if the alleged representations comprised one of the decisive considerations. 459 The second matter is that the respondents submitted that Mr Caratti did not act for the applicant, Harvard, in his negotiations with Mr Tiller. They submitted that his evidence was that he acted for Mammoth, which was the sub-lessor of the Farms to Mr and Mrs Tiller at the time. However while that is true, it does not mean that he did not act for Harvard at the same time. The evidence was given in answer to a question as to whether he was 'acting for Mammoth at that stage as well' (ts 111). 460 More to the point is that there was a complete absence of evidence to support the plea that the alleged representations of 31 January 2019 were made to Mr Caratti on behalf of Harvard. Mr Caratti does not say that he was acting for Harvard at the time. He was a director of Harvard (TB 207) on 31 January 2019 and his evidence was that he controlled the company (ts 121). But he was a director of a number of companies (ts 121), and there is nothing about the circumstances to suggest that when he spoke to Mr Tiller he did so on behalf of Harvard. Harvard was, at that point, the registered proprietor of one of the Farms, but the direct leasing relationship with the Tillers was with Mammoth. And, as I said earlier, there was no explanation in the evidence as to why the transactions were structured so that Harvard would emerge as the direct lessor and sub-lessor to Mr Tiller and Dimension. I do not find that Mr Caratti was acting for Harvard during the conversations of 31 January 2019. 461 Nevertheless, contrary to the respondents' submission, it does not follow that there is no basis for Harvard suing on representations made on that date. There is no requirement in the ACL that an entity may only sue on a representation if the representation was made to the entity, or to a person in possession of some authority to act for the entity at the time the representation was made. Here, the representations were made to Mr Caratti, he controlled Harvard, and his state of mind when the transactions of early February were entered into may be taken to be Harvard's state of mind at that time and for that purpose. So if Mr Caratti relied on the representations to cause Harvard to do things, then Harvard relied on them too. If the necessary causal link between that and loss or damage is otherwise established, then Harvard can sue on the representations. 462 The third matter is that the question of reliance is not a substitute for the essential question of causation: see Campbell v Backoffice at [143]. As will be seen below, even if it is found that Harvard relied on the representations, it does not necessarily follow that the misleading or deceptive conduct (if that is what it is found to be) has caused loss or damage within the meaning of the relevant statutory provisions. 463 The fourth matter is that there is a question about the nature of the counterfactual that must be considered in order to establish reliance. As will be seen below, Harvard disavowed any case as based on a counterfactual, but the excerpt above from Kenny & Good shows that a counterfactual is implicit in the allegation of reliance. Were the representations decisive, in the sense that 'but for' them, the claimant would not have taken, or refrained from, particular action? The issue this raises is whether that makes it necessary to establish what would have happened if the representation simply had not been made, or whether it is necessary to examine what would have happened if Mr Nicoletti had answered Mr Caratti's question in a way that was not misleading or deceptive. 464 A similar issue was considered in Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; (2006) 67 NSWLR 341. There, a representation was made to a contractor bidding for the construction of a dam that there were no plans of a particular outlet pipe. The contractor tendered for and was awarded the project. The representation was wrong; there was a plan which, had the contractor seen it, would have shown it that a lot more excavation work was necessary than it had budgeted for. Under the contract, the risk of such additional work was on the contractor. But it claimed the additional cost of the work from its principal, on the basis of misleading or deceptive conduct. The principal argued that the correct test was to examine what would have happened but for the contravening conduct: see [26]. And because it was not a case of advertent non-disclosure, the question was whether the contractor would have acted differently had the misleading representation just not been made. The question was not whether it would have acted differently had it been told that there was a plan of the outlet pipe: see [27]. 465 Beazley JA (as she then was, Ipp and Tobias JJA agreeing) rejected those arguments. After examining the leading High Court authorities, her Honour concluded (at [54]) that there is no single immutable test for causation for the purposes of s 82 of the TPA. In the case before her, 'the question of causation is not answered by merely excising the contravening conduct from consideration and asking what the position would have been if nothing had been said': [57]. So, (at [58]): … the question for determination is whether the appellant suffered loss by the respondent's contravening conduct. That question is not answered in this case by the application of a 'but for' test: viz, what would the appellant have done 'but for' the representation. That test would involve excising the contravening conduct in a way which in this case I consider to be impermissible. 466 At [59] her Honour held: Rather, what has to be done is to ascertain what would have occurred for the respondent not to have engaged in conduct which was misleading. In my opinion, that would require that the existence of the plan be disclosed… As there was a plan, and as it contained material information, its existence should have been disclosed to the appellant … 467 In my view that is also the appropriate approach here. It would be artificial to pose a counterfactual where, in answer to Mr Caratti's question about Mr Nicoletti, Mr Tiller simply remained silent or changed the subject. It is highly unlikely that Mr Caratti would have permitted him not to answer the question. So the appropriate approach in this case is to ask, what would Harvard have done if Mr Tiller had answered the question in a manner that was not misleading? In light of the findings I have made above, Mr Tiller would have at least said Mr Nicoletti was involved in Dimension, and that if the transaction that was being proposed to Mr Caratti went ahead, Mr Nicoletti would be a director of and the only shareholder of Dimension. 468 If I am wrong as a matter of law about applying the approach in Abigroup, then a factual analysis which simply excises the misleading conduct - the negative answer to the question - would lead to the same result. If Mr Tiller had not answered the question or tried to evade it, Mr Caratti would have pursued the point until he did provide an answer which, on this counterfactual, must be assumed not to have been misleading or deceptive. Or, if Mr Tiller had continued to avoid giving an answer, Mr Caratti would have inferred that Mr Nicoletti did have some involvement. 469 So, did Mr Caratti rely on the three representations that have been established? In order to answer that question in the affirmative, it is necessary to conclude that he believed in what Mr Tiller told him. His evidence was that he did. He was not cross-examined on that evidence. Mr Caratti did not appear to be a credulous or trusting person; to the contrary, the chronology recounted above shows that he interrogated every proposition put to him and often sought independent verification of things, including through company searches and title searches. But his evidence about the second conversation on 31 January 2019, which I have accepted, is that he interrogated Mr Tiller, to an extent which, in my view, makes it likely that he was satisfied that he could believe the answers he had extracted. And his willingness to delete the clause in the New Leases which provided that bankruptcy was an event of default shows that he trusted Mr Tiller to some extent at this time. 470 I find that Mr Caratti, and therefore Harvard, did rely on the two pleaded 'Nicoletti Representations' in entering into the transactions of early February 2019. Those representations were a decisive consideration in the sense explained by Gaudron J in Kenny & Good. That is because I infer that if Mr Tiller had answered Mr Caratti's question in the non-misleading way I have identified above, Mr Caratti would not have caused Harvard and Mammoth to enter into the transactions of early February. It is not appropriate to speculate as to what Mr Caratti would have done in that situation, as Harvard advanced no case and no evidence as to that. It is enough to say that Harvard has established that it entered into the transaction in reliance on the First Nicoletti Representation and the Second Nicoletti Representation. 471 In relation to the other representation that Harvard has established - that the share in Dimension held by Mr Bryce was held beneficially for Mr Tiller - the analysis is similar. Mr Tiller conveyed that representation in answer to a question from Mr Caratti, which he would not have been able to avoid answering. A truthful answer would have, at least, disclosed that the share was not beneficially held by Mr Tiller. That would have likely led to further inquiries from Mr Caratti which Mr Tiller would not have been able to answer to his satisfaction. Mr Caratti would, at least, have been left with a level of suspicion or uncertainty about the position which would have led him not to enter into the transactions.

Issue (3): were the representations misleading or deceptive or likely to mislead or deceive? 472 Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. There is no dispute here that the alleged conduct was in trade or commerce. 473 Conduct is misleading or deceptive if it induces or is capable of inducing error: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [63]. Conduct is likely to mislead or deceive if there is a real or not remote chance or possibility of it inducing error regardless of whether it is less or more than 50%: Global Sportsman at 87. 474 I have made findings above as to the true position as at 31 January 2019 in relation to Mr Nicoletti's involvement and intended involvement in Dimension and the Farms. It follows from those findings that the three representations that have been established were misleading or deceptive or likely to mislead or deceive. 475 Mr Bryce did not hold the share in Dimension beneficially for Mr Tiller. In conveying that he did, the Second Bryce Representation was misleading or deceptive. 476 Mr Nicoletti was involved in Dimension. It had been incorporated on his instructions with the intention that it would be used as his vehicle to take an assignment of the Tiller Lease. So in conveying that Mr Nicoletti was not involved in Dimension, the First Nicoletti Representation was misleading or deceptive. And in conveying that he would not be involved in Dimension there was, at least, a real and not remote chance that the First Nicoletti Representation would induce Mr Caratti to believe, erroneously, that there was no prospect and no plan for Mr Nicoletti to become involved with Dimension. So it was also likely to mislead or deceive. 477 The Second Nicoletti Representation conveyed that Mr Nicoletti would not be involved in Dimension's activities on the Farms. It too gave rise to, at least, a real possibility that this would induce Mr Caratti to believe that there was no prospect of Mr Nicoletti becoming involved in Dimension's activities on the Farms. But there was a real prospect that he would become the sole shareholder of, and a director of, Dimension in the near future, and that he would thereby be involved in Dimension's activities on the Farms. So the Second Nicoletti Representation was, at least, likely to mislead or deceive. 478 Counsel for the respondents submitted that the exact terms of what was said were very important because if for example, Mr Caratti's question had been 'Is Nicoletti involved?' then an answer in the negative would not have been misleading or deceptive. Counsel said that was because Mr Nicoletti was not involved at that stage since at that time Dimension was 'on ice'. But if the words of the question were 'Is Nicoletti getting involved?' a negative answer might be more likely to be misleading because it could be taken to mean there was no possibility of his future involvement (ts 343). 479 But I do not accept that Dimension was 'on ice' as at 31 January 2019. It had executed the deed of assignment of the Tiller Lease by that time, or it must have done so soon after, as the deed as executed by Dimension was sent to Mr Caratti on 3 February 2019. And that latter fact confirms that the respondents were actively pursuing the proposal. And Mr Bryce's emails to Nova Legal and his evidence confirm that Dimension was to be the assignee and the only person who was going to end up owing and controlling Dimension was Mr Nicoletti. In any event, I have found that on either version of the question as recalled by Mr Caratti, the answer that Mr Tiller gave conveyed that if the transaction proceeded in accordance with the proposal as it stood at the time of the conversation, Mr Nicoletti would have no involvement with the lease or Dimension or its activities on the Farms. That conveyed the two pleaded 'Nicoletti Representations' which, for the reasons I have given, were misleading or deceptive or likely to mislead or deceive.

Issue (4): did Dimension contravene s 18 and were Mr Nicoletti and Mr Bryce involved? 480 Mr Tiller uttered the misleading statements in the second conversation of 31 January 2019, so he has engaged in conduct in contravention of s 18 of the ACL (as applied by the FTA).

Conduct on behalf of Dimension 481 Did Dimension engage in that conduct? There was no serious contest about this; the respondents directed brief oral submissions to the question and Harvard made no submissions at all. 482 Mr Tiller and Mr Bryce were the directors of Dimension at the time of the representations. It is an orthodox principle of company law that where the company is not a sole director company, the board must act collectively so that an individual director does not, without more, have authority to act on behalf of the company: Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 205. 483 But here, there was more. As at 31 January 2019, Mr Tiller had not discussed the proposal for Dimension to take the lease of the Farms with Mr Bryce, the other director. But he had discussed it with Mr Nicoletti. Mr Bryce had incorporated Dimension, and was acting as a director and shareholder on Mr Nicoletti's instructions. His wishes and Mr Nicoletti's were the same. It was necessary for someone to speak to Mr Caratti about the proposal. Since Mr Nicoletti wanted to keep his involvement confidential, and since Mr Bryce did not know Mr Caratti, Mr Tiller was the obvious person to do so. In the circumstances Mr Bryce can be inferred to have acquiesced to his co-director, Mr Tiller speaking to Mr Caratti both on Mr Tiller's own behalf, and on behalf of Dimension, the entity that was to become a lessee of the Farms under the proposal that was being discussed. It infer that Mr Tiller had (at least) implied actual authority to speak to Mr Caratti about the proposal on Dimension's behalf: see Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 583 (Lord Denning), 586-587 (Lord Wilberforce). 484 Section 139B(2) of the CACA relevantly provides that any conduct engaged in on behalf of a body corporate by a director of the body corporate within the scope of the actual or apparent authority of the director is taken, for the purposes of the ACL, to have been engaged in also by the body corporate. It is a statutory provision designed to facilitate proof of the responsibility of a corporation for the acts of its directors, servants, agents and others and discloses a legislative intention to extend, rather than limit, the liability of corporations for the actions of others: see Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408 at [281] and the authorities cited there. It was within the scope of Mr Tiller's implied actual authority to make representations to Mr Caratti on behalf of Dimension about the proposal he was putting forward. It follows that Dimension also engaged in the contravening conduct of 31 January 2019.

Were Mr Nicoletti and Mr Bryce involved in the contravening conduct? 485 Section 236 and s 237 of the ACL, on which Harvard relies, empower the court to grant remedies against a person who engaged in contravening conduct or a person involved in that conduct. 486 Under s 2(1) of the ACL: a person is involved, in a contravention of a provision of this Schedule [the ACL] or in conduct that constitutes such a contravention, if the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. 487 While Harvard pleads that Mr Nicoletti and Mr Bryce were involved in that sense, it directed hardly any submissions to the issue. It is not clear which of the four limbs Harvard says applies to Mr Nicoletti or Mr Bryce. But whichever limb it was, it is well established that in order for a person to be 'involved' for the purposes of this provision, it is necessary for the person to have actual knowledge of the essential facts constituting the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670. Besanko J summarised the applicable principles in Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449 at [335]-[336] as follows: For present purposes, knowledge may be considered to include wilful blindness. However, it does not include recklessness or negligence. In a case concerning representations, the essential elements of the contravention are the fact that the representation was made and that, in a case such as the present, it was misleading or deceptive, or likely to mislead or deceive (s 52) or was false (s 53(a) and (c)). To establish accessorial liability it must be established that the relevant person knew the representation was made and the facts which made it misleading or deceptive, or likely to mislead or deceive, or false. It need not be shown that the relevant person actually drew the conclusion that the representation was misleading or deceptive, or likely to mislead or deceive, or was false. While his Honour was referring specifically to limb (c) of the definition of involvement (as it applied under s 75B of the TPA), these principles apply equally to the other limbs. 488 Since two of the three pleaded representations concerned Mr Nicoletti's involvement in Dimension and its activities on the Farms, it is clear on the basis of the findings above that he knew of the matters that made Mr Tiller's representations misleading or deceptive. But there is no direct evidence that he knew that Mr Tiller had made the representations. 489 Harvard pleads that Mr Nicoletti was involved within the meaning of s 236 and s 237 of the ACL because it is to be inferred that he required Mr Bryce to agree to be temporarily named as a shareholder of the Second Respondent for the purpose of concealing from Mr Caratti on behalf of Harvard and Mammoth his (Mr Nicoletti's) involvement in Dimension. In the circumstances described above, that inference is open. But even if the inference were to be made, that would not be enough. What also has to be shown is that Mr Nicoletti knew that Mr Tiller told Mr Caratti that Mr Nicoletti was not involved. 490 There is simply no evidence on which such a finding could be based. Mr Nicoletti wanted his involvement kept confidential, but it does not follow that he had actual knowledge that Mr Tiller would deny that involvement if specifically asked. It may be that he told Mr Tiller to deny it. It may be that after the conversations of 31 January 2019, Mr Tiller told Mr Nicoletti what was said. But it is there is no evidence lifting any of that above speculation. Mr Nicoletti said in cross-examination that he and Mr Tiller 'always discussed and kept open discussions about everything' (ts 292), but that is too general to found a conclusion that they discussed what Mr Tiller would tell or had told Mr Caratti. And the allegation that they did discuss it was not made in the SOC or in any submissions, much less put to Mr Nicoletti or Mr Tiller in cross-examination. There was a submission that Mr Tiller was acting for Mr Nicoletti (and Mr Bryce) so that his knowledge should be imputed to them, but that was not pleaded. It is not possible to find that Mr Nicoletti knew of the necessary elements of Mr Tiller's and Dimension's contravening conduct. On that basis, the claim against him based on the conversations of 31 January 2019 must be dismissed. 491 In relation to Mr Bryce, there is even less basis to make a finding of involvement within the meaning of s 2 of the ACL. It is true that he knew that he did not hold the share in Dimension beneficially for Mr Tiller. And he knew that Mr Nicoletti was involved in Dimension and would be involved in Dimension's activities on the Farms. He was after all setting up Dimension and arranging the deed of assignment that was drafted in late January and the 15 February Deeds on Mr Nicoletti's instructions. But there is no suggestion in the evidence that he knew what Mr Tiller would say or had said to Mr Caratti. Mr Bryce's evidence, which I accept, is that the first time he spoke to Mr Tiller was in late March or early April (ts 329). 492 The SOC pleads that it is to be inferred that Mr Bryce consented to being described as the sole shareholder and a director of Dimension for the purpose of concealing Mr Nicoletti's involvement in Dimension from Mr Caratti (SOC para 22). But even if that inference were to be made, that would not be enough to make Mr Bryce involved within the meaning of s 2 of the ACL in Mr Tiller's contravening conduct. The court would also have to find that Mr Bryce knew that the relevant statements on 31 January 2019 had been made. There is no basis in the evidence to make such a finding. So the claim against Mr Bryce in relation to those representations must also be dismissed.

Issue (5): Causation and loss 493 The next issue is whether Harvard has suffered loss or damage because of the three pleaded representations that have been established.

The legislative provisions 494 Harvard relies on s 236 of the ACL, and on s 237 of the ACL, read with s 243. 495 Section 236(1) provides: If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention. 496 Section 237 relevantly provides: 237 Compensation orders etc. on application by an injured person or the regulator (1) A court may: (a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that: (i) was engaged in a contravention of a provision of Chapter 2, 3 or 4 … make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct. Note 1: For applications for an order or orders under this subsection, see section 242. Note 2: The orders that the court may make include all or any of the orders set out in section 243. (2) The order must be an order that the court considers will: (a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons. 497 Section 242 is not presently relevant. Section 243 provides: 243 Kinds of orders that may be made Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following: (a) an order declaring the whole or any part of a contract made between the respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract: (i) to be void; and (ii) if the court thinks fit - to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made); (b) an order: (i) varying such a contract or arrangement in such manner as is specified in the order; and (ii) if the court thinks fit - declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made); (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement; (d) an order directing the respondent to refund money or return property to the injured person; (e) except if the order is to be made under section 239(1) - an order directing the respondent to pay the injured person the amount of the loss or damage; (f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person; (g) an order directing the respondent, at his or her own expense, to supply specified services to the injured person; (h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent 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. 498 I have described the orders concerning possession of the Farms which Harvard sought at [26] and [27] above. They are orders of a kind contemplated in s 243, in particular s 243(a), s 243(e) and s 243(h)(ii). In any event s 237(1) gives the court a wide power to make such order or orders as the court thinks appropriate. 499 That power is, however, relevantly confined by two matters. First, in a case like the present, it only arises on the application of a person who has suffered, or is likely to suffer, loss or damage because of the conduct of another person engaged in a contravention of Chapter 2 of the ACL (in which s 18 is found): s 237(1)(a)(i). Harvard must establish itself to be such a person: s 237(1)(a); Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at [9], [35], [43]; and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at [46]. 500 Second, the order must be one that the court considers will compensate the applicant, in whole or in part for the loss or damage, or prevent or reduce the loss or damage suffered, or likely to be suffered: s 237(2); and Marks v GIO at [43]. 501 So in order to succeed in its claim in relation to the first instance of alleged misleading or deceptive conduct, namely the three representations which I have found Mr Tiller made, in substance, to Mr Caratti on 31 January 2019, it is incumbent on Harvard to establish that it has suffered, or in the case of orders under s 237 is likely to suffer, loss and damage because of Mr Tiller's and/or Dimension's conduct in making the representations.

Harvard's case as to causation of loss 502 Harvard's pleaded case as to causation of loss, as explained in written submissions is as follows. First, it submitted that by reason of the misleading or deceptive conduct, it entered into the New Leases believing Dimension to be Mr Tiller's corporate vehicle and that Mr Tiller would continue to operate and manage the Farms. The relevant plea at paragraph 13 of the SOC, however, is that in reliance on each of the pleaded four representations, Harvard entered into the various documents by which it allowed Mammoth to surrender its lease over Warriup Farm, accepted an assignment of Mammoth's sub-lease of Howick Farm, Mammoth surrendered the Tiller Lease, and Harvard leased the Farms to Mr Tiller and Dimension under the New Leases. 503 Then, Harvard alleges, when it discovered in late March 2019 that Dimension was the corporate vehicle for Mr Nicoletti, it elected to rescind the New Leases, by its solicitors' letter of 2 April 2019. This 'notice of rescission' is pleaded at paragraph 18 of the SOC. 504 The next step in the causal chain was submitted to be that the respondents refused to accept the rescission and continued to assert an entitlement to retain exclusive occupation of the Farms. This is said to be reflected in the SOC by a plea that Mr Tiller and Dimension caused the caveats to be lodged on the titles of the Farms (SOC para 19) and a plea that Mr Nicoletti has caused his workers to relocate to the Farms and commence farming operations on them with the intention of planting a crop for harvesting, rather than give up vacant possession as demanded (SOC para 23(b)). There is also a plea that Mr Tiller and Dimension have refused to accept Harvard's rescission of the New Leases (SOC para 23(a)). 505 Next, Harvard pleads that by 17 April 2019 the Fowlers had offered to lease the Farms, provided vacant possession was delivered by 1 May 2019 (SOC para 20), at a much higher rent. Harvard refers to its general plea that further particulars of loss and damage will be given before trial (SOC para 23(d)), read together with particulars of claim subsequently served. These allege that Harvard's loss and damage resulting from the lost benefit of the Fowler Lease is $1,150,000. That is the rent for the first year of the Fowler Lease of $1,950,000 (plus GST), less the $800,000 which Mr Tiller and Dimension have paid under the New Lease up to 1 March 2020. That is the date from which vacant possession was needed in order to comply with the condition precedent in the lease with the Fowlers that was entered into on 1 October 2019. 506 So, Harvard submitted, the existence of the New Leases is fundamental and material to Mr Tiller's and Dimension's refusal to accept rescission and deliver up vacant possession to enable the Farms to have been leased under the Fowler Lease by 1 May 2019. Harvard has thus pleaded a causal nexus between the misleading conduct which took place on 31 January 2019, and a state of affairs in which Mr Tiller's and Dimension's refusal to deliver vacant possession of the Farms, based on the New Leases, prevented Harvard from receiving the $1.95 million rent which would have been payable for the first year under the Fowler Lease. 507 Harvard has also established this causal nexus on the evidence. I have found that Mr Caratti relied on Mr Tiller's misleading conduct in causing Mammoth and Harvard to enter into the transactions which resulted in Harvard leasing the Farms to Mr Tiller and Dimension under the New Leases. And the New Leases were the basis for Mr Tiller's and Dimension's refusal to deliver up vacant possession of the Farms; that is plain from Lawton Gillon's letter of 5 April 2019 (see [287] above). That is enough to make the misleading conduct which resulted in the existence of the New Leases a material contributing factor to Harvard's inability to obtain vacant possession without an order of the court under s 243. A causal connection of that sort can be sufficient for the purposes of s 236 or s 237, even if there are other causal or contributing factors: I & L Securities at [33], [57], [62]; and Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [14], [60]-[62], [106], [109]. 508 Other facts material to the causal nexus between the contravening conduct and the current state of affairs have also been established. The Fowler Lease was executed on 17 April 2019 and does provide for rent of $1.95 million for the first year. The annual rent under the New Leases is only $800,000. There is a question about whether the sum of $1.95 million or the difference between it and $800,000 should be discounted on the basis that Harvard has only established that it has lost the opportunity to lease the land to the Fowlers, but that may be set aside for now. Plainly, Harvard would have been better off from the start of the 2019 farming season had it been able to give vacant possession of the Farms to the Fowlers. 509 Nevertheless, just because a causal link can be described between contravening conduct and a particular state of affairs, it does not follow that the state of affairs involves loss or damage which has been suffered, or is likely to be suffered, because of the conduct, within the meaning of s 236 or s 237 of the ACL. It may be accepted that Harvard would be better off if it could give vacant possession to the Fowlers, but is its inability to do so 'because of' the contravening conduct, in the sense contemplated by the provision? 510 These questions arise because of two aspects of the state of affairs that existed before the occurrence of the misleading conduct. The first is that Harvard was not leasing Howick Farm to anyone at all, and while it was leasing Warriup Farm to Mammoth, there is no evidence suggesting that it was earning more than $800,000 per annum plus GST, or even the $350,000 per annum plus GST which the New Leases allocated as the rent for Warriup. 511 The deed of assignment of the lease of Howick Farm from Mammoth to Harvard dated 5 February 2019 indicates that from the date of that assignment, the annual rent that Harvard was to pay to the registered proprietors of the land was only $50,000 plus GST. Given that Allen Caratti was one of the lessors, and there is no evidence that he agreed to any variation to the terms of the head lease, it may be inferred that this is what Mammoth was paying in rent for Howick Farm before the transactions of early February 2019. That is not direct evidence of what Mammoth was paying to Harvard for Warriup Farm before Mammoth surrendered that lease. But it at least confirms that, from the point of view of rental income, there is no basis to conclude that Harvard was worse off after the misleading conduct than it was before. In relation to Howick Farm, its new liability for annual rent of $50,000 was more than offset by its new right to receive $350,000 per annum plus GST from Mr Tiller and Dimension. So for that Farm at least, judged purely by rental income, Harvard was substantially better off than it had been before the transactions that were induced by misleading or deceptive conduct. 512 It is arguable that the New Leases left Harvard better off compared to the prior state of affairs, even disregarding the quantum of rent. Its new tenant, Dimension, was backed by Mr Nicoletti, whose ample financial resources enabled Dimension to meet the liabilities of both tenants much more easily than Mr and Mrs Tiller could, given the financial stress under which Mr Tiller found himself. Mr Caratti accepted in cross-examination that if Mr Nicoletti had not supported Mr Tiller when he ran into financial difficulties, the Tiller Lease 'would have collapsed' and Mr Tiller 'wouldn't have been able to carry on' (ts 124). In any event, Harvard made no claim that Mr Nicoletti's involvement with the New Leases was in any way disadvantageous to it, judged from the point of view of the ability of the tenants to pay or any other financial or objective criterion. While Harvard made considerable efforts to depict Mr Nicoletti as having been a poor tenant in the past, that was solely in order to establish reliance, in the sense that Mr Caratti would not have caused Harvard to enter into the New Leases had he not been misled. It was not pleaded or particularised as an aspect of any loss or damage. 513 The second relevant aspect of the prior state of affairs is that before the misleading conduct, neither Harvard, Mammoth or anyone else was in a position to lease the Farms to the Fowlers. They could not earn $1,950,000 per annum or any other figure from any such lease. Mammoth was the relevant sub-lessor, and it was bound to the Tiller Lease. It could not give vacant possession to anyone else. 514 Importantly here, Harvard disavowed any claim that if the transactions of early February had not occurred, Mammoth would have terminated the Tiller Lease for the default in payment of rates. That is no part of the causal nexus Harvard pleads, as described above. It was raised in opening submissions, but when the respondents took issue with the ability to pursue it, it was abandoned. So the court must proceed on the basis that if the misleading conduct had not occurred, the Tiller Lease would have remained in place and neither Mammoth, Harvard nor anyone else could have leased the Farms to the Fowlers. Harvard did not rely on Mr Caratti's evidence in cross-examination about the Tiller Lease collapsing, there was no evidence about when that would have occurred, and as a generally expressed concession it can be given little weight. 515 The key question that arises, then, is whether comparing the state of affairs before the misleading conduct with the state of affairs after it leads to the conclusion that neither Harvard's inability to earn higher rent from the Fowlers, nor any other detriment, was caused by the contravening conduct so as to give rise to an entitlement to damages under s 236 of the ACL or to enliven the court's power under s 237. 516 Harvard says that is not the right comparison. It makes three main submissions. The first is that there is no need for it to plead or prove a counterfactual, that is, it does not need to establish what position it would have been in had the misleading conduct not occurred. Harvard's counsel submitted, 'our case is not a counterfactual case. It's not a no transaction case, nor is it an alternative or different transaction case' (ts 394). He submitted (ts 397), that the comparison I have outlined is the: wrong analysis in principle … because all we have to establish is that we purported to exercise our legal rights and were unable to do so and the reason we were unable to do so was because we had made a contractual commitment that was then used against us that was induced by misrepresentations - by misleading and deceptive conduct. That's what stopped us. We had every right to access that land and if the Tiller leases were in place, that represents a counterfactual we're not required to establish. 517 Harvard's second submission is that entering into the New Leases was a loss in the relevant sense, because Harvard had committed itself to contractual obligations it would not otherwise have had. It relies on Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 in that regard. 518 The third submission is that the misleading conduct had a continuing operative effect which induced Harvard as the person 'misled to maintain the economic position that it was induced to adopt (ts 395). Harvard relies Girgis v Poliwka (No 6) [2019] WASC 230 at [1050]-[1058] in that regard. 519 In order to assess those submissions it is necessary to survey some of the key authorities on causation and loss in the context of misleading or deceptive conduct claims. Most of the authorities concern s 82 and s 87 of the TPA, but the amendments which resulted in s 236, s 237 and s 243 of the ACL have not made any relevant difference to the effect of the legislation: Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 3) [2019] FCA 1258; (2019) 138 ACSR 172 at [27]. See also Acts Interpretation Act 1901 (Cth) s 15AC and the Second Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) at [15.14], which says that existing jurisprudence in this area should continue to apply. 520 Certain foundational principles are not in doubt. First, the phrase 'because of' in s 236 and s 237 expresses the notion of causation without defining or elucidating it, so the provisions should be understood as taking up the common law practical or common-sense concept of causation discussed by the High Court in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 525. But that does not mean that common law concepts of causation should be rigidly applied without regard to the terms or objects of the Act: Henville v Walker at [95]-[96] (McHugh J). The common sense approach to causation is not reducible to a test that can be applied across the spectrum of factual situations that arise from case to case: Henville v Walker at [105]. So it is doubtful whether there is any 'common sense' notion of causation which can provide a useful, still less universal, legal norm: Travel Compensation Fund v Tambree t/as R Tambree & Associates [2005] HCA 69; (2005) 224 CLR 627 at [45]. 521 Second, s 236 and s 237 contain no express limitation on the kinds of loss or damage that can be recovered. Once a causal connection between the loss or damage and the contravening conduct is established, there is nothing in the legislation which suggests the orders to be made should be limited by drawing an analogy with the law of contract, tort or equitable remedies: Marks v GIO at [38]-[40] (McHugh, Hayne and Callinan JJ). So it is wrong to begin the inquiry that way; while analogies may be helpful, it would be wrong to argue from the content of the general law that has developed in connection, for example, with the tort of deceit, to a conclusion about the construction or application of provisions of the Act: Henville v Walker at [18]; and Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 at [44]; see also Wardley at 526. 522 Third, by reason of s 13 of the ACL: (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury So the loss or damage spoken of in s 236, s 237 and s 243 is not confined to economic loss: Marks v GIO at [46]. The Act's references to 'loss or damage' can be given no narrow meaning: Murphy v Overton Investments at [45]. 523 With those principles in mind I now turn to examine High Court authority bearing on the fundamental issue raised by Harvard's causation case: in light of the pre-existing contractual arrangements relating to the Farms, can it establish the necessary loss or damage for the purposes of s 236 or s 237 of the ACL without establishing any counterfactual? 524 Marks v GIO is the leading High Court authority on causation of loss or damage for the purposes of s 87 of the TPA, which was the statutory predecessor to s 237 of the ACL. The appellant borrowers entered into loan facility agreements with certain GIO companies, in reliance on a representation that the annual interest rate would be a specified base rate plus 1.25%. In fact, the agreements gave GIO the ability to increase that margin, and it gave notice of an intention to do so. The borrowers sought orders under s 87 of the TPA that the loan agreements be varied so that they would, in effect, conform to the representation. But they faced two difficulties in establishing loss or damage for the purposes of s 87. One was that they had not established that they would have been able to borrow the money on any better terms than they did, had they not been induced to borrow it from GIO. To the contrary, they conceded that the GIO loan, even at the increased margin, was more beneficial than any other loan that was available. And they did not claim that, but for the contravention, they would have taken out no loan at all. The second difficulty was that after giving notice of the margin increase, GIO had given the borrowers the opportunity to refinance without any penalty, and the borrowers who were at that point the applicants in the claim did not take that opportunity up. 525 The High Court decided (Kirby J dissenting) that the borrowers were not entitled to relief under s 87 of the TPA. In a joint judgment, McHugh, Hayne and Callinan JJ made the following observations, which are important for the resolution of the current issue (at [41]-[42], citations removed): … The question presented by s 82 is not what would be allowed in deceit, it is what loss or damage has been caused by the conduct contravening the Act. It follows, then, that a comparison must be made between the position in which the party that allegedly has suffered loss or damage is and the position in which that party would have been but for the contravening conduct. And even this inquiry may not conclude the question. Analysing the question of causation only by reference to what is, in essence, a 'but for' test has been found wanting in other contexts and it may well be that it is not an exclusive test of causation in this area either. But that is not a question which we need to consider in this case. For the moment it is enough to say that s 82 requires identification of a causal link between loss or damage and conduct done in contravention of the Act. 526 The joint judgment went on to say (at [46]): As was said in Wardley [Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 527 (Mason CJ, Dawson, Gaudron and McHugh JJ)] '[e]conomic loss may take a variety of forms'. But central to them all, when it is said that the loss was, or will probably be, caused by misleading or deceptive conduct, is that the plaintiff has sustained (or is likely to sustain) a prejudice or disadvantage as a result of altering his or her position under the inducement of the misleading conduct. 527 Similarly, at [48]: A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted. Thus, the party that is misled will have suffered loss if a chose in action which was acquired was worth less than the amount paid for it. There may well be other ways in which it might suffer loss or damage. For example, consequential loss may be suffered. But no loss of that kind was alleged in this case and, putting that kind of loss to one side, we focus only on loss said to be suffered by the making of the contract. 528 Then, after discussing how to approach a claim that what was acquired was less valuable than what was paid for it, the joint judgment concluded (at [52]-[56], emphasis added): The fact that each of the misled parties in the examples given may have thought that it was to obtain some advantage from the transaction is not to the point. The contravening conduct has left the party that was misled no worse off than it was before the contravention occurred. Nor do we accept that the extension by s 4K [now relevantly ACL s 14] of loss or damage to 'injury' leads to any different conclusion, It may be that 'injury' in s 4K is intended to refer to injury to the person but we do not need to decide if that is so, Even if 'injury' is to be given some wider meaning than personal injury, we do not accept that a person suffers injury simply because a hoped for advantage does not materialise. The central inquiry is what consequence has the contravention of the Act had on the party in question. That requires comparison between the position in fact of the party which alleges loss and the position that would have obtained had there been no contravention. This is not to be taken as confining the operation of s 87 to cases where loss or damage has been sustained. It is not confined in that way; it applies to cases in which it is shown that a person is likely to suffer loss or damage. But the inquiry remains an inquiry about whether it is likely that as a result of the contravention the party concerned will suffer some prejudice or disadvantage. If, as we consider to be the case, the bare fact that making a contract different from what was represented is not loss or damage, something more must be shown to be likely to occur in the future before it can be said that it is likely that loss or damage will be suffered. Ordinarily this will present the plaintiff with no difficulty. It will be rare that the difference between what was represented and what was given will not be reflected in some difference in value or other manifestation of actual loss to the party that was misled either now or in the future. But if it does not, we consider that neither s 82 nor s 87 relief is available. To the extent that the contrary was held in Demagogue Pty Ltd v Ramensky [(1992) 39 FCR 31], we consider it to be wrong. In reaching the conclusion that we do, we are mindful that the object of the Act is said to be 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (s 2). No narrow construction of the Act should be adopted. But neither should the words of the Act be stretched beyond their limit. It may be said, as a matter of abstract or intuitive assessment, that it is 'wrong' if a party that has been found to have engaged in misleading or deceptive conduct does not 'pay a price' for its misleading. But the question is what does the Act provide? 529 There were two other members of the majority, but they decided the matter on a different basis. Gaudron J emphasised (at [11]-[17]) that it could be misleading to speak in terms of categories such as 'expectation loss' and 'reliance loss'; the task is simply to identify the loss or damage suffered or likely to be suffered and, then, to make orders for recovery of that amount under s 82 or to compensate for or prevent or reduce that loss or damage under s 87 of the TPA. Her Honour noted (at [22]-[23]) that, although the borrowers had not established actual loss or damage, s 87 also encompassed damage that was likely, in the sense of a real chance. So the borrowers might have been able to put a case that the interest rate could have been increased in the future above prevailing rates. But because all but one of them had elected not to refinance (for the remaining borrower the position was unclear), they were not entitled to relief under s 87. 530 Gummow J was prepared (at [111]) to assume that, 'in an appropriate case, the exercise by one party of a contractual power to increase the legal obligations of another may be an injury to the second party, which answers the description of "loss or damage" in the first sense in which that phrase is used in s 82'. But in the case before the High Court the borrowers' election not to refinance and the fact that even with the increase in the margin, the loan facility was more beneficial to the borrowers than any other available loan facility, meant it would not be appropriate to exercise the discretion to grant relief under s 87: see also at [118]-[119]. 531 In my view the joint judgment in Marks v GIO compels the conclusion that here, Harvard has not suffered loss or damage because of the misleading conduct, within the meaning of s 236 or s 237 of the ACL. If the principle expressed in the first sentence of [42] of the joint judgment (quoted above) is applied to this case, Harvard's claim for relief must fail. The sentence is describing a comparison of the sort I postulated earlier. Relevantly, the position in which Harvard finds itself is that it is entitled to rent of $800,000 per annum, but it cannot obtain a higher rent from the Fowlers. If there had been no misleading conduct then Harvard would have remained in the position that it was, perhaps, entitled to an unknown rent payable by Mammoth for one of the Farms, but due to the existence of the Tiller Lease neither Harvard, Mammoth, nor anyone else would have been able to obtain a higher rent for the Farms from the Fowlers. That comparison establishes no loss or damage. 532 While, in Marks v GIO, McHugh, Hayne and Callinan JJ acknowledged that 'it may well be' that the 'but for' test is not an exclusive test of causation in this area, they did not need to consider that question in the case before them. But, as March v E & MH Stramare (at 516-519) shows, discussions of the inadequacy of the 'but for' test usually revolve around different issues, such as assessing the effect of multiple sufficient causes or supervening causes: see also Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 413 (Mason CJ, Deane and Toohey JJ); and Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 at [70] (Gummow, Hayne and Crennan JJ). 533 Harvard's sole claim here is for economic loss. And it is not possible to discern any common sense way in which Harvard's alteration of its position under the inducement of the misleading conduct has resulted in it sustaining any prejudice or disadvantage: cf. Marks v GIO at [46]. As has been explained, the manner in which its position altered left it no worse off, and arguably better off. Harvard has disavowed a 'no transaction' case, but to the extent that its reliance case involves a plea that it could have refrained from acting by not entering into the transactions of early February, it has not shown that this would have been of greater benefit or less detriment to it than the course it in fact adopted. In either situation, it could not lease the Farms to the Fowlers. 534 That conclusion is consistent with other High Court authority on causation of loss or damage. It is necessary to identify the detriment which is said to be the loss or damage which has occurred or is likely to occur: Murphy v Overton Investments at [46] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). In Henville v Walker, McHugh J held that the most appropriate approach was to identify what the plaintiff had suffered by way of prejudice or disadvantage in consequence of altering his position by reason of the breach of the Act: see [132]. So, it is appropriate to award damages to make good the position that an applicant would have been in had the misrepresentation not been made: see e.g. Murphy v Overton Investments at [63]. It is necessary to consider the events that have happened and what would have happened if there had been no breach: Henville v Walker at [126] (McHugh J, citing Chappel v Hart (1998) 195 CLR 232 at [113], Wardley at 535; and Kenny & Good at [119]); see also [162] Hayne J (Gummow J agreeing). 535 The authorities make it clear that the principles I have stated are not universal rules that are to be applied in every case. Other approaches may be warranted in different cases, such as cases for a claim of costs directly flowing from the misleading conduct. But I do not consider that the present is such a case. The loss or damage Harvard claims is the loss of an ability to lease property at an attractive rent. Before it was misled, it did not have that ability anyway. That means, as a matter of common sense, that it has lost nothing. 536 The account of causation which Harvard has given only reveals detriment if it omits any reference to the pre-existing state of affairs. I do not consider that in this case, it is appropriate to leave that out. To do so would be to present a selective set of facts that disregards the state of affairs that actually did exist before the misleading conduct.

Whether it was necessary to establish a counterfactual 537 In my view none of the submissions Harvard has made displace the conclusion that the misleading conduct has not caused it to suffer loss or damage for the purposes of s 236 or s 237. Harvard's first submission was that it is not always necessary to establish a counterfactual. That may be accepted. The respondents here accepted that it is not always necessary to plead or prove a 'no transaction' or 'alternative transaction' case. But the authorities on which Harvard relied to support the proposition do not, in the end, advance its case. 538 The first was Abigroup. I have summarised and applied that case above, so as to frame the question of reliance as whether Harvard would have entered into the transactions if Mr Tiller had answered Mr Caratti's question about Mr Nicoletti's involvement in a way that was not misleading or deceptive. But I have also noted that the question of reliance is not a substitute for the question of causation, so applying the approach in Abigroup does not exempt the court from considering whether the reliance caused loss or damage. 539 The passages from Abigroup set out above show that, despite Beazley P's disapproval of a 'but for' test in the case before her, she was in fact disavowing a particular kind of counterfactual, namely consideration of what would have happened in the absence of the false representation: Abigroup at [57]. This aspect of the judgment in Abigroup does not stand for any general proposition that in a case like the present, loss can be established without examining a counterfactual of any kind. That is confirmed by her Honour's observation at [89], dealing with another aspect of the case (an issue concerning damages), that identifying the loss that could be claimed 'depends on the nature of the contravening conduct, the comparative position that the party alleging loss is in and would have been in but for the contravening conduct, and the nature and extent of the claim made'. 540 The other authority on which Harvard relied in support of the proposition that it did not need to prove a counterfactual was Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd [2015] NSWCA 264; (2015) 326 ALR 556. There a piece of equipment, an alternator, had been supplied for installation in a project for IBM. Due to misrepresentations by the appellant's predecessor, AVK, the alternator was incompatible with existing alternators at the site of the installation, because a specification known as a winding pitch was different. As a result the project manager, Johnson Controls, incurred costs in acquiring and installing more alternators with the same winding pitch so that the facility could continue to operate. 541 The appellant challenged its liability for the loss assessed by the trial judge on the basis that the project manager needed to show what its position would have been but for the contravening conduct: see [111]. The appellant argued that the project manager had not pleaded or established what it would have done if the misrepresentations had not been made. In particular it did not claim that it would not have bought the wrong kind of alternator had the misrepresentation not been made: see [115]. 542 Unsurprisingly, the New South Wales Court of Appeal (Beazley P, Leeming and Gleeson JJA agreeing) rejected this argument. Beazley P reviewed Marks v GIO and held (at [133]) that: the trial judge was correct in stating that there was no strict requirement to prove a 'no transaction' or 'different transaction' case. Rather, it is necessary for a party to prove that in reliance on the misrepresentation it acted in a particular way that caused it loss and to then prove the quantum of that loss. That involves a consideration of the particular circumstances in which the conduct that caused the loss occurred. 543 Her Honour then considered the decision of the Queensland Court of Appeal in Westpac Banking Corporation v Jamieson [2015] QCA 50; [2016] 1 Qd R 495, from which she took the proposition (at [135], original emphasis in Cummins): that it was not necessary in a no transaction case that a claimant prove what alternative transaction would have been entered into. Rather, '[i]t may be sufficient for the plaintiff to prove that he or she would not have entered into the subject transaction'. 544 In the case before her, Beazley P concluded: The evidence revealed that if the correct information had been provided by AVK, Johnson Controls would have supplied an alternator with a winding pitch ratio of 13/15 at the same cost as an alternator with a 2/3 winding pitch ratio. In those circumstances, it was sufficient for Johnson Controls to prove that it relied upon the wrong information from AVK and installed equipment that did not satisfy its contractual arrangements with IBM. In order to fulfil its contractual obligation, it was faced with at least two options, either of which resulted in it incurring costs. It had thereby proved that it had a suffered a loss as a result of its reliance on the wrong information provided by AVK. 545 So, despite her Honour endorsing as a general proposition that there was not always a need to prove a 'no transaction' or 'alternative transaction' case, in the case before her Johnson Controls succeeded because it had proved what it would have done had it received the correct information. 546 Cummins v Johnson Controls confirms that questions of causation of loss and damage under the ACL are not necessarily answered by reference to rigid categories. To that extent it assists Harvard. But it does not establish that proof of such counterfactuals is never necessary (and Harvard did not submit that it does). 547 For the reasons that I have given, in the present case, in the particular circumstances in which the conduct alleged to have caused the loss occurred, Harvard did have to prove that it was worse off because of the misleading conduct. It has not done so.

Entry into legal relations from which Harvard would otherwise have abstained 548 Harvard's second submission on causation involved reliance on the decision of the Full Court of the Federal Court in Demagogue. In that case, the respondents entered into a contract to purchase land in reliance on conduct by the vendor that led them into the clear but erroneous impression that there was nothing unusual concerning access to the site. In fact, the only way to gain access from a road was to use a licence over public land, which the vendor held. The purchasers would not have entered into the contract had they been aware of the circumstances that then obtained concerning the licence and access to the site (at 35). 549 Black CJ, Gummow and Cooper JJ found in favour of the purchasers and upheld an order by the trial judge under s 87 of the TPA that the contract be declared void ab initio. One issue the judgments addressed was the role of silence in misleading conduct, but for present purposes, the issue that is relevant is the meaning of the phrase in s 87, 'will prevent or reduce the loss or damage suffered, or likely to be suffered …'. That arose because the vendor submitted that it had not been shown that the property as sold was worth less than the contract price, so the purchasers could not point to any relevant 'loss or damage'. 550 Gummow J delivered the leading judgment, with which the other judges agreed. His Honour described (at 42) the burden of the purchasers' case as being 'that they should not be held to the contract because, as the primary judge found, they would not have entered it but for the conduct of the appellant in contravention of s 52'. After examining the legislation and relevant authorities, his Honour observed (at 43) that 'the phrase 'the loss or damage', at least in s 87, may be concerned with more than pecuniary recovery as understood in the law of damages in tort'. His Honour then asked (at 43): The respondents complain that they entered into a contract as the result of reliance upon conduct which contravened s 52. Why should they not be described as having suffered loss or damage, within the meaning of s 87, by that very reliance and entry into legal relations from which they otherwise would have abstained? If that contract be declared void ab initio as provided for in s 87(2)(a), will that not reduce this loss or damage? 551 Comparing the remedy to rescission in equity, Gummow J noted (at 43, citation removed) that in the latter: it is not sufficient for the defendant to show that the transaction to which the complainant was improperly induced to assent, after all, contained terms which, viewed objectively, were not manifestly disadvantageous so that the complainant should freely have accepted them. The complainant is entitled to say that but for the unconscientious conduct of the defendant he or she would not have entered into any transaction with the defendant. At 44 his Honour said it would be an odd result if s 87 and s 4K were to be read in a contrary sense by giving too narrow a meaning to 'loss and damage'. 552 However his Honour then went on to say (at 44) that 'even if some pecuniary detriment (further propounded as a "real chance" or as presently existing) is required in all s 87 cases, that requirement is present here'. It was present in the fact that the purchasers were bound to purchase the land in a falling market. So there was a real chance or possibility of the purchasers suffering loss or damage 'even within the narrower reading of that phrase in s 87'. Further, 'it would be accurate to say that the likelihood of the respondents suffering that loss or damage is something which is caused by and flows from the contravention of s 52'. Thus (at 45): it is sufficient to support the operation of s 87 in the present case that whether or not the real value of the property at the time of purchase was diminished in this way, at the trial there was sufficient likelihood of the suffering of loss or damage by the administration of the common law and equitable remedies on the contract sought against the respondents by the appellant. 553 Black CJ noted (at 32) that the general law did not impose a requirement for pecuniary loss or damage before rescission of a contract induced by misrepresentation. His Honour was influenced by the consideration that damages for unconscionable conduct were available under s 87 but not s 82 and held (at 33), 'In these circumstances I consider it to be clear that the loss or damage contemplated by s 87(1A) is not limited to loss or damage in the s 82 sense but was intended to include the detriment suffered by being bound to a contract unconscionably induced'. Gummow J agreed with this passage (see 44). 554 Cooper J held (at 47): In my opinion 'loss or damage' in s 87(1) means no more than the disadvantage which is suffered by a person as the result of the act or default of another (Halsbury's Laws of England (4th ed), Vol 12, par 1102) in the circumstances provided for in the section. In s 87 the phrase did not require any concept of quantum or assessment of damages. At 48 his Honour implicitly adopted 'a definition of "loss or damage" for the purpose of s 87(1) which includes the disadvantage of incurring contractual obligations that would not have been incurred but for the conduct complained of …'. 555 Clearly, that reflected the unanimous view of the Full Court. But I do not consider that Demagogue binds me to hold that in this case, by entering into a contract which would not have been entered into but for the contravening conduct, Harvard has suffered 'loss or damage' within the meaning of s 237. There are several reasons for that. 556 First, the relevant views, as considered as they obviously were, were not the ratio decidendi of Demagogue. In the end, Gummow J found that entering into the contract did expose the purchasers to pecuniary loss. It is clear from the passage from 45 which I have quoted at [550] above, that his Honour considered that to be the ratio. His own views on the principle in question here were put in terms of what 'may be' and were ultimately expressed in the form of a rhetorical question (see [548] above). 557 Second, while Demagogue has frequently been followed on the subject of the place of silence in misleading or deceptive conduct, it is difficult to find cases that have applied the dicta about loss being suffered purely because of entry into a contract which was induced by misleading or deceptive conduct. In Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353, Mason P (at 364F) referred to the relevant dicta with apparent approval, but it is not clear that the other judge in the majority, Priestley JA, shared the President's view on that point and in any event, it was not necessary to apply that view in Akron because the contract in issue there was self-evidently detrimental: see 365G. According to Colin Lockhart, the issue remains unsettled: Lockhart C, The Law of Misleading or Deceptive Conduct (4th ed, LexisNexis, 2015) [11.53]. 558 Third, the Full Court's views on the point seem inconsistent with the joint judgment of Mason CJ and Dawson, Gaudron and McHugh JJ in Wardley. At 527-532 their Honours considered and dismissed an argument that the State of Western Australia had suffered loss as soon as it entered into an agreement to indemnify a third party, even though its liability to do so was only contingent at that stage. Their Honours approved a statement from UBAF Ltd v European American Banking Corporation; The Pacific Colocotronis [1984] 2 All ER 226, where Ackner LJ said (at 234-235): The mere fact that the innocent but negligent misrepresentations caused the plaintiffs to enter into a contract which they otherwise would not have entered into, does not inevitably mean that they had suffered damage by merely entering into the contract. 559 Demagogue was decided shortly after Wardley and while Gummow J's judgment does refer to Wardley, it is not in connection with this issue. The Full Court does not engage with whether their views were inconsistent with those of the High Court. That may be explained on the basis that Wardley was a case under s 82 and in Demagogue, the Full Court plainly considered that the phrase 'loss or damage' was used in a different way in that provision than in s 87: see Demagogue at 32-33 (Black CJ), 47 (Cooper J). However, while that is undoubtedly so, as Gummow J's discussion of the question at 43 shows, that is a result of the different effect of each provision as a whole, not a different meaning for the phrase 'loss or damage': Thus, whilst s 82 is concerned with the recovery of an amount representing the loss or damage, s 87 is concerned with compensation, whether in whole or in part, for loss or damage and with the reduction of loss or damage, and with the prevention of loss or damage which is likely to be suffered. 560 To hold that the phrase should be given a different meaning would displace the usual presumption of statutory interpretation and would be inconsistent with the subsequent approach of the High Court, where no difference is identified between s 82 and s 87 in relation to the meaning of the phrase: see in Marks v GIO at [9], [15] (Gaudron J), [38], [46], [55] (McHugh, Hayne and Callinan JJ); and Murphy v Overton Investments at [45]-[47]. In Murphy v Overton Investments at [55] the High Court applied Wardley to a question of the limitation period under both s 82 and s 87. 561 So, in Marks v GIO at [47], the joint judgment, speaking of loss and damage for the purposes of both s 82 and s 87, said: The bare fact that a contract has been made which confers rights or imposes obligations that are different from what one party represented to be the case does not demonstrate that the party that was misled has suffered loss or damage. The contrary view (which had been adopted by the Full Court of the Federal Court in Jobbins v Capel Court Corporation Ltd (78) was rejected by the majority in Wardley (79). 562 And in I & L Securities at [54] Gaudron, Gummow and Hayne JJ observed: Like s 82, s 87 speaks of loss or damage suffered or likely to be suffered 'by conduct of another person that was engaged in … contravention of a provisions' of specified parts of the Act. Section 87, like s 82, therefore requires the identification of a causal connection between the loss or damage and contravention. See also McHugh J at [108]-[109]. I do not consider that Wardley and Demagogue can be reconciled on the basis that they concern different sections of the TPA. 563 Fourth, I have already set out a passage from the joint judgment in Marks v GIO at [55] in which it was held that, to the extent that Demagogue held that s 82 or s 87 relief was available in the absence of 'some difference in value or other manifestation of actual loss to the party that was misled either now or in the future', Demagogue was wrong. While a trial judge in this court should ordinarily follow considered dicta of a Full Court, it is not clear that he or she should do so where those dicta are contradicted by considered dicta of the High Court. 564 There is little intermediate court discussion of this apparent conflict. In Murphy v Overton Investments Pty Ltd [2001] FCA 500; (2001) 112 FCR 182 there was a difference of opinion between RD Nicholson J and Gyles J as to whether Demagogue remained good law, but since both of their Honours' judgments were disapproved when the matter went to the High Court, it is difficult to know what to make of that. In Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1 at [224]-[228] the Full Court appeared to dismiss the view that Demagogue had been overruled, but ultimately it rested its conclusion as to loss or damage on differences between the facts in Marks v GIO, and the facts before it, including that the applicant had made payments as a result of the misrepresentations, and the evidence showed that the value of what he received was significantly less than the value that he believed he was to receive. 565 Fifth, and most importantly, I do not apply the dicta in Demagogue to the present case because I consider that Demagogue should be distinguished. In Demagogue, there were no pre-existing contractual arrangements. In the present case, there were pre-existing contractual arrangements which meant that before the respondents entered into the contract, obligations of the kind that they then assumed were already in existence, and inhibited their freedom to act in the same way. Their Honours' observations in Demagogue, generally expressed as they were, could not have been directed to a situation like that, let alone a situation where the party who was misled is better off. Gummow J's rhetorical question at 43 concerned the 'entry into legal relations from which they [the respondents] otherwise would have abstained'. But here, legal relations were already in place which were no different in their effect from the legal relations from which Harvard would have abstained. I therefore do not consider that Demagogue gives Harvard a solution to the problem it faces here.

Continuing operative effect 566 Harvard's third submission on the causation of loss and damage was that where misleading conduct has a continuing operative effect which induced the person misled to maintain the economic position they were induced to adopt, then the applicant can pursue damages resulting from that continuing operative effect. It was submitted that, since the respondents refused to vacate the farms on the basis of the New Leases, which were induced by the misleading representations, the representations had a continuing operative effect which prevented the Fowler Lease from coming into effect. 567 I do not think that this way of restating the causal link advances Harvard's position. The authority cited in support of it was Girgis v Poliwka at [1050]-[1058] (Vaughan J), where his Honour in turn relied heavily on Wyzenbeek v Australasian Marine Imports Pty Ltd (No 2) [2018] FCA 1517 at [235], [238] (Derrington J). However Vaughan J's comments in the passage relied on were directed to situations where an asset was acquired in reliance on misleading conduct and, it was said, supervening events caused loss for which the person who engaged in that conduct should not be liable. In those situations, it may be necessary to make a choice between assessing the value of the asset acquired when the acquisition was made, thus eliminating the consequences of supervening events, and assessing it at the time of trial, which may incorporate those consequences. If there has been a continuing operative representation inducing the plaintiff to stay in the disadvantageous (perhaps deteriorating) situation, the latter approach may be appropriate. 568 That principle is addressed to quite a different issue than the one that faces Harvard here. If a representation has a continuing operative effect, that does not establish a causal link between contravening conduct and relevant loss or damage where none would otherwise exist. In any event, it is doubtful that the representations of 31 January 2019 had any real continuing operative effect, since Mr Caratti discovered that he had been misled less than two months after they were made. While Harvard's submissions referred to the assertions in Lawton Gillon's letters of 5 April 2019 and 23 April 2019, as repeating the false representations of 31 January 2019, it is plain that by that stage Mr Caratti knew that Mr Nicoletti was involved in the Farms (as to which see below).

Conclusion on causation of loss 569 For these reasons, Harvard has not established that it has suffered loss or damage because of the conduct of any of the respondents that was engaged in a contravention of s 18 of the ACL, and it did not allege that it was likely to suffer such loss or damage. The precondition to the operation of s 237 and s 243 has not been established, so Harvard's case in relation to the first instance of misleading or deceptive conduct fails.

Resolution of the key issues - the 15 February Deeds and the 5 April letter 570 Having dealt with Harvard's case based on the discussions of 31 January 2019, it is now necessary to turn to the other alleged occurrence of misleading or deceptive conduct, which concerns the respondents' omission to disclose the existence of the 15 February Deeds after the sending of Lawton Gillon's letter of 5 April 2019. It is common ground that the respondents did not disclose the existence of the deeds before discovery in this proceeding. But whether that non-disclosure was misleading, and whether it caused Harvard to suffer loss or damage, are in dispute. 571 Harvard pleads that by Hotchkin Hanly's letters of 25 March 2019 and 2 April 2019, Harvard gave notice to Mr Tiller and Dimension that it considered it had been misled into surrendering the Tiller Lease and entering into the New Leases. The letters said Harvard was misled by (among other things) Mr Tiller representing that only he had any relevant interest in Dimension, and would personally operate the Farms. This is said to have been put in the letters as grounds for rescission of the New Leases (SOC para 28). 572 The SOC then sets out excerpts from Lawton Gillon's letter in reply on behalf of Mr Tiller and Dimension as follows (SOC para 29) (numbering and quotation marks in original): (a) 'Simon Tiller is to remain in control of the farming operations'; (b) 'Simon Tiller's intentions have always been to remain in control of the farming operations with simply a change in the financial backing from Landmark to Dimension Agriculture'; (c) 'the farming operations will remain under the control of Simon Tiller'; (d) 'John Nicoletti's involvement is as a shareholder and director of Dimension Agriculture, the company providing the financial backing to Simon Tiller'; (e) 'our client's [sic] also deny that John Nicoletti told John Caratti that he would be taking over the operation of the Farms'; (f) 'Simon Tiller has always intended, and his intentions remain, to be a long term tenant of the Farms … (g) the Third Respondent had been too busy to ensure that the Register of the Australian Securities and Investments Commission ('ASIC') correctly reflected the true shareholding and directorship of the Second Respondent, such that only when he had time, was he able to arrange 'the shareholding and directorship to change to properly reflect the original purpose behind its incorporation' … 573 So, it is pleaded, the letter gave Harvard the misleading impression that Mr Tiller remained in control of his leasehold interest, and of the management of the Farms, and that Dimension was only a lender of money to Mr Tiller (SOC para 29). In view of their knowledge that Mr Tiller and Dimension had in fact executed the 15 February Deeds, each of those two parties as well as Mr Nicoletti knew or ought to have known that Harvard would reasonably expect to have a copy of the 15 February Deeds disclosed to it. That is said to be because it falsified the statements in Lawton Gillon's letter. They also should have known, properly advised, that the 15 February Deeds were a repudiation of the New Leases entitling Harvard to terminate the leases, had it known about the deeds (SOC para 31). 574 There is also a plea that Mr Bryce's knowledge and conduct should be imputed to Mr Nicoletti under s 111 of the FTA, because Mr Bryce was acting for him, and that Mr Bryce's knowledge should be imputed to Dimension. Section 111 works in a similar way to s 139B of the CACA, albeit it facilitates the attribution of conduct to individuals rather than bodies corporate. This plea seems to be intended to fix Mr Nicoletti with knowledge of the 15 February Deeds. But s 111 of the FTA only permits the imputation of a state of mind to a person that is not a body corporate, so it cannot apply to Dimension. In any event there is no need for Dimension to be fixed with Mr Bryce's knowledge of the 15 February Deeds by the similar mechanism of s 139B(1) of the CACA, because of course Dimension executed the deeds itself (by its directors Mr Bryce and Mr Tiller). 575 Harvard pleads that the matters set out in the Lawton Gillon letter were misleading or deceptive, and that each of the first four respondents (not Mrs Tiller, the fifth respondent) engaged in misleading or deceptive conduct by making the representations contained in the letter (SOC para 32). Harvard pleads that in reliance on and caused by that misleading conduct, it did not terminate the New Leases as it was then entitled to do. However, the immediate pleaded cause of its omission to terminate the New Leases is that the first to fourth respondents did not disclose the 15 February Deeds to Harvard, but instead instructed Lawton Gillon that Mr Tiller was managing the Farms and would continue to do so, when the deeds were directly inconsistent with that. So Harvard was deprived of the knowledge of facts entitling it to terminate the New Leases, and so deprived of exercising the right of termination (SOC para 34). 576 By this point in the SOC, it is not entirely clear whether Harvard's case is that it relied on the representations made in the Lawton Gillon letter, or that its loss was caused by non-disclosure of the 15 February Deeds, or both. But there is a further plea, to the effect that but for the matters already pleaded, if the 15 February Deeds had been disclosed to Harvard on 5 April 2019 or at any reasonable time thereafter, Harvard would have 'exercised its right of election to terminate the New Lease [sic] before 30 April 2019 in the alternative to rescission' and obtained vacant possession of the Farms and given vacant possession to the Fowlers so as to comply with the condition precedent of the Fowler Lease (SOC para 35). It is therefore tolerably clear that it is the failure to disclose the 15 February Deeds, in the context of the Lawton Gillon letter, which is said to have caused the loss. The loss in question is the difference in rent for what would have been the first year of the Fowler Lease. 577 This part of Harvard's claim was clarified in its written closing submissions. The submissions said that this part of the claim was for damages only. They said that Lawton Gillon's letter of 5 April 2019 coupled with the non-disclosure of the 15 February Deeds deprived Harvard of knowledge of all the facts required for it to obtain proper legal advice about the risk that it faced in exercising a right of re-entry without a court order. There were two ways in which this was submitted to be so. The first was that the letter maintained the continuing operative effect of the misleading and deceptive conduct in January. The second is that the 15 February Deeds were a repudiation of the New Leases which, if disclosed in April, would have permitted Harvard to terminate the New Leases and re-enter the Farms. 578 The first of these ways is not open to Harvard, however, in view of its pleaded case about the misleading conduct in January, the findings above, and Mr Caratti's own evidence. Harvard has pleaded, and I have found, that Mr Tiller represented that Mr Nicoletti was not and would not be involved with Dimension or its activities on the Farms, and that Mr Bryce held the share in Dimension beneficially for Mr Tiller. Lawton Gillon's letter did not perpetuate any error on Mr Caratti's part about any of those matters. The letter confirmed that Dimension was Mr Nicoletti's company and it confirmed that Mr Bryce did not hold the share beneficially for Mr Tiller. It may have been misleading about the nature of Dimension's involvement in the Farms, because it said that the company was merely a financial backer for Mr Tiller. But there is no pleaded case that Harvard was misled as to the nature of Mr Nicoletti's involvement; the case was clearly that Mr Caratti thought he was not involved at all. And even if Harvard's case was broader, so as to encompass a claim that it relied on a belief that Mr Tiller would continue to be involved in the Farms, Mr Caratti's own evidence stands in the way of accepting the 5 April letter as part of that case. He said that Mr Nicoletti had told him on 21 March 2019 that he (Mr Nicoletti) was in possession and control of the farm (ts 152-153) [264]. And his evidence about the letter is that the assurances in it about Mr Tiller's ongoing involvement struck him as unlikely (Caratti I, para 199). So there is no basis for a submission that the letter continued the operative effect of the misleading conduct of late January. 579 Harvard's case therefore comes down to the effect of the non-disclosure of the 15 February Deeds. Conceivably, disclosure of the deeds to Harvard before 1 May 2019 (the date by which vacant possession had to be given in order for the Fowler Lease to commence) might have had one or both of the following effects: (1) It would have confirmed to Mr Caratti what he already suspected, that he had been misled as to the extent of Mr Tiller's ongoing involvement with the Farms and the nature of Mr Nicoletti's involvement. That might have strengthened his determination to take the self-help remedy of re-entry, relying on the earlier misleading conduct. (2) It would have led Harvard to accept the repudiatory breach which the 15 February Deeds allegedly brought about, and so to terminate the New Leases and obtain vacant possession on that basis. 580 As to the first of these possibilities, Mr Caratti's evidence was that after receiving Lawton Gillon's letter of 5 April 2019, he wanted to re-enter the Farms, but Hotchkin Hanly gave him oral advice that 'if Mr Tiller continued to operate the farms rather than Mr Nicoletti, it was an unacceptable legal risk to not seek Court orders, but just take possession regardless' (Caratti I, para 200). But if he had known of the 15 February Deeds, he would have taken the risk and retaken possession because his view would have been that the assurances in the letter were not true (Caratti I, para 202). But that is not the counterfactual that is pleaded. As described above, that counterfactual is that Harvard would have elected to terminate the New Leases, in the alternative to rescission, which in the context of the rest of the pleading is clearly a reference to terminating on the basis of the alleged repudiatory effect of the 15 February Deeds. And it is not the way it was put in the closing submissions, as described above. 581 So the pleaded case really comes down to the second possible effect of disclosing the deeds that I have described. That brings the analysis to the key question of whether the deeds did indeed constitute a repudiation of the New Leases.

Issue (6): did the 15 February Deeds amount to repudiation of the New Leases? 582 It is critical to this part of its case that Harvard establish that the 15 February Deeds resulted in a breach of the New Leases that entitled it to terminate them. Only then will it be able to establish that any misleading conduct on the part of the respondents which led it to be unaware of the existence of the 15 February Deeds deprived it of the ability to give vacant possession to the Fowlers.

Relevant provisions of the New Leases 583 The New Leases were each to Mr Tiller and Dimension and referred to them together in the part of the lease that identified the parties as the 'LESSEE'. Clause 1 of each New Lease described the instrument as a sub-lease to 'the Lessee' and the document consistently used that term in the singular. As I have said, the term of each New Lease was three years with one option for a further five year term. 584 Clause 11.1b of each New Lease provided that 'The Lessee is in default under this Lease if the Lessee abandons, vacates or otherwise surrenders the Premises'. Under cl 11.2, that default entitled the lessor to 'terminate this Lease by re-entering the Premises and excluding the Lessee'. 585 Clause 16 of each New Lease provided: 16. NO ASSIGNMENT OR SUB LEASE The Lessee shall not part with the possession or occupation (including the granting of a licence) of the Premises nor transfer or assign or sub let any part or portion of the Premises or this Lease or any estate or interest in this Lease without the prior written consent of the Lessor, such consent may be withheld in the Lessor's absolute discretion. 586 I have set out the relevant terms of the 15 February Deeds at [234] above. They purport to effect an assignment from Mr Tiller to Dimension of all of Mr Tiller's rights under and interest in the New Leases and the land comprising the Farms (cl 1). Also, they provide that Mr Tiller must not 'access, or attempt to access or control, or interfere with the land (or any of the buildings, fixtures or chattels on the land the subject of the Lease Agreement' or 'attempt to exercise or enforce any rights under the Lease Agreement', or 'purport to have any interest or involvement in the farming operations undertaken by Dimension on the land pursuant to the Lease Agreement' (cl 3). Mr Tiller acknowledged that from the date of the New Leases, he had no rights in relation to, among other things, the New Leases (cl 4(b)). 587 It is difficult to imagine a more comprehensive assignment and relinquishment of Mr Tiller's rights under the New Leases. Mr Tiller and Dimension neither sought nor obtained Harvard's consent to that assignment. But, as I have said, in submissions the respondents advanced three reasons why there was no breach of the New Leases or, if there was, it would not have entitled Harvard to terminate those leases: (1) the 15 February Deeds were ineffective, because they were never implemented and the requirement of delivery of the deeds was not met; (2) any assignment only had effect in equity, which was not a breach of cl 16; and (3) the respondents would have obtained relief against forfeiture. 588 I will consider each of these arguments in turn.

Whether the 15 February Deeds took effect 589 The respondents submitted that the 15 February Deeds were not relied on or implemented and that they did not in fact alter Mr Tiller's relationship with Mr Nicoletti, Dimension or the Farms (ts 348). It was put that the lack of any steps taken to implement the deeds from their inception meant that they were not legally effective. 590 The respondents also submitted that a fully executed deed only becomes effective on delivery, which requires an intention to be immediately bound. That intention, it was said, was absent in respect of the 15 February Deeds. 591 The respondents submitted that the evidence showed that the 15 February Deeds had been prepared at Mr Bryce's suggestion, because he was concerned that if Mr Tiller did not put any money into Dimension and was still on the lease that could cause problems if Mr Tiller became bankrupt (Bryce I, para 33). This was said to be at a time when the parties to the deeds did not know whether Mr Tiller would be making any contribution to Dimension and the Farms (ts 206). According to Mr Tiller he did not remember what he did with the 15 February Deeds after he executed them. Mr Nicoletti said he did not remember retaining a copy and was not aware of the deeds until these proceedings were underway. Mr Bryce kept the deeds though [237]. 592 The respondents relied mainly on the lack of any evidence that Mr Tiller was excluded from the Farms after 15 February, and on the evidence that he visited them (at least) up to and including April 2019. Mr Tiller said in his evidence-in-chief that he did not understand the deeds to change his position on the Farms and he did not act differently as a result of them (Tiller I, para 159). Mr Nicoletti's evidence was that he did not do anything in terms of or with reference to the document (Nicoletti I, para 141). Mr Bryce did not recall that any actions were taken in terms of the document (Bryce I, para 36). 593 Whether framed in terms of an absence of implementation of the deed, or in terms of non-delivery, counsel for the respondents rightly accepted that they could only rely on objective conduct to establish either of those things (ts 360). Purely subjective reservations held by one or more of the parties would be irrelevant: see Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25]. 594 Turning first to the argument based on a lack of implementation of the 15 February Deeds, the respondents did not refer to any case law to establish the proposition that if a deed had not been 'implemented', it was not legally effective. They did not submit in terms that there was no intention to create legal relations at the time the deeds were executed. That submission would have faced the formidable difficulty (subject to the question of delivery) that the parties had enshrined their agreement in fully executed deeds. Nor was the case put on the basis that the 15 February Deeds were legally binding at their inception, but then the parties evinced an intention by their conduct to abandon the deeds (that is, prior to the execution of the deeds of rescission in July and November 2019). So it was difficult, with respect, to understand the jurisprudential basis of the argument that the respondents were making. 595 If it was an argument about an intention to be legally bound, then even where parties have signed a written agreement, evidence extrinsic to that instrument can be admissible to show that they did not, in fact, have that intention: see Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 333G-334B (Mahoney JA), 336D-337C (McHugh JA). In that case, McHugh JA put the proposition in terms 'that a party is able to prove that, before signing a document, the signatories agreed that it did not constitute a binding contract' (emphasis added). Nevertheless, there seems no reason in principle why evidence of what the parties did (or did not do) after the execution of the instrument cannot be admissible as probative of the existence of an objectively manifested intention at the time of execution not to be bound. I will also assume in the respondents' favour that the principle expressed in Air Great Lakes can apply to an agreement in the form of a deed. 596 Even so, the evidence on which the respondents rely here does not rise nearly high enough to enable them to rely on that principle. It is at least equally consistent with a conclusion that the parties intended to be bound, but Dimension chose not to strictly enforce the 15 February Deeds at the outset. It is also consistent with a conclusion that they intended to be bound, but later changed their minds. It is far too equivocal to negative an intention to be bound at the time of execution, in the face of duly executed deeds. 597 Further, while the argument was not put in terms of subsequent abandonment, examining the principles that would apply if it had been, shows why the evidence of a lack of implementation on which the respondents rely is insufficient. In order to show that a contract was abandoned by inactivity on both sides, it is necessary to establish that the inactivity produces the clear inference that one party does not wish to proceed with the contract and the other party consented to that situation: Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 at [57] (Gyles J), quoting with approval CGM Investments Pty Ltd v Chelliah [2003] FCA 79; (2003) 196 ALR 548 at [22] (Finkelstein J). While every case depends on its own circumstances, where inactivity is the basis of the alleged agreement to abandon, the authorities speak in terms of an 'inordinate' length of time and refer to an inference that the contract has been discharged by agreement, 'each party being entitled to assume from a long-continued ignoring of the contract on both sides that "the matter is off altogether"': see Fitzgerald v Masters (1956) 95 CLR 420 at 432. 598 Here, the respondents are similarly relying on their asserted inactivity. The say they did not act on the deeds. If one assumes, again in the respondents' favour, that this is a coherent legal basis on which to find that the deeds were not legally effective, they should be held to the same standard as they would be in an abandonment case. 599 In the present case the fact of inactivity was not clear enough, and the period of inactivity was not long enough, to justify an inference that the parties were not bound by the 15 February Deeds. The evidence needs to be assessed in terms of what the parties would do (or refrain from doing) if they were to implement the terms of the deeds. Those terms are at [234] above. They first provided for an assignment (cl 1). Since there was no contemplation that the counterparty to the New Leases, Harvard, would be notified, the parties did not need to do anything more to make the assignment come about in the manner contemplated; the deed itself effected the assignment. So inactivity in relation to that clause signified nothing. 600 The next provision (cl 2) provided for indemnities - there was no occasion to perform or not perform those, as there was no evidence of a circumstance requiring them to be called upon. So inactivity there signified nothing, too. 601 The next provision (cl 3) required Mr Tiller not to do a number of things, such as interfere with Dimension's activities on the Farms or to enforce any rights under the New Leases. With one exception, the evidence does not suggest that he did try to do any of those things. The exception concerns his promise in that clause not to access the land which was the subject of the New Leases. I accept that he did at least visit the Farms after 15 February 2019, and for part of the time between then and July 2019 he may have lived on them and carried on farming activities on them. But the respondents rightly accepted that by some time in April 2019, Mr Tiller was not living on the Farms and he was not farming the Farms; that was being done by Mr May on behalf of Mr Nicoletti (ts 348). They accepted that from that time, Mr Tiller was off the Farms and was not interfering with the farming operations (ts 349). That being so, the fact that Mr Nicoletti permitted Mr Tiller to enter the Farms from time to time, or even to live there for a few weeks after the execution of the 15 February Deeds, hardly gives rise to a clear inference that the deeds were not binding. For reasons I have given, it is equivocal. Also, things were done that are consistent with the promises in cl 3. Mr Tiller resigned as a director of Dimension on 22 February 2019, post-dated to 28 February 2019. He did not pay any of the expenses on the Farms from at least 22 February [249]. Mr Nicoletti became a director of Dimension and he took control of the Farms. 602 The final operative provision (cl 4) simply contains acknowledgments which, according to the respondents were true. An inactivity in relation to that signifies nothing. 603 I do not place any weight on the statements in the respondents' witness statements that they did not do anything or change anything on the basis of the 15 February Deeds. They are highly general, conclusionary and self-serving. In cross-examination, Mr Tiller said that he took the deeds as being genuine. In his cross-examination, Mr Bryce said, in effect, that he believed at the time that the statements of fact in the deeds were true (ts 292-293). So there was no suggestion that the respondents viewed them as shams (ts 249-250). 604 So on analysis, there is no persuasive evidence that the deeds were not implemented. That is so whether the question is analysed in terms of intention to create legal relations, or abandonment, or otherwise. 605 The same result follows if the question is approached from the point of view of delivery of the 15 February Deeds. Section 9(3) of the Property Law Act 1969 (WA) provides that formal delivery of a deed is not necessary in every case, but that does not dispense with any requirement for delivery: Scook v Premier Building Solutions Pty Ltd [2003] WASCA 263; (2003) 28 WAR 124 at [23]-[24]. In that case, at [25], Steytler J set out the principles governing delivery of deeds as follows (citations removed): It is enough to meet the requirement of delivery that there be acts or words sufficient to show that the document is intended by the party to be executed as his or her deed, presently binding on him or her. There is no need for any physical handing over of the deed. Whether there has, or has not, been delivery is a question of fact. Intention to deliver may be expressly proved or inferred from circumstances. While intention is to be ascertained from circumstances prior to or contemporaneous with delivery, it is permissible to look at later events in order to ascertain what was the intention of the person concerned at the critical time. 606 So, the requirement can be met without physical delivery or transfer of the deed to the promisee or anyone else, and without it ever leaving the possession of the party executing it: Segboer v AJ Richardson Properties Pty Ltd [2012] NSWCA 253; (2012) 16 BPR 31,235 at [53]. A document in the form of a deed which has been signed and sealed is presumed to have been delivered: Segboer at [57] citing Hall v Bainbridge (1848) 12 QB 699. That statement of principle should be read subject to the abrogation of the requirement for sealing in s 9(2) of the Property Law Act, so the presumption applies to a deed which, like the 15 February Deeds, otherwise meets the formal requirements of s 9. An example of when the presumption has been rebutted is where customary conveyancing practice indicates that the parties did not intend to be bound until the deeds were exchanged: Hooker Industrial Developments v Trustees of the Christian Brothers [1977] 2 NSWLR 109. 607 Whether it is stated in terms of a presumption, or whether it is simply stated in terms of what is to be inferred from the fact of execution of the instrument, in my view the 15 February Deeds were delivered. They were styled deeds, they contained terms said to have effect from the date of each deed (cl 1 and cl 2(a)), they were stated to have been executed by the parties as a deed and they bore the signatures of Mr Tiller and Mr Bryce in their capacity as directors of Dimension and Mr Tiller's signature in his own capacity, attested by an independent witness. That is clear evidence that the parties intended to be bound immediately. Mr Tiller signed the deeds and sent them to Mr Bryce and then he signed them, probably at the offices of Nova Legal [237]. Mr Bryce, Dimension's company secretary, kept copies of them. There is no suggestion in the evidence that there was any separate agreement or stipulation that the deeds would not come into effect, or would only come into effect on the fulfilment of any condition. Even if evidence of subsequent conduct is admissible to show that the parties did not intend immediately to be bound, that evidence is equivocal at best, for reasons given above. I find that the requirement for delivery of the 15 February Deeds was satisfied. At least until the deed of rescission of 31 July 2019, they were binding on Mr Tiller and Dimension.

Were the 15 February Deeds a fundamental breach or repudiation of the New Leases? 608 The respondents' next argument is that the assignment effected by the 15 February Deeds was not a breach of the New Leases, because it was only effective in equity and prohibitions on assignment in leases are generally read as only prohibiting legal assignments. It was common ground that the New Leases were never registered against the titles to the Farms under the Transfer of Land Act 1893 (WA) (TLA) (ts 201). So, it was said, they conferred equitable interests only, and could only be assigned in equity. Also, the assignments effected by the 15 February Deeds were not themselves registered, so the combined effect of s 58 and s 82 of the TLA was that the assignments could only take effect in equity anyway. 609 These arguments are based on MacDonald v Robins (1954) 90 CLR 515. The appellant, Mrs MacDonald, held a station at Perenjori under three pastoral leases. She leased the station to the respondents, who were brothers, for six years. The lease contained an option permitting them to purchase the station for a fixed price at the end of the term. The brothers farmed the land in partnership for about five years, but then the partnership was dissolved and one of them bought out the interest of the other. The deed of dissolution included a provision for the sale and purchase of the half share in the business and assets including the benefit of the lease and the option to purchase. This transaction was only disclosed to Mrs MacDonald when the brother who remained in the business sought to exercise the option. She claimed that the transaction was a breach of the lease, so that the option could not be validly exercised. She relied on a covenant in the lease 'not to transfer assign sub-let or part with the possession of the said land without the consent in writing of the lessor first had and obtained'. 610 The High Court (Dixon CJ, Webb J and, on this point, Taylor J agreeing) held that the sale and purchase did not breach the lease. The key passage from Dixon CJ's judgment is as follows (at 520-521): If the lease was operative to create a term of years, the clause [for sale and purchase] amounts at most to an equitable assignment of the brother's interest in the term. An assignment by one co-tenant of his share in the demised premises operating at law, as distinguished from equity, to vest his share in his co-tenant would constitute a breach of such a covenant as the present against transfer or assignment of the land. At all events it has been so held: Varley v Coppard (1872) LR 7 CP 505; Horsey Estates Ltd v Steiger (1898) 2 QB 259, at pp 263-264; Langton v Henson (1905) 92 LT 805. In the last case, as in Varley v Coppard (1872) LR 7 CP 505 the co-tenants themselves took by assignment and a reason given for the result was that the one co-tenant by assigning to the other destroyed the privity of estate between himself and his landlord. It may be remarked that in the case of lessees, parties to the lease, the liability on the covenants is not affected by the assignment. But probably this is an insufficient ground for distinguishing the decisions. An equitable assignment, however, is an entirely different matter. The privity of estate and the liability on the covenants of the lease all remain. Even when the entirety as distinguished from an undivided share in the term is equitably assigned there is no breach of such a covenant against assignment: Gentle v Faulkiner (1900) 2 QB 267, at pp 274, 277; Martin v Coultas (1911) SALR 1. It is also settled that for one co-tenant to retire from the possession of the demised premises and leave his co-tenant in sole possession does not amount to a breach of the covenant not to part with the possession of the land: Corporation of Bristol v Westcott (1879) 12 Ch D 461. On the footing that the lease operated to vest a term of years in the plaintiff and his brother, it will be seen, therefore, that nothing in the dissolution of partnership would amount to a breach of covenant. 611 McLure J (as she then was, Murray and Parker JJ agreeing) analysed MacDonald v Robins in Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11. In that case, a company called Gabstone was leasing café premises from Camisa Nominees under a lease for a term of 10 years with two five year options. Under a sale agreement and a trust deed, Gabstone agreed to sell the café business to Old Papa's Holdings Ltd and to hold the business 'on bare trust' for that company: see [10]. Camisa Nominees claimed that this transaction was in breach of a clause of the lease which relevantly provided that: The Lessee shall not without the prior written consent of the Lessor assign sub-let or part with possession or occupation (including the granting of a licence) of the Leased Premises or any part thereof or this Lease or any estate or interest therein … 612 The parties in that case accepted that the sale agreement and trust deed effected the transfer of the full beneficial interest in the lease to Old Papa's Holdings: at [30]. McLure J therefore held that the subject of the transfer was equitable property, which could only be the subject of an equitable assignment. Hence MacDonald v Robins was relevant. After setting out most of the passage from that decision which I have quoted above, McLure J also quoted passages from Gentle v Faulkiner [1900] 2 QB 267 (one of the decisions on which Dixon CJ relied), including a passage where Romer LJ held (at 276-277) that 'a covenant in a lease against assigning the demised premises, in the absence of any context shewing that the covenant is to have an extended meaning, covers only a legal assignment'. Her Honour thus held (at [41]-[42]): It must be the case that whether or not an equitable assignment is prohibited is a question of construction of the relevant covenant in the lease. I do not regard anything said by the High Court in MacDonald v Robins (supra) as inconsistent with that view. However, the covenant has to be construed in the light of the matters adverted to by Dixon CJ in that case. In particular, a lease gives rise to contractual and property rights. Both the contractual rights (but not obligations) and property rights can be assigned at law or in equity. The burden of covenants in the lease that touch and concern the land will run with the assignment of the leasehold estate. A legal or equitable assignment of a lease does not alter the contractual relationship between the lessor and the lessee assignor. Privity of contract remains. However, a legal assignment of a leasehold estate creates privity of estate between the lessor and the assignee and brings to an end the privity of estate between the lessor and the lessee: Picton-Warlow v Allendale Holdings Pty Ltd [1988] WAR 107 at 110. An equitable assignment of the leasehold estate has no such effect. An equitable assignment of the leasehold estate does not create privity of estate between the lessor and the assignee or bring to an end the privity of estate between the lessor and lessee. Privity of estate is a legal relationship not equitable: Manchester Brewery Co v Coombs [1901] 2 Ch 608 at 614; Purchase v Lichfield Brewery Company (1915) 1 KB 184. Further, as a covenant against assignment fetters a lessee's right of property which is an incident of the leasehold estate, it is strictly construed: Burton v Camden London Borough Council [2000] 2 AC 399 at 409; Killick v Second Covent Garden Property Co Ltd [1973] 1 WLR 658. 613 In light of these principles McLure J held that the equitable assignment did not breach the clause in the Gabstone lease. That was despite the prohibition in the clause on assignment of 'any estate or interest'; since the word 'assign' prima facie only refers to a legal assignment, her Honour read 'estate or interest' to include only a legal estate or interest in the leased premises or the lease: at [45]. 614 The principles in MacDonald v Robins and Old Papa's apply to the 15 February Deeds. Despite a submission by Harvard to the contrary, I do not accept that the fact that the latter case concerned an assignment of equitable property distinguishes it from the present case. The fact that the New Leases are unregistered means that in equity they give rise to an equitable leasehold estate: Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 (Tabali) at 26-27. So, as in Old Papa's, the 15 February Deeds could only effect an assignment of property that existed in equity and thus could only operate as equitable assignments: see Old Papa's at [31], [43]. 615 There is, however, another point of distinction, namely that, unlike the lease in Old Papa's, which was for a term of 10 years, the New Leases were not intended to be registered. Section 68(1A) of the TLA provides an exception to the principle of indefeasibility of registered title for an unregistered lease or agreement for lease for a term of not more than five years, and for options of renewal in the lease or agreement if it is protected by caveat. So as counsel for the respondents accepted, it is the practice in this State not to register leases for a term of five years or less, but rather to protect them by caveat (ts 203). 616 The question as to whether the 15 February Deeds were a breach of the New Leases is ultimately a question of the construction and application of cl 16 of those leases. To adapt the words of Romer LJ in Gentle v Faulkiner, context is capable of showing that the words of those clauses have a meaning more extended than such provisions are usually construed to have: see [610] above. Here, it should be inferred from the existence of the practice I have mentioned that, objectively, the parties to the New Leases did not intend them to be registered. That is important because it means that the leasehold contemplated in and conferred by the New Leases was only ever going to exist in equity. That being so, cl 16 would have no meaningful work to do if it were read as only applying to assignments or transfers that are effective at law. It would not be a sensible reading of the clause to confine its effect to the possibility that, contrary to the usual practice, these three year leases were registered against the title. 617 MacDonald v Robins is consistent with that view. The lease of the pastoral lease there was required to be, but was not, registered under s 151 of the Land Act 1933 (WA). Nor was it submitted to the Department of Lands and Surveys for approval under s 143 of that Act. Mrs MacDonald relied on this to submit that the covenant against assignment in the lease should be construed as relating to assignments giving no more than an equitable right. Dixon CJ gave as answer to this, 'that the instrument was drawn as a registrable document and cannot change its meaning because neither of the parties troubled themselves to submit it for approval and register it'. But in the present case that answer is not available. If there were other answers, Dixon CJ did not give them. His Honour's reasoning is therefore consistent with my preferred construction of the New Leases: see also Bradbrook A, Croft C and Hay R, Commercial Tenancy Law (3rd ed, LexisNexis, 2009) [15.17]. 618 I find that cl 16 of each of the New Leases prohibited assignments that were effective only in equity, as well as assignments at law, so the entry into the 15 February Deeds by Mr Tiller was a breach, at least by him, of the New Leases. But as well as denying that entry into the 15 February Deeds breached any term of the New Leases, the Defence denies that it amounted to a repudiation of them. Further to the denial of a breach or repudiation, the Defence says that the deeds did not alter the legal relationship between Harvard on the one hand and Mr Tiller or Dimension on the other: Defence para 27(a)(iii)(3). So it is also necessary to determine whether the breach was a breach of a fundamental term of the New Leases, or a repudiation of them. Only then would entering into the 15 February Deeds have enabled Harvard to gain vacant possession of the Farms. 619 I was referred to no case on that question. There are several cases where it has been said that a breach of a covenant prohibiting assignment can lead to forfeiture. But it appears that they are based on the existence of a provision in a lease authorising re-entry by the landlord in the event of breach of the covenant against assignment, or breach of any covenant in the lease: see e.g. Richardson v Somas [1967] WAR 109 at 114; Scala House & District Property Co Ltd v Forbes [1974] QB 575; Old Grovebury Manor Farm Ltd v W Seymour Plant Sales & Hire Ltd (No 2) (1979) 1 WLR 1397 at 1399; and Ladies Sanctuary Pty Ltd v Parramatta Property Investment Ltd (1997) 7 BPR 15,156 at 15,158, 15,160-15,161. So the principle is frequently expressed in terms that the right of re-entry only arises if there is an applicable forfeiture provision in the lease: see e.g. Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 at 50 (Jordan CJ); Ladies Sanctuary at 15,161; and Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 at [91] (Le Miere J) (overturned in Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268; (2008) 38 WAR 350, but not on that point). Even then, the assignment will be effective; it just exposes the lessee to the threat of forfeiture: Daventry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406 at 409-410; and Secure Parking at [91]. However in none of those cases did the court consider whether termination of the lease might also be available under the general law of contract, no doubt because the presence of an express forfeiture clause meant there was no need to do so. 620 In the present case the provision of the lease authorising re-entry, cl 11, does not refer to breach of the prohibition on assignment: see [582] above. In its written submissions Harvard did rely on cl 11, saying that the assignment by Mr Tiller to Dimension was a parting of possession which entitled it to rely on cl 11.2. But that was not its pleaded case, which does not refer to cl 11 of the New Leases and instead described the assignment without consent as a 'fundamental breach of the New Lease' which constituted 'a repudiation of the New Lease': SOC paras 25 and 27. In any event I do not accept that the assignment constituted a parting with possession enlivening cl 11.2. That provision only applies if the Lessee 'abandons, vacates or otherwise surrenders the Premises'. For one co-tenant to retire from the possession of the premises and leave his co-tenant in sole possession is not a breach of the covenant not to part with the possession of the land: MacDonald v Robins, see [608] above, citing Corporation of Bristol of Bristol v Westcott (1879) 12 Ch D 461. I will proceed on the basis of Harvard's pleaded case. 621 The principles governing this issue are mainly found in the decisions of the High Court in Shevill v Builders Licensing Board (1982) 149 CLR 620 and Tabali. In Shevill, a tenant who intended to comply with the lease nevertheless was frequently late and in arrears in payment of rent, due to financial difficulties. Given the tenant's intentions, it was not a case of repudiation in the sense of evincing an intention no longer to be bound by the contract or to fulfil it in a manner substantially inconsistent with its terms: see 625-626 (Gibbs CJ). But it can also be a form of repudiation when a party wishing to perform the contract proves unable to do so and commits a breach which goes so much to the root of the contract that it makes further commercial performance of the contract impossible: Shevill at 626. A third situation is where there has been a breach of a fundamental or essential term of the contract, being: a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that any breach of that term may at once and without further reference to the facts and circumstances be regarded by the innocent party as a fundamental breach. Shevill at 626 quoting Suisse Atlantique Société d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1966] 2 All ER 61 at 86. 622 In Shevill, the High Court proceeded on the assumption that these general contractual principles applied to leases: see 625. In Tabali it held that this was so: see 29 (Mason J); 40 (Brennan J), 51-54 (Deane J). At 32-33 Mason J accepted as correct a submission that repudiation of a contract is a serious matter and is not to be lightly inferred (see also Wilson J in Shevill at 633). His Honour also accepted that the breaches of covenant in the case before the court - the covenants to pay rent and to repair - did not, without more, constitute a breach of a fundamental term, nor amount to a repudiation of the lease. But while general contractual principles applied, at 33-34 his Honour said (citations removed): Repudiation or fundamental breach of a lease involves considerations which are not present in the case of an ordinary contract. First, the lease vests an estate or interest in land in the lessee and a complex relationship between the parties centres upon that interest in property. Secondly, this relationship has been shaped historically in very large measure by the law of property, though in recent times the relationship has been refined and developed by means of contractual arrangements. Thus, traditionally at common law a breach of a covenant by a lessee, even breach of the covenant to pay rent, conferred no right on the lessor to re-enter unless the lease reserved a right of re-entry. And in equity the proviso for re-entry was treated as a security for the payment of the rent, so that on payment of the rent equity would relieve against the forfeiture. The object and effect of s. 129 of the Conveyancing Act [1919 (NSW)] was to give further protection to the lessee and to preclude forfeiture of his interest in property within the sphere of the section's operation, except in accordance with its terms. These incidents of the law of landlord and tenant indicate that mere breaches of covenant on the part of the lessee do not amount to a repudiation or fundamental breach. Indeed, it is of some significance that the instances in which courts have held that a lessee has repudiated his lease are cases in which the lessee has abandoned possession of the leased property. But too much should not be made of this as very few cases of repudiation by lessees have come before the courts. I would therefore specifically reject the appellant's submission that abandonment of possession is necessary to constitute a case of repudiation by a lessee. On the other hand, it should be acknowledged that it would be rare indeed that facts which fell short of abandonment would properly be seen as constituting repudiation by the lessee in the case of a long lease at a rental which was either nominal or but a fraction of the amount which could be obtained in the market place. 623 Similarly, at 53 Deane J held: it should be accepted that, as a general matter and subject to one qualification, the ordinary principles of contract law are applicable to contractual leases. The qualification is that the further one moves away from the case where the rights of the parties are, as a matter of substance, essentially defined by executory covenant or contractual promise to the case where the tenant's rights are, as a matter of substance, more properly to be viewed by reference to their character as an estate (albeit a chattel one) in land with a root of title in the executed demise, the more difficult it will be to establish that the lease has been avoided or terminated pursuant to the operation of the ordinary principles of frustration or fundamental breach. Indeed, one may reach the case where it would be quite artificial to regard the tenant's rights as anything other than an estate or interest in land (e.g., a ninety-nine year lease of unimproved land on payment of a premium and with no rent, or only a nominal rent, reserved). In such a case, it may be difficult to envisage circumstances in which conduct of the tenant short of actual abandonment would properly be held to constitute repudiation or fundamental breach or in which anything less than a cataclysmic event such as the 'vast convulsion' referred to by Viscount Simon L.C. in Cricklewood Property and Investment Trust Ltd. v. Leighton's Investment Trust Ltd. (27) [[1945] AC 221 at 229] would warrant a finding of frustration. 624 The New Leases were not long leases, the rent was not nominal, and there is no expert opinion evidence permitting a conclusion that it was a fraction of the market rent. Nevertheless, Mason and Deane JJ's observations show that while it is possible for a breach of a lease short of abandonment of possession to amount to repudiation or fundamental breach, the character of the lease as a demise will usually make that difficult to establish. In the case before the High Court, Mason J recorded (at 35) that it had not been suggested that a number of breaches, which included breach of a covenant not to sublet, viewed in isolation amounted to repudiation or fundamental breach. It was only when those things were combined with a failure to pay rent that they were held to amount to a repudiation or a fundamental breach: see 37. 625 In Battik Pty Ltd v Hawkesbury Nominees Pty Ltd [1999] ACTSC 55; [2000] ANZ ConvR 182 at [162] Higgins J summarised the effect of Tabali as follows: The fact that the agreement is a lease, conferring an interest in land, implies that, in so far as a breach is relied on as supporting repudiation, in the absence of express agreement to the contrary, it needs virtually to amount to abandonment of the premises. That is, of course, why lease agreements typically expressly provide, as this lease does, for re-entry upon failure, if persisted in, to pay rent. 626 I would not, with respect, go so far as to say that a breach needs to virtually amount to abandonment, but I do accept that the character of the lease as conferring an interest in land will make it more difficult than it is in other contracts to establish, objectively, that the conduct of a lessee evinces an intention not to be bound, or that a breach by the lessee goes to the root of the contract. 627 I have outlined the three (potentially overlapping) situations which are sometimes described as repudiation or fundamental breach at [619] above, by reference to Shevill. From the way it is pleaded in the SOC, as a fundamental breach constituting repudiation, it seems that Harvard was relying on the second kind, which arises where the term is not necessarily an essential term or condition but the breach, by its nature is so serious that it goes to the root of the contract, so that further commercial performance of the contract is impossible, and thus deprives the other party of substantially the whole benefit of the contract: Shevill at 626 and Tabali at 31. 628 I do not consider that the breaches constituted by the entry into the 15 February Deeds are breaches of that kind. It may be accepted that the identity of a lessee is important to the lessor, and that this may be so for a variety of objective and subjective reasons. But as the discussion in MacDonald v Robins shows, in the eyes of the law (which leans against forfeiture: Langley v Foster (1906) 4 CLR 167 at 179; and David Blackstone Ltd v Burnetts (West End) Ltd [1973] 1 WLR 1487 at 1496) what goes to the root of the contract is the ability of the lessor to retain privity of estate and otherwise to be able to enforce the lessee's obligations under the lease. None of those things were lost as a result of the 15 February Deeds. That is in a context where assignments in breach are held to be effective (see [617] above); contrast the position in relation to contractual prohibitions on assignment where the contracts are not leases: see e.g. Re Turner Corporation (in liq) (1995) 17 ACSR 761 at 767. 629 Thus, where a covenant against assignment is breached by an assignment to an assignee who is 'respectable and responsible' (to use a phrase commonly employed in leases until the latter part of the previous century), the lessor may only be entitled to nominal damages for breach of the clause: Swanson v Forton [1949] Ch 143 at 152. That must be all the more so when the assignee is an existing co-tenant. There is no suggestion that the 15 February Deeds reduced the likelihood that the lessees under the New Leases would comply with their obligations under the New Leases. I find that entering into those deeds was not a breach that went to the root of the contracts that comprised the New Leases, or deprived Harvard of the substantial benefit of those contracts. 630 For completeness, I will address the other two possible categories of fundamental breach or repudiation. First, I do not consider that entering into the 15 February Deeds evinced an unwillingness or inability to perform the New Leases substantially in accordance with its terms. That question must be approached objectively, that is, by reference to what the conduct of Mr Tiller or Dimension would have indicated to a reasonable observer. I will assume that the observer was aware of the 15 February Deeds. The principles from Shevill and Tabali discussed above, as well as the way they were applied in Tabali, shows that repudiation is not lightly to be found, especially when the character of the New Leases as conveyances of property is borne in mind. And I do not consider that, whatever Mr Tiller's subjective intention, the mere act of breaching the prohibition on assignment by relinquishing rights to a co-tenant is so flagrant a contravention as to convey an intention not to be bound by the New Leases at all. As the discussion above shows, there was a reasonable argument that it was not a breach. And there was nothing about the nature of the breach which foreshadowed an intention not to comply with his obligations under the New Leases; both privity of contract and privity of estate with Harvard remained. 631 It may be that Mr Tiller's promises in the 15 February Deeds not to be involved in the farming operations undertaken by Dimension on the land were inconsistent with certain obligations under the New Leases, such as the obligations to use superphosphate for top dressing to all cleared and pasture area on the Farms (New Leases cl 5), to install firebreaks (cl 6) and to undertake the day to day maintenance of the land (cl 9). But if abandoning possession and leaving the premises entirely to the co-tenant is not a breach of the lease (see above and Corporation of Bristol v Westcott) I do not consider that making those promises in the 15 February Deeds would repudiate the leases. The deeds contained an indemnity by which Dimension effectively promised Mr Tiller that it would perform these obligations (cl 2(a)). That performance would have discharged Mr Tiller's obligations in any event. 632 As for the third category of repudiation or fundamental breach, the accepted test is that in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-642, as approved in Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 337: The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor. That is to be assessed objectively by reference to the contract and the surrounding circumstances: DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 431. 633 There is nothing to indicate that, objectively, strict performance of cl 16 of the New Leases was essential to the lessor. Since privity of estate and the liability on the covenants of the lease all remain, an equitable assignment (the only sort that was possible here), deprived the lessor of no property and no right. Remedies of injunction (McEacharn v Colton [1902] AC 104) and damages are available, and since the lease will only exist as a lease in equity there may be other courses of action the courts could take, such as denial of specific performance to the breaching lessee, which would serve even after the breach has taken place. It is also relevant that the prohibition on assignment is not the subject of the express right of re-entry (cp. Donut King Australia Pty Ltd v Wayne Gardner Racing Pty Ltd [2001] NSWCA 275 at 33). 634 I do not consider that the breaches of the New Leases that occurred when Mr Tiller and Dimension entered into the 15 February Deeds were fundamental breaches or otherwise entitled Harvard to terminate the New Leases. As a result, Harvard's claim in respect of the second instance of alleged misleading or deceptive conduct must fail.

The deeds of rescission and relief against forfeiture 635 The respondents rely on the purported rescission ab initio of the 15 February Deeds by the deed of rescission of 31 July 2019 and the deed of confirmation of 7 November 2019. But even if those deeds did have effect to rescind the 15 February Deeds as from 15 February 2019, that fact by itself could not defeat Harvard's non-disclosure case. The counterfactual which is pleaded in relation to that case is that if the 15 February Deeds had been disclosed to Harvard on 5 April 2019 or within a reasonable time after, Harvard would have terminated the New Leases and delivered vacant possession to the Fowlers by 1 May 2019, thus fulfilling he condition precedent to the Fowler Lease. Events which in fact took place after 1 May 2019 cannot negative that plea. 636 It appears instead that the respondents rely on the two deeds of rescission to support their allegation that they would have been entitled to relief against forfeiture because, it is said, the court can infer that they would have entered into similar deeds if Harvard had sought to terminate the New Leases. The respondents submitted that the breach, if there was one, would have been capable of being remedied, that they would have remedied it, and that relief against forfeiture would have been granted. 637 It seemed therefore that the respondents were urging the court to conduct a relief against forfeiture case within the overall case (ts 362). But in closing submissions, counsel for the respondents submitted that if there was a finding that the 15 February Deeds did not constitute a breach of the New Leases, there would be no need to determine the forfeiture question. 638 In my view there is no need to determine the relief against forfeiture argument since I have decided that, while there was a breach, it was not a breach that entitled Harvard to terminate the New Leases. Either way, the question of relief against forfeiture does not arise. Nor would it be appropriate to determine the question on a purely hypothetical basis. Relief against forfeiture is a discretionary remedy (see e.g. Canberra International Airport Pty Ltd v Ansett Australia Ltd [2002] FCA 329; (2002) 41 ACSR 309 at [45]) and the outcome will depend on a close consideration of all the circumstances of the particular case. In my view that does not lend itself to a trial within a trial of a hypothetical question, and no useful purpose would be served by embarking on that exercise. 639 Harvard made detailed submissions to the effect that the deed of rescission of July 2019 and the deed of confirmation of November 2019 were shams. Since those deeds play no part in the disposition of the application, it is not necessary to determine whether that is so.

Issue (7): Whether the omission to disclose the 15 February Deeds was misleading or deceptive 640 The reasoning above is sufficient to dispose of this aspect of Harvard's case, but it is appropriate to make further findings of fact as to whether, in any event, the conduct of the respondents was misleading or deceptive. 641 Harvard submitted that Mr Tiller and Mr Bryce, as signatories to the 15 February Deeds, should reasonably have expected as at 5 April 2019 that Harvard should have been informed of the deeds so that it could receive legal advice about its rights, including the right to terminate for repudiation. In view of the pleading of this part of the case as described above, I take that to be a submission that in the context of Lawton Gillon's letter of 5 April 2019, Harvard had a reasonable expectation that something which falsified the letter, such as the 15 February Deeds, would be disclosed to it. The SOC does not plead in terms that the non-disclosure was itself misleading, but the respondents did not take any point about that; they themselves characterised this part of the case as a 'non-disclosure' case, and engaged with it on that basis. The respondents submitted there was no requirement to disclose a breach of contract (if that is what it was) to the other party to the contract, and there was no requirement to disclose deeds that had not been implemented. 642 In Demagogue (at 32) Black CJ said: The primary question was whether there had been conduct that was misleading or deceptive or likely to mislead or deceive. In this case, as in every case in which s 52 is relied upon, this was a question of fact that could only be determined - as the judge did determine it - having regard to all the relevant circumstances. Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of 'mere silence' or of a duty of disclosure can divert attention from that primary question. Although 'mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as 'mere silence' because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed. See also Gummow J's similar observations at 40-41 (Cooper J agreeing). 643 These observations have been applied in numerous cases since and received the approval of French CJ and Kiefel J in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 at [17]-[19]. While the language of reasonable expectation is not statutory, it indicates an approach which can be taken to the characterisation of conduct consisting of, or including, non-disclosure of information for the purposes of s 18 of the ACL: Miller & Associates at [19]. It is an objective judgment which is a practical approach to the application of the prohibition in s 18: Miller & Associates at [20]. 644 In commercial dealings between individuals, however, it is not necessarily the case that people who hold things back for their own profit are engaging in misleading or deceptive conduct: Miller & Associates at [21]. As a general proposition, s 18 of the ACL does not require a party to commercial negotiations to volunteer information which will be of assistance to the decision-making of the other party: Miller & Associates at [22]. 645 While French CJ and Kiefel J made these observations in the context of a case about negotiations, the principle may be applied more broadly: s 18 does not oblige a party to a commercial dealing to disclose a matter to another party merely because knowledge of the matter will prove useful to the other party, or it is something the other party would want to know. The question is always whether, in all the circumstances, the conduct of the first party is misleading or deceptive or likely to mislead or deceive. On the same basis, s 18 does not, without more, oblige a party who has breached a contract to tell the counterparty of the breach. That is so even if the counterparty could make use of the knowledge. Harvard did not suggest in this case that s 18 did impose any such requirement. 646 On Harvard's case what, then, did make it necessary for the respondents to disclose the existence of the 15 February Deeds? The fact (as Harvard sought to put it) that Harvard could have terminated the New Leases on the basis of the deeds is not enough by itself. The only other circumstance Harvard identified was the misleading character of Lawton Gillon's letter of 5 April 2020. The reasonable expectation is said to have arisen because the 15 February Deeds falsified the Lawton Gillon letter. 647 In Miller & Associates French CJ and Kiefel J referred to a plea in that case where the plaintiff had alleged that the defendant did not disclose any facts said to falsify positive representations alleged to have been made. Their Honours observed (at [7]) that: failure to confess a misrepresentation is not a necessary element of the cause of action in misleading or deceptive conduct by misrepresentation. It can raise a false issue and suggest that a case relying upon non-disclosure is being presented when it is not. 648 Later (at [23]) their Honours said: Reasonable expectation analysis is unnecessary in the case of a false representation where the undisclosed fact is the falsity of the representation. A party to precontractual negotiations who provides to another party a document containing a false representation which is not disclaimed will, in all probability, have engaged in misleading or deceptive conduct. When a document contains a statement that is true, non-disclosure of an important qualifying fact will be misleading or deceptive if the recipient would be misled, absent such disclosure, into believing that the statement was complete. In some cases it might not be necessary to invoke non-disclosure at all where a statement which is literally true, but incomplete in some material respect, conveys a false representation that it is complete. 649 On the basis of these observations it is open to characterise, as misleading or deceptive conduct, a failure to disclose something specific that falsified or qualified statements made in a prior representation. In truth, many of the cases in which silence or non-disclosure is an element are susceptible to that kind of analysis: see the cases referred to in Lockhart C, Law of Misleading or Deceptive Conduct (4th ed, LexisNexis, 2015) [5.21]; and see the analysis in Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76; (2011) 248 FLR 193 at [54] (McLure P). 650 In the present case it would be wrong to describe the respondents' alleged conduct as a mere failure to correct an earlier false statement. That would involve superfluity of the kind that French CJ and Kiefel J identified. And for reasons I have given, Harvard does not and cannot rely on the allegedly misleading character of the letter of 5 April, independently of the non-disclosure of the 15 February Deeds. It is that non-disclosure which, it is said, made the failure to disclose those instruments part of a course of misleading or deceptive conduct. 651 In my view, Harvard has made out this aspect of its case. I have rejected the arguments put on behalf of the respondents that the 15 February Deeds had no effect. So, on any view, they created rights and obligations that were directly inconsistent with many of the statements made in Lawton Gillon's letter of 5 April 2020. The letter said that Mr Tiller was to remain in control of the farming operations. But the 15 February Deeds prohibited him from having any interest or involvement in the farming operations undertaken by Dimension on the Farms (cl 3(d)). The letter said that Mr Tiller always intended to remain in control of farming operations. But by the 15 February Deeds he had signed away any right to take part in those operations or even to enter the Farms (cl 3(a)). The letter denied that Dimension was a means by which Mr Nicoletti would obtain exclusive control of the farming operations in order to retire Mr Tiller's debts to Mr Nicoletti. But by the 15 February Deeds, Mr Tiller had ceded the right to conduct activities on the Farms and to undertake farming operations on the Farms to Dimension and Dimension alone (cl 3(b) and cl 3(d)). The letter said that Mr Tiller had always intended, and his intentions remained, to be a long term tenant of the Farms. But by the 15 February Deeds he had assigned all of his interest in the New Leases to Dimension (cl 1) and had acknowledged that he had no legal, equitable or financial rights or interest in the New Leases (cl 4(b)). 652 I need not continue. I am satisfied that, after Harvard had the letter of 5 April 2019, the omission to disclose the existence and terms of the 15 February Deeds was, at the very least, likely to mislead or deceive. That is so even if I were to accept that as at 5 April there was still some prospect that Mr Tiller would control the farms (as difficult to accept as that is). The statements in the letter were categorical and unqualified. The existence of the 15 February Deeds, at the very least, raised significant doubts about Mr Tiller's intentions. So the failure to disclose them meant that the course of conduct including the letter was misleading. At this stage of the analysis, that is an objective test, so whether Harvard was in fact misled is not to the point. 653 The fact that the 15 February Deeds amounted to a repudiation of the New Leases (if Harvard's submissions were to be accepted) and that Harvard needed to be aware of the deeds to obtain comprehensive advice, does not add to the analysis. Just because non-disclosure placed Harvard in a less advantageous position in its dealings with the respondents, that does not make it misleading or deceptive. It is the character of the 15 February Deeds as falsifying the impression liable to be created by the letter of 5 April 2019 which makes the failure to disclose the deeds to Harvard conduct that was misleading or deceptive or likely to mislead or deceive.

Issue (8): Who engaged in the misleading or deceptive conduct? 654 As I have said, Harvard alleged that each of the first to fourth respondents engaged in the misleading or deceptive conduct that involved the non-disclosure of the 15 February Deeds. There is no plea that any of them are liable on the basis of involvement in the conduct within the meaning of s 2(1) of the ACL. 655 The SOC alleged knowledge of certain matters on the part of Mr Tiller, Dimension and Mr Nicoletti, and also sought to impute Mr Bryce's knowledge to Dimension and Mr Nicoletti. It has been said that as a general proposition it is not necessary in order to show misleading or deceptive conduct for the purposes of s 18 that the contravenor intended to mislead or deceive, and in a case of an alleged non-disclosure it is not necessary to show that the contravenor knew of the facts not disclosed: Johnson Tiles at [66] (French J, Beaumont and Finkelstein JJ agreeing). Knowledge can be a relevant circumstance, for example, where disclosure of a fact would reasonably be expected if the fact were known to the alleged contravenor: Johnson Tiles at [66]; and Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167 at [209(ii)] (Sackville AJA, Beazley and Campbell JJA agreeing). 656 On the other hand, it has been held that conduct cannot be attributed to a defendant unless it had actual or constructive knowledge of the circumstances that affect its content. Contextual circumstances of which the defendant had no actual or constructive knowledge, and which alter the scope of what would otherwise be attributed to the defendant, are irrelevant: Owston No 2 Pty Ltd at [62] (McLure P). In that regard, reasonable inferences, reasonable assumptions and reasonable expectations arising from the objectively determined circumstances will be in the constructive knowledge of the parties: Owston No 2 Pty Ltd at [62]. The respondents did not rely on s 2(2)(b) and s 2(2)(c) of the ACL, which together relevantly define conduct to include the refusing to do any act and the refusing to do an act as including refraining otherwise than inadvertently from doing an act. But in Owston No 2 Pty Ltd McLure P held (at [66]) that '[t]he need to establish a deliberate omission will only arise if the defendant's actual conduct together with all the relevant surrounding circumstances are (objectively) incapable of giving rise to the misleading or deceptive contextual conduct complained of'. By 'contextual conduct' her Honour meant the actual conduct (in its natural and ordinary meaning) of the defendant, examined in its broader context: see Owston No 2 Pty Ltd at [60]. 657 I will not attempt to resolve this conflict in the authorities (if conflict it be), but will proceed, favourably to the respondents, on the basis that McLure P articulated in Owston No 2 Pty Ltd (although in the case of Mr Bryce I will also apply the Johnson Tiles approach in the alternative). In the case of Mr Tiller and Dimension, there can be little doubt that the misleading conduct must be attributed to them. Lawton Gillon's letter of 5 April 2019 was sent on behalf of them. On the face of the letter, Lawton Gillon was acting as the agents of those clients and within the scope of their authority. There was no suggestion to the contrary from the respondents in this case. So, if it is necessary to resort to s 139B(2) of the CACA, that provision means that the conduct involved in sending the letter is attributed to Dimension. The similar provisions of s 111 of the FTA mean that conduct is attributed to Mr Tiller. In any event, Mr Tiller accepted in cross-examination that he 'would have' read the letter carefully at the time it was sent (ts 258). 658 Dimension and Mr Tiller executed the 15 February Deeds and had the relationship of lessee with Harvard during the relevant period, essentially April 2019. They were in a position to provide the 15 February Deeds to Harvard, and did not. They knew, or must be taken to have known, what the deeds they made provided for. Viewed in the context of those matters, and of what they knew, or must be taken to have known about the letter and the deeds, their actual conduct in instructing Lawton Gillon to send the letter together with the failure to disclose the deeds gives rise to the misleading or deceptive conduct I have identified in the previous section of these reasons. That conduct should be attributed to Mr Tiller and Dimension for the purpose of s 18 of the ACL. 659 To the extent that it is relevant, I do not accept Mr Tiller's evidence that he thought the deeds just acknowledged that he had not put anything into Dimension. I have been through how inconsistent and unsatisfactory his evidence was on the subject of his reading and understanding of the deeds. I accept that Mr Tiller could not be expected to understand them the way a lawyer would, but their terms and effect were clear. Mr Tiller signed them, and he did so in a context where he had tried, unsuccessfully, to have the Tiller Lease assigned to Dimension, and had also tried unsuccessfully to have his name taken off the New Leases. Mr Bryce's email of 6 February 2019 to Nova Legal, which started the process of drafting the 15 February Deeds, says that Mr Tiller was happy to relinquish his rights under the deeds. Mr Tiller knew enough about the deeds to know that they were directly inconsistent with the content of Lawton Gillon's letter of 5 April 2019. 660 I find that both Mr Tiller and Dimension engaged in the misleading or deceptive conduct constituted by the non-disclosure of the 15 February Deeds in the context of the 5 April 2019 letter. 661 Turning to Mr Nicoletti, Mr Tiller's evidence was that he (Mr Tiller) gave the instructions in relation to the letter of 5 April 2019, and he said he was sure that Mr Nicoletti did not (Tiller I, para 193; ts 256). But in cross-examination Mr Nicoletti accepted that by the time of the letter, Dimension was his company, and when asked whether he instructed Lawton Gillon on the occasion of the letter he said 'obviously I did' (ts 299). But he said he could not recall whether he did and he did not know whether it was both he and Mr Tiller who did so (ts 299). I do not take Mr Nicoletti's evidence, as a whole, to contain an admission that he instructed Lawton Gillon on the letter. In my view, it is better read as an acknowledgment that as a director of Dimension he could be expected to have given instructions, coupled with a disclaimer of any recollection that he actually did. 662 Nevertheless, there are reasons on the face of the letter to conclude that Mr Nicoletti did give instructions on its content. It contains statements about the history of Mr and Mrs Nicoletti's relationship with the Carattis, Mr Nicoletti's instructions to Mr Bryce about the incorporation of Dimension, and Mr Nicoletti's discussion in late March with Mr Caratti. Mr Nicoletti was, at the time of the letter a director and sole shareholder of Dimension and in cross-examination he accepted that by this time it was his company (ts 299). It is open to infer that he gave instructions on the letter and his evidence on the point, while not a clear admission, supports that inference. I find that Mr Nicoletti gave instructions on the letter to an extent which means that the sending of it is conduct attributable to him and he knew what it said. That is a conclusion of fact which does not rely on s 111 of the FTA. 663 Section 111(1) does, however, assist in coming to a conclusion that Mr Nicoletti knew of the 15 February Deeds. Similarly to s 139B(1) of the CACA, s 111(1) of the FTA provides that where in a proceeding under the ACL in respect of conduct that is engaged in by a person (the principal) it is necessary to establish the state of mind of the principal, it is sufficient to show that an employee or agent of the principal engaged in that conduct within the scope of their actual or apparent authority, and that the employee or agent had that state of mind. It is clear from the evidence I have described above that Mr Bryce is the person who gave instructions directly to Nova Legal on the deeds and is the person who kept the deeds after they were executed. It is also clear that he did so on behalf of Mr Nicoletti. In connection with Dimension's affairs Mr Bryce accepted he acted on instructions from Mr Nicoletti (ts 328) and the evidence I have summarised at [214] above indicates that he brought about the preparation and execution of the deeds in order to realise Mr Nicoletti's wishes. For the purposes of s 111(1), Mr Bryce's knowledge of the terms of the 15 February Deeds establishes that Mr Nicoletti had the same knowledge. 664 However, independently of s 111, the evidence leads to the conclusion that Mr Nicoletti knew of the deeds and of their contents. They were prepared to give effect to Mr Nicoletti's wish that Mr Tiller relinquish his rights in the Farms. Mr Nicoletti's lawyers, Nova Legal, prepared them and it can be inferred that Mr Nicoletti paid for that. Mr Nicoletti did not authorise payment of the outstanding rates and rent until after the deeds had been executed and Mr Tiller had provided a post-dated resignation as director of Dimension, so it can be inferred that the deeds were important to him. And Mr Tiller's evidence was that Mr Nicoletti gave him the deed to sign. That is likely to be true because Mr Bryce's evidence was that he had not even spoken to Mr Tiller by the time of the 15 February Deeds (ts 329) and there are no written communications in evidence in which the deeds were given or explained to Mr Tiller. Someone must have done that, and the only person who is likely to have done so is Mr Nicoletti. I therefore do not accept Mr Nicoletti's apparent denial that he did (ts 294). I find that as at 5 April 2019 Mr Nicoletti knew of the existence of the deeds and at least enough of their contents to know that they falsified the Lawton Gillon letter. 665 So Mr Nicoletti instructed on the sending of the letter, he knew about the 15 February Deeds, and he had at least one conversation with Mr Caratti in late March about the control of the Farms, so he was in a position to disclose the deeds to him. That is sufficient to find that Mr Nicoletti engaged in the misleading or deceptive conduct. 666 As for Mr Bryce, plainly he knew about the 15 February Deeds. But he could not recall giving any instructions on Lawton Gillon's letter, and he did not recall whether it was he or Mr Tiller or Mr Nicoletti who did so. He accepted as correct the proposition that Dimension Agriculture could only really have instructed Lawton Gillon, and he was sure he saw the letter at around the time it was sent, but could not say whether that was before or after. He accepted that he saw the letter 'not that long after it was sent' but he did not know whether that was a '[c]ouple of days after it was sent' (ts 327). 667 He said he did not think much about the inconsistency between the letter and the 15 February Deeds. He did not deliver the 15 February Deeds to Lawton Gillon until discovery in the proceeding was underway. The tenor of his evidence was that at this time he left the management of Dimension to Mr Nicoletti. He took instructions from Mr Nicoletti, who was his client. He said he trusted Mr Nicoletti had 'sorted out' the contradiction between the letter and the deeds (ts 326-329). 668 I accept Mr Bryce's evidence about these matters. It is consistent with his role, which was clearly that of a professional consultant and intermediary for Mr Nicoletti, and the fact that he was based in Queensland and therefore not close to events in Western Australia. I did not get the impression on viewing him in cross-examination about these matters that he was trying to evade responsibility for the 5 April Letter. In my view he genuinely did not have a clear recollection of it. And given that Mr Nicoletti and Mr Tiller gave instructions on it to Lawton Gillon, where there is no indication that Mr Bryce had any prior contact with them, there is no reason to infer that Mr Bryce had a hand in those instructions. 669 It is also relevant that Mr Bryce did not have any dealings with Mr Caratti at the time of the 5 April 2019 letter or, as far as one can tell, any time afterwards. Any omission on Mr Bryce's part to disclose the 15 February Deeds to Harvard needs to be viewed in that context. That fact, along with Mr Bryce's lack of involvement in the letter, means that even if knowledge of relevant circumstances is not required to establish misleading or deceptive conduct by silence, Mr Bryce simply did not engage in conduct of that kind in the present case.

Issue (9): did the failure to disclose the 15 February Deeds cause loss or damage? 670 Mr Caratti did not believe what Lawton Gillon said in their letter of 5 April 2019, so I do not accept Harvard's plea that it relied on any misleading or deceptive conduct constituted by that letter. But the question of reliance is not a substitute for the essential question of causation (Campbell v Backoffice at [143]) and it is clear from the SOC that the operative causal link pleaded is that if Mr Caratti had known of the existence of the 15 February Deeds, he would have elected to terminate the New Leases for repudiation and would have re-entered the Farms and delivered vacant possession to the Fowlers in time for the commencement of the Fowler Lease. That is consistent with the principle that 'in a case where non-disclosure is misleading, or renders other statements misleading, the reliance/causation question is addressed by asking what the plaintiff would have done if it was aware of the undisclosed facts': Caffey v Leatt-Hayter (No 3) [2013] WASC 348 at [337] (Beech J). 671 The first part of the pleaded causal link may be accepted. Mr Caratti's evidence was that he would have re-entered if he had known of the 15 February Deeds at any time after 5 April 2019, and he was not cross-examined on that. To the contrary, counsel for the respondents accepted that if Mr Caratti had known of the deeds, he would have 'had a go' (ts 371). 672 But counsel went on to say, 'Whether he would have succeeded, we say no'. For the reasons I have given, I agree that any purported election to accept a fundamental breach of the New Leases would not have been effective, because there was no fundamental breach. 673 Even if I am wrong about that, it may be inferred from the circumstances and from the content of Lawton Gillon's letter of 5 April 2019 that if Harvard had sought to re-enter, Dimension would have sought an injunction to prevent Harvard from giving vacant possession to a third party such as the Fowlers. The discussion of the question set out above shows that there was at least a serious question to be tried and the balance of convenience would decisively favour permitting Mr Tiller and Dimension to stay on the Farms. Forcing existing farming tenants to vacate - in the case of Mr Tiller tenants of long standing - would have been no small thing, and any loss Harvard suffered as a result of missing out on the rent differential would be adequately compensated by damages. So on any view, Harvard would not have obtained vacant possession in time for the Fowler Lease to commence. It has not established that the failure of the respondents to disclose the 15 February Deeds caused it to suffer the particular loss that it claims, namely the difference in rent for the first year of the Fowler Lease.

Issue (10): Remedies 674 Since I have found that Harvard has failed to establish that it has suffered loss or damage because of the misleading or deceptive conduct, it is not necessary for me to determine any question of the appropriate remedies. Nor would it be appropriate to do so on any entirely hypothetical basis: the numerous discretionary considerations that arise when determining the appropriate remedy under s 237 and s 243 should be based on actual findings of fact, rather than 'what ifs'. 675 I have, however, made findings on some questions would have been relevant to questions of remedy. That includes the state of knowledge and intentions of Mr Tiller, Dimension and Mr Nicoletti concerning the misleading or deceptive conduct that occurred. It also includes that fact that Mr Nicoletti or entities associated with him have spent a substantial amount of money on the Farms for the purposes of the 2019 farming season (see [328] above). But the evidence did not permit any findings about the precise amount of the money, the terms on which it was provided, or precisely by which entity. Nor was there any evidence as to whether Dimension, Mr Nicoletti or someone else earned a profit from the 2019 season as a result of some or all of that expenditure. Mr Nicoletti dealt with this very briefly in cross-examination, saying that he would be barely break even on the grain harvest, would make some money from of shearing sheep and selling lambs, but the cattle were 'an unknown quantity until I sell them' (ts 306). Similarly, while there was very general evidence that capital improvements including fencing, catchment areas, dams and other water works had been made on the Farms in 2019, there was no evidence as to how much expenditure was attributable to them or what ongoing value they had. 676 Another matter to note in this regard is that the evidence of Mrs Tiller, which I have accepted as true, was to the effect that she told Mr Tiller on a number of occasions that he could keep the farm and she had no interest in it. That would be relevant because the effect of the orders that Harvard sought would not be to return to the status quo before the misleading or deceptive conduct, under which Mr and Mrs Tiller were the tenants of the Farms. Plainly the impact of that on Mrs Tiller's interests may need to be judged in a different light to the impact on Mr Tiller's interests, since she had no involvement at all in the misleading or deceptive conduct. 677 One more issue should be noted as it was raised at trial, although there was limited argument and hardly any evidence about it. The respondents submitted that if damages for the loss of the rent for the first year of the Fowler Lease were to be assessed, that should be done on the basis that it was a loss of opportunity. While a lease had been signed, it had not commenced, and the new tenants had not gone into possession. The respondents submitted that Harvard should have pleaded how the loss of opportunity was to be discounted to take account of the possibility that it might not have eventuated: see for example Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 at [50]. Harvard did not, however, approach the case on this basis. Its loss was particularised, in effect, as 100% of the difference between a year's rent under the New Leases and the first year's rent under the Fowler Lease. In view of the findings I have made, it is not necessary to decide which of these approaches to the assessment of damages in this case is correct.

Conclusion 678 Harvard's claim will be dismissed as against all five respondents. I will make directions for the parties to provide submissions as to costs. I certify that the preceding six hundred and seventy-eight (678) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.